Airline cabin crew habitually carried out their work in Belgium despite the fact that a jurisdiction clause in their contracts stated that their place of work was in Ireland, is the opinion of an Advocate General.

place

This case concerned a group of four workers employed by an Irish company who were assigned to work for Ryanair as cabin crew. A further worker was employed directly by Ryanair as a cabin services agent.

All five signed contracts of employment which were in English, and stated to be governed by Irish law. The contracts contained a clause which conferred jurisdiction on the Irish courts. The contracts also stated that the services were deemed to be performed in Ireland, as they were carried out on aircraft registered in Ireland.

However, their ‘home base’ was designated as Charleroi airport (near Brussels) and they were contractually required to live less than an hour away from their home base.

They started and ended their day at Charleroi airport, where they received their instructions. They always took off from there, and returned there at the end of the day. When they were unfit to work, they were required to attend Charleroi airport to complete a form which was forwarded to the employer’s head office in Dublin. Any disciplinary proceedings were initiated at Charleroi, where meetings took place in the crew room. Subsequent stages of the process were carried out from Dublin.

When their employment ended they brought various claims in the Belgian courts, including claims for unpaid wages, overtime pay, enhanced pay for night work and severance pay. The employers argued that the Irish courts had jurisdiction to determine the claims. The workers argued that there was no link between them and Ireland, since they had never lived or worked there.

A Belgium Court said that it did not have the jurisdiction to determine the claims. They then appealed, and the appeal court asked the European Court of Justice to clarify how the phrase ‘place where the employee habitually carries out his work’ should be interpreted for mobile workers in the international air transport sector, and in particular, whether it is comparable to the concept of an airline’s ‘home base’.

The European Court of Justice has yet to make its decision in this case. However, an Advocate General has given his opinion on the matter. The Court is not obliged to follow the Advocate General’s opinion, although in practice it generally does.

Place where the employee habitually carries out his work is defined

In the Advocate General’s opinion the ‘place where the employees habitually carries out his work’ is the place where, or from which, the worker principally carries out his obligations towards his employer.

The Advocate General said that the national court must either identify the ‘place where’ the employee principally carries out their obligations, or the ‘place from which’ they carry out those obligations.

In the Advocate General’s view, the following facts were relevant to determining the place from which the workers principally carried out their duties:

  • The fact that they started and ended their working day at Charleroi airport, which he said, was of overriding importance
  • The cabin crew received all of their instructions at Charleroi airport, and their work was organised there.
  • The fact that the aircraft were based at Charleroi
  • The cabin crew were contractually required to live less than one hour from Charleroi
  • Although the employers denied having a branch office at Charleroi Airport, there was a ‘crew room’ there which was used by the cabin crew. The fact that it was not a formal branch office was irrelevant.
  • The fact that the workers were required to attend Charleroi Airport if they were unfit for work or in the event of disciplinary problems.

 

It will be for the Belgian court to reach a final view, however the Advocate General concluded that the above factors unequivocally point to the Belgian courts having jurisdiction, being the courts of the place where Charleroi airport is situated.

Whether the cabin crew were employed directly by Ryanair, or assigned to work on Ryanair aircraft, was irrelevant for the purposes of identifying the place where the work was habitually carried out. That place is independent of the legal link between the worker and the person who benefits from the work done.

The Advocate General said that the relevance of the home base should only be taken into account to the extent that it supports the factors set out above for the purposes of identifying the relevant place, as it did in this case.

The Advocate General rejected the employers’ arguments that the nationality of the aircraft on which the workers worked should be taken into account for the purposes of determining the place where they habitually carried out their work.

Case reference: Nogueira and others v Crewlink Ltd; Moreno Osacar v Ryanair, formerly Ryanair Ltd