Covent Garden porters cannot keep all of porterage fee

Registered porters working at New Covent Garden are not entitled to share between themselves all of the 'porterage' fee paid by customers for moving fruit and vegetables, the Court of Appeal has ruled.

The court heard that registered porters earned basic pay of around £250 per week, together with a share of porterage, which varies from week to week but could take weekly pay to £550.

Unregistered porters earn a higher basic pay, of £500 a week, but receive no additional porterage money.

The registered porters argued that under an agreement made in 1974 between the Covent Garden Tenants Association, which represented the employers, and the TGWU, now Unite, they were entitled to "share between themselves the entirety of the porterage pool earned by all porters".

Delivering judgment in Hay and others v Gilgrove and others [2013] EWCA Civ 412, Lord Justice Rimer said that Gilgrove and another employer, C & C Fruit and Veg, kept the share of the porterage fee earned by their unregistered porters and used it to cover part of the cost of their basic wage.

An employment tribunal backed the claims of the registered porters, but the EAT rejected them.

Rimer LJ said that at the time of the 1974 agreement, registered porters were "the only species of porter known to the market".

He went on: "It appears to me, however, unreal to interpret the agreement as intended to prescribe that, in circumstances in which the qualifications to work as a porter in the market changed, and unregistered porters could also lawfully work there, the porterage earned by all porters was nevertheless to be paid exclusively to registered porters.

"It is true that the 1974 agreement does not, in terms, reflect that the parties had in mind that circumstances might in the future arise in which unregistered porters could lawfully be admitted to the market (just as it does not, in terms, reflect that porters who were not union members could or might be so admitted, and no one suggests there has ever been any problem about that).

"But to attribute to the architects of the 1974 agreement an intention to achieve the consequence for which the appellants contend appears to me to involve the attribution of the absurd.

"They cannot rationally have intended that, in circumstances in which both registered and unregistered porters could lawfully be employed in the market, the porterage earned by the efforts of the unregistered porters should be shared exclusively by the registered porters. That makes for neither sense nor fairness."

Rimer LJ dismissed the appeal by the registered porters. Lord Justice Moore-Bick and Lord Justice Thomas, president of the Queen's Bench Division, agreed.