Bargaining Unit Decision

Case Number: TUR1/746/(2011)

17 November 2011

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DETERMINATION OF THE BARGAINING UNIT

The parties:

Unite the Union

and

Interserve Industrial

Introduction

1. Unite the Union (the Union) submitted an application to the CAC dated 13 June 2011 that it should be recognised for collective bargaining by Interserve Industrial (the Employer) in respect of a bargaining unit comprising "Scaffolders, Labourers, and Power Washers employed at Dalry". The location of the bargaining unit was given as: "Dalry Ayrshire". The CAC gave both parties notice of receipt of the application on 14 June 2011. The Employer submitted a response to the CAC on 17 June 2011 that was duly copied to the Union.

2. In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chairman established a Panel to deal with the case. The Panel consisted of Professor Kenny Miller, Chairman, and, as Members, Mrs Maureen Shaw and Mr Dennis Cameron. The case manager appointed to support the Panel was Adam Goldstein.

3. By a decision dated 2 August 2011, the Panel accepted the Union's application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. As no agreement was reached, the parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit. A hearing was held on 4 November 2011 in Glasgow and the names of those who attended the hearing are appended to this decision.

4. The Panel is required, by paragraph 19(2) of Schedule A1 to the Act (the Schedule), to decide whether the Union's proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate.

Preliminary matter

5. At the outset of the hearing, the Union confirmed that its proposed bargaining unit consisted of scaffolders, labourers and power washers at Dalry. The Employer clarified that their alternative proposal was for a bargaining unit that consisted of scaffolders and labourers only.

The parties agreed that the current numbers of categories of workers at the Dalry site were as follows:

Managers/Supervisors: 5

Insulators (TICA National Agreement) 5

Scaffolders/labourers 12

General servicemen (power washers) 5

=27 total

Summary of the submissions made by the Union

6. The Union stated in its written submissions that, in deciding whether the bargaining unit proposed by the Union was appropriate, the CAC should have regard to the factors set out in paragraph 19B(3) of Schedule in so far as they did not conflict with the need for the unit to be compatible with effective management. These factors were:

  • The views of the parties
  • Existing national and local bargaining arrangements
  • The desirability of avoiding small fragmented bargaining units within an undertaking
  • The characteristics of the workers falling within the proposed bargaining unit and of any other employees who the CAC considers relevant
  • The location of workers

The Union also referred to paragraph 19B(4) which states that in taking the Employer's views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the Employer has about any other bargaining unit that he considers would be appropriate.

7. Under the heading of existing bargaining arrangements, the Union made reference to the Employer's response to the Union's application where the Employer indicated that it was party to bargaining arrangements under the CIJC (Construction Industry Joint Council) in respect of scaffolders. The Company was party to the TICA (Thermal Insulators Contractors Association) national agreement in respect of insulators who were outside of the Union's proposed bargaining unit.

8. Turning to the views of the parties, the Union alleged that the company recently gave the 5 general servicemen (also known as power washers or pressure washers) a pay rise in return for signing a document which the Company had held to constitute opposition to recognition. Even if this document did constitute such evidence it did not relate to the views of the parties but to the views of members of the proposed bargaining unit. The Union further argued that the document signed by the General Serviceman was ambiguous as it did not state positive opposition to recognition. The Union quoted the precise wording of the document in question being:

I write to confirm as I informed you at our meeting 13/06/11 That all of the pressure washers on site named below do not wish to be part of the ongoing union negotiations, as stated we believe this to be a scaffolders issue.

9. Addressing the question of the desirability of avoiding small fragmented bargaining units within an undertaking the Union argued that its proposed bargaining unit was not small. The unit was not fragmented as there were separate arrangements for managers and insulators respectively. The bargaining unit the Union was proposing consisted of the remaining categories of workers who were not covered by other arrangements. This reflected the current organisational structure.

10. Those in the proposed bargaining unit were all manual workers and all worked under the same management team. In its written submissions the Union stated that scaffolders and powers washers undertook various supervisory duties. However, at the hearing the Union pointed out that this was a drafting error and that, in fact, neither of these categories of workers were required to perform supervisory duties. Scaffolders, labourers and power washers worked together in a team. They also had common hours of work, holiday entitlement and sick pay arrangements.

11. At the hearing, Mr Rab Sherry for the Union stated that Unite the Union had a generally good relationship with the Employer with the two both being members of the Engineering Construction Industry Association, along with GMB. Unite the Union had a recognition agreement with a client of Interserve Industrial at the Dalry site. Therefore, he stated that is was hard to understand why there was so much resistance to recognition at this particular site.

12. The Union submitted that it was unaware of any tensions between the scaffolders and the power washers as result of a pay rise awarded to the scaffolders only. The Union had only been aware of a pay rise for power washers. The Union submitted that workers in the construction industry were scared of blacklisting by employers and therefore were afraid to "put their heads above the parapet". Mr Sherry confirmed that he was not suggesting that Interserve Industrial was engaged in blacklisting but that he was referring to the climate in the industry in general.

13. In reply to a comment by the Employer that there were different pay scales between scaffolders and power washers, Mr Sherry replied that the Union would ensure that it represented the bargaining unit as a whole. The Union submitted that adopting the Employer's proposed bargaining unit could lead to more tensions. The Union addressed the Employer's point regarding the historical differences between the scaffolders and the power washers arising from the pay rise received by the former but not the latter group by arguing that if the Union represented both groups this "simply would not happen."

14. The Union stated that the Employer's proposed bargaining unit was not compatible with effective management whereas the Union's proposed unit was simpler and more compatible with effective management. While the Employer had focused on emphasising that there was a chance of "divorce" later with Union's proposal, the Union held that its proposed unit offered, at least, a "good marriage" first.

15. In conclusion, the Union stated that its proposed bargaining unit consisted of a coherent group of people with a common description. The bargaining unit was compatible with effective management. The Union asked the CAC to decide that the proposed bargaining unit was an appropriate bargaining unit.

Summary of the submissions made by the Employer

16. Providing background information at the hearing, Mr Stephen Norris for the Employer stated that the scaffolders had been awarded a 20% pay rise several years previously which had not been paid to the power washers and that this had led to ill feeling between the two groups of workers. The Employer denied that the power washers had received any pay rise or other financial inducement in the build up to the Union's application to the CAC and that the power washers had written to management of their own volition to say they did not want to be in the Union or the Union's proposed bargaining unit. This had influenced the Employer to propose a bargaining unit containing only scaffolders.

17. The Employer explained that the group of scaffolders currently employed at the site included two workers who were transferred in from elsewhere via TUPE. This meant that their current contractual terms and conditions continued to be sourced from the CIJC agreement. The Employer's basic position was to propose a bargaining unit covering scaffolders and labourers where all the workers in the unit had their terms and conditions regulated by the CIJC agreement.

18. At the hearing, Mr Peter Grant-Hutchison for the Employer referred to the submissions by the Union. He stated that the Employer had no objection to the Union's list of factors the CAC should address as set out in paragraph 19B and 19B(4) of the Schedule. He reminded the Panel that the starting point was to decide on the appropriateness of the bargaining unit proposed by the Union. This test was carried out by considering any alternative bargaining unit proposed by the Employer. The Employer stated that the most natural bargaining unit would be scaffolders who are under the CIJC agreement. This unit was the simplest, the least likely to fragment, had its own history, and had an "organic solidarity".

19. Contrasting this solidarity with the bargaining unit proposed by the Union, the Employer submitted that the Union's proposed unit was not compatible with effective management. In the Union's proposed bargaining unit it was necessary to take account of those under the CIJC agreement, possibly numbering 2. The Union's proposed unit contained workers working at different pay rates. It also contained workers who had stated that that they did not wish to be represented by the Union.

20. The Employer referred to the Union's point that the Panel was required to take into account the views of the parties as opposed to the views of the members of the proposed bargaining unit. The Employer submitted that it was also appropriate, when looking at the views of the parties, to consider how those views were arrived at. Having learnt of the statement by the 5 power washers, the concern expressed by the Employer was that the Union's proposed unit could fragment because of people not wanting to be in it. The Employer further noted the CAC's overall duty to consider the requirements of good industrial relations.

21. The Employer submitted that power washers were not seen as part of the scaffolding team by scaffolders or power washers themselves. Scaffolders had a greater degree of flexibility in shifts than power washers. The Union's proposed bargaining was not appropriate because of the aforementioned internal differences and historical friction between the scaffolders and the power washers. The internal tension within the Union's proposed unit would render it not compatible with effective management. Regarding the Union's point that such problems could be avoided if the Union represented them all, the Employer replied that, on the face of the statement, this was the case but it ignored the fact that power washers did not want to come to the table. The power washers felt the problems were insurmountable.

22. Further points raised by the Employer were as follows

  • Staff numbers at the Dalry site were falling as scaffolders in particular left to seek employment elsewhere, therefore impacting on the numbers supporting recognition.

There was a disparity around the list of employees and Union members submitted by the parties so that there was not a clear picture of union membership at the Dalry site.

Employees other than power washers had said to their peers that they were trade union members due to peer pressure but confided in the management team that they were not members of the trade union. The Employer provided no evidence to support this point.

Regarding the second bullet point the Panel reminded the Employer that the list provided by the Union had been checked against the list provided by the Employer to undertake the membership check at the acceptance stage.[1]

23. The Employer emphasised that it valued good industrial relations and this was not challenged by the Union.

24. The Employer concluded by stating that the internal differences within the Union's proposed bargaining unit gave it realistic chance of fragmenting, thereby causing problems with effective management. The Employer referred the Panel to R (on application of Cable & Wireless v CAC and CWU [2008] IRLR 425, HC as an example of a case regarding a fragmented bargaining unit. The Employer did not elaborate further on this point.

Considerations

25. The Panel is required, by paragraph 19(2) of the Schedule to the Act, to decide whether the Union's proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. Paragraph 19B(1) and (2) states that, in making those decisions, the Panel must take into account the need for the unit to be compatible with effective management and the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need. The matters listed in paragraph 19B(3) are: the views of the employer and the union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and the location of workers. Paragraph 19B(4) states that in taking an employer's views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that it considers would be appropriate. The Panel must also have regard to paragraph 171 of the Schedule which provides that, "In exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned." The Panel's decision has been taken after a full and detailed consideration of the views of both parties as expressed in their written submissions and amplified at the hearing.

26. The Panel notes that the impact of the respective bargaining units proposed by the parties is as follows-

Employer's proposal:

Managers

Insulators

Power washers

Scaffolders and labourers (Employer's proposed bargaining unit)

Union's proposal:

Managers

Insulators

Scaffolders, labourers and power washers (Union's proposed bargaining unit)

27. The Union made reference to R v CAC ex parte Kwik-Fit (GB) Ltd [2002] IRLR 395 in its written submissions and the Panel has noted these observations. However, the Panel's decision is made in accordance with Paragraph 19 of the Schedule as described in the previous paragraph of this decision. Paragraph 19 of the Schedule was amended by the Employment Relations Act 2004 subsequent to the Court of Appeal judgment mentioned above.

28. The Panel's first responsibility is to decide, in accordance with paragraph 19(2) of the Schedule, whether the Union's proposed bargaining unit is appropriate. The Panel considers that the Union's proposed bargaining unit is compatible with effective management. In reaching this conclusion the Panel has taken into account the matters set at 19B(3) of the Schedule as listed at paragraph 25 of this decision. In particular, the Panel considers that the Union's proposed bargaining unit consists of categories of workers with a number of common characteristics. According to the Union's submissions, and not challenged by the Employer, scaffolders and labourers share the same holiday entitlement and sick pay arrangements with the power washers. The Union submissions also indicate that scaffolders, labourers and power washers work under the same management team and none of them undertake supervisory duties. The Panel nevertheless notes the Employer's statement that the two groups have differing rates of pay and that scaffolders have more flexibility in the way they complete their total required hours of work. The Panel has also taken into account the Employer's submission that power washers were not seen as part of the scaffolding team. Nevertheless, the Panel does not consider that these differences negate the possibility of all three groups being represented by the Union for the purposes of collective bargaining.

29. It strikes the Panel that Employer's key objection to the Union's proposal was that the proposed unit may break apart as a result of tensions between scaffolders and power washers, brought about by a pay rise awarded to the former group but not the latter. The Employer elaborated at the hearing on this tension and on the fact that 5 power washers had stated they did not wish to be represented by the Union. However, in reaching its decision the Panel has taken account of the following factors:

  • The commitment to good industrial relations expressed by both parties at the hearing
  • The particular statement by the Union that it wished to represent scaffolders, labourers and power washers and that by representing all of these together, future tensions of the kind outlined could be avoided

30. In reaching its decision the Panel has fully considered the alternative bargaining unit advanced by the Employer as required by paragraph 19B(4) of the Schedule. It is worth noting that the Employer's proposal leaves a question mark over how the power washers would be included in collective bargaining. The evidence submitted suggests that, if the Employer's proposal was adopted, the power washers would be faced with the choice of having no collective bargaining rights at all or having separate arrangements established for them. This could potentially give rise to even greater fragmentation of bargaining at a small site.

31. In arriving at its decision the Panel has also taken account of the point made by the Employer that the numbers of scaffolders within the bargaining unit had declined with a possible impact on support for recognition. The overriding concern in determining the bargaining unit is compatibility with effective management rather than support for recognition although the latter may, nevertheless, be tested at a later stage in the process. It is not possible to predict what will happen to the bargaining unit in the future.

32. The Panel is satisfied that its decision is consistent with the object set out in paragraph 171 of the Schedule.

Decision

33. The Panel's decision is that the appropriate bargaining unit is that specified by the Union in its application.

Panel

Professor Kenny Miller, Chairman

Mrs Maureen Shaw

Mr Dennis Cameron

17 November 2011

Appendix

Names of those who attended the hearing:

For Unite the Union

Mr Rab Sherry - Regional Officer, Unite the Union

Mr Neil Johnson - Thompson's Solicitors

For the Employer

Mr Gary Richards - General Manager, Scottish Industrial

Mr Peter Grant-Hutchison - Advocate

Mr Stephen Norris - HR Business Partner, North


[1] See the decision for this case on whether to accept the application dated 2 August 2011.