Case Number:TUR1/525/(2006)

9 August 2006

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER TO ACCEPT THE APPLICATION

The Parties:

Prospect

and

Rocksavage Power Company Limited

Introduction

1.        Prospect (the Union) submitted an application to the CAC dated 20 July 2006 that it should be recognised for collective bargaining purposes by Rocksavage Power Company Ltd (the Employer), in respect of a bargaining unit comprising “all staff employed at Rocksavage Power Station, excepting the Senior Management Team of 3”. The CAC gave both parties notice of receipt of the application on 24 July 2006.  The Employer submitted a response to the CAC dated 31 July 2006, which was 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 consider the case.  The Panel consisted of Professor Gillian Morris (Panel Chairman), Mr David Crowe and Sir Bill Conner (Members). The Case Manager appointed to support the Panel was Kate Norgate.

3. The CAC Panel has extended the acceptance period in this case. The initial period expired on 7 August 2006. The period was extended until 9 August 2006 in order to allow time for the Panel to consider the evidence and reach a decision.

Issues

4. The Panel is required, by paragraph 15 of Schedule A1 to the Act, to decide whether the Union's application to the CAC is valid within the terms of paragraphs 5 to 9; is made in accordance with paragraphs 11 or 12 and is admissible within the terms of paragraphs 33 to 42 of Schedule A1 to the Act; and therefore should be accepted.

5. In its application the Union stated that there were 28 workers in its proposed bargaining unit, 22 of whom were members of the Union. The Union stated that it had a membership list that was available for scrutiny by the CAC. The Union stated that a ballot paper had been sent to members in April 2006. 17 were returned with 100% support for recognition. It attached the ballot paper to its application. The ballot paper stated “I understand that Prospect are seeking formal trades union recognition at Rocksavage Power Plant”. It then stated, underneath, “I indicate my support, or otherwise, as follows: “I support the Prospect recognition claim” and “I do not support the Prospect recognition claim”. There was a box beside each of these two statements.

6. In its response to the Union’s application, the Employer stated that it did not agree with the Union’s proposed bargaining unit. However it then stated that, in the interests of moving matters forward, it would agree not to challenge the Union’s proposed bargaining unit or the admissibility of the Union’s application if the Union accepted its proposal that there should be a ballot as soon as possible to determine whether there was support for recognition and the CAC were to agree to this approach. The Employer attached to its response a letter to the Union dated 28 July 2006 in which it explained its proposal. In the covering letter to its response to the CAC the Employer stated that, although the Union had yet to confirm formally acceptance of the Employer’s proposal, the Union had indicated by telephone on 28 July 2006 that this would be a sensible way to proceed.

7. The Employer explained that in the event that the Panel did not determine that its proposal was an appropriate course of action it would request that the Union carried out a rigorous check of its membership records, particularly to determine whether those it counted as members were fully paid up, in order to establish that the Union’s estimate of membership in its proposed bargaining unit was accurate. It further stated that it considered that a majority of the workers in the proposed bargaining unit would not be likely to support recognition. It explained that it had conducted a ballot on or around 5 July 2006 and attached to its response a sample ballot paper. The paper stated “I wish to continue to support direct one-to-one communication and reject Prospect being given collective bargaining rights at Rocksavage” followed by “please circle whichever applies” “Yes” “No”. Papers were to be returned to the Director, Human Resources. The Employer stated that 23 of the 28 employees whom it considered to be part of the bargaining unit (and no others) had participated in the ballot and that all of those who had voted had voted against union recognition.

8. The Employer further stated that even if a majority of the workers in the proposed bargaining unit were members of the Union and/or likely to support recognition, in view of the background to this application, it considered that it would be in the interests of good industrial relations for a ballot to be held.

9. The Employer’s response was copied to the Union for comment. In its response, dated 4 August 2006, the Union stated that it considered that the only way forward was via an independent ballot under the auspicies of the CAC. It also stated that, as of 4 August, it had 24 fully paid up members at the Employer and it offered to share membership details with the CAC on a confidential basis.

Considerations

10. The Panel has considered carefully the submissions of both parties and the supporting documentation. In order to find an application admissible the Panel is required to decide, firstly, whether under paragraph 36(1)(a) of the Schedule, members of the union constitute at least 10% of the workers in the proposed bargaining unit. The Union, in its application, states that 22 of the 28 workers in the proposed bargaining unit are members of the Union. The Employer did not challenge the Union’s evidence. The Panel has decided that, on the balance of probabilities, members of the union constitute at least 10% of the workers in the proposed bargaining unit. The second issue for the Panel to decide is whether, under paragraph 36(1)(b) of the Schedule, a majority of the workers constituting the proposed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit. The Panel considers that, in the absence of evidence to the contrary, the level of union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit and that, on the balance of probabilities, a majority of workers constituting the proposed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit.

11. In addition, the Panel is satisfied, after considering all the documentation submitted by the parties, that the Union’s application meets the remaining statutory tests.

Decision

12.       For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris

Sir Bill Connor

Mr David Crowe

9 August 2006