Case Number: TUR1/518/2006

3 October 2006

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

Amicus

and

Macmillan Publishers Ltd

Introduction

1. Amicus (the Union) submitted an application dated 8 June 2006 to the CAC that it should be recognised for collective bargaining by Macmillan Publishers Ltd (the Employer) for a bargaining unit comprising “all permanent warehouse workers excluding supervisors and managers” located at the Employer’s site at Unit 8, Lye Industrial Estate, Pontardulais, Swansea. The CAC received the application on 9 June and gave both parties notice of receipt of the application on that date. The Employer submitted a response to the CAC on 14 June 2006 and it 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 Roy Lewis, Chairman of the Panel, and, as Members, Mrs Diana Palmer, and Mr Bob Purkiss. The Case Manager appointed to support the Panel was Nigel Cookson.

3. By a decision dated 12 July 2006 the Panel accepted the Union’s application and the parties entered a period of 20 working days, the ‘appropriate period’ in accordance with paragraph 18(2)(a) of Schedule A1 to the Act (the Schedule), within which to negotiate and try to reach agreement as to the bargaining unit. The parties were notified that, in the event that no agreement as to the appropriate bargaining unit was reached during this period, a hearing at which the Panel would determine the appropriate bargaining unit would take place on 22 September 2006. To accommodate the hearing the Panel extended the time in which it must determine the bargaining unit to 29 September 2006. No agreement was reached by the end of the appropriate period and the parties were accordingly notified of the arrangements for the hearing. However, on 13 September 2006 the Employer, in an email to the Case Manager, confirmed that it was now in agreement with the Union’s proposed bargaining unit. Consequently, the parties were informed that, as agreement on the bargaining unit had been reached, the hearing scheduled for 22 September 2006 would no longer take place.

4. Following the parties’ agreement as to the appropriate bargaining unit, the Panel instructed the Case Manager to establish whether the Union claimed that it had a majority of the workers in the bargaining unit as its members and, if so, to seek the parties’ views with regard to whether or not a ballot should be held.

Issues

5. Paragraph 22(2) of the Schedule requires the CAC to issue a declaration that a union is recognised as entitled to conduct collective bargaining on behalf of a group of workers constituting the bargaining unit if it is satisfied that a majority of the workers constituting the bargaining unit are members of the applicant union, unless any of the three qualifying conditions set out in Paragraph 22(4) are fulfilled. If any of these conditions are met, or the CAC is not satisfied that a majority of workers in the bargaining unit are members of the applicant union, the CAC must give notice to the parties that it intends to arrange for a secret ballot to be held. The qualifying conditions in paragraph 22(4) are as follows:

i) the CAC is satisfied there should be a ballot in the interests of good industrial relations;

ii) that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

iii) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of union members within the bargaining unit want the union to conduct collective bargaining on their behalf.

Union’s submissions

6. In a letter dated 14 September 2006 the Union was asked if it wished to claim majority membership within the bargaining unit, and if so, whether it wished to submit to the Panel that it should be recognised without a ballot in accordance with paragraph 22(2) of the Schedule.

7. The Union responded on 19 September 2006. It referred the Panel to the check of Union membership in the bargaining unit conducted by the Case Manager on 29 June 2006 in order to assist the Panel in determining whether the application was to be accepted. The report concluded that 68.18% of the workers in the bargaining unit were members of the Union and this, the Union stated, was now accepted by the Employer. This figure clearly demonstrated majority membership and support for trade union recognition. As far as the Union was aware there had been no change in the number of workers in the bargaining since the report was conducted. The Union concluded by requesting that the Panel declare it to be recognised for the purposes of collective bargaining by the Employer.

Employer’s submissions

8. The Union’s email was copied to the Employer and, in a letter dated 20 September 2006, the Employer was invited to make submissions on the qualifying conditions as set out in paragraph 5 above. In an email to the CAC dated 27 September 2006 the Employer confirmed that it did not wish to comment on the Union’s claim to majority membership letter nor the qualifying conditions as set out in paragraph 22(4) save that it noted that there had been little material change in the composition of the workforce since the Case Manager’s report of 29 June 2006. It did not know, however, if the proportion of Union members in the workforce had changed since June 2006 though, it commented, no doubt this would have been mentioned by the Union as a material fact, in its letter of 19 September 2006, were it the case.

Considerations

9. The Act requires the Panel to consider whether it is satisfied that the majority of the workers in the bargaining unit are union members. If the Panel is satisfied that the majority of the bargaining unit are union members, it must then decide if any of the three conditions in paragraph 22(4) are fulfilled. If the Panel considers any of them are fulfilled it must give notice to the Parties that it intends to arrange for the holding of a secret ballot.

10. In this case the check undertaken by the Case Manager on 29 June 2006 showed that the level of Union membership was 68.18%. The Employer, having been given the opportunity to comment at the time the report was circulated, did not challenge the level of membership. The Employer was given a further opportunity to challenge the level of Union membership on 27 September 2006 when it was invited to comment on the Union’s claim to majority membership. The Employer, in its email of 27 September 2006, simply noted that there had been little change in the composition of the bargaining unit since the report was published. It added that it had no knowledge as to whether there had been any change in the proportion of Union members in the bargaining unit but did not doubt that, if this was the case, the Union would have mentioned any change in its letter to the CAC of 19 September 2006.

11. Having considered the papers received, the Panel is satisfied that there is no evidence to suggest that the proportion of Union members in the bargaining unit is materially different to that as published in the report compiled by the Case Manager on 29 June 2006 and accordingly finds that the majority of the workers in the bargaining unit are members of the Union.

12. Paragraph 22(4)(a) requires the CAC to order a secret ballot even when there is majority Union membership in the bargaining unit where it is satisfied that to do so would be in the interests of good industrial relations. The Union has submitted that it should be awarded recognition without the need for a ballot. The Employer, although presented with the opportunity to comment on this qualifying condition, elected not to do so. Therefore, in the absence of any evidence to the contrary, the Panel is satisfied that industrial relations between the parties concerned would not be furthered by the Panel ordering the conduct of a secret ballot and so the Panel is satisfied that the qualifying condition under paragraph 22(4)(a) has not been met

13. Paragraph 22(4)(b) requires the CAC to order a ballot when it has received evidence, which it considers to be credible, that a significant number of union members within the bargaining unit do not want the Union to conduct collective bargaining on their behalf. No such evidence has been produced and accordingly the Panel is satisfied that this condition has not been met.

14. Paragraph 22(4)(c) requires the Panel to order a secret ballot where membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the Union to conduct collective bargaining on their behalf. No such membership evidence has been produced. The Panel is therefore satisfied that this condition is not met.

Declaration

15. The Panel is satisfied in accordance with paragraph 22(2) of the Schedule that the majority of the workers in the bargaining unit are members of the Union. Additionally, the Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule are met. The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit, namely “all permanent warehouse workers excluding supervisors and managers” located at the Employer’s site at Unit 8, Lye Industrial Estate, Pontardulais, Swansea.

Panel

Professor Roy Lewis, Chairman

Mrs Diana Palmer

Mr Bob Purkiss

3 October 2006