Case Number: TUR1/533/[2006]

10 November 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:

 

Amicus

 

 

and

 

 

Lewmar Ltd

 

 

Introduction

 

      1.           Amicus (the Union) submitted an application to the CAC on 2 October 2006 that it should be recognised for collective bargaining by Lewmar Ltd (the Employer) in respect of a bargaining unit comprising “All non-managerial workers based at Unit 1, Block B, Portenway, Laporte Way, Luton, Beds and Sundon Park and working within the machine and fitting shops including assembly, paint shop, drives, welding, stores, despatch and wheel cell (excluding wheel covering)”.  The CAC gave both parties notice of receipt of the application on 3 October 2006.  The Employer submitted a response to the CAC on 6 October 2006 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 Roy Lewis, Chairman, and, as Members, Mrs Jackie Patel and Mr Keith Sonnet.  The Case Manager appointed to support the Panel was Nigel Cookson.

      3.           The Panel extended the statutory deadline for it to decide if the Union’s application was to be accepted on a number of occasions.  Time was initially extended to 20 October 2006 in order that the parties could comment on the results of the membership and support check.  Time was then extended to 3 November 2006 to enable the Panel to obtain further evidence before it arrived at a decision.  Time was finally extended to 10 November 2006 to enable the Panel to finalise its decision.

 

Issues which the Panel has to determine

 

      4.           The Panel is required by the Act to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 8; 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 (the Schedule); and therefore is to be accepted.

 

The Union’s application

 

      5.           In its application the Union stated that it had made a previous application for statutory recognition for workers in the same or similar bargaining unit but that the application had been withdrawn in November 2005.  The Union confirmed that it had made a formal request for recognition to the Employer on 14 June 2006 and that the Employer had replied to the request on 21 June 2006.  The Union attached copies of both of these letters to the application.  The Union explained that it then tried to contact the Employer, firstly in writing to say that it agreed to the Employer’s suggestion that Acas be asked for assistance and then by telephone, but the Employer did not respond to either form of contact.    

 

      6.           The Union gave the total number of workers employed by the Employer as 55 and suggested that 37 of these were in the proposed bargaining unit, although it acknowledged that the Employer did not agree on the number of workers in the proposed bargaining unit.  The Union stated that 20 workers in the proposed bargaining unit were members of the Union and that, in addition to the fact that a majority of workers in the proposed bargaining unit were in membership, the Union had collected a petition, a copy of which could be supplied to the CAC on a confidential basis. The Union explained that it had selected the proposed bargaining unit on the basis that the workers therein were employed on the same, or substantially similar, terms and conditions.  The Union confirmed that the bargaining unit had not been agreed with the Employer. 

 

      7.           Finally, the Union stated that there was no existing agreement that covered any workers in the proposed bargaining unit but that there was an agreement with the TGWU that covered workers at another site or sites including Havant in Hampshire.  In its request to the Employer dated 14 June 2006 the Union had informed the Employer that the TGWU had confirmed that the agreement was limited to the Havant site and that at no point had collective bargaining with the TGWU covered those workers within the proposed bargaining unit or the Luton site in general.   

 

The Employer’s response to the Union’s application

 

      8.           In its response to the Union’s application dated 5 October 2006 the Employer confirmed that it had received the Union’s request for recognition on 14 June 2006 and that it had responded by letter dated 21 June 2006, a copy of which was enclosed.  The Employer indicated that it did not agree the proposed bargaining unit as it believed that any bargaining unit should include the whole workforce and not just a small section as it would result in unwieldy and piecemeal negotiations. The Employer also confirmed that it had, in its response to the request, proposed that Acas be invited to assist with negotiations to which the Union agreed.  Acas was contacted and a meeting was initially set for 5 October 2006 but this was later rescheduled for 19 October 2006.

 

      9.           According to the Employer’s response, 300 workers were employed at its Havant site and 85 at Luton, 25 of whom were outworkers.  The Employer did not agree with the Union’s figure of the number of workers in the proposed bargaining unit as that excluded outworkers and included some temporary contract labour. 

 

  10.           The Employer stated that it had an existing collective agreement for recognition in force covering workers in the proposed bargaining unit.  It gave the date of the agreement, alternatively the date on which it came into effect, as 2002.  The Employer enclosed a copy of the agreement with its response.   The enclosed agreement was signed but not dated.  The signatories on behalf of the TGWU consisted of one district convenor and five union stewards.  Under clause 1 (parties to the agreement) the agreement was stated to be “between Lewmar Ltd (herinafter known as ‘the Company’]” and the TGWU.  Under clause 2 (scope of the agreement) it was stated that “this agreement covers all non-management staff of the Company employed at Lewmar Ltd”.

 

  11.           The Employer did not challenge the Union’s estimate of its membership in the proposed bargaining unit.  However, it did not consider that the majority of the workers in the bargaining unit would be likely to support recognition of the Union.  This was because in 2005 the Employer had introduced an Employee Consultative Group that consulted with all employees regarding changes to the business.

 

  12.           The Employer did not contend that the Union’s application failed to meet any of the other admissibility or validity criteria in the Schedule.

 

Further evidence about disputed issues under paragraph 35

 

  13.           By letter dated 6 October 2006 the Case Manager invited the Union to comment on the Employer’s response and in particular to explain why paragraph 35 of the Schedule did not render the Union’s application inadmissible.  The Union was also requested to produce any documentary evidence it had in support of its contention that the existing agreement between the Employer and the TGWU did not extend to the Luton site, which for this purpose included both Luton and Sundon Park.

 

  14.           In a letter dated 9 October 2006 the Union reiterated its position that there was no agreement between the Employer and the TGWU covering the Luton site.  It stated that the agreement with the TGWU dated from a time before the Employer took over a business called Whitlocks that had owned the Luton site.  It added that the Employer had in previous discussions with the Union accepted that the agreement did not cover the proposed bargaining unit at Luton. 

 

  15.           By way of supporting documentary evidence, the Union enclosed a copy of a letter dated 17 January 2006 from a TGWU regional organiser (Bryan Kent) addressed to a regional officer at Amicus’ Luton office (Andrew Faughnan).  It confirmed that the TGWU did have an agreement that covered all departments at the Havant site but that, until the TGWU had been contacted by the Union, it was not even aware that the Employer had a site at Luton.  The letter added that when discussions surrounding the annual pay review had taken place the Employer had never suggested at any time that any settlement incorporated the Luton site.  The letter concluded by expressing support for the Union’s application to the CAC on the basis that the TGWU did not have any involvement at the Luton site.

 

  16.           The Employer was duly invited to comment on the Union’s letter of 9 October and the enclosed letter from the TGWU.  In a letter dated 12 October 2006 the Employer maintained that it had always held the view that it wished to negotiate with one union and that, contrary to the Union’s assertion, at no time had the Employer accepted that the TGWU agreement did not extend to Luton.  The Employer had agreed to meet with the Union as it would appear that there was a small minority of workers who wished to change the representative position.  The letter continued:

 

The T&G recognition agreement, as the current version, was signed in January 2003.  The company Whitlock Steering was acquired by Lewmar in May 2000 prior to this agreement being signed and was part of Lewmar Ltd at the time of signing in January 2003.  We believe that there is a serious conflict of interest with Amicus and the T&G as any changes to pay, holidays, and hours have been negotiated with the T&G and applied here at Havant and at Luton.

 

  17.           The Union responded in a letter to the CAC dated 16 October 2006.  The Union maintained that the collective agreement between the Employer and the TGWU did not, in reality, apply to Luton, as the TGWU itself had confirmed in its letter of 17 January 2006.  Further, the Union understood that the Employer, in a meeting with representatives at Luton, conceded that the TGWU agreement did not cover Luton.   As to the Employer’s claim that the take-over of the Luton site pre-dated the agreement, the Union commented as follows:

 

The original agreement between the TGWU and the Company was entered into before the Luton site was taken over.  If it is correct that the agreement the Company are pointing to was entered into in 2003 then we accept that [it] post-dates the above takeover.  However, the agreement is just an up-dating of the pre-takeover agreement and has adopted the same form of words regarding coverage.  The reality is and always has been that the agreement between the Company and TGWU does not cover the Luton site.

 

  18.           At this stage the Panel was of the view that it still needed more specific evidence from both parties in support of their various contentions.  By letters dated 18 October 2006 the Case Manager requested this.  The letter to the Union asked who from the Employer had conceded that the agreement did not apply to Luton, to whom this concession had been made, and when.  The letter to the Employer asked for comment on the Union’s letter of 16 October and for evidence of any negotiations or joint discussions with the TGWU with reference to the Luton site. 

 

  19.           In a letter dated 19 October 2006 the Union stated that a meeting had taken place with the Employer on 9 December 2005 from which two unresolved matters were left outstanding: the TGWU agreement and the reference to homeworkers in the bargaining unit.  A further meeting took place on 5 or 6 April, which was described as follows:

 

A meeting was held with Messrs Vincent and Ainsworth from Lewmar Ltd and the Union’s representatives, L Tilcox, S Robinson and J Griffin together with regional officer Andy Faughnan -– no minutes were taken of the meeting.  The Union gave the letter from Mr Kent to Mr Vincent who then accepted that the Havant agreement did not cover Luton.

 

  20.           The Union’s letter contained a further noteworthy point.  The Union stated that it had at this meeting produced a fair estimate agreement for homeworkers (a copy of which was attached to the Union’s letter to the CAC), and – according to the Union – the Employer “conceded the differential in terms and conditions”. 

 

  21.           The Employer, in a letter dated 20 October 2006, commented that it had always regarded the negotiations with the TGWU as being negotiations for the entire non-management workforce with the resulting pay rises being applied across both sites, that is, at Havant and Luton.  In operational terms, the Luton site had always been considered a subset of the Havant site with the managing director of the division based at Havant and the majority of the administrative functions performed from there.

 

  22.           The Employer was invited to comment on the Union’s letter of 19 October 2006.  It explained, in a letter dated 27 October 2006, that when the parties first met on 19 December 2005 the Employer had raised the issue of the divisive nature of the Union’s proposal in the light of the Employee Consultative Committee.  The Union had informed the Employer that it would contact the TGWU and obtain confirmation that its agreement did not apply to the Luton operation.  The parties agreed to meet again in early 2006.  On 3 February 2006 the Union provided the Employer with a copy of the letter dated 17 January 2006 that it had received from the TGWU regarding the agreement.  At a meeting between the parties on 5 April 2006, which was not formally minuted, the Employer made it clear that any agreement it would wish to enter should cover all workers except management and should take into account the constitution of the local Employee Consultative Committee.  The Union proposed that it would draft a recognition agreement for the Employer to peruse and the meeting concluded at that point.  The Employer made the point that its acknowledgement of the 17 January 2006 letter from the TGWU was not an indication that it had accepted its contents.  The Employer also emphasised that no agreement was made in respect of homeworkers.

 

  23.           The Union was invited to respond to the Employer’s letter of 27 October 2006.  In an email to the CAC on 2 November 2006 the Union referred the Panel to its letter of 19 October 2006 and indicated that that it had nothing further to add.        

 

Membership and support check

 

  24.           To assist the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the proposed bargaining unit are members of the union (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit are likely to support recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed a check to be undertaken by the Case Manager of the level of union membership and support for recognition within the proposed bargaining unit.  It was agreed with the parties that the Employer would supply to the Case Manager a list of the names of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of Union members within that unit and a copy of its petition in support of recognition to enable comparisons to be undertaken.  It was explicitly agreed with the parties that, to preserve confidentiality, the respective lists and the petition would not be copied to the other party. These arrangements were confirmed in a letter dated 12 October 2006 from the Case Manager to both parties.  The information from the Employer was received by the CAC on 12 October 2006 and the information from the Union was received on 13 October 2006.  The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties. 

 

  25.           The list supplied by the Employer showed that there were 39 workers in the Union’s proposed bargaining unit.  The list of members supplied by the Union contained 17 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 17, a membership level of 43.59%.  The petition supplied by the Union contained 22 names and signatures, of which 18 were in the proposed bargaining unit, a figure that represented 46.15% of the proposed bargaining unit.  Of those 18 signatories, 11 were members of the Union (28.20% of the proposed bargaining unit) and 7 were non-members (17.95% of the proposed bargaining unit).  The Union’s petition took the form of a single sheet of A4 on Union headed notepaper.  The petition was headed:

 

Let me assure you that this Petition will remain fully confidential from your Employer.

 

There then followed the proposition:

 

We the Undersigned Support Amicus’s Application For Collective Bargaining at Lewmar On Our Behalf

 

There were 22 names/signatures on the petition.  Although there were no dates against each individual name/signature the foot of the petition was annotated “SEPTEMBER 2005”.

 

  26.           No additional checks were carried out by the Case Manager to verify the information supplied by the Parties.

 

  27.           A report of the result of the check of the level of Union membership and of support for recognition was circulated to the Panel and the parties on 13 October 2006 and the parties were duly invited to comment on the results of the check. 

 

  28.           Both the Employer, in a letter dated 18 October 2006, and the Union, in a telephone call to the Case Manager on 19 October 2006, confirmed that they did not wish to comment on the result of the Case Manager’s check.

 

Considerations

 

  29.           In deciding whether to accept the application the Panel must determine whether the admissibility and validity provisions referred to in paragraph 4 of this decision are satisfied.  The Panel has carefully considered all the evidence and argument submitted by the Employer and the Union in reaching its decision.

 

  30.           The Panel is satisfied that the Union made a valid request to the Employer within the terms of paragraph 5 to 9 of the Schedule and that its application was made in accordance with paragraph 12.  Furthermore, the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 34 and paragraphs 37 to 42 of the Schedule.

 

Paragraph 35

 

  31.           Paragraph 35(1) provides that an application to the CAC is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is recognised as entitled to conduct collective bargaining on behalf of any workers falling within the bargaining unit proposed by the union.  The question that the Panel must address is whether, in the circumstances of this case, the Union’s application is rendered inadmissible by virtue of paragraph 35.

 

  32.           The Employer submits that its agreement with the TGWU is a collective agreement that is already in force.  Conversely, the Union submits that the agreement does not extend to the Luton site and this has been confirmed in writing by the TGWU.  The consequence, according to the Union, is that there is no paragraph 35 impediment to its application being accepted.

 

  33.           In considering the application of paragraph 35 to this case, the Panel has regard to the following:

 

(1)       The agreement between the Employer and the TGWU, which was attached to the Employer’s response to the Union’s application, is a collective agreement within the meaning of the Act.

 

(2)       It expressly states that it covers all non-management staff of the Company employed at Lewmar Ltd.

 

(3)       The agreement is not dated, but according to the Employer was agreed in 2002 (Employer’s response of 6 October 2006) or January 2003 (Employer’s letter of 12 October 2006).

 

(4)       The agreement is a “current version” (Employer’s letter of 12 October 2006).  It may be inferred from the parties’ correspondence that it was common ground between them that there was an original and/or one or more earlier versions of the agreement.  The Panel is unaware of the date or content of the original and/or earlier versions of the agreement.  Whether the original and/or earlier versions pre-date the Employer’s acquisition of Whitlocks, which previously ran the Luton site, is not known to the Panel.

 

(5)       The parties’ positions on whether at a meeting with the Union on 5 April 2006 the Employer conceded that the TGWU agreement did not apply to Luton is conflicting and the Panel is unable to resolve that conflict.

 

(6)       The signatories to the agreement for the TGWU were 1 district convenor and 5 shop stewards.  These individuals were not based at Luton.

 

(7)       An officer of the TGWU stated on behalf of the TGWU in a letter to the Union dated 17 January 2006 that he was unaware that the Employer had a site in Luton until approached by the Union, and further that in discussing the annual pay round with the Employer no mention had ever been made of Luton.  In the same letter the TGWU made it clear that it did not consider that it had any negotiating rights in respect of Luton and fully supported the Union’s quest for recognition at Luton.  In short, the TGWU, one of the two parties to the agreement, did not believe that the agreement had any application or operation in Luton.

 

(8)       The Employer was specifically asked to provide evidence of any negotiations with the TGWU with reference to the Luton site (CAC’s letter to the Employer of 18 October 2006).  The Employer did not do so.  The Panel concludes in the light of the Employer’s non-response, and the TGWU’s letter to the Union, that in practice the Employer did not negotiate with the TGWU with respect to Luton.  

 

(9)       This non-negotiation had gone on for several years.  The current version of the agreement is – on the Employer’s case – at least 3 years and 10 months’ old – and there appeared to have been no negotiations with the TGWU in respect of Luton during that entire period.  Moreover, the duration of the inactivity is almost certainly longer since there is no indication of negotiations with reference to Luton under the earlier versions of the agreement.  It follows that, even if the agreement had ever applied to Luton, the Luton coverage appears to have been abandoned.

 

(10)   The Employer maintained that it applied to the workforce at Luton any changes to pay, hours and holidays that it negotiated with the TGWU at Havant (Employer’s letter of 12 October 2006).  The Employer did not provide evidence for this beyond asserting it.  However, even if the Employer adjusted terms and conditions at Luton in line with those at Havant, that would not necessarily and in itself be evidence that there was in force a collective agreement that entitled the TGWU to conduct collective bargaining on behalf of any workers at Luton.  In all the circumstances of this case, the adjustment of terms in this way was just as consistent with the Employer’s administrative convenience.

 

  34.           The Panel is also mindful of the legislative purpose of paragraph 35.  This provision was introduced in order to avoid the CAC having to adjudicate upon inter-union recognition disputes.  In the present case it cannot be said that there is any inter-union recognition dispute between the Union and TGWU in respect of Lewmar Ltd.  The TGWU in its letter of 17 January 2006 makes this perfectly clear.  The letter concluded with the TGWU stating that it fully supported the Union’s application to the CAC as it (the TGWU) had no involvement at the Luton site.

 

  35.           In the light of these considerations, the Panel is not on balance satisfied that there is a collective agreement that is already in force recognising a union as entitled to conduct collective bargaining on behalf of any of the workers in the bargaining unit proposed by the Union.  Therefore, the Union’s application will not be rejected by virtue of paragraph 35.  

 

Paragraph 36

 

  36.           The Panel has to decide 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 and also, whether, under paragraph 36(1)(b), 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.

 

  37.           The Panel is satisfied that the Case Manager’s check of Union membership, which showed that 43.59% of the workers in the proposed bargaining unit were members of the Union, was properly conducted.  The Panel concludes that the level of membership in the bargaining unit constitutes at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a).

 

  38.           The test in paragraph 36(1)(b) is whether 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.  To support its position the Union relied not only on its density of membership in the proposed bargaining unit but also on its petition in support of recognition.  The Case Manager’s check indicated that 46.15% of the workers in the proposed bargaining unit had, through signing the petition, indicated support for recognition of the Union and that 17.95% of these signatories were non-members.  The Panel takes the view that, in the absence of persuasive evidence to the contrary, the level of union membership in combination with the petition evidence provide an adequate indication that the 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.  Accordingly, the test set out in paragraph 36(1)(b) is satisfied.

 

Decision

 

  39.           For the reasons given above, the Union’s application is accepted by the CAC.

 

 

 

 

Panel

Professor Roy Lewis, Chairman

Mrs Jackie Patel

Mr Keith Sonnet

 

10 November 2006