Case Number: TUR1/328/2003

Case Number: TUR1/537/2006

19 December 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:

Union of Construction, Allied Trades and Technicians (UCATT)

and

Swift Plant Hire

Introduction

1. UCATT (the Union) submitted an application to the CAC, dated 23 October 2006, that it should be recognised for collective bargaining purposes by Swift Plant Hire (the Employer), in respect of a bargaining unit, comprising “Drivers, Fitters and General Operatives working within Swift Plant Hire at various locations in the UK.” The CAC gave both Parties notice of receipt of the application on 24 October 2006. On 30 October 2006 the Employer submitted a response to the CAC, 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 Frank Burchill (Panel Chair), Mrs Jean Johnson and Mr Paul Talbot (Members). The Case Manager appointed to support the Panel was Sarah Kendall.

3. The CAC Panel has extended the acceptance period in this case on two occasions. The initial period expired on 7 November 2006. The acceptance period was extended until 24 November 2006 in order to allow time for further information to be sought from the Parties. It was further extended until 19 December 2006 to enable the Panel to consider all the evidence before reaching and formulating its 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. The Union, in its application to the CAC received on 24 October 2006, stated that there were 31 workers employed in the proposed bargaining unit, 23 of whom were members of the Union. In its application the Union stated that it had made its request for recognition by a letter dated 3 October 2006 and a response was received from the Employer on 16 October 2006 not accepting the request stating that its proposed bargaining unit was governed by an appropriate Working Rule Agreement. The Union however, stated in its application that there was no existing recognition agreement which covered this group of workers. In accordance with paragraph 34 of the Schedule the Union copied the application form together with a list of the Union membership within the proposed bargaining unit to the Employer for its information.

6. The Employer, in its response received on 30 October 2006 stated that Swift Plant Hire was managed as part of David Wilson Homes (DWH) which was a wholly owned subsidiary of Wilson Bowden plc (WB). The Employer further stated that WB had 2780 employees of whom 209 were employed within its Wilson Bowden Developments subsidiary and that 2238 were employed within its DWH subsidiary. Of the 2238 DWH employees 259 were employed within its Central Trading Division (CTD) of whom 41 were employed within the plant hire arm of the CTD namely Swift Plant Hire. The Employer did not agree with the number of workers within the proposed bargaining unit as claimed by the Union stating that there were 34 workers within that unit.

7. The Employer indicated that there was no existing agreement in force covering workers in the proposed bargaining unit but it further submitted that the most of the direct labour within DWH had their pay, hours and holiday governed by the Construction Industry Joint Council Working Rule Agreement for the Construction Industry (the WRA) of whom the Union was an Adherent Body and that the WRA also applied to those staff at Swift Plant Hire. The Employer added that the Union was recognised by the Construction Confederation for the purposes of collective bargaining. The Employer reiterated that Swift Plant Hire formed part of Wilson Bowden plc’s CTD with the vast majority of its services provided to DWH. Further, the CTD was managed as a division and comprised Swift Plant Hire together with plumbing and joinery sections and pay, hours and holidays for direct labour within the CTD was covered by the WRA.

8. The Employer argued that the Union’s proposed bargaining unit was not compatible with effective management of the CTD and/or direct manual labour of DWH. It stated that contrary to what the Union suggested Swift Plant Hire operated from one site alongside plumbing and joinery sections within CTD and/or DWH. The Employer also asserted that the characteristics of the workers within the proposed bargaining unit was substantially the same as those of the direct manual labour within the CTD and DWH.

9. The Employer disputed the Union’s estimate of Union members within the proposed bargaining unit. It contended that 3 of the 23 workers identified by the Union did not work for Swift Plant Hire stating that one worked for WBD, another for the joinery section of the CTD and the other for the plumbing section of the CTD. The Employer did not know whether or not the workers in the proposed bargaining unit were aware that their pay, hours and holiday were governed by the WRA. The Employer argued that if the bargaining unit was Swift Plant Hire as a whole the Union did not have a majority according to the figures provided.

Paragraph 35

10. In accordance with paragraph 35, an application to the CAC made under paragraph 11 or 12, 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 that union. A collective agreement is defined by section 178 of the Act as “any agreement or arrangement made by or on behalf of one or more trade unions and one or more employers or employers’ associations relating to one or more of the matters specified” within section 178. These matters include terms and conditions of employment, facilities for officials of trade unions and the machinery of negotiation or consultation on any of the matters specified. The relevant legislative provisions are listed in Appendix A. The Union contended that there was not in force a collective agreement which barred its application from being accepted by the CAC. The Employer contended that there was in force an agreement which rendered the Union’s application inadmissible under paragraph 35 of Schedule A1.

11. The Union was invited by the Panel in a letter dated 1 November 2006 to comment on the Employer’s Response in particular the Employer’s claim that the workers within the proposed bargaining unit were governed by a Working Rule Agreement. The Union responded in a letter dated 2 November 2006 in which it stated that in relation to the information available to the Union the Rates of Pay did not concur with the Rates of Pay in the CIJC Working Rule Agreement. It repeated a point made by the Employer in its Response to the application that the Employer clearly indicated that there was no recognition in force covering workers in the proposed bargaining unit.

12. By a letter dated 13 November 2006, the Panel invited the Employer to make any further submissions within the remit of paragraph 35 of the Schedule and further directed the Employer to clarify whether the Employer was a member of the Construction Industry Joint Council (CIJC) or any other body that would have a bearing on determining whether a collective agreement was already in force and to provide copies of the Working Rule Agreement and a specimen copy of a contract of employment. The Employer provided the following on 15 November 2006:

Clarification that Wilson Bowden plc was a member of the Construction Confederation one of the adherent bodies to the CIJC;

A copy of the Working Rule Agreement;

A specimen copy of the contract of employment widely used for direct manual labour within DWH but not issued to workers in the proposed bargaining unit. The Employer stated that it had treated Swift Plant Hire’s direct manual labour as if the WRA applied to their employment. It further stated that workers in the proposed bargaining unit were paid at or above the rates specified by the WRA but that there was a number of instances where job functions were not covered by the WRA and in those cases other rates applied.

13. In a further letter to the Employer dated 23 November 2006 the Panel directed that the Employer should provide a relevant contract of employment pointing out any references to the WRA therein and to explain the relationship between Wilson Bowden and Swift Plant Hire. In addition the Panel asked the Employer to explain what the statement meant to the effect that the Construction Federation is an “adherent member” of the CICJ. The Panel also requested that the Employer state whether negotiations had taken place at local level and if they had to specify with whom and to provide if possible any supporting evidence. Furthermore the Panel required the Employer to comment on the following paragraphs of the WRA:

WR.25- “The Construction Confederation recognises the signatory Trade Unions within the CIJC for the purposes of collective bargaining. Both Parties are fully committed to the WRA and strongly urge Employers to:

i) recognise the trade unions who are the signatories to the Agreement

ii) ensure that all operatives are in the direct employment of the company or its sub contractors and are engaged under the terms and conditions of the WRA”

14. In a letter dated 24 November 2006 the Employer’s solicitor provided the following information:

The Employer did not provide a relevant contract of employment stating that workers in the proposed bargaining unit had not been issued with a contract of employment per se but re-iterated that as a matter of custom and practice it had treated the direct manual labour within the proposed bargaining unit as being covered by the WRA;

The Employer’s solicitor explained that Swift Plant Hire was one of the operating titles used by DWH and that DWH was a wholly owned trading subsidiary of Wilson Bowden plc;

The solicitor pointed out that on page iii of the WRA there was reference to the Construction Federation being one of the “Adherent Bodies” to the CIJC;

The Employer’s solicitor contended that no negotiations had taken place at local level. It was explained that the WRA set out rules which had been collectively agreed upon by affiliated employers and unions and from time to time sets, for example, pay rates which those affiliates should apply. The Employer also provided a copy of the latest Resolution and Promulgation dated 26 June 2006 in relation to rates of pay for specified job classifications;

The Employer’s solicitor stated that this paragraph generally supported its claim that the proposed bargaining unit was covered by the WRA. It went on further to say that it did not recognise the Unions under paragraph 25.1.1. of the WRA and that there were three Union signatories to the WRA. The Employer submitted that it complied with paragraph 25.1.2. of the WRA.

15. The CAC letters and the information provided by the Employer and its solicitor as set out in paragraphs 12 and 13 above were sent to the Union for comment. The Union in a letter dated 14 November 2006 pointed out that the CIJC Working Rule Agreement did not stipulate recognition in the Agreement, quoting the Agreement “The Employer’s Organisation and Trade Unions who are signatories to the Constitution and Rules of Procedure of the Construction Industry Joint Council agree to accept its terms and conditions as binding and to take all reasonably practicable steps to see that it is observed by its members”. The Union also contended that in its experience many employers may have used part or all of the CIJC Agreement but may not be affiliated to the Construction Confederation. In a further letter dated 28 November 2006 it maintained that no negotiations had taken place between UCATT and the Employer on any matter. It also stated that the Working Rule 25 set down that the Construction Confederation recognised the signatory Trade Unions but that it did not state that its members recognise the signatory Trade Unions. It went on to explain that the Working Rule 25.1.1. only strongly urged the employers to recognise the Trade Unions who were signatories to the agreement. Referring to the Working Rule 25.1.2. the Union argued that remuneration for scaffolders working for the Employer was £6.30 per hour whereas the Working Rule would give remuneration of £8.00 per hour.

16. The Parties were informed in a letter dated 6 December 2006 that the Panel had given careful consideration to the evidence that had been provided by both Parties in relation to assist the Panel in establishing whether or not paragraph 35 of Schedule A1 applied in this case. The Panel could not be satisfied based on the evidence before it that there was already in force a collective agreement under which unions were recognised as entitled to conduct collective bargaining on behalf of any workers falling within the Union’s proposed bargaining unit. The Parties were also notified that the Panel would proceed to consider all aspects of acceptance and that its decision would incorporate its considerations relating to the paragraph 35 matter. No further communication was received from either Party requesting that additional representations be taken into consideration.

Considerations

17. The Panel’s task under paragraph 35 is to decide whether there is already in force a collective agreement under which a union is recognised as entitled to conduct collective bargaining on behalf of any of the workers falling within the Union’s proposed bargaining unit. The Panel, in reaching its decision, has taken account of all of the evidence to date received in this application.

18. The Panel is satisfied that the meaning of paragraph 35 is that a collective agreement that meets the requirements of section 178 of the Act, is a collective agreement that can negate the admissibility of an application by a union under the Schedule. There is no requirement for the collective agreement to provide for collective bargaining rights on any of pay, hours, holidays or other terms and conditions of employment. Section 178 defines broadly the matters that it describes as collective bargaining issues and this will have different applications in different circumstances. In this case, the broad nature of section 178 coupled with the requirement of paragraph 35 of the Schedule serves to set a threshold on the matters that might be agreed as collective bargaining between the Employer and a Union(s). Proof of negotiation on only one such matter would still have the effect of rendering another Union’s application inadmissible.

19. The first question before the Panel in this case is whether paragraph 35 renders the Union’s application inadmissible. The Employer in its Response to the Union’s application stated that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit. However, it also explained that the direct manual labour in the proposed bargaining unit had their pay, hours and holiday governed by the Construction Industry Joint Council Working Rule Agreement for the Construction Industry of which the Union was an “Adherent Body”. The Union disputed this stating the Rates of Pay did not concur with the Rates of Pay in the CIJC Working Rule Agreement.

20. The Panel invited the Employer to clarify the position and to provide copies of the Working Rule Agreement and a specimen copy of a contract of employment, the Union was also given the opportunity to comment. The Employer provided copies of the Working Rule Agreement and a contract of Employment which it explained that although it was widely used for direct manual labour it was not issued to the workers in the proposed bargaining unit. The Employer also went onto say that in the main workers in the proposed bargaining unit were paid at or above the rates specified by the Working Rule Agreement but that in some cases job functions were not covered by the Agreement and that other rates of pay applied.

21. The Union contended that WRA did not stipulate recognition in the agreement asserting that the Agreement stated that those who were signatories to the Agreement agree to accept its terms and conditions as binding and to take all reasonably practicable steps to see that it is observed by its members. The Union pointed out that many employers used part or all of the Agreement but were not affiliated to the Construction Confederation.

22. The Panel asked the Employer’s solicitor for further clarification as specified in paragraph 13 of this decision to which they responded by stating that the workers in the proposed bargaining unit had not been issued with contracts of employment but the Employer had as a matter of custom and practice treated the workers in the proposed bargaining unit as being covered by the WRA. The Employer’s solicitor also confirmed that there were no negotiations at a local level nor did the Employer recognise the Unions under paragraph 25.1.1. of the WRA. It also confirmed that the Construction Confederation was one of the “Adherent Bodies”.

23. The Panel has to make a decision solely based on the evidence supplied to it by the Parties. The Employer has not, in the view of the Panel, provided sufficient evidence to show 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 of the workers falling within the Union’s proposed bargaining unit. In fact, the Employer has informed the Panel in its evidence that it does not recognise the Union and neither does it negotiate on a local level with the Union nor has it provided any evidence to support the notion that negotiation takes place at any level. By the Employer’s own admission in its Response to the Union’s application it stated that it did not know whether workers in the bargaining unit knew of the WRA and its function and this is seemingly supported by workers in the proposed bargaining unit not having been provided with a contract of employment. Therefore, based on the evidence before it the Panel is not satisfied that a collective agreement is in force and the Panel concludes that the remaining admissibility tests in the Schedule be applied.

24. 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; is admissible within the terms of paragraphs 33 to 42 of Schedule A1 to the Act; and therefore should be accepted.

25. 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 23 of the 31 workers in the proposed bargaining unit are members of the Union which equated to 74.2% of the proposed bargaining unit. The Employer challenged the Union’s evidence stating that in fact there were 34 workers in the Union’s proposed bargaining unit. Further the Employer stated that 3 of the Union’s named members of the Union were not employed within the proposed unit but in other divisions within Wilson Bowden plc. This being the case the Union’s membership within the proposed bargaining unit would effectively be 58.8%. 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.

26 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

27. For the reasons given in paragraphs 17-23 above, the Panel is satisfied that, for the purposes of paragraph 35 of Schedule A1, there does not exist a collective agreement actually in force under which a union is recognised as entitled to conduct collective bargaining on behalf of any workers falling within the Union’s proposed bargaining unit. Accordingly, paragraph 35 does not render the Union’s application inadmissible.

28. In addition, the Employer did not challenge the remaining statutory tests. The Panel has nevertheless considered all the documentation submitted by the Parties and is satisfied that the Union’s application meets those tests.

Panel

Professor Frank Burchill

Mrs Jean Johnson

Mr Paul Talbot

19 December 2006

APPENDIX A

The relevant legislative provisions

Paragraph 35 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 provides:

(35) (1) An application under paragraph 11 or 12 is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit.

(2) But sub-paragraph 1 does not apply to an application under paragraph 11 or 12 if-

(a) the union (or unions) making the application under paragraph 11 and 12 are the same, and

(b) the matters in respect of which the union is (or unions are) entitled to conduct collective bargaining do not include pay, hours or holidays…

….

(6) The relevant bargaining unit is

(a) the proposed bargaining unit, where the application is under paragraph 11(2) or 12(2)….

The definitions of collective agreement and of collective bargaining are to be found in section 178 of the Act:

(1) In this Act “collective agreement” means any agreement or arrangement made by or on behalf of one or more trade unions and one or more employers or employers’ associations and relating to one or more of the matters specified below; and “collective bargaining” means negotiations relating to or connected with one or more of those matters.

(2) The matters referred to above are:

(a) terms and conditions of employment, or the physical conditions in which any workers are required to work;

(b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;

(d) matters of discipline;

(e) a worker’s membership or non-membership of a trade union;

(f) facilities of officials of trade unions;

(g) machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers’ associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures.

(3) In this Act, “recognition”, in relation to a trade union, means the recognition of the union by an employer, or two or more associated employers, to any extent, for the purpose of collective bargaining; and “recognised” and other related expressions shall be construed accordingly.