Case Number: TUR1/561/2007
21 March 2007
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:
Connect
and
Vodafone
Limited
Introduction
1. Connect
(the Union) submitted an application dated 12 March 2007 to the CAC that it
should be recognised for collective bargaining purposes by Vodafone Limited (the
Employer) for a bargaining unit comprising of “All employees working in the
Regional Operations North organisation in grades H, I and J”. The Union explained
that whilst the main location was in Warrington,
Lancashire, the proposed bargaining unit covered Scotland,
Northern Ireland,
Wales, the
North of England and the Midlands. It added that most of the workers were field
based and worked “out of sites” at various locations. The CAC gave both Parties notice of receipt
of the application on 13 March 2007. The Employer submitted a response to the CAC
on 16 March 2007 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
deal with the case. The Panel consisted
of Professor Frank Burchill, Chairman of the Panel, and, as Members, Dr Chris
Ball and Ms Jackie Patel. The Case
Manager appointed to support the Panel was Nigel Cookson.
Issues
3. The Panel is required by paragraph 15
of Schedule A1 to the Act (the Schedule) 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; is admissible within the terms of
paragraphs 33 to 42 of the Schedule; and therefore to be accepted.
The Union’s application
4. In its application the Union
explained that it had written to the Employer on 6 February 2007 with a formal request for recognition
and that the Employer had replied saying that it did not accept the request but
was prepared to negotiate through the auspices of Acas. The Union stated that
the Employer employed 11,000 workers and that about 200 of these were in the Union’s
proposed bargaining unit. The Union
had 126 members in the proposed bargaining unit and it was happy to submit
evidence of this for independent verification.
5. The Union
explained that it believed that a majority of the workers in the bargaining
unit would be likely to support recognition as its membership had been built
explicitly on the prospect of recognition being gained. It added that members had recruited
colleagues on the basis that high membership would mean the Union
could then put in an application to the CAC.
It explained that membership was already over 50% when the Union first
entered formal discussions with the Employer in November 2006 and had increased
steadily since then to the current level of 64%. New members had joined the Union
whenever it had issued communications about its discussions on voluntary
recognition and about the current recognition bid.
6. The Union had
selected its bargaining unit on the basis that the Regional Operations
organisation primarily comprised the Employer’s field network engineering
workforce. The field engineering
workforce was identified on the Employer’s organisation charts and databases as
two separate operational entities: Regional Operations North and Regional
Operations South. The Regional
Operations North members had been especially vocal and enthusiastic about
seeking recognition and had worked to build up membership in support of the
application. The Union
had specified grades within the bargaining unit that excluded senior managers
as the Union took the view that it was usual for senior
managers not to be covered by collective agreements.
The Employer’s response
7. In its response to the Union’s
application dated 16 March 2007
the Employer confirmed that it received the Union’s
formal request for recognition on 7 February
2007 and that it had replied on 16 February 2007 declining the request. The
Employer attached a copy of this letter to its response. Whilst the Employer declined the Union’s
request it did state that it was prepared, under the terms of the Schedule, to
offer to negotiate with the Union. It went on to propose that Acas assistance be
requested to facilitate the negotiations to which the Union
subsequently agreed. A meeting between
the parties with an Acas conciliator in attendance took place on 8 March 2007.
8. The Employer stated that it did not
agree the proposed bargaining unit as it did not believe that it was compatible
with effective management of the Regional Operations Unit as this unit was
operated and managed on a national UK
basis. It confirmed that it employed
9989 workers and that there were 189 workers in the Union’s
proposed bargaining unit. The Employer
commented that it had no evidence as to the Union’s
membership in the bargaining unit nor did it have any evidence as to the views
of its workers on Union recognition.
9. The Employer did not contend that the Union’s
application failed to meet any of the other admissibility or validity criteria
in the Schedule.
Considerations
10. In deciding whether to accept the application the Panel
must decide whether the admissibility and validity provisions referred to in
paragraph 3 of this decision are satisfied.
The Panel has considered all the evidence submitted by the Employer and
the Union in reaching its decision. The Panel is satisfied that the Union
made a valid request to the Employer within the terms specified in paragraphs 5
to 9 of the Schedule, namely that the request was made in writing and
identified the Union and the proposed bargaining unit
and stated that the request was made under the Schedule.
11. The Panel is now tasked
with determining whether the application was made in accordance with paragraphs
11 and 12 of the Schedule. These
paragraphs allow for three different scenarios following the Employer’s receipt
of the Union’s formal request for recognition. Two of the three scenarios allow for a union
to lodge an application to the CAC after the expiry of the “first period” as
defined and calculated pursuant to paragraph 10(6). Paragraph 10(6) defines the first period as
the period of 10 working days starting with the day after that on which the
employer receives the request for recognition. Accordingly, if before the end
of the first period an employer either fails to respond to the request, or
informs the union that the employer does not accept the request without
indicating a willingness to negotiate then the union may apply to the CAC to
decide whether the proposed bargaining unit is appropriate or some other
bargaining unit is appropriate and whether the union has the support of a
majority of the workers constituting the appropriate bargaining unit. Under the third scenario, if an employer
refuses a union’s request for recognition but indicates a willingness to
negotiate, a “second period” for negotiations to be pursued between the parties
prior to the union having recourse to the CAC comes into effect. The second period in which the parties may
conduct negotiations is set out in paragraph 10(7) and is defined as a period
of 20 working days starting with the day after that on which the first period
ends, or such longer period as the parties themselves may decide. The parties may then conduct negotiations
with a view to agreeing a bargaining unit and that the Union
is to be recognised as entitled to conduct collective bargaining on behalf of
the unit. However, if these negotiations
fail and no agreement is made before the end of the second period, then (and
only then) can the union apply to the CAC for a decision as to whether the
proposed bargaining unit is appropriate or whether the union has the support of
a majority of the workers in the appropriate bargaining unit. This is true whether negotiations fail after
one day or they run the course of the full 20 day period.
12. In this case the Employer,
in its response to the application, confirmed that it received the Union’s
request on 7 February 2007. Accordingly the first period of 10 working
days commenced on 8 February 2007
and expired on 21 February 2007. The Employer replied to the request in a letter
dated 16 February 2007,
which was before the end of the first period (paragraph 10(2)), with an indication
that whilst it did not accept the request nonetheless it was willing to
negotiate.
13. The consequence of the
Employer indicating a willingness to negotiate is to provide a second period
for negotiations to be pursued between the parties prior to the Union
having recourse to the CAC. It is only
if no agreement is made before the end of this period that the Union
may apply to the CAC for a decision as to whether the proposed bargaining unit
is appropriate or whether the union has the support of a majority of the
workers in the appropriate bargaining unit.
14. Given the terms of the
Employer’s letter the second period took effect. It started on 22 February 2007 and would expire on 21 March 2007.
This period of 20 working days can be extended by agreement between the
parties, but there is no provision that allows for the period to be curtailed,
whether by agreement or otherwise. It
follows that an application to the CAC made prior to the expiry of the second
period cannot be accepted.
15. The Panel is therefore
satisfied that the Union’s application, dated 12 March 2007 is premature as the
second period (as defined) applies in this case and it had not expired before
the Union made its application to the CAC. Accordingly, the Panel finds that whilst the Union’s
request to the Employer was made in accordance with paragraphs 5 to 9 of the
Schedule, the application was not made in accordance with paragraph 11 or 12
and as a consequence cannot be accepted.
The Panel makes no decision as to the further statutory tests set out in
paragraphs 33 to 42 of the Schedule, since it is not necessary to do so.
Decision
16. For the reasons given
above the application is not accepted by the CAC.
Panel
Professor Frank Burchill, Chairman of the Panel
Dr Chris Ball
Ms Jackie Patel
21 March 2007