Case Number: TUR1/550/2007

17 August 2007

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON FORM OF BALLOT

The Parties:

GMB

and

Home Group Limited

Introduction

1. GMB (the Union) submitted an application dated 6 February 2007 to the CAC that it should be recognised for collective bargaining purposes by Home Group Limited (the Employer) for a bargaining unit comprising of “All maintenance staff in Cumbria (mainly employed within their base at the Marypost and Egremont depots inclusive of landscaping staff)”. To this the Union added “However, it (the proposed bargaining unit) does not include Copeland Homes maintenance staff at Moresby Parks, Whitehaven who are covered by a separate recognition agreement”. The CAC gave both Parties notice of receipt of the application on 8 February 2007. The Employer submitted a response to the CAC dated 9 February 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 Kenny Miller, Chairman of the Panel, and, as Members, Mr Ken Cameron and Mr Mike Regan. The Case Manager appointed to support the Panel was Nigel Cookson.

3. By a decision dated 28 February 2007 the Panel accepted the Union’s application. The Parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. However, on 6 March 2007 the Employer wrote to the CAC stating that it was unlikely that the parties would reach agreement and it called upon the CAC to determine whether the Union’s proposed bargaining unit was appropriate. The Panel, after considering the points made by the Employer, concluded that there was no reasonable prospect that the parties would reach agreement by the end of the appropriate period and, in a letter to the parties dated 13 March 2007, duly gave notice that the appropriate period had now terminated in accordance with paragraph 18(3) of Schedule A1 to the Act (the Schedule). The same letter informed the parties that a hearing would take place at which the bargaining unit would be determined. The parties were duly invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit and a hearing was held in Newcastle on 18 April 2007. Mr Ken Cameron could not attend the hearing on 18 April 2007 and the Chairman of the CAC nominated Mr Dennis Cameron to sit in his stead. In order to accommodate the hearing on 18 April 2007 and to finalise its decision the Panel extended the period in which it must determine the bargaining unit to 4 May 2007.

4. In a decision promulgated 4 May 2007 the Panel, after careful consideration of the parties’ oral and written submissions, decided that the appropriate bargaining unit should be one that comprised all maintenance operatives employed by Home in the North West Region excluding management, supervisory, technical and administrative staff. This bargaining unit included workers that had elected to transfer their contracts from Copeland Homes to contracts determined by Home North West. The new bargaining unit differed from that proposed in the Union’s application by the inclusion of the maintenance workers based at Whitehaven, Kendall and Millom as well as including the ex-Copeland Homes maintenance workers that had moved onto Home Group contracts.

5. As the determined bargaining unit differed from that proposed by the Union the Panel was required by paragraph 20 of the Schedule to determine whether the Union’s application was valid or invalid within the terms of paragraphs 43 to 50. To this end both Parties were invited to supply the Panel with written submissions relating to the validity tests.

6. By a decision dated 2 August 2007 the Panel determined that the application was valid for the purposes of paragraph 20 of the Schedule and that the CAC would therefore proceed with the application.

Issues

7. On 2 August 2007, the Panel, satisfied that a majority of the workers constituting the bargaining unit were not members of the Union, gave notice in accordance with paragraph 23(2) that a secret ballot would be held. The Panel also advised the parties that it would wait until the end of the notification period of ten working days, as specified in paragraph 24(5), before arranging a secret ballot. The parties were also asked for their views on the form the ballot should take.

8. The notification period under paragraph 24(5) of the Schedule ended on 15 August 2007. The CAC was not notified by the Union or by both parties jointly that they did not want the ballot to be held, as per paragraph 24(2).

Union’s submissions on the form of ballot

9. In an email dated 7 August 2007 the Union stated that the parties had discussed the matter of the form of the ballot but could not reach agreement. It explained that the Employer wanted the ballot to be postal on the basis of cost whilst the Union’s view was that the ballot should be conducted in the workplace. The Union had arrived at this conclusion based on its belief that workplace ballots produced a higher turnout of voters and given that 40% of the bargaining unit had to vote, the Union was keen to maximise participation.

10. The Union had been informed by the Employer that, in its view, a workplace ballot would have a detrimental effect in that it would stop production and be expensive. However, the Union was of the opinion that, as the workers in the bargaining unit would be afforded the time to attend its access meetings, stopping work in order to do so, then the same could apply when it came to the casting of votes in a workplace ballot.

11. In summary, whilst the Union did not accept the Employer’s arguments for concluding that the ballot be a postal ballot for the reasons stated above it did recognise the fact that a postal ballot would have to be afforded to those workers in the bargaining unit that were on long term sickness absence or annual leave at the time of the ballot.

Employer’s submissions on the form of ballot

12. In a letter dated 7 August 2007 the Employer expressed its preference for a postal ballot on the grounds that this was less disruptive to service delivery. If the ballot was held in the workplace then the maintenance staff would need to travel from their respective depots to cast their ballot and then return to their place of work. A postal ballot was by far a more cost‑effective means of conducting a ballot and permitted the workers, who would otherwise be denied a vote by their absence, the opportunity to vote by post.

Considerations

13. When determining the form of the ballot (workplace, postal or a combination of the two methods), the CAC must take into account the following considerations specified in paragraphs 25(5) and (6) of the Schedule:

(a) the likelihood of the ballot being affected by unfairness or malpractice if it were conducted at a workplace;

(b) costs and practicality;

(c) such other matters as the CAC considers appropriate

14. The Parties have put forward two different types of ballot for the Panel to consider. The Union has argued for a workplace ballot on the grounds that there would be a greater level of participation from the workers in the bargaining unit. On the other hand, the Employer has submitted that the ballot should be a postal ballot as a workplace ballot would be both disruptive and more expensive.

15. The Panel has carefully considered the parties’ submissions and has arrived at the conclusion that the ballot should take the form of a postal ballot. There are two main grounds for arriving at such a conclusion. Firstly, the Panel heard from the Employer during the course of the hearing to determine the appropriate bargaining unit that, although the workers are assigned to a depot, they are not actually depot based. They go straight to work from home and their tools and supplies are kept in their vans. This means that they are only occasionally required to attend the depot. Therefore, given that the bargaining unit encompasses a number of depots, it would not only be time consuming for the workers concerned having to travel however many miles to cast their votes (whether there be one ballot box per depot or one ballot box in total) but it would also be extremely disruptive for the Employer’s business. Secondly, it would be far more expensive to hold a workplace ballot than a postal one. As observed above, there are a number of depots in the region covered by the bargaining unit including the main depots at Maryport and Whitehaven and so it may have been than one ballot box would not have been sufficient. This would mean that the QIP would have to provide additional staff to manage the ballot and it would simply add to the costs incurred.

16. The Panel has taken into account the Union’s argument that a workplace ballot would mean a greater level of participation from the workers in the bargaining unit. On average it is indeed the case that a workplace ballot will see a higher turnout than a postal ballot. However, this may well be a result of the ballot box being located in close proximity to the workers in the bargaining unit. This simply would not be the case here. In the particular circumstances of this case the Panel is of the view that a postal ballot would result in at least the same, or perhaps even a higher turnout, than a workplace ballot.

Decision

17. The decision of the Panel is that the ballot be a postal ballot.

18. The name of the Qualified Independent Person appointed to conduct the ballot will be notified to the Parties shortly as will the period within which the ballot is to be held.

Panel

Professor Kenny Miller

Mr Ken Cameron

Mr Mike Regan

17 August 2007