Case Number: TUR1/576/[2007]

29 August 2007

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DETERMINATION OF THE BARGAINING UNIT

The Parties:

GMB

and

Windowstyle (UK) Ltd

Introduction

1. The GMB (the Union) submitted an application dated 31 May 2007 to the CAC that it should be recognised for collective bargaining by Windowstyle (UK) Ltd (the Employer) for a bargaining unit comprising “Foremen, General Cleaners, Production Operatives, Logistics & Ancillary Production Operatives and Remake staff shop floor workers” based at the Employer’s premises in Valley Road, Station Road Industrial Estate, Wombwell, Barnsley. The CAC gave both parties notice of receipt of the application on 4 June 2007. The Employer submitted a response on 7 June 2007 which 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 Lynette Harris, Chairman of the Panel, and, as Members, Mr Eamonn Barry and Mr Roger Lyons. The Case Manager appointed to support the Panel was Nigel Cookson and, for the purposes of this decision, Simon Gouldstone.

3. By a decision dated 5 July 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. As no agreement was reached by the end of the relevant period, the parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit. A hearing was held on 22 August 2007 and the names of those who attended the hearing are appended to this decision. In accordance with paragraph 19 of Schedule A1 to the Act (the Schedule) the Panel’s task was to determine first whether the Union’s proposed bargaining unit was appropriate and then, if it was found not to be so, to determine another bargaining unit that was appropriate. In order to accommodate the hearing on 22 August 2007 and to allow time for the decision to be finalised, the Panel extended the period in which it must determine the bargaining unit to 31 August 2007.

Summary of the submission made by the Union

5. The Union explained that the appropriate bargaining unit it was now proposing differed from the unit described both in its request to the Employer for recognition and in the application to the CAC (as reproduced in paragraph 1 above). Its position had changed as a result of information exchanged during the two meetings the parties had attended at Acas. Firstly, there were two groups of workers, Conservatory Roofs and Quality Control, which the Union had always understood to be included within the category of Production Operatives. The Employer had not shared that understanding so the Union agreed during the Acas discussions, as the terms and conditions of employment of the workers concerned were identical to those of Production Operatives, that those two groups should be explicitly included in its proposed bargaining unit. Secondly, there were two additional groups of workers, Maintenance and Waste Recycle, which the Union had not originally included in its proposed bargaining unit. The Union had not included the former group as it was concerned that some of the workers might be members of another union; it had later established that there was no competing interest from another union. The second group had not been included as the Union believed they operated from another location although they later accepted that the workers concerned were regarded as Production Operatives at the Employer’s premises.

6. The one group of workers that remained excluded from the Union’s proposed bargaining unit was Office Staff. It understood the Employer’s position to be that the Office Staff should be included in the bargaining unit. The Union explained that, during the Acas discussions, it had made an offer to the Employer that it would accept the inclusion of the Office Staff if the Employer agreed to negotiate a voluntary recognition agreement. That offer had been rejected and the Union’s submission to the CAC was that the appropriate bargaining unit should be its amended proposed bargaining unit which excluded the Office Staff.

7. The rationale for the Union’s proposed unit was as follows:

a) It made good industrial relations common sense.

b) It was compatible with effective management.

c) All the workers received a production bonus which amounted to some 12% to 15% of their remuneration.

d) Other elements of the terms and conditions package were common to all the workers.

8. The Union remained opposed to the inclusion of the Office Staff and, in particular, rejected the Employer’s argument that those staff were comparable to foremen. Its reasons were as follows:

a) The Office Staff, unlike the Production Operatives, did not work shifts or receive the shift allowance.

b) They did not receive the production bonus.

c) The Office Staff, and the Foremen among the Production Operatives, were the only workers to receive three days sick pay.

d) They were not represented, the Union believed, on the Forum where terms and conditions of employment were discussed.

9. The Union accordingly asked the Panel to find that its revised proposal was the appropriate bargaining unit.

Summary of the submission made by the Employer

10. The Employer confirmed that it agreed the Union’s wider proposed bargaining unit and that the one issue in dispute was whether the Office Staff should be included.

11. The Employer’s reasons for including the Office Staff in the appropriate bargaining unit were as follows:

a) They shared substantially the same terms and conditions of employment as all other workers. There were some differences but the Employer did not believe that this meant they should be excluded from the bargaining unit. For example, not all those in the Union’s proposed bargaining unit worked shifts. In common with the Office Staff, those workers in Conservatory Roofs, Waste Recycling and Ancillaries did not work shifts. Furthermore, the Office Staff did not receive the production bonus which was a payment wholly based on production output. If the Office Staff were to participate in the bonus scheme, it was likely to be unpopular with other groups of workers receiving bonus as the increase in numbers would dilute the level of each worker’s payment. The Employer explained that, within the Forum, representations had been made by the representative of the Office Staff for the production bonus to be extended to that group of workers.

b) All negotiations regarding the annual pay review, and subsequent changes to terms and conditions of employment, related to all workers. For example, in January 2007 a 2.5% pay increase and the introduction of three days’ bereavement leave were implemented for all workers.

c) The Forum covered all workers. Contrary to the impression given by the Union, there was a serving representative for the Office Staff and her predecessor had attended Forum meetings as recently as January/February 2007.

d) A number of the Office Staff worked in Sales Order Processing which was closely linked to the work of Production Operatives.

e) To exclude the Office Staff would lead to fragmentation, in particular in that it would be the only group of workers not included in bargaining unit apart from management. The Employer contended that this would be contrary to the overriding principle that the bargaining unit should be compatible with effective management.

12. The Employer accordingly asked the Panel to find that the appropriate bargaining unit should be the groups of workers that had been agreed with the Union plus the Office Staff.

Considerations

13. The Panel is required, by paragraph 19(2) of the Schedule, to decide whether the proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. Paragraph 19B(1) and (2) states that, in making those decisions, the Panel must take into account the need for the unit to be compatible with effective management and the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need. The matters listed in paragraph 19B(3) are: the views of the employer and the union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and the location of workers. Paragraph 19B(4) states that in taking an employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that he considers would be appropriate. The Panel must also have regard to paragraph 171 of the Schedule which provides that “[i]n exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned.” The Panel’s decision has been taken after careful consideration of the views of both parties as set out in their written submissions and delivered orally at the hearing.

14. The Union’s position is that it has presented arguments in favour of a bargaining unit which differs from the one it originally proposed. This has happened as a result of an agreement reached by the parties during their discussions with Acas and appears to leave the Panel with the responsibility of determining the relatively narrow point of whether or not the Office Staff should be included in the bargaining unit. However, the Panel is under a statutory duty, as explained in paragraph 13 above, to determine whether the proposed bargaining unit is appropriate, irrespective of the fact that the Union itself no longer believes that it is an appropriate bargaining unit. If the Panel finds that the proposed bargaining unit is not appropriate, it will then consider the revised bargaining unit described by the Union and the alternative bargaining unit put forward by the Employer. In doing so, it will give equal consideration to the parties’ arguments given that the revised bargaining unit, unlike the proposed bargaining unit, is given no precedence under the statutory provisions.

15. The Panel has considered the parties’ submissions in relation to the proposed bargaining unit and finds that it is not an appropriate unit. It is clear to the Panel that there were at least two groups of workers, namely Maintenance and Waste Recycle, whose terms and conditions of employment, shift patterns apart, are identical to Production Operatives and who should have been included in the proposed unit. The parties’ agreement indicates that they came to the same conclusion.

16. The Panel accordingly has to determine an appropriate unit and the fundamental question is whether the Office Staff should be added to the Union’s revised proposed bargaining unit. The Panel’s view is that the Office Staff are distinguishable from the Production Operatives, particularly in respect of certain terms and conditions of employment. The weekly production bonus is a major element of the remuneration arrangements and is paid to all the workers in the bargaining unit being proposed by the Union but it is not payable to office staff. The production bonus, comprising some 12% to 15% of pay for Production Operatives, is also included in the calculation of holiday and sick pay. There are other less significant differences such as sick pay arrangements with the office staff being paid for the first three days of sickness absence, the only other group to do in the proposed bargaining unit being foremen. In terms of working patterns, Office Staff, in common with a minority of Production Operatives, do not work shifts and some of the jobs undertaken by Office Staff, such as Finance and HR, are some distance from the production process. The Employer contended that it wished to negotiate for ‘all’ workers but the Panel was provided with little evidence that this is the way in which the existing Forum operates. The Employer explained that the 2007 pay increase was a universal 2.5%, plus the introduction of bereavement leave, but also indicated that, the request of the Office Staff for participation in the production bonus had not been agreed. The Panel is accordingly not persuaded that the Office Staff should be included in the bargaining unit and determines that the Union’s revised proposed bargaining unit is compatible with effective management.

17. Furthermore, the Panel, in reaching its decision, has taken into account the factors listed in paragraph 19B(3) of the Schedule in so far as they do not conflict with the need for the appropriate bargaining unit to be compatible with effective management. The Panel has taken into account the views of the employer and the union; there are no existing national or local bargaining arrangements; the Panel does not regard the appropriate bargaining unit as being a small fragmented unit; the Panel has taken into account the characteristics of the workers; and, all the workers are employed at one location. In addition, the Panel considers that its decision is consistent with paragraph 171 of the Schedule.

Decision

18. The appropriate bargaining unit comprises the following workers:

Foremen (including Team Leaders and Leading Hands)

General Cleaners

Production Operatives (including Conservatory Roofs, Quality Control and Waste Recycle)

Logistics and Ancillary Production Operatives

Remake Shop Floor Workers

Maintenance

19. As the appropriate bargaining unit differs from the proposed bargaining unit, the Panel’s duty is to determine, by way of a separate decision, whether the application is valid and should therefore proceed to the next stage in the statutory process.

Panel

Professor Lynette Harris (Chairman)

Mr Eamonn Barry

Mr Roger Lyons

29 August 2007

Appendix

Names of those who attended the hearing:

For the Union

Mr Graham Benton - Senior Organiser

Ms Desiree Risebury - Organiser

Mr Steve Parkes - Branch Secretary

For the Employer

Mr Nick Lilburn - Managing Director

Mr Allan Thompson - Group HR Director

Ms Penny Marlow - HR Manager

Ms Lynne Green - Weekly Office Paid Representative