Case Number:
TUR1/590/[2007]
14 September 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:
The Communications
Workers Union (CWU)
and
COLT Telecom Group
PLC
Introduction
1. The CWU (the Union) submitted an
application dated 17 August 2007 to the CAC that it should be recognised for
collective bargaining by COLT Telecom Group PLC (the Employer) for a bargaining
unit comprising “All UK employees (excluding management) who work for Service
Fulfilment under the management of UK Operations. This includes all
non-management UK
employees in the following areas: BWDC/Config – Provisioning Technician; Co
op/Config – BWDC Technician and Senior Technician (Technical); and, Switching –
Data Engineer and Switch Data Engineer.”
The location of the bargaining unit was given as Beaufort House, 15
St Botolph St, London EC3A
7QN.
The CAC gave both parties notice of receipt of the application on 20 August 2007. The Employer submitted a response on 29 August 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 Ms Mary Stacey,
Chairman of the Panel, and, as Members, Mr Rod Hastie and Lord Lea of Crondall
OBE. The Case Manager appointed to
support the Panel was Nigel Cookson.
3. The Panel extended the statutory
deadline to decide whether to accept the Union’s
application to 14 September 2007
to allow time for the Panel to consider the evidence before arriving at its
decision.
Issues which the Panel has to determine
4. 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 should be accepted. This is the first of three applications
brought by the Union against the same Employer for
differing bargaining units.
The Union’s
application
5. In its application the Union
stated that it had submitted its formal request for recognition to the Employer
on 28 June 2007 and that
the Employer had responded on 6 July
2007 refusing the request but agreeing to a meeting at Acas. A meeting took place on 17 July 2007 but no agreement was reached. A copy of the Union’s
formal request was not lodged with the application but a copy had been sent to
the CAC at the same time that the original was despatched to the Employer.
6. The Union stated
that in a workforce of 4,000 workers in Europe there were
25 workers in the proposed bargaining unit, of whom 14 were in membership. As evidence that the majority of the workers
in the proposed bargaining unit would be likely to support recognition, the
Union explained that a recent membership check cross-referencing staff lists
with the Union’s database had confirmed a high level of membership in the
proposed bargaining unit with over 56% of employees in the proposed bargaining
unit having joined the Union. The Union
explained that membership was on the basis that if enough employees became
members then the Union would apply for collective
bargaining rights. The Union
confirmed that it would be willing to subject its membership to the CAC for
verification on a confidential basis.
7. The Union’s
reason for selecting the proposed bargaining unit was that it believed that
Service Fulfilment was operated by the Employer as a clearly defined and
managed section of the company under a single chain of command (Head of UK
Operations). The Union
was of the view that the proposed bargaining unit was compatible with effective
management. The Union
stated that the proposed bargaining unit had been agreed with the Employer.
8. Finally, the Union
confirmed that was no existing recognition agreement which covered any of the
workers in the proposed bargaining unit.
The Employer’s response to the application
9. In a response to the Union’s
application dated 29 August 2007
the Employer confirmed that it had received the hard copy of the Union’s
written request for recognition on 2
July 2007 having already received a copy by email on 28 June 2007. It replied to the request by letter dated 6 July 2007 stating that whilst it did
not presently accept the Union’s request for recognition
it was prepared to enter into negotiations with a view to reaching a voluntary
agreement and it agreed with the Union’s proposed that
Acas be invited to assist the parties in this regard. The Employer enclosed a copy of the aforesaid
letter with its response.
10. The Employer then explained that at a
meeting held with Acas on 17 July 2007
it had agreed that an independent membership check should be undertaken to
confirm whether the Union had more than 50% membership
in the proposed bargaining unit. The
Employer further agreed that if membership levels exceeded this figure then a
voluntary ballot of the bargaining unit would be held to allow employees the
opportunity to confirm whether they wanted the Union to
collectively represent them. The
Employer believed that the Union was concerned about
this approach having indicated that whilst it had a majority of members within
the proposed bargaining unit it may not be successful in a voluntary
ballot. Since this meeting the Union
had sought clarification of the number of workers in the proposed bargaining
unit but had not pursued further discussion.
11. The Employer confirmed that it agreed
the bargaining unit though did not agree with the figure given by the Union
as to the number of workers therein. The
Union had given a figure of 25 whereas the actual figure
was 24. It confirmed that it employed
4163 workers overall with 2355 being employed in Europe
and 992 in the UK. The Employer confirmed that there was no
existing recognition agreement in force that covered any of the workers in the
proposed bargaining unit.
12. The Employer then went on to state
that, whilst it did not disagree with the Union’s
estimate of membership in the proposed bargaining unit, it did not consider
that a majority of workers in the bargaining unit were likely to support
recognition.
13. In the Employer’s view Union membership
had increased over the last year due to a number of business changes to
structure and location of the team and also due to a recent TUPE transfer. Relationships with the employees had been
largely positive over these changes and proactive steps to consult the
employees had been taken with their views taken into consideration. The
Employer was of the opinion that it was this period of change and uncertainty
that had resulted in the increase in membership rather than a desire for
recognition.
14. The Employer had been told that a
significant number of the Union membership would like to continue individual
membership but did not want collective representation. It offered, during the meeting at Acas, to
hold a ballot to gain independent evidence of the level of support however this
suggestion was rejected by the Union. The Employer believed that the Union’s
apprehension was because it was not clear that the majority of employees wanted
collective representation. In the
limited time available the Employer was aware that some e-mails had been sent
to the CAC from employees who either identified themselves as members of the Union
but did not wish to be collectively represented or were from employees who were
not members and did not wish to be represented. This, the
Employer submitted, clearly indicated that there was opposition to recognition
from both Union members and non-members.
15. Further, a recent edition of the Union’s
newsletter “Crosstalk” published in the summer of 2007 contained a number of
material inaccuracies over the transfer to Telent (an outsource). The article stated that the purpose of the
move was to save the Employer money and also that pensions for the transferring
employees were inferior. This was not the case and, the Employer
contended, the article created confusion between the Employer and its
employees. For the duration of the TUPE
transfer the Employer negotiated with specifically elected employee
representatives which brought about enhanced benefits for the employees which
were not detrimental. Because of this
article the Employer had concerns as to the accuracy of the information that
the Union was providing to its members.
16. Finally, the Employer explained that it
had introduced within the last year a UK Communications Committee with elected
members who represented employees across the whole of the company. The representatives met to discuss business
progress, change issues and all matters relating to employment in the UK. This had high commitment from senior
management within the company to develop and become increasingly valued by the
work force. The Employer believed that this was a more appropriate way of
working through issues with its workforce rather than small areas of
recognition and believed that the employees would value this
above union recognition.
Communications sent to the CAC by workers
in the proposed bargaining unit
17. Between 23 August and 4 September 2007 a total of 15 emails were received
by the Case Manager from workers purporting to be employed in the bargaining
units covered by the three applications brought by the Union
against COLT Telecom Group PLC, of which this is one. This figure included 5 emails wherein the
author had also copied the email to the Employer and which the Employer had
subsequently attached to its response to the application under case reference
TUR1/591/07. These emails were copied to
the Panel and the Union without change whereas the 10
additional emails were anonymised by the Case Manager before being distributed
to the parties and the Panel. In a
number of instances the Case Manager could not identify as to which bargaining
unit the author belonged and so had to email back for confirmation. One author did not respond to the Case
Manager’s enquiry and therefore could not be allocated to one of the three
bargaining units that are subject to the Union’s
applications. Another email simply
requested information about the Union and the author did
not voice an opinion on union recognition.
Out of the 13 emails remaining, only 1 could be identified by the Case
Manager as appertaining to the bargaining unit as described in paragraph 1
above. This email, received on 23 August 2007, read as follows:
I am writing this in order to highlight that I do not
agree with the proposed union recognition within my team ‑ BWDC. I have always been more than happy with how I
have been treated by the company and I do not feel the need for the union to be
involved in my working relationship with Colt.
Considerations
18. In deciding whether to accept the
application the Panel must decide whether the admissibility and validity
provisions referred to in paragraph 4 of this decision are satisfied. The Panel has considered all the evidence
submitted by the parties 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 to recognise it for collective bargaining in respect of
the proposed bargaining unit as particularised in paragraph 1 above. The request was made in writing and
identified the Union, the proposed bargaining unit and
stated that the request was made under the Schedule. In its response to the request the Employer
stated that whilst it did not accept the request it was nevertheless prepared
to meet with the Union through the auspices of Acas
although the subsequent negotiations did not result in any agreement being
reached. The Panel is satisfied that the
application was made in accordance with paragraph 12. The Panel is also satisfied that the
application is not rendered inadmissible by any of the provisions in paragraphs
33 to 35 and 37 to 42.
19. The remaining issue for the Panel to
address is whether the admissibility criteria set out in paragraph 36(1) of the
Schedule are met.
20. In accordance with paragraph 36(1)(a) of
the Schedule the Panel must determine whether members of the Union
constitute at least 10% of the workers in the Union’s
proposed bargaining unit. The Union
claimed that it had 14 members out of a bargaining unit comprising 25
workers. The Employer, in its response
to the application, subsequently confirmed that the number of workers in the
proposed bargaining unit was actually 24.
Further, the Employer did not challenge the level of Union membership
within the proposed bargaining unit saying that it did not disagree with the Union’s
estimate. 14 members in a bargaining
unit of 24 would result in a membership density of 58.33%. The Panel is therefore satisfied that this
test is met.
21. Paragraph 36(1)(b) of the Schedule
requires the Panel to decide whether a majority of the workers in the Union’s
proposed bargaining unit would be likely to favour recognition of the
Union. At this stage of the statutory
process the Panel is simply called upon to make an assessment as to likely
support rather than having to arrive at a decision based on a mathematical
certainty.
22. To
support its position the Union relied on its density of
membership in the proposed bargaining unit, which, as set out in paragraph 20
above is calculated as being 58.33%. In
its application the Union stated that membership of the Union
was on the basis that if enough workers joined the Union
then it would apply for collective bargaining rights. The Employer, in its response to the
application, set out the reasons why it did not believe that a majority of the
workers in the proposed bargaining unit would be likely to favour recognition
of the Union. It
referred to a number of emails it had received from workers voicing opposition
to the Union being recognised. In addition, it explained that the cause for
worker unrest, i.e. the changes to the structure and location of the proposed
bargaining unit as well as mention of a transfer of workers under the TUPE
provisions, had now been abated and as a consequence, so had support for the Union’s
campaign. It referred to the fact that a
significant number of workers had informed it that whilst they wanted to
continue to enjoy Union membership they did not want to be represented by the Union
for collective bargaining. The Employer
also referred to a committee it had established whereby representatives of the
workers could meet to discuss matters such as business progress, change issues
and matters relating to employment. The
Employer took the Panel to an article that appeared in the Union’s
newsletter and argued that it was misleading and so the Employer was concerned
as to what further inaccurate information the Union was
relaying to its members.
23. The Panel has carefully considered the
points put forward by the Employer.
However, after doing so, it is not persuaded that its arguments amount
to sufficient evidence that a majority of the workers would not be likely to
favour recognition of the Union. There was only the one email that could be
identified as originating from a worker in the proposed bargaining unit. It was not certain whether this worker was
even a member of the Union but even if that the worker
was a Union member, it would still leave 13 members out of a bargaining unit of
24 that had not contacted the CAC voicing opposition to the Union being
recognised. This would result in a level
of support equating to some 54.17% of the bargaining unit.
24. Further, the Panel is not convinced by
the Employer’s submissions that support for recognition has waned as a result
of the Employer establishing the Communications Committee nor has any evidence
been adduced that would persuade the Panel that support for recognition had
diminished following the changes to which the Employer referred.
25. The Panel is of the view that even allowing for the one dissenting
worker, assuming that this individual was a member of the Union, support for
the Union through membership alone would
stand at over 54%. In addition, the
Panel believes that it is possible that the Union enjoys the support of a number of non-members
that, for one reason or another, have not committed themselves to the Union but nonetheless support its claim
for recognition. Accordingly, the
Panel finds 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
and therefore the test set out in paragraph 36(1)(b) is satisfied.
Decision
26. The Panel is satisfied that the
application is valid within the terms of paragraphs 5 to 9, is made in
accordance to with paragraph 12 and is admissible within the terms of paragraphs
33 to 42 of the Schedule. The
application is therefore accepted by the CAC.
Panel
Ms
Mary Stacey, Chairman
Mr
Rod Hastie
Lord
Lea of Crondall OBE
14
September 2007