Case Number: TUR1/568(2006)

19 September 2007

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DETERMINATION OF THE BARGAINING UNIT

The Parties:

Unite – the Union

and

Xansa UK Ltd

Introduction

1. Unite - the Union, formerly known as Amicus, (the Union) submitted an application dated 23 April 2007 to the CAC that it should be recognised for collective bargaining by Xansa UK Ltd (the Employer) for a bargaining unit comprising “Xansa employees in job bands 1-4 based on the Boots site and working on or providing a service to Boots IS&T Department (also known as teamIS)”. The bargaining unit was located at the premises of Boots the Chemist in Thane Road West, Nottingham. The CAC gave both parties notice of receipt of the application on 23 April 2007. The Employer submitted a response on 30 April 2007 which was duly copied to the Union. Following the merger of Amicus with the TGWU on 1 May 2007 the application proceeded in the name of “Unite – 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 Paul Davies, Chairman of the Panel, and, as Members, Mr Rod Hastie and Dr Susan Corby. The Case Manager appointed to support the Panel was Nigel Cookson but for the purpose of this decision the Case Manager was Tola Babatunde.

3. By a decision dated 14 June 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, 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 3 September 2007 and the names of those who attended the hearing are appended to this decision. In accordance with paragraph 19 of Schedule A1 it is the Panel’s task to determine first whether the Union’s proposed bargaining unit is appropriate and then, if it is found not to be so, to determine another bargaining unit that is appropriate.

Background

4. The workers at the Boots Nottingham site were made up primarily of former Boots employees who transferred to Xansa in 2002 but retained the original Boots contracts under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE); though some of these had subsequently been promoted and had transferred to Xansa terms and conditions of employment. In addition to these, Xansa supplied workers to Nottingham to cover special assignments on a temporary basis, ranging from a few days to a few years. The parties were in dispute about whether those workers who were not on Boots terms and conditions should be in the bargaining unit. The Employer had proposed that only those workers who had transferred under the TUPE Regulation and were still on Boots terms and conditions should form the appropriate bargaining unit whereas the Union contended that all transferees and those based on the Boots site should comprise the appropriate bargaining unit.

Summary of the Union’s written submissions

5. As its opening point the Union stated that its proposed bargaining unit was compatible with effective management and satisfied all the other statutory criteria. The Union asked the Panel, in deciding whether or not the proposed bargaining unit was an appropriate one, to be mindful of the Court of Appeal’s judgment in Regina (Kwik-Fit) (GB) Ltd) v. Central Arbitration Committee, and submitted that it should consider an alternative bargaining unit only if it decided that the Union’s proposed bargaining unit was not appropriate.

6. The Union reminded the Panel that the Employer’s response to the CAC, at the time it was required to comment on the Union’s application, had been to disagree with the bargaining unit proposed by the Union because it believed that it had considerable drawbacks, as it included two very distinctive categories of workers, one being permanent and the other being those on temporary assignment to the Nottingham site. The Union accepted that employees should have a degree of permanence for them to be included in its proposed bargaining unit. It believed that the Employer sought to artificially diminish the bargaining unit by insisting on excluding all workers other than those who had transferred from Boots and had remained on Boots terms and conditions.

7. The Union already engaged in collective bargaining with the Employer on other accounts, including Barclaycard and Royal Mail, where the agreement transferred with the workers under TUPE. The Union believed that the Employer’s suggestion of a bargaining unit covering only those on Boots terms was not in accordance with managerial realities because all workers based at the site were treated in the same way. For example, team meetings were not split between mobile and permanent workers but rather only one meeting took place in respect of the two groups of workers. The Union believed that the Employer’s definition of “permanence” appeared to be whether or not a worker’s contract specified their location or base as Nottingham. New recruits and those who had been promoted after 2002 had a contractual base of Birmingham which was the nearest Xansa office to Nottingham. The Union saw the Employer’s practice of assigning a location other than Nottingham as a way of rendering the Union’s proposed bargaining unit unviable over time, as former Boots employees left or retired.

8. The Union reported that there had been a collective agreement with Boots prior to 2002 but that that was only a representational agreement. As far as the Union was concerned mobile and permanent workers worked side by side, were commonly managed and treated the same and had their pay increases set by the Employer in the same way. The Union accepted that different terms and conditions applied to the workers in its proposed bargaining unit, nevertheless their location was Boots Nottingham.

Summary of the Employer’s written Submissions

9. The appropriate bargaining unit in the Employer’s view would cover only permanent staff who had transferred from Boots under the TUPE Regulations and whose contractual place of work was the Nottingham site. Other staff should not be included as these were mobile workers who could be moved to other duties on other sites at a short notice. The Employer argued that the appropriate bargaining unit should only include permanent transferees who lived in Nottingham, shared common aspirations, needs and concerns with other workers on the Boots contract. To include other staff who were not guaranteed any degree of tangible time period on the Boots site would render the bargaining unit unworkable. The Employer submitted that its success was built around flexibility and its ability to supply the right people at the right time. Boots and other clients used Xansa because of the convenience of specialists and the short assignments it was able to offer. It insisted that it did not have a base in Nottingham but that its workers - who worked in Nottingham -did so from its client’s base. It believed that it would have problems sending workers to Nottingham if temporary staff were to be included in the bargaining unit. Consequently, the bargaining unit proposed by the Union was inappropriate because it was incompatible with the effective management of the company, whilst the alternative unit proposed by the Company was appropriate.

Considerations

10. Both parties presented their arguments at the hearing by reference to a list of employees (identified by job title only) produced by the employer at the acceptance stage of the case. This was divided into two parts. The first and larger part consisted of those who, with one exception, were described as ‘static’ and had both a contractual location and an actual location of ‘Boots Nottingham Beeston.’ The second part consisted of employees who were all described as ‘mobile’, had a contractual location as somewhere other than ‘Boots Nottingham Beeston’ (with three exceptions), but an actual location of ‘Boots Nottingham Beeston’ (with two exceptions).

11. The employer’s initial argument at the hearing was that the bargaining unit should consist solely of the employees named in the first part of the list, because those in the second part were only temporarily based at the Boots site. Those who appeared in the first part had been transferred to the company from Boots under the TUPE regulations and constituted the ‘core’ workforce. The union’s starting point was that those on both parts of the list should be in the bargaining unit, except those whose actual location was not the Boots site, although it added the rider that ‘some degree of permanence’ might be necessary for the worker to be said to be ‘based at’ the Boots site. Otherwise, the bargaining unit would be a declining body of persons and it might in the course of time cease to have any members.

12. In the course of the hearing it became clear that some 22 of the 47 workers on the second part of the list were in fact ex-Boots employees, who had been promoted and so had transferred to Xansa terms and conditions of employment. One of the changes involved in this transfer was that the Boots site ceased to be their contractual place of work. Instead that became the local Xansa office, as we understand it, the Birmingham office. The parties reached agreement during an adjournment of the hearing that the bargaining unit should embrace these workers. We too think it is appropriate to include all the former Boots workers, whether promoted or not, in the bargaining unit.

13. This leaves the more difficult question of whether workers who had not previously been employed by Boots but have been assigned to the Boots contract should be included in the bargaining unit. It was argued strenuously on behalf of the company that to include temporary assignees within the Boots bargaining unit would be incompatible with effective management. The company’s business model depended in large part upon its ability to switch employees around among different contracts, according to the demands of each contract at different times. For such workers’ terms and conditions of employment to vary according to each assignment would make such transfers more difficult to organise. We think there is considerable force in this argument and conclude that it would not be compatible with effective management for all the employees on the second part of the list to be included in the bargaining unit. We thus conclude that the Union’s proposed bargaining unit is incompatible with effective management.

14. We therefore turn to determine what would be an appropriate unit. Both parties drew our attention to the provisions of paragraph 19B of the Schedule, to which we have had full regard. The main issue continues to be one of compatibility with effective management, for, in the absence of countervailing considerations from that quarter, it seems to the Panel that it would be appropriate to put together for the purposes of collective bargaining workers employed by the same employer on the same site and doing the same sort of work. The central question is whether the considerations derived from the employer’s business model (set out above) are such as to lead to the exclusion of all the ‘non-Boots’ employees from the bargaining unit.

15. The parties discussed the inclusion of some of the ‘non-Boots’ employees within the bargaining unit during an adjournment of the hearing but were unable to reach agreement on the test or tests to be used to include certain categories of the non-transferees. Their discussions revolved mainly around the length of time the non-transferee should be required to have worked at the Boots site before it would be appropriate to include him or her in the bargaining unit and whether such inclusion should be optional or mandatory. The parties gave us an account of their deliberations. We have concluded that it would be appropriate to include in the bargaining unit, along with the transferees from Boots, those Xansa UK Ltd employees who have been assigned to the Boots contract for a continuous period of at least 12 months. We think this requirement will give the Company considerable freedom to allocate workers to the Boots contract to deal with temporary up-surges in demand, whilst treating as a unit all those doing the same sort of work on the same site on a long-term basis.

16. At the end of the hearing the Employer offered to provide data about the length of service of the non-transferees currently working on the Boots site. That data was later provided and both parties were given the opportunity to make short, written comments on it. That list contained some 29 names (the small discrepancy with the numbers noted above probably being due to this second list having been compiled at a later date). This data is of limited utility since it provides only a snap-shot of the length of service position at a particular point rather than an indication of the flows of workers onto and away from the Boots site, which would give a better indication of the impact a one-year test would have. Nevertheless, it can be noted that some 15 of the 29 would fall within the bargaining unit defined in the previous paragraph. This would include some workers with substantial service at the Boots site, including 10 with more than 2 years’ service. On the other hand, nearly half the non-transferees would not fall within the bargaining unit, and never would do so if they were transferred away from the Boots site before they had a year’s service there. In so far as help can be obtained from these figures, the Panel finds that they do not undermine the appropriateness of the bargaining unit defined in the previous paragraph.

Decision

17. The bargaining unit consists of those workers employed by Xansa UK Ltd working at the Boots site in Nottingham who are either transferees from Boots to Xansa (whether they have subsequently moved onto Xansa terms and conditions or not) or who have at least one year’s continuous service on the Boots site.

Panel

Professor Paul Davies – Chairman of the Panel

Mr Rod Hastie

Dr Sue Corby

19 September 2007
Appendix

 Names of those who attended the hearing:

For the Union

Nigel Hadfield – Union Divisional Officer

Julie Hague – Employee

Neil Johnson – Solicitor

For the Employer

Ron Inwood – Employee Relations Manager

Andrew Burns – Barrister

Jenny Brentle – Legal Representative