Case Number:
TUR1/582/[2007]
18 October 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
Cadbury Trebor
Bassett
Introduction
1. Unite – the Union (the Union) submitted
an application dated 5 July 2007 to the CAC that it should be recognised for
collective bargaining by Cadbury Trebor Bassett (the Employer) for a bargaining
unit comprising “All the first line managers in manufacturing on the Sheffield
site”. The location of the bargaining
unit was given as “Sheffield site, Livesey
Street, Sheffield S6 2AP”.
The CAC gave both parties notice of
receipt of the application on 6 July
2007. The Employer submitted
a response on 12 July 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 Kenny Miller,
Chairman of the Panel, and, as Members, Mrs Maureen Chambers and Mr Gerry Veart. The Case Manager appointed to support the
Panel was Nigel Cookson.
3. By a decision dated 3 August 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 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 1 October 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.
Application by the Union pursuant to Paragraph 19
4. In the letter dated 3 August 2007 that
accompanied the Panel’s decision to accept the application the Employer was
informed of its duty to provide information relating to the proposed bargaining
unit pursuant to paragraph 18A(2) of the Schedule. On 8
August 2007 the Employer provided information to the CAC and the Union
explaining in its covering letter that the information was based “on the
Employer’s understanding of what the proposed bargaining unit is”. Also in its letter the Employer stated that
it was not clear how “categories” was defined but had taken this to cover the
broad band of the workers in question.
It confirmed that the information had been copied to the Union
and it sought an assurance from the CAC that it had complied with its statutory
duty.
5. On 9 August 2007 the CAC informed the Employer that the Panel
was unable to confirm that the Employer had met its statutory duty as this was
not a decision that the Panel was called upon to make unless requested to do so
by the Union in accordance with paragraph 19A. The Union, in a letter
to the CAC dated 17 August 2007,
wrote complaining that there were a number of inaccuracies in the information
provided by the Employer. Enquiries
were made by the Case Manager to establish whether the Union
had intended its letter to be treated as a request that the CAC make a decision
under paragraph 19A. The Union
responded on 20 August 2007
confirming that this was the case. The
Employer was then invited to comment on the issues raised by the Union
in its letter of 17 August 2007
and subsequently sought an extension of time in which to do so.
6. The CAC informed the parties, on 5 September 2007, that the Panel had
extended the time in which it must make a decision under paragraph 19A to 1 October 2007 and that the matter
would be taken as a preliminary point at the hearing to determine the
appropriate bargaining unit.
7. On 6 September 2007 the Employer responded to the Union’s
complaint. It argued, inter alia, that
the workers that the Union queried shared the same terms
and conditions as those in the proposed bargaining unit and included a number
of trainee managers. This, the Employer
argued, highlighted the difficulty it had in identifying exactly which workers
were within the terms of the proposed bargaining unit.
8. At the start of the proceedings on 1 October 2007 the Panel Chairman
explained that, subject to the submissions of the parties, he proposed to make
no order in respect of the Union’s application under
paragraph 19A and that the Panel would move directly to hearing argument as to
the appropriate bargaining unit to which neither party demurred.
Clarification of the proposed bargaining
unit
9. The second matter addressed by the
Panel as a preliminary issue on 1
October 2007 before the hearing proper was the apparent
disagreement between the parties as to whether or not the term “first line
managers” used by the Union to identify the workers in
its proposed bargaining unit was one recognised by the Employer. The Employer argued that it was not a term it
used hence the confusion over the composition of the proposed bargaining
unit. The Union
countered by referring the Panel to the existence of a “First Line Managers’
Consultation Forum” that the Employer had established. This forum, it explained, was open to all
first line managers on the Sheffield site and it was
chaired by a member of the HR team at Sheffield. The Panel then sought confirmation from the Union
as to those workers that came within the scope of its proposed bargaining
unit. The Employer had helpfully
provided, as part of its extensive bundle of supporting evidence,
organisational diagrams covering those departments reporting to the general
manager of the Sheffield site. With the help of these diagrams and the assistance
of both parties the Panel was able to map onto these structures those roles
that fell within the Union’s proposed bargaining
unit. As a result of this exercise the
proposed bargaining unit was clarified as comprising all team leaders and
engineering managers in Mints, all team leaders and trainee team leaders in Logistics/Scheduling/Data,
all team leaders, trainee team leaders and engineering managers in Gum and
Liquorice packing, all team leaders, trainee team leaders and engineering
managers in Gums and Liquorice manufacturing and the engineering stores manager
and site services engineer in Site Services.
Summary of the submission made by the Union
10. In its opening submissions as to the
appropriate bargaining unit the Union detailed the ways in which it considered
that the proposed bargaining unit was one that was compatible with effective
management. The proposed bargaining
unit, it submitted, was a coherent group of people with a common identity
whilst the Employer’s view appeared to be that all of its managers and clerical
staff across the UK
should be treated the same as they were on the same terms and conditions. However, the Union did
not accept that the Employer’s view would deliver the common identity which was
a critical feature of the Union’s proposed bargaining
unit.
11. The Union
acknowledged that there were recognition agreements in place at various sites
covering other groups of workers but pointed out that the Employer did not
engage in collective bargaining in respect of its managerial staff.
12. The bargaining unit proposed by the Union
was not small or fragmented. It
consisted of 40 workers with a commonality of terms and conditions that
rendered them an identifiable homogenous group.
The Union acknowledged that the group was smaller
than the operatives but explained that this was simply because there were fewer
managers. Although the Employer stated
that it did not consider it appropriate for managers at the Sheffield
site to be treated differently from other managers or clerical staff across the
UK, it was, the
Union argued, the case that the first line managers at Sheffield
did not get the same rates of pay as first line managers elsewhere in the country. The Union believed
that Sheffield was considered a stand-alone plant,
possibly for historic reasons. It
explained that the Sheffield site had originally been
owned by George Bassett until 1995 when it was taken over by Trebor and became
Trebor Bassett. This in turn was taken
over by Cadbury to become Cadbury Trebor Bassett. Notwithstanding the takeover, the pay rates
of the Sheffield managers were not brought into line
with other Cadbury sites and this was still the case. It was the Union’s
argument that there was not one actual rate for the same job with the rates at
the Bourneville site being higher than those at Sheffield.
13. When training courses were organised and
managers went off site on those courses, the first line managers in the proposed
bargaining unit attended as a group.
There had been training courses in January, February and March of 2007
and the Union attached to its submissions a list giving
the names of those who attended the courses which coincided with the
composition of the proposed bargaining unit.
The Employer questioned the Union on this point
arguing that the correct position was that the training courses were rolled out
for all managers which included Quality Environment and Health and Safety
(QEHS) and everyone involved in people management. The Employer added that it was simply a case
that the QEHS managers did not attend the same courses as the manufacturing
managers because at the time there were a number of health and safety and
quality issues that needed addressing and the Employer thought it was not an
appropriate time for them to be absent from the workplace.
14. The Union
explained how workers in the proposed bargaining unit could be asked to work in
different manufacturing units unlike other managers on the site. There were four manufacturing units at the Sheffield
site, namely Gum, Liquorice, Mints and Packing.
The majority of workers in the proposed bargaining unit had worked in
more than one of these areas whereas no managers from outside the proposed unit
had been asked to work within manufacturing.
15. The workers in the proposed bargaining
unit worked a three-shift pattern in the manufacturing areas, whereas other
workers worked days. Managers in the proposed bargaining unit worked an 8 hour
shift whilst managers outside did not work a shift system. They could also take advantage of flexi-time
whereas those managers in the proposed bargaining unit were not able to take
advantage of such a system. However, when
questioned by the Employer the Union admitted that some individuals worked
days, some nights and some worked fewer than three shifts but, the Union added,
they had all worked the three-shift system previously and could be asked to do
so again.
16. With the exception of the engineering stores
manager the workers in the proposed bargaining unit spent the majority of their
time in the manufacturing areas.
Approximately 90% of the proposed bargaining unit were in fact engaged
in the production area all the time, the remainder provided a support function
to production and worked in that area some of the time. The skills of those managers inside and
outside the proposed bargaining unit were very different. Inside the proposed bargaining unit the
workers had experience of plant and equipment and manufacturing systems, and
they managed people engaged in manufacturing tasks on a daily basis. On the other hand the office workers tended
to have computing, planning and administration skills. A further difference between the two groups
was that members of the proposed bargaining unit routinely wore protective
clothing whereas other managers only did so when required to enter
manufacturing units. The Union
emphasised that the workers in the proposed bargaining unit satisfied a number
of criteria and that whilst it acknowledged that there were other managers such
as those in technical engineering, they did not manage people and so were
excluded for this reason. When pressed
as to why it excluded managers in QEHS the Union denied
that it was to protect its membership levels saying that that their inclusion
could cause problems. As to the
inclusion of the managers in HR the Union acknowledged that they did manage
staff but went on to add that it had concerns about including members of HR in
the bargaining unit as it would, it believed, be counterproductive and create a
potential conflict of interest. There
was, it explained, some degree of difference between the terms and conditions
of the workers in the proposed bargaining unit and those managers that the Union
sought to exclude. It was not clear
whether the Employer was advocating a bargaining unit of the whole 7/7a broad
band at Sheffield or across the country but the Union’s view was the workers in
the proposed bargaining unit had the same terms and conditions including hours
and levels of pay. Further, the workers
themselves felt that they were different to the other managers in areas such as
QEHS that did not support manufacturing.
17. All of the members of the proposed
bargaining unit reported directly to a senior manager which was not the case
for many managers outside of the proposed bargaining unit. The managers at Sheffield
that fell outside the proposed bargaining unit were mainly office based
clerical workers. They were graded as
managers but they did not have responsibility for managing other workers. For example, in the Planning department there
were five managers who worked under a senior manager. There was also a Comms department of between
30 - 40 workers graded as managers but who were engaged in purchasing and
related tasks and were not treated as part of the Sheffield
site. There were also managers engaged
in administration. These workers did not
manage people, they did not attend management courses and they did not work in
the production area.
18. All of the workers in the proposed
bargaining unit worked at the Sheffield site and within
the Sheffield site they were only based in the
manufacturing units. The Union
acknowledged the presence of other units at Sheffield
but was of the view that Customer Operations and the Export Warehouse operated
as distinctly separate units from manufacturing. Whilst there were workers in these units on
the same broad bands as those in the proposed bargaining unit the Union argued
that they were not part of the core business at the Sheffield site and did not
report to the general manger but directly to Bourneville. They were, it reiterated, classed as separate
remote units. Further, the Union
submitted that there was no evidence to say that the proposed bargaining unit
would promote other small fragmented bargaining units. The Employer’s fear that QEHS, for example,
would seek to be a bargaining unit in its own right was a reaction to this case
rather than based on evidence from within.
19. Having regard to the above the Union
considered the bargaining unit proposed to be perfectly compatible with
effective management and an appropriate bargaining unit
Summary of the submission made by the
Employer
20. The Employer argued that the bargaining
unit proposed by the Union was not compatible with effective management and
would be both inimical to existing national and local bargaining arrangements
and inconsistent with the desirability of avoiding small fragmented bargaining
units. It was, the Employer contended,
“a small ship in a big sea”.
21. The Employer employed workers at various
sites in the UK
and recognised trade unions in many different parts of its undertakings. Sheffield was just one
of its many UK
sites. Manufacturing was only one of
three activities that took place on the Sheffield site,
the others being Customer Operations which employed 80 workers and Export
Warehouse which employed 25. These
activities also had first line managers so, the Employer submitted, it made no
sense for Manufacturing to be identified as a separate unit. The Union had put
forward a bargaining unit of 39 or 40 workers out of a pool of 800, more if
those managers outside manufacturing were included.
22. It explained that the terms and
conditions of employment were standard for each particular broad band of
workers across the UK
with the workers in the Union’s proposed bargaining unit
in broad bands 7 and 7a. It argued,
therefore, that it was illogical to split them into geographical areas; terms
and conditions were thus defined by reference to the particular broad band in
which the worker was placed and not according to location or service area which
did not represent relevant bases for differentiation by management. The Employer explained that its broad band
structure was closely based on the Cadbury Schweppes global standard with the
broad band being derived from job evaluation.
The group had national harmonisation of terms and indeed many standards
were the same or similar on a global basis.
Further, as the business became ever more international in its reach,
more and more individuals moved between companies on a global basis. This
mobility within the business had enabled an increasing number of individuals to
move between sites. It argued that
having to keep track of different sets of employment conditions between the
various managers would be administratively complex, lead to confusion and
error, and served no beneficial purpose.
The Employer moved people between sites for a number of reasons.
Typically, moves were either because of individual role changes, or because of
restructuring within a team or function.
Individual role changes occurred on an ongoing basis, at all levels of
management; restructures were infrequent, but impacted upon a greater number of
people when they did happen. The
Employer provided relocation assistance when the move was for its benefit. At any one time, there were usually between
40 and 50 employee relocations in progress within the UK, a proportion of which were new starters to
the business.
23. Following
the implementation of the harmonised terms and conditions in April 2002, the
steering group that managed the project was given permanent status as the UK
Employment Conditions Steering Group (“Steering Group”). It was the main decision-making body on
common benefits, employment policies and practices across Cadbury Schweppes in
the UK. Any changes to employment terms
and conditions must be agreed by Steering Group. In practice, most of the matters presented to
Steering Group addressed either issues which affected all UK employees (for
example, the pros and cons of Employee Assistance Programmes, or particular
employment legislation) or issues which related only to some or all levels of
broad banded staff (e.g. company car policy).
The Group did not address site-specific issues unless these had
relevance to many/all UK sites.
It was able to cope with new situations and was flexible in its approach
and dealt with all workers even those that took part in collective bargaining
on a site basis.
24. All first line managers were in broad
band 7 and 7a (broadly described as managers and junior managers respectively)
but there were conversely others in this broad band group that were not first
line managers. Since there was
coincidence of terms within broad band 7 and 7a it made no sense to use a
subset of broad band 7 and 7a as the Union sought to
do. First line managers, it reiterated,
was not a term used by the Employer. Further
there were those on broad band 7 and 7a who were not within manufacturing and
again, in the Employer’s submission, it made no sense to use a subset divided
by service area. Even within
manufacturing, managers in Tech Engineering, HR, Finance and Support Services
were excluded from the Union’s proposed bargaining unit.
25. The Union may have
its own tactical reason for putting forward the bargaining unit, but it had
nothing to do with effective management.
So far the Employer had received no satisfactory explanation as to why
this bargaining unit had been selected by the Union. There was a hint from the Union
that HR were not likely union members which suggested that the Union
had formulated the bargaining unit to ensure that it had majority membership
therein. This, however, was not a valid
consideration. The CAC should look to
why such a small bargaining unit had been put forward bearing in mind that
“undertaking” should be taken as the whole of the Sheffield
site.
26. As an alternative argument, if the
proposed unit was imposed there would be a risk that other subset groups at
other locations and within other services, for example, HR, QEHS, Customer
Services or Export Warehouse, might likewise seek to obtain union recognition
for different bargaining units. It referred
the Panel to the decision in BECTU & BBC TUR1/274/03
promulgated 27 October 2003 in support of this point and reminded the Panel
that the other bargaining units which CTB recognised which were referred to by
the Union had not been decided by the CAC but had come about by voluntary means. As in the BECTU case the Panel
should take into account a number of factors in arriving at its decision. The Employer then compared the proposed
bargaining unit with that in the BECTU case claiming that there were
similarities between both cases and that to find in favour of the Union
would give rise to small fragmented bargaining units. The Employer urged the Panel to closely look
at the characteristics of the workers.
The Union had claimed that they were paid at a different
rate to elsewhere in the company but they were on the same broad band with any
difference down to market rates and performance. Other managers attended the training course
that the Union highlighted. The CAC could not determine the bargaining
unit by reference to those who had attended a training course that was rolled
out to other workers. The Union
claimed that the workers worked a three-shift system however, only 19 out of 40
work such a pattern with the others working different shifts or days or
nights. Again, it argued, shift patterns
could not be a decisive factor in determining the bargaining unit. Neither was the First Line Managers Forum a
material factor. What was material, the
Employer claimed, was that such a bargaining unit as proposed by the Union
would create an artificial sub-division of the broad bands 7 and 7a.
27. The Employer explained that the Sheffield
site Consultation Forum covered all the departments that were directly involved
in manufacturing or packing and that although this was not determinative, it
was a significant factor as to what those working within the unit considered as
a logical approach to the bargaining unit.
(The First Line Managers Consultation Forum or Team Leader Forum being in
addition to the site Forum.) The Team
Leaders Forum had been established to enable line managers to meet and discuss
issues such as consistency around break times.
It was headed by a representative from HR and open to all managers on
the main site to attend. This included
QEHS, HR, Finance and Site Services with HR present to both represent
management and to facilitate. However,
the Employer agreed that meetings of this forum were not regular nor were the
meetings attended by significant numbers.
28. When questioned by the Panel as to what
constituted an appropriate bargaining unit the Employer submitted that there
was no evidence presented to indicate any appropriate bargaining unit. However, if an alternative to that proposed
by the Union had to be put forward then the Employer
would suggest all those workers in broad band 7 and 7a on the Sheffield
site. This would include those managers
in Customer Operations, Export Warehouse, HR, Finance, Support Services and
QEHS as well as those in manufacturing.
Considerations
29. The Panel is required, by paragraph 19(2)
of the Schedule to the Act, 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.
30. The Panel is first tasked with
determining whether the bargaining unit proposed by the Union
is appropriate. If the Panel arrives at
the conclusion that, for whatever reason, this bargaining unit is not
appropriate, it will then consider any alternative bargaining unit put forward
by the Employer. However, if no
alternative unit is put forward by the Employer, or the Panel concludes that
the Employer’s favoured bargaining unit is not appropriate, it must determine a
bargaining unit of its own motion. This
is contrary to the submissions of the Employer, which argued that if the Panel
found the Union’s bargaining unit not appropriate and if
there was no evidence presented as to an alternative bargaining unit that was
appropriate, then the Panel must find that there was no appropriate bargaining
unit and go no further. However, this
approach is at odds with paragraphs 19(2) and 19(3) of the Schedule, which
read:
“(2) Within the decision period, the CAC must decide whether
the proposed bargaining unit is appropriate.
(3) If the CAC decides that the proposed bargaining unit is
not appropriate, it must also decide within the decision period a bargaining
unit which is appropriate.”
These
amendments, brought in by the Employment Relations Act 2004,
clearly dictate that a Panel must determine an appropriate bargaining
unit. There is simply no room to
interpret the legislation as suggested by the Employer. The Panel is conscious that such a decision
was arrived at in the BECTU case but this decision was
made prior to the above amendments being incorporated into the Schedule.
31. Turning to the matter at hand, the Panel
has carefully considered the parties’ views as ably advocated by Mr Bowers QC
on behalf of the Employer and Mr Short of Counsel on behalf of the Union, and
has arrived at the decision that the bargaining unit as proposed by the Union,
in the terms clarified at the commencement of proceedings, is an appropriate
bargaining unit.
32. The Panel has arrived at this decision
for the following reasons. Firstly, the
Panel finds that it is a definable group of workers performing particular
functions in that they are all on broad band 7 or 7a working within
Manufacturing employed solely on the Sheffield site and
ultimately reporting to the Head of Manufacturing, Steve Fiello. Further, this group of workers all wear
protective clothing, spend the majority of their time in the production area,
enjoy the same terms and conditions and, distinctively, either worked a three
shift pattern or could be required to work such a system under the terms of
their present contracts.
33. The workers in the Union’s
proposed bargaining unit satisfied all of the above. The Employer argued, and the Panel accepts, that
there were workers outside the proposed bargaining unit that shared some of the
aforesaid criterion and the Employer claimed that it would be illogical to cut
across the broad bands. However, whilst
the Panel accepts that there are such workers that satisfy some of the above
conditions the determining factor is that they do not share all of these
features.
34. The Employer argued that its terms and
conditions were standard across the UK
but the Panel has heard that there are significant differences between sites,
for example, the rates of pay at Sheffield are less than
the rates at Bourneville. Given that
there is such a differential it would not, in the Panel’s view, be incompatible
with effective management for the Employer to have to negotiate with the Union
in respect of the proposed bargaining unit.
The Panel also heard that there were existing recognition agreements in
place covering other groups of workers at various sites and the Employer did
not advance any argument to say that these arrangements caused it any
difficulties.
35. A further argument espoused by the
Employer concerned the mobility of the workers but again, its own evidence
showed that there was not the degree of mobility between the workers in the
proposed bargaining unit and the other workers in broad bands 7 and 7a at Sheffield
that it originally suggested. The Panel
heard that the team leaders in manufacturing shared the same skill set that
enabled them to cover in other areas within manufacturing whilst those team
leaders outside the proposed bargaining unit had a different range of skills
and so were consequently not called upon to transfer, however temporarily, to
manufacturing.
36. It was argued by the Employer that the
proposed bargaining unit was a small bargaining unit and that it could give
rise to other small fragmented bargaining units within the Sheffield
site. The Panel was not convinced by these
arguments. The number of workers in the
proposed bargaining unit is sufficient to constitute a distinct bargaining
unit. Given that there are no national
or local existing bargaining arrangements that cover workers in broad bands 7
and 7a, the Panel accepts the Union’s arguments and believes
that the size of the bargaining unit is appropriate, and that it will not lead
to fragmented bargaining.
Decision
37 The appropriate bargaining
unit is that proposed by the Union and comprises the following posts: all team
leaders and engineering managers in Mints, all team leaders and trainee team
leaders in Logistics/Scheduling/Data, all team leaders, trainee team leaders
and engineering managers in Gum and Liquorice packing, all team leaders,
trainee team leaders and engineering managers in Gums and Liquorice
manufacturing and the engineering stores manager and site services engineer in
Site Services.
Panel
Professor Kenny
Miller (Chairman)
Mrs Maureen
Chambers
Mr Gerry Veart
18 October 2007
Appendix
Names of those
who attended the hearing:
For the Union
Mr Andrew Short - Counsel
Ms Pat Pepper - Regional Officer
Mr Mick Hercock - Employee
For the Employer
Mr John Bowers QC - Counsel
Mr Nigel Brain - Employment
Law Consultant
Mr Neil Smart - HR Business Services Manager UK
Ms Rabinder Jhinger - HR Manager Sheffield
Ms Lisa Micallef - Observer