Case Number: TUR1/587/(2007)

13 November 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

Robert Cain and Co Ltd

Introduction

1. Unite the Union (the Union) submitted an application dated 19 July 2007 to the CAC that it should be recognised for collective bargaining by Robert Cain and Co Ltd (the Employer) for a bargaining unit comprising “Hourly paid Robert Cain and Co Ltd employees, who work in the brewhouse, filter, fermentation, laboratory, can hall, engineering, warehouse and dray departments, up to but not including management at your brewery in Liverpool.” The CAC gave both parties notice of receipt of the application on 20 July 2007. The Employer did not submit a response.

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 Mr Chris Chapman, Chairman of the Panel, and, as Members, Mr Paul Gates and Mrs Maureen Shaw. The Case Manager appointed to support the Panel was Sarah Kendall.

3. By a decision dated 17 August 2007 the Panel accepted the Union’s application. The Schedule provides for a 20 day period in which the parties may negotiate to reach agreement on the appropriate bargaining unit. That period ended on 17 September 2007 but was extended, at the Employer’s request, to 10 October 2007 in view of a delay caused by the need for the Panel to resolve the correct name for the Employer. The Union wrote to the CAC on 11 October 2007 to explain that it had asked Acas to assist but that Acas had been unable to contact the Employer. The Union also explained that it had received a telephone call from the Employer’s solicitors and that the solicitors had undertaken to speak to the Employer. The Union stated that it had received no further communication from the Employer or its solicitors.

4. The Employer’s solicitors wrote to the CAC on 12 October 2007 and stated that they did not anticipate that the Employer would have any major objections to the Union’s proposed bargaining unit. They also stated that internal discussions were taking place to confirm that the proposed bargaining unit did not cause any problems for the effective management of the brewery, that they were hopeful that the parties would be able to reach agreement on the issue and requested the CAC to grant a further extension. The Union responded by way of a letter to the CAC dated 15 October 2007. The Union registered its objection to the granting of any further extensions in view of the fact that the Employer and the Union had not met to discuss the issue of the proposed bargaining unit and that no meetings had ever been formally proposed.

5. As there was no agreement between the parties that the negotiation period should be extended, the Panel declined the Employer’s request and directed that the Panel would proceed to determine the appropriate bargaining unit. The parties were informed of that decision in a letter dated 24 October 2007 and invited to submit written arguments, in accordance with paragraph 19B of the Schedule, as to whether the proposed bargaining unit was appropriate. The Union responded on 30 October 2007 and the Employer’s solicitors on 31 October 2007.

Summary of the parties’ written arguments

6. The Union made the following points in support of its position that its proposed bargaining unit was compatible with effective management:

a) The Employer had raised no objections to its proposed bargaining unit.

b) The proposed unit covered all hourly paid workers involved in the production process.

c) Those workers shared common terms and conditions of employment, were covered by the same personnel policies and procedures and reported through team leaders/managers to the same Site Manager.

d) Collective bargaining was the accepted method of dealing with employees in the industry and there was no evidence that that compromised an employer’s ability to be efficient, profitable or innovative.

e) Its proposed bargaining unit would not create fragmentation, the workers concerned shared common characteristics and the workers were all employed at one site.

7. The Employer made the following points:

a) The company had undergone a period of significant change, in terms of the size and nature of the business, and the process of integration was continuing. There had also been major changes in the management team.

b) The company regarded itself as having positive relations with its staff and would embrace increased trade union involvement if its staff so wished.

c) Its view was that a partnership agreement could be a more appropriate way forward than a traditional negotiating process and that that should cover its entire staff. The Union’s proposed bargaining unit represented a small proportion of the total workforce in the Group, 27 out of over 400 employees.

d) It intended to instigate, as a matter of urgency, a dialogue with all staff to ensure there was adequate consultation about matters of importance throughout the business. It further intended to meet the workers in the proposed bargaining unit to discuss the model recognition might take in the hope that that model could apply to the business more widely. It hoped that that could be agreed without the need for the CAC to take further action.

Considerations

8. 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 arguments.

9. The Panel’s principal difficulty in making this decision has been the failure of the Employer to engage with the statutory process, despite being given every opportunity to do so. The Employer submitted no response to the Union’s application to the CAC and only entered into a dialogue with the CAC once the Union’s application had been accepted. During the bargaining unit negotiation period, the Employer stated in writing that it hoped to reach agreement with the Union but, so far as the Panel is aware, no meetings between the parties have taken place and the Employer did not respond to an offer of assistance from Acas. When asked by the CAC for written arguments as to the appropriateness of the proposed bargaining unit, the Employer’s solicitor wrote to the CAC, as is summarised in paragraph 7 above, with no real evidence relating to the issue under consideration by the Panel. In fact, the Employer’s solicitors’ letter contains little more than aspirational statements about the possibility of securing a partnership agreement covering all its employees and its intention to establish the wishes of its employees. The letter does contain a comment about the numerical size of the bargaining unit in relation to the total workforce within the group but does not offer any evidence on the way that factor might impact on compatibility with effective management. The Panel is satisfied that the relevant statutory provisions, as described in paragraph 8 above, were brought to the parties’ attention, by way of a letter from the Case Manager dated 24 October 2007, and the Panel also notes that the Employer has, since the acceptance decision was issued, been legally represented.

10. The Panel’s decision is that the Union’s proposed bargaining unit is appropriate as it has received no evidence that it is not an appropriate unit. Furthermore, the Panel, in reaching its decision, has taken into account the factors listed in paragraph 19B(3) of the Schedule, so far as it has been able to do given the lack of evidence provided by the Employer, 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

11. The appropriate bargaining unit is the unit proposed by the Union, namely Hourly paid Robert Cain and Co Ltd employees, who work in the brewhouse, filter, fermentation, laboratory, can hall, engineering, warehouse and dray departments, up to but not including management at the Employer’s brewery in Liverpool.

Panel

Mr Chris Chapman (Chairman)

Mr Paul Gates

Mrs Maureen Shaw

13 November 2007