Case
Number: TUR1/568/2007
METHOD OF COLLECTIVE BARGAINING
The Parties:
Unite the
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).
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, Dr Susan
Corby and Mr Rod Hastie. The Case
Manager appointed to support the Panel was Nigel Cookson.
3. In
a decision promulgated on September 19 2007 the Panel decided that the
appropriate bargaining unit consisted 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.” It was subsequently clarified that
the workers referred to were those employed in Bands 1-4.
4. As
the determined bargaining unit was different from that proposed by the
5. The
Panel then considered whether, in accordance with paragraph 22(2) of the
Schedule, the majority of the workers in the bargaining unit were members of
the
6. In the letter dated 31 October 2007 that accompanied the
declaration of recognition the parties were informed that the next stage of the
statutory procedure was for them to negotiate with a view to reaching agreement
on a method by which they would conduct collective bargaining.
7. The
8. In a letter dated 11 December 2007 the Employer confirmed
that the parties had been unable to reach a voluntary agreement as to the
method of collective bargaining explaining that it was unable, due to time and
business commitments, to meet with the Union until early in the new year. However, as the
9. In a letter dated
10. As
both parties were content for the Panel to impose the specified method the
Panel informed the parties that the matter would be dealt with by way of the
written submissions alone without the need to convene a hearing.
Issues
11. No agreement on a method of collective
bargaining had been reached by the parties within either the 30 day negotiation
period or the 20 day agreement period.
Therefore, under paragraph 31(3), the CAC Panel must now specify to the
parties the method by which they are to conduct collective bargaining.
12. Paragraph 168 states that in specifying
the method the CAC must take into account the specified method, but may depart
from the specified method to such extent as the CAC thinks is appropriate to do
so in the circumstances. The parties
were provided with a copy of the Statutory Instrument on 31 October 2007 and it
was subsequently made clear to the parties that the Panel would use this
specified method as its starting point and would go on to give consideration to
any proposed departures from the method.
Considerations
13. As
the parties had confirmed in their written submissions that both were content
for the Panel to impose the specified method, the Panel then considered the
extent to which, by its own motion, it considered it was appropriate, given the
circumstances of the case, to depart from the specified method.
Paragraph 1 of the Specified Method
14. The Panel considered that it was
appropriate to identify the parties in paragraph 1 of the specified method and
to delete the second sentence as it was not applicable given the circumstances
of this case.
Paragraph 5 of the Specified Method
15. The Panel considered that it was
appropriate to delete the word ‘usually’ in the first sentence and the whole of
the second and third sentences of paragraph 5 as they were not applicable given
the circumstances of this case.
Decision
16. The
decision of the Panel is that the method detailed in the document attached
(appendix A) is specified as the method by which the parties are to conduct
collective bargaining.
Panel
Professor Paul Davies, Chairman
Dr Susan Corby
Mr Rod Hastie
Appendix A
THE SPECIFIED METHOD
The Parties
1. The method shall apply to Xansa UK Ltd and Unite – the
The Purpose
2. The purpose is to specify a
method by which the employer and the union conduct collective bargaining
concerning the pay, hours and holidays of the workers comprising the bargaining
unit.
3. The employer shall not grant
the right to negotiate pay, hours and holidays to any other union in respect of
the workers covered by this method.
The Joint Negotiating Body
4. The employer and the union
shall establish a Joint Negotiating Body (JNB) to discuss and negotiate the
pay, hours and holidays of the workers comprising the bargaining unit. No other
body or group shall undertake collective bargaining on the pay, hours and
holidays of these workers, unless the employer and the union so agree.
JNB Membership
5. The membership of the JNB
shall comprise three employer representatives (who together shall constitute
the Employer Side of the JNB) and three union representatives (who together
shall constitute the Union Side of the JNB).
6. The employer shall select
those individuals who comprise the Employer Side. The individuals must either
be those who take the final decisions within the employer's organisation in
respect of the pay, hours and holidays of the workers in the bargaining unit or
who are expressly authorised by the employer to make recommendations directly
to those who take such final decisions. Unless it would be unreasonable to do
so, the employer shall select as a representative the most senior person
responsible for employment relations in the bargaining unit.
7. The union shall select those
individuals who comprise the Union Side in accordance with its own rules and
procedures. The representatives must either be individuals employed by the
employer or individuals employed by the union who are officials of the union
within the meaning of sections 1 and 119 of the Trade Union and Labour
Relations (Consolidation) Act 1992 ("the 1992 Act").
8. The JNB shall determine their
own rules in respect of the attendance at JNB meetings of observers and
substitutes who deputise for JNB members.
Officers
9. The Employer Side shall
select one of its members to act as its Chairman and one to act as its
Secretary. The Union Side shall select one of its members to act as its
Chairman and one to act as its Secretary. The same person may perform the roles
of Chairman and Secretary of a Side.
10. For the twelve
months from the date of the JNB's first meeting, meetings of the JNB shall be
chaired by the Chairman of the Employer Side. The Chairman of the Union Side
shall chair the JNB's meetings for the following twelve months. The
chairmanship of JNB meetings will alternate in the same way thereafter at
intervals of twelve months. In the absence of the person who should chair JNB
meetings, a JNB meeting shall be chaired by another member of that person's
Side.
11. The Secretary of
the Employer Side shall act as Secretary to the JNB. He shall circulate
documentation and agendas in advance of JNB meetings, arrange suitable
accommodation for meetings, notify members of meetings and draft the written
record of JNB meetings. The Secretary of the Employer Side shall work closely
with the Secretary of the Union Side in the discharge of these duties,
disclosing full information about his performance of these tasks.
JNB Organisation
12. Draft agendas
shall be circulated at least three working days in advance of JNB meetings. The
draft record of JNB meetings shall be circulated within ten working days of the
holding of meetings for approval at the next JNB meeting. The record does not
need to be a verbatim account, but should fully describe the conclusions
reached and the actions to be taken.
13. Subject to the
timetable of meetings stipulated in paragraphs 15, 17, 20 and 28 below, the
date, timing and location of meetings shall be arranged by the JNB's Secretary,
in full consultation with the Secretary of the Union Side, to ensure maximum
attendance at meetings. A meeting of the JNB shall be quorate if 50% or more of
each Side's members (or, where applicable, their substitutes) are in
attendance.
Bargaining Procedure
14. The union's
proposals for adjustments to pay, hours and holidays shall be dealt with on an
annual basis, unless the two Sides agree a different bargaining period.
15. The JNB shall
conduct these negotiations for each bargaining round according to the following
staged procedure.
Step
1 - The
union shall set out in writing, and send to the employer, its proposals (the
"claim") to vary the pay, hours and holidays, specifying which
aspects it wants to change. In its claim, the union shall set out the reasons
for its proposals, together with the main supporting evidence at its disposal
at the time. In cases where there is no established annual date when the
employer reviews the pay, hours and holidays of all the workers in the
bargaining unit, the union shall put forward its first claim within three
months of this method being imposed (and by the same date in subsequent
rounds). Where such a common review date is established, the union shall submit
its first claim at least a month in advance of that date (and by the same date
in subsequent rounds). In either case, the employer and the union may agree a
different date by which the claim should be submitted each year. If the union
fails to submit its claim by this date, then the procedure shall be ended for
the bargaining round in question. Exceptionally, the union may submit a late claim
without this penalty if its work on the claim was delayed while the Central
Arbitration Committee considered a relevant complaint by the union of failure
by the employer to disclose information for collective bargaining purposes.
Step 2 - Within ten working
days of the Employer Side's receipt of the union's letter, a quorate meeting of
the JNB shall be held to discuss the claim. At this meeting, the Union Side
shall explain its claim and answer any reasonable questions arising to the best
of its ability.
Step 3 -
(a) Within fifteen working
days immediately following the Step 2 meeting, the employer shall either accept
the claim in full or write to the union responding to its claim. If the
Employer Side requests it, a quorate meeting of the JNB shall be held within
the fifteen day period to enable the employer to present this written response
directly to the Union Side. In explaining the basis of his response, the
employer shall set out in this written communication all relevant information
in his possession. In particular, the written communication shall contain
information costing each element of the claim and describing the business
consequences, particularly any staffing implications, unless the employer is
not required to disclose such information for any of the reasons specified in
section 182(1) of the 1992 Act. The basis of these estimated costs and effects,
including the main assumptions that the employer has used, shall be set out in
the communication. In determining what information is disclosed as relevant,
the employer shall be under no greater obligation that he is under the general
duty imposed on him by sections 181 and 182 of the 1992 Act to disclose
information for the purposes of collective bargaining.
(b) If the response contains
any counter-proposals, the written communication shall set out the reasons for
making them, together with the supporting evidence. The letter shall provide
information estimating the costs and staffing consequences of implementing each
element of the counter proposals, unless the employer is not required to
disclose such information for any of the reasons specified in section 182(1) of
the 1992 Act.
Step 4 - Within ten
working days of the Union Side's receipt of the employer's written
communication, a further quorate meeting of the JNB shall be held to discuss
the employer's response. At this meeting, the Employer Side shall explain its
response and answer any reasonable questions arising to the best of its
ability.
Step 5 - If no agreement
is reached at the Step 4 meeting (or the last of such meetings if more than one
is held at that stage in the procedure), another quorate meeting of the JNB
shall be held within ten working days. The union may bring to this meeting a
maximum of two other individuals employed by the union who are officials within
the meaning of the sections 1 and 119 of the 1992 Act. The employer may bring
to the meeting a maximum of two other individuals who are employees or
officials of an employer's organisation to which the employer belongs. These
additional persons shall be allowed to contribute to the meeting, as if they
were JNB members.
Step 6 - If no agreement
is reached at the Step 5 meeting (or the last of such meetings if more than one
meeting is held at that stage in the procedure), within five working days the
employer and the union shall consider, separately or jointly, consulting ACAS
about the prospect of ACAS helping them to find a settlement of their
differences through conciliation. In the event that both parties agree to invite
ACAS to conciliate, both parties shall give such assistance to ACAS as is
necessary to enable it to carry out the conciliation efficiently and
effectively.
16. The parties shall
set aside half a working day for each JNB meeting, unless the Employer Side
Chairman and the Union Side Chairman agree a different length of time for the
meeting. Unless it is essential to do otherwise, meetings shall be held during
the normal working time of most union members of the JNB. Meetings may be
adjourned, if both Sides agree. Additional meetings at any point in the
procedure may be arranged, if both Sides agree. In addition, if the Employer
Side requests it, a meeting of the JNB shall be held before the union has
submitted its claim or before the employer is required to respond, enabling the
Employer Side to explain the business context within which the employer shall
assess the claim.
17. The employer shall
not vary the contractual terms affecting the pay, hours or holidays of workers
in the bargaining unit, unless he has first discussed his proposals with the
union. Such proposals shall normally be made by the employer in the context of
his consideration of the union's claim at Steps 3 or 4. If, however, the
employer has not tabled his proposals during that process and he wishes to make
proposals before the next bargaining round commences, he must write to the
union setting out his proposals and the reasons for making them, together with
the supporting evidence. The letter shall provide information estimating the costs
and staffing consequences of implementing each element of the proposals, unless
the employer is not required to disclose such information for any of the
reasons specified in section 182(1) of the 1992 Act. A quorate meeting of the
JNB shall be held within five working days of the Union Side's receipt of the
letter. If there is a failure to resolve the issue at that meeting, then
meetings shall be arranged, and steps shall be taken, in accordance with Steps
5 and 6 of the above procedure.
18. Paragraph 17 does
not apply to terms in the contract of an individual worker where that worker
has agreed that the terms may be altered only by direct negotiation between the
worker and the employer.
Collective Agreements
19. Any agreements
affecting the pay, hours and holidays of workers in the bargaining unit, which
the employer and the union enter following negotiations, shall be set down in
writing and signed by the Chairman of the Employer Side and by the Chairman of
the Union Side or, in their absence, by another JNB member on their respective
Sides.
20. If either the
employer or union consider that there has been a failure to implement the
agreement, then that party can request in writing a meeting of the JNB to
discuss the alleged failure. A quorate meeting shall be held within five
working days of the receipt of the request by the JNB Secretary. If there is a
failure to resolve the issue at that meeting, then meetings shall be arranged,
and steps shall be taken, in accordance with Steps 5 and 6 of the above
procedure.
Facilities and Time Off
21. If they are
employed by the employer, union members of the JNB:
The union members of the JNB
shall schedule such meetings at times which minimise the effect on production
and services. In arranging these meetings, the union members of the JNB shall
provide the employer and their line management with as much notice as possible
and give details of the purpose of the time off, the intended location of the
meeting and the timing and duration of the time off. The employer shall provide
adequate heating and lighting for these meetings, and ensure that they are held
in private.
22. If they are not
employed by the employer, union members of the JNB or other union officials
attending JNB meetings shall be given sufficient access to the employer's
premises to allow them to attend Union Side pre-meetings, JNB meetings and
meetings of the bargaining unit as specified in paragraph 23.
23. The employer shall
agree to the union's reasonable request to hold meetings with members of the
bargaining unit on company premises to discuss the Step 1 claim, the employer's
offer or revisions to either. The request shall be made at least three working
days in advance of the proposed meeting. However, the employer is not required
to provide such facilities, if the employer does not possess available premises
which can be used for meetings on the scale suggested by the union. The
employer shall provide adequate heating and lighting for meetings, and ensure
that the meeting is held in private. Where such meetings are held in working
time, the employer is under no obligation to pay individuals for the time off.
Where meetings take place outside normal working hours, they should be arranged
at a time which is otherwise convenient for the workers.
24. Where resources
permit, the employer shall make available to the Union Side of the JNB such
typing, copying and word-processing facilities as it needs to conduct its
business in private.
25. Where resources
permit, the employer shall set aside a room for the exclusive use of the Union
Side of the JNB. The room shall possess a secure cabinet and a telephone.
26. In respect of
issues which are not otherwise specified in this method, the employer and the
union shall have regard to the guidance issued in the ACAS Code of Practice on
Time Off for Trade Union Duties and Activities and ensure that there is no
unwarranted or unjustified failure to abide by it.
Disclosure of Information
27. The employer and
the union shall have regard to the ACAS Code of Practice on the Disclosure of
Information to Trade Unions for Collective Bargaining Purposes and ensure that
there is no unwarranted or unjustified failure to abide by it in relation to
the bargaining arrangements specified by this method.
Revision of the Method
28. The employer or
the union may request in writing a meeting of the JNB to discuss revising any
element of this method, including its status as a legally binding contract. A
quorate meeting of the JNB shall be held within ten working days of the receipt
of the request by the JNB Secretary. This meeting shall be held in accordance
with the same arrangements for the holding of other JNB meetings.
General
29. The employer and
the union shall take all reasonable steps to ensure that this method to conduct
collective bargaining is applied efficiently and effectively.
30. The definition of
a "working day" used in this method is any day other than a Saturday
or a Sunday, Christmas Day or Good Friday, or a day which is a bank holiday.
31. All time limits
mentioned in this method may be varied on any occasion, if both the employer
and the union agree.