07 May 2008

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:

Unite the Union

and

Ondeo Industrial Solutions

Introduction

1. Unite the Union (the Union) submitted an application dated 27 March 2008 to the CAC that it should be recognised for collective bargaining purposes by Ondeo Industrial Solutions Limited (the Employer) for a bargaining unit comprising “the following groups based at Grangemouth: Laboratory Analyst, Maintenance Technicians, Operations Technicians”. The application was received by the CAC on 27 March 2008. The CAC gave both Parties notice of receipt of the application on 28 March 2008. On 2 April 2008 the Employer submitted a response to the CAC, which was 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 Shaw and Mr Gerry Veart. The Case Manager appointed to support the Panel was Kate Norgate.

3. The CAC Panel has extended the acceptance period in this case. The initial period expired on 10 April 2008. The period was extended until 30 April 2008 in order to allow time for a membership and support check to be carried out by the Case Manager, for the Parties to comment on the subsequent report, and for the Panel to consider the evidence and reach a decision.

Issues

4. The Panel is required by paragraph 15 of Schedule A1 to the Act 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 Schedule A1 to the Act; and therefore should be accepted.

Views of the Union

5. In its application the Union stated that there were 40 workers in its proposed bargaining unit, of whom 17 were Union members. The Union also stated that if required it could provide to the CAC evidence to demonstrate that a majority of workers would be likely to support recognition for collective bargaining.

Views of the Employer

6. The Employer stated that, although it did not agree with the Union’s estimate that there were 40 workers in the proposed bargaining unit, it was not in a position to comment as it was unclear which workers were included and where the Union had drawn the boundary across contracts and non-connected work groups. It stated that it required further information of who was included in the union’s proposed bargaining unit.

7. The Employer further stated that it was also unable to comment on whether it agreed with the Union’s estimate of membership in the proposed bargaining unit as it had not been supplied with any evidence that supported the Union’s claim. Nor had it been

supplied with any evidence to demonstrate that a majority of the workers in the proposed bargaining unit would be likely to support recognition.

8. The Employer explained why it did not consider a majority of the workers were likely to support recognition. It stated that no employees had requested union recognition at any stage. There was an elected staff council with 10 members company wide and this was known as the Employee Business Employment Team (EBIT). The EBIT operated to provide an open forum to involve employees in issues such as decision making, and discussions on company performance. The Employer stated that no request or informal approach had been made via this forum for recognition for collective bargaining.. The Employer explained further that the company’s vision was “to create the best company people want to work in” and this was key to the success and growth of the company. An independent confidential feedback session was carried out during 2006. In response to the feedback gathered a full development and reward review was undertaken and an employee led team was created with staff from all operational sites. This resulted in a UK wide progression and development matrix based on five roles ranging from a new operational entrant to an experienced operational team leader. These were evaluated by Hay Consulting to get market based salaries. Finally the Employer stated that an Investors in People audit was carried out in 2004 and 2007, which provided excellent feedback in people development and consultation. The Employer did not contend that the Union’s application failed to meet any of the other admissibility or validity criteria in the Schedule.

Membership and Support check

9. To assist the determination of whether a majority of the workers in the proposed bargaining unit were likely to favour recognition of the trade union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed a confidential check to be undertaken by the Case Manager.

10. In letters to both Parties dated 16 April 2008, the Case Manager requested that the Employer provide a list of the workers within the proposed bargaining unit giving their

full name, date of birth and job titles, and that the Union provide a list of its members stating their full name, date of birth, date of joining, paid up to date and confirmation of membership status within the proposed bargaining unit, and a copy of the petition. The Employer provided a list of 40 workers it stated were within the Union’s proposed

bargaining unit and the Union provided a list of 16 Union members it stated were within its proposed bargaining unit, and a copy of its petition. Both Parties provided the information on a confidential basis.

11. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 15, a membership level of 37.5%. The petition supplied by the Union contained 27 signatures, of which 27 were in the proposed bargaining unit, a figure that represented 67.5% of the proposed bargaining unit. Of those 27 signatories, 15 were members of the Union (37.5% of the proposed bargaining unit) and 12 were non-members (30% of the proposed bargaining unit).

12. The Case Manager’s report of the results of the membership and support check was circulated to the Panel and to the Parties for their comments on 22 April 2008.

Summary of the Parties’ comments

13. By an e-mail dated 23 April 2008 the Union stated that it agreed with the contents of the report.

14. By a letter dated 22 April 2008 the Employer stated that it was unable to challenge the figures within the report given that the names and job titles were not supplied. It further stated why it believed the proposed bargaining unit was not appropriate. However, at the acceptance stage of the statutory process, the legislation requires the Panel to apply the statutory tests to the bargaining unit proposed by the Union. This aspect of the Employer’s submission was not, therefore considered by the Panel for the purposes of this decision.

15. By two further e-mails dated 30 April 2008 the Employer stated that it was informed of a discussion between two individuals, who had signed the Union’s petition in

support of recognition. The Employer explained that it appeared from those discussions that individuals had not understood the implications of signing the Union’s petition, and believed that they were agreeing to support the Union for reasons such as legal support and representation. The Employer stated that they did not understand “collective

bargaining” or the implications of it. They indicated that they did not want the Union to represent them for collective bargaining. In the Employer’s view this cast doubt on the Union’s evidence of likely support for recognition.

16. The Employer further stated that it had also come to its attention that a number of individuals who had signed the petition had expressed a recent change of opinion on their support for recognition. The Employer believed that the recent significant activity at the

Ineos site in Grangemouth surrounding the industrial action taken there had altered those individuals views.

Considerations

17. In relation to membership and support, the Panel is required to decide, firstly, whether under paragraph 36(1)(a) of the Schedule, members of the union constitute at

least 10% of the workers in the proposed bargaining unit and, secondly, whether under paragraph 36(1)(b) a majority of the 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. The Panel has considered carefully the submissions of both parties and the supporting documentation.

Paragraph 36(1)(a)

18. The Case Manager’s check of the Union’s level of membership established that 15 of the 40 workers in the proposed bargaining unit were members of the Union (37.5%). The Employer has not disputed that the members of the Union constitute at least 10% of the proposed bargaining unit. Therefore, the Panel is satisfied that the 10% test is met in accordance with paragraph 36(1)(a).

Paragraph 36(1)(b)

19. As already noted, the case manager’s check on the union’s level of membership identified a membership level of 37.5%. In addition the Case Manager’s check of the Union’s petition against the list of 40 workers provided by the Employer indicated that 27 of the petition signatories were workers from within the proposed bargaining unit, a support level of 67.5%. Of this number, all the union members in the bargaining unit had

signed along with 12 non-members. The Panel is satisfied that the Case Manager’s check was undertaken fairly and appropriately and in conformity with the approach taken by the CAC. The Panel notes the Employer’s view that some employees may not have understood the implications of signing the Union’s petition and that recent activity surrounding the strike at the Grangemouth site may have altered individuals views. However, the Panel considers that the wording of the petition is clear and unambiguous about seeking recognition to conduct collective bargaining on pay, hours and holidays and it has received no evidence to suggest that signatories to the petition have changed their minds about union recognition since signing the petition. Therefore, given the level of union membership and support demonstrated by the petition, and in full consideration of the evidence made available, the Panel finds that the majority of the workers would be likely to favour recognition of the Union for the purposes of collective bargaining. The Panel is therefore satisfied that the test required by paragraph 36(1)(b) of the Schedule has been met.

20. The Panel is satisfied also, after full consideration of all the documentation submitted by the parties, that the Union’s application meets the remaining statutory tests.

Decision

21. The application is valid within the terms of paragraphs 5 to 9, was made in accordance with paragraph 11 and is admissible within the terms of paragraphs 33 to 42 of Schedule A1. The application is therefore accepted by the CAC.

Panel

Professor Kenny Miller (Chairman)

Mrs Maureen Shaw

Mr Gerry Veart

07 May 2008