Case
Number: TUR1/619/[2008]
8 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
Sports Direct International plc
Introduction
1. Unite
the Union (the Union) submitted an application to the CAC on 14 February 2008
that it should be recognised for collective bargaining by Sports Direct
International plc (the Employer) for a bargaining unit comprising “All
warehouse operatives, including loaders, distribution operatives, FLT drivers,
tapers, pickers, scanners, pricers, placing operatives and tunnelling
operatives” employed at the Employer’s premises in Meadow Lane, Shirebrook,
Mansfield. The CAC gave the parties
notice of receipt of the application on 15 February 2008.
The Employer submitted a response to the application on 22
February 2008
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 Linda Dickens, Deputy Chairman of the Panel, and, as Members, Mr
Eamonn Barry and Sir Bill Connor. The
Case Manager appointed to support the Panel was Nigel Cookson.
Issues which the Panel has to determine
3. The
Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) 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 the Schedule; and
therefore should be accepted.
The Union’s application
4. In
its application the Union
stated that it made its formal request for recognition to the Employer on 21
January 2008
which was rejected by the Employer in a letter dated 1
February 2008. The proposed bargaining unit comprised approximately
500 workers and approximately 230 of these were members of the Union.
The Union relied on its membership and a petition
signed by workers in the proposed bargaining unit as evidence that a majority
of the workers were likely to support recognition for collective bargaining and
was willing to supply both its membership list and petition to the CAC on
request. It stated that the bargaining
unit, which it had selected on the basis that it was an identifiable unit for
bargaining purposes in that the workers shared a common job function as
distribution and warehouse operatives, had not been agreed with the Employer.
The Employer’s response to the Union’s application
5. In
its response to the Union’s
application the Employer confirmed that it had rejected the Union’s request for recognition by letter
dated 1 February 2008.
It detailed its objections to the proposed bargaining unit. It did not agree with the Union’s estimate as to the number of
workers in the proposed bargaining unit explaining that the correct figure
stood at 836. The Employer understood that
there was a considerable apathy towards membership of the Union and doubted that membership was as
high as suggested by the Union. It observed that the
Union understated the number of workers in
the proposed bargaining unit which would mean that the proportion of Union
members would be significantly lower than suggested by the Union.
The Employer believed there to be no more than 50 Union members in the
proposed bargaining unit.
6. There
had been significant involvement of the workers at the site in the recent
election and nomination process for employee representatives for the revised Staff
Forum which was already dealing with the issues covered by a union recognition
agreement but in a wider context. The
Employer understood that it was the view of the majority of workers that there
was no benefit in union involvement given the negotiation, bargaining and
consultation opportunities which existed through the Forum.
The first check of membership and support
7. To
assist the determination of two of the admissibility criteria specified in the
Schedule, namely, whether 10% of the workers in the proposed bargaining unit
are members of the Union (paragraph 36(1)(a)) and whether a majority of the
workers in the proposed bargaining unit are likely to support recognition of
the Union as entitled to conduct collective bargaining on behalf of the
bargaining unit (paragraph 36(1)(b)), the Panel proposed a check to be
undertaken by the Case Manager of the level of Union membership and support for
recognition within the proposed bargaining unit. It was agreed with the parties that the
Employer would supply to the Case Manager a list of the names of workers within
the proposed bargaining unit, and that the Union would supply to the Case Manager a
list of Union members within that unit and a petition to enable comparisons to
be undertaken. It was explicitly agreed
with the parties that, to preserve confidentiality, the respective lists and
the petition would not be copied to the other party. These arrangements were confirmed in a letter
dated 27 February 2008 from the Case Manager to both
parties. The information from the Employer
was received by the CAC on 29 February 2008 and the information from the Union was received on 3
March 2008.
8. The
Employer provided a list of 838 names giving the job title and duties of each
individual therein. It confirmed the list included no agency workers. The Union provided a list of 249 members. According to the Case Manager’s report, the
number of Union members in the proposed bargaining unit was 222, a membership
level of 26.49 %. The total number of
signatures on the Union’s
petition was 327 and whilst undated, the Union, in a covering letter, stated that
the signatures were gathered between June and July 2007.
9. The check of the Union’s
petition against the Employer's list of workers established that there were 226
workers from within the proposed bargaining unit that had signed the petition,
representing 26.97% of the workers in the proposed bargaining unit. 108 of the signatories were members of the Union, which
equates to 12.89% of the total and 118 signatories were non-members, 14.08% of
the total. A report of the result of the check
of the level of Union membership and support for recognition was sent to the
Panel and the parties on 10 March 2008.
Union’s comments on the membership check
10. In
a letter dated 13 March 2008 the Union estimated that there were 500
workers in the proposed bargaining unit rather than the 838 as claimed by the
Employer. It noted that Managers and
Supervisors (including Warehouse Supervisors), the Head Chef, the Catering
Assistants and the Receptionist were not within its category of ‘operatives’
and should therefore be excluded.
Further, the Union’s
inclusion of “Distribution Operatives” was as a sub group of Warehouse
Operatives and referred to loaders and, while Fork Lift Truck drivers were in
the proposed bargaining unit, other drivers were not.
11. The
Union observed that as the majority of
workers were Polish, some names may have been misread, and there may be
differences in transposition between the parties’ records. It asked that the
Panel make some allowances for this possibility. The CAC was asked to consider retaining the
services of an independent person fluent in the Polish language to examine the
names and signatures with a view to addressing this issue.
12. The
Union submitted that with over 26% of the proposed bargaining unit in
membership, the test set down in paragraph 36(1)(a) was met. As for the test in paragraph 36(1)(b)
the Union argued that it did not
require the Union to show that a majority
would be likely to support recognition in the sense that they would be
likely to vote for recognition in a ballot.
Such a test would require a higher standard at this stage than would be
required in a ballot. The test was
whether a majority would be likely to “favour” recognition which was a
much less demanding hurdle. Indeed, the Union contended, it would be perverse for
a mechanism, designed to sift out applications having no reasonable prospect of
success, to set a higher standard than would be required at a ballot. Therefore, even on the basis of the
Employer’s claim of 838 workers in the proposed bargaining unit, 26.49% were
members of the Union
and a further 14.08% had signed the petition.
This gave a total of 40.57% who had demonstrated their support for
recognition and it was the Union’s submission that the test in paragraph 36(1)(b), on proper
application, was met.
Employer’s comments on the membership check
13. In a letter
dated 14 March 2008 the Employer stated that it accepted
that the Union fulfilled the requirements of
paragraph 36(1)(a). As for the test in
paragraph 36(1)(b) the signatures in support of recognition were some eight to
ten months old and it was not clear if more recent testing of support had been
carried out by the Union. Since obtaining the signatures the Staff
Forum had grown significantly in its ambit and effectiveness which would have a
sizeable detrimental impact on support for recognition if the signatures were
collected now.
14. The Union was required to show that the
majority of the workers would be likely to favour recognition. On the basis of the June/July 2007 petition
the figure stood at 26.97%. This was not
a majority of the workers in the relevant bargaining unit and therefore the Union had insufficient support for the
application to be accepted. Furthermore,
the majority of Union members had not signed the petition and so did not
support recognition, which provided further evidence that the test in paragraph
36(1)(b) was not fulfilled.
The hearing and revised check on membership and support
15. Having
considered the Case Manager’s report and the parties’ comments the Panel called
for a hearing to determine whether the application was to be accepted. A hearing was held in Nottingham on 24 April
2008 and the
names of those who attended are appended to this decision.
16. Prior
to the hearing the Panel asked the Case Manager to produce a revised report on
membership and support using the same information as previously provided but
excluding those workers stated by the Union not to fall within its proposed
bargaining unit i.e. all Managers and Supervisors, the Head Chef, the Catering
Assistants, the Receptionist and drivers other than Fork Lift Truck
drivers. Having made the changes the
proposed bargaining unit stood at 636 workers.
33.18% of these were Union members and 34.59% had signed the Union’s petition. Of the petition signatories 16.35% were Union
members and 18.24% non-members. The revised
report was sent to the parties with a covering letter explaining that the
parties would have the opportunity of commenting on the results at the
forthcoming hearing.
Summary of the Union’s case
17. The
Union clarified and explained its proposed bargaining unit with reference to
appendix 2 of the Employer's submissions which set out the job titles and
duties of the 838 workers that were, according to the Employer, within the
original definition of the proposed bargaining unit. This altered the size of the bargaining unit from
that used for the check referred to in paragraph 16 above. The union sought to exclude all those workers
with managerial and supervisory duties, including leading hands; ‘distribution
operatives’ with the duties of driver; receptionists, catering assistants, the
head chef, administration staff and cleaners. It stated that its use of the term ‘warehouse
operatives’ related solely to those workers in the warehouse, and it had used ‘distribution
operatives’ to refer to those workers in the warehouse with the duties of
driver, rather than the HGV drivers that were responsible for distributing
goods away from the warehouse.
18. Even
based on the Employer's wider version of the bargaining unit, the Union satisfied the 10% test, a point
accepted by the Employer. There remained
the test under paragraph 36(1)(b) and whether a majority of the workers in the
proposed bargaining unit would be likely to favour recognition of the Union.
The Union explained how the petition in
support of recognition was collected between June and July 2007 and that no
evidence had been put forward to show that any signatories had changed their
mind in the intervening period. The Union invited the Panel to consider the
level of Union membership combined with the number of non-members that had
signed the petition in assessing the degree of support within the proposed
bargaining unit. The first check
conducted by the Case Manager had put this figure at just over 40% whilst the
second check showed that the Union had over 51.47% combined membership and
non-member support when measured against the revised bargaining unit.
19. The
Union argued that it did not have to show
that a majority would favour
recognition but that a majority would be
likely to do so. In a ballot on
recognition the Union did not have to have a majority of the workers in the
bargaining unit voting in favour of the Union but could be successful with the
support of only 40% and the Panel should therefore not set the bar any higher
when considering whether this test was met.
The acceptance stage was a sifting process to see whether the case had
merit or not. The second check conducted
by the Case Manager showed a level of support of over 50% but even the earlier
figure of over 40% would be enough to satisfy the requirements of paragraph
36(1)(b).
20 The
Union outlined difficulties it faced in
collecting signatures, having to stop workers driving into work at a busy
roundabout; relying on existing members showing the petition to co-workers
during breaks, and distribution via a newsletter. It contended that if it had full access to
the workers the number of signatures on the petition would have been far
higher.
21. It
explained how it had put organising resources into a recruitment campaign and stated
that that there was a window of time for activists to collect signatures for
the petition. The Union had then written to the Employer and
several attempts were made to engage in dialogue on a voluntary basis before
lodging an application with the CAC.
Membership had continued to grow during the Union’s campaign for recognition, for
example, 43 new members had been recruited in the period November 2007 to the
end of February 2008 and a further 20 had joined since.
22. The
Union argued there was no evidence to
suggest that those union members who had not signed the petition were not in
favour of the Union being recognised. Although some people may gain particular
specific benefits from membership even in the absence of collective bargaining
(for example special insurance cover for lorry drivers) this was not the case
with the workers in the proposed bargaining unit. By becoming members and paying subscriptions,
these workers had demonstrated that they favoured the Union to represent them for collective
bargaining purposes. The petition was
not that old and, in any event, contained enough signatures to have won a
ballot if the matter went further.
23. The
Staff Forum was set up in response to the Union's presence and its attempt to gain
recognition and was then revised following the application to the CAC. The Employer stated that the forum conducted
negotiations but article 3 of its constitution specified that it did not
provide a means of collective bargaining.
The Union observed that its membership had
continued to rise despite the setting up of the Staff Forum, participation in
which, it argued, showed a desire and demand for collective voice and
collective bargaining on behalf of the workers, rather than detracted from it.
Summary of the Employer’s case
24. The Employer
argued that the Union
was now proposing a bargaining unit that was different to that originally
proposed and that the total number of workers in the originally defined
bargaining unit was 838 as set out in appendix 2 of the Employer’s
submissions. For example, the Union had listed ‘distribution operatives’
in its application. This was a category
of HGV drivers whose main duty was to transport stock to the Employer’s retail
outlets. It had since defined
distribution operatives as a sub-group of warehouse operatives. As Fork Lift Truck drivers were also named as
a distinct group in the application, there was no other category of workers,
other than HGV drivers, to which the term "distribution operatives"
could apply but the Union
now wished to exclude such drivers.
25. The Union’s petition in support of recognition
was collated some nine to eleven months ago and, given the substantial lapse of
time since this evidence was gathered, it could no longer be relied upon as
credible evidence of support for recognition.
It was neither a current nor an accurate assessment of those likely to
favour of recognition of the Union. The Union had ample opportunity to elicit
support and collect signatures. There
was a lay-by near the roundabout used by Union officials to talk to workers;
some workers were Union members and workers had access to Union literature in
the warehouse including on a notice-board.
26. Since the
petition was compiled the Staff Forum had grown significantly in its scope and
effectiveness. The Employer believed
that the development of the Staff Forum would result in a substantial lowering
of support for recognition, were a petition to be undertaken at the present
time. The Staff Forum Agreement
encompassed issues that included, and went beyond, those of a Union Recognition
Agreement. It also included a reference
to Acas if agreement could not be reached.
Given the high levels of participation in the Forum process, including
representatives from the warehouse/distribution function, the Employer
contended that the vast majority of the workers in the Union’s proposed bargaining unit would be
very unlikely to favour recognition.
29. An absence of
hostility to recognition did not equate to an indication that a worker was
likely to favour recognition. The test
in paragraph 36(1)(b) was clear and the Union had provided no evidence to support
its assertion that it had met the requirements therein. The results of the first report showed that
only 26.97% of the workers in the proposed bargaining unit signed the petition
in favour of supporting recognition and only 108 of its 222 members had signed
the petition, representing just 48.6% of its own membership. The Union did not therefore even have a majority likely to favour
recognition amongst its own members. The
figures in the second report showed a similar picture. The Union asserted that the focus should be on
the likelihood that workers would “favour” (rather than “support”) recognition. It was the Employer’s view that the majority
of the workers in the proposed bargaining unit were not likely to favour
recognition and the results of the Case Manager’s report fully supported this
contention.
30. The Union had submitted that its membership
figure should be read in addition to the non-members who signed the
petition. In the absence of evidence to
the contrary, however, it was unsafe to arrive at the conclusion that members
supported recognition simply because they were members. Based on the second
report, only 104 of 211 Union members signed the petition leaving 107 Union
members who did not sign the petition, all of whom had the opportunity to show
their support. Accordingly, the approach proposed by the Union was not, in these circumstances, an
appropriate one to take. Membership of
the Union brought a range of benefits such as
legal advice and it may have been these benefits that enticed workers to
join. No evidence had been provided by
the Union to support any conclusion other than
one where the majority of the Union members did not favour recognition.
31. The Employer
contended that it was wholly appropriate for the CAC to discount the duplicate
and unreadable names and signatures as well as the names and signatures which
did not appear on the Employer’s list.
It was for the Union to provide clear evidence of support, not to imply this from
indecipherable information.
Considerations
32. At
the time of application the Union described its proposed bargaining unit as ‘All warehouse
operatives, including loaders, distribution operatives, FLT drivers, tappers,
pickers, scanners, pricers, placing operatives and tunnelling operatives’. It estimated there were approximately 500
people in its proposed bargaining unit.
The Employer’s list included 838 employees.
33. Following
information provided in submissions and at the hearing, the Panel is satisfied
that the Union used the term ‘warehouse operatives’ to mean those working in
and around the warehouse engaged on what would generally be regarded as manual
work relating to the core warehouse activities, i.e. excluding managerial,
supervisory and administration roles, excluding catering staff and excluding
drivers who deliver from the site. We
accept that the list of jobs given in the application was based on the way in
which people might understand or describe their roles, rather than the titles
actually used by the Employer. Titles
such as ‘pricers’, ‘pickers’ etc. do not appear on the Employer’s list. It became clear at the hearing that the
Employer uses ‘warehouse operative’ in a very broad way to include, for example,
‘Facilities manager’ ‘Warehouse supervisor’ and ‘administration’. It uses ‘distribution operative’ for
‘drivers’, meaning HGV drivers delivering from the warehouse. We accept the Union clarification that
although it had listed ‘distribution operatives’ the only drivers it intended
to include in its bargaining unit were those engaged in distribution within the
warehouse site as FLT drivers or larger vehicle drivers (listed as ‘warehouse
operatives’ by the Employer), and not those long distance drivers who worked delivering
goods from the site.
34. The
Panel was satisfied that the Union was clarifying rather than attempting to re-define its
proposed bargaining unit (which it could do by withdrawing the application and
submitting another). Following the
clarification the Union proposed bargaining unit included 562 of the employees
on the Employer’s list. We note that this
total is nearer to - although still somewhat larger than - the size of the
bargaining unit estimated by the Union in its application.
35. Following
the Panel’s acceptance of the clarification, the Case Manager was asked to
undertake a further check of membership and support using the same information
from the Employer and Union. This report was sent to the parties with a covering letter
explaining that it had been provided to the Panel to assist its determination
as to whether the application was to be accepted. The check showed 35% of the bargaining unit
were Union members. 37% of the
bargaining unit had signed the petition. 20% of the bargaining unit signed the
petition and were non-members of the Union. 17% of the
bargaining unit signed the petition and were members of the Union.
54 people on the Union membership list did not appear on the Employer’s
list of employees; 80 names on the petition did not appear on the Employer’s
list and 38 names/signatures were unreadable or duplicates. These were excluded. The Panel did not accept the Union’s suggestion that the CAC might take
additional steps to explore these discrepancies, for example by retaining the
services of someone fluent in Polish to check for misreading of Polish
names. The Panel is satisfied that the
Case Manager undertook the checks impartially and thoroughly.
36. The
only test in dispute is paragraph 36(1)(b). At the application stage of the statutory
process the CAC does not have to be certain that a majority of the bargaining
unit will support the Union and the real quantitative test would come later in
a ballot if appropriate. However, in
order to accept an application and so potentially open up the possibility of a
ballot there needs to be sufficient reason for the CAC to form a view that it
is likely that a majority of the bargaining unit would support recognition of
the applicant union. In determining
whether a majority of the bargaining unit is likely to favour recognition of
the Union for collective bargaining we have
taken full account of the written and oral submissions of both parties.
37. This
is not a widely dispersed bargaining unit and petition sheets were taken into
the workplace by supporters. However, the
Panel is sensitive to the difficulties facing unions attempting to recruit
members and secure petition signatures where they have no formal access to a
workplace. We note that in this case
many workers do not speak English as a first language and that many drive into
work, making it harder for the Union to approach them than if they were on foot.
38. The
Panel does not accept that the age of the petition renders it no longer
credible. The support signatures were
collected during a recruitment campaign ‘window’ at a time when the Union was preparing a voluntary approach
to the Employer for recognition (which did not succeed). The time lapse however does suggest a
reasonable explanation for some of the discrepancy between the names on the
petition and on the current list of employees, namely turnover. Some of those who signed the petition will
have left.
39. As
clearly stated in its constitution, the Staff Forum is not a negotiating body. In the absence of further evidence, we do not
accept that the revision and widening in scope of this body inevitably will
have led to a diminution of the support displayed in the petition for
recognition of the Union
for collective bargaining.
40. The
Case Manager’s check indicates that 37% of those in the proposed bargaining
unit expressed support for recognition of the Union for collective bargaining. It also shows 35% of the bargaining unit are
Union members.
41. Although
only around half of the Union members signed the petition, there is no evidence
to lead us to the view that Union members who did not sign the petition would
not be in favour of recognition of the Union for collective bargaining. It is not unusual for union members not to
appear among petition signatories; those who actually join the union may
consider that of itself demonstrates support for collective bargaining. Taking account of the context, the Panel
accepts the Union contention that workers in its proposed bargaining unit who
have joined the Union
are likely to be seeking benefits through recognition for collective bargaining
(or at least are likely to be supportive of it) rather than motivated by some
other possible benefit of membership. The
Union indicated evidence from the dates of
joining shown on the Union membership list that its membership in the
bargaining unit had increased during the period that the Staff Forum has
operated.
42. Nonetheless
it is of course possible that some of the 97 Union members whose names were not
on the petition may not favour recognition for collective bargaining. But it is also possible that among the more
than 200 employees in the bargaining unit who are not members of the Union and who did not sign the petition will
be some workers who would be in favour of recognition of the Union.
Some of these may not have been employed at the time the petition was
compiled. We are not required to guess
at the views of these workers and do not do so.
43. The
statute is clear. The Panel has to make
an informed assessment. Over half of the
workers in the Union’s
proposed bargaining unit (around 54%) are either Union members or non-members
who signed the petition. Even if we
allow for a degree of uncertainty of the kind just indicated, our assessment is
that, on the evidence before us, a majority of the workers constituting the Union’s proposed bargaining unit would be
likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of
the bargaining unit.
Decision
44. The
Panel is satisfied that the application is valid within the terms of paragraphs
5 to 9, is made in accordance to with paragraph 11 and is admissible within the
terms of paragraphs 33 to 42 of the Schedule.
The application is therefore accepted by the CAC.
Panel
Professor Linda Dickens, Chairman of the
Panel
Mr Eamonn Barry
Sir Bill Connor
8 May 2008
Appendix
Names of those who attended the hearing:
For the Union
Mr Nick Toms of Counsel
Ms Margaret Armstrong - Senior
Organiser
Ms Natalie Wardle - Polish Organiser
For the Employer
Ms Emma Smith of Counsel
Ms Sharon Goodman - Group HR and
Safety Manager
Mr Niall Sutherland - Distribution
Manager
Mr Mark Devereux - Warehouse Manager
Mr Will Nash - Solicitor