Case
Number: TUR1/620/(2008)
CENTRAL ARBITRATION COMMITTEE
TRADE UNION AND LABOUR RELATIONS
(CONSOLIDATION) ACT 1992
SCHEDULE A1 - COLLECTIVE BARGAINING:
RECOGNITION
DECISION ON WHETHER THE APPLICATION IS
VALID FOLLOWING
DETERMINATION
OF THE BARGAINING UNIT
The Parties:
Unite the Union
and
Harry Lawson Limited
Introduction
1. Unite
the Union (the Union) submitted an application to the CAC on 22 February 2008,
that it should be recognised for collective bargaining purposes by the Harry
Lawson Limited (the Employer) in respect of a bargaining unit comprising “drivers at the Baluniefield
Depot”. The CAC gave both parties notice
of receipt of the application on 25 February 2008. On 29 February 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
consider the case. The Panel consisted
of Professor Kenny Miller, Panel Chairman, and, as Members, Mr Dennis Cameron
and Mr Mike Regan. The Case Manager
appointed to support the Panel was Sarah Kendall.
3. By
a decision dated 20 March 2008 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. However, no agreement was reached
and so the parties were informed that a hearing would take place at which the
bargaining unit would be determined. The
parties were duly invited to supply the Panel with, and to exchange, written
submissions relating to the question of the determination of the appropriate
bargaining unit and a hearing was held in Edinburgh on 1 May 2008.
4. In a decision promulgated on 28 May 2008, the Panel decided
that the appropriate bargaining unit should be one that comprised drivers and
workshop employees based at the Baluniefield Depot,
Dundee. This bargaining unit differed from
that originally proposed by the Union by the inclusion of workshop employees.
5. As the determined bargaining unit differed from that
proposed by the Union the Panel is required by paragraph 20 of the Schedule to
determine whether the Union’s application is valid or invalid within the terms
of paragraphs 43 to 50.
Membership Check
6. To
assist the determination of two of the validity criteria, namely whether 10% of
the workers in the determined bargaining unit were members of the Union and
whether a majority of the workers in the determined bargaining unit were likely
to support recognition of the Union, the Panel proposed that the Case Manager
conducted a check of the level of Union membership within the new unit. Both parties agreed that the Employer would
supply, to the Case Manager, a list of the names of workers within the
determined bargaining unit and that the Union would supply, to the Case
Manager, a list of Union members within that unit to enable a comparison to be
undertaken. Both parties provided the
CAC with lists of information on 30 May 2008.
It was explicitly agreed with both parties that, to preserve
confidentiality, the respective lists would not be copied to the other party
and that agreement was confirmed in a letter from the Case Manager to both
parties dated 29 May 2008. A report of
the result of the check of the membership level was circulated to the Panel and
the parties on 2 June 2008.
7. No
additional checks were carried out by the Case Manager to verify the
information supplied by the parties.
8. The
list supplied by the Employer indicated that there were 60 workers in the new
bargaining unit. The list supplied by
the Union contained 26 names. According
to the Case Manager’s report, the number of Union members common to both lists
was 25. Based on a total figure of 60
workers in the bargaining unit, this constituted a membership level of
41.66%. In a letter dated 2 June 2008,
both Parties were invited to supply the Panel with written submissions relating
to the membership report and the validity tests.
Views of the parties
9. In
a letter dated 4 June 2008 the Employer stated that it did not wish to comment
on the content of the membership check report.
Although the Employer did not make any submission on the validity
criteria (as set out in paragraph 5) it went onto state that it understood that
a ballot would now be required given that the Union did not have a majority
membership in the determined bargaining unit.
10. The
Union, in a telephone conversation with the Case Manager on 5 June 2008, confirmed
that it did not wish to make any comment in relation to the membership check
report. Furthermore, that there was no
reason why the application should not proceed to a ballot.
Considerations
11. The
Panel is satisfied on the evidence available that the application is valid in
terms of the tests laid down in paragraphs 44 and 46 to 49 of the Schedule,
namely that there is no existing recognition agreement in force covering any of
the workers in the determined bargaining unit, that there is no competing
application and that there has been no previous application to the CAC in
respect of the determined bargaining unit.
The remaining tests to be considered by the Panel are whether, in
accordance with paragraphs 45(a) and (b) of the Schedule, 10% of the workers
constituting the determined bargaining unit are members of the union and that a
majority of those workers would be likely to favour recognition of the union as
entitled to conduct collective bargaining on behalf of the bargaining unit.
12. In
respect of the first test of whether union members constitute at least 10% of
the workers in the bargaining unit, the Case Manager’s check conducted on 2
June 2008 established that 41.66% of the workers in the determined bargaining
unit were members of the Union. The Case
Manager’s report thus shows that the Union’s membership in the determined
bargaining unit easily satisfies the 10% test set out in paragraph 45(a).
13. The
second issue for the Panel to consider is whether, pursuant to paragraph 45(b),
a majority of workers constituting the 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
regards a union’s membership as indicative of support for recognition. Notwithstanding the increasingly wide range
of services currently offered by trade unions, in the absence of evidence to
the contrary, an individual who has joined a trade union is, generally
speaking, likely to be in favour of the union negotiating with the employer on
pay, hours and holidays.
14. Therefore,
for the reasons given, the Panel accepts that the level of Union membership
does provide, in the absence of evidence to the contrary, an indication of the
views of the workers in the determined bargaining unit.
15. Accordingly,
the Panel is satisfied that the majority of workers constituting the determined
bargaining unit would be likely to favour recognition of the Union as entitled
to conduct collective bargaining on behalf of the bargaining unit and therefore
the test set out in paragraph 45(b) is satisfied.
Decision
16. The decision of the Panel is that the
application is valid for the purposes of paragraph 20 of the Schedule and the
CAC must proceed with the application.
Panel
Professor Kenny Miller
Mr Dennis Cameron
Mr Mike Regan