Case Number: TUR1/623
[2008]
13 June 2008
CENTRAL ARBITRATION COMMITTEE
TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT
1992
SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION
DETERMINATION OF THE BARGAINING UNIT
The Parties:
GMB
and
Travis
Perkins
Introduction
1. The
GMB (the Union) submitted an application to the CAC,
dated 28 February 2008,
that it should be recognised for collective bargaining purposes by Travis
Perkins (the Employer). In its
application the Union described the proposed bargaining unit as “The hourly
paid employees employed to carry out manual duties or part manual duties , not
including employees employed solely for clerical or managerial duties employed
at Travis Perkins Trading Co Ltd, Forstal Road, Aylesford , Kent, ME2
7AG”. The CAC gave both parties notice
of receipt of the application on 29
February 2008. On 7
March 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 John Goodman as
Chairman of the Panel and Mr Peter Martin and Ms Lesley Mercer as Members of
the Panel. For the purposes of the hearing Mr Dennis Scard replaced Ms Lesley
Mercer. The Case Manager appointed to
support the Panel was Kate Norgate.
3. By a decision dated 3 March 2008 the Panel accepted the Union’s application. The Parties then
entered a period of negotiation in an attempt to reach an agreement on the
appropriate bargaining unit. As no
agreement was reached by the end of the relevant period, the parties were
invited to supply the Panel with, and to exchange, written submissions relating
to the question of the determination of the appropriate bargaining unit. A hearing was held on 4 June 2008 and the names of those who attended the hearing are
appended to this decision. In accordance
with paragraph 19 of Schedule A1 to the Act (the Schedule) the Panel’s task was
to determine first whether the Union’s proposed bargaining unit was appropriate and
then, if it was found not to be so, to determine another bargaining unit that
was appropriate. In order to accommodate
the hearing on 4 June 2008 and to allow time for the decision to be finalised,
the Panel extended the period in which it must determine the bargaining unit to
13
June 2008.
Summary of the Union’s Submissions
4. The
Union stated that its proposed bargaining unit covered
workers who carried out manual or part-manual duties and excluded managerial
and clerical staff.
5. The
Union explained that following the media coverage of the
scheduled closure of the Aylesford Mill, it was approached by a number of
workers who wished to join the Union. Those members specifically requested for the Union
to collectively bargain on their behalf and the Union
subsequently approached the Employer to request voluntary recognition at the Aylesford
Site.
6. The
Employer rejected the Union’s request for voluntary
recognition and the Union therefore pursued the
statutory route for recognition and subsequently submitted an application to
the CAC. The Union
stated that it had also, before submitting its application to the CAC, written
to the TUC to enquire as to whether there were any existing recognition
agreements within Travis Perkins, to which it received no response. It therefore did not believe there were any
existing national or local bargaining arrangements to consider.
7. The
Union stated that the workers in its proposed bargaining
unit worked at various locations within the Aylesford site and carried out
duties that included manual work either inside or outside the buildings. This group of workers was seen as a discreet
group by the nature of their duties. For
example, those workers faced a number of health and safety issues due to
machinery and manual handling requirements.
They also wore company supplied uniform, such as a high visibility
jacket, heavy duty trousers and safety footwear. They were not required to work in the sales
office because they had not had EPOS training.
Although they may be required to move within departments, they would
still undertake manual work.
8. The
Union explained that setting aside management, who were
excluded from its proposed bargaining unit, the other 10 exclusions consisted
of clerical and administrative staff, who were desk based and did not carry out
manual duties. These workers wore their
own clothes to work as they did not face the workplace issues of manual
workers. They were regarded as a different group of workers and this was
apparent from feedback received from members at the Aylesford site. The majority of the administrative and
clerical workers finished at 4pm but
the remaining workforce finished at 5pm. The Union asserted
that administrative and clerical workers could not be regarded as “multi task”
as the Employer had asserted. They were
not required to carry out manual work or driving duties. For example, an office worker, dressed in “office
wear” would not be expected to sweep the yard.
Administrative and clerical workers dressed accordingly to carry out
office work and they were not required to leave the office. The Union also
disagreed with the Employer’s statement that administrative and clerical
workers might be required to take and use safety clothing from the shop when
required to do manual work. The Union
contended that if an employee was working in an office they could not just
remove the safety clothing from the shop and they would also require safety
training first.
9. The
Employer had made a point that the job titles the Union
had excluded from its proposed bargaining unit were inconsistent. It had excluded some product leaders and
supervisors, as the Union believed these were
“non-manual” roles, but the Union had included other
product leaders and supervisors in its proposed bargaining unit. The Union explained
its rationale for such exclusions. In
the Union’s view some of the job titles did not reflect
what duties a worker carried out, but rather was solely for the purposes of
pay. The Union
stated that it was informed that the 2 product leaders it had excluded i.e. the
“Heavy Side Product Leader” and “Forest Product Leader” did not carry out
manual work. These were clerical or
administrative roles and those workers dressed accordingly.
10. In
response to questions from the Panel on why 2 “Transport Supervisors” were
excluded when other Supervisors were included, the Union stated that it was
also informed by workers at the site that the role of the “Transport
Supervisor” was a clerical role as they were office based, whereas the other
Supervisors carried out manual work. The
Union explained further that of the 3 exclusions with
“Administration” within their job title, the 2 “Administration Assistants” had
a purely clerical role and the “Senior Administration Assistant” only carried
out administrative duties. The Union
was unsure of why the “Counter Sales Assistant” was shown as being excluded on
a chart supplied by the Employer as part of the role included manual duties
such as being responsible for replenishing stock. The Counter Sales Supervisor role was
included in the proposed bargaining unit.
11. The
Union stated that the manual workers were not managed by
the clerical and administrative staff and the proposed bargaining was therefore
compatible with effective management.
12. The
Union explained that Travis Perkins local management had
the ability to vary pay awards locally and this would not be affected by the proposed
bargaining unit. The facility to vary pay at a local level would ensure that
the proposed bargaining unit was not detrimental to the pay of clerical and
administrative staff, as recognition of the proposed bargaining unit did not
mean Travis Perkins would necessarily treat clerical and administrative staff
less favourably. The Union believed the Employer would
be vigilant in avoiding this problem.
13. The
Union asserted that the proposed bargaining unit was
only removing clerical and Managerial staff and would not create small
fragmented groups of workers. The characteristics of the workers in the
proposed bargaining unit were the same and would not create problems amongst
themselves or on the site.
14. The
Union stated that it was informed by a previous shop steward at the Aylesford
site that there was a recognition agreement on site with another union 20 years
ago and that it was identical to the bargaining unit it was proposing.
15. The
Union explained that it met with the Employer on 30 April 2008 at which an Acas
Advisor was present and it had considered the Employer’s proposal to have a
bargaining unit consisting of “all general staff” i.e. all staff (excluding
management), at the Aylesford site, who were on a general contract but it believed
this would cause problems as all administrative and clerical staff viewed
themselves as staff restricted to office duties. It believed the Employer was seeking what
it considered to be the most desirable bargaining unit. That proposed by the Union
was entirely consistent with effective management.
16. In
its closing statement the Union stated that on the basis
of the above information the Union believed its proposed
bargaining unit was clearly a distinct group of workers and one that was
neither small nor fragmented. It
therefore believed it was appropriate, effective, and compatible with effective
management.
Employer’s Submission
17. By
way of background the Employer explained that its group of companies had over
1,195 branches and stores nationwide. Within the group there were the
Employer's builders merchants which accounted for 601 of the total group
locations. The Aylesford Branch and
Timber Mill ("the Aylesford Branch") was one example of the
Employer's builders merchants and currently employed a total of 77 workers,
comprising 67 General Staff and 10 Management.
18. Aylesford was one of the few
locations that had a timber mill linked with the branch but due to
rationalisation of timber milling activity across the Employer's group, the
Aylesford Mill was scheduled to close at the end of July 2008. As a result, 26 employees
at both the Aylesford branch and Mill had received notice of redundancy. The
Employer
clarified for the Panel that due to the redevelopment of the site the redundancies
were spread across the branch and covered those workers on the Employer’s chart
as set out in the following paragraph.
19. The
Employer provided with its submission a current list of all 77 employees at the
Aylesford Branch. The Employer explained that during discussions with ACAS, the
Union provided a list of roles that it believed were
'non-manual' in nature and therefore should specifically be excluded from the
proposed bargaining unit and these were incorporated into the chart. For ease of reference, the chart identified
by colour code the following.
- Roles
that the Union had included in its proposed
bargaining unit were not highlighted
- 10
Management roles that the Union had excluded from
its proposed bargaining unit were highlighted in red
- Roles
that the Union believed were 'non-manual' in nature
and therefore should specifically be excluded from its proposed bargaining
unit were highlighted in blue. They
were: heavy side product leader; Senior sales assistant; administration
assistant; senior administration assistant; forest product leader;
transport supervisor; and counter sales assistant.
- Roles
that the Union had included in its proposed
bargaining unit but the Employer believed proved inconsistent against
those roles the Union had excluded were highlighted
in green and were: Warehouse
Supervisor; Counter Sales Supervisor; P&H Product Leader; and Tool
Product Hire.
20. The Employer explained that typically, a
builder's merchant branch was headed up by a manager and an assistant manager.
Each branch would have a number of departments including transport (drivers),
yard sales, shop/counter sales, administration and tool hire. Within a shop/counter sales team it was
common to find individuals who had an in depth knowledge of a certain product
line. These individuals were called 'product leaders' and their deep knowledge
could cover, for example, plumbing and heating products, timber products, heavy
building materials or lighter building materials, etc.
21. The Employer asserted that contrary to
the Union’s view, at the operational level, there was a
degree of flexibility at each branch. As such, it was not uncommon for staff in
different departments to cover for each other. For example, a staff member in
yard sales could cover for someone in the shop/counter sales team and vice
versa.
22. The Employer submitted that it had
considered the Union's proposed bargaining unit but did
not believe that it was an appropriate bargaining unit in the
circumstances. All employees at the
Aylesford Branch were split into two categories, either General Staff or
Management. (The Employer provided with its written submission a copy of both
the General
Staff and Management employment contracts.)
All General Staff were paid monthly and received, and were covered by,
the same statement of terms and conditions, which included (but was not limited
to) terms that related to holiday entitlements, eligibility for sick pay/leave,
notice entitlement and overtime rates. Furthermore, salary reviews for all
General Staff took place at the same time annually (1 January) and a Colleague
Bonus Scheme with the same rules and payouts for all General Staff had just
been launched.
23. In response to questions from the Panel
the Employer explained in greater detail the method of determining pay
increases; the basis of the grading system; responsibility for administering
discipline on site; hours and distribution of overtime; pensions and the bonus
scheme; and the issue around “hourly paid” as stated in the Union’s definition
of its proposed bargaining unit:
a) Method of
determining pay increases - Every year when pay is budgeted the board cascade
down what pay expectations there would be.
Structuring pay increases would be determined by management discretion
locally.
b) The basis of
the grading system - Grades were applied across the group, with salary bands
for each grade. Each job title was
linked into the grade, with the alphabetical listing being in grade
seniority. There were two Plant
Operators, who were graded differently because local management could override
the system if they had the same job title but the task, role or level of
experience was different.
c) The responsibility for administering
discipline on site - The customary practice for discipline and warnings was set
out in the Employee Handbook and covered verbal, written and formal
warnings. For example, issuing a formal
warning would be the responsibility of the Assistant Branch Manager, whereas
dismissal would fall to the Branch Manager to administer. Where there was “Senior” within a job title
they would not required to be administer discipline.
d) Hours - All
workers on a General Contract of Employment worked a 45 hour week with the
exclusion of the 3 clerical workers with “Administration” within their job title,
who worked a 40 hour week.
e) Hours and distribution of overtime - Although
those workers highlighted in red on the Employer’s chart were responsible for
allocating overtime, the ultimate decision on levels of overtime fell to the
Assistant Branch Manager or the Branch Manager.
f) Pensions -
Whether a worker was management or general staff they were all invited to join
the “money purchase direct contributions scheme”.
g) Bonus scheme
- The Employer had recently introduced an annual “all colleague bonus scheme”
whereby all general contract staff at the site were subject to the same bonus
with the same target. The bonus was
equal in absolute terms and the scheme was introduced across the board
nationally.
h) The issue around “hourly paid” as stated in
the Union’s definition of its proposed bargaining unit –
The Employer said that workers were salaried, and had a set number of
contractual hours. An hourly rate was
derived to calculate overtime payments. There
were no layoff clauses within the contract.
24. The
Employer stated that within the general staff group, there was no
differentiation between manual and non-manual employees. It did not understand or agree with the Union's
proposal to differentiate between what the Union
described as 'manual' and 'non-manual' employees in its proposed bargaining unit.
There was no logic behind such a distinction and it was not an easy one to make
taking into account the various roles and flexible ways of working that existed
within the Aylesford Branch. For example,
the Union had stated that some product leaders and
supervisors were 'non-manual'. There
were however other product leaders and supervisors (the Employer referred back
to its chart and to those workers highlighted in green) which were included within
the Union’s proposed bargaining unit. It was also not uncommon for product leaders
to work in the yard or go out on deliveries (i.e undertake 'manual' work). The
Employer asserted that it was therefore concerned that the Union’s
proposed bargaining unit lacked clarity and that such ambiguity would cause
issues in the future should the Union be successful in
achieving recognition. In the Employer's
view this was highly undesirable.
25. The Employer stated that it had tried to
discuss with the Union the rationale behind its proposed
bargaining unit, the distinction between manual and non-manual workers and
requested its comments on the Employer's view that an appropriate bargaining
unit would consist of all General Staff. The Employer asserted that on each
occasion the Union
had not responded to such queries.
26. The Employer contended that on the basis
that all General Staff were on the same terms and conditions of employment, it
believed that it would be divisive and counter productive to good employee
relations and result in management difficulties if it was to differentiate
between what the Union believed to be 'manual' and 'non-manual' employees
within the General Staff category.
27. Furthermore, the Employer firmly believed
that a fragmented workforce (and bargaining units) would lead to management
difficulties, and this would be contrary to the overriding principle that the
bargaining unit should be compatible with effective management.
28. The Employer submitted that its proposed
bargaining unit included all staff at the Aylesford Branch who were on a
General Staff contract. This encompassed an additional 10 staff (those
highlighted in blue on the Employer’s chart) within the bargaining unit,
resulting in a total of 67 workers within the bargaining unit. By including all General Staff within the
bargaining unit it would more accurately reflect the way that it differentiated
its employees, not just at the Aylesford Branch in particular but across the
group more generally.
29. Finally,
the Employer asserted that if the Panel were to accept its proposed bargaining
unit i.e. to extend the Union's proposed bargaining
unit, the issues highlighted above would be resolved.
Considerations
30. The Panel is required, by paragraph 19(2)
of the Schedule, to decide whether the Union’s 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) state 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.”
31. The
Panel’s first responsibility is to decide whether the Union’s
proposed bargaining unit is appropriate.
32. The
Union relied upon the division between manual and
non-manual workers. It put a case that
its objective was to represent workers that were involved with manual/part
manual work on the site and this was in response to a demand for such
representation. However, the Employer
was able to demonstrate that a number of workers involved in what the Union referred
to as “clerical” work were without good reason excluded from its proposed
bargaining unit. This could largely be
attributed to the Union’s lack of detailed knowledge
about the specifics of individual job roles carried out on the site. The Panel
finds that the Union’s proposed bargaining unit is not
compatible with effective management because having assessed the evidence
available to it, the Panel considers that the line drawn by the Union
between manual, part-manual and non-manual duties is unclear in its application
and indistinct at its margin.
33. The Panel then considered further the
suggested bargaining unit put forward by the Employer. The Panel is not persuaded by the Employer’s
case that the bargaining unit should be extended to include all staff at the
Aylesford Branch who are on a general staff contract. This proposed bargaining unit encompasses an
additional 10 workers highlighted in blue on the Employer’s chart and as listed
in paragraph 19 above. The Employer was
unable to demonstrate that all 10 workers carry out manual or part manual
duties. It did however demonstrate that
7 of those 10 workers listed, whose job titles include “sales”, “sales
assistant”, “supervisor” or “leader”, do have a degree of flexibility in their duties and may at times
be required to assist in the yard, go out on deliveries, or provide cover for
someone in the shop/counter sales team.
The Employer also clarified that those 7 workers are all contracted to
work a 45 hour week as are the other workers at the Aylesford branch, excluding
management.
34. The
remaining issue is whether the administrative roles should be included within
the bargaining unit. The Panel is not
persuaded that these roles, namely “Administration Assistant” and “Senior
Administration Assistant” should be included.
Evidence from both Parties show that these workers have a purely
clerical role, and would not normally be required to assist in the yard. These workers are also the only workers
within the Aylesford branch who are contracted to work a 40 hour week. Overall, the Panel think it appropriate
to exclude the administrative staff from the bargaining unit in this case.
35. For these reasons the Panel has concluded
that firstly the Union’s proposed bargaining unit is not
an appropriate bargaining unit, and secondly the bargaining unit proposed by
the Employer is also not an appropriate bargaining unit. After considering all the evidence the Panel think it appropriate to include within
the bargaining unit those roles, whose job title include “sales”, “sales
assistant”, “supervisor” or “leader”, and to exclude those remaining workers
whose job title includes “administrative” or who are management.
36. The
Panel has taken into account in reaching its decision the matters listed in
paragraph 19B(3) of the Schedule so far as they do not conflict with the need
for the bargaining unit to be compatible with effective management in
particular the desirability of avoiding small fragmented bargaining units
within the undertaking. The Panel has also
taken into account all the views of the parties as summarised in this
decision. The Panel is satisfied that
there are no operative national or local agreements covering the Company’s
employees at Aylesford, and that there are no other relevant issues relating to
the characteristics of the workers or to location beyond those which it has
taken into account.
Decision
37. The
appropriate bargaining unit is “all
employees at the Aylesford site excluding management, administrative assistants
and senior administrative assistant.”
38. As the appropriate
bargaining unit differs from the proposed bargaining unit, the Panel will
proceed under paragraph 20(2) of the Schedule to decide if the application is
invalid within the terms of paragraphs 43 to 50 of the Schedule.
Panel
Professor
John Goodman (Chairman)
Mr
Peter Martin
Mr
Dennis Scard
13 June 2008
Appendix
Names of those who attended the
hearing:
For the Union
Mr Brendan Kemp – GMB
Organiser
For the Employer
Mr Chris Davies
– Group Head of HR Shared Services
Ms Hillary Tysoe – Travis Perkins HR Business Partner