CENTRAL ARBITRATION COMMITTEE
TRADE
SCHEDULE A1 - COLLECTIVE BARGAINING:
RECOGNITION
DETERMINATION OF THE BARGAINING UNIT
The Parties:
Unite the
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,
tappers, 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
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 was chaired
by Professor Linda Dickens, CAC Deputy Chairman with, as Members, Mr Eamonn
Barry and Sir Bill Connor. The Case Manager
appointed to support the Panel was Nigel Cookson.
3. The
application was accepted on
4. The
parties then entered a period of negotiation in an attempt to reach agreement
on the appropriate bargaining unit but no agreement was reached. The parties were invited to supply the Panel
with, and to exchange, written submissions ahead of a hearing to determine the
appropriate bargaining unit. A hearing
was held on
Summary of the submission made by the Union
5. The
6. The
7. The
Employer had put forward three broad reasons why the
8. In
respect of the first point and the Employer's claim that there was "clear
integration between all functions across the site…’ the Union submitted that
there was no reason why a cleaner, picker or a worker from the Head Office was
any more integrated than in any other sort of business. There
was no mission statement that supported this claimed ethos, nor was there evidence
that it formed part of the Employer's induction process and in practice there
was very limited cross-working. The
Employer had been in business since 1992 and had been at the present site since
2007 but still it could not point to any evidence which set out what it claimed
to be its ethos of integration. If it
did not communicate this to the workers then the
9. The
Employer claimed that all of its workers were on the same basic terms and
conditions but the
10. The
third broad reason relied upon by the Employer was the nature and effectiveness
of the Staff Forum established for the purposes of information and consultation. The
11. The
12. The
drivers have a distinct skill set, responsibilities, terms and conditions and
working arrangements. Although the
13. The
14. The
15. Leading
hands had been excluded from the proposed bargaining unit on the understanding
that they perform supervisory duties. The
16. The
17. Addressing the remaining matters in
paragraph 19B(3) the Union noted that its proposed
bargaining unit comprised over 500 workers out of the 1,069 workers employed on
the site and submitted that this was not a small or a fragmented bargaining
unit. The number excluded also was not a
small number. Those excluded would not
be fragmented as they would include the three other divisions on site as well
as the supervisory and management grades from the warehouse.
18. The
workers in the
Summary of the submission made by the Employer
19. The Employer
submitted that the
20. At the
hearing the Employer stated that if the Panel did not accept its view that a
whole site bargaining unit was appropriate then it would still wish to argue
that the Union proposed bargaining unit was too narrow and would propose one which
included categories left out of the Union’s proposed bargaining unit, namely a
bargaining unit including distribution operatives, leading hands, supervisors, caterers,
cleaners and receptionists and warehouse operatives.
21. The Employer
explained that in moving to the Shirebrook site in April 2007 its objective was
to house its main business functions at the same location to maximise
efficiency and integration. This process
was best undertaken as one team working towards the same goals and the
inter-dependency of the sections was fundamental to the success of the
business. The single site resulted in the
workers being physically closer, making communications easier and improving
working practices and meeting more regularly leading to closer co-operation and
more effective management. Close
co-operation between the managers was vital to the running of the site given
the interlinking between departments. The
national training facility was also based above the retail outlet adjacent to
the Headquarters. Training on matters
such as Health and Safety was carried out at this location, as was training for
supervisors, managers and leading hands.
22. The headquarters
building was next to the warehouse overlooking the loading bays and workers
from all sections moved freely between the various areas of the building
interacting constantly and working together when needed. The Warehouse Manager and Distribution
Manager were both based in the Pod office within the warehouse from where the
entire warehouse and distribution operation was run
23. The
Employer’s ethos was one of inclusivity as reflected in its working practices,
contracts of employment, the site-wide Staff Forum and the physical structures on
the site. All workers were on the same
basic terms and conditions of employment and it would be difficult to manage workers’
expectations if the present structure was fragmented by artificial boundaries,
as would be the case with the
24. There was an
understanding that in busy times workers may be required to help out in other
sections, for example, picking stock in the warehouse, and this applied to head
office staff also. The Employer was
fully supportive of workers who wished to transfer from one role to another on
a permanent basis and encouraged such transfers between departments. It gave a number of examples of recent
transfers and explained that all of the workers involved would be excluded from
the
25. When either
the Warehouse Manager or the Distribution Manager was absent the other would
temporarily assume the role. At regular
intervals, therefore, one manager was responsible for the day to day running of
the majority of the site. Whilst based
in the Pod Office much of their time was spent in the main office facility and
both managers were also responsible for the area where the loading bays for the
HGV vehicles were located and in which the 166 distribution operatives and 68 loaders
commonly worked.
26. The Distribution
Manager was responsible for 268 staff not specifically categorised as distribution
operatives, a clear demonstration of the overlap between the warehouse and
distribution functions. A two-tier
divided workforce would be created by the
27. The Employer
detailed how each department worked together from the initial ordering of stock
to it being delivered to the warehouse, being unloaded, priced, scanned and
then placed on shelves ready for onward distribution to the retail outlets. It would then be picked from the shelves and
sorted by category and the specific retail outlet. Finally, loaders and the distribution operatives
placed the stock onto the HGV vehicles for the distribution operatives to transport
to the various retail outlets. The distribution operatives’ routes were set by
the Distribution Manager in consultation with the Retail Support Team but there
was also daily consultation between the loaders and the distribution operatives
to accommodate necessary changes in the routes.
28. The Union
proposed bargaining unit excluded distribution operatives, the IT staff, office
staff and cleaning, catering, administration and reception staff. The Employer argued that six distribution operatives
should be included on the basis that they transported stock around the site. The IT staff should also be included because,
as well as maintaining systems and equipment for the whole site, they also made
daily visits to the warehouse to test the scanning and pricing equipment. Office staff were also integrated into the
warehouse and distribution function and commonly assisted with various
warehouse duties. The cleaning,
catering, administration and reception staff, together with the warehouse and distribution
operatives, performed a fundamental role and all these workers interacted daily
providing a crucial support network to the main activities of stock selection,
buying, sorting, storage and transporting.
To exclude these workers would fragment the workforce and unnecessarily
alienate these fundamental teams within the site. The
29.
The
Employer understood the importance of common characteristics between workers
when considering appropriate bargaining units and, whilst accepting that case
law was illustrative only, drew attention to the CAC’s decision in National Union of Journalists and Bristol United Press Limited
(TUR3/3(2006)).
30. The Employer argued
that the
31. The Employer
contended that there was already in place an extremely successful and
comprehensive consultation, discussion and negotiation forum for the whole site
– the Staff Forum – and noted that the
Union’s proposed bargaining unit would exclude 507 workers currently
represented within the Forum. The Staff
Forum was set up in April 2007 and was revised and enhanced in February
2008. This restructuring was not the
result of the
32. The Forum Agreement
allowed workers the opportunity to raise any issues or concerns. Such issues included those which would be covered
by a statutory recognition agreement, namely pay, holiday and hours but, in
addition, it was a means to discuss and negotiate other issues, ranging from
staffing levels to health and safety. The
Forum was not a mechanism for ‘co-decision making’ nor did it take decision
making away from the Employer but it provided a mechanism for consultation,
negotiation and discussion on matters of mutual concern. The Forum Agreement contained an express
provision to enable the parties to refer to Acas any failure to reach agreement
in pay negotiations. The Forum
representatives were allowed time and provided with the equipment necessary to
discharge their duties. The Employer
stated that the Union had recognised the achievements of the Forum in its
Newsletters of 7 May 2008 and 12 June 2008 when it invited workers to use their
respective representatives to advance their views on the proposals to
management, which represented a departure from the Union’s earlier comments and
further demonstrated the clear success of the Forum as a negotiating body. The Panel was referred to Unite the Union and Harry Lawson Limited
(TUR1/620 (2008)) In that case the Panel had found that negotiations on behalf
of workers were carried out with the Works Committee.
33. The
34. The
35. The
36. The
Employer took issue with the Union’s submission on the disciplinary and
grievance procedure stating that it took place on departmental lines and
investigations were always carried out by managers with no connection to the
workers concerned and when questioned by the Panel, it explained that salaries
and pay rates were determined by market rates and were topped up with incentive
schemes. Warehouse rates were to be
reviewed in October and a bonus scheme, related to work performance and worth
10% of salary, was to start shortly. The
performance indicators for the leading hands and supervisors had yet to be
finalised. The Employer also confirmed
that all office and warehouse workers were paid an annual salary and that the
only workers on an hourly rate were the distribution operatives.
Considerations
37. The
Panel is required, by paragraph 19(2) of the Schedule to the Act, to decide
whether the 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.” Our decision has
been taken after careful consideration of the views of both parties as set out
in their written submissions and delivered orally at the hearing. We considered both CAC decisions referred to
us by the Employer but, as the Employer noted, we are not bound by decisions of
previous Panels and the cases had at best only slight relevance to the facts of
the case before us.
38. It
was clear to the Panel that the Company has worked hard to develop and deliver
an integrated operational facility at Shirebrook. We were provided with evidence relating to the
layout and operation of the site to support this, and there are a number of
features which appear innovative in the context of the sector. We were not convinced, however, that the
operational integration was accompanied by a single-site HR strategy. The operational integration did not appear, on
the evidence before us, currently to require,
or be accompanied by, either functional flexibility from employees (for example
regular working across skill categories or inter-changeability of roles) or
single status terms and conditions of employment which might make a bargaining
unit smaller than the whole site inappropriate. Although generic descriptions were used by the
Employer (e.g. ‘warehouse operatives’, ‘distribution operatives’) these broad
categories clearly included groups of workers distinguishable in terms of their
role, function and terms and conditions.
The Panel considered that the Union proposed bargaining unit is not
creating artificial divisions, as the Employer contended, but reflected
existing groupings and differences.
39. Although
the Employer stated there were common core terms and conditions of employment,
the documents presented were general in nature (without detail of actual terms
relating to pay, hours, holiday etc). It
was acknowledged by the Employer at the hearing that there were certain differences
in the bases and levels of pay, pay arrangements, hours and shift patterns
between those the
40. There
was a lack of supporting evidence for the Employer’s statement about the
existence of a ‘single site ethos’, although this is clearly an aim. As the
41. The
numbers and categories involved are such that the Panel does not accept the Employer’s
argument that the proposed bargaining unit is likely to result in small
fragmented bargaining units. Although numbers in certain categories excluded
from the proposed bargaining unit are small (catering staff, cleaners) they
could be included with other groups if necessary in the future. Other excluded groups – such as drivers delivering
from the site – are large enough for a viable separate bargaining unit.
42. The
Staff Forum is a site-wide body and we have given due weight to the Employer’s
arguments about the nature and effectiveness of this body and to the Employer’s
fears concerning adverse impact on it of union recognition for a smaller unit. The Panel does not accept the Employer’s
arguments that were the
43. Were
the Union proposed bargaining unit accepted then, as the Employer noted, at
senior management level individuals would have ultimate responsibility both for
staff within the proposed bargaining unit and those who would fall outside it. This is not unusual and the proposed
bargaining unit appears compatible with the existing management structure. The
44. In
its alternative proposal, however, the Employer argued that leading hands and
supervisors should be included in the bargaining unit. There were certain issues in dispute at the
hearing which were difficult to resolve in the absence of written job and role descriptions, procedures
and policies – for example regarding the disciplinary function of leading hands
and supervisors, and the extent to which leading hands undertook a supervisory
function, and so fell outside the Union proposed bargaining unit. We are clear that those termed ‘supervisors’
are appropriately excluded. In the
absence of agreement, and of clarity and
consistency in the employer evidence on whether the relatively small number of leading
hands exercised supervisory functions or not (and therefore whether they fell within
or without the Union proposed bargaining unit), the Panel attached some weight
to the fact that at a previous hearing (to determine acceptance) no objection had
been raised by the Employer to the removal of leading hands from the list of
those to be counted as within the Union proposed bargaining unit. (The issue
then was not whether their exclusion was appropriate but whether they were
covered or not by the bargaining unit the
45. The
Panel is not required to determine what might be the most appropriate or ‘ideal’
bargaining unit. We are required to decide whether the bargaining unit proposed
by the
46. We
find that the bargaining unit proposed by the
Panel
Professor Linda Dickens MBE, Deputy Chairman
Mr Eamonn Barry
Sir Bill Connor
Appendix
Names of those who attended the
hearing:
For the
Mr Rohan Pirani of Counsel
Mr Alan Tiplady – Senior Regional
Industrial Organiser
Ms Margaret Armstrong - Senior
Organiser
Ms Natalia Wardle - Polish Organiser
For the Employer
Mr Simon Devonshire of Counsel
Mr Will Nash - Solicitor
Mr Dave Forsey – Chief Executive Officer
Mr Niall Sutherland - Distribution
Manager
Mr Mark Devereux - Warehouse Manager
Ms Sharon Goodman - Group HR and
Safety Manager