TUR1/249/2003

 

21 January 2005

 

Trade Union and Labour Relations (Consolidation) Act 1992

 

Disclosure of Information Complaint under section 183 and

 

Consideration under paragraph 32 of Schedule A1

 

The Parties

 

Unison

 

and

 

Craegmoor Healthcare Limited (trading as Parkcare Homes Limited)

 

Introduction

 

  1. Unison (the Union) presented a letter of complaint to the Central Arbitration Committee (CAC) dated 23 September 2004 about difficulties with the implementation of the recognition agreement agreed between the parties subsequent to the CAC’s declaration of recognition under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (the Schedule). The Union requested that the CAC assist the parties with their voluntarily agreed method of collective bargaining in accordance with paragraphs 31 and 32 of the Schedule.  The Union also complained that Craegmoor Healthcare Limited (trading as Parkcare Homes Limited) (the Employer) had not disclosed to it information for collective bargaining purposes as required by section 181 of the Trade Union and Labour relations (Consolidation) Act 1992 (the Act). The Union stated that it had requested information more than two months previously but had received no response from the Employer.

 

  1. The Chairman of the CAC, in accordance with section 263 of the Act, appointed a Panel to consider the complaints and the request. The Panel consisted of Professor John Goodman CBE as Chairman with Mrs Judy McKnight and Mrs Jackie Patel as members. For reasons of availability Mrs Patel was replaced by Mr Simon Faiers for the purposes of the subsequent hearing. The Case Manager appointed to support the Panel was Matt Penfold.

 

 

 

 

 

 

 

  1. The Union’s complaint gave rise to two questions that have ultimately required Panel decisions. The two questions, as stated in paragraph 1 above, fell under different legislative authorities although one hearing, that of 12 January 2005, was held to assist the Panel’s consideration of the two questions. The Panel’s decision on the Disclosure of Information complaint (see separate decision reference DI/TUR1/249/2003 dated 21 January 2005) gives a full account of the background and chronology of events relevant to these two questions and summarises the evidence and submissions of the parties. That decision should be read in conjunction with this decision.   

 

Considerations

 

  1. The Panel has given full and careful consideration to all the evidence presented to it. This includes the correspondence and documents received to date in this case, the written statements provided for the hearing and the oral submissions made and answers to questions by the parties at the hearing. Having considered the evidence and the requirements of sections 181 to 183 of the Act, the requirements of paragraphs 30 to 32 of the Schedule, and having had regard to the provisions of the Code of Practice on the Disclosure of Information to Trade Unions for Collective Bargaining Purposes the Panel has reached its decisions first on the Union’s complaint of failure to disclose information and secondly on the Union’s request for assistance with the method of collective bargaining. This written decision sets out the Panel’s decision in the second matter only, as indicated orally to the parties at the conclusion of the hearing on 12 January 2005.

 

Decision on request for assistance under paragraph 32 of the Schedule

 

  1. Neither of the parties has attempted to persuade the Panel that the voluntarily agreed procedural agreement has been adhered to. The parties acknowledge that there has been a failure to carry out the agreement though they differ on which of them is responsible for the failure and they differ on what the remedy for the failure should be.  The Employer submits that it and the Union should resume their direct negotiations and sort things out for the future between themselves. The Union submits that the CAC should now specify a legally enforceable method of collective bargaining as is provided for under paragraph 31 of the Schedule.

 

  1. The Panel’s decision is that the Recognition and Procedural Agreement has not been followed, and the Union’s complaint under paragraph 32(1) is therefore upheld.  It is the Panel’s view that both parties have failed to comply with some of the provisions of the Procedural Agreement.  The failure of the Employer in relation to the disclosure of information has been set out above.  The Union did not initiate the collective bargaining procedure in the way envisaged by the Agreement, albeit the Union has argued that it was unable to do so due to the failure of the Employer to disclose appropriate information.  Other provisions, including the time limits set out for the stages, have not been applied.  The Panel was not persuaded by the Employer’s argument that, by continuing with the negotiations for the October 2004 review, both parties were in effect tacitly accepting that the failures to comply with the provisions of the Procedural Agreement in detail were either being overlooked or mutually accepted.  No evidence was offered that either party stated this explicitly to the other, even informally. 

 

  1. In the absence of a willingness on the part of the Union to agree the Employer’s submission on how the parties should now proceed, the Panel must act as required by the Schedule. The Schedule, at paragraph 32(1)(c), stipulates that if the parties agree a method by which they will conduct collective bargaining and one or more of the parties fails to carry out the agreement then the parties may apply to the CAC for assistance. This is what happened when the Union wrote to the CAC with its letter dated 23 September 2004. Paragraph 31 of the Schedule states that if it is asked for its assistance the CAC must, in the 20 working days starting with the day following the CAC’s receipt of the request for assistance, attempt to assist the parties to reach agreement on a method of collective bargaining.  Failing such an agreement being reached, the CAC must then specify the method of collective bargaining by which those parties will conduct their bargaining. The parties can jointly request that the CAC stops taking such steps at any time up to the point at which the CAC specifies the method; the CAC would comply with such a request.

 

  1. As stated above, in the present case there has been a failure to carry out the agreement by both parties. There was no joint request from the parties to extend the period within which the CAC can help them to reach further agreement; the 20 working day agreement period therefore expired on 21 October 2004.  The CAC will now invite submissions from the parties on what they want to be included in the specified method. The submissions will be required for 1 March 2005. Paragraph 168 of the Schedule requires that in specifying the method the CAC must take into account the “Trade Union Recognition (Method of Collective Bargaining) Order 2000 (Statutory Instrument 2000/1300)” (the Statutory Instrument) departing from it to such extent as the CAC thinks it is appropriate to do so in the circumstances.

 

  1. Therefore the parties have the option in their current negotiations to make a joint request that the CAC does not proceed with specifying the method of collective bargaining but, should they not exercise that option, the CAC will, after 1 March 2005, specify the method of collective bargaining taking account of the Statutory Instrument and of the parties’ submissions.

 

Panel

 

Professor John Goodman CBE

 

Ms Judy McKnight

 

Mr Simon Faiers

 

21 January 2005