Case Number: TUR1/338(2004)

07 April 2004

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON FORM OF BALLOT

The Parties:

GMB

and

Tristar Cars Ltd.

Introduction

1. GMB (the Union) submitted an application to the CAC dated 15 January 2004 that it should be recognised for collective bargaining by Tristar Cars Ltd (the Company) in respect of a bargaining unit comprising ‘[d]rivers operating from control centres in West Drayton, Crawley and Slough’. The CAC gave both Parties notice of receipt of the application on 20 January 2004. The Company submitted a response to the CAC on 27 January 2004 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 Gillian Morris, Panel Chairman, and as Members, Mr Rod Hastie and Mr Simon Petch. The Case Manager appointed to support the Panel was Nigel Cookson.

3. The CAC Panel had extended the acceptance period in this case on two occasions. The initial period expired on 3 February 2004. The period was extended until 13 February 2004 in order to allow time for a membership and support check to be undertaken, for the Parties to comment thereon and for the Panel to consider such comments before reaching a decision. The period was further extended until 12 March 2004 in order to allow time for a hearing to take place and for the Panel to reach its decision.

4. By a decision dated 12 March 2004, the Panel accepted the Union’s application. The Parties agreed, prior to acceptance, that the proposed bargaining unit was correctly described as drivers controlled centrally from the Company’s West Drayton Headquarters. The Parties subsequently agreed the bargaining unit, and this was the same as that proposed by the Union subject to the amended wording above. The Union did not claim that a majority of the workers constituting the bargaining unit were Union members, so the Panel gave notice to the Parties that it intended to arrange for the holding of a secret ballot. The Parties were notified accordingly and were advised that the Panel would wait until the end of the notification period of ten working days, as specified in paragraph 24(5), before arranging a secret ballot. The Parties were also asked for their views on which form the ballot should take.

5. The notification period under paragraph 24(5) of the Schedule ended on 30 March 2004. The CAC was not notified by the Union or by both Parties jointly that they did not want the ballot to be held, as envisaged by paragraph 24(2). Accordingly, the Panel will proceed with arranging a secret ballot.

Union’s submissions on the form of ballot

6. In a letter dated 29 March 2004 the Union stated that it had discussed the form of ballot with the Company and that the Parties had reached agreement that the ballot take the form of a postal ballot over a 21 day period. The Union claimed that the Parties had also discussed setting a cut off date to determine which workers in the bargaining unit received a ballot paper. The Parties had agreed that such a date would need to be set but had not decided what that date should be.

Company’s submissions on the form of ballot

7. In an e-mail to the Case Manager dated 30 March 2004 the Company stated that it had had preliminary discussions with the Union and that the Parties had reached a broad consensus on the nature of the ballot. The Company attached to its e-mail its proposed access agreement, not as yet agreed by the Union, which set out its proposal that the ballot be a postal ballot with a 21 day balloting period.

Considerations

8. In deciding the form of the ballot (workplace, postal or a combination of the two methods), the CAC must take into account the following considerations specified in paragraphs 25(5) and (6) of the Schedule:

(a) the likelihood of the ballot being affected by unfairness or malpractice if it were conducted at a workplace;

(b) costs and practicality;

(c) such other matters as the CAC considers appropriate

9. The Panel, having considered the views of the Parties and the factors specified in paragraphs 25(5) and (6) of the Schedule, finds that a postal ballot would be the most appropriate form of ballot.

Decision

10. The decision of the Panel is that the ballot be a postal ballot.

11. The name of the Qualified Independent Person appointed to conduct the ballot will be notified to the Parties shortly as will the period within which the ballot is to be held.

12. Paragraph 25(3)(a) states that the ballot must be completed within the period of 20 working days starting with the day after that on which the qualified independent person is appointed or such longer period as the CAC may decide. Notwithstanding the agreement reached by the Parties the Panel is not satisfied that there are any special reasons to justify the granting of an extension to the balloting period.

13. The Panel notes that the Parties have reached agreement that there should be a cut off date after which any worker joining the bargaining unit would not be entitled to vote in the ballot. The Panel would comment that the Schedule makes no provision to exclude workers that join the bargaining unit after a date agreed by the Parties from participating in the ballot as envisaged by the Parties in this instance. It is a statutory duty under paragraph 26(4)(b) that the Company, during the balloting period, informs the CAC of the names and addresses of all workers who join the bargaining unit after the Company has complied with its statutory duty under paragraph 26(4)(a). Likewise the Company has a statutory duty under paragraph 26(4)(c) to inform the CAC of any worker whose name has been given to the CAC under paragraph 26(4)(a) or (b) but who ceases to be within the unit. Paragraph 26(5) provides that as soon as reasonably practicable after the CAC receives any information under paragraph 26(4) it must pass it on to the person appointed to conduct the ballot. It would therefore be inconsistent with the statutory scheme for the CAC to take account of any agreement between the Parties for a cut-off date in the arrangements to be made for the holding of the ballot.

Panel

Professor Gillian Morris, Panel Chairman

Mr Rod Hastie

Mr Simon Petch.

07 April 2004