TUR1/339/(2003)

10 May 2004

 

 

CENTRAL ARBITRATION COMMITTEE

 

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

 

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

 

DETERMINATION OF THE BARGAINING UNIT

 

 

The Parties:

 

 

ISTC

 

and

 

PREMIER TRADE WINDOWS (WALES & WEST) LTD trading as

PREMIER TRADE FRAMES

 

 

Introduction

 

1.      The ISTC (the Union) submitted an application to the CAC dated 28th January 2004 that it should be recognised for collective bargaining by Premier Trade Frames (the Company) for all weekly paid manual shopfloor employees including lorry drivers and cleaners, and excluding charge-hands, deputy charge-hands, clerical, administration, sales and managerial staff located at Western Industrial Estate, Caerphilly.  The CAC gave both parties notice of receipt of the application on 29th January 2004.  The Company submitted a response on 2nd February 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 deal with the case. The Panel consisted of Ms Mary Stacey, Panel Chairman, and, as Members, Mr Simon Faiers and Mr Joe O’Hara. Following Mr O’Hara’s resignation from the CAC Dr Elizabeth Allen was appointed as a member of the Panel.  The Case Manager appointed to support the Panel was Mr Scott Spencer.  Following Mr Spencer’s departure from the CAC Mr Roshan Kamall was appointed as case manager.

 

3.      By a decision dated 2nd March 2004, the Panel decided that the Union’s application was both valid and admissible and therefore should be accepted by the CAC.  The Parties were unable to reach an agreement on the appropriate bargaining unit. The Panel invited both Parties to attend a hearing and to provide the Panel with, and exchange, written submissions relating to the question of the determination of the appropriate bargaining unit. A hearing was held on 30th April 2004 in London and the names of those who attended are appended to this decision.

 

 

Summary of the Submission made by the Union

 

4.      The Union submitted that its proposed bargaining unit was a ‘traditional’ unit and made industrial common sense as well as being fully compatible with effective management. The Union explained that its proposed unit constituted a natural constituency of those workers employed within the Company whose skills and experience were different to those of the employees who were outside the proposed bargaining unit. They also considered that such a constituency was commonplace throughout the manufacturing industry. The Union stated that there were no cultural or organisational reasons to suggest that its proposed bargaining unit was not consistent with effective management. The Union expressed the view that its proposed bargaining unit was consistent with those matters listed in paragraphs 19 of Schedule A1.

 

5.      The Union argued that the clerical and administrative staff had a different pay banding structure to those workers in the proposed bargaining. The Union stated that those workers within the bargaining unit were all on a nine point pay band and that movement up this band was dependent on the level of skills and experience workers displayed at their annual appraisal. The Union also stated that the workers within the proposed bargaining unit had different needs and concerns to those outside the unit and that management had recognised this as being the case when setting up the works committee that had recently come into being.

 

6.      The Union further argued that it was only right that charge-hands and deputy charge-hands were excluded from the bargaining unit since these individuals have first point line manager responsibilities and are involved in grievance and disciplinary issues. The Union stated that the Company thought of the charge-hands and deputy charge-hands as being different from the workers in the bargaining unit and that this was demonstrated by the fact that these individuals were issued with a different coloured polo shirt from the rest of the workforce and did not, as a matter of course, ‘get their hands dirty’. The Union also stated that the Charge-hands and deputy charge-hands were on a pay scale that was above the nine point pay band for the workers in the bargaining and that this was necessary to reflect the extra responsibilities that these individuals had.

 

7.      The Union argued that those workers that fell outside of the proposed bargaining unit had different skills and training needs from those within the bargaining unit and that these were reflected by the differing pay scales.  They further argued that those workers employed as depot assistants were located remotely from the workers within the bargaining unit and were on differing rates of pay to reflect the labour markets in the areas where they worked.

 

8.      In their closing statement the Union modified its position and accepted that the deputy charge-hands naturally fell within the proposed bargaining unit since they only stood in for charge-hands in their absence.  The Union maintained, however, that the charge-hands, by nature of their responsibilities, could not be part of the bargaining unit.  The Union re-iterated that the bargaining was compatible with effective management and would not be a small and fragmented unit.  The Union stated that the different pay bands for clerical and administration staff and for production staff showed that in reality the Company already treated these as two distinct and separate groups of workers.   The Union also argued that the fact that clerical and administration workers did not attend any of the works committee meetings, and had not even nominated a representative to this committee, showed that they themselves thought that they were separate from the production workers with differing needs and concerns. 

 

 

Summary of the Submission made by the Company

 

  1. The Company stated that it has been in business for 21 years and that in all of that time there have been no industrial relations issues and there is a very good relationship with staff.  The Company also stated that they treat all workers equally and therefore the only appropriate bargaining unit was one that included all staff up to senior management. The Company stated that all staff were employed on the same terms and conditions and that as a result of the recent cost of living pay review everyone received a 3% rise. 

  2. The Company stated that they have moved away from an ‘us and them culture’, if indeed there ever was such demarcation within their Company, and that everyone is thought of as being an equal and that this was demonstrated by the fact that during busy periods administration staff help out on the production line to ensure that deadlines are met. It accepted that the pay structure differed between production staff and clerical and administration staff but stated that this reflected the market place that the Company operated in. The depot assistants who are employed at satellite outlets around Wales and the South and South West of England are, of necessity paid in accordance with the local job market in the area in which they are located.

 

11. The Company stated that it was not practical to exclude charge-hands and deputy charge-hands from the bargaining unit since these were essential production staff without which deadlines could not be met.  The Company agreed that charge-hands have supervisory responsibilities for ensuring that work was progressed but insisted that they also worked alongside production workers as required and were an integral part of the team. The Company pointed out that charge-hands are employees who started out on the production lines and have been promoted.  The Company further argued that deputy charge-hands should be included in the Union’s proposed bargaining unit since for the vast majority of their time was spent working on the production lines, only covering for charge-hands in their absence.

 

12. The Company stated that excluding the depot assistants from the bargaining unit would lead to these individuals, who worked alone, feeling isolated and unappreciated and would be bad for their morale.  The Company stated that the depot assistants worked remotely from the factory in depots that served retail and trade customers directly but that they were employed on the same terms and conditions as the workers in the Union’s proposed bargaining unit (other than pay which is determined in accordance with the local market).  The Company further stated that these individuals had no management or supervisory roles.

 

13. The Company stated that the clerical and administration staff should also be included in the bargaining unit since they were employed on the same terms and conditions as those workers in the Union’s proposed bargaining unit.  The Company stated that the clerical and administration staff are all hourly paid and all receive over time at the same rate as the production workers. The Company stated that administration workers in customer services and in production administration work closely with production workers on the shop floor in order to ensure that orders are dispatched on time and any customer complaints addressed.

 

14. The Company stated that the works committee recently set up was open to all staff and not just production workers and that it was unfortunate that the clerical and administration staff had decided not to be represented on this committee.  The Company also stated that the reason why charge-hands had different colour polo shirts was simply for practicality.  The Company explained that when they started issuing polo shirts and other clothing all staff on the production lines were issued with green clothing.  This led to difficulty in visitors to the shop floor identifying supervisory staff.  The Company have issued blue clothing to those staff in a supervisory position in order to enable easy identification and was not symbolic of any difference between the groups of staff.

 

15. In closing the Company stated that the only appropriate bargaining unit would be one that included all staff up to management level.  The Company argued that any other bargaining unit would lead to fragmentation of the workforce in a company where everyone ‘mucks in’ as required. It would cut across the “whole company” ethos in place at the Company.

 

Considerations

 

16. The Panel is required, by paragraph 19(3)(a) and (b) of Schedule A1 to determine the appropriate bargaining unit. In doing so it must be guided by the overriding principle that the unit must be compatible with effective management. Sub paragraph 19(4) lists certain other secondary considerations to be taken into account in so far as they do not conflict with this primary principle. These are: the views of the Employer and of 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 proposed bargaining unit and of any other employees of the Employer whom the CAC considers relevant; and, the location of workers. The Panel must also have regard to paragraph 171 of the Schedule which provides that ‘in exercising its 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’. We remind ourselves of the dicta of R v CAC ex parte Kwik-Fit (GB) Ltd [2002] IRLR 395 and that our task is to start with the Union’s proposal and to determine whether that proposal is appropriate. We must consider and determine whether the Company’s objections to the Union’s unit and the Company’s own proposed bargaining unit render the Union’s proposal inappropriate. We further remind ourselves of the comparatively modest test of “appropriateness” which is not to be confused with the best possible, or optimal, outcome.

 

  1. The issue in dispute between the Parties was whether or not charge-hands, depot assistants and clerical and administration staff up to management level should be included within the appropriate bargaining unit. The Union’s proposed bargaining unit excluded these workers. The Company argued that they should be included within the appropriate unit. There was no need for the Panel to consider the question of deputy charge-hands since, at the hearing, the Union had accepted that they were employees who should be within the bargaining unit.

 

  1. The Panel recognised the Company’s aspirations for a whole company single status philosophy for all of its employees. Although great strides had been made in this direction and the commitment and leadership shown by Mrs Benyon were without doubt, it was clear that this ideal has not yet been reached. We noted the efforts made to integrate all staff through Company wide social events such as the children’s Christmas party and summer outing and the shared tea making facilities, but in relation to other matters, such as pay scales, it is not a “whole company” ethos. The Panel however has no desire to create a bargaining unit which may impede future progress towards a whole company approach.

 

  1. There were slightly different issues for the different groups of workers. We consider that the exclusion of the clerical and administration and sales staff from the bargaining unit is compatible with effective management because at present there are distinctions between this group and production workers. The Company operates two separate pay scales at Caerphilly – one for production staff and one for the white collar staff.  These two groups of workers also appear to consider themselves to be different from each other.  The Panel found it significant that the clerical and administration staff had not participated in the newly constructed works committee whereas the production staff had elected representatives who had attended the meetings and raised issues of concern. The works committee was open to all staff and for each section and department to elect representatives to attend the works committee meetings. The Panel found that this demonstrated that the white-collar staff and the production staff did not consider that their concerns were the same and have seen no need to participate in the works committee.

 

  1.  We next turn to the issue of whether the employees known as depot assistant should be included in the appropriate bargaining unit.  Again we find that it is not inappropriate to exclude these staff members from the bargaining unit, as proposed by the Union. It was apparent that management at the Company treat these individuals as being different from those employees who fell within the Union’s proposed bargaining unit in that their pay is determined separately to those within the proposed bargaining unit. We note and accepted that the remaining terms and conditions of employment are the same as for the staff in the proposed bargaining unit, and that the Company wishes to ensure the depot assistants feel part of the Company, but the effect of a successful statutory recognition claim is the right to collective bargaining in respect of pay (as well as hours and holidays) so we find it is not incompatible to exclude the depot assistants given the existing different pay arrangements.

 

  1. Turning to the question of whether charge-hands should be included in the appropriate bargaining unit, the Panel note that these employees work alongside the production employees who fall within the Union’s proposed bargaining unit although they do have supervisory responsibilities in as much as it is part of their duties to ensure that orders are completed on time.  We accepted that they had no disciplinary powers which are undertaken by the Departmental Manager which is two levels higher than the charge-hand, nor the power to authorise annual leave requests which are signed off by the Assistant Production Manager. The charge hands are team leaders rather than line-management and form an integral part of the team led by them and they are still production operatives and this is not undermined by their role as first port of call in grievance matters.  We conclude that the exclusion of the charge-hands from the bargaining unit would be incompatible with effective management and therefore this group of workers should be included.

 

  1. The Panel considers that the Union’s proposed bargaining unit would be incompatible with effective management by excluding the charge-hands, but not otherwise. We did not accept that the exclusion of depot assistants and the white collar staff would lead to fragmentation of bargaining units, since, in essence, these groups of staff are treated differently in the matter of pay at present.

 

The Panel’s decision

 

  1. The Panel’s decision is that the appropriate bargaining unit is all weekly paid manual shopfloor employees including lorry drivers and cleaners, charge-hands and deputy charge-hands located at Western Industrial Estate, Caerphilly and excluding clerical, administration, sales and managerial staff and depot assistants based at satellite outlets.

 

Next steps

 

  1. The Panel has therefore decided in favour of an appropriate bargaining unit which differs from the one proposed by the Union in their application to the CAC.  For that reason it will be necessary for the Panel to decide, in accordance with paragraph 20(2) of the Schedule, whether the Union’s application is invalid.

 

 

 

The Panel

 

Panel Chair              Mary Stacey

Members                   Simon Faiers

Elizabeth Allen

 

 

 

 

 

10 May 2004

Appendix

 

 

Names of those who attended the hearing:

 

 

Representing the Union

 

Ms Christine Hardacre                     Regional Organiser

 

Mr C Gauden                                     Regional Organiser

 

Mr F Whitehead                                Legal Officer

 

Mr Barry Smith                                  Legal Officer

 

 

Representing the Company

 

Ms J Beynon                                      Managing Director

 

Mr P Fisher                                        Human Resources Manager

 

Mr S Catherwood                              Counsel