Case Number: TUR1/339/[2004]

23 July 2004

 

 

 

CENTRAL ARBITRATION COMMITTEE

 

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

 

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

 

DECISION ON FORM OF BALLOT

 

 

The Parties:

 

ISTC

 

and

 

Premier Trade Windows (Wales and 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 Windows (Wales and West) Limited trading as Premier Trade Frames (the Employer) 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 Employer 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.

 

4.      By a decision dated 10 May 2004 the Panel determined 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.

 

5.      As the agreed bargaining unit differed from that proposed by the Union the Panel is required by paragraph 20 of the Schedule to determine whether the Union’s application is valid or invalid within the terms of paragraphs 43 to 50.  To this end both Parties were invited to supply the Panel with written submissions relating to the validity tests.

6.      By a decision dated 14th June 2004 the Panel determined that the application was valid for the purposes of paragraph 20 of the Schedule and that the CAC will therefore proceed with the application. 

 

Issues

 

7.      The Panel notified the Parties in a letter dated 14th June 2004 that a secret ballot would be held as a majority of the workers constituting the bargaining unit are not members of the Union.   This notice was made under paragraph 23 (2) of Schedule A1.  The Panel also advised the Parties that it 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 the form the ballot should take.

 

8.      The notification period under paragraph 24(5) of the Schedule ended on 25th June 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 per paragraph 24(2).

 

9.      The Union in a letter dated 24th June 2004 stated that its preferred method of ballot would be for a combination ballot since this would allow for direct supervision of the voting process.  The Union also argued that a combination ballot, with the majority voting at the work place would be more open and transparent than a postal ballot and thereby encourage more employees to take part in the process.  

 

10. The Employer in an email dated 23rd June 2004 stated that its preference was for a postal ballot. In a follow up facsimile dated 8th July 2004 the Employer stated that in its opinion a postal ballot would be less intrusive on the working day and would be easier to manage, as there are two separate workforces under the same roof.  Due to the difference of opinion the Panel requested the Parties to provide more detailed submissions supporting their preferred form of ballot.  The Company in an e-mail stated that a postal ballot would not disrupt the workforce during working hours.  The Employer also argued that since it operated two day shifts and a night shift, and since the bargaining unit also included drivers who did not finish at the site, a combination ballot would be much more expensive than a postal ballot. The Panel obtained cost estimates for both forms of ballot from a selection of the balloting organisations designated as Qualified Independent Persons for the purposes of the Schedule. The costs of a combination ballot would be between £1,500 and £2,000 more expensive than a fully postal ballot.

 

  1. In deciding the type of ballot to be held, i.e. postal, workplace or combined, the CAC must take into account the following considerations under paragraph 25(5) 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.

 

12. The Panel has decided that a postal ballot would be the preferred form of ballot in this case.  The costs and practicality favour a fully postal ballot in this case. The costs of a combination ballot would be considerably greater than those of a fully postal ballot and approximately 20% of the bargaining unit representing a significant proportion, would need to vote by post in an event, as was acknowledged by the Union. The effect of the shift pattern and the fact that some of the drivers do not finish at the site make a combination ballot impracticable and disproportionately costly. For the avoidance of any doubt we wish to record that there was no evidence or suggestion that a workplace ballot would be affected by unfairness or malpractice and the basis of our decision is solely based on costs and practicality.

 

Form of the Ballot

 

13. The form of ballot will be postal.

 

14. 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.

 

 

Panel Chairman:  Ms Mary Stacey

Members:             Mr Simon Faiers

                                Dr Elizabeth Allen

 

23 July 2004