Case Number: TUR1/348(2004)

30 June 2004

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

THE AGREEMENT OF THE BARGAINING UNIT

The Parties:

TSSA

and

Wessex Trains Ltd.

Introduction

1. TSSA (the Union) submitted an application to the CAC dated 5 March 2004 that it should be recognised for collective bargaining by Wessex Trains (the Employer) for a bargaining unit consisting of all Wessex Trains Managers (excluding executives) regardless of location.

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 Professor Paul Davies, Chairman, and, as Members, Ms L Mercer and Mr J Rugman. The Case Manager appointed to support the Panel was Sarah Kendall.

3. By its written decision dated 5 April 2004, the Panel accepted the Union’s application.

4. The Parties confirmed to the Case Manager in emails dated 8 June that the bargaining unit had been agreed. The agreed appropriate bargaining unit comprised all Wessex Trains management grade staff (MS grades staff). Both Parties also agreed that the following roles were excluded from the bargaining unit: The Executive team consisting of Managing Director, Operations, Commercial and Finance Directors; Heads of Engineering, Safety, Franchise Management and Human Resources; Chief Accountant; General Manager Mid Wessex; General Manager West of England; Performance, Operations Standards and Planning Managers.

5. As the agreed bargaining unit differed from that proposed by the Union by the exclusion of the heads of departments 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.

6. To assist the determination of two of the validity criteria, whether 10% of the workers in the agreed bargaining unit were members of the Union and whether a majority of the workers in the agreed bargaining unit were likely to support recognition of the Union, the Panel proposed a check to be undertaken by the Case Manager of the level of Union membership within the agreed bargaining unit. Both Parties agreed that the Employer would supply, to the Case Manager, a list of the names of workers within the agreed bargaining unit and that the Union would supply, to the Case Manager, a list of Union members within that unit to enable a comparison to be undertaken. The Union also agreed to provide a petition for the check in which workers had signed in favour of recognition. The information from the Employer was received by the CAC on 16 June 2004 and from the Union on 17 June 2004. It was explicitly agreed with both Parties that, to preserve confidentiality, the respective lists would not be copied to the other Party and that agreement was confirmed in a letter from the Case Manager to both Parties dated 16 June 2004. A report of the result of the check of the membership level was circulated to the Panel and the Parties on 21 May 2004. The validity period was extended to 30 June 2004 to enable the checks to be carried out.

7. The list supplied by the Employer indicated that there were 102 workers in the bargaining unit. The list supplied by the Union contained 126 names. The Case Manager’s report identified that the number of Union members in the bargaining unit was 50. Based on a total figure of 102 workers in the bargaining unit, this constituted a membership level of 49.01%.

8. The Union, had also submitted a petition headed with the statement “I the undersigned employed by Wessex Trains on a Management Grade Contract would like my employer to recognise TSSA for the purposes of collective bargaining on the issues of Pay, Hours and Holidays for Management Grade Staff”. There were 58 signatures on the Union’s petition, of which 55 names were found on the Employers list of 102 workers in the bargaining unit, which constituted to a 53.92% in favour of collective bargaining by the Union. Of the 55 employees who had signed the Union’s petition 15 employees were non-members (14.70%). Both Parties were then invited to supply the Panel with written submissions relating to the validity tests.

Union’s submissions

9. The Union, in an e-mailed letter dated 23 June 2004, stated that the agreed bargaining unit contained 98 workers, not the 102 workers that the Employer had submitted to the CAC. As evidence the Union supplied the CAC with a copy of the spreadsheet that both Parties used to agree on the composition of the bargaining unit. The Union pointed out the 13 highlighted names that were not to be covered by a collective agreement on the bargaining unit. The Union requested that a hearing be held to settle the issue.

Employer’s submissions

10. The Employer informed the Case Manager in an email dated 26 June 2004 that it accepted the Union’s membership at a level of over 10% and stated that it had no submissions to make as to the likelihood of the workers supporting recognition.

Considerations

11. The Panel has to be satisfied that the application is valid in terms of the tests laid down in paragraphs 44 and 46 to 49 of the Schedule, namely that there is no existing recognition agreement in force, that there is no competing application and that there has been no previous CAC application in respect of the new bargaining unit. In addition, the Panel has to be satisfied, in accordance with paragraphs 45(a) and (b) of the Schedule, that 10% of the workers constituting the new bargaining unit are members of the Union and that a majority of those workers would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit.

12. The difference between the proposed and agreed bargaining unit is the exclusion of the Heads of Departments namely, Chief Accountant, General Manager Mid Wessex, General Manager West of England, Performance Manager, Operations Standards Manager and Planning Manager. The Panel is satisfied that the 10% test under paragraph 45(a) is met. Taking account of the figures resulting from the membership and support check the Panel is also satisfied that, a majority of workers within the agreed bargaining unit would be likely to favour recognition of the Union, and therefore the validity test at paragraph 45(b) is met. Although the parties were in disagreement about the exact number of workers in the bargaining unit, we are satisfied that, even if the larger number is the correct one, the test in Para 45(b) is met. However, since the precise size of the unit may become crucial in the next of the procedure, we hope the parties will be able to reach an agreement on this issue. The Panel, having considered all the other tests, is satisfied that these are also met.

The Panel’s Decision

13. The decision of the Panel is that the application is valid for the purposes of paragraph 20 of the Schedule and the CAC will therefore proceed with the application.

Panel

Professor Paul Davies

Ms L Mercer

Mr J Rugman

30 June 2004