TUR1/354(2004)
29 September 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 DECISION ON THE BARGAINING
UNIT
The Parties:
TGWU
and
Siemens Magnet Technology
Ltd (formerly trading as Oxford Magnet Technology Ltd)
Introduction
1. The Transport and General Workers Union (the
Union) submitted an application to the CAC dated 15 March 2004 that it should
be recognised for collective bargaining by Oxford Magnet Technology Ltd, which
since 1 July 2004 has been trading as
Siemens Magnet Technology Ltd (the Employer), for a bargaining unit
consisting of, “All shop floor workers up to and including team leaders on all
shifts in the following sections:- Facilities, stores, packing, coil winding,
test assembly, termination, wax polting, standard
products, welding/FVW, high field, elctronics (sic)
pre call and switches” at the locations of Wharf Road, Eynsham,
Oxon and Miller Park, Oxon. The Union stated there were 350 workers employed in the proposed bargaining
unit, 72 of whom were members of the Union. The Union also stated that it had a petition signed by 241 employees
requesting that the Union be recognised by the Employer. The CAC gave both parties notice of
receipt of the application on 16 March 2004. On 23 March 2004 the employer submitted a response to the CAC, 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, Deputy Chairman, and, as Members,
Mr M Cann and Mr D Hodgson.
The Case Manager appointed to support the Panel was Anne Feehally.
3. Prior to the Panel’s
decision on acceptance the Union clarified some of the terms used to describe
its proposed bargaining unit, including confirming that the location referred
to as ‘Miller Park’ was the Employer’s ‘Milton Park’ premises at Abingdon. The
Employer accepted that the Union was seeking recognition in respect of a
bargaining unit which covered all directs who are employed on the shop floor,
plus team leaders, on all sites and shifts. The Union, in a letter dated 5 April 2004, confirmed that it agreed that the proposed bargaining unit
included all shop floor workers up to and including team leaders on both sites
and encompassing all shifts. It also confirmed that scientists should not be
included in this description.
4. By a decision dated 13
May 2004,
the Panel accepted the Union’s application. The parties then entered a period of
negotiation, with the assistance of Acas, in an attempt to reach agreement on
the appropriate bargaining unit. As no
agreement was reached, the parties were invited to supply the Panel with, and
to exchange, written submissions relating to the question of the determination
of the appropriate bargaining unit and a hearing was held on 9
August 2004.
At the hearing the Union informed the Panel that it
wished to change its
proposed bargaining unit, to be as previously defined but with
the exclusion of those workers at the Employer’s Milton Park site.
5. The Panel was
required, by paragraph 19(2) of the Schedule to the Act, to decide the
appropriate bargaining unit. Paragraph 19(3) states that, in making that
decision, the Panel must take into account the need for the unit to be
compatible with effective management and the matters listed in paragraph 19(4)
of the Schedule so far as they do not conflict with that need. After taking all
considerations into account the Panel decided, in a decision dated 16 August 2004, that the appropriate bargaining unit was the Employer’s
proposed bargaining unit, namely all staff, i.e. directs and indirects, employed at both the Eynsham
and Milton Park sites, but excluding the senior management team and their
direct reports who manage people.
Issues
6. As
the bargaining unit decided by the Panel to be an appropriate bargaining unit
differed from that originally proposed by the Union, the Panel is required by paragraph
20 of the Schedule to determine whether the Union’s application is invalid within the terms of
paragraphs 43 to 50. In a
letter to both parties dated 17 August 2004 the Case Manager invited the
parties to submit comments or evidence regarding the validity tests contained
in those paragraphs.
7. In a letter dated 23 August 2004 the
Union stated that there was no recognition agreement covering any of the
workers within the new bargaining unit; that it believed that there was more
than 10% Union membership within the new bargaining unit; that it believed that
the majority of workers in the new bargaining unit would be likely to favour
recognition; that there was no competing application from another union in
respect of the new bargaining unit; and that there had not been a previous
application in respect of the bargaining unit. In a letter dated 27
August 2004
it made further submissions in support of its case that at least 10% of the
workers in the new bargaining unit were members of the Union and that a majority of workers in
that bargaining unit would be likely to favour recognition.
8. In a letter dated 24 August 2004 the Employer stated
that there was no
formal recognition agreement in existence covering any of the workers within
the decided bargaining unit; that there was no competing application from
another union; and that there had not been a previous application in respect of
this bargaining unit. It stated
that it did not believe that union membership within the decided bargaining
unit was as high as 10%. It submitted that the 241 signatures contained on the
petition presented by the Union
constituted less than 40% of the decided bargaining unit. It also submitted
that the petition could not be relied upon as signatures were collected during the
period 11 September – 3 October 2003 and the information was now out of
date.
9. To
assist the determination of two of the validity criteria specified in the
Schedule, namely whether at least 10% of
the workers in the decided bargaining unit are members of the union (paragraph
45(a)) and whether a majority of the workers in the decided bargaining unit
would be likely to favour recognition of the union as entitled to conduct
collective bargaining on behalf of the bargaining unit (paragraph 45(b)), the
Panel proposed a check to be undertaken by the Case Manager of the level of
union membership and support for recognition within the decided bargaining
unit. The Panel extended the period within which it would decide if the
application was invalid until 24 September 2004 in order to allow time for further
information to be sought from the parties, for agreed checks to be carried out
and for the Panel to be able to review the evidence and make a decision.
10. The
Parties agreed that the Employer would supply to the Case Manager a list of the
names and addresses of workers in the decided bargaining unit and that the Union would provide a list of the names
and addresses of its members and a copy of the petition within the unit to
enable a comparison to be undertaken. It
was explicitly agreed with the parties that, in order to preserve
confidentiality, the respective lists and the petition would not be copied to
the other party. The agreed arrangements
were confirmed in a letter dated 9 September 2004 from the Case Manager to both
parties. The membership list from the Union and the list from the Employer were received
by the CAC on 13 September 2004, and the petition from the Union was received by the CAC on 16
September 2004. The Panel is satisfied that the checks were conducted properly and
impartially and in accordance with the agreement reached with the parties. No
additional checks were carried out to verify the information supplied by the
parties. A report of the result of the check of the level of union membership
and of support for recognition was circulated to the Panel and the parties on 17
September 2004.
11. The list supplied by the Employer
indicated that there were 624 workers in the decided bargaining unit. The list
of members supplied by the Union contained 56 names.
According to the Case Manager’s report, the number of Union members in the
decided bargaining unit was 51, giving a membership level of 8.2%. The petition supplied by the Union
contained 241
names and signatures, of which 199 were found to be on the list of names from
the Employer, a figure that represented 31.9% of the decided bargaining unit.
Of those 199 signatories 37 were members of the Union
(5.9% of the decided bargaining unit) and 162 were non-members (26% of the
decided bargaining unit).
12. The parties were invited to
submit comments on the membership and support check. In a letter dated 21 September 2004 the Employer submitted that as the proportion of union members,
verified by the membership check, in the bargaining unit was less than
the 10% required by the Schedule the Union’s application was not admissible. Furthermore, the Employer stated
that the proportion of signatures on the Union’s petition, amounting to 199 names out of 624 (31.9%) was less than
one third of the workforce. It noted that 14 of the names on the Union’s list of members were
absent from the petition. It maintained that, even if all those individuals
would have supported the petition had they known about it, that would have
given only a marginally higher proportion of support (34.13%), a figure still way short of
the majority of workers favouring recognition. The Union did not comment on the
report of the membership and support check.
Considerations
13. The
Panel is satisfied on the evidence available that the application is valid in
terms of the tests laid down in paragraph 44 and paragraphs 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. The remaining tests before the Panel are
whether, in accordance with paragraphs 45(a) and (b) of the Schedule, members
of the union constitute at least 10% of the workers constituting the decided
bargaining unit and a majority of the workers constituting the decided
bargaining unit would be likely to favour recognition of the union as entitled
to conduct collective bargaining on behalf of the bargaining unit.
14. The Case Manager’s check described in
paragraphs 10 and 11 above showed that 8.2% of the workers in the decided
bargaining unit were members of the Union. The evidence
available before the Panel does not, therefore, establish that at least 10% of
the workers in the bargaining unit are members of the Union.
According to the terms of paragraph 45(a) of the Schedule the application is
invalid on this ground. This finding makes it unnecessary, strictly speaking,
for the Panel to consider whether, under paragraph 45(b), a majority of workers
constituting the bargaining unit would be likely to favour
recognition of the Union as entitled to conduct
collective bargaining on behalf of the bargaining unit. However, for the sake
of completeness the Panel
notes that the support check carried out by the Case Manager
indicates that the Union’s petition was signed by 31.9%
of the workers in the bargaining unit. Without any further evidence from the Union
to support its claim, the Panel is not satisfied that a majority of the
workers constituting the decided bargaining unit would be likely to favour recognition of the Union as
entitled to conduct collective bargaining on behalf of the bargaining unit.
Decision
15. The
decision of the Panel is that the application is invalid for the purposes of
paragraph 20 of the Schedule.
The Panel
Gillian
Morris
Mike Cann
Derek
Hodgson
29 September 2004