Case Number: TUR1/368/2004

Case Number: TUR1/368/2004

03 August 2004

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER PARAGRAPH 35 OF THE SCHEDULE APPLIES TO

THE APPLICATION

The Parties:

TGWU

and

Asda

INTRODUCTION

1. The TGWU (the Union) submitted an application to the CAC dated 10 May 2004 that it should be recognised for collective bargaining by Asda (the Employer) for a bargaining unit consisting of “Warehouse Operatives/Drivers” at Asda’s CDC4 Depot, Falkirk, Scotland. The CAC gave both parties notice of receipt of the application on 13 May 2004. The Company submitted an interim response to the CAC on 17 May 2004 and submitted its reply to the CAC’s Employer response questionnaire on 20 May 2004, both of which were 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 Professor Kenny Miller, Deputy Chairman, and, as Members, Mrs Maureen Shaw and Mr Bill Speirs. The Case Manager appointed to support the Panel was Roshan Kamall and, for the purposes of this decision, Matt Penfold.

3. The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 8; is made in accordance with paragraphs 11 or 12; is admissible within the terms of paragraphs 33 to 42 of the Schedule; and should therefore be accepted.

4. The Union, in its application to the CAC, stated that the Employer has an understanding with the GMB union which is limited to representation rights only in disciplinary and grievance matters and which does not cover collective bargaining as described in Schedule A1. There have been no negotiations relating to pay, hours and holidays between the Employer and the GMB. The Union stated that the understanding that the Employer has with the GMB is not a recognition agreement.

5. In its responses to the CAC, the Employer submitted that the Union’s application was inadmissible on the grounds that there was a Partnership Agreement in place at the Falkirk site with the GMB union. The Employer submitted that the Partnership Agreement renders the application inadmissible under paragraph 35 of the Schedule because the pay, hours and holidays definition of collective bargaining in Schedule A1 is specifically set aside when applying the provisions of paragraph 35. Within paragraph 35, collective bargaining, in accordance with paragraph 3(6) of the Schedule, has the meaning given to it by section 178 of the Act which is a much broader definition. The Employer stated that the date of the Partnership Agreement with the GMB was 08 April 2004 and a copy of the written agreement was provided. Additionally the Employer stated that it could not comment on the level of membership of the Union within the proposed bargaining unit as it had no information on which to base any comments. The Employer stated that it had not been made aware of a desire amongst the workers for their Employer to have a recognition agreement with the applicant.

6. Commenting on the Employer’s responses the Union provided a copy of its letter to the Employer dated 20 May 2004, in which it stated that there was no evidence that the Partnership Agreement provided for collective bargaining on any topic and that the Agreement simply provided for ‘consultation’. In its further letter to the CAC dated 26 May 2004 the Union stated that at the time its recognition request was submitted to the Employer, on 01 April 2004, there was no Partnership Agreement in place. The Union also referred the Panel to various entries in the 08 April 2004 Partnership Agreement that it submitted supported its position that the agreement did not render its application inadmissible. Specifically the Union referred to a provision that stated “This Partnership Agreement does not, however, make provision for collective bargaining on terms and conditions of employment”, another provision that stated “In essence, the aim is to ensure that colleagues have the right to be consulted on health and safety, redundancies or business transfers, and this will be jointly managed within this flexible environment”, and a further provision that stated “ASDA will use a process of listening groups and the mechanics of the Colleague Circle to determine feelings on pay and conditions, prior to making any award. This does not, however, constitute a collective bargaining agreement in relation to those matters.” The Union submitted that these provisions are evidence that there is not an agreement for collective bargaining in place within the terms specified by the Schedule. The Union stated that to find its application inadmissible would be to deny the workforce its statutory right to be represented by a trade union for collective bargaining on, as a minimum, the issues of pay, hours of work and holidays.

7. In a letter dated 28 May 2004 the Employer drew the distinction between the collective bargaining on terms and conditions of employment including pay, which it accepted are specifically excluded from the Partnership Agreement, and collective bargaining on other issues covered by the agreement where, the Employer stated, negotiation is provided for. The Employer informed the CAC that, having discussed the position with the GMB, the Partnership Agreement had been clarified to confirm that the arrangement provided for negotiation with the GMB on facilities relating to shop stewards and the machinery for negotiation or consultation about these matters. The Employer provided a copy of the updated agreement to which the Employer’s and GMB’s signatures had been appended on 28 May 2004. The Employer submitted that the issue of whether there was an agreement in place at the time of the Union’s recognition request letter [to the Employer] is not relevant and that the Union has recognised that the Partnership Agreement was in place prior to its application to the CAC.

8. The parties were invited to attend a hearing and make written submissions on the admissibility of the application under paragraph 35 of the Schedule. The hearing was originally arranged for 30 June 2004 but this date was postponed and a new hearing date of 22 July 2004 was scheduled. Both parties supplied and exchanged written submissions in advance of the hearing.

9. The hearing was held on 22 July 2004 and the names of those who attended the hearing on behalf of the parties are listed below at Appendix A. At the outset of the hearing the parties were informed that the Panel would hear the evidence and arguments concerning the question of whether there is an existing collective agreement in force in accordance with paragraph 35 of the Schedule. Once that issue had been determined and a decision given, and dependent on that decision, consideration would then be given to the outstanding requirements of paragraph 15 of the Schedule.

ISSUES IN DISPUTE

10. In accordance with paragraph 35, an application to the CAC made under paragraph 11 or 12, as was the case with this application, is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is recognised as entitled to conduct collective bargaining on behalf of any workers falling within the bargaining unit proposed by the union. A collective agreement is defined by section 178 of the Act as any agreement or arrangement made by or on behalf of a trade union and an employer relating to one or more of the maters specified within section 178. These matters include terms and conditions of employment, facilities for officials of trade unions and the machinery of negotiation or consultation on any of the matters specified. Collective bargaining is defined by section 178 as the negotiations relating to or connected with one or more of the specified matters. (Section 178 of the Act together with paragraph 35 of Schedule A1, are reproduced below at Appendix B).

11. The question before the Panel in this case is whether paragraph 35 renders the Union’s application inadmissible. The parties agree that there is a Partnership Agreement between the Employer and the GMB covering workers at the CDC4 Depot in Falkirk and also agree that this Partnership Agreement specifically excludes collective bargaining in relation to terms and conditions of employment including pay. The common ground ends there and the parties diverge with the Employer submitting that its Partnership Agreement, despite the matters excluded, nonetheless fulfils the requirements of paragraph 35 and the Union submitting that the Partnership Agreement is insufficient to constitute collective bargaining as expected by paragraph 35. No dispute was raised on the issue of whether the party with whom the Employer has entered the Partnership Agreement is a trade union. The GMB, being a trade union that is certified as independent by the Certification Officer, is clearly a trade union within the terms of paragraph 35.

12. The Panel was faced with two questions at the hearing, those questions being agreed with the parties as the relevant considerations, first, did the Partnership Agreement between the Employer and the GMB constitute a collective agreement as defined by paragraph 35 and section 178 and, second, at what date is the CAC to determine whether such a collective agreement is already in force: the date of the Union’s request for recognition to the Employer, the date of the Union’s application to the CAC or at the time of the decision being reached?

UNION’S SUBMISSIONS

13. The Union submitted that it had requested recognition by the Employer on 08 March 2004, 25 March 2004 and 01 April 2004 and that the Employer had signed an agreement, the Partnership Agreement, with the GMB on 08 April 2004. The Union stated that it presented its application to the CAC on 10 May 2004 and that on that date there was not in force a collective agreement under which a union is recognised to conduct collective bargaining on behalf of any of the workers in its proposed bargaining unit.

14. It was the Union’s case that the Partnership Agreement made no mention of collective bargaining. The Union further argued that although there is mention of collective representation this is not the same as collective bargaining and the right to be accompanied at disciplinary and grievance hearings by a trade union is a right prescribed by law rather than bestowed by an Employer. The Union submitted that the Partnership Agreement specifically excludes any collective bargaining in relation to pay and the Partnership Agreement’s reference to Facilities for shop stewards similarly makes no mention of collective bargaining.

15. The Union submitted that the actions of the Employer following its application to the CAC, the Employer amending the Partnership Agreement with the GMB on 28 May 2004, served to strengthen the Union’s argument that there was not a collective agreement within the terms of paragraph 35 of the Schedule at the time of its application to the CAC. The amended agreement remained the same. It still excluded any reference to collective bargaining in relation to pay, and the only area where negotiation was conceivably possible was the purported introduction of a suggestion of negotiation on any proposed changes to the facilities for shop stewards and/or the machinery for negotiation or consultation and other procedures about these facilities. The Union submitted that the introduction of this change was an attempt to subvert its application and that if the original agreement dated 08 April 2004 had provided for collective bargaining there would have been no need to amend it in an effort to avoid ambiguity. The act of amending the agreement is, the Union submitted, indicative of the absence of collective bargaining from the agreement of 08 April 2004. As the amendment occurred on 28 May 2004 and paragraph 35 requires that there is already in force a collective agreement, then the Union submitted that its application should be admitted as, at the time of its application, an agreement existed which did not entitle a union (the GMB) to negotiate with the Company on a range of matters including the pay, hours and holidays of workers. The amendments occurred after the Union’s application to the CAC was made and therefore it was not a collective agreement already in force at the date of the Union’s application to the CAC. The Union referred to the previous decision of the CAC in GMB and Poundland TUR1/315/2003 in which an application dated 17 October was inadmissible owing to a recognition agreement dated 15 October. The Union submitted that the GMB’s application was not accepted as the agreement was effective two days prior to its application to the CAC. The Union submitted that the circumstances compared favourably with the circumstances in the present case.

16. The Union submitted that the key date for the Panel’s consideration of paragraph 35 is the date of receipt by the CAC of its application and that any subsequent events and evidence should be ruled out. Any other approach would leave open the door to unscrupulous employers to enter meaningless agreements and adopt tactics designed simply to circumvent a Union’s application, this danger would be increased by administrative delays such as those that can be caused by the holding of a hearing.

EMPLOYER’S SUBMISSIONS

17. The Employer submitted that the relevant date at which the Panel must determine whether there is already in force a collective agreement is the time at which the admissibility test is decided. The Employer submitted that the relevant date could not be the date of the Union’s application as at that time the Employer will not have submitted a response to the CAC which is of itself a key part of the evidence assisting the Panel’s considerations. The Employer referred to previous decisions of the CAC where it had been the Panel’s view that the most recent evidence available should be used in reaching its decision (KFAT & Shoe Zone TUR1/150/2001, 20 February 2002 and GPMU and Ritrama (UK) Ltd TUR1/178/2002, 02 September 2002). The Employer submitted that the GMB and Poundland case referred to by the Union was of no assistance to the Panel as that decision had made no suggestion that the CAC was anchoring its decision on admissibility to the date of the Union’s application.

18. The Employer submitted that if the Panel did not agree with its view of the relevant date at which the admissibility tests should be applied (and consequently the breadth of the evidence that could be considered by the Panel) then its position is nonetheless that at the time the application was made to the CAC there was a collective agreement already in force. A collective agreement does not have to include the issues of pay, hours and holidays, section 178 of the Act defines collective bargaining in much broader terms and these wider terms are those against which paragraph 35 of the Schedule must be tested. Furthermore, in order to qualify as collective bargaining only one of the matters listed under section 178 need be covered by the agreement.

19. The Employer submitted that the question of whether there is negotiation requires the Panel to consider whether there is a process where the parties seek to reach an agreement. It is the process that will constitute negotiation irrespective of whether agreement is ultimately reached. To give context to the Falkirk Partnership Agreement with the GMB the Employer referred the Panel to the statement of Marie Gill, Asda’s Head of Industrial Relations for Distribution. Ms Gill’s statement indicated that the Falkirk agreement with the GMB is based on the pre-existing Stores Agreement with the GMB and is expected to operate in a similar fashion. The Employer stated that it has 270 stores and 22 distribution depots in the UK and has a relationship with the GMB covering all but three of those sites. The Partnership Agreement at Falkirk, according to the Employer, is therefore a small example of a much broader relationship that exists between it and the GMB. The Employer submitted that the reference to no collective bargaining on pay and conditions must be read in conjunction with the references to facilities for trade union officials including those facilities for time off which, the Employer submitted, had been the subject of negotiation, under the Falkirk Partnership Agreement, between the Employer and GMB at a meeting on the day prior to the hearing.

20. The Falkirk Partnership Agreement is, as the Employer had previously stated, modelled on the Stores Partnership Agreement. The Employer provided statements and documents that it submitted were evidence to exhibit the ways in which the Stores agreement had given rise to various negotiations. These included time off for trade union officials, the provision of relevant quality training for shop stewards, the selection and number of shop stewards, and issues relating to disciplinary and grievance procedures. The Employer fully accepted the Union’s point that the Stores agreement is not the relevant agreement with regard to admissibility of this application but submitted that the nature of the Partnership Agreement and its scope for negotiation are so similar that it believes the evidence is relevant to the Panel’s consideration. The Employer invited the Panel to find that the Falkirk Partnership Agreement meets the requirements for a collective agreement under section 178 of the Act and that the agreement of 08 April 2004 renders the Union’s application inadmissible in accordance with paragraph 35 of the Schedule.

CONSIDERATIONS

21. The Panel’s task under paragraph 35 is to decide whether there is already in force a collective agreement under which a union is recognised as entitled to conduct collective bargaining on behalf of any of the workers falling within the Union’s proposed bargaining unit. The Panel, in reaching its decision, has taken account of all the evidence to date in this application along with the written and oral submissions at the hearing on 22 July 2004.

22. The Panel is satisfied that the meaning of paragraph 35 is that a collective agreement that meets the requirements of section 178 of the Act, is a collective agreement that can negate the admissibility of an application by a union under the Schedule. There is no requirement for the collective agreement to provide for collective bargaining rights on any of pay hours holidays or other terms and conditions of employment. Section 178 defines broadly the matters that it describes as collective bargaining issues and this will have different applications in different circumstances. In the present case, the broad nature of section 178 coupled with the requirement of paragraph 35 of the Schedule serves to set a low threshold on the matters that might be agreed as collective bargaining between the Employer and the GMB. Proof of negotiation on only one such matter would still have the effect of rendering another Union’s application inadmissible.

23. There is no doubt that the 08 April 2004 Partnership Agreement does refer to facilities for shop stewards and procedures for grievance and discipline. In the view of the Panel this reference, coupled with the evidence that has been presented to it of negotiations under the Stores agreement which the Panel believes exhibits similar language and similar expectations as the Falkirk Partnership Agreement, is sufficient to persuade the Panel that in the circumstances of the present case, the 08 April 2004 Partnership Agreement between Asda Falkirk Chilled Distribution Centre and GMB is a collective agreement that is already in force under which a union is recognised as entitled to conduct collective bargaining, within the meaning given to that term by section 178 of the Act, on behalf of workers falling within the bargaining unit proposed by the Union. The revised agreement of 28 May 2004, together with the meeting between Asda and the GMB on 21 July 2004 could be construed as further confirmation of a process of negotiation on union facilities and matters of discipline and grievance between Asda and GMB. However, given that the Panel is satisfied that the collective agreement was in place as of 08 April 2004, it is not necessary for us to explore these issues for the purposes of this decision.

24. Having decided that the 08 April 2004 Partnership Agreement does constitute a collective agreement that is in force for the purposes of paragraph 35 of the Schedule, it is unnecessary for the Panel to determine the question of what the relevant date is to which the admissibility test must be applied. The Falkirk Partnership Agreement pre-dates the Union’s application to the CAC and the Panel does not therefore need to decide whether the relevant date is the date of the application or the date of the hearing.

DECISION

25. The Panel is satisfied that, for the purposes of paragraph 35 of Schedule A1, there is in force a collective agreement under which a union is recognised as entitled to conduct collective bargaining on behalf of workers falling within the Union’s proposed bargaining unit. Accordingly, paragraph 35 renders the Union’s application inadmissible.

Professor Kenny Miller

Mr Bill Speirs

Mrs Maureen Shaw

03 August 2004

APPENDIX A

Names of those who attended the 22 July 2004 hearing:

For the Trade Union

Pat Rafferty - Regional Industrial Organiser

Martin Gauchan - Industrial Organiser

For the Employer

John Bowers - Counsel

Tom Flanagan – Partner, Pinsents Solicitors

Marie Gill – Asda Head of Industrial Relations for Distribution

Gary McHale - Asda

APPENDIX B

The relevant legislative provisions

Paragraph 35 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 provides:

(35) (1) An application under paragraph 11 or 12 is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit.

(2) But sub-paragraph 1 does not apply to an application under paragraph 11 or 12 if-

(a) the union (or unions) making the application under paragraph 11 and 12 are the same, and

(b) the matters in respect of which the union is (or unions are) entitled to conduct collective bargaining do not include pay, hours or holidays…

….

(6) The relevant bargaining unit is

(a) the proposed bargaining unit, where the application is under paragraph 11(2) or 12(2)….

The definitions of collective agreement and of collective bargaining are to be found in section 178 of the Act:

(1) In this Act “collective agreement” means any agreement or arrangement made by or on behalf of one or more trade unions and one or more employers or employers’ associations and relating to one or more of the matters specified below; and “collective bargaining” means negotiations relating to or connected with one or more of those matters.

(2) The matters referred to above are:

(a) terms and conditions of employment, or the physical conditions in which any workers are required to work;

(b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;

(d) matters of discipline;

(e) a worker’s membership or non-membership of a trade union;

(f) facilities of officials of trade unions;

(g) machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers’ associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures.

(3) In this Act, “recognition”, in relation to a trade union, means the recognition of the union by an employer, or two or more associated employers, to any extent, for the purpose of collective bargaining; and “recognised” and other related expressions shall be construed accordingly.