Case Number:TUR1/371/(2004)

5 January 2005

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 – COLLECTIVE BARGAINING: RECOGNITION

ADJUDICATION OF CERTAIN MATTERS IN DISPUTE RELATING TO THE ARRANGEMENTS FOR THE BALLOT

The Parties:

TGWU

and

TVR Engineering Ltd

Introduction

1. The TGWU (the Union) submitted an application to the CAC dated 24 May 2004 that it should be recognised for collective bargaining by TVR Engineering Ltd (the Company). In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992, the CAC Chairman established a Panel to consider the case consisting of Professor John Goodman CBE, Deputy Chairman, and as Members, Mr D Bower and Mr S Boyle. The Case Manager appointed to support the Panel was Nigel Cookson and, for the purposes of this decision, Simon Gouldstone.

2. By a decision dated 12 August 2004, the Panel accepted the Union’s application and, by a further decision dated 1 October 2004, the Panel decided that the appropriate bargaining unit should be ‘all those jobs/posts including production operatives and key workers that are employed at the Company’s premises in Bristol Avenue, Blackpool which were paid weekly at the date of the hearing, 22 September 2004’.

3. The Panel then gave notice to the parties, in a letter from the Case Manager dated 7 October 2004, that it intended to arrange a secret ballot of the workers in the bargaining unit and invited the parties’ views on the form of the ballot. Both parties expressed a preference for a combination ballot in which voting would take place at the Company’s premises with a postal vote available to workers known in advance to be absent from the workplace on the day of the ballot. The Panel decided that that should be the form of the ballot and the decision was communicated to the parties in a letter dated 22 October 2004.

4. The parties then entered discussions about access arrangements, which included the involvement of Acas, but it did not prove possible to reach agreement. There were a further two issues in dispute between the parties and the Panel came to the conclusion that it should take the initiative in seeking to resolve all the outstanding issues before giving the parties formal notification of the commencement of the ballot in accordance with paragraph 25(9) of the Schedule.

5. The Case Manager, on the instructions of the Panel, wrote to the parties on 18 November 2004 to offer them two avenues for resolving the outstanding issues. Those issues were as follows:

a) union access to the bargaining unit during the balloting period;

b) the location of the balloting station on the day of the workplace ballot; and

c) the eligibility of workers to vote in the ballot.

The options put to the parties for resolving those issues were as follows:

a) adjudication by the Panel on the basis that the parties gave a written undertaking that they would accept, abide by and implement the adjudication decisions; or

b) the Panel would issue the notification under paragraph 25(9) of the Schedule and the Union could complain to the CAC that the Company had failed to fulfil its duties under paragraph 26 of the Schedule. It was pointed out to the parties that the second option would inevitably lead to delay and the suspension of the ballot.

6. Both parties responded that they would prefer the first option, adjudication, and undertook, both in writing and at the subsequent hearing, to accept, abide by and implement the Panel’s adjudication decisions. A hearing was arranged for 16 December 2004 and both parties supplied written submissions on the three issues in dispute. A list of the names of those who attended the hearing is appended to this decision. The hearing was preceded by a site visit to the Company’s premises and to the Bispham Community Centre. The Panel was accompanied by the Case Manager and representatives of both parties.

Summary of the parties’ submissions on the issues in dispute

Access arrangements

7. The Union was seeking arrangements in line with the Code of Practice and had put forward a draft agreement to the Company. The Union had originally sought the facility to hold the large scale meetings on site but, following the site visit, had come to the view that it would only be practicable to hold such meetings off site. The detailed arrangements, such as the number and times of meetings, were unresolved. The Union also wanted to hold surgery meetings but did not find acceptable the Company’s proposal to use the Security Hut to which it objected for several reasons including safety. Again, detailed arrangements needed to be specified. At the hearing, the Union expressed its preference for surgeries to take place in the former canteen/staff room identified during the site visit.

8. The Company’s position was that it had already offered to book the Bispham Community Centre for general meetings of TVR workers and would pay for refreshments. It proposed that meetings should take place on a Friday, one hour before the end of the shift. The Company regarded the Security Hut as the most suitable location for surgeries as it was conveniently located, had heating, carpeting and refreshment facilities, and would allow confidential discussions. No other location offered comparable facilities and the proposed location was the least disruptive to the business. It objected to other locations on a number of grounds including loss of facilities and safety of movement.

Location of the balloting station

9. The Union believed that the balloting station should be located in one of the canteens. The office used by the Works Committee was also suggested. At the hearing, the Union expressed its preferred location as being the new canteen adjacent to the production area.

10. The Company’s position was that the most appropriate location was the Security Hut for the reasons summarised in paragraph 8. above.

The eligibility of workers to vote in the ballot

11. The Union had identified 35 workers on the list compiled by the Company that it did not believe fell within the definition of the appropriate bargaining unit.

12. The Company, in its written submission, gave the job title and/or department for each of the 35 workers identified by the Union. The Company stated at the hearing that, with some exceptions, the great majority were in the bargaining unit. It was prepared to supply as evidence the workers’ pay slips, provided the individuals concerned consented to disclosure.

Considerations

13. The Panel’s priority is to ensure the arrangements are in place to allow the ballot to be conducted without any further delay. For that reason, this decision is relatively short and does not go into great detail in recording the parties’ arguments and evidence or in giving the rationale for the Panel’s decision. The Panel has however given full consideration to the written and oral evidence submitted by the parties and the information gained from the site visit.

Access arrangements

14. The Panel has specified in Appendix 2 the access arrangements. Many items were agreed by the parties at the hearing and the remaining issues have been determined by the Panel. The Panel felt it would be helpful to the parties to present one schedule covering all aspects of the access arrangements.

Location of the balloting station

15. The Panel’s decision is that the balloting station should be located in the Security Hut by Gate B. The advantages are that it is conveniently located for a large proportion of the workforce, it already has appropriate facilities in place and privacy is easily achieved. The Panel considered carefully the Union’s contention that it was not a safe location in view of the passage of vehicles. However, the Company, at the hearing, gave certain guarantees to ensure workers could access the Hut safely. Those were that Gate B would be closed on the day of the ballot and that barriers could be erected temporarily to create a safe walkway to the Hut.

The eligibility of workers to vote in the ballot

16. At the hearing, a small number of workers were withdrawn from the Union’s list of 35 after an explanation by the Company. It was agreed at the hearing that the parties would cooperate by providing information to the Case Manager to allow a confidential check to be undertaken of whether the remaining named workers fell within the determined bargaining unit. The Case Manager would produce a report which would be circulated to the Panel and the parties, and that would lead to a definitive list of workers to be provided to the Qualified Independent Person.

Decision

17. The Panel’s adjudication of the issues in dispute is as follows:

a) The access arrangements are specified in Appendix 2 to this decision;

b) The balloting station is to be located in the Security Hut; and

c) The Panel endorses the parties’ agreement that they will provide information to the Case Manager to allow a confidential check to be undertaken as to whether all, or which of, the 35 workers identified by the Union are in the bargaining unit.

John Goodman

David Bower

Sandy Boyle

5 January 2005
Appendix 1

Names of those who attended the hearing:

For the Trade Union

Mr R James Regional Industrial Organiser

Mr P Martin TVR employee

Mr G Webster TVR employee

For the Company

Mr T Hooper QC Counsel

Mr D Oxley HR Manager

Mr M Penney Production Manager

Mr G Rawlinson TVR employee

Appendix 2

TGWU & TVR Engineering Ltd

Access and Balloting Arrangements

1. Large Scale Meetings

The Union is entitled to hold two mass meetings during the balloting period, one in week 1 of the balloting period and one in week 3. The first meeting should take place on the Friday of week 1 from 1.00 pm to 2.00 pm and workers attending the meeting should clock out before going to the meeting. The second meeting should take place on the Thursday of week 3 from 12.30 pm to 1.30 pm. Those attending the meeting should return to work afterwards.

The Company will give paid time off for those attending the meetings. Those not attending the large scale meetings will continue at work as normal.

The meetings will take place at the Bispham Community Centre. The Company will book, and pay for, the facilities and will provide refreshments.

If the Company decides to hold large scale meetings, it will do so on the same basis as the Union.

It is solely for the Union to decide the way in which its meetings are to be conducted.

2. Surgery Meetings

The Union will be given facilities to hold surgery meetings during weeks 2 and 4 of the balloting period. These will be held in week 2 on Monday to Thursday from 10.30 am to 12.30 pm and from 1.30 pm to 2.30 pm, and in week 4 on Monday to Wednesday from 10.30 am to 12.30 pm and from 1.30 pm to 2.30 pm. If necessary as a reserve period, Friday in week 2 from 11.00 am to 1.00 pm may be used.

The surgeries will take place in the old canteen/staff room which is to be cleaned thoroughly in advance. Suitable screening and/or partitioning is to be installed if the Mens lavatories are to remain in use.

The Company will produce a schedule by which each worker is allocated to a 15 minute surgery appointment; no more than three workers will be scheduled for each 15 minute time slot. There is a presumption that every worker in the bargaining unit will attend one surgery but there is no compulsion on any worker to attend. The Union is to be advised and the schedule will be published in advance on the Company’s notice boards.

Workers will be given paid time off to attend surgery meetings.

No worker will be allocated to, or will attend, more than one surgery meeting.

The surgeries will be conducted by the full time officer of the Union but may be conducted by another full time officer if he is unavailable. The Union will supply to the Company the names of those who will be conducting the surgeries. In the unlikely event of no full time officer being available, a local representative will conduct the surgeries on the following basis: week 2, Mr Webster and week 4, Mr Martin.

The Union is entitled to erect a stand within the area where the surgeries are conducted to display and distribute material relating to the Union and the recognition ballot.

3. Written Communications

The Union may use the following notice boards to distribute written information: the dedicated employee notice board, one notice board in the body shop and one in the production area.

The Union may also put a stand by each notice board to distribute material relating to the Union and the recognition ballot.

The Union will provide to Mr Penney a copy of any material it intends attaching to a notice board and the Company will provide to Mr James a copy of any material it intends attaching to a notice board.

The Union is responsible for the maintenance of its allocated notice boards.

If the Company wishes to respond to any material distributed by the Union on a notice board, it will do so by way of the Company notice boards.

4. Electronic Communication

The question of electronic communication has been agreed by the parties who are to discuss the issue directly.

5. Recording Equipment

Security cameras and other recording equipment are not to be used by either party in relation to surgeries, large scale meetings or the ballot.

6. Parties’ Behaviour and Dispute Resolution

Both parties agreed that they will make every effort to ensure that acrimonious situations do not arise or that, if they do arise, they are resolved as quickly as possible. Both parties are committed to honour the spirit and letter of the Code of Practice. If disputes arise, they should be referred for resolution to Mr James and Mr Penney. In the event of a failure to agree, the parties firstly may seek assistance from Acas and secondly may refer the matter to the CAC.

7. Arrangements for the ballot

The balloting station will be located in the Security Hut by Gate B. It is anticipated that the workplace ballot will take place on the Thursday of week 4 of the balloting period between the hours of 8.00 am and 4.30 pm.

In line with the offer made by the Company (see paragraph 15 of the Decision), Gate B will be closed on the day of the ballot. All vehicles will be stopped from using it, internal vehicles will be rerouted and barriers will be erected to create a safe walkway close to the Hut.

The Company recognises the importance of workers exercising their right to vote and will release workers to vote during working hours. These arrangements will take account of production needs. The Company will use the tannoy to encourage workers to vote.

Mr James and Mr Oxley will be present at the balloting station, in the part of the Security Hut occupied by the Security Guard (who will not occupy the Hut on the day of the ballot), to resolve any issues relating to the identification of individual workers.

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