25 May 2005
METHOD OF COLLECTIVE BARGAINING
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
Employer). In its application the Union
described the proposed bargaining unit as ‘all employees up to the level of
first line supervision/management and admin staff, service, crash repairs &
stores, main production assembly, trimming & components, welding &
fabrication, laminating, finishing & preparation, paint & primer shop,
engineering assembly, plastic injection, electrics’. The location of the unit was given as a
single site based at Bristol Avenue, Blackpool and the Union stated that the
number of workers in the proposed bargaining unit was approximately 200. The CAC gave both Parties notice of receipt
of the application on 25 May 2004. The
Employer submitted its response to the application on 3 June 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
consider the case. The Panel consisted of Professor John Goodman CBE, Deputy
Chairman, and as Members, Mr David Bower and Mr Sandy Boyle. The Case Manager appointed to support the
Panel was Humphrey Uddoh and, later, Nigel Cookson.
3. By a decision dated 12 August 2004, the
Panel accepted the Union’s application. The
Parties were unable to agree the bargaining unit at the end of the appropriate
period and so, in accordance with paragraph 19(2) of the Schedule, the Panel was
required to determine the appropriate bargaining unit in this matter. After consideration of the Parties’ written
submissions, which were further amplified at a hearing held on 22 September
2004, the Panel, in a decision promulgated 1 October 2005, determined that the
appropriate bargaining unit should be defined as all those jobs/posts including
all production operatives and key workers that were employed at the Employer’s
premises in Bristol Avenue, Blackpool which were paid weekly at the date of the
hearing, 22 September 2004. The Panel
was satisfied, and both Parties accepted, that, whilst the definition of the
bargaining unit had been amended, nonetheless, it was the same bargaining unit
as proposed by the Union in its application and as further clarified at the
commencement of the hearing on 22 September 2004.
4. As
a majority of the workers constituting the bargaining unit were not members of
the Union the Panel gave notice
that it intended to arrange for the holding of a secret ballot in which the
workers constituting the bargaining unit would be asked whether they wanted the
Union to conduct collective bargaining on their behalf. After due consideration of the Parties’ views
as to the form of the ballot the Panel decided that the ballot would be a
workplace ballot with a postal element for those workers known in advance to be
absent from work on the day of the workplace ballot and the Parties were
notified accordingly.
5. The
workplace ballot took place on 10 February 2005 and the last day for the return
of postal ballot papers was 11 February 2005.
However, prior to the ballot formally closing the QIP reported some
difficulty with the conduct of the ballot and there was a delay in the ballot
result being notified to the CAC. When
the ballot result was subsequently notified to the CAC it established that a
majority of the workers voting and at least 40% of the workers constituting the
bargaining unit supported the proposal that the Union should be recognised by
the Employer for the purpose of conducting collective bargaining in respect of
the bargaining unit. This satisfied the
conditions under which the CAC must issue a declaration in favour of
recognition in accordance with paragraph 29(3) of the Schedule.
6. The Panel consequently issued a declaration that the
7. The Union, in a letter dated 7 April 2005, informed the CAC
that the Parties had been unable to reach a voluntary agreement within the
negotiation period and accordingly it was requesting the involvement of the CAC
to enable a recognition agreement to be established.
8. The Panel, mindful of its duty under paragraph 31(2) to help
the Parties reach agreement as to the method of collective bargaining asked the
Union, by way of letter dated 19 April 2005, whether it was of the view that
the Panel would be able to broker such agreement. The Union responded, in a letter dated 20
April 2005, that it did not believe that the Panel could broker an agreement
between the Parties and it requested that the Panel set a hearing date for it
to determine the collective bargaining arrangements. Having considered the Union’s request, the
Panel directed that a hearing be held.
The hearing was scheduled to be held on 10 May 2005 and the Parties
notified accordingly. The Parties were invited to submit written
statements of case in advance of the hearing specifically stating where the CAC
should depart from the method as specified in “The Trade Union Recognition
(Method of Collective Bargaining) Order 2000” (the specified method).
9. However,
once the Panel had had the opportunity to consider the Parties’ written
submissions lodged in advance of the hearing it was apparent that both Parties
were content for the Panel to impose the specified method and that the hearing
scheduled for
Issues
10. No agreement on a method of collective bargaining
had been reached by the Parties within either the 30 day negotiation period or
the 20 day agreement period. Therefore,
under paragraph 31(3), the CAC Panel must now specify to the Parties the method
by which they are to conduct collective bargaining.
11. Paragraph 168 states that in specifying
the method the CAC must take into account the specified method, but may depart
from the specified method to such extent as the CAC thinks is appropriate to do
so in the circumstances. On 28 February
2005 the Case Manager wrote to the Parties and provided them with a copy of
this Statutory Instrument. It was made
clear to the Parties that the Panel would use this specified method as its
starting point and would go on to give consideration to any proposed departures
from the method.
Summary of the written submissions lodged by the Union
12. The Union, in a letter of 3 May 2005,
submitted that the appropriate method of collective bargaining in this instance
was that as laid down in “The Trade Union Recognition (Method of Collective
Bargaining) Order 2000”.
Summary of the written submissions lodged by the Employer
13. The
Employer, in a letter dated 29 April 2005 that accompanied its written
submissions, informed the Panel that it did not propose to attend the hearing arranged
for 10 May 2005 but that it would abide by whatever decision the Panel reached.
In the accompanying submissions the
Employer explained, inter alia, that as long ago as 1 March 2005 it had
informed the Union that it would abide by the method of collective bargaining
as specified in The Trade Union Recognition (Method of Collective Bargaining)
Order 2000 and that, whilst the Employer appreciated that the CAC had no choice
but to proceed as it had, the Employer asked the Panel to reconsider the need
for a hearing.
Considerations
14. As
the Parties had confirmed in their written submissions that both were content
for the Panel to impose the specified method, the Panel then considered the
extent to which, by its own motion, it considered it was appropriate, given the
circumstances of the case, to depart from the specified method. As part of this process the Panel enquired of
the Parties as to whether there was an established date upon which the Employer
reviewed the pay, hours and holidays of the workers in the bargaining unit.
15. The Employer, in a letter dated
Paragraph 1 of the Specified Method
16. The Panel considered that it was
appropriate to identify the Parties in paragraph 1 of the specified method and
to delete the second sentence as it was not applicable given the circumstances
of this case.
Paragraph 5 of the Specified Method
17. The Panel considered that it was
appropriate to delete the second and third sentences of paragraph 5 as they
were not applicable given the circumstances of this case.
Paragraph 15 of the Specified Method
- Step 1
18. The Panel accepted the Employer’s
submission that the appropriate review date was 17 October and determined that
this date should be incorporated into the specified method. Accordingly, the whole of the third sentence
of Step 1 and the words “Where such a common review date is established,” at
the start of the fourth sentence will be deleted and “The common review date is
17 October.” inserted therein. Further,
the words “In either case” at the start of the fifth sentence will also be
deleted.
Implications of the Specified Method
19. The bargaining method imposed by the CAC
has effect as if it were a legally binding contract between the Employer and
the
20. The Parties can vary the model method,
including the fact that it is legally binding, by agreement provided that they
do so in writing.
21. The fact that the CAC has imposed a
method does not affect the rights of individual workers under either statute or
their contracts of employment. For
example, it does not prevent or limit the rights of individual workers to
discuss, negotiate or agree with their employer terms of their contract of
employment, which differ from the terms of any collective agreement into which
the Employer and the Union may enter as a result of collective bargaining
conducted by this method. Nor does the
imposed method affect an individual's statutory entitlement to time off for
trade union activities or duties.
22. The CAC having imposed a bargaining
method on the Parties, the Employer is separately obliged, in accordance with
Section 70B of the Trade Union and Labour Relations (Consolidation) Act 1992
(as inserted by section 5 of the Employment Relations Act 1999), to consult
union representatives periodically on the policy, actions and plans on
training.
Decision
23. The
decision of the Panel is that the method detailed in the document attached (appendix
A) is specified as the method by which the Parties are to conduct collective
bargaining.
Panel
Professor John
Goodman CBE
Mr David
Bower
Mr Sandy
Boyle
25 May 2005
Appendix A
THE SPECIFIED METHOD
The Parties
1. The method shall apply to TVR Engineering Limited and
the TGWU, who are referred to here respectively as the "employer" and
the "union".
The Purpose
2. The purpose is to specify a
method by which the employer and the union conduct collective bargaining
concerning the pay, hours and holidays of the workers comprising the bargaining
unit.
3. The employer shall not grant
the right to negotiate pay, hours and holidays to any other union in respect of
the workers covered by this method.
The Joint Negotiating Body
4. The employer and the union
shall establish a Joint Negotiating Body (JNB) to discuss and negotiate the
pay, hours and holidays of the workers comprising the bargaining unit. No other
body or group shall undertake collective bargaining on the pay, hours and
holidays of these workers, unless the employer and the union so agree.
JNB Membership
5. The membership of the JNB
shall usually comprise three employer representatives (who together shall
constitute the Employer Side of the JNB) and three union representatives (who
together shall constitute the Union Side of the JNB).
6. The employer shall select
those individuals who comprise the Employer Side. The individuals must either
be those who take the final decisions within the employer's organisation in
respect of the pay, hours and holidays of the workers in the bargaining unit or
who are expressly authorised by the employer to make recommendations directly
to those who take such final decisions. Unless it would be unreasonable to do
so, the employer shall select as a representative the most senior person
responsible for employment relations in the bargaining unit.
7. The union shall select those
individuals who comprise the Union Side in accordance with its own rules and
procedures. The representatives must either be individuals employed by the
employer or individuals employed by the union who are officials of the union
within the meaning of sections 1 and 119 of the Trade Union and Labour
Relations (Consolidation) Act 1992 ("the 1992 Act").
8. The JNB shall determine their
own rules in respect of the attendance at JNB meetings of observers and
substitutes who deputise for JNB members.
Officers
9. The Employer Side shall
select one of its members to act as its Chairman and one to act as its
Secretary. The Union Side shall select one of its members to act as its
Chairman and one to act as its Secretary. The same person may perform the roles
of Chairman and Secretary of a Side.
10. For the twelve
months from the date of the JNB's first meeting, meetings of the JNB shall be
chaired by the Chairman of the Employer Side. The Chairman of the Union Side
shall chair the JNB's meetings for the following twelve months. The
chairmanship of JNB meetings will alternate in the same way thereafter at
intervals of twelve months. In the absence of the person who should chair JNB
meetings, a JNB meeting shall be chaired by another member of that person's
Side.
11. The Secretary of
the Employer Side shall act as Secretary to the JNB. He shall circulate
documentation and agendas in advance of JNB meetings, arrange suitable
accommodation for meetings, notify members of meetings and draft the written
record of JNB meetings. The Secretary of the Employer Side shall work closely
with the Secretary of the Union Side in the discharge of these duties,
disclosing full information about his performance of these tasks.
JNB Organisation
12. Draft agendas
shall be circulated at least three working days in advance of JNB meetings. The
draft record of JNB meetings shall be circulated within ten working days of the
holding of meetings for approval at the next JNB meeting. The record does not
need to be a verbatim account, but should fully describe the conclusions
reached and the actions to be taken.
13. Subject to the
timetable of meetings stipulated in paragraphs 15, 17, 20 and 28 below, the
date, timing and location of meetings shall be arranged by the JNB's Secretary,
in full consultation with the Secretary of the Union Side, to ensure maximum
attendance at meetings. A meeting of the JNB shall be quorate if 50% or more of
each Side's members (or, where applicable, their substitutes) are in
attendance.
Bargaining Procedure
14. The union's
proposals for adjustments to pay, hours and holidays shall be dealt with on an
annual basis, unless the two Sides agree a different bargaining period.
15. The JNB shall
conduct these negotiations for each bargaining round according to the following
staged procedure.
Step 1 - The union shall
set out in writing, and send to the employer, its proposals (the
"claim") to vary the pay, hours and holidays, specifying which
aspects it wants to change. In its claim, the union shall set out the reasons
for its proposals, together with the main supporting evidence at its disposal
at the time. The common review date is 17 October. The union shall submit its
first claim at least a month in advance of that date (and by the same date in
subsequent rounds). The employer and the union may agree a different date by
which the claim should be submitted each year. If the union fails to submit its
claim by this date, then the procedure shall be ended for the bargaining round
in question. Exceptionally, the union may submit a late claim without this
penalty if its work on the claim was delayed while the Central Arbitration
Committee considered a relevant complaint by the union of failure by the
employer to disclose information for collective bargaining purposes.
Step 2 - Within ten
working days of the Employer Side's receipt of the union's letter, a quorate
meeting of the JNB shall be held to discuss the claim. At this meeting, the
Union Side shall explain its claim and answer any reasonable questions arising
to the best of its ability.
Step 3 -
(a) Within fifteen working
days immediately following the Step 2 meeting, the employer shall either accept
the claim in full or write to the union responding to its claim. If the
Employer Side requests it, a quorate meeting of the JNB shall be held within
the fifteen day period to enable the employer to present this written response
directly to the Union Side. In explaining the basis of his response, the
employer shall set out in this written communication all relevant information
in his possession. In particular, the written communication shall contain
information costing each element of the claim and describing the business
consequences, particularly any staffing implications, unless the employer is
not required to disclose such information for any of the reasons specified in
section 182(1) of the 1992 Act. The basis of these estimated costs and effects,
including the main assumptions that the employer has used, shall be set out in
the communication. In determining what information is disclosed as relevant,
the employer shall be under no greater obligation that he is under the general
duty imposed on him by sections 181 and 182 of the 1992 Act to disclose
information for the purposes of collective bargaining.
(b) If the response contains
any counter-proposals, the written communication shall set out the reasons for
making them, together with the supporting evidence. The letter shall provide
information estimating the costs and staffing consequences of implementing each
element of the counter proposals, unless the employer is not required to
disclose such information for any of the reasons specified in section 182(1) of
the 1992 Act.
Step 4 - Within ten
working days of the Union Side's receipt of the employer's written
communication, a further quorate meeting of the JNB shall be held to discuss
the employer's response. At this meeting, the Employer Side shall explain its
response and answer any reasonable questions arising to the best of its
ability.
Step 5 - If no agreement
is reached at the Step 4 meeting (or the last of such meetings if more than one
is held at that stage in the procedure), another quorate meeting of the JNB
shall be held within ten working days. The union may bring to this meeting a
maximum of two other individuals employed by the union who are officials within
the meaning of the sections 1 and 119 of the 1992 Act. The employer may bring
to the meeting a maximum of two other individuals who are employees or
officials of an employer's organisation to which the employer belongs. These
additional persons shall be allowed to contribute to the meeting, as if they
were JNB members.
Step 6 - If no agreement
is reached at the Step 5 meeting (or the last of such meetings if more than one
meeting is held at that stage in the procedure), within five working days the
employer and the union shall consider, separately or jointly, consulting ACAS
about the prospect of ACAS helping them to find a settlement of their
differences through conciliation. In the event that both parties agree to
invite ACAS to conciliate, both parties shall give such assistance to ACAS as
is necessary to enable it to carry out the conciliation efficiently and
effectively.
16. The parties shall
set aside half a working day for each JNB meeting, unless the Employer Side
Chairman and the Union Side Chairman agree a different length of time for the
meeting. Unless it is essential to do otherwise, meetings shall be held during
the normal working time of most union members of the JNB. Meetings may be
adjourned, if both Sides agree. Additional meetings at any point in the
procedure may be arranged, if both Sides agree. In addition, if the Employer
Side requests it, a meeting of the JNB shall be held before the union has
submitted its claim or before the employer is required to respond, enabling the
Employer Side to explain the business context within which the employer shall
assess the claim.
17. The employer shall
not vary the contractual terms affecting the pay, hours or holidays of workers
in the bargaining unit, unless he has first discussed his proposals with the
union. Such proposals shall normally be made by the employer in the context of
his consideration of the union's claim at Steps 3 or 4. If, however, the
employer has not tabled his proposals during that process and he wishes to make
proposals before the next bargaining round commences, he must write to the
union setting out his proposals and the reasons for making them, together with
the supporting evidence. The letter shall provide information estimating the
costs and staffing consequences of implementing each element of the proposals,
unless the employer is not required to disclose such information for any of the
reasons specified in section 182(1) of the 1992 Act. A quorate meeting of the
JNB shall be held within five working days of the Union Side's receipt of the
letter. If there is a failure to resolve the issue at that meeting, then
meetings shall be arranged, and steps shall be taken, in accordance with Steps
5 and 6 of the above procedure.
18. Paragraph 17 does
not apply to terms in the contract of an individual worker where that worker
has agreed that the terms may be altered only by direct negotiation between the
worker and the employer.
Collective Agreements
19. Any agreements
affecting the pay, hours and holidays of workers in the bargaining unit, which
the employer and the union enter following negotiations, shall be set down in
writing and signed by the Chairman of the Employer Side and by the Chairman of
the Union Side or, in their absence, by another JNB member on their respective
Sides.
20. If either the
employer or union consider that there has been a failure to implement the
agreement, then that party can request in writing a meeting of the JNB to
discuss the alleged failure. A quorate meeting shall be held within five
working days of the receipt of the request by the JNB Secretary. If there is a failure
to resolve the issue at that meeting, then meetings shall be arranged, and
steps shall be taken, in accordance with Steps 5 and 6 of the above procedure.
Facilities and Time Off
21. If they are
employed by the employer, union members of the JNB:
The union members of the JNB
shall schedule such meetings at times which minimise the effect on production
and services. In arranging these meetings, the union members of the JNB shall provide
the employer and their line management with as much notice as possible and give
details of the purpose of the time off, the intended location of the meeting
and the timing and duration of the time off. The employer shall provide
adequate heating and lighting for these meetings, and ensure that they are held
in private.
22. If they are not
employed by the employer, union members of the JNB or other union officials
attending JNB meetings shall be given sufficient access to the employer's
premises to allow them to attend Union Side pre-meetings, JNB meetings and
meetings of the bargaining unit as specified in paragraph 23.
23. The employer shall
agree to the union's reasonable request to hold meetings with members of the
bargaining unit on company premises to discuss the Step 1 claim, the employer's
offer or revisions to either. The request shall be made at least three working
days in advance of the proposed meeting. However, the employer is not required
to provide such facilities, if the employer does not possess available premises
which can be used for meetings on the scale suggested by the union. The
employer shall provide adequate heating and lighting for meetings, and ensure
that the meeting is held in private. Where such meetings are held in working
time, the employer is under no obligation to pay individuals for the time off.
Where meetings take place outside normal working hours, they should be arranged
at a time which is otherwise convenient for the workers.
24. Where resources
permit, the employer shall make available to the Union Side of the JNB such
typing, copying and word-processing facilities as it needs to conduct its
business in private.
25. Where resources
permit, the employer shall set aside a room for the exclusive use of the Union
Side of the JNB. The room shall possess a secure cabinet and a telephone.
26. In respect of
issues which are not otherwise specified in this method, the employer and the
union shall have regard to the guidance issued in the ACAS Code of Practice on
Time Off for Trade Union Duties and Activities and ensure that there is no
unwarranted or unjustified failure to abide by it.
Disclosure of Information
27. The employer and
the union shall have regard to the ACAS Code of Practice on the Disclosure of
Information to Trade Unions for Collective Bargaining Purposes and ensure that
there is no unwarranted or unjustified failure to abide by it in relation to
the bargaining arrangements specified by this method.
Revision of the Method
28. The employer or
the union may request in writing a meeting of the JNB to discuss revising any
element of this method, including its status as a legally binding contract. A
quorate meeting of the JNB shall be held within ten working days of the receipt
of the request by the JNB Secretary. This meeting shall be held in accordance
with the same arrangements for the holding of other JNB meetings.
General
29. The employer and
the union shall take all reasonable steps to ensure that this method to conduct
collective bargaining is applied efficiently and effectively.
30. The definition of
a "working day" used in this method is any day other than a Saturday
or a Sunday, Christmas Day or Good Friday, or a day which is a bank holiday.
31. All time limits
mentioned in this method may be varied on any occasion, if both the employer
and the union agree.