Case Number: TUR1/374(2004)

28 June 2004

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER TO ACCEPT THE APPLICATION

The Parties:

NUMAST

and

Hoverspeed Ltd

Introduction

1. The National Union of Marine Aviation and Shipping Transport Officers (the Union) submitted an application to the CAC dated 4 June 2004 that it should be recognised for collective bargaining by Hoverspeed (the Company) in respect of a bargaining unit which was described as "Certificated Merchant Navy (MN) Officers working at Hoverspeed on vessels sailing from the ports of Dover and Newhaven and any other port that Hoverspeed may operate vessels from within the United Kingdom”. The CAC gave both parties notice of receipt of the application on 7 June 2004. The Company submitted a response to the CAC on 18 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 Gillian Morris, Deputy Chairman, and as Members, Mr Mike Cann and Dr Susan Corby. The Case Manager appointed to support the Panel was Humphrey Uddoh.

3. The CAC Panel has extended the acceptance period in this case on one occasion. The initial period expired on 21 June 2004. The period was extended until 28 June 2004 in order to allow time for the CAC to receive further information and to allow the Panel time to consider that information.

Issues

4. The Panel is required by the Act 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; and is admissible within the terms of paragraphs 33 to 42 of Schedule A1 to the Act; and therefore should be accepted.

5. In its response to the Union’s application the Company stated that, in its view, the ‘informal’ requests for recognition made by the Union on 8 December 2003 and 17 March 2004 proposed different bargaining units to that contained in the ‘formal request for recognition dated 4 June 2004 under Schedule A1’. The Company also stated that it did not agree with the number of workers in the Union’s proposed bargaining unit; that it did not agree the bargaining unit; and that there was already a collective agreement in force relating to certain workers within the bargaining unit. This was an Italian national collective agreement which applied to all officers, irrespective of contract type or nationality, who worked on its Italian registered vessel. It also disputed whether a majority of workers in the proposed bargaining unit would be likely to support recognition of the Union.

6. In a response to the Company’s submissions dated 23 June 2003 the Union stated that it had sought to negotiate a voluntary recognition agreement within the Company and through negotiations had sought to offer a number of proposals, none of which had been accepted by the Company. The final bargaining unit sought by the Union was outlined in its final formal approach to the Company dated 17 March 2004. It confirmed that it was willing to demonstrate its membership level and density within the proposed bargaining unit to the CAC although it was concerned about issues of confidentiality. It stated that the Company had never previously mentioned to the Union, or discussed with the Company’s Officers’ Consultative Committee, the existence of an Italian collective agreement affecting the Union’s members. In any event the Union understood that there were only two Italian officers working on board the sole Italian registered vessel within the Company’s fleet. The Union submitted that it would be prepared to represent the Italian seafarers (if any) if the Panel determined that they were covered by the relevant legislation but that the presence of an agreement with a non-UK trade union should not represent an obstacle to its application for recognition.

Considerations

7. The Company has sought to show that the Union’s application should not be accepted by the CAC on three grounds. The first is that the bargaining unit proposed by the Union in its requests for recognition of 8 December 2003 and 17 March 2004 proposed different bargaining units to that contained in the ‘formal request for recognition dated 4 June 2004 under Schedule A1’, which we understand to mean the Union’s application to the CAC. The second is that there is already in force a collective agreement with another union which recognises that union as entitled to conduct collective bargaining on behalf of the workers falling within the (applicant) Union’s proposed bargaining unit. The third is that the Company did not consider that a majority of the workers constituting the proposed bargaining unit would be likely to favour recognition. The Panel began its deliberations by considering the implications of the difference in the words used to describe the bargaining unit in the Union’s first request for recognition of 8 December 2003 and in its application to the CAC, and by considering the contents of the ‘second’ request of 17 March 2004. In view of its findings on this matter it did not proceed to examine the second and third grounds put forward by the Company and it makes no findings on these matters.

8. Paragraph 1 of Schedule A1 states that a trade union seeking recognition to be entitled to conduct collective bargaining on behalf of a group of workers may make a request in accordance with this Part (Part 1) of the Schedule. Paragraph 4(2) of the Schedule states that paragraphs 5 to 8 apply to the request. Paragraph 8 states that a request will not be valid unless it is in writing, identifies the union and the bargaining unit, and states that it is made under ‘this Schedule’. Paragraph 2(2) states that references to the bargaining unit are to the group of workers concerned. Paragraph 15(2)(a) requires the CAC to decide whether the request for recognition to which the application relates is valid within the terms of paragraphs 5 to 9.

9. The Panel considers that the request for recognition which the Union made to the Company on 8 December 2003 complied with paragraphs 5 to 9 and is a valid request. The Panel does not consider that the request for recognition which the Union made to the Company on 17 March 2004 is in itself a valid request because it does not state in terms that it is made under Schedule A1. It would only, therefore, satisfy the requirement contained in paragraph 8(c) if it were read in conjunction with the earlier documentation. The Panel does not consider that this is permissible.

10. Paragraph 15(2)(b) requires the Panel to decide whether the application is made in accordance with paragraphs 11 or 12 of the Schedule. Paragraph 11 applies if, before the end of the period of 10 working days starting with the day after that on which the employer receives the request for recognition (the ‘first period’), the employer fails to respond to the Union’s request for recognition or informs the union that it does not accept the request. Paragraph 12 applies if, before the end of the first period, the employer informs the union that it does not accept the request but is willing to negotiate but no agreement is made before the end of the period of 20 working days starting with the day after that on which the ‘first period’ ends (the ‘second period’). In the present case the Company, in its letter to the Union of 19 December 2003, stated that it sought clarification about the timing of the request for recognition and clarification of the bargaining unit. It did not, however, expressly indicate a willingness to negotiate. The Panel considers that, on the balance of probabilities, the application should be treated as governed by paragraph 12, rather than paragraph 11, of the Schedule, but emphasises that its reasoning and decision would be identical if the application were governed by paragraph 11.

11. Paragraph 12(2) of the Schedule states that a union, where no agreement is reached before the end of the second period, may apply to the CAC to decide whether the proposed bargaining unit or some other bargaining unit is appropriate, and whether the union has the support of a majority of the workers constituting the appropriate bargaining unit. Paragraph 2(3) states that references to the ‘proposed bargaining unit’ are to ‘the bargaining unit proposed in the request for recognition’. Thus paragraph 12(2) permits a union to apply to the CAC to decide whether the bargaining unit proposed in the request for recognition or some other bargaining unit is appropriate.

12. In the present case the bargaining unit proposed in the request for recognition of 8 December 2003 was “All sea staff working at Hoverspeed on Fast Craft from Dover and New Haven ports”. This is the bargaining unit in respect of which paragraph 12(2) (or 11(2)) of the Schedule would permit an application to the CAC. The application to the CAC identified a proposed bargaining unit of "Certificated Merchant Navy (MN) Officers working at Hoverspeed on vessels sailing from the ports of Dover and Newhaven and any other port that Hoverspeed may operate vessels from within the United Kingdom”. This is a different bargaining unit to that described in the request of 8 December 2003 and, indeed, the Union acknowledged in its letter of 17 March 2004 to the Company that the bargaining unit had been “redefined and limited” since that request. That being so, the Union has not applied to the CAC to decide whether the bargaining unit proposed in the request for recognition is appropriate in accordance with the terms of paragraph 12(2).

13. The Panel recognises that it may be difficult for a lay person to grapple with the legal complexities of the Schedule. The Panel also appreciates that the Union sought to resolve its request for recognition by voluntary negotiation with the Company. It recognises that the process of negotiation may lead, as in this case, to the modification of the bargaining unit from that described in the request made by the Union. In the event that negotiations following such a request lead to the proposed bargaining unit being modified but do not result in an agreed bargaining unit, however, the Schedule requires that a fresh request, complying in full with paragraph 8, should be made to the employer prior to an application to the CAC.

Decision

14. For the reasons given in paragraphs 9-13 above, the Panel's decision is that the application is not accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chairman

Mr Mike Cann

Dr Susan Corby

28 June 2004