Case Number: TUR1/394/(2004)
14 December
2004
CENTRAL ARBITRATION COMMITTEE
TRADE UNION AND LABOUR RELATIONS
(CONSOLIDATION) ACT 1992
SCHEDULE A1 - COLLECTIVE
BARGAINING: RECOGNITION
DETERMINATION OF THE
BARGAINING UNIT
The Parties:
National Union of Journalists
and
Highbury Entertainment Ltd (formerly
Paragon Publishing)
Introduction
1. The
National Union of Journalists (the Union) submitted an application to the CAC dated 16 September 2004 that it should be recognised for collective bargaining
by Highbury Entertainment Ltd (the Employer) in respect of a bargaining unit defined
in the following terms: “Individuals employed as staff in NUJ eligible grades
at the above premises. This includes the
job titles editor, designer and writer and any permutations of these titles,
but excludes directors”. The location of
the bargaining unit was given as Paragon House, St Peter’s Road, Bournemouth, Dorset. In accordance with section 263 of the 1992
Act, the CAC Chairman established a Panel to deal with the case. The Panel consisted of Professor John Purcell,
Deputy Chairman, and, as Members, Dr Elizabeth Allen and Mr Ken Anthony. The Case Manager appointed to support the
Panel was Kate Norgate but for the purposes of this hearing was Sarah Kendall.
2. By a
decision dated 27 October 2004, the Panel accepted the Union’s application. As the Parties were unable to agree an
appropriate bargaining the Panel invited both Parties to supply the Panel with
and to exchange, written submissions relating to the question of the
determination of the appropriate bargaining unit. A hearing was held on 2 December 2004 and the names of those who attended are appended to
this decision.
Summary of the submission made by the Trade Union
3. The Union opened its submission by
stating that it had been actively involved with the Employer over the last two years
and recalled that its first meeting was attended by 70 to 80 people. The Union contended that it had
recruited individuals into the Union on the back of that meeting and that the staff within
the Company had perceived a real need for the NUJ. The Union stated that, in a letter to
the Employer dated 16 November 2004, it had set out the job
titles of the workers within its proposed bargaining unit, namely:
Staff Writer Senior
Staff Writer
Sub Editor Trainee
Sub Editor
Senior Sub Editor News
Editor
Reviews Editor Features
Editor
Games Editor Deputy
Editor
Editor Assistant
Designer
Designer Senior
Designer
Art Editor Senior
Art Editor
Group Art Editor Managing
Editor
Multimedia Editor Senior Multimedia Editor
Picture Editor Digital
Project Manager
4. The Union claimed that even if
Advertising and Production staff were to be added to its proposed bargaining
unit, as proposed by the Employer, it would qualify for a declaration of
recognition without a ballot. The Union explained, however, that the
Employer’s proposed bargaining unit presented it with a moral dilemma. It had not included Advertising and Production
staff on the grounds that that category of staff would not qualify for NUJ
membership and, in consequence, its proposed bargaining unit was in line with
the Union’s rulebook which defined eligibility
for NUJ membership as:
“The union shall
consist of journalists, including photographers, creative artists working
editorially in newspapers, magazines, books, broadcasting, public relations and
information, and electronic media; or as advertising and fashion photographers,
advertising copywriters, editorial computer systems workers; or any English
language journalist or a journalist working in English who is a member of an
IFJ-affiliated union with an NEC-approved, reciprocal agreement with the NUJ
and full-time officials of the union.”
5. The Union stressed that if the Employer’s
proposed bargaining unit were to be adopted, Advertising and Production staff
would effectively be disenfranchised and precluded from representation by an
appropriate union because, under the legislation, a second union could never
seek statutory recognition.
6. The Union contended that the Employer’s
proposed bargaining unit was not compatible with effective management for a
number of reasons. Firstly, the
Advertising and Production staff reported to a different Director from those
workers in the Union’s proposed bargaining unit; secondly, Editorial staff were
paid from the budgets allocated to particular magazines whereas there was a
central budget for advertising; and, thirdly, a previous CAC Panel in an
application involving the NUJ and
Highbury WV [TUR1/257/2003], had decided that a bargaining unit consisting
of all workers eligible for NUJ membership was compatible with effective
management.
7. The Union explained that there were
currently no bargaining arrangements in place for any workers of the division of
the Company to which the application applied. In addition to referring to the
decision in the previous CAC application, the Union explained that the NUJ used
an identical or very similar bargaining unit structure for all its existing collective
bargaining agreements and claimed that it was accepted in the industry as a
practical and very workable arrangement.
8. The Union further stated that the
adoption of its proposed bargaining unit would not lead to the creation of
small fragmented bargaining units. It
was not aware of any attempts by other unions to organise those workers who
fell outside its proposed bargaining unit but was nevertheless of the view that
those workers could form a discrete and clearly defined bargaining unit. The Union maintained that there were similar
arrangements in place in other workplaces within the industry and that the NUJ
worked effectively and often jointly with another union.
9. The Union submitted the workers within
its proposed bargaining unit shared similar characteristics. They were paid a flat rate on a monthly basis
which did not include commission and they were all engaged in similar duties in
that they played a part in a creative process which contributed a final
product. The workers were subject to the
same disciplinary procedure and reporting processes, and received the same
conditions of employment. Workers
outside the proposed bargaining unit reported along different lines. Those who worked in sales also received
commission on top of their basic salary. The role of workers outside the proposed
bargaining unit was one of supporting the creative process rather than actually
contributing to the final product and in that way they had very different
concerns and priorities compared with those within the unit. The Union emphasised that the Company operated,
within Highbury House Communications plc, as a discrete business unit with its
own management structures, salary structures and contracts.
10. The Union explained that all the workers
in the proposed bargaining unit were employed at one site, the company’s
premises at Paragon House, St Peter’s Road, Bournemouth, Dorset. That made the definition of the bargaining
unit a simple one in geographical terms.
11. The Union accordingly asked the Panel
to decide that its proposed bargaining unit was appropriate.
Summary of the submission made by the Employer
12. The Employer’s
proposed bargaining unit comprised the following workers:
|
Staff Writer
Senior Staff Writer
Trainee Sub Editor
Sub Editor
Senior Sub Editor
News Editor
Reviews Editor
Games Editor
Features Editor
Technical Editor
Deputy Editor
Editor
|
Group Editor
Managing Editor
Assistant Designer
Designer
Senior designer
Art Editor
Senior Art Editor
Group Art Editor
Mulitmedia Editor
Senior Multimedia Editor
Picture Editor
Digital Projects Manager
|
Advertising Copy Controllers
Senior Copy Controller
Advertising Designers
Production Manager
Production Coordinator
Advertising Production
Coordinator
Assistant Production
Coordinator
Scanner Operator
Bureau Manager
|
13. The
Employer’s position was that it could not be compatible with effective
management to exclude from the bargaining unit, as sought by the Union, the 13 workers in
Advertising and Production. Those
workers worked closely with the Editorial and Design teams in the production of
magazines and made a valuable contribution to the Company.
14. The
Employer contended that no distinction should be made between the two groups of
workers and that a bargaining unit on the lines proposed by the Union would lead to
fragmentation. It argued that the Panel
should not be influenced by the decision in the previous CAC application, cited
by the Union, as the circumstances in that
division were very different. The
Employer pointed out that all employees in the Production and Editorial
Departments were recruited with the same skill sets in English and software
knowledge, workers often started their careers in Production Departments and
then transferred to Editorial, and that there were some posts, for example
Scanner Operator and Bureau Manager, where the reporting line was to the
Production Department whereas it could as easily be to the Design
Department. In addition, production
staff could report to the Editorial Teams as happened in other publishing companies. The Union was therefore drawing artificial
distinctions between two groups of workers.
15. The
Employer emphasised that there were further common factors across all the
workers in its proposed bargaining unit.
The terms and conditions were the same, there were no material
differences between the ways they worked and reported, and the way budgets were
allocated had no impact on the circumstances of individual workers. A company reorganisation, currently under way
and due for completion in January 2005, would combine Production and Editorial
Departments into two integrated units specialising in different titles and
markets. Whatever divisions existed
between Production and Editorial Departments would henceforth be significantly
reduced.
16. The
Employer concluded by submitting that the Union had not addressed the issues
of whether its proposed bargaining unit was compatible with effective
management but had concentrated on what it saw as common ground among the
workers within its unit. The Employer,
on the other hand, had explained how its proposed unit was compatible with
effective management and asked the Panel to decide accordingly.
Considerations
17. The Panel is required by
paragraph 19(3)(a) and (b) of Schedule A1 to determine the appropriate
bargaining unit. In doing so it must be guided by the overriding principle that
the unit must be compatible with effective management. Paragraph 19(4) lists certain other
considerations to be taken into account in so far as they do not conflict with
this primary principle. These are: the
views of the employer and of the union; existing national and local bargaining
arrangements; the desirability of avoiding small fragmented bargaining units
within an undertaking; the characteristics of workers falling within the
proposed bargaining unit and of any other employees of the employer whom the
CAC considers relevant; and, the location of workers. The Panel must also have regard to paragraph
171 of the Schedule which provides that “in exercising its functions under this
Schedule in any particular case the CAC must have regard to the object of
encouraging and promoting fair and efficient practices and arrangements in the
workplace, so far as having regard to that object is consistent with applying
other provisions of this Schedule in the case concerned”.
18. The
issue in dispute between the parties is whether the bargaining unit should
comprise the categories of workers described in the Union’s application (as
listed in paragraph 3 of this decision) or, if that unit was found to be
inappropriate, the unit proposed by the Employer (as listed in paragraph
12). The essential difference between
the Union and the Employer is whether
or not some 13 workers in Advertising and Production should be included in the
bargaining unit.
19. The
Panel’s first responsibility is to decide if the Union’s proposed bargaining unit is
appropriate in the light of the statutory requirement for the Panel to consider
whether the unit is compatible with effective management. The rationale for the Union’s position is that its
proposed unit covers those workers eligible for membership of the NUJ and that
those workers are a distinct group whose duties and employment conditions are
markedly different from the Advertising and Production workers. The Union also explained that the two
groups reported to different Directors.
It was strongly argued by the Union that the Panel in this case should
make a decision which was consistent with the decision in the previous case of
NUJ & Highbury WV [TUR1/257/(2003)]
in which a bargaining unit consisting of those eligible for NUJ membership was
found to be compatible with effective management. The Union made the further point that
its proposed bargaining unit would leave those workers outside the unit free to
join another union and for that union to seek recognition.
20. The
Employer countered those arguments by submitting that only a bargaining unit
consisting of all workers (excluding a small number of very senior staff) could
be compatible with effective management as it would inevitably lead to
fragmentation. It pointed out that all
the workers contributed to one objective, that there was one ‘skill set’ which
allowed workers to transfer easily between jobs (for example, from Advertising
and Production posts to those in the Editorial area) and that there was a
common scheme of terms and conditions of employment. Furthermore, the Employer did not believe
that excluding some workers from a bargaining unit on the grounds that they
were not eligible for NUJ membership was a factor that should influence the
Panel in deciding if a bargaining unit was compatible with effective
management.
21. The
Panel, having carefully considered the Parties’ submissions, is not persuaded
that the Union’s proposed bargaining unit is compatible with effective
management. The Panel is concerned that
the Union’s proposed unit would create fragmentation by leaving a small number
of workers outside the bargaining unit and that there are insufficient grounds
for drawing the sort of distinctions made by the Union between the Editorial
staff and those in Advertising and Production.
The Panel accepts the Employer’s contentions that there is one ‘skill
set’, that workers do transfer between the two areas, that there are no major differences
in the terms and conditions arrangements and that further integration between
the two groups of workers is imminent.
The Union offered little evidence on the statutory question of compatibility with
effective management apart from the two groups reporting to different
Directors. The Panel does not feel its
decision can be based on that one point
The Union also argued that this Panel should follow the logic of the
decision in the previous Highbury
case, but CAC decisions are not binding precedents and, in any event, that case
is clearly distinguishable from the present application. The important difference in that case was
that employer was seeking a bargaining unit consisting of members of the NUJ,
not those eligible for membership as advanced by the Union on that occasion. The Panel does not, therefore, find that
decision of any assistance in reaching its decision. The Panel’s conclusion is that the Employer’s
proposed bargaining unit is compatible with effective management.
22. The Union also brought to the Panel’s
attention the fact that some workers might be ‘disenfranchised’ if the
Employer’s proposed bargaining unit was found to be appropriate. The Panel has given this long and careful
consideration but is driven by the Schedule to give primacy to the question of compatibility
with effective management. The Panel
noted that there was some ambiguity about whether all the employees in the
Production Department (which includes Advertising) were in fact ineligible for
NUJ membership. It is, of course, up to
the NUJ to determine the boundaries of its membership but these are not
necessarily immutable. The Panel is
aware that this is an issue that can be more easily addressed by a voluntary
agreement between an employer and a union, where perhaps one union can
represent in some way a wider group than is allowed by a literal interpretation
of its rules or where two unions jointly represent one group of workers. We would hope that the parties, were the NUJ
to secure recognition, can agree a way forward to avoid any potential
industrial relations difficulties.
23. The Panel has also considered
the matters listed in paragraph 19(4) of the Schedule so far as they do not
conflict with the need for the bargaining unit to be compatible with effective
management. Firstly, the Panel has taken
account of the views of the parties as summarised in this decision. Secondly, the Panel finds that there are no
existing bargaining arrangements within the Company. Thirdly, the Panel has considered the question
of fragmentation. Fourthly, the workers
in the Employer’s proposed bargaining unit share similar characteristics. Finally, all the workers in both the Union’s and Employer’s proposed
bargaining units are employed at one location.
The Panel also considers that its decision is consistent with paragraph
171 of the Schedule.
Decision
24. The
appropriate bargaining unit is the unit proposed by the Employer and consists
of the workers listed in paragraph 12 of this decision.
John Purcell
Liz Allen
Ken Anthony
14 December
2004
Appendix
Names of those who attended the hearing:
Representing the Trade Union
Mr M Sherrington
Ms F Swarbrick
Mr M O’Sullivan
Representing the Employer
Mr S Eckett
Mr M Frey
Ms S Woodley