Case Number: TUR1/433/(2004)
14 October 2005
CENTRAL ARBITRATION COMMITTEE
TRADE UNION
AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992
SCHEDULE A1 - COLLECTIVE
BARGAINING: RECOGNITION
DETERMINATION OF THE BARGAINING
UNIT
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 on 23
February 2005
that it should be recognised for collective bargaining by Hoverspeed Ltd (the
Employer). The Union described the
proposed bargaining unit as “Certificated merchant Navy (MN) Officers working
on vessels operated by Hoverspeed Ltd sailing from ports within the United
Kingdom” and stated that “The employees concerned are MN Officers serving on
Hoverspeed Vessels currently sailing from the UK ports of Dover and
Newhaven”.
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 Ms Mary Stacey as Deputy Chairman and as Members, Dr Elizabeth Allen and Mr
George Getlevog. The Case Manager
appointed to support the Panel was Ms Sarah Kendall. For the purposes of this decision the Case
Manager was Miss Sharmin Khan.
3. By
a decision dated 4 July 2005, the Panel accepted the Union’s application. The Parties then entered a period of
negotiation, with the assistance of Acas, in an attempt to reach agreement on
the appropriate bargaining unit. As no
agreement was reached, the Parties were invited to supply the Panel with, and
to exchange, written submissions relating to the question of the determination
of the appropriate bargaining unit on 8 August 2005.
Issues
4. The Panel is required,
by paragraph 19(2) of the Schedule to the Act, to decide whether the proposed bargaining unit is appropriate.
Paragraph 19B of the Schedule states that, in making that decision, the Panel
must take into account the need for the unit to be compatible with effective
management and the matters listed in paragraph 19B(3) of the Schedule so far as
they do not conflict with that need. The
matters listed in paragraph 19B(3) are: the views of the employer and 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
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.”
5. The
Parties’ written submissions were received by the CAC on 7
September 2005. A hearing was held on 14
September 2005 and the names of those who attended that hearing are appended to this
decision. During the course of the hearing the issues between the parties
narrowed considerably to whether the bargaining unit should be tied to the
Employer’s actual cross channel route or be defined more broadly to encompass
possible future changes. The Employer’s counter proposal was “All certificated
Merchant Navy Officers working on vessels operated by Hoverspeed Limited
sailing from Dover to Calais”. The Parties agreed that the
appropriate bargaining unit would include Officers that were U.K. Certificated
only. The Certificate is a certificate
of competency issued by the Maritime Coastguard Agency (MCA).
Summary of the Union’s submissions
6. The Union summarised for the Panel the events
that took place during the negotiation period.
In its synopsis, the Union reminded the Panel of the appropriate bargaining unit
initially proposed by the Employer in its letter to the CAC dated 3
March 2005. In that letter the Employer stated:
“If a bargaining unit is to be
created, it should comprise all certificated Merchant Navy Officers within the
description stated in paragraph 14 of the Third application,
both permanent and seasonal and whether or not they are United Kingdom
nationals and should be restricted to certificated Merchant Navy Officers only
(i.e. it should not include non-officer grade employees). Additionally, it should cover the
certificated Merchant Navy Officers operating on the company’s St Malo - St Helier route.”
7. Since
then however both the St Malo – St Helier and the Newhaven- Dieppe routes have closed, leaving only
the Dover – Calais route. Acas had assisted the parties and at a meeting
held under the auspices of Acas on 5 August 2005, the Employer revised its proposal
for an appropriate bargaining unit comprising “All permanent UK certificated Merchant Navy Officers
working between Dover and Calais.” The meeting ended without
the Parties reaching an agreement, but the Parties agreed that seasonal staff
should be included in the appropriate bargaining unit.
8. Following
its recap of events, the Union argued its case in support of its proposed bargaining unit
as stated in its application and as clarified to Acas on 28
July 2005. The Union contended that its proposal was compatible with effective
management in respect of the provisions specified in paragraph 19B of the
Schedule.
9. Firstly
the Union argued that its proposed bargaining
unit covered the same scope of workers as the Company’s in-house Officers’
Consultative Committee (OCC). It was the
understanding of the Union that the Employer consulted with all of its workers through
the OCC and that it represented workers on other routes and workers of other
nationalities. With the permission of the Panel, at
the hearing the Union
submitted a copy of a Company document which was titled “Officers’ Consultative
Committee”. The document stated that
“Bridge Officer representation on the committee” would include one elected representative
from four groups: “Senior Masters/Masters; Senior Chief Engineers/Chief
Engineers; First Officers, Assistant Engineers.” (The Employer clarified for the Panel that
current representation of bridge crew on the OCC stood at one Deck Officer and
one Engineer Officer). The Union reasoned that as its proposal
reflected the same scope of workers covered by the Employer’s own consultative
committee, its proposed bargaining unit could not be incompatible with
effective management.
10. The
Union reminded the Panel that the Employer’s initial proposal covered more than
one route and inferred that its recent restriction to cover only workers
operating on the Dover – Calais route was an effort to undermine the
recognition process. They suggested that the Employer was now proposing a
bargaining unit that encouraged a small and fragmented bargaining unit. The Union submitted a copy of a letter dated 2
September 2005 from the Managing Director (MD) of the Company to the workers. The letter, in the Union’s view, openly sought to persuade
Officers to reject recognition of the Union and was an example of the Employer’s intentions.
11. The
Union also believed that the Employer might
close down and/or re-locate the Company’s Dover – Calais route in view of its position in the
current market and given its recent restructuring activities, such as the
closure of the St. Malo – St. Helier route. The Union submitted an extract from Lloyd’s List
dated 8 August 2005 to the Panel which referred to the pressure under which the
Employer was to increase its contribution to the profits of the ‘Sea Containers
Group’ which was making losses on its ferry operations and refocusing its
fleets. More specifically the article
also referred to the “rates wars” on the Dover – Calais route itself. If the bargaining unit were restricted to a
route that would be subject to a change in location, it could leave workers without
representation, and thereby defeat the recognition process.
12. The
Union stated that in any shipping company the
Merchant Navy Officer’s profession distinguished them from other types of
workers as their terms and conditions reflected the legislation that covered
them i.e. the Merchant Shipping Act 1995 and Merchant Shipping Hours of Work
Regulations 2002. The Union claimed that it provided specialist
representation for specialist workers.
The relevant workers were highly skilled and as such were more than likely
to be redeployed by the Employer in the event of the closure of the
Dover – Calais route.
13. The
Union informed that there were no existing
national arrangements at present in the shipping industry. However, NUMAST itself had established many
collective arrangements on a company by company basis. The Union referred the Panel to an index of
approximately 100 companies for which it was either voluntarily or statutorily
recognised with collective arrangements, as published in its latest ‘NUMAST News’
journal. The Union stated that none of the bargaining
units for which it had collective arrangements were defined by the route on
which the worker operated but rather the locus of the company. In other words
the bargaining unit would be defined by the workers operating a company’s owned
and managed vessels. For instance the Union had 4 separate agreements with P&O
i.e. P&O Ferries Dover, P&O Ferries Hull, P&O Ferries Portsmouth
and P&O Ferries Irish Sea, all of which were managed centrally by one human
resource department but covered workers that could operate more than one
specific route. To the Union it was the ‘normal’ place of work
that was significant when describing the appropriate bargaining unit. It maintained that it was unusual to use a
specific route to identify a worker’s normal place of work and should a worker
be transferred to work on another route and sail from another port, it would be
expected that he/she would remain covered by the relevant collective agreement. To define the appropriate bargaining unit
according to the route or routes the workers operated on was not in line with its
other collective arrangements.
14. The
Union pursued its point by stating that its
proposed bargaining unit corresponded with the typical nature of the shipping
industry and it was not uncommon for shipping companies to operate more than
one route which were subject to change from time to time. It argued that the Employer itself was not
unfamiliar with the practise and in seeking to restrict the bargaining unit to
one specific route was contradicting the terms and conditions of a worker’s
employment which included a mobility clause.
15. In
conclusion the Union
stated that its proposal was appropriate and compatible with effective
management.
Summary of Employer’s Submissions
16. The
Employer explained that its central objective was to seek an accurate
description of the appropriate bargaining unit and its proposal of “All
certificated UK Merchant Navy Officers working on vessels operated by
Hoverspeed Limited sailing from Dover to Calais” was exactly this.
17. Firstly
the Employer disputed the accuracy of some of the Union’s assertions in its
submissions. It had no intention of
closing the Dover - Calais route down as it was currently its
most profitable and efficient route and would remain so given the geography: it
is the shortest sea crossing to France from England. On the mobility of merchant navy
officers in practice the worker’s agreement to a transfer is sought first. Both
parties agreed that merchant navy officers are highly skilled specialist staff
who are not easily replaced and the Employer’s emphasis is on retention of such
staff. A transfer was normally on a
‘secondment’, rather than permanent, basis. If compulsory relocation of workers
was necessary due to a re-structure of the Company or operational changes, the
Employer would apply normal methods to retain labour for example seek
volunteers for re-location first and/or redundancy would be offered.
18. The
Employer also stated that the route operated by an Officer affected his or her
hours and pay as, for example, the length of the route affects the length of
the crossing which affects the shift pattern worked by him or her. For example, the Dover to Calais route shift
pattern was 4 rotations with a start time of 5:00hrs and a finish time of
21:00hrs therefore requiring a crew change meaning Officers were working a 2
days ‘on’ and 4 days ‘off’ rota. The
Newhaven port used to have one crew of Officers for two round trips. The shift
pattern was therefore 6 days ‘on’ and 2 days off.
19. The
Employer stated, in response to the Union’s comments about the OCC that it comprised only U.K. staff and was in any event a
communicative facility for the Company and did not serve the purpose of bargaining
with its workers on the terms and conditions of their employment.
20. The
Employer submitted that since the only route it currently operated from a UK port was Dover to Calais its description of the bargaining
unit would be more precise. The Employer
stated that despite the difference between the description it was proposing and
that used by the Union in its proposed bargaining unit (“Certified merchant
navy officers working on vessels operated by Hoverspeed Limited sailing from ports
within the United Kingdom”), the group of workers that the Employer’s
description identified was exactly the same group to which the admissibility
tests were applied to by the CAC and was therefore in line with the Union’s
proposed bargaining unit.
21. The Employer
asserted that the appropriate bargaining unit ought to reflect the reality of
the ‘current’ operation; that Dover to Calais was the only Hoverspeed route
operated out of a UK port however, the Union’s description of the bargaining
unit was seeking to take account of some future make-up of the Employer’s UK
operations and in particular to secure future coverage of any new routes that
might be opened from other UK ports. In
its view any route other than its existing route was not relevant to the issue
of the appropriate bargaining unit.
22. The
Employer submitted that acceptance of the Union’s description, would thereby permit
future coverage of other UK ports, and would prevent the views
of future workers being taken into account as their inclusion in the collective
bargaining arrangement would be made automatic. Furthermore, in the event that
the CAC did accept the Union’s description as appropriate and if the Employer were to
open up a new route which, by acquisition, could also entail taking on workers
under TUPE provisions, those new workers may already be covered by an existing
collective agreement with a different trade union. To allow such a possibility in its view would
be contrary to the CAC’s general duty under paragraph 171.
23. Referring
to the matters to be taken into account by the CAC when determining the
appropriateness of the proposed bargaining unit, the Employer submitted that it
had no plans, at this time, to open other UK routes and that Dover to Calais was the relevant location for the
CAC to take account of. If it did open
different routes at some future point the Employer asserted it would be inappropriate
for the workers at a new location to find themselves automatically covered by a
collective agreement by virtue of the wishes of the Dover to Calais workers. The characteristics of any
future workforce were also likely as not to differ to those of the current
Dover to Calais workers.
24. The
Employer argued that to describe workers in the appropriate bargaining unit that
were not in the Company’s existing operations would be contrary to the
application process. The Employer reminded
the Panel that for the application to be accepted, the CAC was required to
assess the proposed bargaining by applying tests to the Employer’s existing
workers at the time it was required to make its decision. The CAC had a duty actively to assess those
workers that were directly affected by its decision making.
25. The
Employer argued that like most organisations it was inevitable that some
re-structuring would occur over time to improve its operations and in fact the
Schedule itself catered for these changes by way of paragraph 66 of the
Schedule which allowed either Party to apply to the CAC should the bargaining
unit substantially change. The Employer
also pointed out that the Schedule was written in the present tense with an
intention to account for current situation i.e. at the time of the
application. The Law itself accounted
for a Company’s need to expand or retract the size of its workforce to adapt to
its business needs.
26. The
Employer submitted that the Union’s proposed bargaining unit, when looked at in light of the
alternative proposed by the Employer, could not be found to be compatible with
effective management. The Union’s proposed bargaining unit went beyond what was required to
describe the specific group of workers for which recognition was pursued and it
sought to secure a national bargaining arrangement. The Employer submitted that
it would be inappropriate to build in to the description of the bargaining unit
a mechanism whereby collective bargaining would, without any need to ascertain
support, be automatically extended to new routes from UK ports.
27. In
conclusion, the Employer invited the Panel to find that the Union’s description of the proposed
bargaining unit was not appropriate and to consider its alternative as an
appropriate bargaining unit.
Considerations
28. In addressing the
question of whether the Union’s proposed bargaining unit is compatible with
effective management the Panel has considered all the evidence put forward by
the Parties, including evidence directly relating to that central question and
that which relates to the matters listed in paragraph 19B(3) as outlined in
paragraph 4 of this decision. We note
that our task is not to decide the best, or optimum, bargaining unit, but to
assess whether the Union’s unit is appropriate when considered against the
various tests and the Employer’s counter proposal.
29. We
conclude that the Union’s
proposal is not appropriate and not compatible with effective management
essentially because it is too broad and vague a description, but that the
Employer’s definition is a little too narrow. We conclude that the appropriate
bargaining unit is:
“All Merchant Navy Officers with a U.K. Certificate of
competency, issued by the Maritime Coast Guard Agency, working out of the
port of Dover, on vessels operated
by Hoverspeed Ltd.”
30. It
would, in our view, be wrong to cast a bargaining unit that would encompass
wholly new routes from any port within the UK. Our bargaining unit reflects the
reality of the situation with an emphasis on the base port of the workers in
the bargaining unit, without focussing on the destination of the particular
route.
31. The
Panel notes the assurances from the Employer that it has no plans at present to
cease operations out of the Port of Dover.
However, the Panel is mindful that its duty under the Schedule is to
consider evidence and the situation as it is at the time it is required to make
its decision. The Panel notes and accepts
the Employer’s declaration that its only operational route in the UK is the Dover – Calais route and that it has no
current plans to close or alter it.
32. It is the Panel’s view that it would be
inaccurate and inappropriate to encapsulate within the description of the
appropriate bargaining unit speculative or potential other routes that the
Employer may at some time in the future open.
For a bargaining unit to be accurate a description of the present
location of the workers is usual and preferable. The proposed bargaining unit encompassed all
workers operating vessels from a UK port. It is appropriate for the bargaining unit to
specify the ‘base’ for a worker rather than the specific destination of a route
they may be required to operate.
33. The Panel has incorporated the common
ground between the Parties that the appropriate bargaining unit should cover Merchant
Navy Officers who have been issued with a UK certificate of
competency as issued by the Maritime Coastguard Agency. Both parties tied the bargaining unit to
vessels operated by Hoverspeed in their submissions, no doubt for reasons
relating to the difficulties surrounding the identity of the workers’ employer
dealt with in our acceptance decision. We see no need to interfere with this
aspect of the description.
34. It is not for the Panel to anticipate significant
future changes to a bargaining unit, particularly in a case such as this where
the Employer has stated that there are no plans to change the route currently
operated and that it would not be financially viable to do so, but a well defined
bargaining unit should provide sufficient flexibility to cater for minor
modifications and not become a straitjacket.
The Panel is satisfied that the
determined bargaining unit sufficiently recognises the current situation and
signifies the base location of the workers and is appropriate.
34. In
reaching its decision the Panel has specifically considered the matters listed
in paragraph 19B and has also taken account of the general duty in paragraph
171 of the Schedule. The views of the
Employer and of the Union
have been summarised above. Workers in
the proposed bargaining unit are not covered by any existing national or local
bargaining arrangements. The determined bargaining
unit would be the only bargaining unit for Merchant Navy Officers within the
Company, and the Panel does not consider it to be small or fragmented in the
context of the Company. The location of the workers has been taken into
account.
Decision
36. The
appropriate bargaining unit as determined by the CAC Panel therefore is:
“All Merchant Navy Officers with a U.K. Certificate of competency, issued by the
Maritime Coast Guard Agency, working out of the port of Dover on vessels operated by Hoverspeed Ltd”.
Panel
Chairman: Ms Mary Stacey
Members: Dr Elizabeth
Allen
Mr George Getlevog
14 October 2005
Appendix
Names of those attended:
For NUMAST
Mr Mark Dickinson - Assistant General Secretary
Paul Keenan - National Secretary
For Hoverspeed Ltd
Ms Sarah Parsons - Solicitor
Ms Sue Stevens - Finance Director
Mr Clive Hunt - Technical Director