Case Number: TUR1/433[2005]

25 November 2005

 

 

CENTRAL ARBITRATION COMMITTEE

 

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

 

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

 

DECLARATION OF RECOGNITION WITHOUT A BALLOT

 

 

The Parties:

 

National Union of Marine Aviation and Shipping Transport Officers

and

Hoverspeed Limited

 

 

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) for a bargaining unit described in the following terms: ‘Certified Merchant Navy (MN) Officers working on vessels operated by Hoverspeed Ltd sailing from ports within the United Kingdom’.

 

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 (Panel Chairman) and Dr Elizabeth Allen and George Getlevog (Members).  The Case Manager appointed to support the Panel was Sarah Kendall.

 

3.         By a decision dated 4 July 2005, the Panel accepted the Union's application and, as no agreement was reached on the bargaining unit, subsequently 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.

 

4.         Following a hearing held on 14 September 2005 to determine the Bargaining Unit, the Panel notified the Parties of their decision on the 14 October 2005. The Panel's decision was that the appropriate bargaining unit was “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.”

 

5.         As the bargaining unit was different from that which was proposed by the Union in its application both Parties were invited to supply the Panel with written submissions relating to the validity tests. The Panel, having considered all the evidence was satisfied that the validity tests had been met.  By a decision dated 26 October 2005, the Panel determined that the application was valid and gave notice to the Parties (in accordance with paragraph 20(5) of the Schedule) that it would proceed with the application.

 

Issues

 

6.         Paragraph 22(2) of the Schedule requires the CAC to issue a declaration that a union is recognised as entitled to conduct collective bargaining on behalf of a group of workers constituting the bargaining unit if it is satisfied that a majority of the workers constituting the bargaining unit are members of the applicant union, unless any of the three qualifying conditions set out in Paragraph 22(4) are fulfilled.  If any of these conditions are met, or the CAC is not satisfied that a majority of workers in the bargaining unit are members of the applicant union, the CAC must give notice to the parties that it intends to arrange for a secret ballot to be held.  The qualifying conditions in paragraph 22(4) are as follows:

 

i) the CAC is satisfied there should be a ballot in the interests of good industrial relations;

 

ii) that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

 

iii) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of union members within the bargaining unit want the union to conduct collective bargaining on their behalf.

 

Union’s submissions

 

7.         In a letter dated 27 October 2005 the Union was asked by the CAC if it wished to claim majority membership within the bargaining unit, and if so, whether the Union wished to submit to the Panel that it should be recognised without a ballot in accordance with paragraph 22(2) of the Schedule.  The Union replied in writing on 1 November 2005.  It stated that it wished to claim majority membership.  Further, it requested that recognition should be granted without a ballot since there was no evidence of any of the qualifying conditions specified by paragraph 22(4) of the Schedule applying.

 

8.       On 1 November 2005 the CAC copied this letter to the Employer and requested its submissions, in respect of the three qualifying conditions.  The Employer responded by fax on 8 November 2005 (which was copied to the Union) stating that with effect from the 7 November 2005 the Dover to Calais operation ceased and no other Hoverspeed vessels were sailing from any port within the UK.  The Employer also stated that all bridge crew would be issued with redundancy notices effective from 11 November 2005.  However, the Employer explained that eight bridge crew would be retained to work as part of the ‘Run Off Team’ and it was proposed that these workers’ employment would be terminated at the end of the year.   The Employer argued that the decision to cease operations between Dover to Calais was permanent and therefore the bargaining unit (as described in paragraph 4 of this declaration) no longer existed.  The Employer stated that in the bargaining unit decision the Panel had acknowledged that Parties had tied the bargaining unit to vessels operated by Hoverspeed and in the absence of any vessels operating from the port of Dover due to the decision to terminate the service the bargaining unit no longer existed.  The Employer invited the Union to withdrawal its application.

 

9.         The Union in an email dated 17 November 2005 stated that it had no intention of withdrawing its application.  The Union contended that during the hearing in September, the Panel was presented with information about the concept of a base port out of which the workers in the bargaining unit were employed i.e. Dover and it was understood that that concept was clearly recognised by all Parties to those discussions.  The Union argued that the accepted definition of the bargaining unit did not say that the vessels had to actually sail and it therefore believed, since its members would be working as the run off team winding up operations, officers will be working out of Dover (since that is their base port) and therefore its claim for recognition was still valid. The Union submitted that the Employer supported that view by stating that the retained bridge crew were required to work as part of the Run Off Team winding up operations and dealing with maintenance and repair issues until the end of the year when they would be made redundant.

 

10.        The Union reported that during the ‘run off’ period workers in the bargaining unit would be required to move vessels and in fact one vessel had already been moved to Tilbury.  The Union argued that it was irrelevant within the context of recognition and the bargaining unit whether the vessels had passengers on, or whether they undertook a regular cross channel service.  The Union submitted that it was common place for officers to undertake this kind of work when a service was being run down or during re-fits and dry-docking.  The Union proposed that the Employer’s interpretation of the wording of the bargaining unit was unreasonably narrow.  The Employer was placing emphasis on "on vessels". NUMAST members continue to be employed out of Dover on vessels operated by the Employer.  Therefore, it was the Union’s belief that the Bargaining Unit continued to exist.

 

11.        The Union stated that it was aware of offers made to the Employer by prospective buyers of the business and that discussions were ongoing.  The Union contended that there was a very real chance that a service would operate in 2006.  Since a sale of the business would be covered by the TUPE Regulations and recognition would transfer it believed it was imperative that the CAC completed the statutory recognition process without further delay.

 

12.        Further to the CAC’s letter of 27 October 2005 and the closure of the Dover to Calais route the Union in an email dated the 18 November 2005 informed the CAC Panel that five of the eight bridge crew being retained to work as part of the Run Off Team were Union members.

 

Employer’s submissions

 

13.        The Employer contended that with the absence of any vessels being operated by Hoverspeed from the Port of Dover due to the decision to terminate the service, the bargaining unit no longer existed.  The argued that it had not sought to place a narrow interpretation on the description of the Bargaining Unit and that it stood to reason that if Hoverspeed had terminated the service then there were no vessels operating from the Port of Dover.  

 

14.        The Employer stated that the majority of Merchant Navy Officers had already been made redundant.  Eight officers were currently employed by the business having received individual correspondence from the Employer and have had personal interviews with members of the HR team they were prepared to accept their departure and redundancy at the end of the year.  They had also been advised of their financial settlement. 

 

15.        It was the Employer’s understanding that statutory recognition gave a trade union the right to collectively bargain on pay, hours and holidays.  It submitted that in the event that recognition was declared by the CAC, the reality was that there would never be any such negotiations on pay, hours and holidays.  This was because no collective agreement would be concluded between the Parties due to the fact that all remaining Merchant Navy Officers would be made redundant by the end of the year and the remaining hours of work were already rostered.  The Employer further stated that there would be no transfer of employees as suggested by the Union.

 

16.        In the event that recognition was granted, discussions between NUMAST and the Employer about any collective agreement would be a needless exercise.  The Employer refuted the Union’s suggestion that they warned the Panel that the Employer proposed to close the Dover to Calais route as at the time of the last hearing, the Employer had no plans to close the route.  The Employer reported that that decision was based on the fact that Sea Containers Limited were no longer in a position to support ongoing losses on the English Channel.  The Employer stated that it had faced many difficult economic circumstances over the years and sincerely hoped that it would have been possible to avoid the current circumstances in the interest of the business and its employees. 

 

17.        The Employer re-iterated that in the circumstances, it was sensible for all concerned for this application to either be withdrawn or for no declaration of recognition to be made to avoid a situation which is likely to resolve in the Employer having to file a notice on the Union in accordance with Paragraph 74(2) of the Schedule. 

 

Membership check and the Parties’ comments thereon

 

18.        To assist in deciding whether to arrange for a secret ballot under Schedule A1 to the 1992 Act, the Panel proposed an independent check of the level of union membership in the bargaining unit as set out in paragraph 170A.  The information was received by the CAC on 23 November 2005 from both Parties.  The Case Manager’s letter dated 23 November 2005 requiring the information from the Parties stated that to preserve confidentiality, the respective lists would not be copied to the other Party.

 

19.        Both Parties responded by email on 23 November 2005.  The Union provided a list of five NUMAST union members in the bargaining unit.  The Employer provided a list of seven workers within the bargaining unit further stating that those officers would all be terminated by reason of redundancy on 31 December 2005.  The result of the check was that all five names on the Union's list appeared on the Employers list; a membership level of 73.43%.

 

20.        The Union commented on the report by way of a letter dated 24 November 2005 stating that NUMAST members within the bargaining unit had demonstrated their overwhelming desire for Union recognition on a number of occasions and in different forms throughout its campaign for Union recognition.  Not least, through NUMAST’s formal consultation procedures, the outcome which has previously been supplied to the Panel, and in personally giving evidence when appearing before the Panel.

 

21.        The Union contended that the result of the membership check once again demonstrated the continued high level of Union membership in the bargaining unit.  Therefore, in light of the outcome of previous consultation exercises and a current union density of 73.43% in the bargaining unit, NUMAST submitted that it was unnecessary for the Panel to arrange a secret ballot of the employees in the bargaining unit.

 

22.        In a letter dated 24 November 2005 the Employer accepted that there were five members of the Union within the group of seven employees in the Bargaining Unit.

 

23.        The Employer re-iterated that if a Declaration is issued by the Panel in favour of the Union, it will make an application to the CAC, pursuant to Paragraph 74 of Schedule A1, that the Employer believes the unit has ceased to exist.  Upon the expiry of the notice periods of those employees within the Bargaining Unit (on or before 31 December 2005), there can be no dispute that the Bargaining Unit will have ceased to exist.  Given the certainty of dismissals within the Bargaining Unit, to issue a Declaration would put the Employer and the Union in a unmanageable situation. 

 

24.        The Employer reminded the CAC of its general duty contained in Paragraph 171 of Schedule A1 that it must “..have regard to the object of encouraging and promoting fair and efficient practices and arrangements within the work place….”   To impose an obligation upon the Employer to engage in collective bargaining with a union in respect of a Bargaining Unit that will no longer exist, is perverse and does not promote fair and efficient practices and arrangements within the workplace.   The Employer stated that it had no intention of engaging in collective bargaining with the Union in respect of employees who no longer work for Hoverspeed, to continue with this process and issue a Declaration would be futile, in fact perverse, and would demonstrate a blinkered approach to the reality of the Employer’s situation.  

 

25.        The Employer requested that if the Panel was not minded to accept its view on the merits of a Declaration for collective bargaining it would invite the Panel to order a ballot which would enable the remaining employees within the Bargaining Unit to express their own views on the merits of trade union recognition at this stage.

 

Considerations

           

26.        Before the Panel decides if any of the three conditions in paragraph 22(4) are fulfilled it must turn its attention to the preliminary issue of whether, in fact, the bargaining unit exists due to the closure of the Dover to Calais operation and if the eight retained workers constitute the bargaining unit.

 

27.        The Employer states that as from 7 November 2005 the Dover to Calais operation ceased to exist and a majority of the workers in the bargaining unit were made redundant with effect from 11 November.  Eight of the bridge crew, however, have been retained to work as part of the ‘Run Off Team’ carrying out maintenance and repairs and generally running the operation down.  The Employer argues that as the vessels are no longer running the bargaining unit cannot feasibly exist as its interpretation of the bargaining unit would suggest that it would be dependant on workers working out of the port of Dover on vessels (emphasis added).  The Union argues that eight workers are effectively working on these vessels and that it makes no significant difference if the vessels have no passengers or are not servicing the Dover to Calais route.  The Union claims that since the closure of the route workers in the bargaining unit are responsible for moving vessels and have already moved one vessel to Tilbury.  Further, the Union claims that operations such as maintenance and repair would indeed be part of the role of the worker prior to the closure of the route and that the bargaining unit did exist as long as the eight workers were employed by Hoverspeed. 

 

28.        The Panel has considered the representations from the Parties and it is satisfied that eight workers are employed within the bargaining unit as they constitute  “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.” And that the bargaining unit, albeit depleted is still in existence.

 

29.        The Act requires the Panel to consider whether it is satisfied that the majority of the workers in the bargaining unit are union members.  If the Panel is satisfied that the majority of the bargaining unit are union members, it must then decide if any of the three conditions in paragraph 22(4) are fulfilled.  If the Panel considers any of them are fulfilled it must give notice to the Parties that it intends to arrange for the holding of a secret ballot.

 

30.        The Panel has considered the results of the Case Manager’s report on the membership level within the bargaining unit as well as the other checks that were conducted as part of that report based on information that was provided by the Employer.

 

31.        Paragraph 22(4)(c) requires the Panel to order a secret ballot where membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the Union to conduct collective bargaining on their behalf.   Membership evidence being evidence about the circumstances in which union members became members and evidence about the length of time for which union members have been members.  No such membership evidence has been produced.  The Panel is therefore satisfied that this condition is not met.

 

32.        Paragraph 22(4)(b) requires the CAC to order a ballot when it has received evidence, which it considers to be credible, that a significant number of union members within the bargaining unit do not want the Union to conduct collective bargaining on their behalf.  No evidence has been put before the Panel to demonstrate that the Union members within the bargaining unit do not want the Union to conduct collective bargaining on their behalf and it is therefore satisfied that this condition is not met.

 

33.        Paragraph 22(4)(a) requires the CAC to order a secret ballot even when there is majority Union membership in the bargaining unit where it is satisfied that to do so would be in the interests of good industrial relations.  Having considered the Parties’ submissions as well as the results of the check conducted by the Case Manager, no evidence has been provided to show that a secret ballot should be held in the interests of good industrial relations.  The Panel is satisfied that the qualifying condition under paragraph 22(4)(a) has not been met.  It is clear that a majority of the workers in the bargaining unit are members of the Union. Union membership has been steadfast and sustained throughout the somewhat bitter recognition process whose history predates this application.

 

34. The Employer states it has no intention of negotiating with the Union on pay, hours and holidays and that recognition would be futile and all the workers in the bargaining unit will be dismissed at the end of the year and so it would be contrary to good industrial relations and our general duty under paragraph 171 to order recognition. We cannot agree with that submission which we find flawed as a matter of law, common sense and good industrial relations. If a desire by an employer not to engage in collective bargaining on the matters provided for in the statute were to be determinative it would become a voluntary process which would subvert the intention of parliament. It is not for us to speculate on what might be discussed and with what outcome, but we can well envisage matters of pay hours and holiday being apt for negotiation in the immediate future prior to the dismissal of the remaining workers in the bargaining unit. We do not agree that a declaration of recognition would be wholly futile as suggested by the Employer. Nor do we consider it to be perverse.

 

Declaration

 

35.        The Panel is satisfied in accordance with paragraph 22(2) of the Schedule that the majority of the workers in the bargaining unit are members of the Union.  Additionally, the Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule are met.  The CAC accordingly declares that the Union is recognised by Hoverspeed Limited as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit.

 

 

 

Panel

 

Ms Mary Stacey

Dr Elizabeth Allen

Mr George Getlevog

 

 

25 November 2005