Case Number: TUR1/440(2005)
7 April
2005
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:
GMB
and
Magna Kansei Limited (MKL)
Introduction
1. GMB (the
Union) submitted an application dated 15 March 2005 to the CAC that it should
be recognised for collective bargaining by Magna Kansei Limited (MKL) (the Employer)
for a bargaining unit described as “production operatives, warehouse/forklift
drivers, moulding operatives, cell leaders and stand in cell leaders, material
handlers, syncro drivers, containment inspectors, quality technicians, paint
and assembly, operatives, grannie operatives, maintenance technicians, tooling
assistants, marshalls/ drivers and team leaders” at MKL, Pennywell Industrial
Estate in Sunderland. The CAC gave both
parties notice of receipt of the application on 18 March 2005. The
Employer submitted a response to the CAC dated 24 March 2005 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 deal with the case.
The Panel consisted of Professor John Goodman CBE (Panel Chairman), Mrs Maureen
Chambers and Mr Sandy Boyle (Members).
The Case Manager appointed to support the Panel was Miss Maverlie
Tavares.
Background
3. 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; is admissible within the terms of
paragraphs 33 to 42 of Schedule A1 to the Act; and therefore should be
accepted.
4. The Union stated the number of workers
employed by the Employer was approximately 350 workers. In its proposed
bargaining unit the Union estimated that there were approximately
350 workers and stated that 99 were members of the Union.
The Union stated that it could provide a petition signed
by the employees to show support for the Union for
verification by the CAC on a confidential basis.
5. In its response to the Union’s
application, the Employer confirmed that discussions about recognition of GMB
had taken place with the Union, with assistance of ACAS,
between October 2004 and March 2005. The Employer indicated that both the
number of workers it employed, and the number of workers in the Union’s
proposed bargaining unit fluctuated due to the use of temporary labour, but
currently the respective numbers were approximately 650 and approximately 530.
These numbers are substantially higher than those suggested by the Union.
The Employer also made it clear that it did not agree to the proposed
bargaining unit. It said it had no evidence to support or otherwise the level
of union membership within the proposed bargaining unit claimed by the Union.
However it explained that from information obtained from its Employee Forum and
the regular Employee Opinion Survey (EOS), there was no indication that workers
wanted the Union to play a greater role in the company.
The Employer believed that if the majority of the workers in the proposed
bargaining unit were likely to support recognition of the Union,
it would have been made apparent in the Employees Forum and the EOS. It had
not. In a covering letter dated 24
March 2005, which accompanied its response, the Employer mentioned
a number of matters including a “disparity” between the bargaining unit
referred to by the Union in letter of 11 October 2004 and that identified
in its application to the CAC. In a letter dated 4 April 2005 the Union
explained that the exclusion of the two groups was the result of it accepting,
in the course of negotiations, the view that they should not be included in the
bargaining unit.
Considerations
6. In
deciding whether to accept the application, the Panel must decide whether the
admissibility and validity provisions referred to in paragraph 3 of this
decision are satisfied.
7. The
Panel has to decide, firstly, whether the Union’s
application is valid within the terms of paragraphs 5 to 8 and made in
accordance with paragraphs 11 or 12. The letter dated 11 October 2004 from the Union
to the Human Resources Manager of the company in which the Union
requested recognition under the Schedule is important in the Panel’s
consideration of whether the validity test has been met. The bargaining unit
described in this letter, was to request recognition on behalf of “production
operatives, warehouse/forklift drivers, moulding operatives, cell leaders and
stand in cell leaders, material handlers, syncro drivers, containment
inspectors, quality technicians, paint and assembly, operatives, grannie
operatives, maintenance technicians, tooling assistants, marshallers/ drivers,
quality engineers, team leaders and shift managers” at Pennywell Industrial
Estate in Sunderland.” This differs from the description of the bargaining unit
on the application to the CAC, as was pointed out by the Employer in its letter
dated 24 March, which accompanied its response to the Union’s
application. Specifically, two groups of workers, that is “quality engineers”
and shift managers” were omitted from the application to the CAC. The Union
appears to satisfy paragraph 8 of the Schedule which states “The request is not valid unless it – (a) is
in writing, (b) identifies the union or unions and the bargaining unit, and (c)
states it is made under the Schedule.” However this should be read in
conjunction with paragraph 2(3) which states “References to the proposed bargaining unit are to the bargaining unit
proposed in the request for recognition.” The bargaining unit on the application
submitted to the CAC states “production
operatives, warehouse/forklift drivers, moulding operatives, cell leaders and
stand in cell leaders, material handlers, syncro drivers, containment
inspectors, quality technicians, paint and assembly operatives, grannie
operatives, maintenance technicians, tooling assistants, marshalls/ drivers and
team leaders.”
8. The Panel appreciates that the Union has sought to resolve its
request for recognition by voluntary negotiation with the Employer. It
recognises that the process of negotiation may lead, as it has 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 (or other factors) 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.
9. The
Panel considers that by virtue of paragraph 2(3) the Union’s
application to the Employer requesting recognition was not a valid request for
recognition under Schedule A1. This is because the bargaining unit described in
the request letter to the Employer differed from the bargaining unit described
on the application to the CAC under Schedule A1. The Union
has not applied to the CAC to decide whether the bargaining unit proposed in
its request to the Employer for recognition is appropriate, in accordance with
the terms of paragraph 12(2) of the Schedule. The Panel did not consider the other
admissibility tests.
Decision
10. For
the reasons given above, the Panel’s decision is that the application is not accepted
by the CAC.
Panel
Professor John Goodman CBE
Maureen Chambers
Sandy Boyle
7 April 2005