Case Number: TUR1/444/(2005)
01 August 2005
CENTRAL ARBITRATION COMMITTEE
TRADE UNION
AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992
SCHEDULE A1 - COLLECTIVE
BARGAINING: RECOGNITION
DETERMINATION OF THE BARGAINING
UNIT
The Parties:
UCATT
and
Millennium
Stadium plc
Introduction
1. UCATT (the Union) submitted an
application to the CAC on the 24 March
2005 that it should be recognised for collective bargaining by
Millennium Stadium plc (the Employer) for a bargaining unit comprising of
“Manual/Security/Tour Guide staff employed full/part time based permanently at
the Millennium Stadium as their place of work.” 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 Paul Davies, Panel Chairman, and, as Members, Mr Dennis Scard and
Mr Neil Wallace. The Case Manager
appointed to support the Panel was Miss Maverlie Tavares.
2. By a decision dated 13 June 2005, the Panel decided
that the proposed bargaining unit, described by the Union in its application as
“Manual/Security/Tour Guide staff employed full/part time based permanently at
the Millennium Stadium as their place of work,” did not include Safety Stewards;
nor did it include the part-time tour guides except on days when they were
working for the Employer. In the decision dated 27 June 2005, the Panel accepted the Union’s application. The Parties then entered a period of
negotiation, in an attempt to reach agreement on the appropriate bargaining
unit. On 5
July 2005 the Employer notified the CAC that it disagreed with the Union’s
proposed bargaining unit, as it bears no relevance to its business, and that in
consequence there would be “no opportunity to “agree” one with UCATT.” The Panel decided to end the appropriate
bargaining unit period as it concluded that there was no reasonable prospect
that the Parties would reach an agreement. 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. A
hearing was held on 28 July 2005 and the names of those who
attended the hearing are appended to this decision.
Summary of the submission made
by the Trade Union
3. The Union submitted that the workers
in its proposed bargaining unit “(manual/security/tour guides staff employed
full/part time based at the Millennium Stadium as their place of work)” had a
clear and different distinction from the other workers employed at Millennium
Stadium plc. It argued that the workers the Employer wished to include in the
bargaining unit either worked at a different location or their job description
differed from those within its bargaining unit. The Union further argued that the
workers in its proposed bargaining unit clearly fell within the Stadium
Operations department as shown on the organisation chart provided by the
Employer. Only the two full time tour guides fell within a different department
(Business Development).
4. The Union stated that it did not want
the inclusion of the Events Stewards as there was no “mutuality of obligation”
between them and the Employer. It argued that this also applied to the casual
merchandising vendors. The Union also stated that it did not want the inclusion of the
part-time tour guides in its proposed bargaining unit.
5. The Union argued that there were
numerous companies that had a distinct group of workers for bargaining purposes
and could not understand why the Millennium Stadium plc could not take the same
approach. It further argued that the Employer may be in the process of
harmonising contracts for all its employees at the Millennium Stadium, but the
fact was these new contracts were not yet in place so the employees still had
different terms and conditions in their contracts.
6. The Union stressed that all of the
workers in its proposed bargaining unit were blue collar/manual workers. It
explained that any supervisors it had included in its proposed bargaining unit
were not managers but chargehands. The Union’s definition of chargehands
was “supervisors who predominately did the same work as the workers they
supervised.” The Union argued that it wanted to
exclude one worker from its proposed bargaining unit who worked in the Stadium
Operations department whose role was in management i.e. managing other
managers. The Union further argued that it only wanted workers who were
based at the Millennium Stadium not Golate House. It
believed that staff who worked in the other departments (Venue Sales/Ticketing/Business
Development/Group Services) were white collar workers and were based at Golate House, so did not fit its criteria to be included in
its proposed bargaining unit. The Union admitted that even though it had included the full
time tour guides and they worked in the Business Development department, it did
not know what the other workers did and for this reason argued they should
remain outside of its proposed bargaining unit.
Summary of the submission made
by the Employer
7. The
Employer submitted that the Union’s proposed bargaining unit was not compatible with
effective management in accordance with paragraph 19B(2)
of the Schedule to the Act. The Employer argued that the appropriate bargaining
unit should consist of the current 53 employees whose place of work was the
Millennium Stadium. The Employer explained that the employees all had the
Stadium as their contractual and place of work. The Employer further explained
that the employees’ terms and conditions of employment were consistent, and
that there was no difference between the core terms and conditions of the
workers in the Union’s proposed bargaining unit. It argued that the only
difference in the characteristics of the employees was the function each
employee would do for their job i.e. in Operations, Sales, Ticketing and
Commercial. 35 of the employees were based at the Millennium Stadium and the
other 18 were located at Golate House for financial
reasons. The Employer also stated that it was committed to locate all of the
employees together within the next six to nine months in a building adjacent to
the Stadium.
8. The
Employer argued that it would not be effective management for it to have a
business split in two because the Union wanted only to bargain for a group consisting of 21
employees. The Employer further argued that there was no justification for this
or obligation for it to do this under the statutory legislation and would
fragment the team. It further reiterated that there was no difference between
the employees regarding their employment status, their core terms and
conditions, reporting structures, management and explained that they had all
been awarded the same minimum percentage rise. The issue arose that some
employees received payment for overtime, whilst others received time off in
lieu. The Employer stated that this was being addressed and that employees
would be moving to receiving time off in lieu. The Employer also stated that
the issue of workers receiving different holiday allowances was also being
addressed.
9. The
Employer explained that the employees in the Group Services provided some
services to the Welsh Rugby Union. It stated that it was prepared to remove
this department from the bargaining unit. The Employer also provided an
organisational chart to demonstrate how the business operated, a copy of the
terms and conditions for employees of the Millennium Stadium plc, and a list of
all the workers of the Millennium Stadium plc. The Employer confirmed that it
had not omitted any permanent full time employees of the Millennium Stadium plc
from the list or included staff employed by the Welsh Rugby Union.
Considerations
10. Some background knowledge of the
development of the Employer’s business is useful for understanding the issues
in this case. Millennium Stadium plc is a virtually wholly-owned subsidiary of
the Welsh Rugby Union Ltd. This application relates solely to the employees of
Millennium Stadium plc, but confusion has arisen because some of those employees
have offices in a building where employees of the Welsh Rugby Union work (i.e. Golate House). Until recently, the Employer had been in
financial difficulties and is still heavily indebted and thus obliged to clear
important decisions with its principal bankers. During the period of financial
difficulties very little attention was paid to personnel matters so that
numerous anomalies and inconsistencies in terms and conditions of employment
arose. In the calmer waters which the company has now entered it has taken the
strategic decision to review terms and conditions, assessment of performance
and grading of jobs across its workforce. It was clear to the Panel that this
process was only in its initial stages and that many inconsistencies remained
to be dealt with.
11. The Panel is required, by paragraph 19(2)
of the Schedule, to decide whether the proposed bargaining unit is appropriate
and, if found to be not appropriate, to decide in accordance with paragraph
19(3) a bargaining unit which is appropriate.
In deciding an appropriate bargaining unit the Panel must take into
account, in accordance with paragraph 19B(2), 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. Those matters 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 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.”
12. The
Panel’s first responsibility is to decide, in accordance with paragraph 19B(2) of the Schedule, whether the Union’s proposed bargaining unit
is compatible with effective management.
The Panel’s decision has been taken after a full and detailed
consideration of the views of both Parties as expressed in their written
submissions and amplified at the hearing.
13. The
major issue, in the opinion of the Panel, is whether the Union’s proposed bargaining unit
is incompatible with effective management because it fails to embrace all
permanent employees of the Millennium Stadium excluding the Chief Executive and
Group Services department, as the Employer contended. At the hearing the Union redefined its criteria for
its bargaining unit. It used as its criteria for its bargaining unit the
inclusion of blue collar workers (manual workers), workers in a non supervisory
role, workers in receipt of overtime, those who were employed in the Stadium
Operations department and those with offices in the Stadium rather than at Golate House. When the Panel pointed out to the Union that
there were supervisors in its bargaining unit that were not in receipt of
overtime, it stated it no longer wanted to use that as a criterion. It also
argued that the supervisors in its bargaining unit were chargehands
(as defined in paragraph 6), and did not have a managerial role. It was also
brought to the Union’s attention that the tour guides which it wanted to
include in its bargaining unit did not work in the Stadium Operations
department. The Union explained that it still wanted to include them in its
bargaining unit but did not want the supervisor in the Stadium Operations department
as this role was part of senior management. This was not contested by the
Employer. The Union also ultimately abandoned rationales which depended
on whether the employees were in receipt of overtime pay and whether they had
offices in the Stadium or at Golate House. The Union concluded that its
bargaining unit should consist of full time workers employed in the Stadium
Operations department less one manager, and including the full time tour
guides, which totalled 28 workers.
14. The
Employer throughout its submission argued that if the bargaining unit was
defined as the Union had described it; it would not be compatible with
effective management and would lead to fragmentation at the Millennium Stadium
plc. The Union countered that the distinction between manual and non-manual
workers, which was the rationale it ultimately adopted for its proposed bargaining
unit, was not unusual in other organisations such as Panasonic and Sony. It
appears to the Panel that in this particular case, where the workforce is small
and where the Employer’s policy is to treat it as a whole, that the distinction
between manual and non-manual workers is not necessarily persuasive. We think
there is force in the Employer’s submission that its current and
partially-implemented policy for overhauling employment relations would be
substantially hindered if it were required to bargain in respect of only of its
small permanent workforce. We are fortified in this conclusion by the Union’s difficulty in applying
its own chosen criterion to the workforce. On the one hand, it was forced to
argue that the tour guides, which were manual workers because they walked
around the Stadium in the course of their duties, an analysis which ignores the
communication functions of the guides, which might be thought to be more
analogous to non-manual work. On the other hand, the Employer argued that the Union’s definition for the
inclusion of manual workers within in its proposed bargaining unit was not
consistent as there were manual workers within venue sales, ticketing,
corporate hospitality, sponsorship and branding and retail, yet the Union did not want these workers
included in the bargaining unit. The Union did not dispute this argument. We therefore conclude
that the Union’s proposed bargaining unit would not be compatible with
effective management.
15. We therefore turn to the question of what
bargaining unit would be compatible with effective management and otherwise
appropriate. The answer to this question really flows from our reasons for not
accepting the Union’s proposed unit, i.e. the appropriate unit should
embrace, in principle, all the Employer’s permanent workforce. During the
hearing the Employer conceded that the employees in the Group Services
department should not be included in the bargaining unit as some of their time
was spent on services provided to the WRU. We accept this argument for
excluding them from the bargaining unit. We also accept as appropriate the
Employer’s proposal that the Chief Executive should be excluded from the unit.
16. The
inclusion of the casual workers in the bargaining unit, based at the Millennium
Stadium has also been considered by the Panel. These are the events stewards,
the part-time tour guides and the merchandising vendors. There are large
numbers of both events stewards and merchandising vendors on the Employer’s
books, who are employed only for the purposes of particular events and whose
main employment, where they have one, is with an unrelated employer. The Panel
finds that setting the terms of employment of the casual workforce raises
issues significantly different from those of the permanent workforce and that
it would not be appropriate to include them in the same bargaining unit. The Panel has therefore decided that they
should be excluded from the bargaining unit.
17. The
Panel has considered the matters listed in paragraph 19B(3)
of the Schedule and for the reasons given above, the Panel’s decision is that
the Union’s proposed bargaining unit
is incompatible with effective management. The Panel’s determination is that
the appropriate bargaining unit in this case is the one proposed by the
Employer.
Decision
18. The
appropriate bargaining unit is all permanent employees of the Millennium
Stadium plc excluding the Chief Executive and the employees in the Group
Services Department.
Panel
Professor Paul Davies
Dennis Scard
Neil Wallace
01 August 2005
Appendix
Names of those who attended the hearing:
For UCATT
Mr N Blundell - Regional
Secretary, UCATT
For Millennium Stadium plc
Mr Tim Burton
- Head of Group
Strategy & Funding, Millennium Stadium plc
Mr Paul Sergeant
- Chief Executive,
Millennium Stadium plc