Case Number: TUR1/450/[2005]

24 November 2005

 

 

CENTRAL ARBITRATION COMMITTEE

 

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

 

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

 

DECISION ON FORM OF BALLOT

 

 

 

The Parties:

 

Transport and General Workers’ Union

 

and

 

easyJet

 

 

Introduction

 

1.         The Transport and General Workers Union (the Union) submitted an application to the CAC dated 18 April 2005 that it should be recognised for collective bargaining by easyJet (the Employer).  The Union’s proposed bargaining unit was described as all employees at easyJet/easyLand employed in the Contact Centre as Customer Service and Sales located at London Luton Airport.  The CAC gave both Parties notice of receipt of the application on 20 April 2005.  The Employer submitted its response to the application on 27 May 2005; the response 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 Frank Burchill, Chairman, and, as Members, Mr Ken Anthony and Mr Derek Hodgson.  The Case Manager appointed to support the Panel was Sarah Kendall.

 

3.         By a written decision issued to the Parties on 29 June 2005, the Panel accepted the Union's application.  Following this decision the Parties were able to reach agreement as to the appropriate bargaining unit.  The Union’s email and Employer’s letter both dated 19 September 2005 set out that the bargaining unit was as proposed by the Union in its application, namely: “All employees at easyJet/easyLand employed in the Contact Centre (or Core Centre) as Customer Service and Sales, excluding Management and Administrative staff, located at easyJet London Luton Airport.”.

 

4.         The Union by way of a facsimile dated 26 September 2005 informed the Panel that it claimed that it did have a majority of membership within the bargaining unit, stating that of the 178 employees in the bargaining unit 94 were members of the Union equating to 54% of the bargaining unit and therefore submitted that the Union should be awarded recognition without a ballot

 

5.         To assist the determination of the admissibility criteria set out in paragraph 22(1)(b) of the Schedule, the Panel proposed that the Case Manager should undertake a check of the level of union membership within the agreed bargaining.    The criterion is that the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the Union.

 

6.           The Parties agreed that the Employer would supply, to the Case Manager, a list of the names of the workers within the agreed bargaining unit and that the Union would supply, to the Case Manager, a list of Union members within that unit.  It was explicitly agreed with the Parties that, to preserve confidentiality, neither list would be copied to the other Party.   The agreed arrangements were confirmed in a letter dated 5 October 2005 to both Parties.  The requested information was received from both Parties on 10 October 2005.

 

7.         The Union provided a list of 105 named Union members which included addresses and, in most cases, individuals’ dates of birth.  The Employer provided a list of the 187 workers in the agreed bargaining unit which included addresses and dates of birth.

 

8.         The result of the membership check was that there were 187 workers in the agreed bargaining unit of whom 90 were members of the TGWU; a membership level of 48.13%.   The Panel was not satisfied that a majority of workers constituting the agreed bargaining unit were members of the Union and therefore gave notice, pursuant to paragraph 23(2) of the Schedule that it intended to arrange for the holding of a secret ballot in which the workers constituting the bargaining unit would be asked whether they wanted the Union to conduct collective bargaining on their behalf.  The Parties were advised that the Panel would wait until the end of the notification period of ten working days, as specified in paragraph 24(5), before arranging a secret ballot.  The Parties were also asked for their views on which form the ballot should take.

 

9.         The notification period under paragraph 24(5) of the Schedule ended on 26 October 2005.  The CAC was not notified by the Union or by both Parties jointly that they did not want the ballot to be held, as envisaged by paragraph 24(2).  Accordingly, the Panel will proceed with arranging a secret ballot.

 

10.       The Parties requested the opportunity to achieve agreement on the form of ballot during discussions regarding access.  Although the Parties reached agreement on the access arrangements finding a compromise on the form of ballot proved unyielding.

 

Union’s submissions on the form of ballot

 

11.       By letter dated 16 November 2005 the Union informed the CAC that its preference was that the ballot be a workplace ballot; the Union being of the view that there would be a greater participation from the employee group in determining their future and secure a higher density of voting.  The Union also produced letters written by five workers, whom the Union stated were Union members, reinforcing its view. 

 

Employer’s submissions on the form of ballot

 

12.       The Employer believed that a postal ballot would be preferable as in its view a workplace ballot would be impractical.  It stated that the contact centre is open from 08.00 to 20.00 seven days a week.  There are two main shifts a day and given the shift pattern staff are not all available on the same day, many of the staff are part time.  The Employer argued that to cover a reasonable number of shift permutations would require the ballot to be held over a number of days, which would be disruptive to the work of the centre.  The Employer also contended that a workplace ballot would be unnecessarily expensive.  To hold a ballot over several days would require considerable internal resources and the time of a QIP.

 

13.       The Employer anticipated a good response to a postal ballot.  It stated that the addresses of staff in the contact centre could be taken directly from its HR information system.  As the same addresses were used to deliver payslips the Employer would be advised of any changes and so was confident that these were up to date.  The Employer stated that a postal ballot allowed staff to make their decision privately away from the fast pace demands of the contact centre.  It would eliminate any possible suspicion or pressure being brought to bear on staff to either vote in the ballot or to vote in a certain way.        

 

 Considerations

 

14.       When determining the form of the ballot (workplace, postal or a combination of the two methods), the CAC must take into account the following considerations specified in paragraphs 25(5) and (6) of the Schedule:

 

(a)       the likelihood of the ballot being affected by unfairness or malpractice if it were conducted at a workplace;

(b)       costs and practicality;

(c)        such other matters as the CAC considers appropriate

 

15.       The Parties have put forward two different types of ballot for the Panel to consider.  The Union has argued for a workplace ballot on the grounds that there would be a greater level of participation from the workers in the bargaining unit. Conversely, the Employer has submitted that the ballot should be a postal ballot as a workplace ballot would be both impractical due to shift work and a high level of part time workers, and an unnecessarily expensive exercise utilising both the Employer’s and QIP’s resources.  The Employer states that it has a system, which is accurate, already set up which would facilitate a postal ballot.  It also argues that workers would be able to make a decision on the question of recognition in private and away from the busy environment of the workplace.

 

16.       The Panel has carefully considered the views of both Parties in the light of their previous experience of recognition ballots.  The Panel has decided that a postal ballot would be the most appropriate in this instance.  Due to the shift system and part-time working arrangements for many workers in the bargaining unit and the possibility that they may not be able to attend the workplace on the day of a workplace ballot, the Panel considers that a postal ballot is appropriate in this case. 

 

17.       The Panel believe that a postal ballot would give the workers the opportunity to weigh the merits of the Parties’ arguments away from the working environment.  The Panel accepts that holding a ballot in the workplace can result in a higher turnout of voters, however previous CAC experience shows that postal ballots generally have a similar response rate.  The Panel was not persuaded by the Union’s argument that a workplace ballot would, in this case, result in a higher turnout.  A postal ballot would also ensure that all workers on various forms of leave will be given the opportunity to participate in the ballot.

 

18.       The Panel was also persuaded by the Employer arguments regarding the expense of a workplace ballot.

 

Decision

 

19.       The decision of the Panel is that the ballot be a postal ballot.

 

20.       The name of the Qualified Independent Person appointed to conduct the ballot will be notified to the Parties shortly as will the period within which the ballot is to be held.

 

 

 

 

Panel

 

 

Professor Frank Burchill, Chairman

Ken Anthony

Derek Hodgson

 

24 November 2005