Case Number: TUR1/454/(2005)
CENTRAL ARBITRATION COMMITTEE
TRADE
SCHEDULE A1 - COLLECTIVE
BARGAINING: RECOGNITION
DETERMINATION OF THE BARGAINING
UNIT
The Parties:
United Road Transport Union
(URTU)
and
First
Line Contracts Limited
Introduction
1. URTU (the Union) submitted an application to the CAC on 18 May 2005 that it should be recognised for collective bargaining purposes by First Line Contracts Ltd (the Employer) for a bargaining unit comprising “Drivers, Driver/Loaders, Crew Members, employed on Coca Cola work” at the Milton Keynes Depot. 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, Chairman of the Panel, and, as Members, Dr Elizabeth Allen and Mr Rod Hastie. The Case Manager appointed to support the Panel was Miss Kate Norgate.
2. By a decision dated 16
August 2005, the Panel accepted the Union’s application. The Parties then entered a period of
negotiation. 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. A hearing
was held on 21 October 2005 and the names of those who attended the hearing are
appended to this decision. For the
purposes of this decision Miss Sharmin Khan was appointed to replace Kate
Norgate as Case Manager.
Issues
3. At the start of the hearing the
Chairman of the Panel explained the provisions of the Schedule which were
relevant to the determination of the appropriate bargaining unit.
4. The Chairman of the Panel also clarified for the Parties that the Schedule does not permit the CAC to determine or to proceed on the basis of multiple bargaining units but that the Panel must decide on one single bargaining unit. The Union confirmed that it was proposing a single bargaining unit, albeit one that contained three groups of workers.
5. A summary of the Parties’ views as stated in their written submissions to the Panel and as amplified at the hearing follow.
Matters agreed between the Parties.
6. During the course of the hearing the Parties reached agreement on the following points:
7. The
8. The Employer clarified that one of the six Loaders was a night shift worker who was also a supervisor but that his role was a ‘hands on’ role and as such was essentially a Loader. The Parties agreed that this Loader would be included in the bargaining unit on the basis that the Union would negotiate on his behalf for collective bargaining purposes as a Loader and not a member of management. The Panel endorses this agreement. The Union reiterated that it did not include management in its proposed bargaining unit.
9. The Parties also agreed that the bargaining unit should relate only to the Milton Keynes site. The Employer explained that its Milton Keynes site was on the premises of Coca Cola and was not owned by the Employer itself. The Coca Cola Company had permitted the Employer to maintain its offices and to garage its vehicles there. Consequently, the Union’s reference to ‘Coca Cola work’ in its description of its proposed bargaining unit was redundant. The Panel concludes it is appropriate to confine the bargaining unit to the Milton Keynes site of the Employer, given the distinct nature of the work carried out there.
10. Thus, the main issue about which the Parties disagreed on was the exclusion of office workers, of whom there were currently 13 (the Office Workers). This total excluded four of the Office Workers that were members of management.
11. The Employer confirmed for the
Summary of Union’s Submissions
12. The
13. The Union also stated
that it was not uncommon for different categories of shopfloor workers i.e.
drivers and non-drivers, some of whom may or may not be covered by the Working
Time Directive, to be grouped as one bargaining unit, and that it was possible
for individuals in that unit to have differing terms and conditions of
employment relating to pay and/or hours of work without affecting the
appropriateness of the bargaining unit.
14. The Employer submitted
that the
15. The Employer first
explained to the Panel that it was a privately owned business with 81 staff
nationwide which from the
16. The Employer argued that
its proposed bargaining unit was appropriate for two main reasons. Firstly, that it required flexibility of its workforce
to manage the operation effectively and to encourage the transfer and mobility
of workers between all areas of work and secondly, that communication and
consultation methods already existed within the Company that successfully
covered the whole workforce.
17. The Employer stated that
it required its workers to be flexible in order to ensure all duties were
carried out and that the terms and conditions of employment for both office and
non-office staff were much the same. For
example, the Employer informed the Panel that each vehicle was operated by two
workers, one driver and one crew member.
The crew worker could sometimes be a second driver and both could carry
out identical duties. As another
example, the Employer explained that drivers were required to work as loaders
as and when necessary. This cross utilisation
of workers’ skills occurred on a daily basis and it was this flexibility that
was fundamental to the operation and was vital to the Company achieving the
requirements of the contract.
18. The Employer also
contended that all workers had the same access to communicate and consult with
management of all levels as its style was to communicate with its workers
directly. Workers could contact senior
management and the Company’s directors by mobile telephone or in person. Communications were currently facilitated by
staff meetings and an employee forum.
Pay reviews were carried out with elected staff representatives. The annual salary review resulted in pay
rates that were above inflation and in fact the drivers’ earnings were in the
highest percentile for the area. In its
view, the Union’s application could jeopardise these successful methods.
19. In conclusion the
Employer argued that fragmenting the workforce would have an impact on the
effective management by promoting an ‘us and them’ culture and was contrary to
the Company’s management style. It
certainly did not view shopfloor workers and office workers as separate groups
and if anything encouraged workers to cross over. It viewed the operation as one workforce
serving one customer. This had been
proven to be a good work ethic as the Company had demonstrated a stable
workforce, and management was equally compassionate to both office workers and
non-office workers alike.
20. In response, the Union argued that the flexibility of the workforce
and how it was managed by the Company was not of any consequence to the
appropriateness of the bargaining unit
and that the issue at hand was deciding which group of workers the Union could
sensibly collectively bargain on behalf of should it achieve recognition. In its view any negotiations on pay, hours
and holiday should not affect the Company’s style of management nor should it
affect how the Company sought to multi-skill its workforce. The
21. After hearing both the
Remuneration
22. The Employer
clarified that the Drivers and Crew workers received the same basic pay plus a
bonus based on nine different determinants which included, amongst other
things, the number of installations a worker completed in a day and maintenance
of a worker’s vehicle. The Employer
stated that remuneration for a driver could be 100% of his/her basic pay and
the bonus scheme was a method of managing and motivating high quality work from
drivers. The Loaders however received
basic pay plus over time as it was decided that managing a bonus scheme for
their type of work would be too difficult.
23. The 13 Office Workers included
two planning staff, two Electronic Data Interchange (EDI) staff, eight booking
staff and one traffic desk controller.
The EDI and booking staff were on the same basic pay and planning staff
and the traffic desk worker was on a higher basic pay. The Office Workers bonus scheme was based on
four determinants including attendance, productivity, and accuracy of work and
profitability of accounts. The Employer
stated that an office worker’s remuneration could be 30% of their basic pay.
24. The Employer also
confirmed that all workers received 20 days holiday per year. Some workers were on previous contracts which
allowed workers to earn an extra day of leave per year based on his/her
seniority. This had been available both
to office and non-office staff.
25. The Employer informed
the Panel that five of the six Loaders worked at night but only one of the Drivers
worked at night. All drivers had a basic
working week of 45 hours. Drivers
generally started at 5 a.m. though there was a day ‘shunter’ who usually
started at 9 a.m. A driver’s shift ended
when all deliveries had been completed and everything had been off loaded from
the vehicle. A driver also had the
option to call the office to see if there were any collections he could do on
the way back from his/her planned delivery route to earn more bonus. A driver on average would have two overnight
stays per week however, office workers worked fixed hours, starting at 8 or
Transferring workers
26. The Employer informed
the Panel that occasionally shopfloor workers were seconded to the Office to
improve the efficiency of its operations but that permanent transfers were very
rare, since drivers in particular were more highly paid than office workers. Drivers did sometimes transfer to loading work
in order to escape from the need to spend nights away from home and to secure
more regular hours. Transfers from the Office
to driving were unknown because of the need to have an appropriate licence to
be a driver.
Existing consultation with workers
27. The Employer confirmed
to the Panel that it currently had two methods of consultation. Firstly, third party consultation took place
i.e. an external Human Resource consultant updated the terms and conditions of
workers contracts annually. Secondly the
management negotiated or consulted with the workforce. The annual review was conducted at the same
time every year for both office and non-office staff but usually one month
apart. The consultation was carried out
at different times for office and shop-floor staff mainly due to the differing
accessibility of the workers.
Communicating with the Office Workers for instance was more easily done
during the day.
28. However the
29. The Employer concluded
that though there were some differences in remuneration between office and
non-office staff, this was because each type of worker required different
motivators. However, in its view the
main issue to resolve was how management could continue to effectively manage
its workforce which it had to date successfully achieved by treating and
viewing both types of workers as one whole workforce.
30. The Shopfloor Workers
operated in a clearly less controlled environment; hence the use of the bonus
scheme to manage them which inevitably meant there would be conflicting
interests between the two groups of workers.
It was likely that the nature of their jobs would lead to conflict and
it would be difficult to collectively bargain for a group that had such
differing patterns of work on a daily basis.
31. The
32. In conclusion the
Considerations
33. The Panel is required, by paragraph 19(2) of the Schedule to
the Act, to decide the appropriate bargaining unit. Paragraph 19B 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)
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.”
34. Since the Panel,
following the Parties’ agreement, has decided that the
35. Taking together the
Parties’ written and oral submissions, it emerged that the main issue in
dispute between the Parties and therefore the main issue upon which the Panel must
decide, is the matter of whether the bargaining unit should include the Office
Workers.
36. The issue of whether shopfloor and office
workers should be in the same bargaining unit is one that frequently arises
before CAC Panels and it is never an easy one to determine. In the Panel’s view the right answer requires
attention to be given to the circumstances of each particular situation. Among
other things it is important to establish to what extent the Employer’s current
arrangements treat the two groups as one and how far separately. In this case, the Panel finds that the
bargaining unit would be compatible with effective management if the Office Workers
were excluded. In particular, it has found the following evidence important for
its conclusion:
37. Firstly, though there
are a number of terms and conditions that are common to both the Office Workers
and non-Office Workers, there are also significant differences. Three notable differences were:
(a) Significance of the bonus in the overall
level of remuneration i.e. 30% for office workers and 100% for non-office
workers.
(b) The principles upon which the bonus is
calculated differ significantly between the two groups. There are nine different determinants for the
Drivers and only four for the Office Workers.
Profitability is not an element in the drivers’ bonus scheme.
(c) Both types of worker have the same contracted
hours. However, the patterns of work differ very significantly. For example the
Drivers start at 5am and on average have two nights a week away from home (sleeping
in the cabs) whereas the Office Workers basically work fixed hours and have no
nights away.
38.
Secondly,
there is little evidence of movement between the two groups of workers. The Panel notes that there is clear evidence
of movement within the group of non-Office Workers. However, there is only occasional evidence
of workers transferring between non-office duties and office duties on a
short-term secondment basis. This lack
of movement from shopfloor work to office work is unsurprising as there are
significant pay barriers to movement between the two areas. Likewise, there are significant barriers
(in terms of licensing requirements) to movement from office work to driving
work.
39. For these reasons the
Panel concludes that the appropriate bargaining unit in this case excludes the
Office Workers.
40. The Panel accepts that
the
Decision
41. The appropriate bargaining unit as determined by the Panel is
“All Drivers, Crew and Loaders
employed by First Line Contracts, located at its Milton Keynes Site.”
Since this unit differs from that proposed by the Union it will be
necessary for the Panel to determine whether the application is invalid within
the terms of paragraphs 43 to 50 of the Schedule.
Panel
Chairman - Professor Paul
Davies
Members - Dr Elizabeth Allen
- Mr
Rod Hastie
Appendix
Names of those who attended the hearing:
For URTU
Mr Mike Billingham - Regional Officer
Mr Lee Kennedy - Shop Steward
For First Line Contracts Ltd
Mr Ian Allgood - General Manager
Mr Adrian Colledge - Company Financial Controller