Case Number: TUR1/466(2005)
24 October 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:
The Ceramic and Allied Trade
Union (CATU)
And
Meadowstone (Derbyshire) Limited
Introduction
1. CATU (the Union), which had withdrawn an earlier
application, submitted an application dated 4 August 2005 to the CAC that it should be recognised for collective bargaining
purposes by Meadowstone (Derbyshire) Limited (the Employer) for a bargaining
unit comprising “all hourly paid workers employed at the Redhills
Road site”. This site is located at
Stoke-on-Trent, Staffs, and is referred to below as “the Stoke site”. The CAC gave both Parties receipt of the
application on 5 August 2005. The
Employer submitted a response to the CAC on 10 August 2005, which was then
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, Panel Chairman, and, as Members, Sir
Kenneth Jackson and Mrs Jean Johnson.
The Case Manager appointed to support the Panel was Miss Kate Norgate.
Issues
3. The Panel is required by paragraph 15 of Schedule A1 to the
Act (the Schedule) to decide whether the Union’s application to the CAC is
valid within the terms of paragraphs 5 to 9; is made in accordance with paragraphs
11 or 12; is admissible within the terms of paragraphs 33 to 42 of the Schedule;
and therefore to be accepted.
4. Within the above matters there were two main issues raised
in the Union’s application and the Employer’s response to that
application. Firstly,
whether the Union had the required level of membership and support in order for
its application to be admissible in accordance with paragraph 36 of the
Schedule. Secondly, whether there
was already in force a collective agreement under which a union is recognised
as entitled to conduct collective bargaining on behalf of workers in the
Union’s proposed bargaining unit, in accordance with paragraph 35 of the
Schedule.
Union’s Views
5. In its application the Union stated that there were 49
workers in its proposed bargaining unit and that 11 of those workers were
members of the Union. The Union indicated
that it could provide a petition in support of its application for recognition on
a confidential basis to the CAC and stated that 20 signatures on that petition
were from non-union members. The Union
also stated in its application that the T&GWU was recognised for collective
bargaining at the Employer’s sister site located in Derbyshire but referred to
a letter dated 20 April 2005 it had received from the General Secretary of the
T&GWU stating that it agreed not to seek recognition at the Employer’s
Stoke site i.e. the site for which this application is made.
Employer’s Views
6. In
response to the Union’s application the Employer did not dispute the number of
workers declared by the Union to be in its proposed bargaining unit nor did it
dispute the Union’s statement of its level of membership within that unit. However, the Employer stated that it had an
existing recognition agreement with the T&GWU covering hourly paid workers
at the Company’s Stoke site.
Membership and Support Check
7. To assist in the determination of the two admissibility
criteria specified by Paragraph 36 (1)(a) & (b) of the Schedule, namely
whether 10% of the workers in the proposed bargaining unit are members of the
union and whether a majority of the workers in that unit are likely to support
recognition of the union as entitled to conduct collective bargaining on behalf
of the workers in the bargaining unit, the Panel requested that the Case
Manager conduct an independent check of the level of union membership and
support in the Union’s proposed bargaining unit. The Employer agreed to provide a list of the
names and job titles of workers in the proposed bargaining unit and the Union
agreed to provide a list of its members within the proposed bargaining unit and
a copy of its petition to enable the Case Manager to compare the
information. It was explicitly agreed
with both Parties that to preserve confidentiality the respective lists and the
petition would not be copied to any other Party. The information was received from the
Employer and the Union on 17 and 18 August 2005 respectively. The Panel was satisfied that the checks were
conducted properly, impartially and in accordance with the agreement reached by
the Parties. A report of the results of
the check was circulated to the Panel and the Parties for comment on 22 August
2005.
8. The results of the check established that there were 47 workers in the proposed bargaining unit of whom 10 were members of the Union, which expressed as a percentage was 21.27%. The results also established that there were 31 names and signatures on the Union’s petition of which 29 or 61.70% were found to be workers in the proposed bargaining unit. Of those 29 signatories 10 were members of the Union i.e. constituting 21% of the proposed bargaining unit and 19 were non-union members constituting 40.42% of the proposed bargaining unit.
Parties’ comments on the results of the membership and support check
9. The Union
confirmed by an e-mail dated 22 August 2005 that it did not wish to submit any
comments in respect of the results of the membership and support check. The Employer, however, contended in its
letter/e-mail of 24 August 2005 that the level of union membership did not
represent 10% of the existing bargaining unit and that the majority of the
workers within the Company were members of the T&GWU and not CATU. The Employer reiterated its previous point
that there was in force an existing recognition agreement with the T&GWU
and that negotiated changes such as annual pay awards took place under that
agreement and applied to the whole Company, which included the Stoke site.
Existing agreement for collective bargaining
10. Subsequent to the Employer’s response to the application, the
Panel requested the Parties to further substantiate their opposing views on
whether the bargaining unit covered by the Employer’s existing collective
agreement with the T&GWU included those workers in the Union’s proposed
bargaining unit, namely those workers located at the Company’s Stoke site.
11. By a letter dated 15 August 2005 the Union referred the Panel
to a previous workplace ballot held by the Employer at the Stoke site. The Union explained that workers were asked
whether or not they wished to be represented by a trade union, and whether or
not they wished to be represented by CATU or the T&GWU. As supporting evidence the Union provided a
copy of the ballot form used by the Employer.
The results of this ballot are referred to in paragraph 24 of this
decision. In its later letter to the
Panel, on 5 September 2005, the Union questioned why the Employer had held a
ballot to assess support for CATU at the Stoke site if it believed the workers there
were part of the bargaining unit already covered by its agreement with the
T&GWU.
12. With its letter dated 15 August 2005 the Union also submitted
copies of two letters. The first was a
letter dated 12 April 2005, from CATU to the General Secretary of the
T&GWU, in which the Union informed the T&GWU that it was currently in
the process of ‘organising’ at the Stoke site.
The Union explained to the T&GWU that it was aware that it had
‘organised’ at the Company’s sister factory in Derbyshire but that that it was
convinced that the two sites were separate bargaining units and had therefore
made a formal application to the CAC.
The Union, in that letter, went on to request the T&GWU to refrain
from signing any recognition agreement relating to the Stoke site until the
process of its application had been exhausted.
The second was a letter from the General Secretary of the T&GWU to
the Union dated 20 April 2005 confirming that it would comply with the Union’s
request. In a later letter to the Panel
dated 5 September 2005 the Union pointed out that the T&GWU itself did not
share the Employer’s opinion that it had existing recognition and negotiating
rights for the whole company.
13. In its letter of 5 September 2005 the Union reiterated that in
its view the Stoke site was a completely different bargaining unit from that
covered by the Employer’s agreement with the T&GWU. The Union stated that it had a copy of the
agreement between Meadowstone (Derbyshire) Ltd and the T&GWU and in its
further letter to the CAC on 8 September 2005, the Union argued that the
recognition agreement clearly stated “agreement between Meadowstone Ltd
(Derbyshire) and the T&GWU”. There
was no reference to the Stoke site or any other sites within the document and
the T&GWU appeared to have accepted that it did not have a recognition
agreement which included the Stoke site.
The Stoke business was acquired over three years ago, after the
recognition agreement was signed by the T&GWU, and it could not see how the
plant could be covered by the current arrangements. The T&GWU did not have any members at the
Stoke site nor had the site ever been visited by a T&GWU officer.
14. The Union also stated that it was confused by the Employer’s
assertion that both sites were in the same bargaining unit and that negotiation
rights and changes such as pay awards under its agreement with the T&GWU
applied to the Stoke site too. It drew
attention to a letter from the Employer to the T&GWU dated 18 July 2005 in
which the Employer had indicated that there were differences in conditions
between the two sites and had suggested that the workforces at the Derbyshire
and Staffordshire locations appeared to have “slightly different priorities”. Finally the Union argued that it was obvious
that the Employer would prefer to recognise the T&GWU but that it appeared
that the vast majority of its employees working at the Stoke site would prefer
CATU to be recognised.
15. The Employer made a number of points in a letter dated 12
September 2005. In response to the
Union’s views on the written agreement between the Employer and the T&GWU,
the Employer stated that the insertion of (Derbyshire) into the Company’s
formal legal name, i.e. ‘Meadowstone (Derbyshire) Ltd’, was only as a result of
the Company realising at the last moment that there was already in existence an
unrelated business called ‘Meadowstone Ltd’ which was based in Tunbridge Wells.
‘Derbyshire’ was only added to differentiate between the two Companies. The Employer also explained that the recognition
agreement with the T&GWU did not make reference to any sites or any
addresses whatsoever and the front page of the written agreement made this very
clear. In fact the Company had three
sites in Somercotes, its main site and two smaller
ones.
16. The Employer also drew attention to the parts of the agreement
that stated “The Company considers the T&GWU to be the appropriate union
for its hourly paid and staff employees”, and “The Company recognises the Union
as the sole negotiating body for its hourly paid employees”. The Employer stated that its employees at the
Stoke site were all employed by Meadowstone (Derbyshire) Ltd. Furthermore, the agreement was signed by a Meadowstone
Director, Meadowstone’s General Manager, a T&GWU full
time officer, and two elected shop stewards.
Therefore, it was argued, the agreement could not be clearer and the
T&GWU were reneging on the agreement, “…. which the Company was obliged to
comply with by law”.
17. The Employer submitted evidence to further support its case by
copying to the CAC two letters. The
first, dated 5 September 2005 was from the T&GWU to the Employer, in which the
General Secretary stated that he believed that the best course of action would
be for the Employer to recognise its sister Union, CATU. The letter further stated that it was evident
that CATU had been recruiting at the Stoke site, and
that if in the future the Employer felt it would be appropriate to link the
Derbyshire and the Stoke sites for negotiation purposes, both CATU and the
T&GWU could consider a Joint Union Negotiating Committee. The second letter, dated 6 September 2005,
was a copy of the Employer’s response to the T&GWU in which the Employer stated
that it believed separate negotiations on two sites would be problematic and
time consuming. It also stated that it
already had an existing single union recognition agreement with the T&GWU
and that it would prefer the T&GWU to meet its obligations under that
existing agreement.
18. Finally, the Employer stated that the T&GWU appeared to
have failed to ‘organise’ at the Stoke site and was now passing on its
responsibility to CATU rather than meeting its existing obligations equally to
the workers at both sites.
Hearing
19. In advance of the hearing the Parties
were invited to provide and exchange written submissions. The hearing took place on 29 September 2005
and the names of those who attended are appended to this decision.
20. Prior to the hearing both Parties had
presented to the Case Manager further written evidence in addition to their
written submissions. At the commencement
of the hearing the Panel Chairman confirmed that no objection had been raised
by either side for the inclusion of the additional evidence. The Panel Chairman explained that the purpose
of the hearing was to establish whether the Union’s application could be
accepted by the CAC according to the tests outlined in paragraph 3 above. He asked the Parties to confirm whether they
accepted that the main outstanding issue was whether the Union had met the test
as set out in paragraph 35(1); that is, whether ‘there is already in force a
collective agreement under which a union is (or unions are) recognised as
entitled to conduct collective bargaining on behalf of any workers falling
within the relevant bargaining unit’.
Both Parties accepted that the main statutory test that remained in
contention was that contained in paragraph 35(1).
21. At
the Panel’s request, the Employer gave some background on the Company. It explained, making reference to the copy of
the “Certificate of Incorporation” in its submission, that the predecessor
Company started trading in 1988 as “Readystock
Limited”. Later that year a copy of the
“Certificate of Incorporation on Change of Name” showed the change to
“Meadowstone (Derbyshire) Limited”. The
Company had its main site and two smaller sites in Somercotes,
Derbyshire. In 2002 it acquired the
assets and goodwill of NBS Pennine at Stoke after the latter had gone into
administration. This was part of the NBS
Group and provided Meadowstone with additional capacity situated in Stoke-on-Trent. However, the Employer explained that in the
third quarter of 2003 Meadowstone (Derbyshire) Limited was close to
administration and a Crown debt of £500,000 was overdue. The Company brought in Price Waterhouse Coopers
who produced a full report on the business. It stated that the Company had been badly run
and there was a lot of overdue debt. The
general opinion at the time was that the market had deteriorated. The present
CEO and Deputy Chairman was recruited in 2004 to help
the Company through difficult times and he stated that it did not look as
though the Company would continue trading.
However, a number of changes were made and the Company has continued to
trade. This owed much to the goodwill
of the Crown in allowing time to repay the debts referred to above, some of
which still had to be re-paid.
Submissions of the Union
22. The Union started its submission stating
that it wished to notify those present at the hearing that CATU will soon be
changing its name to UNITY and would continue as an independent trade union. The Union accepted that the main purpose of
the hearing was for the Panel to decide whether or not there was already a
recognition agreement in force that covered workers in the Union’s proposed
bargaining unit. The Union referred the
Panel to a copy of the recognition agreement between “Meadowstone (Derbyshire)
Ltd” and the T&GWU and explained that the first page of the agreement
clearly stated “Meadowstone (Derbyshire) Ltd” and that, having carefully studied
the agreement, could not find reference to any site other than Derbyshire.
23. The Union then referred the Panel to a
copy of a ballot paper used by the Employer in its ballot of the workers at the
Stoke site and queried why the Employer asked the questions it did. It stated that these were hardly the actions
of a company that had an existing recognition agreement at the site.
24. The Union made reference to the
Employer’s e-mail dated 4 May 2005 containing the result of the ballot. This showed that 45 ballot papers had been issued,
13 were not returned, 17 voted for CATU, 8 voted for T&GWU and 7 did not
wish to be represented. The Union
reiterated its argument that the results of the ballot clearly demonstrated
that CATU was more than twice as popular as the T&GWU, and that these were
hardly the actions of workers at a site that had a recognition agreement with
the T&GWU. The Union added that, as
far as it was aware, no workers on the Stoke site were members of the
T&GWU. It further stated that it was
shocked when, having won a majority of those voting in
the ballot, the Employer said it was not interested in recognising CATU. Contrary to the Employer’s assertions, the
Union maintained that it had no hidden agenda. It explained that it had asked the T&GWU
not to sign an agreement for the Stoke site until the procedures with the CAC
had been exhausted, and that the T&GWU had agreed. It argued that this was just normal trade union
liaison.
25. The Union, referring to the letter, dated
5 September 2005 from the General Secretary of the T&GWU to the Employer,
in which he stated that having investigated the situation it was clear that the
best course of action would be for the Employer to recognise its sister union,
CATU. The Union asserted that not only
had the General Secretary of the T&GWU made clear that there was no
recognition agreement covering the Stoke-on-Trent site but he had also
encouraged the Employer to reach a voluntary recognition agreement with CATU.
26. It also commented on the letter dated 6
September 2005 from the Employer to the General Secretary of the
T&GWU. The Union drew attention to
the second paragraph of the letter, in which the Employer stated that “… we are
in a marginally better position to make that judgement [i.e. on whether it
should recognise CATU at the Stoke-on-Trent site] particularly as none of your
staff had ever been there or, [to the Employer’s knowledge] ever spoken to any
Stoke employee”. The Union questioned
whether the Employer would have made this statement if the Stoke site was
covered by the T&GWU agreement.
27. The Union maintained that the Case
Manager’s report on the membership and support check, which showed a membership
level of 21.27% and the level of support for the Union to be 61.70%,
demonstrated the support it had at the Stoke-on-Trent site. It believed the Employer’s argument was based
on a false premise. The recognition
agreement with the T&GWU was signed in April 2001, well over a year before
the Stoke-on-Trent site was acquired.
There was no evidence that the agreement had been extended to cover the
new site, and the union in question (the T&GWU) had indicated that it did
not.
28. The Union then took the Panel to copies
of letters it had submitted as additional evidence on the day of the
hearing. It referred to a letter, dated
12 April 2005, from the Employer to the Union, in which the Employer had
informed the Union “I have spoken to Acas today, and am looking at balloting the Employees as to whether they want CATU, or
T&GWU representation, or formal non union local representation, or stay as
is”. The Union emphasised the Employer’s
use of the words “or stay as is”. The
Union then referred to the letter, dated 13 April 2005, from the Employer to
the Union, in which the Employer refused the Union’s request for recognition, “…for
the time being at least”, while it held the ballot. The Union again emphasised the Employer’s choice
of words and contended that if there was a recognition agreement in force the
Employer would not have used such wording.
The Union referred to the letter, dated 4 May 2005, from the Employer to
the Union, in which it gave the results of the ballot wherein the Employer had
stated that “The conclusion is that representation by CATU is not appropriate
at this time”, thus re-iterating the term “at this time”, and questioning why
the Employer would use those words.
29. The Union then referred to a letter,
dated 9 May 2005 it had received from the Employer in which the Employer stated
“We will not grant it at present due to the feedback we have had from
employees, who’s wishes we will of course
respect”. The Union questioned the use
of the wording used by the Employer, and in particular the term
“grant it at present”.
30. The Union claimed that the employees at
the Stoke-on-Trent site saw their roles as different from those at the
Derbyshire site and that they would prefer to be represented by CATU. The Union, the T&GWU, and the workers themselves
would be extremely surprised if the Panel found that the recognition agreement
with the T&GWU covered the Stoke-on-Trent site. The Union submitted that the lack of any T&GWU
involvement whatsoever at the site was further evidence to demonstrate this.
31. In its closing statement the Union re-emphasised
its view that all the evidence indicated that the T&GWU recognition
agreement was not in force at the Stoke site.
It also wished to emphasise that it had one of the best records in the
country in terms of good industrial relations, and that it understood the
Company’s current difficulties. It explained
that it had tried to reach a voluntary agreement with the Employer but the
Employer would not now answer its calls.
It maintained that if, at some point in the future, it was awarded
recognition at the Stoke-on-Trent site it guaranteed the Employer that it would
work on good industrial relations and would do its best to help the Company
through any problems.
Submissions by the Employer
32. The Employer explained that it had asked
the General Secretary of the T&GWU to attend the hearing but he had
declined. The Employer indicated that it
had also invited the T&GWU full time officer who had been involved in
negotiations at Meadowstone to the hearing but suggested that he had been told
by the General Secretary of the T&GWU not to attend. The Employer explained that Meadowstone
(Derbyshire) Ltd was a legal entity. The
inclusion of ‘Derbyshire’ in the Company name is immaterial, as it was only
called Meadowstone (Derbyshire) Ltd to differentiate itself from another
unrelated company called Meadowstone Ltd.
It stated that it believed the current recognition agreement with the
T&GWU was a functioning agreement.
The Employer explained that there was a good relationship and trust
between the local T&GWU Representatives and Meadowstone. The Employer made clear that the Stoke site
was a satellite factory, not a business, and shared work allocated from the
main site at Somercotes, which had duplicate
production capabilities. There was no
locally employed management on site, and it was managed from Somercotes. Some
workers from Somercotes worked temporarily at the
Stoke site. The sites were less than 1
hour travelling apart. In the Employer’s
view it was not a viable bargaining unit.
33. The Employer’s representative drew
attention to a number of the points made earlier in the process and summarised
in paragraphs 15 to 18 above. He
indicated that, to his personal knowledge, the agreements negotiated with the
T&GWU covering the annual pay increase for each of the last two years had
been applied at both sites. For 2004 a
3% pay increase, delayed for three months due to cash flow problems but back
dated to 1 July 2005, was negotiated by the T&GWU. This was applied to all Meadowstone’s
hourly paid employees including the Stoke site.
This year a 3% pay rise was negotiated with the T&GWU and split 2%
from 1 January 2005 and 1% from 1 January 2006.
It stated that this had also been applied to both the Somercotes and Stoke sites. The level of trust was such that there had
been no requirement from either party for those annual pay increase agreements
to be set out in writing. It could
however confirm this with audited financial information if required. The Employer explained that he could not
comment on whether any representative from the Stoke site was involved prior to
him starting at Meadowstone in 2004. It
was during the pay negotiations in 2004 that he realised that there was no
representative from the Stoke site. The
Employer stated that he had not looked closely at the agreement with the
T&GWU and therefore responded to approaches from CATU. It stated that the agreement with the
T&GWU should have been considered more carefully. The Employer continued that in the 2004 and
2005 wage negotiations, although there was still no T&GWU representative on
or from the Stoke site, he had made visits to the Stoke site and was very open
with the workers on the situation with CATU.
It further stated that it welcomed the workers’ views on how they wanted
to be represented but that, as there were so many different views, nothing was
resolved at that time.
34. The Employer explained that a group of 4
or 5 workers at the Stoke site had recently been given harmonised pay rates
with the identical role at Somercotes. The Company was intending to move towards
harmonising the two sites. This year
contracts of employment had also been re-issued and the Employer stated that
they were to all intents and purposes identical. The Employer, in response to the Panel’s
question on what were the differences in terms and conditions at the Somercotes and Stoke site, explained that an incentive
scheme had been negotiated with the T&GWU and put in place at the Somercotes site to reward the workers. This scheme was then offered to but rejected
by the workers at the Stoke site who continued on their old scheme. The Panel questioned why the Employer would
deal with the sites in two stages i.e first Somercotes and then Stoke.
The Employer stated that efforts to deal with both sites were made at
the same time but as Stoke was a satellite factory with very little management
based there, Somercotes was therefore dealt with
first. The Panel commented that the
agreement referred to elements other than the annual pay increase and sought
details. The Employer explained that a
consultant was drafting new contracts of employment on terms and conditions
because there was very little in place.
Also, those contracts that were in place needed refreshing. The Employer explained that some transfer of
workers had taken place between the two sites.
Some workers had gone from Somercotes to Stoke
for short temporary periods, e.g. to pass on experience concerning quality, but
none had gone from Stoke to Somercotes. The Employer explained that when the Stoke
site was acquired the view was that the Stoke site should mirror Somercotes. However, working conditions and the physical
environment were different between the sites, and in order to increase
efficiency management was trying to reconcile the differences and to harmonise
the two sites.
35. The Employer contended that all employees
were employees of Meadowstone (Derbyshire) Ltd and that it could not see how
the agreement could be disputed. It
argued that the T&GWU had not fulfilled its obligations under the agreement
by not recruiting at the Stoke site and by not appointing workplace
representatives. The Employer understood
that the Stoke site fell in a different T&GWU region from the Somercotes sites. The
Employer had asked the T&GWU to inform it of whether it had any members on
site but that the T&GWU would not provide this information. The Employer explained that it had acted
responsibly when initially approached by CATU.
It believed the best way forward was to ask the employees whether they
wanted to be represented by a different union.
The Employer stated that a ballot was held to give the employees the
choice. The Employer did not understand
how this could be misinterpreted as indicating there was no existing agreement
in place. Whilst it believed it had
acted in an open and approachable manner the Employer was of the view that CATU
had acted wrongly. It asserted that CATU
and the T&GWU had made a deal behind its back and it speculated that there
may be some inter union “horse trading” behind the
scenes under the Bridlington Agreement, or perhaps a move by the T&GWU towards
absorbing CATU. The Employer felt that the
Union had used it as a bargaining tool by putting forward its own political
interests rather than those of its workers.
(These points were contested by the Union.)
36. The Employer made reference to the
additional letters submitted by the Union on the day of the hearing. It stated that its use of the wording “at
this time” in its letter dated 4 May 2005 was because it could not say that the
Union would never represent workers at this site. He said this was time dependent and
impossible to say. If the Union had honoured
its agreement with the Employer regarding the outcome of the ballot it would
probably have signed a voluntary agreement with it. However, the Union had libelled the Company
by giving false information in a leaflet it had distributed. This may have had
an adverse effect on its customers. It
asserted that CATU did not get majority support from the workers in the ballot and
that that was what had been agreed prior to the ballot. In response to the Panel’s question on what
would have been the Employer’s attitude if 100% had voted in favour of CATU,
the Employer explained that it would have spoken to the T&GWU and informed
it that as it had failed to represent on the Stoke site it would end the
agreement but it would feel bound by the provision in the agreement to give notice. It added that the T&GWU had not given
such notice in relation to the Stoke plant.
It re-iterated that its understanding of the ballot was that if a
majority of the Stoke workforce had voted in favour of CATU then it would have
a commitment to recognise it. Finally,
in its closing statement, the Employer summarised its arguments supporting its
position that the agreement with the T&GWU was in force.
37. At the hearing the
Employer agreed to seek to find and to let the Panel and the Union have copies
of a sample of the contracts of employment between NBS Pennine, the previous
employer at the site, and its workers.
Three of these were received by the CAC the following day and sent to
the Union. The Union commented that it
could find no reference in them to a recognition agreement with the T&GWU.
Considerations
38. 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. The Panel has carefully considered all the evidence and argument
submitted by the Employer and the Union, both orally and in writing, in
reaching its decision.
39. The Panel is satisfied that the Union made a valid request to the Employer within the terms of paragraph 5 to 9 of the Schedule and that its application was made in accordance with paragraphs 11 or 12. Furthermore, the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 34 and paragraphs 37 to 42 of the Schedule.
Paragraph 36(1)(a)
40. The
Panel is required to decide firstly whether, under paragraph 36(1)(a) of the Schedule, members of the Union constitute at
least 10% of the workers in the proposed bargaining unit and also, whether,
under paragraph 36(1)(b), a majority of workers constituting the proposed
bargaining unit would be likely to favour recognition of the Union as entitled to
conduct collective bargaining on behalf of the bargaining unit.
41. The
Panel is satisfied that the check of Union membership referred to in paragraph
7 of this decision, which showed that 21.27% of the workers in the proposed bargaining unit
were members of the Union, was properly conducted. The Panel has therefore decided that the
level of membership does constitute at least 10% of the workers in the proposed
bargaining unit as required by paragraph 36(1)(a).
Paragraph 36(1)(b)
42. The
second issue for the Panel to consider is whether, under 26(1)(b),
a majority of workers constituting the proposed bargaining unit would be likely
to favour recognition of the Union as entitled to conduct collective bargaining
on behalf of the bargaining unit.
43. The Case Manager’s check of the Union’s
petition against the list of 47 workers provided by the Employer indicated that
31 of the petition signatories were workers from within the proposed bargaining
unit, a support level of 61.70%. Having given full consideration to the
evidence made available to it the Panel is satisfied that, in accordance with
paragraph 36(1)(b) of the Schedule, a majority of the
workers in the proposed bargaining unit would be likely to favour recognition
of the Union.
Paragraph 35
44. The third issue for the Panel to decide is whether there was already in force a collective agreement under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit. This issue was strongly contested by the Parties, and the Panel has given close consideration to all the evidence presented to it and to the provision set out in paragraph 35(1).
45. In reaching its decision, the Panel has
taken fully into account the Employer’s contentions. It accepts that the workers in the proposed
bargaining unit are all employees of Meadowstone (Derbyshire) Ltd and that the
inclusion of (Derbyshire) in the Company’s formal title in no sense imposes a
geographical restriction on the possible scope of the collective
agreement. It accepts also that the
wording in that agreement, particularly the references in paragraphs 2 (Scope)
and 4 (Recognition) is not site specific and refers openly to categories of
workers. Paragraph 2 of the agreement,
inter alia, states that “this agreement is effective
for all hourly-paid and staff employees…”, and that “The agreement may be
terminated by either party giving three months notice of intention”. Paragraph 4 is equally unambiguous about
recognition of the Union “…as the sole negotiating body for its hourly paid
employees and all matters affecting the terms and conditions of employment of
such employees shall be subject to negotiations between the Company and the
Union”. The Union’s application and its
proposed bargaining unit relate to hourly paid employees.
46. The Panel accepts that negotiations have
taken place between the Company and the T&GWU e.g. the annual pay review. It also accepts that the Employer has applied
these increases to the Stoke site at least in 2004 and 2005. It notes, however, that no representative has
been involved in the negotiations from the Stoke site. There are a number of possible explanations
of this including, as seems probable, that the T&GWU has no members there
and thus no representative.
47. There are a number of potential reasons
why an Employer might chose to apply the same annual rates of increase in pay
rates to different plants. It is the
Panel’s considered view that the application of uniform annual pay increases
does not, in itself, mean that the agreement was in
force at the Stoke site. It is, however,
one of the facts taken into account.
48. Paragraph 35(1) of the Schedule requires
the CAC to be “…satisfied that there is already in force a collective agreement
under which a Union is entitled to conduct collective bargaining on behalf of
any workers falling within the relevant bargaining unit.” A key question, therefore, is whether the
Agreement reached with the T&GWU in April 2001, i.e. over a year before the
Stoke-on-Trent site was acquired by the Company, is “in force” at that site.
49. There was little or no formal written
evidence available to the Panel regarding the
transfer of Stoke based employees to the Employer at the
time of its acquisition. After the
hearing, the Employer sent to the Panel copies of a sample of three contracts
of employment between workers and NBS Pennine, with start dates in January
2000, November 2001 and January 2002.
None of these referred to trade union recognition, nor
to any involvement of a trade union in matters such as remuneration, discipline
or grievances.
50. The Employer told the Panel that there were no written agreements between the Employer and the T&GWU dealing with substantive matters such as pay, hours and holidays. Despite an explicit request from the Panel in the Case Manager’s letter dated 15 September 2005 to the Parties prior to the hearing no detailed and persuasive information on these matters as they existed at the different sites was presented. However, the Panel was told that different incentive schemes were in operation at the two sites, and that the pay rates of one (relatively small) group of workers doing the same or similar job at the main and the Stoke sites had recently been “harmonised”. The Employer indicated that there was still some way to go in harmonising conditions between the workers at Stoke site and elsewhere in the Company, though it was intended to do this in the future. The Union, as an external body with members only at the Stoke site, was unable to give comparative data on these matters to the Panel. The Panel considered that in view of the wide scope given to the Employer and the T&GWU in the recognition agreement to negotiate, inter alia, on “Wages and Conditions”, evidence on these matters would be very important in establishing that the recognition agreement was “in force” at the Stoke plant. No such evidence was presented. Nor was any evidence presented from workers at the site indicating the applicability of the agreement to their terms and conditions of employment. The agreement makes explicit provision for the union to be involved in various issues for example in discipline, grievance and redundancy procedures. There was no evidence of the T&GWU’s involvement in such cases at the Stoke site.
51. It is clear that the T&GWU, as represented in letters from its General Secretary, did not consider that the recognition agreement, signed in April 2001, was in force at the Stoke plant. This view of the situation was fundamental to the application by CATU to the CAC, and indeed emphasised in its approach to the Employer and to the CAC. The Panel understands and accepts many of the points made by the Union concerning the Employer’s action in running a ballot to seek to establish the views/preferences of the workforce. On balance, it considers it is clear that at the time, the Employer did not suggest that the Stoke site was covered by the agreement and that this argument has been advanced only relatively recently.
52. The Panel is very conscious that the
intention of the legislation is that the CAC should not become involved in
“inter-Union” disputes. In this case,
there is no such dispute. The Unions are
agreed. The Employer, however, has
argued that the T&GWU has failed in its duty to seek to organise workers at
the Stoke plant, and has thus abrogated the recognition agreement. This is because it now takes the view that
the agreement - as it does not restrictively specify sites and does indicate
“all hourly-paid employees”, is in force at the Stoke plant. The Panel’s view is that these points, and
others set out above, are not persuasive and do not reflect the realities of
the situation at the Stoke site. Its
judgment, following the hearing, is that the recognition agreement with the T&GWU
is not in force at the Stoke site.
53. For the reasons given above the Panel has
decided that the recognition agreement signed between Meadowstone (Derbyshire)
Ltd and the T&GWU was not “in force” at the Stoke-on-Trent site.
Decision
54. The Panel is satisfied that the
application is valid within the terms of paragraphs 5 to 9, is made in
accordance with paragraph 11 or 12 and is admissible within the terms of
paragraphs 33 to 42 of Schedule A1. The
application is therefore accepted by the CAC.
Panel
Professor John Goodman
Mrs Jean Johnson
Sir Kenneth Jackson
24 October 2005
APPENDIX
Names of those who attended
the hearing:
For the Employer
Mr Mike Abbott – CEO & Deputy Chairman
For the Union
Mr Geoff Bagnall – General Secretary