30 November 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:
Transport and General Workers Union (T&GWU)
and
ASD Metal Services
Introduction
1. T&GWU (the Union) submitted
an application dated 3 October
2005 to the CAC that it should be recognised for collective
bargaining purposes by ASD Metal Services (the Employer) for a bargaining unit
comprising of “All hourly paid warehouse operatives and drivers below the level
of shift manager”. The stated location
of the bargaining unit was “Melton, North Ferriby, East Yorkshire.” This was received by the CAC on the 5 October 2005. The Employer submitted a response to the CAC
on 17 October 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 Kenny Miller,
Chairman of the Panel, and, as Members, Mr David Crowe and Ms Lesley Mercer. The Case Manager appointed to support the
Panel was Kate Norgate.
Issues
3. The Panel is required by paragraph 15
of Schedule A1 to the Act 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
Schedule A1 to the Act; and therefore to be accepted.
Views of the Union
4. In its application the Union referred to
attached copies of correspondence between the Parties. By a letter dated 1 September 2005, the Union made a
formal request for recognition to the Employer. The Union advised that
the Employer responded to its request by its letter of 7 September 2005, and
requested Acas involvement. The Union explained
that it had pursued the matter with the Employer but the Employer had failed to
progress the option. The Employer had
sent a further communication to the Union dated 27 September 2005 which
notified that it had secured a recognition agreement with another union, namely
“Community”. The Union stated that
the Employer had not provided a copy of that agreement and on the 26 September 2005 the Employer
had issued new individual contracts to its employees (a copy of this was
attached to the Union’s application). The contracts stated that “there are no
collective agreements directly affecting your terms and conditions of
employment.” In view of this, the Union believed
that the Employer had deliberately misled it in an attempt to frustrate its
application for union recognition to the CAC.
5. The Union stated that there were 28
workers in its proposed bargaining unit and that 21 of those workers were
members of the Union. It stated
that a majority of employees in its proposed bargaining unit were members and
had joined the Union recently in order to establish collective bargaining
in respect of their terms and conditions of employment. Finally, the Union stated that
the proposed bargaining unit had not been agreed with the Employer.
Views of the Employer
6. In its response to the Union’s
application, the Employer confirmed that it had received the Union’s letter requesting
recognition on 1 September
2005 and that it had responded by way of its letter to the
Union dated 7 September
2005. In that
letter, the Employer explained that it recognised “Community” at its Leeds site and “AMICUS”
(another union) at its site in Stoke. It
did not accept the Unions request for recognition but was willing to negotiate
with the assistance of Acas. It stated that it subsequently received a copy of
the Union’s application on 12 October 2005. The Employer did not agree with the Union’s proposed
bargaining unit and stated that there was already a recognition agreement in
force with the Community union and that that agreement covered the workers in
the Union’s proposed bargaining unit. The Employer declared that there were 118 workers in the Union’s proposed bargaining
unit. The Employer contended that the Union’s estimate on its level
of union membership only related to the Hull site and did
not relate to the Leeds site where 90 of the employees in the proposed bargaining unit were
located.
Further evidence on the issue in
dispute, Paragraph 35
7. In its letter of 25 October 2005,
the Panel invited the Employer to comment on the following points:
(a) Whether the Melton site was the
same as the entity referred to as ASD Hull in the document called ‘Recognition
Agreement’ submitted with the Employer’s Response, and if it was not, to
explain how the sites differed.
(b) The date on which the
agreement with Community expanded to encompass the Hull
site.
(c) The course of events that
led-up to the Employer issuing its letter, of 5 October 2005 (a
copy of which was submitted with its response), to all employees in the Union’s
proposed bargaining unit, as notification that there was an administrative
error at clause 20 of their recently issued contracts of employment. The letter explained that their contract of employment
should have read ‘there is a collective agreement in place and that collective
agreement is with Community’. However, the
Union’s application to the CAC stated that on the 26 September 2005 the
Employer had issued new contracts of employment, a copy of which was enclosed
for a Hull based Operative, which stated that at section 20, that there were no
collective agreements directly affecting the terms and conditions of employment
of that contract holder.
(d) Whether the letter, dated 5 October 2005,
was sent to all workers in the Union’s
proposed bargaining unit.
8. The Employer responded by
its letter of 31
October 2005 in which it clarified the following
points:
(a) The Melton site was the same
as the entity referred to as ASD Hull in the Recognition Agreement that was submitted
with the Employer’s Response form.
(b) The agreement with Community
was expanded to encompass the whole site in January 2005. In April 2004, the Leeds and
Hull
sites merged to form one trading operation (the Employer attached a copy of its
own internal newsletter detailing the reasons for the merger and the effect on
customers and the business). The
Community Union had been recognised by the Employer at its Leeds
site for many years and it was agreed verbally that on the merger of the Leeds and
Melton sites, recognition would be extended to the Hull
site. This was later agreed in writing.
(c) The introduction of new
contracts of employment was an ongoing exercise within the group and had been
for a couple of years. There were 38
operations throughout the United
Kingdom, and at most sites there was
no recognised trade union. At the Stoke
site however, Amicus were recognised and at the Leeds/Hull site Community was
recognised. A standard contract of
employment template was drafted by a Solicitor.
Section 20 of the contract contained standard wording that applied for
over 90% of the operations, namely, that there are no collective agreements
that directly affect the terms and conditions of the contract holder. The wording in the contract was brought to
the Employer’s attention by the T&GWU and was immediately rectified by way
of the letter from the HR Manager dated 5 October 2005.
(d) The letter dated 5 October 2005 was
sent to all employees at the Hull
site.
9. The Employer’s letter of 31
October was copied to the Union and
was asked for its comments.
Union’s Comments
10 By way of a letter to the
CAC dated 1
November 2005, the Union
stated that it believed the recognition agreement that was allegedly signed on 5 January 2005 was
not a genuine agreement, nor was it supported by any circumstantial evidence. It
explained that it was contacted by a number of employees in late April 2005, and
its Full-time Official had agreed to meet them.
At that meeting the Full-time Official enquired as to whether any other
employees at the Hull
site were members of another union. The
group informed the Union Official that no employees were members of another
union. The Union
stated that it questioned whether there was any involvement of other unions
within the Company. It was informed by a
group of employees that ISTC (now Community) were recognised for some employees
at the Leeds site, and similarly, Amicus
were recognised at the Stoke site. It
stated that it was agreed that the Full-time Official would contact the Regional
Manager of ASD Metal Services to discuss voluntary recognition.
11. The Union reported
which employees had attended the meeting and contended that all attendees would
have had knowledge of a recognition agreement had it been signed on 5 January 2005. The Union
explained that at the meeting it was agreed that the voluntary route to
recognition was the favoured way forward, and it was agreed that the Full-time
Officer would send a copy of a model collective agreement to the Employer.
12. The Union
continued to make further reference to communications it had with the
Employer. In particular, a letter dated 7 September 2005
received from the Employer in which it stated “whilst at this stage the Company
does not accept the T&WU’s request for recognition, it was willing to
negotiate and proposed that Acas be asked to help in conducting the
negotiations.” The Union argued
that this statement entitled it to believe that there was no recognition
agreement, covering workers employed at the employer’s Hull
site.
13. The Union commented
on a further letter from the Employer to the Union in
which it stated the Employer had informed that “the agreement with Community
extends to the Hull
site.” It stated that it believed the
Employer had not indicated when the agreement was extended as it believed it
would have caused it intense embarrassment in view of its previous statement.
14. The Union
re-iterated the point made in its application, regarding the correspondence and
events that occurred following its application to the CAC dated 3 October 2005. It made further reference to the revised contracts
of employment that the Employer issued to its employees on 26 September 2005. It stated that the Employer had allegedly
issued a revised version because of an error but on 4 January 2005 the Employer
had sent another statement to individual employees regarding their terms and
conditions, that once again stated that there was no collective agreement
applicable to their employment, even though, it stated, the Employer was now
claiming that the recognition agreement with Community was effective from 1
January 2005.
15. The Union
alleged that no representative from Community had visited the Hull
site in an attempt to recruit any employee into membership, neither, had
employees received any communications from Community. It claimed that local management had however,
allowed the T&GWU to display its posters and literature on notice
boards. In its final statement, the
Union made reference to paragraph 35 of Schedule A1. It stated that for the purposes of this case
the operable words must be “in force” i.e that there is some tangible evidence
that the agreement represents more than a dead piece of paper. The Union argued that the Employer had
produced nothing that would be indicative of such a live agreement. The Union
contended that the agreement was back dated in order to frustrate the Union
obtaining a recognition agreement and as such should be declared to be
inadmissible.”
16. The Union’s
response was forwarded to the Employer.
Employer’s Comments
17. The Employer responded on 10 November 2005. It stated the main thrust of the Union’s
submission appeared to be that there was no collective agreement with Community
in force at the Hull site
because the Employer had discussions with the T&GWU in 2005. The Employer did not dispute that it did have
various discussions with the T&GWU in respect of possible recognition, and
stated that at that time of those discussions it had an open mind as to whether
both the T&GWU and Community could be jointly recognised.
18. The Employer reiterated a
point it had made in its previous response regarding the merger of the sites
and the expansion of the agreement. It
further explained that following its discussions with the T&GWU, the
Employer’s Human Resource Manager had notified Community of this discussion, on
3 October 2005. Community then wrote to the Employer (a copy
was attached) reminding the Employer of its recognition agreement at the Hull
site. The Employer explained that on the
same day Community wrote to the Union as well, informing the T&GWU of its displeasure
that the Employer had been speaking to it regarding recognition. To provide clarification, it was agreed that
a recognition agreement covering the Hull
site was confirmed in writing. The
Employer stated that the agreement was duly signed by both the Employer and
Community. The effective date of that
agreement was stated as 1
January 2005 but the agreement was signed by the
Employer in October 2005.
19. The Employer submitted that
it believed the Union was
wrong in alleging that the recognition agreement with Community was not in
force for the purposes of the Paragraph 35 of Schedule A1. The
Employer stated that it wished to refer the CAC to The Court of Appeal’s
decision on the application of the National Union of Journalists (NUJ) v Central
Arbitration Committee and another, (a copy of which it enclosed), dated 24 July
2005. It stated that in that case the
Court of Appeal held that as a matter of normal legal contractual
understanding, an agreement would be in force when it is binding upon the
Parties to it. There is no requirement
that an agreement has to be capable of being operated but it is wrong to
suggest that an agreement has not come into force because of doubts as to its
future viability.
Considerations
20. 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 taken into account all the
evidence and argument submitted by the Employer and the Union.
21. As noted above, the first key issue the
Panel is required to address is whether the application is inadmissible under paragraph
35 of the Schedule. The Panel finds that
paragraph 35 of the Schedule does render the application inadmissible and does
so in light of the following considerations.
22. The Employer clarified the circumstances leading
up to the signing of the agreement with Community in October 2005 and explained
that its discussions with the T&GWU resulted in Community writing to the
Employer and reminding it of its recognition at the Hull site. The Employer had copied to the CAC the letter
dated 3 October 2005
from Community to the Employer regarding its talks with the T&GWU and of
the agreement that was already in force covering the workers in the Hull
site.
23. It also copied to the CAC a letter from
Community to the T&GWU also dated 3 October 2005, informing it of its displeasure
that the Employer had been speaking to the T&GWU. The
recognition agreement covering the Hull site
was subsequently confirmed in writing.
The Employer stated that that agreement was duly signed by both the
Employer and Community. The effective
date was stated as 1
January 2005 even although the agreement was
signed by the Employer in October 2005.
24. The Panel is therefore satisfied that
there is already in force a collective agreement under which Community is
recognised as entitled to conduct collective bargaining on behalf of the
workers in the T&GWU’s proposed bargaining unit.
25. Further, in examining the Union’s
application and the evidence submitted by both Parties the Panel notes that the
application submitted to the CAC was dated 3 October 2005 and received by the CAC on 5 October 2005. Schedule A1 contains detailed provisions regarding the
relevant date at which the Union can submit an application
to the CAC. The process starts with the
Union making a request for recognition to the Employer. Thereafter there is a negotiation period of
ten working days starting with the day after that on which the Employer
receives the request for recognition.
However, Schedule A1 also makes provision for a second period of 20
working days starting with the day after that on which the first period ends
where the Employer has informed the Union during the first
period that the Employer does not accept the request but is willing to
negotiate. This
second period can be extended by the agreement of the parties.
26. Looking at the circumstances in the
present case, the Panel considers that by virtue of paragraph 12 of the
Schedule the Union’s application dated 3
October 2005
submitted to the Employer requesting recognition was not a valid application
for recognition. Paragraph 12(1)(b) states that an application can only be
submitted if “no agreement is made
before the end of the second period.” As already indicated the “second period”
relates to paragraph 10 (7)(a) and (b) which states “(a) the period of 20
working days starting with the day after that on which the first period ends,
or (b) such longer period (so starting) as the parties may from time to time
agree.” The Union’s request was dated 1
September 2005 and was received by the Employer on 1 September 2005.
The Employer responded by letter dated 7 September 2005 stating its willingness to negotiate,
triggering the second period, which ended on 13
October 2005.
The Union’s application was received by the CAC on 5
October. The Panel concludes that the application was therefore premature and
is not made in accordance with paragraph 11 or 12.
Decision
27. The Union’s
application is inadmissible under the provisions of paragraphs 11 or 12 and paragraph
35 of the Schedule. The application is
therefore not accepted by the CAC.
Panel
Professor
Kenny Miller
Ms
Lesley Mercer
Mr David
Crowe.
30 November 2005