Case Number: TUR1/484/[2005]
22 December 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 Communication
Workers Union (CWU)
and
COLT Telecom Group
plc
Introduction
1.
The Communication Workers Union (the Union)
submitted an application to the CAC on 22
November 2005 that it should be recognised for collective
bargaining by COLT Telecom Group plc (the Employer) in respect of a bargaining
unit comprising “All UK employees (excluding management) who work for Network
Operations under the management of Head of Network Operations. This included all non-management UK
employees in the following 6 areas: Network Management Centre, Network
Management Centre – Date Services, Network Management Centre – Back Office,
Solutions Management Centre, Network Management Centre – Voice Services/Carrier
Switching and Security Operations Centre”.
The CAC gave both Parties notice of receipt of the application on 23 November 2005. The Employer submitted a response to the CAC
on 29 November 2005 that
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 Ms Mary Stacey, Chairman, and, as Members, Mr Rod
Hastie and Lord Lea of Crondall OBE. The Case Manager appointed to support the
Panel was Nigel Cookson and for the purposes of this decision, Sarah Kendall.
3.
The Panel extended the statutory deadline to decide whether
to accept the Union’s application on two occasions. Time was initially extended to 20 December 2005 in order to allow
for a check of Union membership and support for recognition to be
conducted. Time was further extended to 23 December 2005 to allow for the
Parties to comment on the result of the checks and for the Panel to consider
the evidence and representations before arriving at a decision.
Issues which the Panel has to determine
4.
The Panel is required by the Act to decide
whether the Union’s application to the CAC is valid within the terms of
paragraphs 5 to 8; is made in accordance with paragraphs 11 or 12; and is
admissible within the terms of paragraphs 33 to 42 of Schedule A1 to the Act
(the Schedule); and therefore is to be accepted.
The Union’s
application
5.
In its
application the Union stated that it had written to the Employer
on 4 November 2005 (a copy of its request letter to the Employer was attached to the
application) and that it had received no formal response within the timescale
set down by the legislation nor had it received a request to enter into
discussions with Acas. The Union stated that there were approximately 850
workers employed by the Employer with 50 workers in the proposed bargaining
unit. The Union believed that a majority
of the workers in the proposed bargaining unit would be likely to favour
recognition for collective bargaining as it had crossed checked its membership
lists with the Employer’s staff lists and discovered that over 70% of the
workers in the bargaining unit were members of the Union. Further, both members and non-members within
the bargaining unit had signed a petition in support of collective bargaining
by the Union.
The Employer’s response to the Union’s
application
6.
In its response to the Union’s
application dated 29 November 2005
the Employer stated that it had received the Union’s
written request for recognition on 7
November 2005. It responded
to the request on 22 November 2005
informing the Union that it did not agree to the request
for recognition but that it was willing to enter into negotiations to discuss
the matter further. It went on to say
that, in an email to the Union on 23 November 2006, it invited the Union
to enter into discussions and that Acas be invited to facilitate said
discussions. In correspondence with the Union the
employer indicated that it considered that its email of 22 November was within
the 10 day period, set out in legislation, for it to respond.
7.
Whilst the Employer understood and recognised the 6
areas listed by the Union (as described in paragraph 1
above) it did not understand the terminology “Network Operations”. However, when asked if it agreed with the Union’s
estimate as to the number of workers in the proposed bargaining unit the
Employer answered that, if the bargaining unit comprised non- management
employees in the UK
in the 6 areas listed by the Union in its application
then it agreed the accuracy of the Union’s figure of 50
workers.
8.
The Employer did not accept the Union’s
estimate of membership in the bargaining unit as it had no available evidence
by which to verify the Union’s information. It also disagreed with the Union’s
claim that the majority of workers in the proposed bargaining unit would be
likely to support recognition of the Union. The Employer’s initial enquiries indicated
that there was evidence that went to show that a significant number of the
union members in the bargaining unit did not want the Union
to conduct collective bargaining on their behalf. The employer supported this view by
submitting a statement from the Head of Network Operations, stating that he had
spoken individually to members of the Network Operations team, and that a
significant number had indicated to him that whilst wishing to be members of
the Union, they did not wish to be represented for the
purposes of collective bargaining.
9.
The Employer did not contend that the Union’s
application failed to meet any of the remaining admissibility or validity
criteria in the Schedule.
Membership and support check
10.
To assist the determination of two of the admissibility
criteria specified in the Schedule, namely, whether 10% of the workers in the
proposed bargaining unit are members of the union (paragraph 36(1)(a)) and
whether a majority of the workers in the proposed bargaining unit are likely to
support recognition of the Union as entitled to conduct collective bargaining
on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed a
check to be undertaken by the Case Manager of the level of union membership and
support for recognition within the proposed bargaining unit. It was agreed with the Parties that the Employer
would supply to the Case Manager a list of the names of workers within the
proposed bargaining unit, and that the Union would supply to the Case Manager a
list of Union members within that unit and a copy of its petition in support of
recognition to enable comparisons to be undertaken. It was explicitly agreed with the Parties
that, to preserve confidentiality, the respective lists and the petition would
not be copied to the other Party. These arrangements were confirmed in a letter
dated 7 December 2005 from
the Case Manager to both Parties. The
information from the Union was received by the CAC on 12 December 2005 and from the
Employer on 14 December 2005. The Panel is satisfied that the checks were
conducted properly and impartially and in accordance with the agreement reached
with the Parties. A report of the result
of the check of the level of Union membership and of support for recognition
was circulated to the Panel and the Parties on 15 December 2005.
11.
The Employer provided its list in the form of 2
spreadsheets – the first was a detailed list with, amongst others, columns
headed “employee number”, “full name”, “country”, “job”, “position title”,
“function”, “sub function” and “sub sub function” for each individual
named. The second spreadsheet gave only
the names of the workers concerned. The
“function”, “sub function” and “sub sub function on the first spreadsheet was
the same for each worker on the list, namely “Operations”, “Network
Engineering” and “Network Operations” respectively. There were 50 names on the
Employer’s list. The Employer, in its
covering letter dated 14 December 2005 stated that a number of workers had
confirmed to the senior manager of the relevant business unit, that,
notwithstanding trade union membership, they did not wish to be recognised for
the purposes of collective bargaining.
The Employer had duly informed these individuals that they should
consider writing to the CAC themselves to make their position known. The Employer enclosed a statement from the
Head of Network Operations in which he confirmed that a significant number of
workers in the Network Operations team had verbally informed him that they did
not wish to be represented by the Union for the purposes
of collective bargaining. However, no
evidence from individuals to this effect had been received by the Case manager
at the time that the check was conducted.
12.
The Union’s petition came in 2 forms. The first consisted of 3 A4 sheets with
multiple signatures on each sheet. The
second consisted of individual A4 sheets, one for each signatory, with 3
workers having signed the petition in this form. Each form of the petition carried the same
proposition, namely:
“I the undersigned [or the named
individual in the case of the separate sheets] support recognition of the
Communication Workers Union (CWU) for
the purposes of collective bargaining on pay, hours, holidays and other
relevant terms and conditions.”
Above the proposition on both forms of the
petition the Union informed the signatory:
“Your union will soon be
contacting COLT managers with the aim of establishing a voluntary recognition
agreement for the Network Operations section of the company. We hope that COLT will take this opportunity
to build a good relationship with you and your colleagues and the CWU.
If the company do not wish to come
to a voluntary union recognition agreement with you and your colleagues then it
will be necessary to reach a statutory agreement via the Central Arbitration
Committee.
It is important that you sign this
petition as it will be used IN CONFIDENCE as evidence that you and your
colleagues want the CWU to be recognised by COLT”
All of the signatures were dated between 13
October 2005 and 19
November 2005. No additional checks were carried out
by the Case Manager to verify the information supplied by the Parties.
13.
The list supplied by the Employer showed that
there were 50 workers in the Union’s proposed bargaining
unit. The list of members supplied by
the Union contained 34 names. According to the Case
Manager’s report, the number of Union members in the proposed bargaining unit
was 34, a membership level of 68%. The
petition supplied by the Union contained 45 names and
signatures, of which 42 were in the proposed bargaining unit, a figure that
represented 84% of the proposed bargaining unit. Of those 42 signatories, 34 were members of
the Union (68% of the proposed bargaining unit) and 8
were non-members (16% of the proposed bargaining unit).
Parties’ comments on the result of the
membership and support check
14.
The Parties were invited to lodge comments on the
result of the membership and support check.
15.
The Union
responded that it was satisfied with the check, other than it actually had four
members working in the bargaining unit whose names were not on the Union’s list
of members sent to the CAC. The Union stated that this
was due to an administrative error, and the workers had been members for some
time.
16.
The Employer responded that it was still
concerned at the apparent confusion over the description of the bargaining
unit, as the report seemed to take it as a given that the 50 workers names
submitted to the CAC did make up the bargaining unit. It referred to the
concerns raised in its response of 29
November 2005, see paragraph 7, and requested clarification as to
the claimed bargaining unit.
Considerations
17.
In
deciding whether to accept the application the Panel must determine whether the
admissibility and validity provisions referred to in paragraph 4 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.
18.
The
Panel was satisfied that the Union had set out its proposed bargaining unit with
sufficient particularity and that it was understood by the Union, the Employer and the CAC Panel to
comprise the workers in the 6 areas of operations identified in the Union’s application form. The Union’s description of this group under
the generic heading of Network Operations may not be exactly what the group is called
within the Employer, but both parties were clear as to the ambit of the
proposed bargaining unit as was clear from the correspondence and both sides’
estimate of the number of workers within it.
19.
The Union’s formal request for recognition
was set out in its letter to the Employer dated 4 November
2005. This request satisfied the provisions of
paragraph 8 in that it was in writing, identified the union and the bargaining
unit and stated that the request was made under the Schedule. The Employer, in
its response to the application dated 29 November 2005 confirmed that it
received the Union’s request on 7 November 2005 thus the first period, as set
out in paragraph 10(6), commenced on the following day, 8 November 2005 and
expired 21 November 2005, i.e. a period of 10 working days. However, the Employer did not respond to the Union’s request on 22
November 2005
saying that, whilst it did not agree to the request it was willing to enter
into negotiations. If such a response had
been made before the end of the first period it would have triggered the second
period of 20 working days under paragraph 12(2) for the Parties to enter into
negotiations and the Union
would have been barred from bringing an application to the CAC until this
period has expired. However, this
provision only applies if the Employer responds in such terms before the end of
the first period. In this matter the
Employer responded to the request the day following the expiry of the first
period and so the response, notwithstanding the offer to negotiate, has no
bearing on the application. Accordingly,
the Union was entitled to bring an
application to the CAC under paragraph 11 on the basis that the Employer had
not responded to the Union’s
request before the expiry of the first period of 10 working days starting with
the day after that on which the Employer received the request for
recognition.
20.
The
Panel is satisfied therefore 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.
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
21.
The
Panel has to decide 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.
22.
The
Panel is satisfied that the check of Union membership referred to in paragraphs
10 to 13 of this decision, which showed that 68% of the workers in the proposed bargaining unit
were members of the Union, was properly conducted. The Panel did not include
the additional 4 members claimed by the Union in their submissions on receipt of the
membership check for the purposes of its deliberations in this decision. The Panel has therefore decided that the level
of membership in the bargaining unit does constitute at least 10% of the
workers in the proposed bargaining unit as required by paragraph 36(1)(a).
23.
The test in paragraph 36(1)(b), is whether a majority
of the 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. To support its position the Union
relied not only on its density of membership in the proposed bargaining unit
but also on its petition in support of recognition. The Case Manager’s check indicated that 84%
of the workers in the proposed bargaining unit had, through signing the
petition, indicated support for recognition of the Union. In the absence of any evidence to the contrary, the Panel is
satisfied that the level of support indicated by the Union's petition, as well
as the high level of density of union membership, provides sufficient evidence
that the 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.
Accordingly, the test set out in paragraph 36(1)(b) is satisfied.
Decision
24.
For the reasons given above, the Union’s
application is accepted by the CAC.
Panel
Ms
Mary Stacey, Chairman
Mr
Rod Hastie
Lord Lea of Crondall OBE.
22 December 2005