Case Number:
TUR1/487/2006
17 February 2006
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:
Community
and
Four Seasons
Health Care Limited
Introduction
1. Community
(the Union) submitted an application to the Central Arbitration Committee (CAC)
dated 17 January 2006 that it should be recognised for collective bargaining by
Four Seasons Health Care Limited (the Employer) in respect of the bargaining
unit described as “all care staff below the level of house deputy manager,
ancillary and domestic staff employed at Marquis Court: and excluding employees
in the training department, administrative staff and managers”. The CAC gave both Parties notice of receipt of
the application on 19 January
2006.
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
consider the case. The Panel consisted
of Mr Chris Chapman (Panel Chairman), Sir Bill Connor and Mr Ged Fisher
(Members). For the purposes of this decision Mr
Ged Fisher was replaced by Mrs Diana Palmer. The Case Manager appointed to
support the Panel was Sarah Kendall.
3. The
Panel is required by the Act to decide whether the Union’s
application to the CAC is valid within the terms of paragraph 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 to the Act and is therefore to be accepted.
4. The
Union stated that the proposed bargaining unit, as
described in paragraph one of this decision, was located on the one site at
Marquis
Court, Littleworth
Road, Hednesford, Cannock, and were
employed on similar terms and conditions.
The Union estimated that its proposed
bargaining unit comprised approximately 66 workers of whom 43 were its members.
5. The Employer’s response dated 27 January 2006 made the
following points: the Employer employed a total of c.20,000 workers though 90
at Marquis Court. It stated that the correct number of workers
in the Union’s proposed bargaining unit was 78;
the Employer was doubtful whether the Union’s estimated
membership was correct due to the high turnover throughout the industry. The Employer did not agree with the Union’s proposed
bargaining unit stating that if there were a recognition agreement it should
cover all staff at the site. The
Employer asserted that there were robust procedures for resolving workplace
disputes adding that it felt that the staff had nothing to gain by supporting a
recognition agreement.
Membership and support check
6. To assist the
determination of two of the admissibility criteria specified in the Schedule,
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 favour recognition of the Union as
entitled to conduct collective bargaining on behalf of the bargaining unit
(paragraph 36(1)(b)), the Panel proposed that a confidential check be
undertaken by the Case Manager. In
letters to both Parties dated 2 February 2006 the Case Manager
requested that the Employer provide a list of the workers together with full
job titles within the proposed bargaining unit and that the Union provide a list of its
members within the proposed bargaining unit. The Case Manager’s letter confirmed that the
information provided by each of the Parties would not be copied to the other
Party or the Panel.
7. The Employer
provided a list containing the names and job titles of 78 workers within the Union’s proposed bargaining
unit. The job titles were as set out
below:
Activities Organiser Laundry Assistant Domestic Assistant
Registered Nurse Maintenance Enrolled Nurse
Carer Receptionist Cook
Catering Assistant Senior Carer
8. The Union provided a copy of its
Branch Index Report printout as at 2
February 2006, the information included the following: Full name,
Employer, pay source, join date, date of birth and full postal address. In the Union’s covering letter it
stated that the report listed paying members only. The report reflected that all 40 Union
members paid subscriptions by direct debit.
9. The membership
check indicated that there were 40 members of the Union within the proposed
bargaining unit; a membership level of 51.28%.
A report of the result of the check of the membership level was
circulated to both Parties on 3 February 2006.
Views of the Parties
10. In
its letter dated 7 February
2006 the Union reiterated
that it believed the number of workers in the bargaining unit did not exceed 66
workers and was surprised that in its response the Employer stated that the
workers in the bargaining unit constituted 78 workers. It was the Union’s belief
that the Employer had not interpreted the proposed bargaining unit as it was
intended. It was the Union’s contention
that the Employer had incorporated job titles that the Union did not
include in its description. The Union set out the
workers who, in its view, should not be included in the proposed bargaining
unit. The Employer included 10
registered and enrolled nurses, which the Union stated were
not ancillary or caring staff but skilled employees with managerial
functions. The Employer also included
one receptionist who the Union claimed was
an individual who performed an administrative role. The Union surmised that had these job titles
not been included within the proposed bargaining unit the bargaining unit would
comprise of 67 workers as quoted in the Union’s application to the CAC.
11. The Union stated that
the membership check demonstrated that the Union membership exceeds the 10% of
the workers constituting the bargaining unit.
12. The Union stated that
the membership check demonstrated that a majority of the workers within the
proposed bargaining unit were Union members.
Further, it stated that if the individuals as described in paragraph 6
were removed the Union would be confident that a
revised membership check would have indicated support of 59.7% within its
proposed bargaining unit. The Union referred to
a recent grievance at the site relating to terms and conditions of employment. It stated that the grievance had been collectively
managed through the Union and resolved with guidance to
members from Community full time officials.
In the Union’s view it clearly demonstrated that
workers had joined the Union for
collective bargaining purposes.
13. The Employer in a telephone
conversation with the Case Manager did not wish to comment on the membership
check itself but re-iterated its views contained in the Employer’s
response. However, in reply to the Union’s claim
dated 8 and 9 February
2006 the Employer contended that registered nurses were
clearly below the level of the Deputy Manager in the hierarchy and stated that
they were not members of management but members of the group of staff who
directly cared for people. The Employer
disputed the Union’s claim that the recent grievance
was collectively managed as the company’s grievance procedure did not provide
for collective grievances. The Employer
reported that resolution was achieved in response to the raising of individual
grievances.
14.
In order to clarify its position regarding the collective grievance the Union in an email
dated 13 February 2006 set out that
a number of meetings were held with groups of members advising the workers on
how to take their grievances forward.
Whilst the Union conceded the fact that the
company’s procedure only allowed for individual grievances to be raised, the Union managed the
complaints on a collective basis and that the outcome affected a group of
workers and not an individual.
Considerations
15. 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
considered all the evidence submitted by the Employer and the Union in reaching
its decision.
The interpretation of the Proposed Bargaining
Unit
16. The Union argued that
the Employer has included particular categories of workers i.e. registered and
enrolled nurses, two grades which the Union believed to
be included in management. The Employer
argued that the registered and enrolled nurses were not part of management but
care staff. The Panel is of the view
that it is not necessary to resolve this issue of whether or not these
categories of workers are included in the Union’s proposed
bargaining unit. The Membership check reveals that even with
the inclusion of the nurses, membership stands at over 50%. The Panel is only
looking to be satisfied that a majority of the workers in the proposed
bargaining unit are likely to support recognition of the Union. The
Employer has already advised the CAC in its response that in its view the
appropriate bargaining unit should include all
staff so therefore the Panel considers that there is no detriment to either Party
by reaching this conclusion.
17.
The Panel is satisfied on this evidence that the Union had 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 paragraph
11. Furthermore, on the evidence before
it, the Panel is satisfied that this application is not rendered inadmissible
by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 of the
Schedule. The remaining questions before the Panel are whether 10% of the
workers in the Union’s proposed bargaining unit
are members of the Union, and whether the majority of
the workers in the Union’s proposed bargaining unit
would be likely to favour recognition of the Union for
collective bargaining.
Paragraph 36(1)(a)
18. The Employer
has not disputed that members of the Union constitute
at least 10% of the proposed bargaining unit.
The membership report dated 3 February 2006 indicated that Union members
constitute 51.28% of the proposed bargaining unit. The Panel is satisfied that the information
provided by the Employer and the Union for the
membership check is current. The Employer has not
disputed this figure and the Panel has not been made aware of any evidence
other than the issues set out in paragraph 13 of this decision that would
suggest other than that the figure is accurate.
The Panel is therefore satisfied on the evidence available to it, that
at least 10% of the workers in the proposed bargaining unit are members of the
Union and that the Union’s application is therefore admissible within the terms
of paragraph 36(1)(a).
Paragraph 36(1)(b)
19. The
Panel must also be satisfied on the balance of probabilities under paragraph
36(1)(b), that 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. The Panel considers that, in the absence of evidence
to the contrary, the level of union membership provides a legitimate indicator
of the views of the workers in the proposed bargaining unit and is accordingly
satisfied that the majority of workers in 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 in accordance with the requirements
of paragraph 36(1)(b) of the Schedule.
Decision
20. The
application is valid within the terms of paragraph 5-9, was made in accordance
with paragraph 11 and is admissible within the terms of paragraphs 33 to 42 of
Schedule A1. The application is
therefore accepted by the CAC.
Panel
Chris Chapman
Sir Bill Connor
Mrs Diana Palmer
17 February 2006