Case Number: TUR1/52/(2001)

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

TGWU

and

Hozelock Ltd

Introduction

1. The TGWU (the Union) submitted an application to the CAC dated 2 March 2001 that it should be recognised for collective bargaining by Hozelock Ltd (the Company). The CAC gave both parties notice of receipt of the application on 6 March 2001. The Company submitted a response to the CAC on 23 March 2001 which 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 Professor Gillian Morris, Deputy Chairman, and, as Members, Mrs D Palmer and Mr K Sonnet. The Case Manager appointed to support the Panel was Anne Feehally.

Issues

3. 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, is admissible within the terms of paragraphs 33 to 42 of Schedule A1 to the Act and therefore should be accepted. In its response to the Union's application, the Company submitted that there were three specific areas in which the application did not meet those tests: the bargaining unit proposed by the Union was imprecisely described, the claimed level of Union membership was inaccurate and there was insufficient evidence to support the Union's assertion that the majority of workers constituting the relevant bargaining unit would be likely to favour recognition of the trade union. The Company offered no evidence to counter the Union's position on the remaining tests. The Panel has, nevertheless, considered all the documentation relating to those remaining tests and is satisfied that the Union's application meets all the other statutory criteria.

4. On the application form to the CAC, in its response to question 5 on the form which asks for a description of the bargaining unit, the Union described its proposed bargaining unit as "Direct and indirect hourly paid employees including setters, stores electricians/maintenance warehouse and shop". In its response to question 9 on the form, which asks for the reasons for selecting the proposed bargaining unit, the Union stated "All the bargaining unit employees are on one site. They are all the hourly paid workers existing on site. They are covered by an existing 'communications council' set up by the Company". The Union further stated, in its response to question 4 on the form, that the location of the bargaining unit was "Midpoint Park, Minworth, Sutton Coldfield, B76 1AB". The Company, firstly, drew the Panel's attention to an apparent difference between the description on the application form and that given in the Union's initial request for recognition contained in a letter to the Company dated 9 February 2001. In that letter, the proposed bargaining unit was described as "The shop floor is identified as Direct and Indirect Hourly Paid Employees who would include setters, stores, electricians/maintenance and the shop all employed at Midpoint Park". Secondly, the Company submitted that the Union's description of the bargaining unit was insufficiently explicit, particularly in its failure to list the appropriate departments. The Union responded to those two points by stating, firstly, that it had included the term "warehouse" simply to clarify its initial request and, secondly, that it could not be expected to know the names of all the departments within the Company.

5. The Panel has considered carefully the issues described in the previous paragraph. It is a statutory requirement for a trade union to identify the bargaining unit for which it seeks recognition. In both its initial letter to the Company and the application to the CAC, the Union used the expression "direct and indirect hourly paid employees" and it also specified the location as being Midpoint Park. It also used the expressions "include" and "including" before listing categories of employees and it was that list, on the application form to the CAC, to which "warehouse" was added. The Panel is satisfied that that does not invalidate the Union's application. The list is clearly illustrative with examples given of "direct and indirect hourly paid employees" and it is the latter which provides the definition of the proposed bargaining unit. On the second question raised by the Company, whether the definition is sufficiently precise, the Panel, in its industrial relations experience, is satisfied that, when considered alongside the unequivocal statement of the location of the bargaining unit, the Union's stated definition does provide a clear and recognisable bargaining unit. The Panel has also noted that, despite the Company's argument that the bargaining unit was ill defined, the Company was able to calculate the number of employees within the proposed bargaining unit. The Panel is accordingly satisfied that the Union has fulfilled the statutory requirement to identify the proposed bargaining unit for which it seeks recognition. As with any application made to the CAC, an employer has an opportunity to raise the argument that the bargaining unit proposed by the union is not an appropriate one at the next stage in the statutory procedure.

6. The Company also submitted that the level of membership claimed by the Union was incorrect. In its application to the CAC, the Union gave the number of members as 108. The Union also provided a list of members within the proposed bargaining unit, which was copied to the Company, and the number of names on that list was 104. In its response to the CAC, the Company stated that the number of current employees within the proposed bargaining unit who were members of the Union was 95. The parties were also in dispute about the number of workers within the proposed bargaining unit; the Union stated that the figure was 200 whereas the Company submitted it was 273. The Panel does not need to resolve that difference at this stage in the process because the Union, as a minimum, has 95 members out of a proposed bargaining unit of 273 workers. The Panel is accordingly satisfied that at least 10% of those in the proposed bargaining unit are members of the Union and that the Union has met the admissibility test stipulated in s36(1)(a) of the Schedule.

7. The third area for the Panel to consider was whether the majority of the workers constituting the relevant bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit. In support of its position, the Union cited the level of Union membership and a petition signed by 199 employees; a copy of the petition was sent to the Company. The Company cast doubt on the level of Union membership and queried whether the petition presented equated to a vote in support of recognition of the Union. The Panel has stated its findings on the level of Union membership and the numbers employed in the proposed bargaining unit in the previous paragraph of this decision. We have examined the petition and have noted that it states, at the head of each page, "We the under signed employees requests (sic) the Company to recognise the Transport & General Workers Union for collective bargaining purposes". We regard this as a clear statement of the basis on which employees were being asked to sign the petition and that they were aware that they were being asked to indicate whether they would favour recognition of the TGWU to conduct collective bargaining on their behalf. Furthermore, the petition contained 199 signatures of which 83 matched the names appearing on the Union's list of members and the Company has not disputed that those who signed the petition work in the proposed bargaining unit. There are therefore approximately 116 non-members who support the Union's application for recognition, plus at least 83 Union members, within a proposed bargaining unit of, to use the Company's calculation, 273 workers. The Panel is accordingly satisfied that the Union has provided sufficient evidence that, on the balance of probabilities, the majority of the workers constituting the relevant 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 s36(1)(b) of the Schedule.

Decision

8. For the reasons given above, the Panel's decision is that the application is accepted by the CAC.

Panel Chair    Gillian Morris

Members        Diana Palmer

                      Keith Sonnet

Date              3 April 2001