Case Number:
TUR1/568/[2007]
14 June 2007
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:
Unite the Union
(formerly known as Amicus)
and
Xansa
Introduction
1. Unite the Union, formerly known as
Amicus, (the Union) submitted an application dated 23 April 2007 to the CAC
that it should be recognised for collective bargaining by Xansa (the Employer)
for a bargaining unit comprising “Xansa employees in job bands 1-4 based on the
Boots site and working on or providing a service to Boots IS&T Department
(also known as teamIS)”. The bargaining
unit was located at the premises of Boots the Chemist in Thane
Road West, Nottingham. The CAC gave both parties notice of receipt
of the application on 23 April 2007. The Employer submitted a response on 30 April
2007 which was duly copied to the Union.
Following the merger of Amicus with the TGWU on 1 May 2007 the application will proceed in the
name of “Unite – 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 Paul Davies,
Chairman of the Panel, and, as Members, Mr Rod Hastie and Dr Susan Corby. The Case Manager appointed to support the
Panel was Nigel Cookson.
3. The Panel extended the statutory
deadline to decide whether to accept the Union’s
application on two occasions. Initially
time was extended to 31 May 2007
to allow for the parties to engage in voluntary discussions through the offices
of Acas. Time was further extended to 14 June 2007 to allow time for a
membership check to be conducted and for the parties to comment on the results
thereof.
Issues which the Panel has to determine
4. 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 should be accepted.
The Union’s
application
5. In its application the Union
explained that it had submitted its formal request for recognition to the
Employer on 20 February 2007. It attached a copy of the letter to the
application as well as a copy of the response it received from the Employer
thereto. The Employer responded, in a
letter dated 28 February 2007,
saying, inter alia, that it was committed to negotiating in good faith to reach
a voluntary agreement and was very happy to agree to Acas giving further
assistance in conducting these negotiations.
The Union, in its application, failed to confirm
or deny whether it agreed to this proposal.
6. The Union stated
that there were 3500 workers employed by the Employer and that there were 152
workers in the proposed bargaining unit, of whom 86 were its members. The Union relied on
the strength of its membership as evidence that the majority of the workers in
the bargaining unit would be likely to support recognition for collective
bargaining. The Union
explained that the reason for selecting the proposed bargaining unit was that
the workers therein worked specifically on the Xansa Boots contract and were
treated as a separate unit by the company.
The Union stated that the proposed bargaining
unit had not been agreed with the Employer
7. As to whether there was any existing
recognition agreement which covered any of the workers in the proposed
bargaining unit the Union said that an agreement had
been signed prior to the transfer from Boots to Xansa in 2002. However, the agreement was for consultation
only and did not confer on the Union any collective
bargaining rights. The Union
therefore sought to extend the recognition agreement to at least the CAC
minimum through this application.
The Employer’s response to the Union’s application
8. In its response to the Union’s
application dated 30 April 2007 the Employer stated that it had originally
received the Union’s written request for recognition on about 22 February
2007. The Employer responded as
mentioned in paragraph 5 above adding that it also indicated that the parties
had been very close to agreeing an appropriate bargaining unit when they had
met at Acas in January 2007. The
Employer reported that it had pointed out the impracticality of the proposed
bargaining unit and reminded the Union that it had
agreed bargaining units in similar situations at other sites and referred to
agreements between Amicus and Xansa at Barclaycard and Royal Mail as examples
thereof. The Employer stated that it had
received a copy of the application from the Union on
about 23 April 2007.
9. The Employer further stated that it
did not agree the proposed bargaining unit as it could not be effective given
that it included two very different categories of worker. The first were contractually based in Nottingham
and were those workers transferred from Boots.
The second were workers on temporary assignment to Nottingham
lasting weeks or months and were on different terms and conditions. These workers were transient and could spend
very short periods in Nottingham. They were based at various Xansa offices across
the country and there would be obvious problems with effective management if
they were treated differently to colleagues at their base offices. The Employer then explained that in its
projects at Barclaycard and the Royal Mail the agreed bargaining units included
those workers that were based at the relevant sites and excluded those that
were temporarily assigned but based elsewhere.
10. When asked if, following receipt of
the Union’s request, the Employer proposed that Acas be
requested to assist, the Employer answered in the affirmative and that it was
concerned that, in its application, the Union had not
confirmed that this was so. Indeed, the Union
had already agreed to go to Acas and the second period for negotiation had been
extended, by agreement with Acas, to 17
May 2007.
11. The Employer stated that it did not
agree with the figure given by the Union as to the
number of workers in the proposed bargaining unit saying that it was difficult
to state the precise number as it included workers on temporary
assignment. Its best estimate was that
there were around 122 to 126 but that this could change on a weekly basis.
12. On the question of whether the
Employer disagreed with the Union’s estimate of
membership in the proposed bargaining unit it said that it had no knowledge as
to the size of the Union membership in the proposed bargaining unit. As to whether it considered that a majority
of workers in the bargaining unit were likely to support recognition the
Employer stated that it did not know whether a majority would support
recognition or not.
13. According to the Employer there was no
existing recognition agreement in force that covered any of the workers in the
proposed bargaining unit.
Union’s comments on Employer’s response and Employer’s
rejoinder
14. The Union was
asked to comment on the points raised in the Employer’s response. In a letter dated 3 May 2007 the Union stated that
there was, contrary to the Employer’s assertion, no agreement to extend the
negotiating period to 17 May 2007. In addition, the Union
disagreed with the Employer’s argument that the proposed bargaining unit could
not be effective. All of the workers in
the proposed bargaining unit were subject to the same company policies and
procedures and the same system of pay review.
The Union considered the bargaining unit proposed
to be an appropriate bargaining unit.
15. In a letter dated 4 May 2007 the Employer argued that the parties had certainly
agreed to negotiate on 17 May 2007 regarding the Union’s request dated 20 February 2007. It
explained that it seemed that the Union was
confusing the present request with a previous request which was no longer
extant. The correct position was that
the application to the CAC had been made further to the request of 20 February
2007 in respect of which
Acas negotiations had not yet taken place.
The time for negotiation had been extended by agreement to 17 May 2007.
16. On 9
May 2007 the Union wrote to the CAC
explaining that its letter of 3 May
2007 lacked clarity and apologised for any confusion caused. It went on to state that the request for
recognition was sent to the Employer on 20
February 2007. The Employer,
in its response to the application, stated that it received the request on 22 February 2007. The 10 day period for negotiation provided
for in paragraph 10 of the Schedule would therefore have expired on 8 March 2007. The Employer in its letter of 28 February 2007 asked for Acas
assistance in respect of negotiations with a view to reaching a voluntary
agreement. This would have caused the
additional 20 working day negotiating period to commence. That period expired on 5 April 2007.
17. The application to the CAC was lodged on 23 April 2007 which was well outside
the second period. During the second
period there was no agreement reached to enter into a longer period of
negotiation as envisaged by paragraph 10(7)(b) of the Schedule.
18. In an email to the CAC on 24 May 2007 the Union
informed the CAC as to the outcome of the Acas facilitated discussions. It reported that it was apparent that the
Employer sought to exclude from the bargaining unit all those that did not have
a contractual location in Nottingham. The Employer also wanted to treat one group
of more skilled workers more favourably than others. The Union found this
unacceptable. The Employer requested
further meetings with Acas but the Union believed that
this to be a further attempt to delay and frustrate the process. Consequently the parties failed to reach an
agreement.
Clarification of the proposed bargaining
unit
19. Before the Panel moved to consider the
strength of Union membership and support for recognition in the proposed
bargaining unit it asked that the Union clarify which
workers were subject to its application.
20. In a letter dated 5 June 2007 the Union
stated that the proposed bargaining unit consisted of all those working on the
Boots’ site on the Boots’ contract.
Whilst the Union saw an argument that the workers
needed a degree of permanence before the came within the bargaining unit it was
concerned that the Employer was seeking to artificially diminish the bargaining
unit. For example, the Union
believed that there were some workers that had been there for a number of years
but the Employer would still claim that they were on temporary assignment.
The membership check
21. 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 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 to enable
comparisons to be undertaken. It was
explicitly agreed with the parties that, to preserve confidentiality, the
respective lists would not be copied to the other party. These arrangements
were confirmed in a letter dated 1 June
2007 from the Case Manager to both parties. The Union’s list of
its members in the proposed bargaining unit was received on 1 June 2007 and the Employer’s list of workers
in the proposed bargaining unit was received on 4 June 2007. 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 was circulated to the Panel and the parties on 5 June 2007. The report included a list of the job titles
of the workers as given by the Employer as well as both the contractual and
actual location of the workers concerned.
The report also gave the current number of workers that the Employer
classified as temporary and the number it classified as permanent but did not
identify the percentage of Union members in each of these groups.
22. The Employer provided a list of 131
names. The Union
provided a list of 79 members. According
to the Case Manager’s report, the number of Union members in the proposed
bargaining unit was 74, a membership level of 56.49%.
Parties’ comments on the result of the
membership check
23. In a letter dated 7 June 2007 the Union
submitted that whilst the check showed 56.49% of the proposed bargaining unit
in membership the Employer had included a number of workers on its list that
were outwith the Union’s proposed bargaining unit. In particular, the Senior Solutions
Architect(s) who were in Band 5 and the workers that were based at Holborn and Reading. However, for the purposes of the tests in
paragraph 36 the Union was happy to rely on the
published figure. Paragraph 36(1)(a) was
therefore clearly made out in that there was well over 105 of the bargaining
unit in membership. The Union
also considered paragraph 36(1)(b) was also made out and it invited the Panel
to use its industrial relations experience to conclude that a membership
density as high as 56.49% was strongly indicative of the majority within the
bargaining unit being likely to favour recognition. The Union concluded by
adding that it was aware, through its activists, of a strong desire within the
bargaining unit for recognition.
24. The Employer, in a letter dated 7 June 2007, stated that it had no
comments on the membership check.
However, it wished to comment on the Union’s
letter of 5 June 2007 in
that it welcomed the Union’s concession that only
workers with some degree of permanence could properly fall within the
bargaining unit. It was not helpful that the Union was unable to say which of the
permanent workers should be within the bargaining unit and which of the temporary workers working at Boots should
not be counted for the membership check.
The Employer suspected that the Union was beginning to realise the
merits of the reasoning set out in the Employer’s original response to the Union’s application and the fact that
the inclusion of temporary and peripatetic workers in the proposed bargaining
unit could not be compatible with effective management.
25. Plainly, the Employer argued, there needed to be a recount
with the Union making clear its bargaining unit and identifying which workers
lacked the necessary degree of permanence to be included. The Employer’s figures included information
about which workers were permanent and which were temporary on the day of the
count. Obviously this may change from time
to time. The Employer was unable to help
further until the Union was able to confirm exactly which workers fell within its
proposed unit.
Considerations
26. In deciding whether to accept the
application the Panel must decide whether the admissibility and validity
provisions referred to in paragraph 4 of this decision are satisfied. The Panel has considered all the evidence
submitted by the parties in reaching its decision. The Panel is satisfied that the Union
made a valid request to the Employer within the terms specified in paragraphs 5
to 9 of the Schedule to recognise it for collective bargaining in respect of
the proposed bargaining unit as particularised in paragraph 1 above. The request was made in writing and
identified the Union, the proposed bargaining unit and
stated that the request was made under the Schedule. In its response to the request the Employer
confirmed its agreement to meet with the Union through
the offices of Acas. The parties
subsequently took different views as to whether the agreement included an
agreement to extend the second period as defined in paragraph 10(7). However, given that the Union
refutes the assertion that there was any agreement to extend the period in
question the Panel is unable to conclude that such agreement was reached. Accordingly the Panel is satisfied that the
application was made in accordance with paragraph 12. The Panel is also satisfied that the
application is not rendered inadmissible by any of the provisions in paragraphs
33 to 35 and 37 to 42.
27. The remaining issue for the Panel to
address is whether the admissibility criteria set out in paragraph 36(1) of the
Schedule are met.
28. In accordance with paragraph 36(1)(a) of
the Schedule the Panel must determine whether members of the Union
constitute at least 10% of the workers in the Union’s
proposed bargaining unit. The check
conducted by the Case Manager Panel showed that Union membership stood at
56.49%, a figure which the Employer did not challenge. The Panel is therefore satisfied that this
test is met.
29. Paragraph 36(1)(b) of the Schedule
requires the Panel to decide whether a majority of the workers in the Union’s
proposed bargaining unit would be likely to favour recognition of the Union. It should be noted that at this stage the
Panel is simply called upon to make an assessment as to likely support rather
than it having to arrive at a decision based on a mathematical certainty. In its letter of 7 June 2007 in which it confirmed that it had no comment
to make on the membership report, the Employer set out again issues as to the
appropriateness of the proposed bargaining unit. Whilst the Panel noted the Employer’s
submissions in this respect and also the position of the Union
as set out in its letter 5 June 2007,
its task at this stage of the statutory process is to decide the admissibility
tests in relation to the original bargaining unit proposed by the Union. The question as to the appropriateness of
this bargaining unit is for later determination, if necessary. The Union had also
identified that the Employer had included in its list a small number of workers
that were not in its proposed bargaining unit.
These were those workers that were actually based at Holborn and Reading
rather than at the Boots site in Nottingham and the
Senior Solutions Architects. However,
for the purposes of the tests in paragraph 36 the Union
confirmed that it was happy to rely on the findings of the Case Manager’s
report. The Panel finds that the number
of workers involved (four) would not materially affect its decision, even if
all four workers were non-members of the Union, and so
is content to proceed on the basis adopted by the Union. (Had the four workers in question been
excluded from the bargaining unit and the above assumption made as to their
membership of the Union, the percentage of the workforce
in membership would have been 55.1%.)
30. To support its position the Union
relied on its density of membership in the proposed bargaining unit, which,
according to the Case Manager’s report, stands at 56.49%. Again, when invited to comment on the findings
of the check conducted by the Case Manager the Employer elected not to
challenge the Union’s claim that a majority of the workers in the proposed
bargaining unit would be likely to favour recognition.
31. The Panel is of the view that, in the
absence of any contra indicator, an individual’s membership of a trade would
point towards that individual being more likely than not to favour recognition
of the Union as entitled to conduct collective bargaining on his or her behalf
in relation to the Employer on matters related to pay, hours and holidays.
32. Accordingly, having given the matter due
consideration, the Panel finds
that the level of Union membership can be taken as a legitimate indication of
the strength of support for recognition within a bargaining unit and so, on the
face of the evidence presented, the Panel concludes 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 and therefore the test set out in paragraph 36(1)(b) is
satisfied.
Decision
33. The Panel is satisfied that the
application is valid within the terms of paragraphs 5 to 9, is made in
accordance to with paragraph 12 and is admissible within the terms of
paragraphs 33 to 42 of the Schedule. The
application is therefore accepted by the CAC.
Panel
Professor
Paul Davies (Chairman)
Mr
Rod Hastie
Dr
Susan Corby
14 June
2007