Case
Number: DI/3/(2007)
31 August 2007
CENTRAL ARBITRATION COMMITTEE
TRADE UNION AND LABOUR RELATIONS ACT
(CONSOLIDATION) 1992
SECTION 183 - DISCLOSURE OF INFORMATION
The Parties:
Unite the Union
and
Constellation Europe Limited
Terms of Reference
1 To hear and determine the complaint
dated 26 March 2007 and to make a declaration stating whether the complaint is
well founded, wholly or in part, and stating the reasons for so finding.
Introduction
2. The complaint made under section 183(1)
of the Trade Union and Labour Relations (Consolidation) Act 1992 concerned an
alleged failure by Constellation Europe Limited (the Employer) to disclose
information to Unite the Union
(the Union) in relation to the pay scales for Team
Managers, Department Managers and any bonuses.
3. As the Panel believed that there was no
likelihood of the issue being resolved by conciliation, the Parties were
invited to provide to the CAC, and exchange, written statements in advance of
the hearing held in Bristol on 3 August 2007. A
list of those who attended the hearing is given at Appendix A. The CAC Panel appointed to hear the case was
Professor Linda Dickens, Deputy Chairman, and, as Members, Mr David Coats and
Mr Michael Shepherd. The Case Manager
was Sarah Kendall.
Background
4. The Union is recognised by the Employer for the
purposes of collective bargaining for the Industrial Grades, including skilled;
semi-skilled and unskilled workers employed at the Bristol Winery. The following employees are not within the bargaining
group; supervisory and management staff nor other employees based at the
Bristol Winery. There are no other
collective agreements covering remaining employees at the Bristol Winery.
5. In
January 2007 the Union submitted a claim as part of the 2007 wage negotiations
for, among other things, a pay rise of RPI plus a percentage based on company
performance and other information, which was detailed as the salary scale,
incorporating the monetary value to each grade, including bonuses, currently being
paid to the Team Managers and to Departmental Managers within the Bristol
Winery for the financial year 06/07. Also
requested was information on the distribution of percentage pay awards for the
above mentioned groups of people for the financial year ending April 04, 05 and
06. The Employer responded to the claim
on 14th February rejecting the request for information giving reasons. The Union then submitted a further request for the
information. At a meeting on 8th March
the Employer provided information on percentage pay increases awarded to
industrial grades and to salaried grades respectively for each year from 2002
to 2006 but again rejected the request for information on the salaried staff
scales and bonuses. At a further meeting
on 22nd March the Union stated the Employers response was not
acceptable and that a claim would be made to the CAC.
Summary of
main points made on behalf of the Trade Union
6. In its written submission and at the
hearing the Union contended that the information requested
was for the purposes of collective bargaining and that it was materially
impeded in formulating its pay claim for 2007 without it. Although in exchanges with the Employer it had
indicated other objectives which disclosure of the information might serve, it
argued that these were secondary to formulating the pay claim. The fact that the company suspended pay talks
pending the outcome of the claim to the CAC, in the Union’s view indicated that the absence of the
requested information impeded bargaining. The Union referred to DI/8/2006
Lloyds TSB Group Union & Lloyds TSB Group Plc - CAC in support of its
case.
7. The Union argued that the information it requested
was needed to calculate total expenditure on pay so it could assess what would
be affordable and fair in respect of industrial grades for whom it bargained
8. The information sought was essential
also to enable it to compare what was being offered to salaried staffs so the Union could assess what would be appropriate to
claim in respect of the industrial grades.
9. The Union claimed that information on percentages
which had been disclosed was not useful in terms of calculating total pay
expenditure and differentials between industrial and salaried grades unless it
had also had the context which the monetary values of the start and end points
of bands would provide.
10. The Union stated it was not requesting information
relating to individuals but wanted only salary band/category information. It acknowledged that individual managers might
be able to work out where they were in relation to the scale but argued there
were no Data Protection or confidentiality issues as the information related to
posts not individuals. The Union referred to CAC award 79/300 in support of its view.
11. The Union stated that information relating to pay
rates for grades of industrial workers was in the public domain. It considered disclosure of information
relating to salaried staffs would be in keeping with transparency and good
industrial relations practice and in conformity with the Acas Code of Practice.
Any discontent which might arise from
disclosure of the information sought (as argued by the Employer) needed to be
balanced against the discontent among its members occasioned by the refusal to
disclose.
Summary of
main points made on behalf of the Employer
12. In its written and oral submissions the
Employer forwarded three free-standing reasons why the claim was not well
founded. These related to purpose of the
request, lack of material impediment and restrictions on the duty to disclose.
13. It argued that the fact the request was
made at the time of the pay claim was not determinative of information being
requested for the purposes of collective bargaining. It noted inconsistency in the Union’s stated rationale for requiring the
information, and its reference to the information being requested to enable
industrial grades to know what they might aspire to in career terms: career
development not being a matter for collective bargaining. The pay and bonus information requested
related to staff for whom the Union
did not have bargaining rights.
14. The Employer argued that the Union was not materially impeded in formulating
its claim without the information sought, stating that the information is not
important or even relevant to collective bargaining for the industrial
grades. Information which had been
provided on relative percentage increases addressed the relative fairness
aspect mentioned by the Union.
15. The Employer stated that because of the
small numbers of managers at Bristol and the way in which the wider company
operated in respect of pay, disclosure of the information sought would not
enable the Union to calculate total pay nor assess
affordability. The Employer stated that
there was not a separate pay pot for the Bristol winery and affordability was a question
of company performance. Further,
salaried staff bands and pay were a company wide matter. The Union sought information relating to 33 managers at Bristol which equated to about 1.5% of the 800
falling within the company wide salaried staff bands. The Employer contended that the information
that the Union had requested related to such a small
percentage of the relevant company workforce that it would neither assist nor
be relevant to the collective bargaining process.
16. The Employer argued that the guidance in
the Acas Code as to what might be good practice to disclose was by way of
example only. It felt that industrial
relations at the company would be harmed by disclosure of the requested
information because of its effect on managers who would be able to work out
their relative pay position. The Employer
stated that some managers had already expressed fears about the consequences if
the Union claim was upheld and that it could not be in accordance with good
industrial relations practice to make publicly available information which is
currently confidential and which relates to the managers of those seeking the
information.
17. The third aspect of the Employer’s case
was that various provisions under section 182 (placing restrictions on the
general duty) were relevant in the case. It argued that disclosure of the
requested information would be in breach of the Data Protection Act; would
involve disclosing confidential information relating to individual employees
and cause substantial injury to the company by giving rise to discontent and
disruption.
18. Various previous decisions of the CAC
were cited in support of the Employer’s arguments concerning law and good
practice: CAC award 78/807; R.v CAC ex
parte BTP Trioxide Chemicals Ltd; awards DI/1/2006; 78/353, 353A and 79/121.
(Harvey Q415-Q419).
Considerations
19. There is no dispute that the Union is an independent trade union recognised
for collective bargaining over pay and other matters in respect of the
industrial grades employed at Bristol Winery.
20. In determining its award the Panel has
taken account of the guidance of the Acas Code of Practice. Although we are not bound by previous
decisions of the CAC, those decisions referred to us in written and oral
submissions also have been fully considered along with all other material –
written and oral – provided by the Parties.
21. In terms of the general duty under s181,
the Employer challenged whether the information was requested for the purposes
of collective bargaining. Following the
lunch recess the Panel indicated its preliminary view to the parties that it
was so requested. At the conclusion of
the hearing we considered the issue again fully having heard in more detail the
Employer’s arguments, including the varying rationales for the request given by
the Union representative at different times, which had been set out in the Employer’s
written submission.
22. On the basis of all the evidence, taking
account of the nature, content and context of the request, the Panel is
satisfied that the information was sought for the purpose of collective
bargaining, as stated by the Union
in its request to the Employer. We
conclude that the Union wished to take account of relative pay and
affordability in deciding what level of pay increase above RPI to claim for its
members in this year’s annual pay bargaining; it considers the information
requested is necessary in order to formulate a claim which is in the best
interests of its members, proportionate and affordable.
23. S181 (1)(a) provides the information to
be disclosed is that ‘without which the trade union representative would be to
a material extent impeded in carrying on collective bargaining’. Considering all the evidence before it, the
Panel does not consider the Union
is materially impeded in formulating its general pay claim for industrial
grades by the absence of the information it has requested from the
Employer. Our view is that an
across-the-board percentage pay increase demand for industrial grades of the
kind the Union was formulating could be made without the
requested information on managerial salary bands and their monetary values, and
bonuses.
24. Informing our considerations was the
fact that the Employer maintained that the pay structures, levels and
arrangements for industrial grades on the one hand and for salaried grades on
the other are completely separate and independent. Salaried grades are part of a broader company
wide structure and team managers and departmental managers at Bristol form only a very small proportion of
total managerial staff within Constellation Europe. Potential arguments about fairness and
affordability therefore would not rest on considerations of a fixed pay pot for
the Bristol winery or distribution as between
industrial and salaried staff. We note
also that the Employer had provided some information originally requested by
the Union comprising percentage increases given to
industrial grades and to salary grades for the past few years. Although this does not allow any calculations
about the relative levels of pay or total sums awarded, it is relevant to an
aspect of perceived fairness. Furthermore,
in light of evidence at the hearing we came to the view that even if the
information requested by the Union
were to be disclosed it would not enable the Union to undertake the kind of calculations it
indicated it had wished to do.
25. We acknowledge that the Union was seeking to behave responsibly both
towards its members (in terms of the fairness and appropriateness of its claim)
and towards the company (in attempting to assess affordability). Further it should be noted that it would have
been difficult for the Union
to have known before the hearing that the information it requested would not
assist it in the way it had expected. Organisations
vary in the degree of transparency of pay arrangements and levels. In this company there is no information in the
public domain concerning the pay structure, levels, pay criteria or arrangements
for determining salaries and benefits of those grades of staff (Team Managers
and Department Managers) above those industrial grades in respect of which the Union has recognition. Nor is there information available to the Union concerning the process by which the
company determines what it would view as acceptable annual pay increases for
staff working in the Bristol Winery or within the larger organisation.
26. Having found that the Union is not to a
material extent impeded in carrying on collective bargaining by a refusal to
disclose the requested information, it is not necessary for us to express a
view as to whether disclosure would be in accordance with good industrial
relations practice (s181 (1)(b)), nor to determine whether any of the restrictions
on the general duty set out in s182 of the Act apply in this case.
Declaration
27. The Panel finds and declares that the
complaint is not well founded.
Panel
Professor Linda Dickens
Mr David Coats
Mr Michael Shepherd
31 August 2007
Appendix A
Names of those
who attended the hearing:
On behalf of the Trade Union:
Ms Esther Maclachlan Counsel
Mr Mark Smith Branch Secretary of Constellation Europe
Observer
Ms Joy Thily Shop
Steward
On behalf of the Employer:
Mr Anthony Wilcox Solicitor,
Wilcox & Co
Mr David Wilcox Human
Resource Consultant, Wilcox & Co
Mr Maurice Cox Vice
President, Production
Mr Derek Devereux Vice
President, HR and Employee Relations