Case Number: TUR1/620(2008)

                                                                                                              28 May 2008

 

 

CENTRAL ARBITRATION COMMITTEE

 

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

 

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

 

DETERMINATION OF THE BARGAINING UNIT

 

 

 

The Parties:

Unite the Union

and

Harry Lawson Limited

 

Introduction

 

1.         Unite the Union (the Union) submitted an application to the CAC on 22 February 2008, that it should be recognised for collective bargaining purposes by the Harry Lawson Limited (the Employer) in respect of a bargaining unit comprising “drivers at the Baluniefield Depot”.  The CAC gave both parties notice of receipt of the application on 25 February 2008.  On 29 February 2008 the Employer submitted a response to the CAC, 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 consider the case.  The Panel consisted of Professor Kenny Miller, Panel Chairman, and, as Members, Mr Dennis Cameron and Mr Mike Regan.  The Case Manager appointed to support the Panel was Sarah Kendall.

 

3.         By a decision dated 20 March 2008, the Panel accepted the Union’s application.  The Parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit.  As no agreement was reached, the parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit. A hearing was held on 1 May 2008 and the names of those who attended the hearing are appended to this decision.

 

Scope of the proposed bargaining unit clarified

 

4.         The parties agreed that the area of dispute was whether the 6 workshop workers should be included in the bargaining unit defined by the Union as drivers employed at the Baluniefield Depot.  Both parties also agreed that office staff were excluded from that unit.

 

Summary of the submission made by the Union

 

5.         The Union started its submissions by providing a brief history of Trade Union involvement with the Employer which went as far back as 1972, however, the Employer was not approached regarding a voluntary recognition agreement until 1995.  In 2006 the Union was approached by a number of employees with various issues relating to the Employer.  As a result, a dialogue was opened between the Union and the Employer leading to a resolution of these issues..  Subsequently a further 28 grievances were received by the Union from workers in the  bargaining unit.  The Union chose to negotiate with the employer regarding these issues rather than pursue legal channels which would have been costly to the Employer.  Meetings were set up with workers. However, the Union alleged that some of these were disrupted by last minute changes to schedules.  The Employer’s work committee came about from one of these meetings.  The Union asserted that a letter of nomination was kept locked under a glass door; the key left with a supervisor.  It also stated that there was no ballot for nominations nor was there any discussion over the issue of candidates and membership of the Committee. .  The Union alleged that employees were pressured into agreement regarding the workers committee.  The Union claimed that despite it continuing to attempt open dialogue with the Employer, its efforts were rebuffed and subsequently a formal application of recognition was submitted to the CAC.

 

6.         The Union stated that the group ‘drivers’ was a distinct group of workers and in general was a common bargaining unit and that within the industry there was Union representation for drivers only.  The workers within the proposed bargaining unit worked at the single site and shared the same terms and conditions namely that they had the same holiday entitlements and were paid weekly.  It was explained that this group of workers were employed as drivers and tanker drivers,. Primarily the drivers engaged in transporting goods on various contracts which included bitumen, retail goods and general haulage goods.

7.         The Union clarified that the workers subject to the proposed bargaining unit were individuals employed who drove for their livelihood.  It argued that the workshop employees who were employed as mechanics should not be included in the bargaining unit.  It acknowledged that although they drove in extreme situations these workers classified themselves as mechanics in the industry.  One of the workshop employees, a mechanic, on average spent 90% of his time driving for the Employer.  The Union stated that if his job title was changed to driver then he would be part of the bargaining unit. However, if his title remained as mechanic then he fell outside of the description of the bargaining unit.  The Union contended that this bargaining unit was not ambiguous, drivers were drivers and were in the unit and that mechanics were mechanics and therefore excluded from the bargaining unit.

 

8.         The Union contended that there was no evidence that compromised the Employer’s ability to be efficient, profitable or innovative.  The Union cited a number of Employers who recognised the Union for collective bargaining purposes for drivers only stating that these arrangements neither included workshop nor warehouse staff.

 

9.         The Union stated that historically the drivers’ pay had been determined through a drivers’ committee, which for many years comprised two drivers who met with management.  This was superseded by a further committee comprising three drivers which was established by the Employer in October 2007.   Decisions on pay were made in relation to the drivers, the group of workers that the Union had identified as the proposed bargaining unit.  The Union explained that it was not unusual in the industry for negotiations to take place for drivers alone.  These new terms and conditions would then be applied to other functions within the business such as administrative or workshop staff.  In this case it was no exception, the percentage increase negotiated by and awarded to the drivers would be also be awarded to all staff in the Company.  The Union again stated that there was not any evidence that effective management would be compromised by the proposed bargaining unit.  Further, the Union argued that the Employer had not produced a compelling argument as to why its proposed bargaining unit would be incompatible with effective management.

 

10.        It was the Union’s contention that this proposed bargaining unit was not a small fragmented bargaining unit as it comprised of over 80% of the workers in the Company.  The Union stated that the workers in the proposed bargaining unit were employed and stated as drivers; the Employer had treated this group as a distinct group of workers separate from other employees. The Employer would be in a position to deal with all issues which related to this cohesive, distinctive group of drivers such as pay, overtime, holiday entitlement, drivers regulations and health and safety.  The Union reiterated the fact that all the workers benefited from the negotiated pay increase which had been agreed by the works committee. Thus the way drivers had been managed in the past was evidence that the unit was not fragmented and was compatible with effective management.  Further, workers outside the proposed bargaining unit could in principle be represented by other Unions and therefore would not be disenfranchised in terms of being represented by collective bargaining. 

 

Summary of the submission made by the Employer

 

11.        The Employer disputed that the Union’s proposed bargaining unit was an appropriate bargaining unit and maintained that the appropriate bargaining unit was drivers and workshop employees.  The Employer provided a background of the company explaining that it was a road haulage business providing tanker and road haulage services to a range of customers.  The workforce comprised three groups, namely office staff, drivers and workshop staff.  Although the last group were mechanics and semi-skilled mechanics a number of them also worked in the capacity of drivers on behalf of the Employer.   The Employer explained that one workshop worker, a mechanic, spent at least 90% of his time driving, another spent 50% of his time driving and a third drove intermittently.  The Employer stated that of the three remaining workshop employees who did not drive, two were under 25 (one of whom was to shortly reach his 25 birthday) and had not yet obtained their HGV licences and one was beyond normal retirement age.  The Employer confirmed that it was its intention that all workshop employees would hold an HGV licence to ensure that it had maximum flexibility to deal with the day to day fluctuations in customer demand.

 

12.        The Employer stated that the drivers could be split into two categories, tanker drivers and haulage.  All drivers held an HGV licence and the tanker drivers also were required to complete the necessary course in transporting dangerous goods in compliance with ADR (European Agreement Concerning the International Carriage of Dangerous Goods by Road).  By utilising the workshop employees with HGV licences the Employer maintained maximum flexibility to allow it to meet its operational needs as this provided an efficient way of dealing with day to day fluctuations in driving requirements based on customer demand.  By using the workshop personnel this way it provided the Employer with a pool of drivers trained to the Employer’s standards.  The Employer avoided employing agency staff, even during very busy periods if additional drivers were needed it would recruit permanent staff to take up the slack.  It stated that staffing levels returned to normal levels through ‘natural wastage’.  The Employer contended that it always had vehicles on standby for such fluctuations in workload.

 

13.        The Employer stated that although on the face of it the Union’s proposed bargaining unit it appeared to be a distinct and recognisable group of workers it was not entirely clear who would fall within that definition.  The Employer stated that at least one of the workshop staff drove on an almost full-time basis but although not generally asked to do so could be asked to work in the workshop.  The Employer contended that this individual who carried out driving duties for 90% of his employment should be included within the bargaining unit.  Accordingly the job titles of the other two workshop staff who also drove should more accurately be referred to as mechanic/driver.  The Employer stated that the pool of workshop staff who held HGV licences was due to increase; one of the workshop staff was due to be put through the HGV training once on reaching his 25th birthday.  Further, that when another workshop employee retires it is the intention of the Employer to replace him with an individual who holds an HGV licence.  The remaining worker, a 21 year old, will be put through the HGV training once he reaches the appropriate age.

 

14.        The Employer stated that should the Panel determine that the Union’s proposed bargaining unit was appropriate it foresaw that such a unit would cause difficulties in effective management.  The Employer explained that the workshop allowed the company flexibility to deal with fluctuations in the demand for the requirements of the drivers which changed on a daily basis.  Should the Union and the Employer be in negotiations over shift patterns, length of shifts and the number of hours worked for example then it would be imperative that workshop employees who drive are included in such discussions.  If these workers were not included in the bargaining unit it would almost certainly cause the Employer operational difficulties. The need for flexibility was crucial and this could only be achieved through a bargaining unit that included both drivers and workshop staff.

 

15.        The Employer stated that terms and conditions of employment for both drivers and workshop staff were identical except in relation to pay for semi-skilled mechanics, disciplinary and grievance matters.  The rates of pay for tanker drivers and mechanics were the same and that the Employer negotiated those rates on the basis that they corresponded to each other.  Although semi-skilled mechanics were on a lesser rate of pay any increase in pay would reflect the same increase as that given to the mechanics and tanker drivers.  The Employer confirmed that should a semi-skilled mechanic take on driving duties they would receive the drivers’ rate of pay for the time spent driving.  Any grievances or disciplinary matters concerning drivers would be dealt with by their line manager, the Transport Manager.  Generally, the Fleet Engineer would deal with such matters concerning the workshop employees unless the issue related to driving duties when it would also be the Transport Manager.

 

16.        The Employer argued that the Union’s proposed bargaining unit of drivers excluding the workshop employees was not compatible with effective management.  The Employer submitted that it already had in place a suitable and effective mechanism for negotiating on pay, hours and holidays as well as other areas of concern covering both drivers and workshop staff including personal protective equipment, rest room facilities and driver training. The Employer emphasised that the Works Committee represented both drivers and the workshop staff. Committee arrangements had been in existence in one form or another for approximately 30 years and had been reconstituted in August 2007 due to the last workers’ representative having stepped down.  At that time the drivers and workshop staff signed their support for the proposed representatives on the Works Committee.  The reconstituted committee was involved in the negotiation of the pay increases for drivers and workshop staff which was finalised at its meeting on 30 January 2008. 

 

17.        The Employer argued that the proposed bargaining unit would lead to a small and fragmented bargaining unit.  If the workshop employees were excluded management would need to implement appropriate arrangements for those six workers who up until now had been included in the negotiations for the drivers.  This overlap between the drivers and the workshop employees would, in the Employer’s opinion, lead to fragmentation.  The Employer also emphasised that should the CAC determine that only those workshop employees who currently take on driving responsibilities be included in the appropriate bargaining unit it would leave an even smaller unit of workshop employees, that is greater fragmentation.  This would be further exacerbated by increasing numbers of workshop employees obtaining HGV licences.

 

18.        The Employer closed by stating in light of its submissions the Panel should dismiss the Union’s proposed bargaining unit as it was not appropriate and determine that the appropriate bargaining unit to be drivers and workshop employees based at the Baluniefield Depot, Dundee.

 

Considerations

 

19.        The Panel is required, by paragraph 19(2) of the Schedule to the Act, to decide whether the proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. Paragraph 19B(1) and (2) states that, in making those decisions,  the Panel must take into account the need for the unit to be compatible with effective management and the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need.  The matters listed in paragraph 19B(3) are: the views of the employer and the union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and the location of workers. Paragraph 19B(4) states that in taking an employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that he considers would be appropriate. The Panel must also have regard to paragraph 171 of the Schedule which provides that “[i]n exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned.”  The Panel’s decision has been taken after a full and detailed consideration of the views of both parties as expressed in their written submissions and amplified at the hearing.

 

20.        The Panel’s first responsibility is to decide, in accordance with paragraph 19(2) of the Schedule, whether the Union’s proposed bargaining unit is appropriate. The Panel considers that the Union’s proposed bargaining unit is not compatible with effective management as it is not consistent with the existing system by which pay is determined by the Employer.  Pay increases for drivers and the workshop employees are negotiated by the Employer and the Works Committee who represent drivers and the workshop employees. 

 

21.        Having decided that the Union’s proposed bargaining unit is not appropriate, the Panel’s next responsibility is to decide a bargaining unit which is appropriate. The Panel has determined that “drivers and workshop employees” is an appropriate bargaining unit. The Panel considers that this bargaining unit is compatible with effective management.  It reflects the existing system of negotiation relating to pay and other operational requirements including hours, shifts and other conditions of employment by the Employer.

 

22.        The Panel has considered the matters listed in paragraph 19B(3) of the Schedule, so far as they do not conflict with the need for the unit to be compatible with effective management. The views of the Employer and the Union, as described earlier in this decision, have been fully considered. The Employer submitted that the appropriate bargaining unit was drivers and workshop employees.  The Union submitted that the appropriate bargaining unit was “drivers only”.  The Union stated that its proposed unit was unambiguous - mechanics and semi-skilled mechanics were not drivers and therefore should not be included in the bargaining unit.  However, the Panel is not persuaded by this argument and turns to the Union’s oral evidence where it acknowledges that all the workers benefited from the negotiated pay increase which had been agreed by the works committee and management.  It was clear to the Panel that negotiations relating to pay, shifts and hours were conducted through discussions between the Works Committee, which was elected to represent both drivers and workshop employees, and Management and is satisfied that whatever form the Works Committee took it represented both drivers and mechanics.  The Employer has successfully negotiated pay increases through a Works Committee which has been in existence in various guises for the past 30 years.  The Panel are of the opinion that should the workshop employees not be included as part of the bargaining unit the Employer would need to implement additional negotiation machinery for the workshop staff.  In essence this would create a small fragmented group who would now be separate from the rest of the “shop floor” staff to which they had formerly formed part.  As a result, the Employer would be required to make alternative arrangements for workshop employees with a consequent loss of flexibility which the Panel accepts has been critical to the smooth running of the business.

 

23.        The Panel also recognises that a bargaining unit that is restricted to drivers in the context of the way the Employer conducts business will create ambiguities in practice.  The fact that a number of the mechanics already undertake a considerable amount of driving makes clear that a rigid distinction between drivers and mechanics would not be practicable in the context of the Employer’s business. The Panel has been persuaded that the Employer’s business practices have been established over many years and that flexibility of service is crucial..  The Employer achieves this through the use of mechanics as drivers rather than employing agency staff for busy periods. Accordingly there is evidence to support a mature arrangement where drivers and workshop employees act together as a homogenous group to ensure the effective operation of the Employer’s business.

 

24.        The workshop employees enjoy the same terms and conditions as the drivers with the exception of pay for semi-skilled mechanics, discipline and grievances.  However, when driving, the workshop employees receive the same rates of pay as the drivers and any issues arising in the course of their driving would fall to be resolved by the drivers’ line manager, the Transport Manager.  Essentially they are treated the same as drivers when assuming that role.  The Panel is satisfied that the workshop employees who hold HGV licences are an integral aspect of the Employer’s operational set-up in terms of offering an additional resource and when driving those workers are given the appropriate pay and benefits received by the drivers.  It also accepts that the Employer intends to ensure that the other mechanics will perform driving duties when they become eligible to obtain HGV licences.

 

25.        The Panel believes on the evidence before it that a bargaining unit that comprises drivers and workshop employees is consistent with existing arrangements. Nor is this bargaining unit small or fragmented. The workers within this bargaining unit have a common pay structure and common terms and conditions.  The Panel is satisfied that its decision is consistent with the object set out in paragraph 171 of the Schedule.

 

Decision

26.        The appropriate bargaining unit is “drivers and workshop employees based at the Baluniefield Depot, Dundee”.

 

Panel

 

Professor Kenny Miller

Mr Dennis Cameron

Mr Mike Regan

 

 

28 May 2008

 

 

Appendix

 

Names of those who attended the hearing:

For Unite the Union

Mr Richard Whyte                    -           Regional Industrial Organiser 

 

For Harry Lawson Limited

Mrs Noele McClelland             -           Solicitor Thorntons Solicitors

Ms Elizabeth Gourley                -           Company Secretary