Case Number: TUR3/3/(2006)
CENTRAL
ARBITRATION COMMITTEE
TRADE
SCHEDULE A1 -
COLLECTIVE BARGAINING: RECOGNITION
DECISION ON
THE APPROPRIATE BARGAINING UNIT UNDER PARAGRAPH 70 OF PART III TO THE SCHEDULE
The Parties:
The National
and
1.
The National Union of Journalists (the
2.
The
Deputy
Editor and Assistant Editor, News Editor, Deputy News Editor, District News
Editor, Reporters and one of the Messengers; Chief Sub Editor, Deputy Chief Sub
Editor, Assistant Chief Sub Editor and Sub-Editors; Features Editor, Assistant
Features Editors and Writers/Subs; Picture Editor, Deputy Picture Editor and
Photographers, Design Editor and Artist; Sports Editor, Deputy Sports Editor,
Assistant Sports Editor and Writers/Subs; Night Editor, Night News Editor and
Night Chief Sub Editor; Production Editor.
3. In accordance with section 263 of the Act, the CAC Chairman established a Panel to deal with this case. The Panel consisted of Professor Roy Lewis, Panel Chairman, and as Members, Paul Gates and Jackie Patel. The Case Manager appointed to support the Panel was Sharmin Khan.
4.
The Panel made a decision dated
5.
The Panel also decided that the
6.
The next and present stage of the Part III
procedure arises under paragraph 70 of the Schedule. This applies if the parties have failed to
agree a bargaining unit or units differing from the original unit. Under paragraph 70(2) the CAC must decide 2
specific questions: (a) whether or not the original bargaining unit continues
to be an appropriate bargaining unit, and (b) if it does not so continue, what
other bargaining unit or units are appropriate.
To that end a hearing was held on
7. For the purposes of this hearing it was necessary to modify the Panel’s composition, with Ged Fisher being appointed by the Chairman of the CAC to substitute for Jackie Patel. In addition, Maverlie Tavares substituted for Sharmin Khan as Case Manager.
8.
The
9. The Employer was represented by and/or was present through Sean Jones, Counsel; Jon Loney, Solicitor; Mike Norton, who had 3 positions – (a) Editorial Director, Northcliffe West, (b) Editor-in-Chief, Bristol United Press, and (c) Editor, Bristol Evening Post; Andy Wright, Editor, Western Daily Press; Ken Thompson, Employment Affairs and Property Director; and Michael French, Group General Manager, Employment Affairs.
10.
In advance of the hearing the Panel was supplied
by the
11. At the hearing Messrs Breeden, Norton and Wright gave evidence, were cross-examined and were questioned by the Panel. Finally, Counsel for both parties made oral submissions.
12.
Following the hearing and pursuant to directions
issued by the Panel, the parties clarified their positions through
correspondence from their solicitors: a
13. As noted above, the CAC must decide 2 questions under paragraph 70(2): (a) whether or not the original unit continues to be an appropriate bargaining unit, and (b) if it does not so continue, what other bargaining unit or units are appropriate.
14.
As regards the first question, as part of its
decision on whether to accept the
15.
As regards the second question, the
16.
At the hearing the
17.
The
18.
The
(1) 31 editorial staff working more or less exclusively on the Bristol Evening Post, including the Deputy Editor, the Assistant Editor, the News Editor, news reporters, and a “backbench” of senior sub-editors.
(2) 25 editorial staff working more or less exclusively for the Western Daily Press, including the Deputy Editor, the Assistant Editor, the News Editor, news reporters, a backbench of senior sub-editors, and the Business Editor.
(3)
81 editorial staff working in “spinal”
departments that serviced both the Bristol Evening Post and Western Daily
Press. These departments consisted of
features (31 staff), pictures (17), sub-editors (16), sports (16), and the
Community Editor (1). The
(4) 6 journalists (see paragraph 17 above), who did not appear on the organisational chart.
19.
The Employer did not accept that the 6 named
journalist should be included within any bargaining unit. More fundamentally, it did not accept that
the
(1) A bargaining unit consisting of the staff working more or less exclusively on the Bristol Evening Post, excluding Mike Norton but including his PA (32 staff on the organisational chart).
(2) A bargaining unit consisting of the staff working more or less exclusively on the Western Daily Press, excluding Andy Wright but including his PA (26 staff).
(3) A spinal bargaining unit consisting of (a) the editorial staff working in the spinal departments (81 staff) and (b) the administration (non-journalist) group (6 staff), who in effect comprised a further spinal department on the organisational chart. The Employer’s spinal bargaining unit thus consisted of 87 staff.
20. The Panel makes the following findings of fact based on both the oral evidence it heard and the documentary evidence.
21.
On
22.
The two titles were distinct products. The BEP was an evening paper focused on the
greater
23.
The
24.
The
25. In July 2005 Mike Norton was appointed as Editor-in-Chief of Bristol United Press Ltd and Editor of the BEP. Around this time the Northcliffe Newspapers group produced a plan called Aim Higher, which envisaged group-wide cost savings amounting to some £25 million. In the light of this plan the Employer considered that it could make significant cost savings if it brought together and streamlined the previously separate editorial departments of BEP and WDP. An external firm called Effective Consultants was appointed with a view to recommending ways in which the 2 papers could share and co-operate in the interests of efficiency and cost-effectiveness consistently with the retention of two distinct titles. Eventually, the Employer decided on a structure that would leave news reporting as a separate activity for each title but would place features, sports, pictures and, to a large extent, sub-editing in merged “spinal” departments that would service both titles. Mike Norton played a pivotal role in determining this strategy.
26. The Employer recognised that the envisaged rationalisation and restructuring would necessitate redundancies in both the BEP and the WDP. This was an essential element of the required savings as well as the means of achieving a more efficient and radically new method of working. Specifically, the Employer’s plan entailed a co-ordinated redundancy programme across the BEP and WDP.
27.
In order to go about this lawfully the Employer
had to consult with employee representatives.
This was not an entirely straightforward process. While the
28.
For the purpose of the redundancy consultation
exercise, a joint committee was formed.
The management side consisted of Mike Norton, Andy Wright, and Rob
Stokes, Deputy Editor, BEP. Mike Norton
led the management side. The staff side
consisted of 3 representatives from the BEP and 3 from the WDP, all 6 of whom
were members and/or officials of the
29.
Between
30. As a result of this exercise there were a series of mainly voluntary and some compulsory redundancies among those who had worked on the two titles. In all these amounted to 24 voluntary and 4 compulsory redundancies across both titles.
31. In January 2006 the first spinal departments were established, namely, sport and pictures. This was followed by the establishment of the spinal sub-editing department in February and the spinal features department in March. That left two separate groups of news staff, each supported by a separate “backbench” of senior sub-editors, who continued to work more or less exclusively for either the BEP or the WDP. While the spine serviced both titles, the separate groups of news staff ensured the retention of editorial autonomy and distinctiveness for each title.
32. As a result of the reorganisation, the number of editorial staff in the new spinal departments servicing both titles was, according to the Employer’s organisational chart, 81 plus a further 6 administrative staff. The combined numbers of those who continued to work for one title or the other was either 56 or 58, depending on whether the 2 editors’ PAs were included.
33. In terms of management responsibility, Mike Norton remained responsible for the day-to-day management of BEP staff and Andy Wright remained responsible for the day-to-day management of WDP staff, although he in turn continued to report to Mike Norton as the Editor–in-Chief. As regards the day-to-day management of the spinal departments, this was shared by Mike Norton and Andy Wright, although the departmental heads reported to Mike Norton, who was in any event Andy Wright’s line manager. There was no manager from within the spine who had overall responsibility for the running of the spine as a whole.
34. The budgetary arrangements were as follows. Both the BEP and the WDP had separate budgets that were put together by Mike Norton and Andy Wright respectively, and ultimately approved by the board of Bristol United Press Ltd. A single budget was also produced for the spinal departments as a whole. This was predominantly made up of all the costs relating to the members of staff within the spine. The spine was in essence a cost centre only since it derived no income of its own and its costs were recharged to the BEP and WDP by reference to the number of pages published for each title. Once the costs to the spine were recharged to the BEP and WDP, together with costs from elsewhere in the organisation, for example, for printing and advertising, a profit and loss account for each title was calculated by reference to the total costs and the income received.
35. As regards terms and conditions of employment, a common salary structure was not introduced. People doing very similar jobs were often on different rates of pay. However, in August 2006 one harmonised term was introduced: the special Sunday payments applicable to BEP staff were withdrawn and thus BEP editorial staff were brought into line with WDP staff. Other terms and conditions were common before the introduction of the new system and remained so afterwards. For example, editorial staff worked under distinct journalists’ contracts of employment, had the same holiday entitlement, were contracted to work 75 hours per fortnight, although shift patterns varied, and the disciplinary and grievance procedures for all staff followed the standard Northcliffe model.
36. In April 2006 the BEP NUJ Chapel and the WDP NUJ Chapel merged to form one combined Chapel.
37.
By an email dated
As I am sure you are aware, [the merger of the 2 Chapels] has no bearing on the legal status of the bargaining unit. I will continue to deal with you as the official representative of the [BEP] bargaining unit. For your information, any new employees in the joint editorial departments (ie features, subbing, sport, and photographic) will not be considered as members of the [BEP] bargaining unit.
38. Since the common spine was established 14 new workers have been recruited to it.
39. The redundancies together with natural wastage led to a marked reduction in the number of employees in the original bargaining unit. The size of the original bargaining unit in 2002 was 86 but by the time of the present application that figure had - on the Union’s estimate - reduced to 52, who worked either for the BEP or had formerly worked for the BEP and were now in the spine. The Employer agreed that there had been a significant reduction in the number of workers in the original bargaining unit. The Panel finds that that was indeed the case.
40. The two-fold task of the CAC is set out in sub-paragraphs (a) and (b) of paragraph 70 in the following terms:
(a) The CAC must decide whether or not the
original unit continues to be an appropriate unit;
(b) if the CAC decides that the original unit
does not so continue, it must decide what other bargaining unit is or units are
appropriate.
41. The test for deciding whether the original unit is no longer appropriate is set out in sub-paragraph (3) of paragraph 70:
In deciding whether or not the original
unit continues to be an appropriate bargaining unit the CAC must take into
account only these matters-
(a) any change in the organisation or structure
of the business carried on by the employer;
(b) any change in the activities pursued by the
employer in the course of the business carried on by him;
(c) any substantial change in the number of
workers employed in the original unit.
42. The statutory criteria for determining the appropriate bargaining unit or units are set out in sub-paragraphs 4, 5 and 6 of paragraph 70:
(4) In deciding what other bargaining unit
is or bargaining units are appropriate the CAC must take these matters into
account-
(a) the need for the unit or units to be
compatible with effective management;
(b) the matters listed in sub-paragraph (5), so
far as they do not conflict with that need.
(5) The matters are-
(a) the views of the employer and of the union
(or unions);
(b) existing national and local bargaining
arrangements;
(c) the desirability of avoiding small
fragmented bargaining units within an undertaking;
(d) the characteristics of workers falling
within the original unit and of any other employees of the employer whom the
CAC considers relevant;
(e) the location of workers.
(6) If the CAC decides that two or more
bargaining units are appropriate its decision must be such that no worker falls
within more than one of them.
43. By virtue of paragraph 171 of the Schedule the CAC is under a general duty, which is formulated as follows:
In exercising its function under this Schedule in any particular case the CAC must have regard to the objective 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.
44. Finally, reference will be made to the relevant statutory definition of “worker”. It is set out in section 296(1) of TULR(C)A. In so far as material, it provides as follows:
In this Act a “worker” means an individual
who works, or normally works or seeks to work -
(a) under a contract of employment, or
(b) under any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his…
45.
The
46.
Given the substantial merger between the BEP and
WDP, it made little sense, according to the
(1) Much of the copy produced for both titles was similar.
(2) Both titles now used a recently introduced common style book.
(3) The Chinese wall within the TERA system had been eroded to a degree.
(4) All editorial staff worked on the same floor.
(5) Although some members of the spine continued to work mainly on one title rather than the other, there was an increasing tendency towards overlap.
(6) Following the reorganisation, some but not all workers in the spine had been issued with new contracts. That apart, there were indications of a general convergence of terms and conditions, for example, all staff were contracted to work 75 hours per fortnight and there was a standard holiday entitlement.
(7) The spinal department did not have a budget in any meaningful sense – it was merely a cost centre.
(8) The Employer had not mentioned its preferred 3 bargaining units until the commencement of these proceedings.
47.
The
48.
The
George Halladay. He had worked for the Employer in excess of 10 years, was already on its payroll and was entitled to sick and holiday pay. He was paid a daily rate for working 5 days a week. He sat at the editorial features desk and liaised with editorial staff. He was paid an editorial rate of pay. He was in practice a member of the editorial staff rather than the advertising department, as suggested by the Employer.
Liz Marleyn. She had worked for the Employer in excess of 10 years, was already on its payroll and was entitled to sick and holiday pay. She was paid a daily rate for working 1 day a week.
Phil Tottle, Frank Emery and Allan Ford. They were casual workers on the sports
desk. They regularly worked between 2
and 3 days per week and there was an expectation that they would do this. The
Des Price. He was a casual but full-time graphic artist. He had been full-time since April 2005. He was paid for holidays and sickness and was reimbursed travel expenses.
49.
The
Yvonne Cook and Jane Westhead[1]. They were news desk secretaries whose functions were very largely administrative. Despite the impression given by the Employer, it was not a major part of their role to highlight stories that needed following up. They did not have journalists’ contracts and they had no training in the field.
Judy Malone. She was a copy taker but was not responsible
for processing copy that was fit for publication. Although she was perhaps a borderline case,
she did not take creative responsibility in the same way as a reporter or
sub-editor. She had no formal training
in journalism and was not on a journalist’s contract of employment.
Rosa Hill. She was the features PA. It was questionable whether her compilation of listings could properly be described as creative. She was not trained as a journalist and she was not on a journalist’s contract of employment.
50.
The
51.
The
52.
The
(1) In
considering whether a proposed new bargaining unit was compatible with
effective management for the purpose of paragraph 70(4), the approach was
similar to the application of paragraph 19B(2)(a). Under that provision the CAC
was not required to determine which bargaining unit was most compatible with
effective management but merely whether the
(2) In the context of a statutory recognition procedure which leads to collective bargaining on pay, hours and holidays, effective management should principally be understood as meaning effective in relation to the methods of resolving disputes about pay, hours and holidays.
(3) In
its decision of
(4) In view of the increased integration of the two titles, the proposed new bargaining unit was better suited to efficient management than the original unit. This was so because the editorial staff working on the two titles and the spine were working along side each other and doing similar jobs. They were also covered by a single union chapel.
(5) In respect of the criteria in paragraph 70(5): apart from the arrangements covering the original bargaining unit, there were no other existing national and local bargaining arrangements; the proposed bargaining unit would avoid small fragmented units within the undertaking; the characteristics of the workers within the original bargaining unit were similar to those in the proposed unit; and all the workers in the proposed unit were located at the same premises.
(6) The
Summary of the Employer’s main submissions
53. The Employer considered that the original bargaining unit was no longer appropriate as a result of the reorganisation of the business. Although it accepted that there had been a reduction in the number of workers in the original bargaining unit, it did not think that that in itself was a reason why it had become inappropriate.
54. The Employer proposed 3 bargaining units; one consisting of the workers in BEP, one consisting of the workers in WDP, and one consisting of the workers in the spinal departments. The Employer’s justification for this proposal was that the specific interests of each group, the budgetary arrangements, and the management structure could best be reflected in separate negotiations.
55. In support of its proposal the Employer made the following points:
(1) BEP workers were managed by Mike Norton, WDP workers by Andy Wright and the workers in the spinal departments by both Mike Norton and Andy Wright. This meant that having 3 bargaining units would facilitate effective management without causing fragmentation.
(2) Budgetary autonomy applied to each title in that each editor (Mike Norton and Andy Wright) set the respective budgets. The two editors did not seek to determine each other’s budgets, although it was acknowledged that if one of the titles expanded or contracted it could have implications for the workload of the spine.
(3) As between the 2 titles news content was on average about 95% different and total content about 60% different, although the contribution of the spinal departments to the 60% was acknowledged.
(4) The avowed long term aim was comprehensive integration within the spine.