Case Number: TUR1/620(2008)
20 March 2008
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
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 Harry Lawson Limited (the Employer) for a bargaining unit
comprising “drivers at the Baluniefield Depot”.
The CAC gave both parties notice of receipt of the application on 25 February 2008. The Employer
submitted a response to the CAC dated 29 February 2008 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 Kenny
Miller, Chairman of the Panel, and, as Members, Mr Dennis Cameron and Mr Mike
Regan. The Case Manager appointed to
support the Panel was Sarah Kendall.
3. The Panel extended the statutory
deadline to decide whether to accept the Union’s
application to 14 March 2008 to allow for a membership check to be conducted, for
the parties to comment on the results thereof and to give the Panel the
opportunity of considering the parties’ submissions before arriving at a
decision.
Issues
4. The Panel is required by paragraph 15
of Schedule A1 to the Act 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
paragraph 12; is admissible within the terms of paragraphs 33 to 42 of Schedule
A1 to the Act; and therefore to 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 24 September 2007. The Employer
had responded in writing to an earlier letter in which the Union
had invited the Employer to discuss recognition. The Employer turned down this request in a
letter dated 21 September 2007. The Union
attached copies of both of these letters to its application. Acas became involved on the instigation of
the Union but this did not progress matters.
6. The Union
stated that that there were 61 workers employed by the Employer with 50 of those
being in the proposed bargaining unit. Out
of the 50 workers in the proposed bargaining unit, 26 were members of the Union. The Union stated that it
could provide the CAC with a list of Union members on a confidential basis.
7. The Union
explained that the reason for selecting the proposed bargaining unit was that
it comprised all drivers and was clearly a defined and cohesive group of hourly
paid workers. The Union
stated that the Employer recognised this as compatible with effective
management through the operation of a Drivers Committee for information
purposes.
8. The Union
confirmed that the bargaining unit had not been agreed by the Employer and that
there was no existing agreement that it was aware of that covered any of the
workers in the proposed bargaining unit.
The Employer’s response
9. The Employer’s response dated 29 February 2008 stated that there were currently 48 workers in the proposed
bargaining unit but it was in the process of appointing more drivers. It stated that it did not agree with the Union’s
level of membership citing the reduction of payroll deductions from 13 to 7 for
union membership subscriptions and contended that the Union’s
membership was less than the 26 stated.
10. The Employer did not agree with the Union’s
proposed bargaining unit stating that it should also include Workshop employees
some of whom regularly drive. These
workers were also hourly paid and were based at the same location. Further, the Employer contended that that a
bargaining unit comprising Drivers and Workshop employees, who were represented
by the workers committee, was compatible with effective management. The Employer did not offer an opinion on the
issue of whether it believed that the workers in the bargaining unit were
likely to support recognition at this time.
However, it stated that it believed there was substantial continuing
support for the workers committee.
11. The Employer stated that it had not yet
received a copy of the application directly from the Union. The Union confirmed in
an email to the Case Manager on 19 March 2008 that a copy of the application, issued to the CAC on 25 February 2008, had been sent to the Employer by recorded delivery
on 10
March 2008.
Membership and support check
12. To assist in the determination of the
admissibility criteria specified by paragraph 36(1) of the Schedule, the Panel
requested that an independent check of union membership for collective bargaining
in the proposed bargaining unit should be conducted by the Case Manager.
13. A list of workers in the proposed
bargaining unit was provided by the Employer.
The Union provided a list of Union members in the proposed
bargaining unit. The information from
the Union and Employer was received on 10 and 11 March 2008 respectively.
It was agreed that to preserve confidentiality the information provided
by the parties would not be copied to the other party. The arrangements for the membership and support
check were confirmed in letters sent to both parties on 7 March 2008.
14. The Employer provided a list of 50 names
of workers in the proposed bargaining unit.
The Union provided a list of 26 names of members. The Case Manager carried out a comparison of
the lists. The check of union membership
established that 24 workers in the proposed bargaining unit were Union members,
that is, a membership level of 48%.
15. The results were produced as a report
that was circulated to the parties for their comments on 11 March 2008.
Summary of the parties’ comments
16. The Union
in a telephone conversation with the Case Manager confirmed that it did not
wish to comment on the findings within the report.
17. By a letter dated 13 March 2008 the Employer stated that it had no comments to make
in relation to the comparison of the figures shown in the report.
Considerations
18. In deciding whether to accept the
application the Panel must decide whether the admissibility and validity
provisions referred to in paragraph 3 of this decision are satisfied. The Panel has taken into account all the
evidence and argument submitted by the Employer and the Union
in reaching its decision.
19. 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. The Panel
acknowledges that at the time of submitting its response the Employer had not
at that time received a copy of the Union’s
application. However, the Panel is
satisfied that the Union having sent a copy to the Employer by recorded
delivery on 10 March 2008 has complied with paragraph 34 of the Schedule since
that provision requires the Union to give notice of the application and a copy
of the application together with any documents supporting it but does not
specify a particular time when the information needs to be provided. It is also satisfied that the application is
not rendered inadmissible by any of the provisions in paragraphs 33 and 35 along
with paragraphs 37 to 42 and was made in accordance with paragraph 11 of the
Schedule.
20. The remaining issue is whether the
admissibility criteria set out in paragraph 36(1) of the Schedule are met. In accordance with paragraph 36(1)(a) and (b)
of the Schedule, the Panel must determine whether members of the Union
constitute at least 10% of the workers in the agreed bargaining unit, and
whether a majority of the workers constituting the agreed bargaining unit would
be likely to favour recognition of the Union as entitled to conduct collective
bargaining on behalf of the bargaining unit.
Paragraph 36(1)(a)
21. The Case Manager’s report dated 11 March 2008 indicated that Union members constituted 48% of the proposed
bargaining unit. The Panel is therefore
satisfied that at least 10% of the workers in the proposed bargaining unit are
members of the Union and that the Union’s application is admissible within the
terms of paragraph 36(1)(a).
Paragraph 36(1)(b)
22. At this stage in the statutory procedure
the Panel must assess whether a majority of the workers in the Union’s
proposed bargaining unit would be likely to favour recognition of the Union. If the application is accepted, the proposed
bargaining unit will then be subject to scrutiny.
23. The level of membership within the
proposed bargaining unit has been checked by the Case Manager using the
Employer’s list of workers and Union’s list of members, and that check had established
that 48 % of the workers in the proposed bargaining unit were members of that Union.
24. The Panel is satisfied that membership
of a Union can, where there is no evidence to the contrary, be accepted as
being indicative of that person’s support for collective bargaining on his or
her behalf by the Union in relation to the Employer. It is the Panel’s view that, on the balance
of probabilities, a worker who has joined a Union
would likely to be in favour of that Union negotiating with the Employer on
matters related to pay, hours and holidays.
25. It is also the Panel’s experience that
there will be workers that are not members of the Union
that would be likely to favour recognition of the Union.
26. The Panel believes it is reasonable,
taking into account the level of Union membership within the proposed
bargaining unit, for it to conclude that a majority of the workers in the
proposed bargaining unit would be likely to favour recognition of the Union.
Decision
27. The Union’s
application is valid within the terms of paragraphs 5 to 9, is made in
accordance with paragraph 11, and is admissible within the terms of paragraphs
33 to 42 of Schedule A1. The application
is therefore accepted.
Panel
Professor
Kenny Miller, Chairman
Mr
Dennis Cameron
Mr
Mike Regan
20 March 2008