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Simon Auerbach,
Partner, Pattinson & Brewer
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ILS ANNUAL CONFERENCE
14-16 September 2001
Title: Workshop:
Statutory
recognition – the first fifteen months. Hope fulfilled or fears confirmed?
- TRENDS AND STATISTICS
The Statutory Recognition provisions introduced by the Employment Relations Act 1999 came into force on 6 June 2000.
According to its annual report for 2000/1 ACAS handled 384 requests for assistance in recognition disputes in the period ended 31 March 2001, compared with 209 the previous year. The ACAS chair estimated in July 2001 that over 70% of such cases in which ACAS was involved were leading to recognition.
Recognition was the second most frequent subject of collective conciliation by ACAS, after pay, terms and conditions. In only 51 cases in which ACAS was involved was the statutory process triggered. ACAS conducted 80 ballots and 82 membership checks.
The CAC’s Annual Report for 2000/1 records that up to 31 March 2001 it had received 57 applications under Part I and 2 applications under Part VI, both later withdrawn. Thirty of the Part I applications had been decided at acceptance stage, of which 27 were accepted. There had been 5 cases in which a bargaining unit was agreed, 10 in which it was decided by the CAC. As at 31 March 2001 there had been 5 cases of recognition being awarded without a ballot, and 2 ballots commissioned by the CAC, both of which resulted in recognition being awarded.
As at 31 August 2001 the number of Part I applications recorded on the CAC’s website had risen to 116. These notes draw on the table of decisions and outcomes, and details of decisions, which had been posted on the CAC’s website as at that date.
The CAC appears so far to be coping well with the growing caseload. Cases are often moving through their stages quite speedily, sometimes with more than one stage being taken at a time.
B. CAC DECISIONS AT EACH STAGE OF THE PROCEDURE
- Acceptance (including review of validity on change of bargaining unit)
Generally
Almost all applications have been initially accepted. Three have failed to be accepted because of existing recognition. One has failed to meet the "50% likely to support" test on the initial application. Two failed that test on reassessment following a change of bargaining unit. In both cases the unit was larger than the union had originally sought.
General factors affecting panels’ approaches are
- That evidence is to be weighed on the balance of probabilities.
- That not necessarily all differences, e.g. as to the precise level of membership, need to be resolved at this stage.
- That the panel may draw on its own industrial experience as a factor, especially in relation to the "likely to support" test.
10% membership test
- Does the employer dispute the membership level?
- Certifying of membership print-outs by union officers.
- Confidential membership checks through the case manager – written confirmation and agreement of parties.
- Confidential consideration of petitions and surveys.
- Other investigations, e.g. site visit by CAC case and operations manager.
Majority likely to support collective bargaining?
- The test at this stage is would the majority be likely to support.
- Significance of petition and survey evidence – especially from non-union members.
- Recognition of union difficulties in gathering such evidence.
- Inference that union members are likely to support from:
- Fact of membership – in some cases, but not always.
- Density of membership, including a fluctuating pattern over time.
- Recruitment in the course of a recognition campaign.
- Recruiting literature.
- The inference may be drawn that some supporters of recognition will not join union at all, or not until it is recognised.
Non-acceptance because of existing recognition:
- Timing of existing recognition – ISTC and Bausch and Lomb, TUR 1/8/00, decision of 2 October 2000; contrast USDAW and National Autoparts, TUR 1/28/00, decision of 5 January 2001.
- Recognition of the applying union - NUM and RJB Mining (UK) Limited - TUR 1/32/00, decision of 16 February 2001. The statutory definition of a collective agreement, section 178 of the 1992 act, was applied. That recognition occurred as a result of industrial pressure was irrelevant.
One case of non-acceptance because of failure to meet this test – NUM and Hatfield Coal Company Limited – TUR 1/55/01, decision of 11 April 2001. Lack of evidence of intentions of members; significant increase of membership at time of multiple personal injury actions.
- Determination of the Bargaining Unit
The union’s bargaining unit has been awarded in the majority of cases. In most of the remaining cases the unit awarded has differed from both that sought by the union and that sought by the company.
The decisions demonstrate that the company’s ipse dixit as to effective management will not suffice; and more than one bargaining unit may be compatible with effective management.
Key recurring issues:
- Single or multiple workplace
- Inclusion of "non-core" workers, e.g. secretarial or administrative staff
Importance of existing:
- management and organisational structures
- existing employee involvement arrangements
- pay and terms structures
- duties, flexibility and mobility
Avoidance of small fragmented units – small does not equal fragmented.
The appropriateness of the particular union applying is irrelevant; but the panel may wish to avoid a situation that could lead to different unions being recognised at different sites.
There is a tendency for the union to seek smaller units, often confined to one workplace or "core" grades; but this is by no means always the case.
Some examples:
ISTC and Benteler Automotive UK, TUR 1/4/00, decision of 17 October 2000. The panel agreed the union’s unit of production operatives and manual handlers. The company’s preferred option was for a unit of all workers, including supervisory and maintenance staff, but excluding nine managers. The company argued that this was in keeping with its "whole company" management philosophy and that the union’s unit would be divisive and undermine the business. The panel were not persuaded that awarding the union’s proposed union would undermine the company’s aims, which had yet to be fully realised, and to which the union was not opposed. Bargaining with the union’s unit would not be incompatible with effective management.
TGWU and DHL (UK) Limited, TUR 1/15/00, decision of 26 January 2001. The company successfully argued for a wider range of grades to be included than the union wished, having regard to flexible working arrangements; but the company’s argument that all geographical locations should be covered was rejected, having regard to how its own Employee Communications Forum was organised.
BFAWU and Seabrook Potato Crisps Limited, TUR 1/54/[2001], decision of 5 June 2001. The company successfully argued for the bargaining unit to cover not just one but two sites, which were found by the panel to have essentially common culture, work and terms and conditions, despite minor differences.
BALPA and Ryanair Limited, TUR 1/70/[2001], decision of 20 July 2001. The union successfully argued for pilots based at three locations to be covered in a single unit; this was consistent with the coverage of a recent agreement with the Employee Relations Committee, and could in the panel’s view accommodate differences in working conditions, many of which fell outside the statutory subjects for mandatory bargaining.
(3) Recognition without a ballot?
The case-manager confidential comparison of lists is regularly used at this stage again to establish the membership level, sometimes supported by additional or updated information to verify the membership check.
In 10 cases the union had a majority of the bargaining unit in membership, and in 7 of these was recognised without a ballot. In a further 4 cases a ballot was ordered because the union had not met the membership threshold.
Where 50% + 1 of the workers are in membership the onus is on the employer to argue that one of the qualifying conditions is fulfilled, so that a ballot must be held.
Interests of industrial relations:
- In several cases the panel considered that good industrial relations were better served by not balloting – e.g. GPMU v. Statex Press (Northern) Limited, TUR 1/21/00, decision of 21 December 2000; GPMU and Eastern Counties Newspapers, TUR 1/15/[2001], decision of 10 July 2001, where the company itself argued that a ballot would be divisive.
- The narrowness of the majority in membership should not necessarily lead to an assumption that a ballot is needed, as this would effectively change the statutory threshold – ISTC and Fullarton Computer Industries Limited – TUR 1/29/00, decisions of 22 March 2001.
- By contrast in GPMU and Red Letter Bradford Limited, TUR 1/12/00, decision of 24 January 2001, the panel’s reading of the industrial relations situation in this case was that a ballot would not be divisive, and would resolve uncertainty over the strength of support for collective bargaining and clear the air.
Evidence casting doubt on whether union members want recognition:
Where 90% of members joined when membership was free this gave rise to doubts as to their wishes, and in terms of the interests of industrial relations, a ballot would produce certainty – AEEU v. Huntleigh Healthcare Limited, TUR 1/19/00, decision of 26 March 2001.
Method of Balloting
Out of seven ballots ordered, three were workplace, three postal and one a combination.
In two cases involving airlines both sides agreed a postal ballot was more appropriate – MSF and Saudi Arabian Airlines, TUR 1/11/00, decision of 1 December 2000, and BALPA and Easy Jet, TUR 1/73/[2001], decision of 30 July 2001.
In TGWU and Hozelock Limited, TUR 1/52/[2001], decision of 20 June 2001, the seasonal nature of the business was a special factor and meant that the workplace ballot should be supplemented by the option of postal voting.
(4) Access Arrangements for the Ballot
In GPMU v. Red Letter Bradford Limited, TUR 1/12/00, decision of 1 March 2001, the panel made an order in relation to access arrangements for the ballot. Despite negotiations the union and the company failed to agree the terms of an access agreement. Accordingly the company had failed in its duty to give reasonable access. The company won the argument that mass meetings should take place off site as the union had not sufficiently answered its concerns about the practicality of having them on site. However, the union won the argument that it should be allowed to have surgeries on site. These were directed to take place during rest breaks and in an appropriate room provided by the company. The union’s representative at the company was to be given time off with pay for that purpose. The company was also to provide the union with the use of a notice board during the balloting period.
- Recognition Ballots - Outcomes
In five out of the seven cases in which ballots were held, the union achieved the requisite majorities and was declared recognised. In both cases in which the union lost the ballot (BAJ and Essex Chronicle Series, TUR 1/34/[2001], decision of 7 June 2001, and MSF and APW New Forest Limited, TUR 1/60/[2001], decision of 20 July 2001) the bargaining unit was not that originally proposed by the union.
(6) Method of Collective Bargaining
In UNIFI and Union Bank of Nigeria plc TUR 1/16/00, decision of 7 June 2001, the panel was called upon to decide the method of collective bargaining. After lengthy negotiations the parties ultimately agreed on the method, save as to whether negotiations on "pay" for the purposes of Schedule A1 should embrace pensions. The parties in any event wanted the CAC to order the method which they had agreed, so that the agreement would have effect as a binding contract.
The panel considered that the question of interpretation of whether "pay" in the context of the statutory recognition provisions embraced issues relating to pension was "part and parcel" of the method of collective bargaining to be decided, and therefore was appropriate to be decided by the panel, when requested by the parties. The panel conducted an exhaustive analysis ranging over the domestic and European case law, other legislation and the Parliamentary background to Schedule A1.
The panel noted that distinctions must be drawn between various pensions-related issues and between defined-benefit schemes and defined-contribution schemes. The panel concluded that in domestic law "pay" was a wider term than "wages" or "remuneration" and that the employer’s pension contributions (in a defined contribution scheme) and the benefits payable (in a defined benefit scheme) are now seen as an "integral and important part of a worker’s pay." In this case, concerning a defined-contribution, group personal-pension money-purchase scheme, bargaining over "pay" included all matters relating to the levels or amount of the employer’s pension contributions.
C. JUDICIAL REVIEW
So far as I am aware there have up to end August 2001 only been two applications launched seeking judicial review of a CAC’s panel’s decision, both by employers. The first of these was ultimately not pursued when the union failed to win the requisite majority in the ballot.
The second was a petition by Fullarton Computer Industries Limited for judicial review of the decision of the CAC panel of 22 March 2001 in case TUR 1/29/00. This was decided by the Outer House of the Court of Session on 28 June 2001. The Court declined to overturn the panel’s decision to order the union recognised without a ballot. The following points emerge from the decision:
- The use of the case manager to investigate whether the union had a majority in membership, by analysing information gathered from the union and the company, did not involve an unlawful delegation, as the panel itself still decided the issue.
- The exercise was not carried out in breach of natural justice as the parties had agreed conditions of confidentiality.
- The panel had not been obliged to give reasons for its decision. The reasons which were given could be scrutinised but did not disclose any irrationality
- The panel was entitled to take a view, as an industrial jury, that the interests of industrial relations would not be served by a ballot; the Court should not intervene though it might have decided the matter differently itself, as there was no evidence of irrationality.
Simon Auerbach
PATTINSON & BREWER
September 2001