One size does not fit all

first_img Comments are closed. Previous Article Next Article One size does not fit allOn 1 Mar 2002 in Personnel Today TheCentral Arbitration Committee now has more than 50 union recognition disputesunder its belt. David Morgan looks at the trends emerging from its decisions,and an important new ruling on its discretionThe statutory regime for compulsory trade union recognition has been runningfor nearly two years and the Central Arbitration Committee that adjudicates inrecognition disputes has issued more than 50 decisions. The majority have dealtwith preliminary issues concerned with admissibility of the union’sapplication. To have an application accepted, the union must establish that atleast 10 per cent of workers in the proposed bargaining unit are members andthat the majority of workers in that bargaining unit would be likely to favourcollective bargaining. After allowing the application, the CAC has to assist the union and employerto reach agreement on the appropriate bargaining unit within 20 working days.If agreement cannot be reached, the CAC has a statutory duty to decide thematter. Deciding on the appropriate bargaining unit comprises the most criticalfunction of the statutory regime. A union’s application may stand or fall onthe scope of the unit. With larger bargaining units, it becomes less likelythat the union will enjoy a majority support for recognition, or even meet the10 per cent threshold test. Experience has shown that, more often than not, aunion will withdraw its application if the proposed bargaining unit is held notto be appropriate. What is appropriate? The CAC’s overriding consideration is that the unit should be compatiblewith effective management. It will also take into account other, possiblyconflicting, factors. While CAC decisions do not have binding effect as legal precedents onsubsequent cases, recent decisions reveal certain trends in its approach tothese tests. Clearly the CAC will treat compatibility with effective managementas of paramount importance. Further, it is generally reluctant to interferewith an employer’s existing bargaining arrangements and attaches a great dealof importance to them. An employer’s preference tends to be for a larger bargaining unit, oftenencompassing the entire workforce, for two reasons. First, it dilutes unionmembership and, second, decisions on pay, hours and holidays and other termsand conditions are taken at board or national level in most companies. However, very few CAC decisions have favoured this “whole company”approach. In Benteler Automotive UK and the ISTC (TUR 1/4/2000), one of thefirst significant cases to come before the CAC, the union proposed a bargainingunit comprising weekly-paid shop floor employees, excluding monthly-paidtechnical, supervisory and administrative staff. The company argued that the proposed bargaining unit would split theworkforce and impede effective management, hampering the company’s teamworkingphilosophy and vision. It also argued for a whole-company approach to thebargaining unit as it already had a works council operating across the companyfor communication and consultation purposes. In the event, the CAC based its decision on the reality of existingmanagement organisation in the company and ruled in favour of the bargainingunit proposed by the union. The CAC considered that the whole-companyphilosophy suggested by the company was, as yet, an aspiration. The bargainingunit proposed by the union more accurately reflected the characteristics of theworkers involved. Multi-site organisations Significantly, the Benteler decision involved a company operating at onlyone establishment. In subsequent cases, the CAC has had to determine the appropriatebargaining unit in businesses operating on several sites. In one of the fewdecisions favouring the employer’s whole-company approach to the bargainingunit, the CAC considered the multi-site operation in the application of TGWUand Gala Casinos Ltd t/a Maxim’s Casino Club (TUR1/119/2001). In that case, the union sought recognition for all gaming employees at oneof the company’s London casinos. Supporting its application, the union arguedthat the particular casino had a distinct profile within the group company.There were different rates of pay at the location, and distinctions in thenature of the work compared with other parts of the business, particularly thebingo division. The employer argued primarily that as all decisions on pay, hours andholidays were taken at board level within the group company, the appropriatebargaining unit should comprise all employees, or at least all those in itscasino division. The CAC had little hesitation in concluding that the bargaining unitproposed by the union would not be compatible with effective management. Giventhat the company operated 26 casino premises and another 170 bingo clubsthroughout the UK, fragmentation was a decisive factor in the CAC’s reasoning.It took into account the existence of common terms and conditions of employmentand pay scales throughout the casino division. It held that separate bargainingunits at local level would be fragmentary and could invite numerous otherbargaining units composed of employees subject to the same terms and conditionsof employment. In TGWU and Kwikfit (TUR1/126/2001), the union sought recognition for aproposed bargaining unit comprising the two London divisions (made up of 110centres) of a company with 646 centres in the UK. The company argued that allemployees shared a common employee handbook, training, career ladder, hours ofwork and holiday entitlement. It also emphasised the integrated and centralisednature of its operations, arguing that a fragmentation of bargaining units inLondon would inhibit the flexible movement of labour. On the other hand, theunion made reference to the London weighting allowance and a trend ofdecentralisation of collective bargaining in the industry. In this case, the CAC did not consider a bargaining unit covering the wholeof London to be fragmented given 20 per cent of the company’s employees werebased there. While the CAC accepted the company operated centrally and applieduniform policies and procedures across all sites, it considered that otheraspects of the business, such as the relative autonomy of divisional directorsmeant that dealing with other matters (including collective bargaining) at theLondon division level would not be incompatible with effective management. Freedom for discretion However, last month, the High Court of England overturned this decision onjudicial review and remitted the case back to a freshly constituted CAC forre-hearing. While the full case report has yet to be published, we understandthe court held that a proposed bargaining unit could not trump other moreappropriate bargaining units and that the CAC had erred in its approach to itsdiscretion in this regard. Despite the fact that the employer and the union arecalled on to propose an appropriate bargaining unit, the CAC should be free tohold that a different unit is more appropriate. That discretion must beexercised reasonably. With no formal right of appeal from a CAC decision and the reluctance ofcourts to interfere with the CAC’s discretion, employers must get their viewsacross forcefully and correctly at the CAC. For unions, too, the choice is crucial. If an approach fails, the union isbarred from bringing another application for the same bargaining unit for threeyears. David Morgan is a solicitor in the employment law unit of McGrigorDonald. He successfully represented Gala Casinos before the CAC in London Compatible with effective management?The CAC will take into account thefollowing:– The views of the employer and of the union.– Existing national and local bargaining arrangements.– Avoiding small fragmented bargaining units within anundertaking.– The characteristics of workers falling within the proposedbargaining unit and any other employees of the employer whom the CAC considersrelevant.– The location of workers.– Section 19(4) of Schedule A1 of TULR(C)A 1992.Dealing with recognition applications– Make sure the union has correctlydesignated the employer. The rules provide that an application must be levelledat the company employing the workers, not, for example, a trading name.– Do not forget Acas. There is a technicality in the rulesstating that, if the employer proposes Acas assistance or involvement duringthe first 10 days of the 20 day negotiation period and the union declines theoffer, the union will be barred from proceeding with the matter at the CAC.– Unions will often petition the workers in their proposedbargaining unit to ascertain their likely support for recognition. Employersshould seek an independent confidential audit of membership under the auspicesof the CAC or Acas. – Choose the bargaining unit carefully. Remember that while awider unit may dilute union membership, if unsuccessful, you may end up withrecognition in a larger group than originally proposed. – Empower your staff consultative forum and ensure decisionsare taken at the appropriate level, preferably across the company.– In a multi-site business, retain contractual mobility andflexibility provisions in the contract of employment. A flexible workforce willadd weight to an argument that localised bargaining units will lead tofragmentation.– As the CAC need not follow the bargaining units proposed byeither party, employers should consider putting forward more than one alternativebargaining unit. Related posts:No related photos.last_img read more