Form of Ballot Decision
Updated 20 May 2022
Applies to England, Scotland and Wales
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Case Number: TUR1/1254(2022)
4 April 2022
CENTRAL ARBITRATION COMMITTEE
TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992
SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION
DECISION ON FORM OF BALLOT
The Parties:
Community
and
Express Reinforcements Limited
1. Introduction
1) Community (the Union) submitted an application to the CAC dated 23 February 2022 that it should be recognised for collective bargaining purposes by Express Reinforcements Limited (the Employer) for a bargaining unit comprising “all workers on the factory floor, up to and including Team Leaders, which would include Labourers, Production Operators, Production Team Leaders (working and supervisory) employed by Express Reinforcements Limited”. The location of the bargaining unit was given as Eaglebush Works, Milland Road, Neath. The application was received by the CAC on 23 February 2022 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 1 March 2022 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 Chair established a Panel to deal with the case. The Panel consisted of Mr Rohan Pirani, Panel Chair, and, as Members, Mr Robert Lummis and Mr Michael Clancy. The Case Manager appointed to support the Panel was Joanne Curtis.
3) By a decision dated 15 March 2022 the Panel accepted the Union’s application. In its response to the Union’s application the Employer agreed that the Union’s proposed bargaining unit was an appropriate bargaining unit. The Panel therefore moved to the next stage in the statutory process.
2. Issues
4) On 23 March 2022, the Panel, not satisfied that a majority of the workers constituting the bargaining unit were members of the Union, gave notice in accordance with paragraph 23(2) of the Schedule that a secret ballot would be held. The Panel also advised the parties that it would wait until the end of the notification period of ten working days, as specified in paragraph 24(5) of the Schedule, before arranging a secret ballot. The parties were also asked for their views on the form the ballot should take.
5) The notification period under paragraph 24(5) ended on 6 April 2022. The CAC was not notified by the Union or by both parties jointly that they did not want the ballot to be held, as per paragraph 24(2) of the Schedule.
3. Unions’ submissions on the form of ballot
6) In an e-mail dated 28 March 2022 the Union stated its preference for a workplace ballot. It stated that it had concerns regarding the numbers in the bargaining unit. It went on to say that a postal ballot would mean it would be impossible to verify visually by any of its officials / observers that people voting were in fact employed on the Neath site in the bargaining unit.
7) The Union went on to give an example. “If, for instance, there are people who work at a different site who are listed by the employer, then they would receive a ballot paper and be able to vote without any way of anybody being able to challenge their eligibility to vote. Similarly, if the ballot is held in working hours at the workplace, that would make it unlikely that employees of the group who work elsewhere would be able to vote whether or not it was possible to visually verify who they are. Our senior members have worked at the Neath site for many years and will recognise by sight those who work in the bargaining unit. Similarly, they will be able to recognise by sight people who work in the Neath office but are not members of the bargaining unit.”
8) The Union stated that it appreciated the difficulties in ascertaining which party had the correct number in respect of the size of the bargaining unit, however it submitted that a workplace ballot would to a degree mitigate the risk of non-bargaining unit people voting.
4. Employer’s submissions on the form of ballot
9) In an e-mail dated 30 March 2022 the Employer stated its preference for a postal ballot. The Employer explained that workers in the bargaining unit would have the opportunity to vote freely. It believed there was evidence of individuals being pressurised to vote in favour of a union and it wished to avoid any further negative disruption within the workforce. The Employer went on to say that “there are varying shift patterns which would prolong any ballot on site and may not reach everyone on a particular day - a postal ballot would give access to a vote for all employees irrespective of their shift pattern.” It added that with Covid numbers on the increase, attendance in the workplace was disrupted. A postal ballot would therefore reduce the number of unnecessary visitors to the site in line with its protocols. The Employer also explained that it was currently undertaking major refurbishment at the site with building work taking place. It went on to say that as parts of the site are off limits, many people were working from home due to limited facilities.
5. Considerations
10) When determining the form of the ballot (workplace, postal or a combination of the two methods), the CAC must take into account the following considerations specified in paragraphs 25(5) and (6) of the Schedule:
(a) the likelihood of the ballot being affected by unfairness or malpractice if it were conducted at a workplace; (b) costs and practicality; (c) such other matters as the CAC considers appropriate.
11) The parties have put forward two different types of ballot for the Panel to consider. The Union have argued for a workplace ballot, whereas the Employer has submitted that the ballot should be a postal ballot.
12) The Panel has considered carefully the arguments put by the Union as to why a postal ballot is not appropriate but is not persuaded by them. A postal ballot will allow each worker to cast his or her vote in the privacy of their own homes away from the workplace and any possible interference, which was a concern on the Employer’s part. The rules in place for workplace ballots mean it is most unlikely that Union representatives would be able to verify those going in and out to vote. Furthermore, there is no evidence to suggest that postal ballots conducted by the CAC have been open to abuse in the way envisaged by the Union and, if any abuse were brought to the attention of the CAC, the Panel would be in a position to deal with it having the necessary jurisdiction over the parties at this point in time.
13) The Panel considers that varying shift patterns and the increasing Covid-19 numbers mean that a postal ballot is safer and more practicable.
14) The Panel has also taken into account the relative cost of a workplace and a postal ballot. In reaching the conclusion that a postal ballot should be ordered, the Panel has borne in mind its experience that a postal ballot is in general less expensive than a workplace ballot which is a further factor in favour of ordering a postal ballot.
6. Decision
15) The decision of the Panel is that the ballot be a postal ballot.
16) The name of the QIP appointed to conduct the ballot will be notified to the parties shortly as will the period within which the ballot is to be held.
Panel
Mr. Rohan Pirani, Panel Chair
Mr. Rob Lummis
Mr. Michael Clancy
4 April 2022