Decision

Bargaining Unit Decision

Updated 22 August 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1388(2024)

21 August 2024

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DETERMINATION OF THE BARGAINING UNIT

The Parties:

Communication Workers Union

and

SeeChange Technologies Ltd

1. Introduction

1)         The Communication Workers Union (the Union) submitted an application to the CAC on 12 February 2024 that it should be recognised for collective bargaining by SeeChange Technologies Ltd (the Employer) for a bargaining unit comprising “Engineering Employees”.  The location of the bargaining unit was given as “SeeChange Technologies Ltd, 45 Newton Street, Manchester, M1 1FT.”  The CAC gave both parties notice of receipt of the application on 12 February 2024.  The Employer submitted a response to the CAC dated 19 February 2024 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 Ms Naeema Choudry, Panel Chair, and, as Members, Mr Alastair Kelly and Ms Stephanie Marston.  The Case Manager appointed to support the Panel was Kate Norgate.

3)         By a decision dated 25 March 2024 the Panel accepted the Union’s application.  The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit.  As no agreement was reached the parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit.  In a letter dated 19 June 2024 the parties were informed that a hearing would be held on 15 July 2024.  Following a request for a postponement received from the Employer, by a further letter dated 10 July 2024 the Case Manager explained to the parties that the Panel, having considered the parties’ written submissions, believed that it may be possible to determine the matter based on the parties’ written submissions alone, but subject to the parties’ views to the contrary.   The parties were also invited to comment on each other’s submissions.  The parties were also informed that if the Panel concluded that it could not reach its decision fairly without a hearing, that the parties would be informed accordingly.  On 18 July 2024 both parties submitted further comments. 

4)         In this case the Panel has made its decision on the basis of the parties’ initial written submissions, and each party’s written response to the initial submissions of the other party.  The Panel is grateful to the parties for their compliance with this process in a timely manner. The Panel is satisfied that it was able to make its decision fairly on the basis of the written material supplied by the parties and that no hearing was necessary to decide the matter.   

5)         This decision summarises the submissions of each party in a form which includes their initial written submissions amended, as appropriate, by their additional comments.

6)         The Panel is required, by paragraph 19(2) of Schedule A1 to the Act (the Schedule), to decide whether the Union’s proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. Paragraph 19B(1) and (2) state that, in making those decisions, the Panel must take into account the need for the unit to be compatible with effective management and the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need.  The matters listed in paragraph 19B(3) are: the views of the employer and the union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and the location of workers. Paragraph 19B(4) states that in taking an employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that it considers would be appropriate.

2. Summary of the Union’s submissions

7)         The Union submitted that its proposed bargaining unit, composed of staff who worked in the Engineering department, was a clearly defined management group within SeeChange.  The workers in the proposed bargaining unit worked under the control of the Vice President of Engineering.  It grouped all functions, namely, Data Scientists, Machine Learning Engineers, Software Engineers and Project Managers, within the Engineering team as it co-operated to deliver (build, test, maintain and deploy) the product as defined by the Product team and sold by the Commercial team within SeeChange.

8)         The Union said that all workers within its proposed bargaining unit contributed towards the execution and management of the processes described above, including those with a project management-oriented role. The Union believed that this demonstrated that it was compatible with effective management, and corresponded to the current management structure that was in place.

9)         The Union further explained that the Engineering Team sits between the Product and Commercial teams.  The Product team gathered market requirements and designed the shape of the product to be built.  The Commercial team sold the product and arranged demos for customers and, therefore, often the requirements and deadlines for its work was determined by those teams. Technical presales engineering was not involved in the process described above, and instead made use of the deliverables from Engineering and to non-technical sales and interacted predominantly with customers.

10)       The Union submitted that it believed it had met the criteria as a bargaining unit that was compatible with effective management, as it comprised a distinct group with clearly defined skills and characteristics, and carried out specific functions that were different to those of its other employees within SeeChange.  

11)       The Union said that its proposed bargaining unit would not cause fragmentation as there was no collective bargaining process in place for any employees and, therefore, it could not in any sense be described as discriminatory.

3. Summary of the Employer’s submissions

12)       The Employer submitted that it believed the appropriate bargaining was its alternative bargaining that comprised all members of staff, who sit below Vice President (VP) level.  The Employer said that this would increase the Union’s proposed bargaining unit from 16 workers to 21 workers and referred to an Organisational Chart enclosed with its submissions.  The Employer set out the following reasons for proposing its alternative bargaining unit;

i) All 21 workers were based at the same location in the Manchester office.

ii) All 21 workers had the same employment contract.  The Employer enclosed with its submissions a copy of its standard Employment Contract and Offer Letter.

iii) All 21 workers had the same standard Benefits.

iv) All 21 workers were governed by the same Grade Framework.  The Employer enclosed a copy of this document with its submissions.

v) All 21 workers were subject to the same process for performance review, salary review, and promotion.

vi) All 21 workers were governed by the same Salary Bands. The Employer also enclosed with its submissions, “Salary Bands extracted directly from our HR system”.  The Employer said that it believed this demonstrated that the bands in which the current SeeChange members sit, by their role name, were mixed together within the bands.

vii) Excluding the other 5 workers below the VP level would create arbitrary fragmentation and discrimination.

viii) There was nothing that uniquely grouped the Union’s proposed bargaining unit, other than that they all eventually reported up to the VP of Engineering.   There was however already a hierarchy of line management within the Union’s proposed bargaining unit, and, therefore it seemed illogical.   The nature of the work within the proposed bargaining unit was not consistent within the group or exclusive. There were Data Scientists, Machine Learning Engineers, Computer Scientists and Project Managers, who all did different things, particularly in the case of project management.  Outside of the Union’s proposed bargaining unit sits technical presales engineering that was closely related to the activities of many of those within the Union’s proposed bargaining unit.

13)       The Employer said that it wished to emphasise that SeeChange was a small pre-revenue deep-tech start company, and, as such, staff across the entire company wore many hats and performed tasks that were not strictly part of their formal job description.

14)       The Employer said that the remaining workers below VP level, who were located within Product, Marketing and Sales, regularly performed data gathering and data analysis that was critical to developing its products, as well as actively managing the product development and testing the results. The Field Engineer currently outside the Engineering department carried out software engineering, hardware setup and support. The workers outside of the Engineering department wrote technical documentation and designed the products that were built.

15)       The Employer further explained that within the Engineering Department itself there were a variety of roles that differed significantly. Software Engineers wrote code, AI Engineers were mathematicians, statisticians and modellers, and Data Scientists managed and analysed data. The Project Manager did not perform any technical development.

16)       The Employer said that, contrary to the Union’s statement recorded in paragraph 10 above, that the Engineering department had clearly defined skills and characteristics from the rest of the workforce, this was not true as there was no consistency regarding skills and tasks within departments.  Everyone across the company pitched in and performed multiple roles, that overlapped, what would be contained withing Engineering Departments in larger more mature companies.  SeeChange had a single consistent grade framework, salary band structure, benefits system, management system, and every single staff-related process that covered the entire company as a single entity.

17)       Finally, the Employer reiterated its position that it believed that the only logical bargaining unit was its alternative bargaining unit that comprised all staff below VP level.

4. Considerations

18)       The Panel is required, by paragraph 19(2) of the Schedule to the Act, to decide whether the proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. Paragraph 19B(1) and (2) state that, in making those decisions,  the Panel must take into account the need for the unit to be compatible with effective management and the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need.  The matters listed in paragraph 19B(3) are: the views of the employer and the union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and the location of workers. Paragraph 19B(4) states that in taking an employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that it considers would be appropriate. The Panel must also have regard to paragraph 171 of the Schedule which provides that “[i]n exercising functions under this Schedule in any particular case the CAC must have regard to the object 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.”  The Panel’s decision has been taken after a full and detailed consideration of the views of both parties as expressed in their written submissions.

19)       The Panel’s first responsibility is to decide, in accordance with paragraph 19(2) of the Schedule, whether the Union’s proposed bargaining unit is appropriate. The Panel notes that it cannot reject the Union’s proposed bargaining unit because it feels that a different unit would be more appropriate nor, in considering whether it is compatible with effective management, can it consider whether it is the most effective or desirable unit in that context.

20)       The Panel considers that the Union’s proposed bargaining unit is compatible with effective management.  The Panel has not been persuaded by the arguments put forward by the Employer that the Union’s proposed bargaining unit would fragment the business.

21)       The Panel has considered the matters listed in paragraph 19B(3) of the Schedule, so far as they do not conflict with the need for the bargaining unit to be compatible with effective management. The views of the Employer and the Union, as described earlier in this decision, have been fully considered. There are no existing national and local bargaining arrangements.  In relation to the desirability of avoiding small fragmented bargaining units within an undertaking, the Union’s proposed bargaining unit would be the sole bargaining unit within the Employer. At the time of the Panel’s decision there is no evidence before the Panel of any demand for recognition for collective bargaining purposes on the part of other workers within the Employer’s workforce. As far as the characteristics of workers are concerned, the proposed bargaining unit consists of a distinct and identifiable group of Engineering workers, who share common terms and conditions of employment and characteristics.  There is a clearly defined management structure, and the workers within the proposed bargaining all report to the Vice President of Engineering. All of the workers are employed at one location. The Panel is satisfied that its decision is consistent with the object set out in paragraph 171 of the Schedule.     

5. Decision

22)       The appropriate bargaining unit is the Union’s proposed bargaining unit, namely “Engineering Employees.”

Panel

Ms Naeema Choudry, Chair of the Panel

Mr Alastair Kelly

Ms Stephanie Marsden

21 August 2024