Decision

Bargaining Unit Decision

Updated 9 July 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1391(2024)

27 June 2024

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DETERMINATION OF THE BARGAINING UNIT

The Parties:

GMB

and

BCA Logistics Limited

1. Introduction

1)         GMB (the Union) submitted an application to the CAC dated 9 February 2024 that it should be recognised for collective bargaining purposes by BCA Logistics Limited (the Employer) in respect of a bargaining unit comprising “ZHC Experienced Demo Drivers, Contracted Experienced Demo Drivers.” The location of the bargaining unit was given as “BMW Paddock Lane, Thorne DN8 4HT” The application was received by the CAC on 22 February 2024 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 29 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 Chairman established a Panel to deal with the case. The Panel consisted of Mrs Sarah Havlin, Panel Chair, and, as Members, Mr Rob Lummis and Mr Ian Hanson. The Case Manager appointed to support the Panel was Joanne Curtis.

3)         By a decision dated 8 April 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.

2. Hearing

4)         A hearing was held via zoom and the names of those who attended the hearing are appended to this decision. Both parties provided written submissions prior to the hearing together with supporting documentation. The Panel would like to thank the parties for answering the questions raised by the Panel prior to and during the hearing. The information they provided was very helpful to the Panel.

3. Background

5)         On 17 April 2024 the Employer provided the Case Manager with the specified information requested in the letter dated 8 April 2024. The Employer included those roles outlined in the Union’s proposed bargaining unit together with additional roles which encompassed the whole of BCA Logistics (BCAL) engaged at the BMW Thorne plant. These additional roles were:

• Transportation Operations Supervisor (1)

• Planner Coordinator BMW (2)

• General Manager (1)

• Planner Coordinator (TBC - 1)

• CEP Administrator (TBC -1)

• Inspections and Quality Manager (1)

• Customer Support Manager (1)

• Technical Reviewer (1)

• Team Leader CEP Fleet Support (1)

• Senior Customer Support Adviser (1)

• Senior Car Scheme Adviser (1)

• Senior Business Support Customer Service (3)

• Logistics Distribution Coordinator (1)

• GI Vehicle Logistics Supervisor (1)

• GI Retailer Support Coordinator (3)

• Customer Support Administrator (3)

• Car Scheme Adviser (2)

• Car Scheme Administrator (2)

The Employer therefore said that there should be 66 workers in the proposed bargaining unit. 39 of whom were drivers and the rest of who carried out the above roles. In an amended list also sent on 17 April 2024 the Employer provided the details of 40 drivers. This was an increase of 1 driver.

6)         In an e mail dated 23 April 2024 the Union confirmed that the number of workers in the proposed bargaining unit was 40. The Union further confirmed on 24 April 2024 that it disagreed with additional roles being included and that the bargaining unit should consist of the drivers only.

7)         By way of an e mail dated 1 May 2024 the Employer said that it remained BCAL’s position that the correct bargaining unit should be all those employees employed by BCAL in the provision of the services to BMW at the Thorne location. The Employer said that the General manager, Planner coordinator and CEP Administrator should be included. The Employer said that the reason it believed that it was correct to include “all its employees employed at BMW Thorne” was because it was “a distinct and unique group of BCAL employees, all of whom are employed at the single location in Thorne, whose sole and collective purpose is delivering the BCAL contract to BMW at Thorne. Any issue affecting the individuals in the Union’s proposed bargaining unit would similarly impact on the other BCAL employees at Thorne, in exactly the same way, such that it would be more appropriate to treat them as a collective whole for the purpose of the bargaining unit rather than split the workforce into two divided groups (which in practical and operational terms they are not).”

8)         In an e mail dated 1 May 2024 the Employer provided the operations structure at “Thorne” as follows:

“BMW UK CEP

Thorne based drivers 37

Administration 5

Control and Planning 6

BMW UK CUSTOMER SUPPORT

Administration team 10

Handover operations 6

BMW UK LOGISTICS SUPPORT

Administration team 5

MANAGEMENT

Management 3”

4. Summary of the submissions made by the Union

9)         The Union said that recognition would enable the GMB to engage in collective bargaining on behalf of the Drivers (Formerly DHL ‘Inside Track’) at BCA Logistics in Thorne, Doncaster. The Union said, “the recognition of GMB Union is essential to ensure that the driver workforce at BCA Logistics is adequately represented, their rights are protected, and their voices are heard in matters concerning their employment terms and conditions.” The Union said that before the transfer under TUPE from DHL to BCA Logistics in Thorne, Doncaster on 1 December 2023, the Drivers, both permanent and ZHC, were covered by a recognition agreement between DHL and GMB. In the Transfer of Undertakings Protection of Employment (TUPE) process. The Union went on to say that BCA decided not to recognize GMB, “thus denying the group of Drivers their voice on their pay, terms and conditions.” The Union attached a copy of the recognition agreement between DHL and GMB to their submissions.

10)       The Union stated that the drivers were seeking their own collective bargaining unit and did not want to include managers and non-driver workers from other departments in the bargaining unit, as this was not appropriate, and the roles differed significantly. The Union re iterated that it had had a positive working relationship with DHL, where members were consulted and voted on their pay, terms, and conditions. The Union said that it wished to have the same working relationship with BCA Logistics and the Drivers wished to have the same rights to participate in collective bargaining with their new Employer. The Union said that it believed the Employer was trying to include additional categories of workers in the bargaining unit so as to dilute union membership. The Union attached a copy of a contract of employment for a “Demo Driver” dated 30 October 2017 with DHL at Thorne.

5. Summary of the submissions made by the Employer

11)       The Employer submitted that the Union’s proposed bargaining unit was not appropriate and that the alternative bargaining unit as proposed by the Employer should be regarded as the appropriate bargaining unit. The Employer submitted that the correct bargaining unit should be “all of those employees of the Employer who are employed by it in the provision of the services to BMW at the Site.” The Employer said that all of the workers in the bargaining unit it described were wholly assigned to the provision of the services to BMW on behalf of the Employer at the site and were employed on similar terms to those workers in the Union’s proposed bargaining unit.

12)       The Employer went on to say that all the workers listed in the Employer’s proposed bargaining unit were employed at the Thorne site and that the provision of the services to BMW on behalf of the Employer by the workers in the Employer’s proposed bargaining unit formed a local and discrete operation within the Employer’s wider unconnected business. The Employer said that the workers in the Employer’s proposed bargaining unit “had a distinct and specific common collective purpose within the Employer’s wider business and were set apart from and identifiable as a separate and distinct entity. The employees within the Employer’s proposed bargaining unit form effectively the BMW Thorne Team.”

13)       During the hearing the Employer said that it was opposed to the Union’s bargaining unit because the Employer believed it would cause division at the site. The Employer re iterated that the site was a discreet part of the wider group and embedded in the BMW group. The Employer explained that it was “a common team working to a common approach.” The Employer said that although BCA Logistics was part of the wider group they had their own power to determine pay increases. The Employer explained that it had one universal pay award and the bargaining unit proposed by the union would divide this. The Employer said that the wider bargaining unit as suggested by the Employer would work if the Union had the support of these workers and not just the 37 drivers. The Employer went on to say that one of its other sites recognised the union and this was “full site recognition.”

14)       The Employer made the point that all the workers in the Union’s proposed bargaining unit were male, and the office staff who were predominantly female were therefore outside of the proposed bargaining unit. The Employer said this would cause a divisive workforce. The Employer said that when the workers TUPE’d across from DHL they were in a bargaining unit however the office staff that the Employer inherited from that team were not and had been left behind the living wage. The Employer said it had to give these workers a 9% pay rise to bring them in line with its existing workers. The Employer said that it wanted harmony without the risk of discourse and workers being left behind again. The Employer said that as a result the bargaining unit that the Union had with DHL was no longer appropriate as it had caused and would cause divisions between the drivers and the other group of wider workers.

15)       By way of background the Employer said that it had a contract with BMW to provide services to them and that the workers did not “touch any other work unless it needed to look to the wider network for wider work.” The Employer said that its drivers were fully uniformed and embedded into the BMW process and treated as part of the team. The Employer said as part of the contract the workers would undertake the BMW upgrade training. The Employer said its workers were all based on BMW sites. When asked by the Panel why the Employer had chosen the word sites when all other references were simply to the Thorne site the Employer said “we visit all the BMW sites and control all the sites but the team is based at Thorne distribution centre. We have remote mobile inspectors in this group dedicated to the handover of the company car fleet, but they are all managed and report to site. They are off site delivering to all corners of the country. We have 7 handover sites that workers go to.”

16)       In terms of the management structure and reporting line of the workers in the Employer’s proposed bargaining unit the Employer said this was “limited to only those employees employed at the Site (save for the BMW General Account Manager who is the only employee within the Employer’s proposed bargaining unit who reports outside of the Site).” The Employer said that it had no existing national bargaining arrangements in place.

6. Considerations

17)       The Panel begins with the statutory framework. 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:

(1) the views of the employer and the union;

(2) existing national and local bargaining arrangements;

(3) the desirability of avoiding small, fragmented bargaining units within an undertaking;

(4)   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

(5)   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 consider 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 “In 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.”

18)       In reaching its decision the Panel has taken account of the views of the Union and the Employer as expressed in their written submissions, responses to questions and oral submissions during the hearing.

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. That does not require the Panel to determine whether it is the most appropriate bargaining unit; only whether it is appropriate. This is the overriding requirement under 19B(2) and relates principally to the matters to be collectively bargained for under the statutory regime, namely pay, hours and holidays. The requirement is that the proposed bargaining unit would be compatible with effective management, not that it be compatible with the most effective management. Against the background of that overall responsibility the Panel has to consider the matters listed in paragraph 19B(3) of the Schedule, reminding itself that these matters must not conflict with the need for the unit to be compatible with effective management.

20)         The Panel finds that the bargaining unit proposed by the Union is compatible with effective management and is therefore appropriate. The Panel’s reasons are that the bargaining unit proposed is a clear and well defined unit of workers with very similar characteristics in terms of job role. Indeed, the same bargaining unit was previously used for the purpose of collective bargaining under a previous agreement between the parties. The Panel is therefore of the view that the evidence supports the position that the bargaining unit is appropriate and there is clear evidence that it has worked for the purpose of collective bargaining. The Panel is not persuaded that there is sufficient evidence to support the contention that the bargaining unit previously used for the purpose of collective bargaining is no longer compatible with effective management of the Employer’s business.

21)       The Employer’s arguments focused only on what may be argued as providing a ‘better’ vehicle for the purpose of collective bargaining and what may be most compatible with the ‘most’ effective management of the business. This is not a permissible consideration for the Panel (as set out at paragraph 19 above). The task of the panel is to assess whether the bargaining unit proposed by the Union is appropriate insofar as it is compatible with effective management of the Employer’s undertaking. This assessment must be focused on the bargaining unit proposed as an appropriate vehicle, for the purpose of pay bargaining, for the group of workers concerned, regardless of any other potential iterations of a bargaining unit which may also be workable as a vehicle for the purpose of collective bargaining.

22)       The evidence of the bargaining unit dividing the Employer’s cohesive workforce did not establish that there was any risk of fragmentation. The evidence was that in the past other workers outside the bargaining unit had been ‘left behind’ in terms of pay progression compared to those workers inside the bargaining unit. This is not a permissible reason for the Panel to determine that the bargaining unit is inappropriate for the purpose of collective bargaining for the group of workers concerned.

7. Decision

23)       The Panel’s decision is that the appropriate bargaining unit is (that proposed by the Union), namely: “ZHC Experienced Demo Drivers, Contracted Experienced Demo Drivers.”

Panel

Mrs Sarah Havlin, Panel Chair

Mr Rob Lummis

Mr Ian Hanson

27 June 2024