Decision

Paragraph 26 Decision

Updated 12 March 2021

Case Number TUR1/1188(2020)

05 February 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECISION ON WHETHER THE EMPLOYER HAD COMPLIED WITH PARAGRAPH 26 OF THE SCHEDULE RELATING TO DUTIES DURING THE BALLOTING PERIOD

The Parties:

GMB

and

Dyer Engineering Limited

1. Introduction

1) GMB (the Union) submitted an application to the CAC dated 9 June 2020 that it should be recognised for collective bargaining purposes by Dyer Engineering Limited (the Employer) in respect of a bargaining unit comprising “All hourly paid shop floor workers up to and excluding Managers employed by Dyer Engineering Limited on both your sites at: Unit 3&5, Morrison Road Industrial Estate, Annfield Plain, Stanley, Co Durham, DH9 7RU and Hare Law, Industrial Estate, North Road, Annfield Plain, Stanley.” The application was received by the CAC on 3 August 2020 and the CAC gave both parties notice of receipt of the application on 4 August 2020. The Employer submitted a response to the CAC dated 10 August 2020 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 Professor Kenneth Miller, Panel Chair, and, as Members, Miss Kerry Holden and Mr Matt Smith OBE. The Case Manager appointed to support the Panel was Kate Norgate who was subsequently replaced with Ms Sharmin Khan

2. Summary of decisions reached by the Panel

3) The Panel accepted the Union’s application by a decision dated 21 September 2020. The parties then entered the ‘appropriate period’ in accordance with paragraph 18(2)(a) of Schedule A1 to the Act (the Schedule), within which to negotiate and try to reach agreement as to the appropriate bargaining unit. On 19 October 2020, by e-mail to the CAC, the Employer confirmed that it agreed with the Union’s proposed bargaining unit as stated in its application. As the Panel was satisfied that a majority of the workers constituting the bargaining unit were not members of the Union, the CAC gave notice to the parties on 23 October 2020, that in accordance with paragraph 23(2) of the Schedule, a secret ballot would be held. The parties were also advised that the Panel would wait until the end of the notification period as specified in paragraph 24(5) of the Schedule, before arranging a secret ballot. The notification period under paragraph 24(5) ended on 6 November 2020. As 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, the Panel gave notice to the parties that it intended to arrange a ballot. As the parties were not in agreement as to the type of ballot to be conducted, by its decision dated 11 November 2020, the Panel announced that having considered the views of the Parties and the factors specified in paragraphs 25(5) and (6) of the Schedule the ballot would be a postal ballot. On 8 January 2021, the CAC notified the parties of the name of the Qualified Independent Person who was appointed to conduct the ballot and provided details of the arrangements for the ballot pursuant to paragraph 25(9) of the Schedule.

3. Issue

4) On 22 January 2020 the Union submitted a complaint to the CAC that the Employer had failed to comply with its statutory duties under paragraph 26 of the Schedule.

4. The statutory framework

5) The Panel must determine whether the Employer was in breach of any of the statutory duties imposed on it by paragraph 26 of the Schedule. Paragraph 26 imposes five duties on an Employer. The Union’s complaint related to the following three duties.

(1) to co-operate generally, in connection with the ballot, with the union and the person appointed to conduct the ballot; and the second and third duties are not to prejudice the generality of this: paragraph 26(2); and

(2) to give to the union such access to the workers constituting the bargaining unit as is reasonable to enable the union to inform the workers of the object of the ballot and to seek their support and their opinions on the issues involved

(3) to refrain from making any offer to any or all of the workers constituting the bargaining unit which—

(a) has or is likely to have the effect of inducing any or all of them not to attend any relevant meeting between the union (or unions) and the workers constituting the bargaining unit, and

(b) is not reasonable in the circumstances.

6) In determining these issues, the Code of Practice on Access and Unfair Practices during Recognition and Derecognition Ballots (2005) (the Code of Practice) issued by the Secretary of State is admissible in evidence in proceedings before the CAC and any provision which appears to the CAC to be relevant to any question arising in the proceedings shall be taken into account in determining that question: section 207(3) of the Act.

7) If the CAC is satisfied that an employer has not fulfilled any of the duties imposed by paragraph 26, and the ballot has not been held, it may under paragraph 27(1) order the employer (a) to take such steps to remedy the failure as the CAC considers reasonable and specifies in the order and (b) to do so within such period as the CAC considers reasonable and specifies in the order. Paragraph 27(2) provides that if the CAC is satisfied that the employer has failed to comply with an order under paragraph 27(1), and the ballot has not been held, the CAC may issue a declaration that the union is recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.

5. Summary of the Union’s complaint

8) On 22 January 2021 the Union submitted a complaint to the CAC that the Employer, had not complied with the following duties under Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (enacted in the Employment Relations Act 1999 and amended in the Employment Relations Act 2004):

“Paragraph 26

(3) The second duty is to give to the union (or unions) such access to the workers constituting the bargaining unit as is reasonable to enable the union (or unions) to inform the workers of the object of the ballot and to seek their support and their opinions on the issues involved. Also

(4A) The fourth duty is to refrain from making any offer to any or all of the workers constituting the bargaining unit which—

(a) has or is likely to have the effect of inducing any or all of them not to attend any relevant meeting between the union (or unions) and the workers constituting the bargaining unit, and

(b) is not reasonable in the circumstances.”

9) The Union stated it had already had issues with the Employer over access visits taking place at short notice and outside of working time, which had been resolved at an informal meeting with the Employer and the Panel Chair on 20 January 2021 . However, it had now been informed that the Employer had been giving employees half an hour off, paid, if they were not attending the Union’s access slots. For example, if the Union’s access slot was at 16:00, an employee who was due to finish at 16:30 could go home at 16:00 and get paid until 16:30 and not attend the access meeting. The Union contended that this offered an inducement for employees not to attend the Union access meetings and instead receive either an early finish or late start but still be paid. Furthermore, as this had already been given to employees, the Union could be seen as removing half an hour paid time off by seeking to change the Employer’s arrangements. This placed the Union in a negative light influencing the ballot result. Therefore, regardless of the outcome, there would be a detriment to the Union and the ballot result would be affected. Employees would either take the early finish or late start and not hear from the Union regarding the purpose of the ballot.

10) As evidence to support the complaint the Union attached a copy of an e-mail chain between the parties on the afternoon of 22 January 2021 in which the Union had asked the Employer if employees were getting half an hour paid time off when they did not attend a Union access meeting. The Union stated that the Employer’s response in that exchange showed that the Employer felt there was no issue with what they were doing.

11) On 25 January 2021, the Union submitted a further e-mail for the Panel’s consideration in which it provided the wording of a notice that it said the Employer had pinned up on boards on site for employees. In its view, the Employer’s notice was worded in a way that tried to portray the Union in a negative light:

“The Union meetings have been cancelled tomorrow as the Union have made a complaint to CAC (they run this process). The complaint is that by giving all of you the possibility of attending a union meeting in paid time or not attending in paid time, that this is unfair to the union. We are sorry if this has caused you any inconvenience it is out of our hands.”

6. Summary of the Employer’s response to the Union’s complaints

12) The Employer provided a response to the Union’s complaint by e-mails to the CAC on 25 and 28 January 2021. The Employer also referred to the informal meeting attended by the parties on 20 January 2021 explaining that it was agreed at that meeting that the slots to allow the Union access to the staff in the bargaining unit would be rescheduled to be in normal working hours at the start and end of the shift as this was least disruptive to production. All the slots were in paid time, in line with the agreement reached by the parties at the informal meeting. At that meeting, the Union had raised concerns that the Company should not be keeping a record of the people who were attending the Union access meetings as staff found this uncomfortable. The Employer assumed therefore that it could not ask staff whether they intended to go to the Union access meeting in order to allocate these staff time off and had therefore allocated all staff in the bargaining unit time off. The Employer contended that in this way, it would have no record of which staff were attending Union access meetings. All staff would leave their workstations at the same time, with the opportunity to attend the Union access meeting during their normal working hours without the Employer knowing whether they had done so. The Employer contended that this was a genuine attempt to address the concerns raised by the Union. This latest complaint seemed to the Employer to contradict the Union’s initial complaint that the Employer should not be monitoring who was attending Union access meetings and who were not attending. In its view the Union seemed to be stating that it should now be monitoring who was going to attend the Union access meetings.

13) The Employer also stated that at the informal meeting, the Union was of the view that it should be up to the individual employee to choose whether they attended a meeting or not and this this was exactly what had been said to the employees. The employees could choose to attend or not, that was their right. The Employer had fully complied with what it said it would do at the informal meeting and was surprised that the Union was now saying that this was unacceptable. The Employer did not accept that its actions was any inducement for staff not to attend, on the contrary, it had created the available time slots, provided the meeting facilities, ensured that everything was Covid compliant and had given employees paid time to attend the meeting, should they so wish. The Employer concluded by pointing out to the Panel that at this time, the business was in an unprecedented set of difficult circumstances, driven by Covid 19 which had massively impacted the Company in a financially negative way and that the Union’s changing requirements were adding additional operational and financial pressure.

7. Summary of Union’s further comments

14) The Union was invited by the Panel to submit its comments on the Employer’s response to the complaint. The Union’s response was received by e-mail to the CAC on 29 January 2021 in which it made the following points.

15) The Union stated that its earlier concerns, as referred to by the Employer, related to the issue of the keeping of records of those attending Union access meetings, specifically in regard to a supervisor/team leader who had attended the first meeting marking down who was attending. It was agreed by the parties at the informal meeting that he would look in, only to check if it was Covid secure but would not have a list of attendees to mark people off. The Union stated that its complaint was in no way a contradiction of its previous issues, as argued by the Employer. The Union had made clear in its complaint to the CAC, the relevant sections in the Schedule to which its complaint related i.e. the Employer’s breach of paragraph 26(3) and 26(4A) by failing to comply with the duties of: giving a union applying for recognition such access to the workers constituting the bargaining unit as is reasonable to enable the union to inform the workers of the object of the ballot and to seek their support and their opinions on the issues involved and to refrain from making any offer to any or all of the workers constituting the bargaining unit which (i) has or is likely to have the effect of inducing any or all of them not to attend a relevant meeting between the union and the workers constituting the bargaining unit and (ii) is not reasonable in the circumstances. The Union stated that the documentation supplied by CAC gave clear guidance on what parties should do during the ballot period and pointed out the duties of the Employer. The Union raised the point that the Employer in responding to the complaint had not at any point referred to the Code of Practice for access when putting its case that what it was doing was correct. Neither did the Employer’s response suggest it was in any way in line with the guidelines or the Schedule.

16) The Union refuted the Employer’s claim that it was saying that the Employer should monitor who was attending the meetings. In its view the Employer would need to know who was on site and who was not in case of a fire or a safety issue. According to the Union, the Employer should follow the normal process for allowing workers to attend meetings, the system for which did not identify individuals that were staying and the individuals that were leaving. Both parties had been issued with the relevant guides which clearly stated that the Employer should not do anything that could induce employees not to attend Union access meetings. The Union did not expect the Employer to go around asking who was attending a particular meeting, the Employer would not need to. Rather, it was simply for the Employer to allocate slots to individuals, who could then attend or not attend and if they did not wish to attend, the individual would continue with their normal working day.

17) The Union disagreed with the Employer that it had changed requirements. In its view, the change was in the actions of the Employer which the Union needed to flag up to the CAC. The Union had not asked the Employer to provide employees with half an hour paid time-off to not attend the Union’s access meetings. The Union maintained its belief that the Employer had done this in order to reduce the number of employees attending the Union’s access meetings in an attempt to influence the ballot result. This was solidified for the Union when the Employer gave in its view, incorrect information when briefing the employees on the reason for the Union’s complaint and the reasons as to why the meetings were postponed again. The reasons the Employer was providing for its actions to the CAC was different to what employees were informed of on-site. The Union had been informed that the reason given to employees on site was that someone who was not going to attend a Union access meeting, had raised an issue with the Employer, that it was not fair that they were not getting paid time off. To its knowledge the Employer had put out that the reason for the meeting on Tuesday (the day after the Union’s complaint was made) being postponed was that, “ …the union complaint is that giving all of you the possibility of attending a union meeting in paid time or not attending in paid time, that this is unfair to the union”

8. Summary of the Employer’s further comments and complaint

18) In response to the Union’s submission to the Panel of 29 January 2021, by its e-mails to the CAC of 1 February 2021, the Employer lodged a counter complaint to the CAC. The Employer complained that the Union had performed an unfair practice by influencing the result of the ballot by stating that it felt the validity of the ballot had now been affected by the Company’s communication of facts to the employees. The Employer contended that the Union was in breach of paragraph 27A(1) of the Schedule which placed an obligation on both parties to refrain from using an unfair practice with a view to influencing the result of a recognition ballot. In addition the Union’s behaviour was not in accordance with section 48 and 49 of the Code of Practice on Access and unfair practices during recognition and de-recognition ballots which stated that both parties should behave responsibly to avoid potentially acrimonious situations nor had the Union given due consideration to the requirements of the Employer throughout the access period as they had failed to ensure costs and disruption were minimised.

19) The Employer contended that it was the objective of the Union not to have a fair ballot, but to have a ruling of recognition without a ballot from the CAC, which it was seeking to achieve by adopting a strategy of complaining about unfairness at every point in the process. The Employer stated that the Union’s position was unreasonable, aggressive and was causing disruption in the business which was already struggling. In conclusion it asked the CAC to intervene and ensure that the ballot was not bypassed and that the Union operated responsibly and in a co-operative spirit during the balloting period, as they were required to do.

9. Summary of the Union’s comments on the Employer’s complaint

20) The Employer’s complaint was duly copied to the Union on the same day to which the Union responded with the following points.

21) The Union stated that the Employer’s complaint was unfounded and an attempt to further undermine the process. The Employer had again failed in its response to the CAC, to address the issue and refer to the Schedule to show how, what they had done was correct.

22) The Union stated that the Employer’s complaint was not one which fell under unfair practices. The Union disputed that it had adopted a strategy of complaining about unfair practice at every point as a tactic. The Union stated that it had tried to work with the Employer but rather it was the Employer who had been slow to engage with it at every step of the process. For example, the Employer had not submitted the employee information when it was due for the CAC’s membership check without being chased for it and despite being given an extension. Further chasing was required when the Union was trying to agree the appropriate bargaining unit and it also took the Employer a prolonged period of time when agreeing the details for access, with the Employer sometimes taking weeks to reply to the Union in the period between November 2020 and January 2021. In support of its case, the Union stated that the fact that the it had only now put a formal complaint in showed that the Union had not been using the tactic of putting in complaints at every stage of the process. To the contrary, it had made every effort to try and work with the company with its first complaint being resolved by the Union’s agreement to use the informal route which established that the time slots for Union access meetings should be within working hours.

23) In response to the Employer’s claim that the Union was attempting to influence the CAC with a view to whether the ballot was held, the Union stated that it was simply submitting a complaint to which it had attached for the Panel, all the relevant information to enable it to reach a decision. However, the Union was now concerned that the Employer’s complaint to the CAC on 1 February 2021 was an attempt to influence the CAC into leaving an option off the table, given that it had not been able to show so far, how what it had done, was in line with the Schedule.

24) The Union concluded with the statement that it understood that there had been some disruption due to the sessions being postponed while the Panel considered the complaint, but that it had tried to reply quickly and within the CAC’s timescales for the matter to be resolved as quickly as possible. It had contacted the Employer before submitting the complaint to the CAC, but the replies and tone did not resolve the Union’s concerns so it was left to submit its complaint, given that the Employer’s actions were impacting the ballot. It had done everything it could to minimise disruption and costs being incurred but this clause in the code was not there to try and prevent parties from submitting valid complaints.

10. Clarification for the Panel

25) On 29 January 2021 the CAC wrote to the Employer to settle a point of clarification for the Panel and asked the Employer whether production had to stop altogether when workers who were entitled to attend the Union’s access meeting slots came off shift. The Employer answered in its e-mail to the CAC on 1 February 2021 and confirmed that production did not stop altogether when employees left for their allocated slots with the Union as due to Covid requirements, it had to allocate a lot of small multiple groups. The Employer mentioned that if this were not the case, the Employer would have stopped production and allowed all staff to attend together.

11. Considerations

26) The task before the Panel is to determine whether the Employer has breached any of the duties imposed on it by paragraph 26(3) and paragraph 26(4A) of the Schedule. These duties are as follows:

(1) to co-operate generally, in connection with the ballot, with the union and the person appointed to conduct the ballot; and the second and third duties are not to prejudice the generality of this (paragraph 26(2));

(2) to give to the union such access to the workers constituting the bargaining unit as is reasonable to enable the union to inform the workers of the object of the ballot and to seek their support and their opinions on the issues involved (paragraph 26(3)) and

(3) to refrain from making any offer to any or all of the workers constituting the bargaining unit which—

(a) has or is likely to have the effect of inducing any or all of them not to attend any relevant meeting between the union (or unions) and the workers constituting the bargaining unit, and

(b) is not reasonable in the circumstances (paragraph 26(4A)).

27) The Panel’s decision on the complaints made by the Union and later the Employer has been taken after careful consideration of the statutory provisions; the Code of Practice; the submissions and evidence of both parties. In reaching its decision, the Panel took account of the following points.

a) Neither party has been able to present evidence or provided the Panel with sufficient information that has led the Panel to conclude that there has been an intention to influence a worker on how it intends to vote. Therefore, the Panel has dismissed the Employer’s complaint that there has been a breach of any of the unfair practice provisions set out in paragraph 27A of the Schedule.

b) The crux of the Union’s complaint is that the Employer has paid workers during working time whether or not the workers have opted to attend their allocated slot to attend the Union’s access meeting, whether they have stayed on shift or whether they have chosen to do neither. The Employer has accepted that this is the case but has rebutted the Union’s claim that this was an act of intent to influence whether workers attended the Union access meetings or not. The Union did not appear to the Panel to have sufficient information or evidence that this was the intention of the Employer.

c) The Employer clarified for the Panel that there was no operational need for the shift to be closed down during the time slots that workers on shift were entitled to come off shift in order to attend a Union access meeting.

d) The Panel accepts the Employer’s concern that issues between the parties over the access during the ballot period has caused a degree of disruption to the business but also considers that there is a need to address issues that arise as soon and as practicable. The Panel has concluded that both parties have endeavoured to implement the access arrangements in ways that accord with their understanding of what was agreed at the informal meeting on 20 January 2021.

e) The provision in the Schedule which is most relevant to the Union’s complaint and upon which the Panel must focus, is paragraph 26(4A) where it is stated that: “an Employer must refrain from making any offer to any or all of the workers constituting the bargaining unit which— (a) has or is likely to have the effect of inducing any or all of them not to attend any relevant meeting between the union (or unions) and the workers constituting the bargaining unit, and

(b) is not reasonable in the circumstances”

f) The section of the Code of Practice which is most relevant and upon which the Panel must focus is section D paragraph 48 in which it states

“… if the union is holding a meeting, the employer should avoid the scheduling of other conflicting meetings or events which would draw workers away from the union’s meeting. Unless special factors apply, the employer should not offer inducements to workers not to attend access meetings. For example, where an access meeting is held towards the end of the working day, the employer should not tell workers that they could go home early if they do not attend the union’s meeting.”

g) The Panel also takes note of Section E, paragraph 65 of the Code of Practice, which reads as follows:

“Campaigning is inherently a partisan activity. Each party is therefore unlikely to put across a completely balanced message to the workforce, and some overstatement or exaggeration may well occur. In general, workers will expect such behaviour and can deal with it. Also, by listening to both sides, they will be able to question and evaluate the material presented to them.”

12. Decision

28) The Panel finds that the arrangements put in place by the employer to enable access to scheduled meetings with the Union breaches paragraph 26(4A) of the Schedule. For the avoidance of doubt, it is not the intention of the Panel to attach blame to either of the parties for the various claims of intention they have made of each other but simply to ascertain whether there has been a failure to perform a duty imposed on either party in accordance with the Schedule. The Panel accordingly considers that it has jurisdiction to make the following order, pursuant to Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act, paragraph 27(1), and to the Code of Practice on Access to Workers during Recognition and Derecognition Ballots, paragraph 22. In light of the points made in the above paragraph the Panel upholds the Union’s complaint.

13. Order

29) The Panel orders that:

i) The date for the ballot is extended from 18 February 2021 to 5 March 2021 and the Case Manager shall inform the QIP. The Case Manager will also issue the parties with the revised ballot timetable.

ii) The extension of the ballot period allows the parties to arrange for fresh Union access meetings slots to be organised which should be on the same terms agreed by the parties at the informal meeting held on 20 January 2021. In addition, as appropriate, workers who do not wish to attend their allocated slot to attend the Union access meeting must either remain on their shift and at work until the conclusion of their shift or report for work at the normal starting time and work on shift as normal

iii) Workers will be informed that the re-scheduled access meetings and revised dates for the ballot are as a consequence of the CAC’s decision of today’s date.

30) The Panel encourages both parties to continue with their intentions to provide the workers with a fair ballot process as stated in their submissions to the Panel by continuing to co-operate with each other and adhering to the CAC’s order above.

Panel

Professor Kenneth Miller, Panel Chair

Miss Kerry Holden

Mr Matt Smith OBE

5 February 2021