Decision

Method Decision

Updated 23 October 2020

Case Number: TUR1/1157/2020

23 October 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION METHOD OF COLLECTIVE BARGAINING

The Parties:

GMB

and

Mears Facilities Management

1. Introduction

1) GMB (the Union) submitted an application to the CAC, dated 5 February 2020, that it should be recognised for collective bargaining purposes by Mears Facilities Management (the Employer) in respect of a bargaining unit comprising “Cleaning staff and FMA’s across the 6 schools.” The location of the bargaining unit was given as “All 6 West Lothian Schools with Mears facilities management.” The application was received by the CAC on 5 February 2020 and the CAC gave both parties notice of receipt of the application on 6 February 2020. The Employer submitted a response to the CAC, dated 10 February 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, Mr Matt Smith OBE and Mrs Maureen Shaw, who was later replaced by Mr Tom Keeney. The Case Manager appointed to support the Panel was Kate Norgate.

3) By a decision dated 30 June 2020 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.

4) By a decision dated 20 July 2020 the Panel determined that a majority of the workers in the bargaining unit were members of the Union and that none of the qualifying conditions laid down in paragraph 22(4) of the Schedule was fulfilled. Accordingly, the Panel issued a declaration that the Union was recognised by the Employer as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit comprising “Cleaning staff and FMA’s across the 6 schools”.

2. Issues

5) Paragraph 30 of Schedule A1 to the Act (the Schedule) states that if the CAC issues a declaration that the union is recognised as entitled to conduct collective bargaining on behalf of a bargaining unit the parties may in the negotiation period conduct negotiations with a view to agreeing a method by which they will conduct collective bargaining. The “negotiation period” is the period of 30 working days starting with the start day (the day after that on which the parties are notified of the declaration) or such longer period (so starting) as the parties may from time to time agree. If no agreement is made in the negotiation period, the employer or the union may apply to the CAC for assistance. Paragraph 31 of the Schedule states that if an application for assistance is made to the CAC under paragraph 30 the CAC must try to help the parties to reach in the agreement period an agreement on a method by which they will conduct collective bargaining. The “agreement period” is the period of 20 working days starting with the day after that on which the CAC receives the application under paragraph 30 or such longer period (so starting) as the CAC may decide with the consent of the parties. If at the end of the agreement period the parties have not made such an agreement, the CAC must specify to the parties the method by which they are to conduct collective bargaining. Any such method is to have effect as if it were contained in a legally enforceable contract made by the parties. Paragraph 168 of the Schedule states that in specifying the method the CAC must take into account the method specified in the Trade Union Recognition (Method of Collective Bargaining) Order 2000 (“the specified method”) but may depart from it to such extent as the CAC thinks it is appropriate to do so in the circumstances.

6) In a letter dated 20 July 2020, which accompanied the declaration of recognition, the Case Manager informed the parties that the next stage of the process was for them to negotiate with a view to reaching agreement on a method by which they would conduct collective bargaining. The letter explained that the negotiation period (see paragraph 5 above) would end on 31 August 2020. To assist the parties, a copy of the Trade Union Recognition (Method of Collective Bargaining) Order 2000 (“the 2000 Order”) was attached to the letter. The letter stated that if no agreement was reached in the negotiation period either party could apply to the CAC for assistance.

7) In an e-mail to the Case Manager dated 1 September 2020 the Union applied to the CAC for assistance in helping the parties reach agreement on the method by which they would conduct collective bargaining. The Union said that unfortunately the parties had not been able to reach agreement on the method of collective bargaining and it therefore wished to apply to the CAC for assistance.

8) In a letter to the parties dated 3 September 2020 the Case Manager acknowledged the Union’s request for assistance. The letter explained that under paragraph 31 of the Schedule, if an application is made by either party for assistance, the CAC has a period of 20 working days (or such longer period as the CAC may decide with the consent of the parties) to try to help the parties reach an agreement on a method by which they will conduct collective bargaining. The parties were reminded that if, at the end of that period, the parties had not made such an agreement, the CAC must specify the method to the parties, and that this method would be legally enforceable although the parties may subsequently agree, in writing, changes to this method and/or that it is not legally enforceable. The parties were also reminded that in deciding the method the CAC must take into account the 2000 Order, a further copy of which was attached. The parties were informed that Case Manager would contact the parties to confirm how the Panel wished to progress this matter.

9) On 16 September 2020 the parties were invited to attend a meeting 21 September 2020 at which the Panel Chair would attempt to facilitate agreement. The parties were informed that in light of the current Covid-19 Government restrictions, the meeting would be held by video conference via the ‘Zoom’ online platform. The meeting took place on 21 September 2020 but no agreement on a method of collective bargaining could be reached.

10) In a letter to the parties dated 2 October 2020 the Case Manager informed them as the parties had not agreed a method of collective bargaining, and the CAC having been asked for assistance, the Panel would proceed to specify a method and reiterated that in doing so the Panel would take into account the 2000 Order and the views of the parties. The parties were informed that the statutory model would therefore be the starting point for the Panel with their consideration then being given to the appropriateness of any proposals from the parties which depart from that method. The parties were informed that their written submissions should therefore be tailored accordingly, and that they should reach the CAC by no later than the close of business on 16 October.

11) In an e-mail to the Case Manager on 16 October 2020 the Union said that having reviewed the Statutory Instrument, it did not wish to propose any departure from it for Panel’s consideration.

12) The CAC did not receive any submissions from the Employer.

3. Considerations

13) No agreement on a method of collective bargaining had been reached by the parties within either the 30 day negotiation period or the 20 day agreement period. Accordingly, under paragraph 31(3) of the Schedule, the CAC Panel must specify to the parties the method by which they are to conduct collective bargaining.

14) Paragraph 168 states that in specifying the method the CAC must take into account the specified method as set out in the 2000 Order but may depart from it to such extent as the CAC thinks is appropriate in the circumstances. The Panel’s decision has been taken following full consideration of the specified method and the views of the parties.

15) The Union made clear in its communications dated 16 October 2020 that it did not wish to propose any departure from the specified method.

16) The Employer did not make any submissions on the matter.

17) The Panel has considered the parties’ submissions and the extent to which it is appropriate, given the circumstances of the case, to depart from the specified method. The Panel has decided that the method to be specified is the specified method contained in the 2000 Order subject to the following changes listed below which are minor and reflect the circumstances of the case.

Paragraph 1

The parties are identified in paragraph 1 of the specified method. The second sentence has been deleted as it was not applicable given the circumstances of the case.

Paragraph 2

The description of the bargaining unit has been added in the appropriate place.

Paragraph 5

The final two sentences have been deleted as they are not applicable given the circumstances of the case.

4. Implications of the Specified Method

18) The bargaining method imposed by the CAC has effect as if it were a legally binding contract between the Employer and the Union. If one party believes the other is failing to respect the method, the first party may apply to the court for an order of specific performance, ordering the other party to comply with the method. Failure to comply with such an order could constitute contempt of court.

19) The parties can vary the model method, including the fact that it is legally binding, by agreement provided that they do so in writing.

20) The fact that the CAC has imposed a method does not affect the rights of individual workers under either statute or their contracts of employment. For example, it does not prevent or limit the rights of individual workers to discuss, negotiate or agree with their employer terms of their contract of employment, which differ from the terms of any collective agreement into which the Employer and the Union may enter as a result of collective bargaining conducted by this method. Nor does the imposed method affect an individual’s statutory entitlement to time off for trade union activities or duties.

21) The CAC having imposed a bargaining method on the parties, the Employer is separately obliged, in accordance with Section 70B of the Trade Union and Labour Relations (Consolidation) Act 1992 (as inserted by section 5 of the Employment Relations Act 1999), to consult union representatives periodically on the policy, actions and plans on training.

5. Decision

22) The decision of the Panel is that the method detailed in the document attached (appendix A) is specified as the method by which the parties are to conduct collective bargaining.

Panel

Professor Kenny Miller, Panel Chair

Mr Matt Smith OBE

Mr Tom Keeney

23 October 2020

6. Appendix B

THE SPECIFIED METHOD

The Parties

1) The method shall apply to Mears Facilities Management and GMB, who are referred to here as the “employer” and the “union”.

The Purpose

2) The purpose is to specify a method by which the employer and the union conduct collective bargaining concerning the pay, hours and holidays of the workers comprising the bargaining unit, i.e. Cleaning staff and FMA’s across the 6 schools.

3) The employer shall not grant the right to negotiate pay, hours and holidays to any other union in respect of the workers covered by this method.

The Joint Negotiating Body

4) The employer and the union shall establish a Joint Negotiating Body (JNB) to discuss and negotiate the pay, hours and holidays of the workers comprising the bargaining unit. No other body or group shall undertake collective bargaining on the pay, hours and holidays of these workers, unless the employer and the union so agree.

JNB Membership

5) The membership of the JNB shall usually comprise three employer representatives (who together shall constitute the Employer Side of the JNB) and three union representatives (who together shall constitute the Union Side of the JNB).

6) The employer shall select those individuals who comprise the Employer Side. The individuals must either be those who take the final decisions within the employer’s organisation in respect of the pay, hours and holidays of the workers in the bargaining unit or who are expressly authorised by the employer to make recommendations directly to those who take such final decisions. Unless it would be unreasonable to do so, the employer shall select as a representative the most senior person responsible for employment relations in the bargaining unit.

7) The union shall select those individuals who comprise the Union Side in accordance with its own rules and procedures. The representatives must either be individuals employed by the employer or individuals employed by the union who are officials of the union within the meaning of sections 1 and 119 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”).

8) The JNB shall determine their own rules in respect of the attendance at JNB meetings of observers and substitutes who deputise for JNB members.

Officers

9) The Employer Side shall select one of its members to act as its Chairman and one to act as its Secretary. The Union Side shall select one of its members to act as its Chairman and one to act as its Secretary. The same person may perform the roles of Chairman and Secretary of a Side.

10) For the twelve months from the date of the JNB’s first meeting, meetings of the JNB shall be chaired by the Chairman of the Employer Side. The Chairman of the Union Side shall chair the JNB’s meetings for the following twelve months. The chairmanship of JNB meetings will alternate in the same way thereafter at intervals of twelve months. In the absence of the person who should chair JNB meetings, a JNB meeting shall be chaired by another member of that person’s Side.

11) The Secretary of the Employer Side shall act as Secretary to the JNB. He shall circulate documentation and agendas in advance of JNB meetings, arrange suitable accommodation for meetings, notify members of meetings and draft the written record of JNB meetings. The Secretary of the Employer Side shall work closely with the Secretary of the Union Side in the discharge of these duties, disclosing full information about his performance of these tasks.

JNB Organisation

12) Draft agendas shall be circulated at least three working days in advance of JNB meetings. The draft record of JNB meetings shall be circulated within ten working days of the holding of meetings for approval at the next JNB meeting. The record does not need to be a verbatim account, but should fully describe the conclusions reached and the actions to be taken.

13) Subject to the timetable of meetings stipulated in paragraphs 15, 17, 20 and 28 below, the date, timing and location of meetings shall be arranged by the JNB’s Secretary, in full consultation with the Secretary of the Union Side, to ensure maximum attendance at meetings. A meeting of the JNB shall be quorate if 50% or more of each Side’s members (or, where applicable, their substitutes) are in attendance.

Bargaining Procedure

14) The union’s proposals for adjustments to pay, hours and holidays shall be dealt with on an annual basis, unless the two Sides agree a different bargaining period.

15) The JNB shall conduct these negotiations for each bargaining round according to the following staged procedure.

Step 1 - The union shall set out in writing, and send to the employer, its proposals (the “claim”) to vary the pay, hours and holidays, specifying which aspects it wants to change. In its claim, the union shall set out the reasons for its proposals, together with the main supporting evidence at its disposal at the time. In cases where there is no established annual date when the employer reviews the pay, hours and holidays of all the workers in the bargaining unit, the union shall put forward its first claim within three months of this method being imposed (and by the same date in subsequent rounds). Where such a common review date is established, the union shall submit its first claim at least a month in advance of that date (and by the same date in subsequent rounds). In either case, the employer and the union may agree a different date by which the claim should be submitted each year. If the union fails to submit its claim by this date, then the procedure shall be ended for the bargaining round in question. Exceptionally, the union may submit a late claim without this penalty if its work on the claim was delayed while the Central Arbitration Committee considered a relevant complaint by the union of failure by the employer to disclose information for collective bargaining purposes.

Step 2 - Within ten working days of the Employer Side’s receipt of the union’s letter, a quorate meeting of the JNB shall be held to discuss the claim. At this meeting, the Union Side shall explain its claim and answer any reasonable questions arising to the best of its ability.

Step 3 -

(a) Within fifteen working days immediately following the Step 2 meeting, the employer shall either accept the claim in full or write to the union responding to its claim. If the Employer Side requests it, a quorate meeting of the JNB shall be held within the fifteen day period to enable the employer to present this written response directly to the Union Side. In explaining the basis of his response, the employer shall set out in this written communication all relevant information in his possession. In particular, the written communication shall contain information costing each element of the claim and describing the business consequences, particularly any staffing implications, unless the employer is not required to disclose such information for any of the reasons specified in section 182(1) of the 1992 Act. The basis of these estimated costs and effects, including the main assumptions that the employer has used, shall be set out in the communication. In determining what information is disclosed as relevant, the employer shall be under no greater obligation that he is under the general duty imposed on him by sections 181 and 182 of the 1992 Act to disclose information for the purposes of collective bargaining.

(b) If the response contains any counter-proposals, the written communication shall set out the reasons for making them, together with the supporting evidence. The letter shall provide information estimating the costs and staffing consequences of implementing each element of the counter proposals, unless the employer is not required to disclose such information for any of the reasons specified in section 182(1) of the 1992 Act.

Step 4 - Within ten working days of the Union Side’s receipt of the employer’s written communication, a further quorate meeting of the JNB shall be held to discuss the employer’s response. At this meeting, the Employer Side shall explain its response and answer any reasonable questions arising to the best of its ability.

Step 5 - If no agreement is reached at the Step 4 meeting (or the last of such meetings if more than one is held at that stage in the procedure), another quorate meeting of the JNB shall be held within ten working days. The union may bring to this meeting a maximum of two other individuals employed by the union who are officials within the meaning of the sections 1 and 119 of the 1992 Act. The employer may bring to the meeting a maximum of two other individuals who are employees or officials of an employer’s organisation to which the employer belongs. These additional persons shall be allowed to contribute to the meeting, as if they were JNB members.

Step 6 - If no agreement is reached at the Step 5 meeting (or the last of such meetings if more than one meeting is held at that stage in the procedure), within five working days the employer and the union shall consider, separately or jointly, consulting ACAS about the prospect of ACAS helping them to find a settlement of their differences through conciliation. In the event that both parties agree to invite ACAS to conciliate, both parties shall give such assistance to ACAS as is necessary to enable it to carry out the conciliation efficiently and effectively.

16) The parties shall set aside half a working day for each JNB meeting, unless the Employer Side Chairman and the Union Side Chairman agree a different length of time for the meeting. Unless it is essential to do otherwise, meetings shall be held during the normal working time of most union members of the JNB. Meetings may be adjourned, if both Sides agree. Additional meetings at any point in the procedure may be arranged, if both Sides agree. In addition, if the Employer Side requests it, a meeting of the JNB shall be held before the union has submitted its claim or before the employer is required to respond, enabling the Employer Side to explain the business context within which the employer shall assess the claim.

17) The employer shall not vary the contractual terms affecting the pay, hours or holidays of workers in the bargaining unit, unless he has first discussed his proposals with the union. Such proposals shall normally be made by the employer in the context of his consideration of the union’s claim at Steps 3 or 4. If, however, the employer has not tabled his proposals during that process and he wishes to make proposals before the next bargaining round commences, he must write to the union setting out his proposals and the reasons for making them, together with the supporting evidence. The letter shall provide information estimating the costs and staffing consequences of implementing each element of the proposals, unless the employer is not required to disclose such information for any of the reasons specified in section 182(1) of the 1992 Act. A quorate meeting of the JNB shall be held within five working days of the Union Side’s receipt of the letter. If there is a failure to resolve the issue at that meeting, then meetings shall be arranged, and steps shall be taken, in accordance with Steps 5 and 6 of the above procedure.

18) Paragraph 17 does not apply to terms in the contract of an individual worker where that worker has agreed that the terms may be altered only by direct negotiation between the worker and the employer.

Collective Agreements

19) Any agreements affecting the pay, hours and holidays of workers in the bargaining unit, which the employer and the union enter following negotiations, shall be set down in writing and signed by the Chairman of the Employer Side and by the Chairman of the Union Side or, in their absence, by another JNB member on their respective Sides.

20) If either the employer or union consider that there has been a failure to implement the agreement, then that party can request in writing a meeting of the JNB to discuss the alleged failure. A quorate meeting shall be held within five working days of the receipt of the request by the JNB Secretary. If there is a failure to resolve the issue at that meeting, then meetings shall be arranged, and steps shall be taken, in accordance with Steps 5 and 6 of the above procedure.

Facilities and Time Off

21) If they are employed by the employer, union members of the JNB:

• shall be given paid time off by the employer to attend JNB meetings;

• shall be given paid time off by the employer to attend a two hour pre-meeting of the Union Side before each JNB meeting; and

• shall be given paid time off by the employer to hold a day-long meeting to prepare the claim at Step 1 in the bargaining procedure.

The union members of the JNB shall schedule such meetings at times which minimise the effect on production and services. In arranging these meetings, the union members of the JNB shall provide the employer and their line management with as much notice as possible and give details of the purpose of the time off, the intended location of the meeting and the timing and duration of the time off. The employer shall provide adequate heating and lighting for these meetings, and ensure that they are held in private.

22) If they are not employed by the employer, union members of the JNB or other union officials attending JNB meetings shall be given sufficient access to the employer’s premises to allow them to attend Union Side pre-meetings, JNB meetings and meetings of the bargaining unit as specified in paragraph 23.

23) The employer shall agree to the union’s reasonable request to hold meetings with members of the bargaining unit on company premises to discuss the Step 1 claim, the employer’s offer or revisions to either. The request shall be made at least three working days in advance of the proposed meeting. However, the employer is not required to provide such facilities, if the employer does not possess available premises which can be used for meetings on the scale suggested by the union. The employer shall provide adequate heating and lighting for meetings, and ensure that the meeting is held in private. Where such meetings are held in working time, the employer is under no obligation to pay individuals for the time off. Where meetings take place outside normal working hours, they should be arranged at a time which is otherwise convenient for the workers.

24) Where resources permit, the employer shall make available to the Union Side of the JNB such typing, copying and word-processing facilities as it needs to conduct its business in private.

25) Where resources permit, the employer shall set aside a room for the exclusive use of the Union Side of the JNB. The room shall possess a secure cabinet and a telephone.

26) In respect of issues which are not otherwise specified in this method, the employer and the union shall have regard to the guidance issued in the ACAS Code of Practice on Time Off for Trade Union Duties and Activities and ensure that there is no unwarranted or unjustified failure to abide by it.

Disclosure of Information

27) The employer and the union shall have regard to the ACAS Code of Practice on the Disclosure of Information to Trade Unions for Collective Bargaining Purposes and ensure that there is no unwarranted or unjustified failure to abide by it in relation to the bargaining arrangements specified by this method.

Revision of the Method

28) The employer or the union may request in writing a meeting of the JNB to discuss revising any element of this method, including its status as a legally binding contract. A quorate meeting of the JNB shall be held within ten working days of the receipt of the request by the JNB Secretary. This meeting shall be held in accordance with the same arrangements for the holding of other JNB meetings.

General

29) The employer and the union shall take all reasonable steps to ensure that this method to conduct collective bargaining is applied efficiently and effectively.

30) The definition of a “working day” used in this method is any day other than a Saturday or a Sunday, Christmas Day or Good Friday, or a day which is a bank holiday.

31) All time limits mentioned in this method may be varied on any occasion, if both the employer and the union agree.