Decision

Bargaining Unit Decision

Updated 21 September 2020

Case Number: TUR1/1181(2020)

2 September 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992 SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DETERMINATION OF THE BARGAINING UNIT

The Parties:

Nautilus International

and

Condor Marine Crewing Services Limited

1. Introduction

1) Nautilus International (the Union) submitted an application to the CAC dated 16 June 2020 that it should be recognised for collective bargaining purposes by Condor Marine Crewing Services Limited (the Employer) in respect of a bargaining unit comprising “Maritime Professionals working onboard vessels undertaking duties commensurate with being required to hold a valid Certificate of Competency to work in the capacity of: Master, Chief Mate, Officer in charge of Navigational Watch (OOW), Chief Engineer, Second Engineer, Officer in charge of Engineering Watch (OOW), Electro-Technical Officer.” The location of the bargaining unit was given as “Seafarers working onboard vessels that predominately operate from UK Ports where the seafarers embark and disembark the tours of duty from UK Ports. The vessels are frequently alongside in UK Ports overnight, presently; Condor Liberation (IMO 9551363); Commodore Clipper: (IMO 9201750); Commodore Goodwill: (IMO 9117985).” The application was received by the CAC on 16 June 2020 and the CAC gave both parties notice of receipt of the application the same day. The Employer submitted a response to the CAC dated 25 June 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 Gillian Morris, Panel Chair, and, as Members, Mr Nicholas Caton and Mr Gerry Veart. The Case Manager appointed to support the Panel was Kate Norgate.

3) By a decision dated 13 July 2020 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 10 August 2020 the Case Manager explained to the parties that ordinarily (but not universally) the CAC would hold a public hearing to assist the Panel to determine the question of the appropriate bargaining unit. However, at present, owing to the Covid-19 pandemic, the CAC was not conducting hearings face to face but would, wherever possible, reach its decisions based on the parties’ written submissions; additional written submissions may also be sought by the Panel as part of the Panel’s decision-making process. The letter stated that if, having had sight of the parties’ written submissions, the Panel concluded that it could not reach its decision fairly without some form of hearing, virtual or otherwise, the parties would be informed accordingly.

4) In this case the Panel has made its decision on the basis of the parties’ initial written submissions (“the initial submissions”); each party’s written response to the initial submissions of the other party (“the second submissions”); and documentation and information sought by the Panel from the parties following receipt of the initial submissions. 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) The decision begins by setting out background information relating to the workforce supplied by, or sought by the Panel from, the Employer. It then summarises the submissions of each party in a form which includes their initial written submissions amended, as appropriate, by their second submissions. The Employer stated at the top of its submissions and additional information that the material was presented without prejudice to its application for judicial review of the CAC’s decision to accept the Union’s application and its position that the CAC had wrongfully accepted that application.

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. Background information relating to the workforce

7) In answer to questions from the Panel the Employer confirmed that all members of the bargaining unit (collectively referred to in this decision as “officers”) were employed on the same terms and conditions, including salary and benefits, and on the basis of a standard contract which did not differ in any respect according to vessel. The contract was therefore applicable to all officers working for the Employer, including all vessels, namely Condor Liberation, Condor Rapide, Commodore Clipper and Commodore Goodwill. The Employer supplied a copy of this contract as requested by the Panel. The Employer confirmed that all officers could be required to work on any vessel chartered, owned, operated or managed by any company within the group. The Employer said that in practice officers were usually rostered to a particular vessel but they occasionally moved around as and when required and that this flexibility was important to the operation of its Fleet.

3. Summary of the Union’s submissions

8) The Union said that its proposed bargaining unit, composed of officers including “Masters”, was a long-established segregation across the industry, was already fully compatible with effective management and existed in numerous collective bargaining agreements held elsewhere with other employers. The Union said that it believed, after discussion with the Employer, that there was no objection to this description of the proposed bargaining unit. The Union said that its application concerned officers working onboard vessels that predominantly operated from UK ports where the officers embarked and disembarked the tours of duty from UK ports. The Union said that the vessels were frequently alongside in UK ports overnight. These vessels were Condor Liberation, Commodore Clipper and Commodore Goodwill.

9) In relation to effective management, the Union submitted that the Employer had recently undertaken a redundancy process with segregated pools for redundancy based upon the predominant vessel on which an employee usually worked. The Union contended that the Employer could, therefore, already undertake segregation of their operations to be vessel-specific for their employees. The Union said that the Employer offered a variety of fora with their employees segregated by vessel and that the Employer was capable and fully aware of the uniqueness of each vessel’s requirements and already undertook discussions on a fully localised basis. The Union said that a split into the listed locations already existed for administrative purposes. The Union said that the Employer, in offering salary reductions during the Covid-19 sailing cancellations, chose to segregate out workers on a vessel-by-vessel basis when doing so. The Union said that workers employed on High Speed craft and workers employed on Conventional Craft were split, as were workers on each individual vessel. The Union submitted that there was an established segregation method for effective management across the locations it had proposed and that the locations specified were compatible with effective management and being managed separately as separate locations.

10) The Union submitted that the characteristics of the workers for the locations and description proposed were broadly similar in being predominantly residents of the UK paid in sterling for the work they undertook. The Union said that the workers typically embarked and disembarked in UK ports for their respective duty periods.

11) The Union said that officers had undertaken an internal assessment of recognition of the Union for themselves in response to an offer made by the Employer on 23 July 2020 ^{[footnote 1]}. The Union said that 30 people had participated and 83.3% had said yes to continuing to pursue recognition of the Union. The Union attached redacted results from the survey to its submissions.

12) The Union said that it was not aware of any binding commitment on the Employer through any internal forum to review, consult and negotiate on pay and conditions or any other elements incorporating comparable terms to a collective bargaining agreement. The Union said, in addition, that a company forum would not be considered independent for the purposes of the legislation and so could not justify the Employer’s refusal to recognise its application for recognition.

13) The Union said that the Employer, during discussions, had declined to provide a view about what it believed to be an effective bargaining unit. The Union said that, should the Employer so request or the CAC deem it appropriate, the Union would not object to the inclusion of the Condor Rapide in the bargaining unit in the spirit of co-operation with the Employer but it strongly believed effective management could be undertaken on the basis set out in paragraph 9 above. In relation to the Employer’s opinion that there could be industrial action in France were Condor Rapide to be included in the bargaining unit the Union said that this could only be speculative. The Union disputed the relevance at this stage of the procedure of the letter from five Union members which the Employer submitted in support of the exclusion of Commodore Goodwill from the bargaining unit. The Union said that this letter represented only about 14% of its members within the proposed bargaining unit and around 11% of all workers in that unit. However the Union said that the Employer’s submission that Commodore Goodwill should be excluded highlighted that the Employer was sufficiently capable, willing and eager to undertake segregation of each worker by each vessel and that its proposed bargaining unit would be in keeping with established effective management. The Union said that the Employer had demonstrated that it was perfectly capable of managing any split across its organisation to suit its own purposes.

4. Summary of the Employer’s submissions

14) The Employer said that the Union’s proposed bargaining unit included three of the four ships in its Fleet; it rightly excluded the Condor Rapide, its high speed passenger vessel operating from France to the Channel Islands which was normally based in France. The Employer said that an attempt by the Union to make the Condor Rapide subject to a British bargaining unit could cause industrial action in France. The Employer said that this meant that approximately a quarter of the officers in the Fleet were excluded from the proposed bargaining unit. The Employer said that this exclusion would be likely to result in differing terms and conditions of employment arising, both for officers working on different ships and for officers working alongside each other on the same ship as officers moved around and worked on different ships in the Fleet. The Employer said that in addition to this already fragmented bargaining unit, officers on the Commodore Goodwill had since written directly to the Union, with a copy to the Employer, stating that they did not want recognition at this time. The Employer attached a copy of this letter to its initial submissions. The Employer said that it respected the wishes of the officers on board the Commodore Goodwill not to be subjected to compulsory recognition when they did not want it. The Employer said that this left only the Condor Liberation and the Commodore Clipper in the proposed bargaining unit. The Employer said that this scenario provided an intolerable level of fragmentation and made the bargaining unit even more ineffective and difficult to manage and did not serve the majority of officers. The Employer said that this level, or any level, of divide between its close-knot crew would naturally lead to disharmony, increase the potential for industrial action and create an unnecessary tension and disparity between the most senior people on its ships.

15) The Employer said that during its discussions with the Union the Union had been asked how it proposed a bargaining unit consisting of Commodore Clipper and Condor Liberation would work in practice to avoid disharmony between officers and no solution had been forthcoming from the Union. The Employer said that the Union had suggested that the Employer should split its crew, including officers, by vessel as was done during recent pay discussions relating to the Covid-19 crisis. The Employer said that this was not accurate, that process having been based around the disruption caused to its high-speed passenger routes. The Employer said that it had clarified this at the time in a letter sent to the Union at the time of the crisis and enclosed a copy of this letter with its initial submissions. The Employer also said that in relation to the recent redundancy consultation it had addressed its crew by route and that this was a specific matter under unprecedented circumstances based on the level of customer demand. The Employer acknowledged that it was able to deal by route and vessel where specific situations required it but that it also dealt collectively for many matters which involved all its officers. The Employer said that examples of this would be the Travel Policy, Bridge Task Sharing, requested changes to Loyal Service Awards, and the recently established scheme to pay its crew, in the absence of any government support, which was fully funded by the Employer. The Employer said that the recently requested Pay Forum would include representatives from all ships as did the already established Senior Officers Forum. The Employer said that to suggest that it could effectively manage an ongoing situation where there was a high level of segregation amongst its officers, based on the inaccurate points made by the Union set out in paragraph 9 above, was unfounded and irresponsible.

16) The Employer said that any changes to officers’ pay, hours or holidays were discussed collectively via the established Senior Officers Forum which included officers from all vessels. The Employer said that this forum allowed the Employer to communicate easily and openly with officers on all its ships.

17) In response to the survey submitted by the Union recorded in paragraph 11 above, the Employer said that it believed that the wrong group had been surveyed and that it had included the two high-speed vessels only, including the Condor Rapide which was excluded from the Union’s proposed bargaining unit. The Employer said that when it consulted its officers on the Commodore Clipper and Commodore Goodwill these officers had received no approach from the Union so the Employer could not have confidence that the Union was consulting with all offices across the Fleet but only those who supported the argument for formal recognition.

18) The Employer said that, contrary to the Union’s statement recorded in paragraph 8 above, Commodore Goodwill did not reside in a UK port overnight.

19) The Employer reiterated its position that the Union’s proposed bargaining unit was not compatible with effective management and would create a fragmented workforce amongst its already small team of officers. When asked by the Panel whether there was a bargaining unit which the Employer would like the Panel to consider, the Employer said that the exclusion of the Condor Rapide and the Commodore Goodwill from the bargaining unit would leave only 50% of the Fleet. The Employer said that the absence of an answer from the Union as to how this situation would work in practice meant it was fair to conclude that the bargaining unit proposed by the Union did not work. The Employer said that it did not have a solution to offer.

20) The Employer said that it was a very small family-oriented company and its culture reflected that. The Employer said that it worked closely with its officers, and all its staff, to reach agreements together. The Employer said that, at the request of its crew, it had implemented its own scheme similar to that of the UK furlough scheme to support its crew during the global pandemic when it had been unable to secure government support for them and had then bettered the scheme at the specific request of its senior officers. The Employer said that officers had also requested travel expenses and that it had obliged on more than one occasion when this had been requested. The Employer said that Union recognition had not been sought before. The Employer said that it believed the request for Union recognition to be a kneejerk reaction to a global pandemic which had seen an unprecedented impact on the travel industry. The Employer said that companies with union recognition had not been able to avoid redundancies and that the changes the Employer had made to its workforce, as with many other businesses, were to protect the Employer and to secure as many jobs as possible.

5. Considerations

21) 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; the answers provided by both parties to questions posed by the Panel; and the documentary evidence submitted by the parties.

22) 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 ^{[footnote 2]}.

23) The Panel considers that the Union’s proposed bargaining unit is compatible with effective management. The Union’s proposed bargaining unit includes three of the Employer’s four vessels, the Condor Liberation, Commodore Goodwill and the Commodore Clipper; the fourth, the Condor Rapide, is excluded. The Panel notes that the Employer did not submit that the category of workers included in the Union’s proposed bargaining unit was not compatible with effective management but rather that the exclusion of the Condor Rapide would not be compatible. The Employer explained that all its officers are employed on the same terms and conditions of employment under a standard contract and contended that the exclusion of the Condor Rapide, covering approximately a quarter of its officers, would lead to differing terms and conditions arising both for officers working on different ships and for officers working alongside each other on the same ship as officers moved around and worked on different ships in the Fleet. However the Employer did not contend that the Condor Rapide should be included in the bargaining unit to avoid this potential outcome; on the contrary, it explained that the Condor Rapide was normally based in France and submitted that making the Condor Rapide subject to a British bargaining unit could cause industrial action in France. The Panel accepts for the purposes of this decision that the Employer’s fears are justified and that, on that basis, the exclusion of the Condor Rapide from the bargaining unit is compatible with effective management.

24) The Panel notes that, under their contracts, workers in the proposed bargaining unit can be required to work on any vessel chartered, owned, operated or managed by any company within the Employer’s group. However the Employer provided evidence that in practice officers are usually rostered to a particular vessel. The wish of the Employer itself to exclude the Condor Rapide from the bargaining unit suggests that workers who are usually rostered to that vessel are an identifiable group. The Panel has therefore concluded, as a corollary of this, that officers who are usually rostered to one of the three vessels within the Union’s proposed bargaining unit are also an identifiable group for the purposes of effective management.

25) The Panel appreciates the Employer’s concerns that exclusion of the Condor Rapide has the potential to lead to different terms and conditions of employment arising between workers who are within, and those who are outside, the Union’s proposed bargaining unit. However the Panel also notes that any alteration to existing terms and conditions by means of collective bargaining requires the consent of both the parties – employer and trade union - who are engaged in the collective bargaining process. Moreover, in the Panel’s experience it is not uncommon for employers engaged in negotiations for workers within a specific bargaining unit to have regard to the implications for workers outside that unit and thereby seek to avoid disparities between the respective groups and any consequent disharmony arising.

26) The Panel has also 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. In relation to existing national and local bargaining arrangements the Panel notes the Employer’s statement that any changes to officers’ pay, hours or holidays are discussed collectively via the Senior Officers Forum which includes officers from all vessels. The Panel sees no reason why discussions in the Senior Officers Forum could not co-exist with the Union’s proposed bargaining unit. 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, they all work on the basis of a standard contract and the Employer did not dispute the Union’s statement that these workers were paid in sterling and typically embarked and disembarked in UK ports for their respective duty periods. The Panel notes the Employer’s statement that the Union was incorrect in saying that the Commodore Goodwill resided in a UK port overnight but does not regard that as a material difference between officers on that ship and on the other vessels within the Union’s proposed bargaining unit in this context given the characteristics which these officers share. In relation to location, all workers within the Union’s proposed bargaining unit are usually rostered on the Condor Liberation, Commodore Clipper or Commodore Goodwill. The Panel has had regard to the object set out in paragraph 171 of the Schedule in reaching its decision.

6. Concluding observations

27) The Panel notes the contents of the letter signed by officers rostered on the Commodore Goodwill and the Employer’s statement that it respects the wishes of officers onboard the Commodore Goodwill not to be subjected to compulsory recognition when they do not wish it. The Panel does not consider this letter to be relevant to the matters which the Panel is required to consider at this stage of the process. However it may be relevant at a later stage. If the Panel is satisfied that the majority of workers in the bargaining unit are members of the Union the Employer will be invited to make submissions on whether any of the qualifying conditions set out in paragraph 22(4) of the Schedule applies. It will then be open to the Employer to submit this letter and any other evidence it chooses to submit for the consideration of the Panel at that stage.

28) The Panel notes the survey attached to the Union’s initial submissions and the Employer’s comments on that survey. The Panel has not investigated the scope or validity of that survey and it has played no part in the Panel’s decision.

7. Decision

29) The appropriate bargaining unit is the Union’s proposed bargaining unit, namely “Maritime Professionals working onboard vessels undertaking duties commensurate with being required to hold a valid Certificate of Competency to work in the capacity of: Master, Chief Mate, Officer in charge of Navigational Watch (OOW), Chief Engineer, Second Engineer, Officer in charge of Engineering Watch (OOW), Electro-Technical Officer working onboard vessels that predominately operate from UK Ports where the seafarers embark and disembark the tours of duty from UK Ports: Condor Liberation (IMO 9551363); Commodore Clipper: (IMO 9201750); Commodore Goodwill: (IMO 9117985).”

Panel

Professor Gillian Morris, Panel Chair

Mr Nicholas Caton

Mr Gerry Veart

2 September 2020

1. On 6 August 2020 the Union sent to the CAC a copy of an offer from the Employer dated 23 July 2020 to the collective officers’ group which was conditional on the officers’ group writing to the Union removing the wish for Union recognition. ↩

2. R (Cable and Wireless Services UK Ltd v Central Arbitration Committee [2008] EWHC 115 (Admin), Collins J at [9]. ↩