Decision

Bargaining Unit Decision

Updated 22 April 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1250/2022

29 March 2022

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DETERMINATION OF THE BARGAINING UNIT

The Parties:

Prospect

and

AirTanker

1. Introduction

1) Prospect (the Union) submitted an application to the CAC dated 28 January 2022 that it should be recognised for collective bargaining purposes by AirTanker (the Employer) for a bargaining unit comprising “[t]hose permanent employees employed on the Line at RAF Brize Norton. For clarity this is for all employees below that of Senior Shift Supervisor”. The location of the bargaining unit was given as AirTanker RAF Brize Norton. The application was received by the CAC on 31 January 2022 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 7 February 2022 which was copied to the Union.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case. The Panel consisted of Professor Gillian Morris, Panel Chair, and, as Members, Mr David Cadger and Ms Hannah Reed. Ms Reed was subsequently replaced by Mr Steve Gillan. The Case Manager appointed to support the Panel was Joanne Curtis.

3) By a decision dated 18 February 2022 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. A virtual hearing was held on 25 March 2022 and the names of those who attended the hearing are appended to this decision.

4) 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. 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.”

2. Matters clarified at the start of the hearing

5) The current method of pay determination for line maintenance engineers (“line engineers”). The Panel noted that the Employer’s maintenance engineering team consists of two groups: line engineers and base maintenance engineers (“base engineers”). The Panel further noted that base engineers are covered by collective bargaining with Unite the Union (“Unite”) and asked the Employer how pay for line engineers was currently determined. The Employer stated that there was a Remuneration Committee which, in the first month of each year, determined pay and bonuses for those workers, including line engineers, who are not covered by collective bargaining. The Employer said that the level of pay and bonuses would be determined by the Remuneration Committee on the basis of the Employer’s overall performance and profit during the previous year. The Employer said that the Remuneration Committee would not wait for pay negotiations for other groups to conclude before making its decisions on pay and bonuses for staff not covered by collective bargaining.

6) The terms and conditions of employment of line engineers and base engineers. In its written submissions the Employer explained that line engineers focus on the day to day maintenance activities at Brize Norton while also travelling down route with the aircraft, supporting the Employer’s overseas line stations. They also spend varying amounts of time at other RAF bases, mostly Cyprus and the Falkland Islands, while, in addition, supporting various overseas operations both civil and military. Base engineers remain at Brize Norton carrying out pre-planned heavy maintenance checks to the Employer’s aircraft. The Employer stated that the skill sets, training and qualifications of line and base engineers were identical and that they were covered by the same regulatory authority but “the majority of line engineers differ[ed] slightly” in that it was a requirement of their employment with the Employer that they also became sponsored reservists with the RAF. ^{[footnote 1]} In answers to questions from the Panel the Employer said that both line and base engineers were salaried and that there was a common pay scale. The Employer said that generally the outcomes relating to pay and bonuses were the same for workers covered by collective bargaining and those covered by the Remuneration Committee but acknowledged that this was not always the case. The Employer said that the hours of work for line and base engineers were very similar and that both worked shift patterns; had similar grading; operated in a similar way; and were based at Brize Norton. However line engineers have a different mobility clause to base engineers in their contracts; their hours are more flexible because of their role; and they receive an allowance for their time abroad for which base engineers do not qualify because they are not flying. The Employer said that both line and base engineers have the same holiday entitlement but line engineers have, in addition, a period of fully paid time off work after returning from overseas which is not counted as holiday, the length of which will depend on the period of time spent overseas. The Employer said that the majority of time spent overseas by line engineers would be in their capacity as sponsored reservists for the RAF but that it was not uncommon for them to travel overseas for the Employer.

7) The management structure. The Employer explained that the maintenance team reported to the Head of Maintenance who reported to the Director of Engineering and Maintenance. The Employer said that, below the Head of Maintenance, there was a Line Manager for line engineers and a Line Manager for base engineers. The Employer said that disciplinary matters were dealt with initially at the level of the appropriate Line Manager.

3. Summary of the submissions made by the Union

8) The Union said that the desire of line engineers to have collective bargaining established and to be represented by the Union was the driving force behind the Union’s application for recognition. The Union submitted that the application met all the requisite criteria for establishing a bargaining unit. The Union said that the proposed bargaining unit was compatible with effective management in that the line engineers were a self-contained group of workers that currently had its own management structure and that the establishment of collective bargaining would in no way inhibit or change the current managerial processes. The Union said that line engineers were a defined group of workers with a sufficient difference in terms and conditions of employment from base engineers and in respect of whom the Remuneration Committee could currently reach different conclusions than for workers covered by collective bargaining. The Union said that line engineers were currently treated as a separate unit in many ways and that, according to the Employer’s submission, only 9% of line engineers were not sponsored reservists. The Union said that Unite was not obstructing the Union’s application.

9) The Union disagreed with the Employer’s submission that dealing with two separate bargaining units for line and base engineers respectively would require more management time, thereby taking management away from other tasks such as safety. The Union contended that collective bargaining with the Union would not add to the management load in that under the current arrangements management time was taken up by the Mini Voice Forum for line engineers and the Renumeration Committee would no longer have to deal with line engineers.

4. Summary of Submissions made by the Employer

10) The Employer said that it did not accept the Union’s desire to form a separate bargaining group for line engineers because the maintenance team consisted of both line and base engineers who, together, formed a single team who maintained the day to day, scheduled and unscheduled maintenance of the Employer’s aircraft in support of its main customer, the RAF and MOD. The Employer said that line and base engineers could be working side by side and worked as a single group. The Employer stated that it would welcome collective bargaining for all maintenance engineers but would like this to be with a single union, either the Union or Unite. The Employer said that it had contacted Unite three weeks ago to see if Unite wanted to extend the scope of recognition to include line as well as base engineers but that Unite knew that the Union had already applied to the CAC and had declined the Employer’s offer. The Employer said that, whilst there was some healthy local rivalry between line and base maintenance teams, it did not want to provide an opportunity to exacerbate this rivalry through fragmented bargaining units and disparity in terms and conditions. The Employer said that a single bargaining unit was essential in helping the Employer to maintain the “One Team” ethos which was one of its core values and that fragmentation of this team must be avoided to prevent damaging the Employer’s ability to respond safely and effectively to the demands of its main customer, the RAF.

11) In answer to questions from the Panel as to how line engineers could currently approach management about changes to their hours and holidays the Employer said that there was a Staff Voice Group which covered all categories of worker (both those who were covered by collective bargaining and those who were not) which met every two months. The Employer said that line engineers, in common with other groups not covered by collective bargaining, also had their own Mini Voice Forum where three or four employee representatives met with the Line Manager for line engineers on, roughly, a quarterly basis. The Line Manager did not have the authority to agree changes to terms and conditions but would discuss any possible changes with the Head of Maintenance and Director of Engineering and Maintenance.

12) In answer to questions from the Panel the Employer said that it conducted collective bargaining with BALPA for pilots and with Unite for cabin crew in addition to collective bargaining with Unite for base engineers. The Employer said that it would be usual to have different bargaining units for these disparate groups but that having two bargaining units within the maintenance team would be time-consuming for managers and put additional pressure on them. The Employer said that requiring its management team to work with two different unions representing the same maintenance team based within the same hangar facility would not be compatible with effective management; rather it would be counterproductive in terms of effective use of time and resources and could divert focus from more important matters such as safety which was its number one core value. The Employer said that adding diversity through fragmented bargaining units would potentially introduce complexity in managing its high-performing safety culture. The Employer said that the support that it was currently giving to the RAF to respond to the crisis in Ukraine was an example of how it needed to work effectively as one team to deliver to the RAF.

5. Considerations

13) 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 the Union and the Employer as expressed in their written submissions and as amplified during the course of the hearing. Both parties confirmed at the conclusion of the hearing that the hearing had been conducted fairly and that they had had the opportunity to say everything that they had wanted to say to the Panel.

14) 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]}

15) The Panel considers that the Union’s proposed bargaining unit is compatible with effective management. Line engineers are currently treated as a separate group of workers by the Employer in a number of respects and there is no evidence that this separate treatment has not been compatible with effective management. The pay and bonuses of line engineers, unlike base engineers, are decided by the Employer’s Remuneration Committee and their other terms and conditions are subject to discussion with the Line Manager for line engineers in a discrete Mini Voice Forum. Although the implementation of any changes discussed in the Mini Voice Forum requires the consent of more senior management, there is a management structure in place which reflects the scope of the Union’s proposed bargaining unit. There are also differences in the terms and conditions of employment of line and base engineers. Line engineers, unlike base engineers, can be required to work overseas for the Employer and they receive specific allowances and subsequent periods of paid time off work when they do so. A large majority of line engineers are also required to become sponsored reservists with the RAF. The Panel understands the Employer’s desire not to fragment the maintenance team and to avoid rivalry and disparities between them in respect of terms and conditions of employment. However, the Panel does not consider that the Union’s proposed bargaining unit would fragment the maintenance team, or undermine the “One Team” ethos, to a greater extent than the existing arrangements. The Panel also observes that it is open to the Employer to avoid disparities in terms and conditions between line and base engineers, beyond those consequent on their respective roles, in its conduct of the collective bargaining process. The Panel notes the Employer’s concern that having two bargaining units within the maintenance team would be counterproductive in terms of management time and resources and could divert focus from other matters such as safety. However, the Panel also notes that the current arrangements, particularly the Mini Voice Forum for line engineers, necessitate the expenditure of management time on line engineers specifically. The Panel does not consider that the Union’s proposed bargaining unit, which, if implemented, would obviate the need for the Mini Voice Forum and consideration of line engineers at the Remuneration Committee, would be sufficiently onerous as to render that unit other than compatible with effective management. ^{[footnote 3]}

16) The Panel has considered the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with the need for the 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 observes that the Employer currently conducts collective bargaining for pilots, cabin crew and base engineers. The Panel notes the Employer’s contention that a single bargaining unit is essential in helping the Employer to maintain the “One Team” ethos in the maintenance team.
For the reasons described in paragraph 15 above the Panel considers that a separate bargaining unit for line engineers would be compatible with effective management; the Panel also considers that it would not conflict with the bargaining arrangements in place for other groups. In relation to the desirability of avoiding small fragmented bargaining units within an undertaking, the Union’s proposed bargaining unit covers a discrete group of workers, currently 114 in number. It would be the sole bargaining unit for that group and there is no evidence that it would result in further fragmentation within the undertaking beyond that already in existence. As far as the characteristics of workers are concerned, line engineers are an easily identifiable group who can be required to work overseas on behalf of the Employer as well as working at the Brize Norton base and who receive specific allowances and periods of paid time off work for doing so. All the workers in the proposed bargaining unit are based at the same location. The Panel is satisfied that its decision is consistent with the object set out in paragraph 171 of the Schedule.

6. Decision

17) The Panel’s decision is that the appropriate bargaining unit is that proposed by the Union:”Those permanent employees employed on the Line at RAF Brize Norton. For clarity this is for all employees below that of Senior Shift Supervisor”.

Panel

Professor Gillian Morris , Panel Chair

Mr David Cadger

Mr Steve Gillan

7. Appendix

Names of those who attended the hearing:

For the Union

Mr Steve Jary

For the Employer

Mr Niall Campbell, Director of Engineering and Maintenance

Mr Bob Crowley, Head of HR.

1. The Employer said that 91% of line engineers (104 out of 114) held RAF contracts as sponsored reservists as part of their employment contract with the Employer. ↩

2. R (on the application of Cable and Wireless Services UK Ltd v CAC [2008] EWHC 115 (Admin), Collins J at [9]. ↩

3. The Panel observes in parentheses (although this is not material to its decision) that, in the event that the Union’s application to the CAC results in a declaration of recognition, it would be open to the Employer to propose single table bargaining for line and base engineers to the Union and Unite but this would be a matter for all parties to consider and determine. ↩