Decision

Bargaining Unit Decision

Updated 14 November 2019

Case Number: TUR1/1127(2019)

16 October 2019

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DETERMINATION OF THE BARGAINING UNIT

The Parties:

National Union of Rail, Maritime and Transport Workers (RMT)

And

CWind Ltd

1. Introduction

1) The National Union of Rail, Maritime and Transport Workers (RMT) (the Union) submitted an application to the CAC on 26 July 2019 that it should be recognised for collective bargaining by CWind Ltd (the Employer) for a bargaining unit comprising “Skippers and Transfer Supervisors employed by CWind Ltd at Robin Rigg Workington”. The CAC gave both parties notice of receipt of the application on 26 July 2019. The Employer submitted a response to the CAC dated 5 August 2019 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 Kenny Miller, Chairman of the Panel, and, as Members, Mrs Maureen Shaw and Mr Matt Smith OBE. The Case Manager appointed to support the Panel was Nigel Cookson.

3) By a decision dated 20 August 2019 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 hearing was held on 8 October 2019 in Newcastle and the names of those who attended the hearing are appended to this decision. The Panel is required, by paragraph 19(2) of the Schedule 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.

2. Summary of the submissions made by the Union

4) The Union believed that the workers at Robin Rigg were entitled to be represented by the Union. There was no existing collective agreement covering the workers at Robin Rigg, which the Employer had confirmed. The Union did have a collective bargaining agreement with the Employer for the skippers and crew at Ramsgate Port which covered around 16 employees. When asked, the Union confirmed that its proposed bargaining unit solely related to the six workers at Robin Rigg despite its submissions making reference to the bargaining unit at Ramsgate. The Union had not had sight of the Employer’s management structure and so was not aware as to whether the Ramsgate bargaining unit and the proposed bargaining unit shared common management or whether the Union would be dealing with different managers during any negotiations. It clearly would be less onerous if it was the same management conducting negotiations. The Union’s position was that it would be prepared to “mirror” the Ramsgate Port agreement or consider expanding the Ramsgate agreement to include Robin Rigg which would mean either one expanded bargaining unit or smaller bargaining units.

5) According to the Union, the only workers based at Robin Rigg were those within its proposed bargaining unit namely Skippers and Transfer Supervisors ^{[footnote 1]}.

6) The Employer was a separate legal entity in own right registered with Companies House. In its response the Employer referred to a fragmented bargaining unit but the Union did not believe that it was. At the moment around 50% of the workers were covered by collective bargaining which would rise to 70% if Robin Rigg was included. There was no sector based bargaining in place in the UK hence the Union having to take the statutory route.

7) The Employer referred to the different bargaining arrangements in place within the Group but there were no Global Marine bargaining arrangements only arrangements within the separate legal entities.

8) Commenting on the Employer’s written submissions the Union stated that there were 16 workers at Ramsgate and not the 7 or 8 as stated. According to its submissions the Employer stated that it did not understand the statutory process in respect of Ramsgate but this was irrelevant. The workers had joined the Union as they wanted the Union to be recognised and their conditions of service to be determined through collective bargaining. That the Employer had 300 other UK personnel was irrelevant.

9) In response to questions from the Panel the Union confirmed that the Ramsgate agreement was signed by the parties at the end of July/beginning of August 2019. The Union was unable to explain the relationship between the Ramsgate bargaining unit and that at Robin Rigg as the Ramsgate application had been brought by a different Union officer.

10) The Employer referred to its board of directors deciding the workers’ pay and conditions but this was a world away from collective bargaining and listening to what the workers actually wanted. The workers had no input to the board of directors. Workers at Robin Rigg did have different terms and conditions. Prior to the application the Employer had expressed a desire to move all the workers to CWind contracts on detrimental terms. There had been TUPE transfers in the past which had resulted in some workers being on different terms. The workers felt the need to be organised and had submitted a collective grievance at Robin Rigg on the basis of the diverse terms and conditions. They should be covered by a collective bargaining agreement. The Union was quite happy to have all off-shore workers covered by an agreement.

11) The Union considered the workers were entitled to be represented by the Union for collective bargaining purposes and the workers at Robin Rigg had the same rights to have collective bargaining in place, just like those at Ramsgate.

3. Summary of the submissions made by the Employer

12) The Employer’s objection to the Union’s proposed bargaining unit was that it had an existing structure of national bargaining units, and individual bargaining, and the inclusion of the proposed bargaining unit would result in a fragmented bargaining unit looking after the needs of just six workers in a company that had over 800 personnel. This made an unpractical unwieldy, employment relations structure that would potentially damage a practical, functioning harmonious and successful employee relations set up.

13) By way of background the Employer explained that Global Marine Group was an entity with three business units, where pay and benefits were generally dealt on a Group Basis i.e. all UK based employees received the same general cost of living increase and largely enjoyed the same benefits; such as sickness, and pensions. The Group HR Director was responsible for all of the workers across all business, units, as were the other shared functions such as Finance, IT, Engineering and Marketing. The Employer had very low levels of employee turnover and no history of industrial action.

14) The benefits which were enjoyed by the bargaining unit in question included a Pension Scheme (matching up to 7.5% employer contribution); a sickness pay scheme giving 12 months’ sick pay benefits; free life cover; 50% subsidy on gym membership; hundreds of discounts and freebies via Perkbox and free private health cover. The areas that did differ were the non-UK based offshore staff who were employed in separate companies with their own collective bargaining agreements.

15) As at June 2019 the current staffing and employee relations structure was thus:

	Shore	Offshore	Total
GMSG Fleet	0	171	171
CF Sharp	0	304	304
Telecoms	75	0	75
Global Offshore	16	20	36
Cwind	51	32	83
Shared Services	111	0	111
HMN	12	0	12
Total:	265	52 [footnote 2]	792

16) As for existing collective bargaining arrangements the Employer explained that the 171 workers in GMSG Fleet came under a collective bargaining agreement with Nautilus International; those in CF Sharp were Philippines based staff and were covered by an agreement with AMUSUP ^{[footnote 3]} and the bargaining unit at Ramsgate covered 6-8 workers. The remaining 258 workers were subject to individual bargaining.

17) As for the bargaining unit at Ramsgate, the Employer stated that, in hindsight, it would have challenged this bargaining unit had it been made more aware of the grounds under which it could have objected. When questioned, the Employer explained that it had sought advice when the Ramsgate application was lodged with the CAC but was told it was a fait accompli and that it had no grounds to object. Advice which it had subsequently found to be inaccurate and it should have opposed the proposed bargaining unit in that case as that unit, like the one in the present case, was not practical. The Employer confirmed that the workers covered by the Ramsgate agreement were Skippers and Transfer Skippers (or crew using the Employer’s terminology).

18) There could be no common sense rationale as to why six people would require different collective bargaining structures from those already in place. Furthermore, the Employer queried the basis on which these six people warranted different treatment from the other 300 UK based personnel. The Employer could not conduct an orderly management and people strategy if six (less than 1%) of its workers believed they warranted different treatment to everyone else.

19) Asked by the Panel as to whether any collective bargaining had taken place at Ramsgate since the agreement was signed the Employer stated that whilst there had been some issues around contracts which had given rise to some workers wanting collective bargaining, no actual collective bargaining had taken place under the agreement as yet.

20) Called upon to explain the structure of its organisation the Employer stated that essentially Global Marine Group consisted of three business units – Global Marine Systems, CWind and Global Offshore. The business units were managed by Global Marine Group. The Employer’s representative at the hearing, Global Marine Group’s HR and Talent Director, was responsible for workers across the group. There was local management but all shared services were managed centrally. It explained that it did operate overseas on occasion with one worker based in Taiwan but the remaining 82 workers in CWind were all UK based. There were three workers permanently floating; 17 in Ramsgate; six at Robin Rigg, Workington; three in Great Yarmouth and five in Barrow in Furness. There were currently no workers based in Grimsby although there had been previously. These were the numbers for permanent workers. The Employer also relied on contractors with their number fluctuating, depending on demand. At the moment there were 10 contractors at Workington in addition to the six permanent workers and at Ramsgate there were 12/14 contractors. These figures only covered skippers and crew with shore staff being in addition to these figures. Asked about shared services the Employer explained that they were based mainly at head office but some were based previously at Grimsby and Aberdeen. The figures in its written submissions were those for June and the latest figures for CWind showed that there were 51 shore based staff with 34 offshore working on boats.

21) The Employer submitted that the issue to be addressed today was whether or not the proposed bargaining unit was practical. It would argue that it was not one that was compatible with effective management. The Employer had well established union relations and yes, it was a separate legal entity to the other business units within the group, but the Panel should look at the practical arrangements across the group. It was the case that many UK organisations comprised separate legal entities. All UK workers across the group were engaged on the same terms and conditions, the same benefits, a common pay review date in January and common cost of living increases with market forces accounting for discrepancies in any terms and conditions. The Employer acknowledged that working offshore attracted allowances that were not paid to those that worked onshore. It further acknowledged that when workers were transferred under the TUPE Regulations their original terms were maintained and the reason that there had been some issues at Robin Rigg was because the Employer was trying to move all of the workers onto the same contracts. Whilst the terms of individuals’ contracts may vary because of an historic transfer nonetheless everyone received the same benefits.

22) It was not practical to have a separate bargaining unit for such a small group of workers which could result in the Employer having to bargain for just 6 people. It agreed that pay rates at Robin Rigg did differ but that this was driven by different cost of living pressures. The Employer emphasised its low staff turnover arguing that this was reflective of its attitude to its workers and how it strived to treat them the same.

23) Called upon to explain its pay structure the Employer stated that it did not have pay scales but that pay was set individually. The board of directors comprising the Managing Directors of the various components plus the CEO and CFO conducted an annual pay review each January. Awards were based on the Employer’s ability to pay a cost of living increase. The board would look at various data, turnover, any concerns and set a standard increase. If individual managers had local issues recommendations could be made and they might get a higher award for that particular area. Such issues could be geographical based. For example, the HQ in Chelmsford, Essex was within commutable distance to London so it was competing against London salaries when recruiting.

24) Salaries were benchmarked: Surveys were conducted and if it identified any that were uncompetitive it would take remedial action. There were no pay scales, or pay bands with all workers on individual contracts including those workers covered by the Nautilus agreement. Sometimes those working offshore would receive a higher rise depending on the level of competition.

25) The Panel asked the Employer whether it had a view as to an appropriate bargaining unit given that it had made no proposal in its written submissions. The Employer stated that with the way it operated it would find it very difficult to identify a practical bargaining unit. The Union was working within legal guidelines and believed its proposal was appropriate but the Employer viewed matters differently. The Groups tag line was “one company, three brands” and this summed up the Employer’s approach.

4. Considerations

26) 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 and amplified at the hearing. As both sets of written submissions were particularly brief, most of the evidence was adduced by way of questions put to the parties by the Panel. The Panel would like to express its gratitude to the parties for the cordial and cooperative manner in which the proceedings were conducted.

27) 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 so, 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.”

28) 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 should not 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, should it consider whether it is the most effective or desirable unit in that context. There is no requirement on the Panel to seek to identify a more appropriate bargaining unit if it finds that the Union’s proposed bargaining unit is appropriate.

29) The views of the Employer and the Union, as rehearsed earlier in this decision, have been fully considered. The Union advances a bargaining unit consisting of six workers employed as Skippers and Transfer Skippers (“Crew”) and based at the one site at Robin Rigg, Workington. It submitted that this unit was compatible with effective management and pointed to another bargaining unit for which it was recognised at Ramsgate as support for its argument. We were told at the hearing that there were currently 17 Skippers and Crew working out of the Ramsgate base rather than the figure given in the Employer’s written submissions. The Union had achieved recognition through the CAC for the Ramsgate site with the Employer not challenging the appropriateness of the bargaining unit in that case because it had been advised to the contrary. The Panel notes therefore that the Ramsgate bargaining unit was not subject to the statutory considerations set out in Paragraph 19B(3). The Union, however, submitted that it was irrelevant to these proceedings that the Employer had, as it admitted, been ill advised nor was the size of the Employer’s undertaking on a group basis relevant to the point in question. It pointed to the fact that there were differences in the terms and conditions between sites as a relevant factor and that it would not be incompatible with effective management if the Employer had to bargain for the workers at Robin Rigg site in addition to those at Ramsgate.

30) On the other hand, the Employer argued that all of the UK workers across the wider group were engaged on the same terms and conditions and enjoyed the same benefits. There were two chief reasons for any differences: TUPE transfers having resulted in some workers being on different terms and local market forces being the other driver. The Employer explained that it was seeking to harmonise the terms and conditions of those workers it had inherited and also explained the need to offer recruitment and retention allowances when faced with competition for workers.

31) The Employer also objected to the Union’s proposed bargaining unit on the grounds of its size. The initial figures we were given gave a total of 83 permanent workers employed in the CWind business unit with 51 of these being shore based. Of the remainder, one worker was based in Taiwan and so not included in the Union’s proposed bargaining unit. This left 31 workers based on the Employer’s figures for June 2019. However, during the course of the hearing we were given updated figures which showed that there were currently a total of 34 offshore workers with six of these workers in the Union’s proposed bargaining at Robin Rigg. In arguing that the size of the proposed bargaining unit rendered it inappropriate, the Employer submitted that it accounted for less than 1% of the total number of workers employed within the Group. Drilling down, the proposed bargaining unit would account for 7.06% of the CWind business unit based on a combined total of 85 workers and for a total of 17.65% if limited to just the Offshore workers.

32) The Panel notes the size of the Union’ proposed bargaining unit and acknowledges that such a small bargaining unit in itself may create practical difficulties for the Employer, in particular. However, having heard the evidence the Panel’s prime concern in this case, taking into account the factors that we must consider, is the need to avoid small fragmented bargaining units within an undertaking. Here, if we were to decide in favour of the Union’s proposed bargaining unit it would mean that within a workforce of 34 offshore workers, there would be two bargaining units within the one business unit: one covering the 17 workers in Ramsgate and the six at Robin Rigg. Outside of these bargaining units there would be the three workers permanently floating, three workers based in Great Yarmouth and five workers based in Barrow in Furness. Whilst we have not heard of any current demand for the creation of further bargaining units in respect of these workers the Panel considers that there is a distinct possibility that this position may change in the future.

33) In the judgment in R (on application of Cable & Wireless Services UK Ltd v (1) Central Arbitration Committee (2) Communication Workers Union, [2008] EWHC 115 (Admin) Collins J, provided a helpful explanation as to how “fragmented” should be interpreted when determining the appropriate bargaining unit. When addressing the desirability of avoiding small fragmented bargaining units, at paragraph 17, he said:

“…the real problem is the risk of proliferation which is likely to result … Hence it is important to see whether such a unit is self-contained. Fragmentation carries with it the notion that there is no obvious identifiable boundary to the unit in question so that it will leave the opportunity for other such units to exist and that will be detrimental to effective management.”

34) If the Panel were to find in favour of the Union’s proposal in this case, it would leave the manifest opportunity for other small bargaining units to be created within the undertaking and this, we believe, would most certainly not be compatible with effective management. For this reason, we are of the view that the Union’s proposed bargaining unit is not appropriate.

35) Having decided that the Union’s proposed bargaining unit is not appropriate the Panel’s next responsibility is to decide a bargaining unit which is appropriate. Here the Employer, which it is fully entitled to do, has not put forward any alternative bargaining unit for us to consider so it is for the Panel to determine one of its own volition.

36) In our view the appropriate bargaining unit in this matter is one comprising all Skippers and Crew employed by CWind save for those workers based at Ramsgate. This bargaining unit will cover those workers currently based at the following sites - Robin Rigg, Workington, Barrow in Furness and Great Yarmouth – as well as those described as “floating”.

37) These workers all share common terms and conditions and fulfil the same roles irrespective of geographical location. In our view such a bargaining unit would be compatible with effective management and would not give rise to small fragmented bargaining units being created within the Employer’s business unit. Such a bargaining unit would also enable the Employer to engage in one set of negotiations given that the Union is already recognised in respect of the workers at Ramsgate. It also satisfies the requirement that we take account of the existing bargaining arrangements.

38) 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. In arriving at our decision we have taken into account:

• the views of the Employer and the Union as expressed in written and orally at the hearing;

• the existing bargaining arrangements at the Ramsgate site;

• 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.

39) The Panel is satisfied that its decision is consistent with the object set out in paragraph 171 of the Schedule as it will involve fair and efficient practices and arrangements in the workplace.

5. Decision

40) We have decided that the appropriate bargaining unit in this case is one comprising all Skippers and Crew employed by CWind except those based at the Ramsgate site that are subject to the existing bargaining arrangements.

41) As the appropriate bargaining unit differs from the proposed bargaining unit, the Panel will proceed under paragraph 20(2) of the Schedule to decide if the application is invalid with the terms of paragraphs 43 to 50.

Panel

Professor Kenny Miller, Chairman of the Panel

Mrs Maureen Shaw

Mr Matt Smith OBE

16 October 2019

6. Appendix

Names of those who attended the hearing:

For the Union

Mr Daren Ireland - RMT Regional Organiser

Mr Gerry Hitchen - RMT Organising Unit

For the Employer

Paul Rose - Director, HR and Talent, Global Marine Group

1. The Employer used the term “crew” when referring to Transfer Supervisors ↩

2. These figures are those given by the Employer with the total Offshore seemingly having excluded the workers at GMSG Fleet and CF Sharpe. ↩

3. Possibly referring to the Associated Marine Officer’s and Seamen’s Union of the Philippines (AMOSUP). ↩