Decision

Bargaining Unit Decision

Updated 28 February 2019

Case Number: TUR1/1077/2018

28 February 2019

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DETERMINATION OF THE BARGAINING UNIT

The Parties:

RMT

and

West Coast Motors

1. Introduction

1) RMT (the Union) submitted an application dated 13 November 2018 to the CAC that it should be recognised for collective bargaining purposes by West Coast Motors (the Employer) in respect of a bargaining unit comprising “Directly Employed Drivers, excluding Shunters, Agency, and Self Employed Drivers.” The location of the bargaining unit was given as “West Coast Motors, Oban Depot, Glengallan Road, Oban, PA34 4HH.” The application was received by the CAC on 14 November 2018 and the CAC gave both parties notice of receipt of the application on 15 November 2018. The Employer submitted a response to the CAC on 21 November 2018 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, Mrs Maureen Shaw and Mr Matt Smith OBE. The Case Manager appointed to support the Panel was Kate Norgate.

3) By a decision dated 20 December 2018 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 13 February 2019 and the names of those who attended the hearing are appended to this decision. To accommodate the hearing the Panel extended the period within which it was required to determine the bargaining unit until 28 February 2019.

4) 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.

2. Summary of the submissions made by the Union

5) The Union explained that in May 2018 it was approached by its members at West Coast Motors concerning recognition for collective bargaining, as they were not happy with the way in which their issues at the Oban depot were being dealt with by their Employer. The Union stated that those members had also informed the Union that they believed there was general support amongst the Drivers to “do something about this”.

6) The Union explained that the RMT was a respected and high profile Trade Union in the area with its links through the community.

7) The Union explained the background behind its campaign for recognition at the Oban depot. An open meeting was held on 1 July, which was well attended, and resulted in an agreement on the way forward. This included pursuing collective bargaining for Drivers at the Oban depot and collating a petition of support for collective bargaining, to be used for the CAC process, if necessary. The Union stated that, based on the information from its members on the number of Drivers in the proposed bargaining unit at that time, which was approximately 22, the Union believed it had the majority support required and subsequently pursued its request for recognition. The Union referred to two leaflets and letters from the RMT, sent to its members, copies of which it enclosed with its submissions. The Union stated that the purpose of those communications was to demonstrate that workers were fully aware of the reason why they were signing petitions and becoming members.

8) The Union submitted that the way in which its members had defined its proposed bargaining unit meant that Drivers, who were primarily employed at the Oban depot, would be included. The Union said that the Employer’s submission seemed to accept that there were Drivers, who were primarily employed at Oban and that this seemed to be verified by point 6 of their “Contract of Employment”, a copy of which it had enclosed with its submissions. Drivers who were primarily from other depots were used to fill any vacancies in the Oban Roster. The Union stated that it was therefore difficult to accept that Drivers who were primarily employed at another depot, and who had been temporarily seconded to the Oban Depot, were part of the proposed bargaining unit.

9) The Union said that there were no bargaining arrangements in place within West Coast Motors. There was, however, a casual consultative system, in which each depot had its own Employee Representative. The Union stated that this suggests that the company agrees each depot within the group has its own issues and therefore could be dealt on a depot by depot basis. The Union stated that its view was based on the feedback it had received from its members, that effectively, the Oban drivers want this to be done through collective bargaining, rather than a consultation process.

10) The Union disputed the matters raised by the Employer on the issue of fragmentation. The Union stated that it wished to point out that there was no collective bargaining at present and therefore to have a collective bargaining agreement would be an improvement to the current position and would fit with the current depot by depot consultation. This would mean that the Oban Drivers’ Representatives would be elected and would negotiate on behalf of their colleagues.

11) The Union explained that where national and company-wide issues were concerned, for example on pay, Oban Drivers under a collective bargaining agreement would have a formal input into those negotiations, and for the other depots it would be informal as it is now. The Union said that as for local negotiations, these would be carried out by the elected RMT Representatives in an agreed local machinery of negotiation.

12) The Union explained that it had a multi union and depot agreement with UPS, a copy enclosed with its submissions. The Union explained that it also had successful collective bargaining models with other bus companies, with multi unions, different grades and locations, some of which have individual depot bargaining, meaning that each depot was stand alone with its own agreement, or where depots and/or grades could be represented at a Joint National (company-wide) or Regional Negotiating Body.

13) The Union stated that the way in which West Coast Motors had grown, by taking over other bus companies, meant that there were a number of different terms and conditions at the depots, based on the history of each depot. The Oban depot was previously Oban and District Buses Limited in 1999, and this helped to identify the Oban Drivers and could lend itself readily to one of those collective bargaining models.

14) The Union submitted that although its proposed bargaining unit may not be ideal, and it would like to see an RMT single union bargaining for all grades at all depots company-wide, it believed it did not pose a risk of fragmentation.

15) The Union stated that it did not understand the Employer’s argument that it would no longer have the flexibility that they currently have in terms of inter depot support on rosters, staffing and financing. The Union stated that their national wage increase could also remain on a national (company-wide) basis. The Union stated that it could not envisage any real changes to the business model, other than that the Drivers at Oban would be subject to negotiating for collective bargaining, rather than just a consultation process.

16) In summary, the Union stated that it believed the Drivers at West Coast motors had demonstrated their desire to have their Trade Union, the RMT, recognised for the purpose of collective bargaining. The Union stated that the bargaining unit should be Drivers, who are primarily contracted to the Oban depot, and that it believed it had demonstrated that the bargaining unit would be no different to the way in which other similar bargaining units worked. The Union stated that collective bargaining at the Oban depot could easily fit into the current structures.

17) The Union submitted that, in all the circumstances, the proposed bargaining unit was appropriate.

3. Summary of the submissions made by the Employer

18) By way of background, the Employer explained that it believed members of the RMT had approached the Union concerning recognition following a rota change last summer, which the Employer stated was badly managed by the company. The Employer said that this had coincided with two or three union members who joined the business, and who, with encouragement, subsequently approached the Union.

19) The Employer submitted that the Union’s proposed bargaining unit was not an appropriate bargaining unit. The Employer stated that it believed the Union did not understand its business, people, or the network of work and services it operated. The Employer proposed an alternative bargaining unit that comprised “Directly employed drivers at West Coast Motors depots, to include Oban, Mull, Ardrishaig, Glasgow, Campbeltown, Bute and Dunoon.” The Employer stated that its proposed bargaining unit comprised 149 workers. The Employer stated that those in its proposed bargaining unit were intrinsically linked in terms of driver mobility, work content/interworking routes and services, networks, brand, policy, procedure and practice, management support and duty rules (providing the composition of how duties are created and paid).

20) The Employer stated that for clarity, and in response to doubts raised by the Union on the number of Drivers at the Oban depot, the Employer stated that it could demonstrate that there were 32 directly employed drivers in the Union’s proposed bargaining unit. The Employer referred to an extract from a “Payroll Summary” dated 13 January 2019, a copy of which it attached to its submissions, which listed 30 drivers and had increased to 32 drivers as of 30 January 2019.

21) The Employer explained that during times of increased operational demand drivers were requested, from within other parts of the company, to ensure that all work was covered. Those drivers could be from any part of the business and would become a part of the Oban depot workforce for days, weeks or even months at a time, fulfilling a line in the depot rota or filling in for vacant shifts available, depending upon requirements. Their associated costs would be allocated to the Oban depot and they would report in to and be managed by the local Oban management team. The Employer stated that due to the seasonal nature of its operation, it used drivers from Mull (and other depots) to ensure that all work was covered in Oban. The Employer said that this had mutual benefit to Mull based drivers where it could offer year-round employment contracts. The Employer referred to an email exchange between managers, a copy of which it enclosed with its submissions, in which it stated it was allocating resource to the Oban depot. The Employer explained that this happened throughout its business and across its whole operation all year round. The Oban depot in particular had a challenging recruitment environment with a high seasonal demand for employees.

22) The Employer stated that the Union’s proposed bargaining unit was incompatible with effective management. It stated that this was evidenced by a “mind map” detailing how its business was shaped and a document explaining its organisational structure, interworking between depots and their interdependency, copies of which were enclosed with its submissions. The Employer explained that Craig of Campbeltown Ltd had a consistent application of systems, processes and practices across the whole group. There were some brand variations and local depot systems relevant to a particular type of operation (ie private hire) that had been laid out in the “mind map”, as referred to above. The “Organisation Charts”, a copy enclosed with its submissions, also demonstrated how West Coast Motors depots were structured in terms of management for both operations and engineering. Those depots rely on each other to deliver integrated services to customers with people and the fleet interworking daily. The Employer stated that this interdependency could be evidenced by its “Duty Summaries” and “Timetable”, copies of which it enclosed with its submissions, which it stated, showed the integration of work content. The Employer explained that service 23/423 was operated by both Oban and Ardrishaig. Oban operates the afternoon journey on service 428 which runs from Ardrishaig to Inveraray. Citylink service 976 is operated by both Oban and Glasgow. Whilst the number of Oban duties appears relatively small, in relation to the overall duty count, 44% (14 out of 32) of the Oban driving team work those duties. The Employer stated that the remaining timetables it had referenced all had a degree of connectivity with the wider network and therefore, when one is affected, management and drivers have to be informed as a collective. Oban, Ardrishaig and Glasgow drivers were further bound by the shared contractual obligation to operate services (926 & 976) on behalf of Scottish Citylink Coaches Ltd. All drivers at these locations have to comply with Citylink’s terms and conditions, operating procedures and policies. The Employer enclosed, with its submissions, a copy of an extract from the Citylink contract summary.

23) The Employer submitted that it had a flat organisational structure with an area manager for Oban and Mull, a local supervisor on the Isle of Mull and additional support from a Regional Manager, who looks after the whole of the business with the support of the two Directors.

24) The Employer submitted that Driver training (Certificate of Professional Competence) was applied consistently across the whole business and drivers from various locations attend together, receiving the same training, under the same rules, in the same format to increase engagement and inter depot relations. The Employer stated that this could be evidenced by the “Training Schedule”, which was undertaken in 2018, a copy of which it enclosed with its submissions. The Employer said that depots were not segregated by location nor treated as isolated units in the context of management, operational and financial performance. As part of its risk management strategy, every vehicle had a GreenRoad unit fitted and every driver a GreenRoad fob, which identified individual driving behaviour. This has been set up to measure a depot’s performance within their relevant part of the business. A screenshot of the set-up of the system showed that West Coast Motors depots were managed as a group and the performance of driving standards in this wider grouping was measured by the management team. A copy of the screenshot was enclosed with its submissions. The Employer stated that this further demonstrates the relationship between Oban, Mull, Ardrishaig and Glasgow depots, where drivers interwork daily.

25) The Employer submitted that the Union’s proposed bargaining unit would create a small fragmented bargaining unit within its undertaking, create division, inefficiencies, increase costs and deplete management resources. Oban depot drivers would become isolated, fragmented from their peers and lose the benefit of being part of the wider West Coast Motors grouping. Operationally and economically this would have a significant detrimental effect on the depot’s ability to function. The Employer explained that in 2014 local authority contracts, which were renewed on a rolling five year cycle, were lost to a competitor. The resulting financial loss to the Oban depot was significant. Had the drivers been fragmented by a standalone bargaining unit, as proposed by the Union, the Oban depot could not have afforded to pay the increases that were subsequently applied to drivers in 2016 & 2018 throughout all West Coast Motors depots. It was only affordable because it was part of the wider business and drew from the financial support provided by other locations. The Employer explained that driver pay increases had been applied historically across every depot by the same percentage and on the same dates within its proposed bargaining unit. This can be evidenced by the pay increases being applied consistently in March 2014 - 3%, June 2016 – 2%, March 2018 – 3%. In answer to questions from the Panel, the Employer explained that, for historical reasons, there was a 5 pence difference in the pay of a Driver at the Oban Depot and that of a Driver for West Coast Motors. The slight discrepancy in pay came across with the business 20 years ago and had remained though this is balanced through the provision of three days additional holiday to drivers in Oban. The Employer emphasised that the rate of increase was always the same. The Employer stated that it believed there was pay parity for all workers throughout the company

26) The workers in the Union’s proposed bargaining unit share the same characteristics of a directly employed driver in every other depot location within the business and no differences could be noted in the roles or responsibilities of a directly employed driver in Oban, Mull, Campbeltown, Ardrishaig, Dunoon, Bute and Glasgow. The Employer believed that the drivers within Oban should therefore co-exist within a wider bargaining unit. The Employer stated that this could also be evidenced by the “Bus Driver Job Description”, which is generic in role and responsibilities across all of its depots, a copy of which it enclosed with its submissions. Drivers were transferable across locations depending upon business demand. All drivers performed work under the same conditions of carriage”, Company rules, procedures and policies. To demonstrate this the Employer enclosed, with its submissions, copies of the following documents; “Conditions of stage Carriage”, “Company Handbook”, “Sample Policy”, and “Employee Induction Documents”. All drivers across every site receive the same information for its company-wide driver induction. They follow the same processes, procedures and practices for all activity related to their role, regardless of which depot they depart service from. The Employer stated that the induction document also references the West Coast Motors depots as a business unit.

27) The Employer submitted that there were no formal collective bargaining arrangements in place anywhere within the company. There was already in place an effective employee consultation process in every depot, whereby it regularly consulted and communicated with appointed employee representatives and it believed the majority of its employees were happy with this process. The Employer stated that individual trade union membership was recognised on an informal basis which had until now been predominately with Unite the Union. The Employer said that it had offered the same informal relationship to the RMT.

28) Finally, in support of its submissions, the Employer stated that it wished rely upon the following decisions;

Unite and Sports Direct International plc (TUR1/619/2008. The Employer stated that paragraph 38 of the decision, highlighted the importance of there being genuine functional flexibility on the part of the workers (referenced as regularly working across skill categories or regularly interchanging roles) and genuine single status in respect of their terms and conditions of employment, as such features, it held, may render inappropriate a bargaining unit which covers only some of the workers.

GMB and Carillion PLC (TUR1/963/2016). The Employer stated that it commended the determination of the CAC where the union sought recognition in respect of 20 cleaning staff employed on a contract with Nationwide Building Society at one site in Swindon. Some 70 other Carillion staff worked on the Nationwide cleaning contact at a total of 18 sites. The CAC decided that in the light of the uniform approach of the employer to the terms and conditions of all operatives working on this contract a bargaining unit confined to those at just one site was not compatible with effective management, and the CAC concluded that the appropriate bargaining unit was the much wider grouping of all the workers employed on the Nationwide contract.

4. Considerations

29) 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 and amplified at the hearing.

30) 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 considers that the Union’s proposed bargaining unit is not compatible with effective management. The Union’s proposed bargaining unit did not demonstrate a distinct and identifiable group of workers that would fit with the company business model. The Drivers in the Union’s proposed bargaining unit share common terms and conditions of employment with those drivers across the West Coast Motors Group, whom the Employer seeks to include. There is pay parity across the West Coast Motors Group, with all drivers receiving the same pay increases that were applied across every depot by the same percentage and on the same dates. The Panel notes that there is a 5 pence discrepancy in the hourly rate of pay for a driver who is primarily based at the Oban Depot, to that of a driver for the West Coast Motors Group. However, the Panel accepts that this is a historical difference that dates back to when this the business was acquired, and is therefore is a consequence of that, rather than any principled distinction between them. There is a significant amount of flexibility and interdependency between the drivers’ depots for the West Coast Motors Group, with 44% of the Oban driving team working interdependent duties with those depots, and to have a bargaining unit consisting of only the Oban driving team would, in the Panel’s view, create significant complications making the business difficult to run.

31) 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. The Panel has determined that a bargaining unit consisting of “Directly employed drivers at West Coast Motors depots, to include Oban, Mull, Ardrishaig, Glasgow, Campbeltown, Bute and Dunoon” is an appropriate bargaining unit. The Panel considers that this bargaining unit is compatible with effective management. This bargaining unit is managed by a flat organisational structure that runs across the business. These workers share common terms and conditions of employment, receiving the same driver pay increases. All drivers are hourly paid and, as noted in paragraph 30 above, although the Panel has noted a discrepancy in the hourly rate of pay between a driver at Oban and a driver in the West Coast Motors Group based at one of the other 6 depots, the Panel is satisfied that this is consequence of a historical change within the business rather than any principled distinction between them. The drivers in this bargaining unit have the same roles and responsibilities, follow the same company rules, procedures and policies. The same driver training is applied consistently across the whole business, with a co-wide induction programme. There is also frequent interworking between the depots during times of increased seasonal demand.

32) The Panel has considered the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with 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. The Panel does not consider that there are any existing national or local bargaining arrangements in this case. The bargaining unit set out in paragraph 31 above does not avoid completely the risk of small fragmented bargaining units within the undertaking because it does not cover all categories of staff. However, it does carry less risk of fragmentation than that proposed by the Union. As far as the characteristics of workers are concerned, as set out in paragraph 31 above, the workers covered by this bargaining unit have common terms and conditions. All the workers in the bargaining unit are located across seven sites. The Panel is satisfied that its decision is consistent with the object set out in paragraph 171 of the Schedule.

5. Decision

33) The Panel’s decision is that the appropriate bargaining unit is “Directly employed drivers at West Coast Motors depots, to include Oban, Mull, Ardrishaig, Glasgow, Campbeltown, Bute and Dunoon”.

34) 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 within the terms of paragraphs 43 to 50 of the Schedule.

Panel

Professor Kenneth Miller, Chairman of the Panel

Mrs Maureen Shaw

Mr Matt Smith OBE

28 February 2019

Appendix

Names of those who attended the hearing:

For the Union

Gordon Martin - RMT Regional Organiser

Donald Graham - RMT Organiser Recruitment and Retention.

For the Employer

Colin Craig - Managing Director

Nicola Morrison - Co. Director

Steve Maguire - Advisor