Decision

Bargaining Unit Decision

Updated 10 July 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1304/2023

25 May 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DETERMINATION OF THE BARGAINING UNIT

The Parties:

Unite the Union

and

Comic Enterprises Limited

1. Introduction

1) Union the Union (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 13 February 2023 that it should be recognised for collective bargaining purposes by Comic Enterprises Limited (the Employer) in respect of a bargaining unit comprising “All of the workers employed by Comic Enterprises Ltd at The Glee Club Cardiff excluding the Venue Manager”. The location of the bargaining unit was given as “The Glee Club, Mermaid Quay, Cardiff, CF10 5BZ.” The application was received by the CAC on 13 February 2023 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 20 February 2023 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 Mrs Lisa Gettins, Panel Chair, and, as Members, Mr David Cadger who was replaced by Mr Robert Lummis and Mr Paul Moloney. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) By a decision dated 22 March 2023 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.

2. Hearing

4) A hearing was held on 4 May 2023 in Birmingham and the names of those who attended the hearing are appended to this decision. Both parties provided written submissions prior to the hearing together with supporting documentation. The Panel would like to thank the parties for answering the questions raised during the hearing. The information they provided was very helpful to the Panel.

5) At the outset of the hearing the Panel clarified the issues with the parties. The Union confirmed its submission would be that the bargaining unit set out in its application was appropriate. The Employer confirmed its submissions were that the bargaining unit set out by the Union was not appropriate as firstly it consisted only of staff at the Cardiff venue and secondly it included management alongside staff. The Panel reminded the parties of the legal test it would apply in deciding the appropriateness of the bargaining unit and the parties were invited to make their submissions.

3. Submissions from the Union

6) In opening the Union explained that, following the acceptance of its application by the CAC, it engaged in discussions with the Employer in respect of the bargaining unit, but the parties were not able to reach agreement.

7) The Union stated that the venue manager had been excluded from the proposed bargaining unit because they were the only employee at the workplace who had decision-making responsibility in relation to the running of the business including bearing overall responsibility for events, health and safety of staff and members of the public, determining rotas, conducting disciplinary and the grievance process and line managing staff. They were salaried and not on a zero-hour contract as the other employees were.

8) The Union confirmed that the exclusion of the venue manager from the proposed bargaining unit was not disputed by the Employer. There were other employees in the Union’s proposed bargaining unit who also had ‘manager’ in their job title. These included a floor manager, bar manager, show manager and kitchen manager. These managers were all line managed by the Venue Manager. The Employer had proposed that these managers should be excluded from the proposed bargaining unit to which the Union did not agree.

9) The Union explained that the floor manager, bar manager, show manager and kitchen manager roles were more akin to the role of a supervisor than a manager. They did not have any direct line management responsibilities nor decision-making autonomy. They did not determine rotas nor conduct disciplinary and grievance processes. They did not have any involvement in the strategic management of the business and were not in direct, regular contact with the Head Office. They were not salaried, and their pay and terms and conditions were determined in the same way as other non-managerial staff. They were hourly paid and their level of pay per hour was around £1 more than the staff and they were subject to the same overtime arrangements.

10) The Union also confirmed that its membership included individuals working in the roles listed in paragraph 8. These members joined the Union, inter alia, because they wanted trade union recognition and to be part of the proposed bargaining unit.

11) The Union clarified that all of the managers listed in paragraph 8 were employed on zero hours contracts. The Union confirmed it was widely recognised that a major issue for workers on zero hours contracts was the imbalance of power between the employer and the worker and the concern they held that the Employer would withhold hours if they attempted to assert their rights. The Union stated it had evidence, which was not submitted, that these workers were already being targeted at Glee Club Cardiff which the Union believed was because of their trade union activities. The Union explained that the precariousness of these contracts was one of the reasons the workers were seeking some protection in the form of a recognised trade union.

12) The Employer had submitted that the Union’s proposed bargaining unit would be inappropriate and not compatible with effective management, because the workers listed in paragraph 7 were management level employees. The Union confirmed that they rejected this argument.

13) The Union confirmed that the Glee Club Cardiff was a small workplace and all of the workers in the proposed bargaining unit were based at this location. Further, the workers had their pay and terms and conditions determined in the same way. As far as the Union was aware, all the workers in the proposed bargaining unit had broadly similar terms and conditions including being subject to the same company policies and procedures.

14) The Union believed all of those in the proposed bargaining unit were part of the same business unit for administrative and budgetary purposes. The Employer treated the workers in the proposed bargaining unit as a group when it needed to consult and communicate with the workers. The Union had consulted regularly with its members throughout the recognition application process, and they supported the bargaining unit proposed and believed it was the one most compatible with effective management.

15) The Union further commented that if the workers listed in paragraph 8 were to be excluded from the proposed bargaining unit, then their only alternative would be to form their own separate bargaining unit. To have two such small bargaining units in what was already a small workplace would not be compatible with effective management. Negotiating separate terms and conditions for two small bargaining units within the same workplace would cause conflict and distrust and would not be conducive to constructive industrial relations. It would make for more effective management for them to be included in the determined bargaining unit.

16) Finally, the Union confirmed that its proposed bargaining unit avoided the creation of small, fragmented bargaining units within the Employer’s business.

17) Asked by the Panel to expand on the roles of the manager, the Union stated that the managers were all on the same contract, they did not manage staff, and they were responsible for their own areas. The Union also confirmed that the venue manager prepared the rota and called people to do their shifts and that the venue manager was based in Cardiff. The Union also explained that the managers did not deal with disciplinary issues and could book their own annual leave.

18) In its summing up the Union stated that, whilst it disagreed with the Employer about the level of control managers had, the question was whether they should be in the proposed bargaining unit and whether their inclusion was compatible with effective management. It was common in the Union’s experience to have this level of managers in a bargaining unit. The Union confirmed that while the Employer had stated that the managers had responsibility in fact they did not. The Union’s submission was that the Venue Manager and Operations Manager managed the rotas and staff presently and to their understanding would do so in the future. The Union confirmed that the Venue Managers at all other sites were responsible for rotas. The Union further confirmed that the managers had no control over the fundamental items of collective bargaining i.e., pay, hours, holidays, or terms and conditions of employment. The Union further commented that whilst the Employer had argued that collective bargaining would be difficult because it was a small business, it was not so small as to preclude an application for trade union recognition. The Union stated that the Employer already operated a system where there were a number of different pay rates and further that removing the small group of managers from the proposed bargaining unit and put them in a separate group would lead to further fragmentation.

4. Submissions from the Employer

19) The Employer explained that in its view the proposed bargaining unit would be inappropriate, and that it would seriously hinder the Employer’s operations. The Employer stated the proposed bargaining unit that the Union had asked for consisted of the following roles in the Employer’s venue in Cardiff:

Management Roles

Bar Manager

Floor Manager

Kitchen Manager

Show Manager

Non-Management Roles

Bar Staff

Floor Staff

Kitchen Staff

20) The Employer confirmed the only person excluded from the Union’s proposed bargaining unit was the Venue Manager to whom all the other managers reported to. The Employer stated its concerns were that the proposed bargaining unit only consisted of staff based in the Cardiff venue; and that the Union had included management alongside staff.

21) Addressing the one site issue, the Employer explained that it was a small, multi-site business with only 126 workers and six employees currently on its books across three venues. It also has a central management function made up of 15 employees, only three of which have responsibility for people issues across the business – the Chief Executive, the Chief Operations Officer, and the Operations Director. The Employer stated that workers across all of its venues shared the same rates of pay, terms and conditions and policies. Pay and other key terms and policies were centrally decided, managed, and controlled with no local variations, and were further determined by a central budget.

22) The Employer expressed its concerns that if the bargaining unit as proposed was brought into effect, it would place a real administrative burden on its operations. The Employer stated it had a very small team and limited financial resources, particularly after the pandemic and to be required to run two separate processes in respect of pay and terms, one for a very small part of the organisation and another for the rest of the organisation would lead to difficulties. Further, the Cardiff site had shared labour with Birmingham in the past and it envisaged situations arising where colleagues doing the same work would be paid differently because of the specific bargaining process that would be in placed in Cardiff. The Employer explained that this would create difficulties with labour sharing, hostility and potentially cause equal pay risks.

23) The Employer stated that beyond the issues caused by having to run two different processes regarding pay and conditions, it would not be appropriate to include management in the bargaining unit. The Employer explained that while managers, who were workers rather than employees, generally had the same terms and conditions as staff, such as in relation to holiday entitlement, there were a number of significant differences. They received a different rate of pay to staff in recognition of the fact that they performed managerial duties, they were rostered very differently such that, in practice, they were guaranteed more frequent hours as compared to staff who worked more on an ad-hoc basis.

24) The Employer further stated that the duties that managers performed were also different to the duties that staff performed. They were expected to step in to cover the Venue Manager, when necessary, a role which was not included in the proposed bargaining unit. In the past, those in the bar, floor and show manager roles had preferred to do this, but equally any of the managers could be asked to do it. In addition to managerial duties, they:

• Had responsibility for complying with health and safety legislation and completing relevant paperwork;

• Jointly made decisions as to whether their department stayed open or closed (which then impacted whether or not staff were offered work and paid);

• Had decision making responsibility around cash and stock;

• Input into and influence over product range decisions;

• Dealt directly with customer complaints – including complaints about staff;

• Were responsible for cash handling in the venue and had access to the safe;

• Were key holders for the venue;

• Controlled and had exclusive access to the ‘back office’ (the ticket platform) and customer data;

• Were the direct point of contact for artists and acted as artist liaison; and

• Were responsible for maintenance of equipment and accountable for staff cleaning responsibilities and the hygiene standards within the venue.

25) The Employer said that, in contrast, the staff duties consisted mainly of greeting customers as they arrived and showing them to their seats, pouring drinks at the bar, taking payment for purchases, preparing food, and serving drink and food to customers at their tables. There was therefore a significant difference in the duties that the two groups of staff performed.

26) The Employer explained that the management team also line managed the staff, that they had specific managerial duties, many of which required them to make decisions which touched upon the matters that would be discussed as part of collective bargaining. For example, managers decided:

• Whether staff got shifts or not and therefore whether to roster staff;

• How many shifts someone was rostered for (if they offered shifts to them at all);

• Who to send home if fewer staff were needed on any particular shift or they decided to close their department as referred to above;

• When staff in their department were allowed to go on a break; and

• When holiday could be taken if this was requested.

27) The Employer stated that because the managers had control over rotas and hours, and decided which staff worked and how many hours they worked, if any, they had significant control over whether staff received a productivity bonus due to the hours they worked.

28) The Employer expressed concern that there would be conflicts of interest within the proposed bargaining unit if managers were included because of their involvement in the matters subject to collective bargaining.

29) The Employer stated that it had been considering whether to move the managers onto salaried employee contracts which would, if carried out, differentiate them and their terms of employment from others in the proposed bargaining unit which would not be appropriate.

30) When asked by the Panel as to why the Union’s proposed bargaining unit would give rise to fragmentation, the Employer submitted that there should be one bargaining unit for workers and another for managers across its operations, or to take the managers out of the bargaining unit and have a vote. The Panel asked if the managers had control over leave arrangements and the Employer confirmed that they did not. The Employer further confirmed in regard to groupwide bargaining, that the floor managers in Cardiff and Birmingham were on the same pay scales, whereas the Birmingham staff were salaried as there was more productivity in Birmingham.

31) The Panel asked the Employer how pay rates, hours and leave were decided to which the Employer confirmed that all were controlled centrally including managers hours, shifts and rotas and that they used a software platform for their zero hours workers to indicate availability and to confirm scheduled shifts. The Employer, when asked by the Panel as to what happens if no one volunteered for the shifts, replied that the shift would not get covered, but this never happened as someone always accepted the shifts offered.

32) The Union asked the Employer what guidance the employee followed in regard to offering shifts in a fair manner taking into consideration equality issues. The Employer responded by stating that managers ultimately had the autonomy to offer shifts and if there was any unfair practice when doing so, it would be bought to its attention.

33) Summing up, the Employer stated that, in its view, judgement and leadership were critical as managers were hugely influential over hours that staff worked. A bargaining unit as proposed by the Union would separate the company and become a huge burden, verging on unworkable and with a fragmented workforce. The Employer explained that the kitchen manager and bar manager ordered stock and decisions were made by these managers. The supervisors were managers who organised shifts. They had access to alarm codes, keys, they spoke to licensing officers, and environmental officers, they were managers and not supervisors, therefore they should not be in the proposed bargaining unit.

5. Considerations

34) The Panel begins with the statutory framework. 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 “In 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 and oral submissions. 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.

35) In reaching its decision the Panel has taken account of the views of the Union and the Employer as expressed in their written submissions, responses to questions and oral submissions during the hearing. Both parties confirmed at the conclusion of the hearing that the hearing had been conducted fairly and that they had the opportunity to say everything that they had wanted to say to the Panel.

36) 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. That does not require the Panel to determine whether it is the most appropriate bargaining unit; only whether it is appropriate. This is the overriding requirement under 19B(2) and relates principally to the matters to be collectively bargained for under the statutory regime namely pay, hours and holidays. The requirement is that the proposed bargaining unit would be compatible with effective management, not that it be compatible with the most effective management. Against the background of that overall responsibility the Panel has to consider the matters listed in paragraph 19B(3) of the Schedule reminding itself that these matters must not conflict with the need for the unit to be compatible with effective management.

37) The Panel finds in the circumstances that the bargaining unit proposed by the Union is compatible with effective management. The Panel’s reasons are as follows:

(a) the roles in the Union’s proposed bargaining unit are all situated in one location, namely, Glee Club, Mermaid Quay, Cardiff, CF10 5BZ.

(b) all of the workers in the roles in the Union’s proposed bargaining unit are subject to the same contracts of employment which are zero hours contracts. The Panel notes the submission of the Employer regarding a potential future change but has to make its decision based on known facts. There was no evidence of or certainty as to a potential change of terms and conditions for the managerial group at Cardiff.

(c) Centrally based Operations Directors have responsibility for setting the terms and conditions of staff in the Union’s proposed bargaining unit.

(d) The Panel is aware of examples both in the private and public sector and in differing sizes or organisations where different types of workers are included in the same bargaining unit, which is not incompatible with effective management.

38) As part of those deliberations the Panel considered those matters at 19(B)(2)(b) not dealt with above as follows:

(a)The views of the employer and union were fully considered. Suggestion by the Employer during the course of the hearing that recognition could be across all sites comprising one group for managers and one group for other employees was not further explored by the parties and had not been considered previously.

(b) There are no current national or local bargaining arrangements.

(c) The Union’s proposal created one bargaining unit at a single site whereas the Employer’s proposal created two, one managerial and one for staff. The Union’s proposal avoided small, fragmented bargaining units.

6. Decision

39) The Panel’s decision is that the appropriate bargaining unit is that proposed by the Union, namely: “All of the workers employed by Comic Enterprises Ltd at The Glee Club Cardiff excluding the Venue Manager”.

Panel

Mrs Lisa Gettins, Panel Chair

Mr Robert Lummis

Mr Paul Moloney

25 May 2023

7. Appendix

Names of those who attended the hearing

For the Union

Ruth Hydon - Regional Legal Officer

Michaela Gilroy - Regional Officer

Aaron Rushton - Glee Employee

Joe Morgan - Glee Employee

For the Employer

Mark Tughan - Chief Executive

Raya O’Neill - Chief Operating Officer