Decision

Bargaining Unit Decision

Updated 25 July 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1292(2022)

23 March 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

Inflite Engineering Services Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 22 November 2022 that it should be recognised for collective bargaining purposes by Inflite Engineering Services Limited (the Employer) in respect of a bargaining unit comprising “On behalf of all your workers employed by your organisation within Woodside 1 with the exception of Managers and Office staff.” The location of the bargaining unit was given as “Woodside 1, Aircraft Component Repair and Overhaul Centre, Woodside Industrial Park, Dunmow Road, Bishop’s Stortford, Hertfordshire.” The application was received by the CAC on 23 November 2022 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 24 November 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 Mrs Lisa Gettins, Panel Chair, and, as Members, Mr Martin Kirke and Ms Joanna Brown. The Case Manager appointed to support the Panel was Kate Norgate latterly replaced by Joanne Curtis.

3) By a decision dated 23 December 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 15 March 2023 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. Points clarified at the start of the hearing

5) Using a summary provided by the Employer in an e mail dated 9 March 2023 it was clarified which categories of workers were classed as managers and office staff thereby falling outside the Union’s proposed bargaining unit. The Union did not disagree with the categories of workers as set out by the Employer in the e mail. Going forward it was therefore agreed that the following roles fell within the proposed bargaining unit: Shop Floor Supervisors, Sheet Metal (Shop floor), Ident, Welders, Fitters, Tooling/Spotweld, Labourers, Stores, Quality Inspection, Stretch Form and Apprentices. It was agreed that the following roles fell outside of the proposed bargaining unit: General Manager, Quality Manager, Planning, Library, Archives, Fairs Admin, Production Control and Production Supervisor.

3. Summary of the Union’s submissions

6) The Union submitted that Woodside 1 produced small metal aircraft components for commercial and military aircraft. It stated that the work was predominately manual and that the shop floor workers at Woodside 1 were highly skilled. They included 12 sheet metal workers, 4 welders, 10 assembly workers, as well as several labourers and inspectors. Most of whom had worked for the Employer for 10 or more years; the Union added that most had completed aircraft-specific apprenticeships with the Employer. The Union went on to say that the majority of shop floor workers were on “an hourly paid contract” and were employed to work a “basic average of 39 hours per week” excluding an unpaid 30-minute lunch break. The Union added that since March 2021 these hours were worked on four days, Mondays to Thursdays.

7) The Union went on to address the legal test set out in Paragraph 19B(2)(a) stating that when deciding whether a bargaining unit was appropriate for the purpose of paragraph 19(2), the test was whether the proposed bargaining unit was suitable for collective bargaining. The Union made reference to a statement by Buxton LJ in the case of R (on the application of Kwik-Fit Ltd v Central Arbitration Committee [2002] ICR 1212 where it was said “the statutory test is set at the comparatively modest level of appropriateness, rather than of the optimum of best possible outcome”. The Union added that if the Panel was persuaded that the proposed bargaining unit was appropriate, the Panel must find in favour of the union’s request and referenced the case of R (Cable & Wireless Services UK Ltd) v Central Arbitration Committee (QBD) [2008] EWHC 115 (Admin).

8) When taking into account the need for the bargaining unit to be compatible with effective management, the Union stated that “compatible” in paragraph 19B(2) meant “consistent with” or “able to co-exist with” effective management and that “effective management” related mainly to the Employer’s methods of resolving issues of pay, hours and holidays by collective bargaining. The Union stated that the bargaining unit proposed was suitable for the purpose of collective bargaining and was compatible with effective management. The members of the proposed bargaining unit included supervisors who had day to day responsibility for the workers and first-hand familiarity with the details and challenges of the work. The Union added that as the first line of operational management including them was compatible with effective management of the bargaining unit.

9) The Union went on to submit that the Employer suggested the bargaining should include “all Woodside 1 employees,” however the starting point for the Panel’s deliberations was whether the Union’s proposal was appropriate, the Panel was not required to choose between two proposed bargaining units. The Union added that should the Panel decide that the proposed bargaining unit was not appropriate it would ask the Panel to consider the differences between the front office and shop floor staff as good reason for why front office staff should not be included in the bargaining unit. The Union went on to list these differences as follows:

Different skills & responsibilities

The Union argued that the skills and responsibilities of front office and shop floor staff differed. It said that front office staff were responsible for professional functions such as planning, commercial estimation, finance and IT. Adding that their skills would typically be described as “professional” or “managerial.” Shop floor staff were skilled manual workers: 12 sheet metal workers, 4 welders, 10 assembly workers, as well as several labourers and inspectors. They had trade-specific training and work experience.

Different terms and conditions

The Union submitted that the terms and conditions of front and shop floor staff differed. Front office staff were salaried employees who were paid a fixed annual salary and did not appear to be paid overtime.^{[footnote 1]}The annual salary was generally reviewed each financial year. The majority of the shop floor staff were paid a “basic hourly rate”. Which could be reviewed outside the financial planning cycle depending upon business demand and attrition. The Union added that such workers were paid overtime at 1.5 times the basic hourly rate. The Union went on to say that on occasion management had varied the working hours and pattern of the shop floor workers depending on increases and decreases in workload and the pandemic. The Union gave the example that as of March 2021, a purported extension to a temporary change in working hours from Monday to Friday working to Monday to Thursday working appeared to have become a permanent variation. The Union also stated that on occasions, management had temporarily varied the shop floor workers’ right to carry over annual leave, which may not have been applied to some or all of the front office staff. Further the Union stated that on 11 January 2022 shop floor workers who had not had a role change or salary increase in the previous 12 months were notified that they would receive a 2% increase in their basic hourly rate. In contrast, salaried staff were informed that their pay would be reviewed in April 2022, in line with the financial year.

Tools, equipment, and apparel

The Union stated that front office staff were provided with computers and issued with black trousers and a white fitted shirt with the company branding on it. When entering the shop floor they had to “don protective footwear” but were not required to wear such footwear in the office Shop floor workers were provided with standard “work apparel.” This consisted of black trousers, a black polo shirt with the company branding, and a black branded sweatshirt. Shop floor workers had to wear protective footwear at all times. In addition, the shop floor workers had to wear job-specific PPE all provided by the Employer. The Union submitted that shop floor workers were not provided with computers but were required to use specialist tools issued from the tools store.

Workplace practice

The Union submitted that all workers clocked in and out of the building, however, the shop floor workers also had to clock onto each job they performed and that the information recorded was used to measure time spent on a task and productivity, and to calculate the cost of work to the customer.

Key worker status

The Union further invited the Panel to consider the salient fact that during the pandemic, the shop floor staff were designated key workers. As the work was considered part of the military supply chain. In contrast, the front office staff at Woodside 1 were not designated key workers and were offered the option of being furloughed or working from home.

10) The Union then went on to address the legal test in Paragraph 19B(2)(b) and 19B(3)

The Union stated that noting the differences between the shop floor workers and front office staff the proposed bargaining unit was “the appropriate collection of similarly skilled employees, tasked with similar responsibilities, subject to similar terms and conditions and workplace practices.” The Union asked the Panel to note that there was no or little risk of the proposed bargaining unit disrupting existing bargaining arrangements. All members of the proposed bargaining unit were already members of Unite the Union, and no other Union had alternative bargaining arrangements at Woodside 1. The Union submitted that if the Panel was minded “to recognise the proposed bargaining” there was little if any risk of fragmenting collective bargaining.

11) The Unions submitted that it did not matter that there was both shop floor and front office staff located at Woodside 1. What mattered was the characteristics of the workers, and the differences that had already been highlighted between the two groups. The shop floor workers were employed because of their specialist skills to perform distinct work. Their terms and conditions were subject to variation by management.

12) The Union concluded by saying that this was precisely a case in which it made sense to define the constituent members of the bargaining unit by reference to their skills, training, responsibilities, tools, equipment and apparel which they were provided with and required to use. The terms and conditions imposed upon them, and the operational policies with which they had to comply. It therefore made sense to include them but not the front office staff in the proposed bargaining unit.

13) Finally, in their closing submissions the Union referred to the answer provided to the Panel by the Employer regarding pay negotiations, namely that shop floor pay was reviewed in January and compared to sheet metal workers whereas the office worker pay was reviewed in April and compared to market rates.

4. Summary of the Employer’s submissions

14) The Employer submitted that Inflite Engineering Services Ltd was a family owned manufacturing business. The Employer provided a copy of an organisational chart dated November 2022 within the body of the submission. The Employer stated that the Union had requested recognition for a bargaining unit within Inflite Engineering Services Ltd at the Woodside 1 Site. The Employer said that the site currently had 59 employees. The Employer went on to say that the Union had requested that office staff and management be excluded from the bargaining unit. The Employer said that for there not to be a fragmented bargaining unit within the Company all employees based at Woodside 1 should be included.

15) The Employer further submitted that there were no existing bargaining arrangements except on an informal basis where bi-weekly meetings took place with shop representatives who brought issues to the management team to review, consider and provide feedback/solutions on. When asked what the status of the shop representatives were and how were they chosen by colleagues the Employer stated that it was an informal arrangement and that “the employees elected two individuals to represent them at regular meetings that we have with them.” When asked if Office staff had their own representatives or a separate group for similar discussions. The Employer stated that it could not be sure, however office staff had never asked for their own representatives and as far as the Employer was aware office staff knew when the meetings were being held and the Employer did not get involved with how representatives were elected. The Employer said it felt that as an organisation it had an open culture with its employees and held regular town hall meetings, all hands briefings and had introduced benefits across the group which had made the Company more competitive as an organisation.

16) The Employer said that it did not believe that unionising the workforce would be beneficial to the employees or the business. Nor did the Employer believe that this was what the majority of the employees based at Woodside wanted. The Employer stated that its understanding was that only a small minority of employees were members of the Union. The Employer attached to its submission copies of job descriptions relating to some of the employees based at Woodside 1 and redacted contracts of employment.

5. Considerations

17) 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 “[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.”

18) 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 had the opportunity to say everything that they had wanted to say to the Panel.

19) 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; merely whether it is appropriate. The focus is on the question of whether the bargaining unit is compatible with effective management rather than whether it is compatible with the most effective management or other precise management structure that the Employer wishes to adopt.

Against the background of that overall responsibility the Panel has to consider the matters listed in 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.

20) Firstly, The Union and the Employer have clearly set out their views and the Panel has had regard to them. The bargaining unit proposed by the Union is “all workers employed within Woodside 1 with the exception of Managers and Office staff”. The Employer says that it is not, and the bargaining unit should include all of the workers at Woodside 1.

21) Secondly, there are no existing bargaining arrangements for this workforce at a local or national level.

22) Thirdly, the Union’s proposed bargaining unit would not create a small, fragmented bargaining unit within the meaning of paragraph 19 of the Schedule. The decision in Lidl makes clear that this provision has the purpose of avoiding numerous small units where collective bargaining occurs, however the Union’s proposal creates a single bargaining unit for an agreed and defined group of staff at a single site.

23) Fourthly, as to the characteristic of the workers within the proposed bargaining unit the Panel notes that the Union’s proposal involves collective bargaining for employees with different job functions however with a clear delineation between office and shopfloor staff. The parties agreed at the outset of the hearing those categories of employee which fell into “Shop Floor Labour” and “Office” staff. The Panel accepts the Union’s submission that Office staff are responsible for professional functions and shop floor staff are skilled manual workers. The Panel noted that the pay review date for “Office” and “Shop Floor Labour”, and the types of jobs used for market comparisons, were both different.

24) Finally, the location of the workers is at the single Woodside 1 site.

25) The Panel, having asked itself the overarching question required of it, finds that the bargaining unit put forward by the Union is appropriate as being compatible with effective management. The Panel notes and commends the cultural approach and vision set by the Employer but for the reasons it has given, and reminding itself that when considering the compatibility with effective management the focus is on the management and determination of issues abut pay, hours and holiday by means of collective bargaining rather than day to day communication with employees and company vision, the Panel finds that the Union’s proposed bargaining unit is appropriate.

6. Decision

26) The Panel’s decision is that the appropriate bargaining unit is that specified by the Union in its application, namely “all workers other than managers and office staff located at Woodside 1 aircraft centre”. For the purposes of this definition, as clarified at the outset of the hearing and set out at paragraph 5 above, the workers excluded from this definition are those categorised as Office staff by the Employer namely General Manager, Quality Manager, Planning, Library, Archives, Production Control and Production Supervisor.

Panel

Mrs Lisa Gettins, Panel Chair

Mr Martin Kirke

Ms Joanna Brown

23 March 2023

7. Appendix

Names of those who attended the virtual hearing on 15 March 2023:

For the Union

Helena Ifeka (Counsel)

Adam Lambert

Nadine Edwards

Paul Dodd

Matthew Lamb

Stephen McCrystal

Observer with the Union:

Jessica Sutton (mini pupil)

For the Employer

Jacqui Mace

Will Stephens

Peter Day

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1. When the Employer was asked about this issue by the Panel, the Employer explained that some office staff were paid over time. ↩