Decision

Bargaining Unit Decision

Updated 29 January 2021

Case Number: TUR1/1192/2020

12 January 2021

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

Parc Adfer Operations Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC that it should be recognised for collective bargaining by Parc Adfer Operations Limited (the Employer) for a bargaining unit comprising “All workers excluding ‘Senior Managers’ at Parc Adfer Operations Limited, Deeside Site, Deeside Industrial Park, Weighbridge Road, Sealand, Flintshire, CH5 2LL”. The application was received by the CAC on 5 August 2020. The CAC gave both parties notice of receipt of the application on 6 August 2020. The Employer submitted a response to the CAC dated 12 August 2020 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 Mr. Stuart Robertson, Panel Chair, and, as Members, Mrs Susan Jordan (but for the purpose of this hearing Ms Mary Canavan) and Mr. Gerry Veart. The Case Manager appointed to support the Panel was Linda Lehan.

3) By a decision dated 1 September 2020 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 virtually on 14 December 2020 and the names of those who attended the hearing are appended to this decision.

4) 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.

5) At the start of the hearing the parties confirmed that the sole dispute was whether the bargaining unit should include the roles of Shift Team Leader, Mechanical Engineer and Operations Technician Supervisor. The Union proposed that those three roles should be included in the bargaining unit whereas the Employer’s view was that to include those roles was not compatible with effective management.

2. Clarification of the proposed bargaining unit

6) Correspondence between the parties and the CAC suggested agreement that the Management Administrative Team at the site should not form part of the proposed bargaining unit. At the start of the hearing the Union and the Employer confirmed their agreement. The Panel agreed to give effect to this, and the proposed bargaining unit was therefore, with the agreement of both parties, modified to “All workers excluding Senior Managers and the Management Administrative Team at Parc Adfer Operations Limited, Deeside Site, Deeside Industrial Park, Weighbridge Road, Sealand, Flintshire, CH5 2LL”

3. Summary of the Union’s submissions

7) The Union contended that the Shift Team Leaders, Operations Technician Supervisor and Mechanical Engineer should be within the proposed bargaining unit as they did not consider them to be Senior Managers. The Union believed that Senior Managers would be expected to undertake duties such as guiding supervisors; approving the engagement and termination of employees; creating and or formulating company objectives and forward planning; managing at a minimum departmental budgets and targets, and being responsible for employees’ (including managers’) performance.

8) The Union stated that possible further tasks appropriate to a Senior Manager role would be ensuring that the organisation was effective and successful by taking on responsibility for the implementation of strategy in the organisation, targeting the company’s resources towards successful outputs and achieving organisational goals directly. Senior Managers would have authority to hire and fire, manage a site or departmental budget, implement directly and on a personal basis the company’s strategy, giving direct guidance and instructions to front line managers and supervisors.

9) The Union stated that in respect of Shift Team Leaders, the name alone suggested and invited a conclusion that the position was not a Senior Manager role. The Union agreed that the role had elements of responsibility and although the Shift Team Leaders might manage the running of the plant out-of-hours, they by default, acted as supervisors during normal working hours.

10) In respect of the Operations Technician Supervisor, the Union stated that the role had elements of responsibility but did not meet the criteria outlined above which the Union contended illustrated the different responsibilities required by Senior Manager roles. The Union stated that the role did not encompass implementing strategy or direct line management of supervisors or first line managers and, once again, the terminology of the job described the role as a supervisor role and not managerial.

11) In respect of the Maintenance Engineer, the Union again accepted that the role had certain responsibilities but it did not include the ability to make critical strategic or managerial decisions and also excluded the job holder from fiscal independence to enact any decisions. Finally, the Union stated that the name alone alluded to a specific role recognised in the industry as an engineer without any managerial reference in the title.

12) The Employer considered that the inclusion of the Shift Team Leaders, the Maintenance Engineer and the Operations Technician Supervisor in the proposed bargaining unit was not compatible with effective management. The Employer stated effective management was more likely to be achieved by its proposed bargaining unit of the 22 employees who had operative or technician roles, forming the Operations and Maintenance Team.

13) The Employer stated that the Shift Team Leaders were part of the management of the plant and to include them in the bargaining unit would not be compatible with effective management as their roles differed from the Operations and Maintenance Team.

14) The Employer said that the Shift Team Leaders were more than mere supervisors or chargehands and had more in common with the Senior Managers at the plant than with the operators and maintenance technicians whom they directed.

15) The Employer explained that the Parc Adfer plant operated 24 hours a day, seven days a week and that the Shift Team Leaders were the sole management representatives on site for 70% of the plant’s operating time. The three Senior Managers on site (Plant Manager, Operations Manager, Maintenance Manager) were present for approximately 50 hours per week, and for the remaining time, the relevant Shift Team Leaders were the most senior person on duty.

16) The Employer said that the plant was a safety-critical environment and Shift Team Leaders were responsible for the safe, compliant and efficient operation of the plant and for upholding and enforcing relevant company rules during their shifts.

17) The Employer stated that Shift Team Leaders were the site Senior Authorised Persons, High Voltage, which meant that they were responsible for the safety of themselves and others in High Voltage areas. The Employer explained that the Senior Authorised Person was required to take steps to ensure High Voltage equipment was isolated and safe to work on, and was ultimately responsible, as a senior figure, for overseeing the work of Authorised Persons. The Employer said that in addition to the Shift Team Leaders, the other Senior Authorised Persons were the Plant Manager, Operations Manager and Maintenance Manager.

18) The Employer explained that the Shift Team Leaders had the authority to take the site boiler offline, and in so doing, shut down operations. Only they, the Plant Manager, Maintenance Manager and Operations Manager had such authority, and this occurred approximately every 1 – 2 months, with significant financial implications for the plant.

19) The Employer stated that the Shift Team Leaders chaired the daily operations management meetings with site Senior Managers and were fully integrated into the senior management group at the plant. Due to their regular dealings with the management team, they were privy to confidential company information such as gate fees (income from delivered waste) supplier rates and process and power generation volumes that the Employer would not normally be expected to share with the Union.

20) The Employer stated that the Shift Team Leaders were line managers and they recruited staff, were responsible for the allocation of overtime duties, supervised and deployed manpower as appropriate to ensure cost effective, safe and efficient operation of all activities on site. The Employer explained that, as it was a new site, performance appraisals had not yet been implemented but once they were, the Shift Team Leaders would be carrying out performance reviews for operatives.

21) The Employer said that the Shift Team Leaders enforced disciplinary rules and policy for instance in relation to unsafe acts which occurred out of normal working hours when they were the sole manager on site, and they were empowered to conduct investigations and issue verbal and written disciplinary warnings. The Panel questioned the Employer as to why in the specimen Shift Team Leader job description shown to the Panel there was no specific authority to take disciplinary action. The Employer suggested this was implicit in other areas of responsibility but accepted it was not specifically stated.

22) The Employer advised that the annual salary level for the Shift Team Leaders was in the region of £50,000 - £60,000, significantly in excess of more junior operatives who earnt £27,000 to £42,000. The Employer stated that this included a variable management bonus of up to 10pc of salary, which the operatives were not eligible for. The Employer stated that pay, terms and conditions were set at group level.

23) In respect of the Maintenance Engineer and Operations Technician Supervisor, the Employer said that they also had line management responsibility, and therefore to include the roles within the bargaining unit would be incompatible with effective management for the same reasons as the Shift Team Leaders. The Employer stated that both roles allocated overtime and took the lead in performance management and disciplinary investigations. The Employer stated that the Maintenance Engineer and Operations Technician Supervisor were paid respectively £50,000 and £36,000 per year.

24) The Employer contended that to include the Shift Team Leaders, Maintenance Engineer and Operations Technician Supervisor in the bargaining unit risked conflict of interest with more junior employees in the bargaining unit. They should not be included, because their characteristics were significantly different to the others forming part of the natural bargaining unit.

4. Discussion and conclusions

25) This hearing has been to decide if the bargaining unit proposed by the Union is appropriate or if it is not, to decide a bargaining unit that is appropriate, in accordance with paragraphs 19(1) - (3) in Schedule A1 to the Act. The hearing is required because the parties have failed to agree the bargaining unit.

26) The Panel has reminded itself that if it decides that the Union’s proposed bargaining unit is appropriate, it may not reject it because it feels a different bargaining unit would be more appropriate or a more desirable or effective unit. Only if the proposed bargaining unit is not appropriate may the Panel consider a different unit.

27) The Union’s proposed bargaining unit, reflecting the modification agreed during the hearing and recorded at paragraph 6 above, is

“All workers, excluding Senior Managers and the Management Administrative Team, at Parc Adfer Operations Limited Deeside site [address omitted]”.

28) The Employer challenges the appropriateness of the Union’s proposed bargaining unit. It contends that the roles of Shift Team Leader, Maintenance Engineer and Operations Technician Supervisor should not form part of the unit, in the interests of compatibility with effective management, and effective management is more likely to be achieved if the bargaining unit consists of the 22 employees forming its Operations and Maintenance Team.

29) Paragraph 19B of the Schedule specifies the matters which the Panel must consider when deciding the appropriate bargaining unit. The overriding consideration, by paragraph 19B(2), is effective management, but paragraph 19B(3) sets out five further matters, to be considered only if they do not conflict with the need for the unit to be compatible with effective management. They are:

(a) the views of the Employer and the Union;

(b) existing national and local bargaining arrangements;

(c) the desirability of avoiding small fragmented bargaining units within an undertaking;

(d) 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

(e) The location of workers.

30) By paragraph 19B(4), in taking the Employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the Panel must consider any view the Employer has about any other bargaining unit that it considers would be appropriate.

31) The Employer operates a waste-to-energy plant at Parc Adfer. It is a relatively new site which came into operation in December 2019. It operates 24 hours a day, seven days a week. There are 36 employees at the site, including the Plant Manager, the Operations Manager and Maintenance Manager (who report to the Plant Manager), these being the Senior Managers whom it is agreed should not be part of the bargaining unit. There are three members of the Maintenance Administrative Team, also now agreed not to form part of the bargaining unit, six Shift Team Leaders, one Maintenance Engineer, one Operations Technician Supervisor and 22 operatives and technicians.

32) The Employer is part of a larger group. The Panel did not hear evidence about the group’s other activities and sites. The Employer did not suggest it was inappropriate to have a bargaining unit confined to the site. The Employer told the Panel that pay, terms and conditions of employment were set at group level. The Panel were not told about any existing national bargaining arrangements and there were no local bargaining arrangements.

33) The Panel has noted the parties’ submissions, as summarised above. It has considered the specimen job description for Shift Team Leaders, produced by the Employer. It is very detailed, extending to some 35 bullet-pointed responsibilities. The Panel noted the absence of specific responsibility for disciplinary action, and would expect that if that were a responsibility, it would be stated in such a full document (for example, performance management is mentioned). Whilst, therefore, the Panel accepts that the Shift Team Leaders may undertake performance management and disciplinary investigations, it does not accept that they have power to impose disciplinary sanctions. The Panel notes that the job decsription does not identify Shift Team Leaders as Senior Managers, but refers to them “representing” or “assisting” Senior Managers. It states that they report to the Operations Manager. The summary of the role says this:

“The jobholder is responsible for the safe, compliant (legal, regulatory and environmental aspects) and efficient operation of the plant, managing a shift team, day operations staff and maintenance staff. The jobholder acts as the Plant SAV (HV) and represents Senior Management during out-of-hours operation.”

34) As to the Maintenance Engineer and Operations Technician Supervisor roles, in respect of whom the Employer’s written submissions assert that they also have line management responsibility but without giving any details, the Employer told the Panel that they allocated overtime and “took the lead in” performance management and disciplinary investigations. They are paid, respectively, £50,000 and £36,000 per year (the latter figure, the Panel notes, being within the range of more junior operatives mentioned at paragraph 2.9 of the Employer’s submissions). The Panel did not see a job description for either role.

35) The Panel has concluded that the Union’s proposed bargaining unit, as modified by agreement to exclude the Management Administrative Team, is appropriate and compatible with effective management.

36) The Panel acknowledges that it may be inappropriate for senior management at a site to be part of a bargaining unit for more junior employees. This is particularly so if site senior management will conduct collective bargaining with the Union, where obvious conflicts of interest may arise. In this case, however, pay and terms and conditions of employment are set at group level, and there is no evidence that any collective bargaining is intended to take place with local site management.

37) The Panel finds that the senior management at the Parc Adfer site consists only of the Plant Manager, Operations Manager and Maintenance Manager. The Shift Team Leaders report to them and, the Panel finds, their job title of Team Leader does not suggest they are part of senior management, although this is only a single factor and the emphasis must be on what they do and the characteristics of their role rather than what job title they have. The Panel accepts that the Shift Team Leaders have important safety-critical roles and are responsible for operational running of the plant outside office hours, acting, according to their job description, as representatives of senior management. They have access to confidential information about the operation of the site, but the Panel does not accept that possession of such information creates any conflict of interest making it incompatible with effective management for them to be part of the bargaining unit. They chair operations meetings, but they have no involvement in strategic direction of the site, and the Panel finds that they do not handle disciplinary matters. Looking at the characteristics of the Shift Team Leaders overall, the Panel does not find that their seniority, job duties and responsibilities rendered them so different in nature to the operatives and technicians at the site as to make it ncompatible with effective management for them to form part of the bargaining unit.

38) This is even more so for the Maintenance Engineer and Operations Technician Supervisor, who, the Panel finds, do not have any managerial responsibilities at all.

39) The Panel’s decision, therefore, is that the Union’s proposed bargaining unit, namely all workers at the Employer’s Parc Adfer, Deeside, site excluding Senior Managers and the Management Administrative Team, is appropriate for the purposes of paragraphs 19(2) and (3) in Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992. For the avoidance of doubt, the Panel finds that the Shift Team Leaders, Maintenance Engineer and Operations Technician Supervisor are not Senior Managers and fall within the bargaining unit.

Panel

Mr Stuart Robertson, Chair of the Panel

Ms Mary Canavan

Mr Gerry Veart

12 January 2021

5. Appendix

Names of those who attended the hearing:

For the Union

John Toner - Regional Legal Officer

Brian Troake - Regional Officer

For the Employer

Wayne Robertson - General Counsel, UK

Joanne Galway - HR Director, UK

Jonathan Farebrother - Plant Manager, Parc Adfer

David Cottis - Operations Manager, Parc Adfer