Decision

Access Decision

Updated 10 December 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1211(2021)

12 October 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION ACCESS ARRANGEMENTS FOR BALLOT

The Parties:

United Road Transport Union

and

Eddie Stobart Limited

1. Introduction

1) United Road Transport Union (URTU) (the Union) submitted an application to the CAC dated 22 February 2021 that it should be recognised for collective bargaining by Eddie Stobart Limited (the Employer) for a bargaining unit comprising “Core worker warehouse operatives up to (but not including) the level of supervisor” and the location was given as Eddie Stobart DC420, Kilsby, Rugby CV23 8YL. The application was received by the CAC on 25 February 2021. The CAC gave both parties notice of receipt of the application on 26 February 2021. The Employer submitted a response to the CAC dated 3 March 2021 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 Professor Kenny Miller, Panel Chair, and, as Members, Mr Tom Keeney and Ms Fiona Wilson. The Case Manager appointed to support the Panel was Linda Lehan.

3) By a decision dated 26 March 2021 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 a hearing to determine the issue was held via the Zoom platform on 16 June 2021. The Panel determined that the appropriate bargaining unit was that proposed by the Union being “Core worker warehouse operatives up to (but not including) the level of supervisor”. As the determined bargaining unit was the same as that proposed by the Union in its application, the Panel moved to the next stage in the statutory process.

4) On 21 July 2021 the Panel, not being satisfied that a majority of the workers constituting the bargaining unit were members of the Union, gave notice in accordance with paragraph 23(2) of Schedule A1 to the Act (the Schedule) that a secret ballot would be held. The Panel also advised the Parties that it would wait until the end of the notification period of ten working days, as specified in paragraph 24(5) of the Schedule, before arranging a secret ballot. The Parties were asked for their views on the form the ballot and were notified that it was important for the parties to agree access arrangements at the earliest possible opportunity as the Panel considered that it should ensure these arrangements are in place before initiating the ballot process.

5) The notification period under paragraph 24(5) of the Schedule ended on 4 August 2021. The CAC was not notified by the Union or by both parties jointly that they did not want the ballot to be held, as envisaged by paragraph 24(2). Both parties requested a postal ballot which the Panel decided would be the form of ballot and this was communicated in a letter to the parties dated 4 August 2021.

6) The Union, by an email dated 1 September 2021, informed the CAC that access could not be agreed between the parties and asked that the criteria for access to the DC420 site be determined by the CAC and the Employer’s comments were invited. Paragraph 22 of the Code of Practice on Access to Workers During Recognition and Derecognition Ballots (the Access Code) envisages that where the parties fail to reach an agreement on access, the CAC may be asked to assist.

2. The Issue

7) The Union, in an email to the CAC dated 3 September, stated that the point of contention related to a request for site access for a delegation of up to three persons on two separate occasions to cover all shifts in successive weeks. The Employer had responded with an offer of video access only, citing concerns regarding the potential spread of coronavirus for its decision.

8) The Union stated that any delegation would adhere to strict protocols in terms of wearing a mask, sanitising and undertaking tests.

9) The Union remained firm in its contention that the opportunity for one-to-one meetings should not be denied to the workers. This, the Union put forward, was due to the unfamiliarity that many of the workers would have with the arguments surrounding collective bargaining, combined with, the challenges presented by a workforce whom for many, English was not their first language.

10) The Employer in a letter dated 8 September 2021 stated that it had carefully considered the Union’s request for face to face meetings, but it was not able to accommodate on-site access, primarily on health and safety grounds.

11) The Employer referred to the legal position stating that the Government’s COVID guidance continued to say that it still expected “…everyone to act carefully and remain cautious” and therefore had kept in place “key protections [including]…cautious guidance for… businesses [which includes]… minimising the number, proximity and duration of social contacts”. The applicable “…cautious guidance for… businesses” (Working Safely During Coronavirus) confirmed “Putting in place measures to reduce contact between people… measures could include… reducing the number of people each person has contact with… so each person works with only a few others… Maintaining regular cleaning of surfaces, particularly surfaces that people touch regularly”. Further, and most importantly, the Government reinforced the fact that:

• “Employers still have a legal duty to manage risks to those affected by their business [and should] carry out a health and safety risk assessment, including the risk of COVID-19, and take reasonable steps to mitigate the risks [identified]”;

• “As an employer, you must by law protect workers and others from risks to their health and safety. This includes risks from COVID-19” ;

• “COVID-19 is a workplace hazard. You must manage it in the same way as other workplace hazards. This includes: completing a suitable and sufficient assessment of the risks of COVID19 in the workplace [and] identifying control measures to manage that risk”;

• “Failure to carry out a suitable and sufficient risk assessment and put in place sufficient control measures to manage the risk may be considered a breach of health and safety law”.

12) The Employer stated that it had conducted a site-specific risk assessment and concluded that it was necessary to restrict access to the site; and in the circumstances face masks, social distancing and testing were insufficient to control the risks identified. The Employer advised that control measures even went as far as refusing access to customers and not permitting more than two people to share any meeting room on site.

13) The Employer stated that the COVID rate where the site was situated remained significant, and the rates in neighbouring areas which the site very closely bordered were extremely high. Accordingly, the Employer felt it was very unlikely that the control measures were going to be eased any time soon (and, in fact, another local warehouse had even tighter control measures to reflect its individual circumstances).

14) The Employer felt that if virtual meetings were to take place the presenter and the attendees could all be seen on video-conferencing in the same way that they could be seen when in person and slide shows and documents could be displayed. Additionally, video-conferencing brings additional benefits in that it will allow people who are not at work to attend (and potentially to attend multiple meetings). It also had other functionality like the ability to ask questions in writing.

15) The Employer considered that collective bargaining was not that difficult a concept and was certainly capable of being explained in easy terms and in simple English. It was the language used to communicate that was important, and not the platform. The Employer said that the Union would be able to share slides on video-conferencing if it would assist with its messaging and send documents and letters ahead of any video-conference via the QIP.

16) If the Union required more time to facilitate the delivery of its message, the Employer would be willing to increase the time allocation for the meetings from 30 minutes each to 1 hour each. Further, the Union also had the option, at its own cost, to have any documents translated into a different language.

17) The Employer confirmed that, in principal (and subject to confirmation of their identity), it would permit three representatives to attend the video-conferencing meeting. The Employer also maintained that the Union could hold three meetings in paid time, rather than the two requested and provided for under the Code of Practice, as a minimum.

18) As it appeared these issues could not be resolved voluntarily, the Panel Chair offered the parties an informal meeting which took place via the zoom platform on 27 September 2021. The parties were still unable to come to an agreement over whether the access meetings should be in person or virtual and asked that the CAC determine the matter. Both parties confirmed that they would abide by the decision of the CAC.

3. Considerations

19) The Panel has taken into account the circumstances surrounding the issue of how access should take place and whether this should be in person or virtually. The Panel is sympathetic of the very unusual circumstances we currently face due to the COVID pandemic. Having considered the alternative proposals put forward by the parties, the Panel is of the view that the main priority at this moment in time should be the safety of the workers on the site in question. The Panel notes the steps put in place by the Employer to maintain the health and safety of its workers and it did not feel that it was appropriate to undermine any of these measures. They noted that the measures and assurances offered by the Employer to provide virtual access to employees appeared appropriate under the circumstances.

4. Decision

20) The Panel is of the view that under the present circumstances caused by the COVID pandemic, the Union’s access meetings should be held by virtual means. In order to facilitate these meetings the Panel will require the Employer to allocate workers in the bargaining unit to one of the sessions and then each individual worker will have the choice of whether to attend.

Panel

Professor Kenneth Miller (Panel Chair)

Mr Tom Keeney

Ms Fiona Wilson

12 October 2021