Labour & European Law Review Weekly Issue 489 28 September 2016
The law states that if an employer does not agree a valid request for recognition for collective bargaining purposes from a union, the union can ask the Central Arbitration Committee (CAC) to decide whether the proposed bargaining unit is appropriate. In R (on the application of Lidl Ltd) v CAC and GMB, the High Court held that the union’s proposed bargaining unit was compatible with the need for effective management and therefore was appropriate in nature.
The GMB made a request to be recognised for collective bargaining purposes on behalf of a group of warehouse workers at one of Lidl’s nine distribution centres, in Bridgend. The warehouse workers were described in the application as “warehouse operatives working in the following sections: goods in, goods out and selection”.
The company refused the request, asserting that warehouse operatives were categorised by the company as “category 6 employees” and “category 6 employees” also included store workers and other junior staff. On this basis the request was only covering some “category 6 employees” at one location. The company stressed this meant that the degree of fragmentation was not compatible with effective management and did not seek to avoid small fragmented bargaining units within an undertaking as required by the legislative provisions.
Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 states that a trade union may seek recognition from an employer to conduct collective bargaining on behalf of a group or groups of workers. If the employer refuses the request, then the union may apply to the CAC to decide whether the proposed bargaining unit is appropriate.
When making its decision, the CAC has to take into account the need for the unit to be compatible with effective management and a number of other “matters” as long as they do not conflict with that basic need. These other “matters” include:
- existing national and local bargaining units
- the desirability of avoiding small fragmented bargaining units within an undertaking
- the characteristics of workers falling within the unit
- the location of workers.
The CAC found that each of the nine geographical areas into which the company was divided had their own regional distribution centre, of which Bridgend was one. Each region, in turn, had its own management team which reflected the geographical scope of the union's proposed bargaining unit. There was, therefore, a management structure in place which reflected the geographical scope of the proposed unit.
Secondly, it found although all category 6 workers were on a single pay scale, there were separate allowances for operatives who worked within the M25 and who did night shifts, indicating that Lidl could accommodate additional allowances within its structures and payroll systems.
Thirdly, the company treated warehouse operatives as a distinct group employed under separate contracts, making them easily identifiable. Finally the union’s proposed bargaining unit would be the sole existing bargaining unit in the company and there was no evidence of a demand for recognition elsewhere. Therefore the application was not inconsistent with avoiding small fragmented bargaining units
On this basis the CAC approved the union’s proposed bargaining unit.
High Court decision
The EAT dismissed Lidl’s application for judicial review on the basis that the CAC had misconstrued the legislative provisions in reaching its decision. The grounds of appeal did not disclose that any error had been made by the CAC.