R (Kwik-Fit (GB) Ltd) v Central Arbitration Committee
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE ELIAS |
| Judgment Date | 08 February 2002 |
| Neutral Citation | [2002] EWHC 277 (Admin) |
| Docket Number | No CO/388/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 February 2002 |
[2002] EWHC 277 (Admin)
Mr Justice Elias
No CO/388/2002
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
The Strand
MR JOHN BOWERS QC and MR JEREMY LEWIS (Instructed by Halliwell Landau of Manchester) appeared on behalf of the Claimant
MR DAVID BEAN QC and MR THOMAS LINDEN (Instructed by Treasury Solicitor) appeared on behalf of the Defendant.
MISS HELEN MOUNTFIELD (Instructed by Pattinson & Brewer of London) appeared on behalf of the Interested Party.
Kwik-fit GB is a company operating throughout Great Britain. It specialises in the replacement of tyres, brakes and exhausts on cars. It is part of the Kwik-Fit Group, which is a wholly owned subsidiary of the Ford Motor company. It apparently has some 646 centres in Great Britain of which 110 are located in London (ie within the M25 boundary).
The TGWU has been for some two years actively seeking to organise and recruit Kwik-Fit employees in the London area. It has on a number of occasions represented employees in disciplinary and grievance procedures in that region. On 5 October 2001 it submitted an application for recognition by Kwik-Fit in relation to the company's London employees, pursuant to Part 1 of Schedule A1 to the Trade Union Labour Relations (Consolidation) Act 1992. The Central Arbitration Committee (“CAC”) held a hearing into that application on 18 December at which there was a wide ranging discussion between representatives of both parties as to the appropriate bargaining unit. The CAC also received written observations in advance of that hearing, and various company documents.
Subsequently, on 20 December 2001, the CAC determined that the bargaining unit proposed by the TGWU, namely the two London divisions, was indeed the appropriate bargaining unit. Under the relevant legislation that means that if there is the requisite approval in a ballot of the workers in the relevant unit, the company will be obliged to recognise the union for collective bargaining purposes in respect of wages, hours and holidays.
Kwik-Fit now seeks to challenge that determination of the CAC. It has initiated proceedings for judicial review. I granted permission for the application to be made on 29 January. There was some urgency about the application because it was proposed to send out the relevant ballot papers on 18 February. In order not to lose this timetable in the event that the application was unsuccessful, and because there was very little further evidence that needed to be lodged, the parties agreed that there should be a very truncated timetable for exchanging any additional evidence and it has been possible for the substantive hearing to be heard within a week of permission being granted. The TGWU is an interested party and has been separately, and ably, represented by Ms Mountfield.
The legislative context
It is necessary to set out the statutory background against which this application is made. The legislation was introduced by theEmployment Relations Act 1999 which created a new schedule—Schedule A1—to the Trade Union and Labour Relations (Consolidation) Act 1992. The schedule deals with recognition and subsequent variations as well as de-recognition. Recognition itself is regulated by Part 1 of the schedule. The provisions are exceptionally detailed; Mr Bean QC for the CAC accurately described them as being of “byzantine complexity”. I will not begin to seek to deal with all the permutations envisaged by the statue but will merely outline the basic structure so that the issues in this case can be placed in context.
The purpose of the legislation is to enable a trade union which is refused recognition by an employer to use the legal process to require the employer to enter into collective bargaining. Recognition means that the union should be “entitled to conduct collective bargaining on behalf of a group or workers” (paragraph 1). Collective bargaining, in turn, is defined as “negotiations relating to pay, hours and holidays”, unless the parties agree to a broader range of matters (paragraph 3).
The process commences with the trade union making a request for recognition from the employer. Certain conditions must be met if the request is to be treated as valid within the terms of the legislation. For example, it must be in writing, be made by an independent trade union and identify the proposed bargaining unit. In addition, the employer (together with any associated employer) must employ at least 21 workers (paragraphs 4 to 9).
The employer is given 10 working days to agree the request. If the request is accepted that is the end of the matter. If it is rejected or there is no response, then the union applies for recognition. This is made pursuant to paragraph 11 (2), an important provision in this case which I set out below. (There is a variation of the procedure where the employer agrees to negotiate about the proposed recognition but those negotiations fail to bear fruit).
The second stage is the acceptance or otherwise of the application. The CAC must decide two questions in order to determine whether the application can be accepted. First, it must be satisfied that the original request was valid in the way I have described above. Second, it must decide whether it is admissible within the meaning of paragraphs 33 to 42 (paragraph 15). The most important criterion of admissibility is that members of the union must constitute at least 10 per cent of the workers in the proposed bargaining unit, and that the CAC must be satisfied that a majority of the workers would be likely to favour recognition (paragraph 36).
The third stage is the determination of the bargaining unit. (That, of course, is the principal issue in this case.) In accordance with the general philosophy that voluntarism is preferable to legal regulation, the CAC must try to help the parties reach agreement as to the relevant bargaining unit. But if that is unsuccessful, then the CAC itself must determine the bargaining unit (paragraph 19 (2)). Paragraphs 19 (3) and (4) set out criteria which must be taken into account in the course of that process. I consider them in more detail below.
Once the CAC has determined the bargaining unit, the fourth stage depends on the outcome of that decision. If the bargaining unit determined is the same as that proposed by the union, then a ballot may have to be held. In general, a ballot will not be required if the union has a majority of the workers in the bargaining unit as members (although even then a ballot may be required if, broadly, there are doubts as to whether the majority does want the union to be recognised, or if good industrial relations makes this desirable) (paragraph 22). Otherwise a ballot will be necessary. Where no ballot is required, the CAC simply declares that the union is recognised and entitled to conduct collective bargaining.
The position is more complex if the stipulated bargaining unit is not that proposed by the union. The CAC must then decide whether the application is invalid within the meaning of paragraphs 43 to 50 (paragraph 20). The most significant feature here is that the CAC must be satisfied in respect of the stipulated bargaining unit that the 10 per cent criterion and that relating to the likelihood of majority support are met. If not, the application will at that stage be treated as invalid. If it is valid, then the issue as to whether a ballot is required is determined in the same manner as I have outlined above.
Where a ballot is required it will be carried out by a qualified independent person appointed by the CAC. The employer must co-operate in the process and permit the union to have access to the workers. The CAC must make a declaration of recognition if the result is favourable; this requires both that those who vote in favour constitute a majority of those voting; and that they constitute at least 40 per cent of the workers constituting the bargaining unit (paragraph 29 (2)).
If the vote is against then the CAC must declare that the union is not entitled to recognition. Essentially it cannot re-apply for recognition in respect of that group of workers (or a substantially similar group) for three years (paragraph 40).
The consequences of the declaration in favour of recognition are that the employer is obliged to recognise the union in respect of the relevant bargaining unit. In the absence of agreement between the parties, the CAC will be required to stipulate the method by which collective bargaining can be carried out (paragraphs 30 and 31). The ultimate, and only, sanction for failure to comply is specific performance (paragraph 31 (6)).
The determination of the CAC
The fundamental question is whether the CAC properly approached its determination of the appropriate bargaining unit. The CAC gave reasons for its determination, as it habitually does. (Surprisingly, there is no statutory duty to do so in relation to this decision, unlike the decision on admissibility where reasons must be given: see paragraph 36 (3)).
After setting out the background, the CAC summarised the union and the employer's cases in the following terms:
“Summary of the Union case
7. The Union argued that the two London Divisions were distinct in employment terms from the rest of the Company. There was a London weighting allowance and had, until recently, operated a particular pattern of hours of work. The Union contended that the London Divisions had an identifiable management structure and that final decisions on matters of discipline and dismissal were taken by Divisional Directors alone without formal reference to the Company Head...
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