Decision

Bargaining Unit Decision

Updated 4 April 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1288/2022

19 January 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DETERMINATION OF THE BARGAINING UNIT

The Parties:

The National Union of Rail, Maritime and Transport Workers

(RMT)

and

First Transpennine Express (TPE)

1. Introduction

1) National Union of Rail, Maritime and Transport Workers (the Union) submitted an application to the CAC on 15 September 2022 that it should be recognised for collective bargaining by First Transpennine Express (TPE) (the Employer) for a bargaining unit comprising the “TPE control grades consisting of Train Service Controller, Service Delivery Controllers, Customer Experience Managers, and Customer Information Controllers. All of whom sit under the Duty Control Manager”. The location of the bargaining unit was given as “TPE Control in the Network Rail Regional Operating Centre at Ashburys, Manchester”. The CAC gave both parties notice of receipt of the application on 15 September 2022. The Employer submitted a response to the CAC on 20 September 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 Mr Tariq Sadiq, Panel Chair, and, as Members, Mr Sean McIlveen and Ms Stephanie Marston. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) By a decision dated 21 October 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 19 December 2022 and the names of those who attended the hearing are appended to this decision.

4) Both parties provided written submissions prior to the virtual hearing together with supporting documentation The Panel would like to thank the parties for answering the questions raised during the hearing. The information they provided was helpful to the Panel.

5) The Panel is required, by paragraph 19(2) of the Schedule to the Act (the “Schedule”), 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.

2. Matters clarified at the beginning of the hearing

Clarification of the Union’s Proposed Bargaining Unit

6) At the beginning of the hearing the Panel Chair asked for clarification as to the Union’s proposed bargaining unit. The Union stated that the bargaining unit for which it was seeking recognition consisted of the following job roles, which were located at the TPE Control in the Network Rail Regional Operating Centre at Ashburys, Manchester: Customer Information Controller – (6), Customer Experience Manager – (6), and Service Delivery Controller - (18).

7) The Union confirmed that the bargaining unit it was now proposing excluded Train Service Controllers as these roles did not exist in the bargaining unit it had originally proposed. It was now seeking recognition for a bargaining unit comprising Customer Information Controllers, Customer Experience Managers and Service Delivery Controllers.

8) The Employer sought clarification as to the Union’s definition of Customer Experience Manger as there was only a Duty Customer Experience Manager. After deliberation it was agreed by the parties that this particular post should be referred to as Duty Customer Experience Managers. The Panel Chair once again confirmed that the bargaining unit now proposed by the Union was Customer Information Controllers, Duty Customer Experience Managers and Service Delivery Controllers.

9) The Panel was satisfied that this was a clarification of the proposed bargaining unit rather than a change of the proposed bargaining unit and that the Union’s proposed bargaining unit was therefore defined as, “Customer Information Controllers, Duty Customer Experience Managers and Service Delivery Controllers.”

3. Summary of the submissions made by the Union

10) By way of background the Union explained that it proposed a succinct and coherent proposed bargaining unit comprising a discrete group of workers who shared common characteristics, terms, conditions and methods of working. The workers had similarity in skills, interests, duties and working conditions. The controllers were a defined group of workers working as team of experienced staff with defined duties and responsibilities. All of the workers in the roles in the Union’s proposed bargaining unit have similar working patterns in that they our all rostered on the same shifts. The Union’s proposed bargaining unit avoided small, fragmented bargaining units and was compatible with effective management. The Union had enclosed three job descriptions with its submissions that showed a similarity across duties, and how the workers clearly worked as a team. The Union confirmed that no other staff directly reported to the workers in its proposed bargaining unit. The Union confirmed that workers in the proposed bargaining unit had the same contracts of employment and were contracted to a 42-hour week and that it could provide copies of the contracts if necessary.

11) The Union explained that the Controllers were a self-contained group of workers, numbering 30 in total (18 Service Delivery Controllers, 6 Duty Customer Experience Managers and 6 Customer Information Controllers). These workers currently had management structures that the establishment of collective bargaining would in no way inhibit or change the current managerial processes. The Union stated that previously management had raised objection that workers in the proposed bargaining unit reported to two different managers for day to day operational and functioning. This did not affect the effectiveness of its proposed bargaining unit. The existing CBA with the Employer covered many grades that reported through several different senior managers, so this objection was without any merit. A copy of this agreement was submitted to the CAC.

12) The Union stated that neither the Customer Service & Operations Director nor the Fleet, Safety & Service Delivery Director have the authority or responsibility to negotiate and decide hours and holidays. The application and adherence to any agreement would be an HR function and would not involve individual directors as specified. The Union also noted that there was already a management structure in place that reflected the geographical and operational scope of its proposed bargaining unit. The Union confirmed all posts were situated within the same building in Manchester at the Network Rail Operating Centre at Ashburys in Manchester. The matters appertaining to their terms and conditions of the workers in the proposed bargaining unit derived from the one HR department, also based in Manchester.

13) The Union’s proposed bargaining unit would mean that the Employer would negotiate within one forum. The Union also stated that it was amenable to the proposed bargaining unit slotting into its existing bargaining agreement that covered all other grades. The Union accept that a separate bargaining unit as proposed would not conflict with the bargaining arrangements in place for other groups.

14) The Union also confirmed that the hearing could have been avoided, it had made attempts to communicate with the Employer via an Acas conciliator, but no calls had been returned, therefore no face-to-face meetings had occurred prior to the hearing.

15) The Union clarified it was applying for recognition of the three grades that sit under the duty control manager for whom it currently was not claiming any recognition for, or indeed any other grades that had been mentioned so far. The Union confirmed it had made an application for a simplified business unit that was completely coherent, the proposed bargaining unit team all sat on computer desks, all next to each other in one part of the building. The Union stated it did not matter about their reporting lines and whom they reported to, because these workers were a coherent unit who carried out similar roles and tasks, as per their job descriptions which had been supplied by the Union in its submission.

16) The Union further commented on the Employers submission that the staff in the proposed bargaining unit were seeking trade union recognition, these workers wanted the same basic rights as the rest of the staff in TPE, staff such as non-senior management and other controllers that sit alongside them in the same building. The Union again confirmed that its proposed bargaining unit was a simplified unit, that workers reporting to different people was not unique within the collective bargaining agreements that it had with TPE. The Union explained other examples of numerous grades which carried out supervisory and semi managerial tasks, such as station grades of which there were nine different grades that sit within stations all of whom were covered by CBA and Company Counsel. The Panel Chair asked the Union to confirm which grades these workers were. The Union confirmed to the Panel that the Station Manager and Railway Supervisors were all management grades and were all covered by the CBA.

17) The Union raised the issue of the Revenue Protection Assistants (RPAs) who worked on the stations and were gate-line staff. These grades were created some years ago and originally were outside of the CBA and it was agreed between The Union and TPE to bring these grades into the CBA. The Union said that the key point here was that the RPA were bought into the CBA from outside. The Union explained that the HR Department dealt with all industrial relations issues across the company.

18) Finally, the Union believed that its proposal was consistent with the object set out in paragraph 171 of the Schedule.

4. Summary of the submissions made by the Employer

19) The Employer noted that the Union now proposed a bargaining unit which comprised of only three roles; Service Delivery Controllers; Duty Customer Experience Managers; and Customer Information controllers. The Employer stated these roles fell within separate departments and contained employees that fell into two separate reporting structures within the organisation. The Employer explained the following:

• Service Delivery Controllers fell under the “Control & Resources” structure and this role sat beneath the Duty Control Manager who reported into the Service Delivery Team, which was a team headed up by the Fleet, Safety & Service Delivery Director. The Employer continued to state that the Service Delivery Controllers were responsible for maintaining and managing the train service. They responded to major incidents such as fatalities on the network and control and redirect and trains to minimise disruption. The role was a technical, safety critical role which was highly skilled.

• Customer Information Controllers and Duty Customer Experience Managers fell under the “Customer Experience” structure. These two roles did not sit under the Duty Control Manager as alleged by the Union but ultimately reported to the Customer Service & Operations Director. As inferred by the name of these roles, they were customer facing and were responsible for managing and communicating the impact of the train service to customers. They were not a safety critical function. The Employer confirmed that the “scope of the job” varied significantly between all three roles, however it was clear that Service Delivery Managers were focused on incident response, fleet management and engaging and monitoring replacement transport. Compared with the customer experience facing scope of the Customer Information Controllers and Duty Customer Experience Manager, with the manager role including additional responsibilities.

20) The Employer stated that the Union had previously stated that it was not concerned about the reporting lines to individual senior managers as these could and often did change with regular company reorganisations. The Employer confirmed whilst it was accepted that there may be personnel changes within the different structures, the reporting lines had remained unchanged.

21) The Employer explained that a Service Delivery Controller were a very different role compared with the Customer Information Controller and Duty Customer Experience Manager roles. Due to the technical nature of the Service Delivery Controller role, employees were required to undertake specific medical examinations to ensure they were fit to perform duty. The Service Delivery Controllers had no direct contact with customers and their role focused solely on the operation and performance of the train service. In short; these roles were completely different and there was no overlap of duties. The Employer explained that the roles operated within separate departments, separate workstreams and had separate management. The Employer highlighted that it would not be appropriate to artificially combine these roles to form a bargaining unit as it was not compatible with effective management. The Employer then conceded that the job descriptions disclosed by the Union were the correct job descriptions for the workers concerned. Based on these job descriptions, the Employer accepted that there were some similarities in the roles but contended that the role of Service Delivery Controllers was fundamentally different to the roles of Customer Experience Managers and Customer Information Controllers.

22) The Employer confirmed that whilst Customer Information Controller and Duty Customer Experience Manager roles both fell under the same “Customer Experience” structure, it would not be appropriate for them to be included in the same bargaining unit. The Duty Customer Experience Managers were a level of management above Customer Information Controllers and carried out line management duties for Customer Information Controllers roles. These Duty Customer Experience Managers were ‘management’ level roles that had authority to discipline and dismiss Customer Information Controllers. In addition to the above, Duty Customer Experience Managers had control over the Customer Information Controllers’ roster arrangements, annual leave, and also managed any sickness absence or performance issues. The Employer reiterated that given the level of authority that they had, this would be a conflict of interest as it would put members of the same bargaining unit ‘across the table’ from each other in such situations. And that this would also create a conflict as between managerial responsibility and union loyalty.

23) The Employer submitted that, as demonstrated in the Customer Experience organisation chart provided, this was a large team with a complex structure. The Customer Information Controllers worked closely alongside a number of similar roles and none of the roles within the Customer Experience organisation chart had recognition. The Employer stated it was unclear why the Union had chosen to include only Customer Information Controller and Duty Customer Experience Manager roles within its proposed bargaining unit, but explicitly excluded similar roles, including social media advisers and Customer Information Assistants. The Employer explained that similar roles shared the same grading and pay structures, the same core terms and conditions, policies and processes, worked in similar functions and all reported to the same Director. By having collective bargaining arrangements in place for some but not all of these similar roles would be wholly incompatible with effective management.

24) The Employer confirmed that, in addition to its concerns with the Union’s proposed bargaining unit already stated, an overarching concern was that recognition over this grouping would mean that it’s clear reporting lines, authority levels and channels of communication would be eroded, as the Service Delivery Controllers and the Customer Experience Managers/Customer Information Controllers worked in completely different teams. They also reported to two different Directors and had different budget allocation and carry out completely different roles. The Customer Experience teams dealt with front of house issues, such as responding to issues effecting day to day service to its customers whereas the Service Delivery Controllers dealt with the back-office issues, such as ensuring that overall train operational performance requirements were addressed. This Employer stated this would make it extremely difficult to effectively manage their group, or for the Union to collectively bargain over their rights, existing national and local bargaining arrangements.

25) Finally, the Employer further stated that the Union currently had recognition and collective bargaining rights for Stations Grades (employees working in the booking offices selling tickets, on the platforms and working on the barriers) and Conductor Grades (Conductors on the trains checking & selling tickets). Another trade union, ASLEF, currently had recognition and collective bargaining rights for Driver Grades (Train Drivers). The Employer confirmed that there was no existing recognition arrangements in the Control & Resources organisational chart where the Service Delivery Controllers operated, or in the Customer Experience organisational chart where the Customer Information Controllers and Customer Experience Managers operated.

Bargaining Unit sought by the Employer

26) The Employer considered an appropriate bargaining unit would consist of Service Delivery Controllers only. The Employer explained this was the largest group of employees within the proposed bargaining unit and sat independently under the “Control & Resources”. Due to the nature of the technical and specialised work this group undertook, it would not be appropriate to group them together with the two other “Customer Experience” roles identified. The differences between the Customer Experience roles and the Service Delivery Controllers role were substantial which would make negotiating both groups rights collectively extremely difficult.

27) The Employer reconfirmed that it was not appropriate for Customer Information Controller and Duty Customer Experience Managers to be within the same bargaining unit as the Duty Customer Experience Managers had some managerial responsibility over the Customer Information Controllers. The Employer stated that the Union had also excluded similar roles within this structure which would create division and difficulty in terms of managing roles that work interchangeably. The Employer believed this would lead to inefficiencies in terms of management time and resources of establishing and running two separate sets of employment processes and policies. The Employer stated that these problems did not arise with Service Delivery Controllers as they were a distinct grouping and did not have any roles which were interchangeable and connected. Therefore, a bargaining unit comprising of solely the Service Delivery Controllers would be compatible with effective management as it did not seek to draw artificial lines between employees of the same grade who had been rated as equal value and who shared a common set of terms, conditions, practices and processes.

28) The Employer summarised that the bargaining unit now proposed by the Union was clearly not compatible with effective management and, as alluded to by the Union in these proceedings, had been proposed because it would potentially satisfy the requirements to achieve statutory recognition. On the other hand, the bargaining unit proposed by the Employer was properly thought out, objectively assessed and was appropriate.

5. Considerations

29) The Panel is required, by paragraph 19(2) of the Schedule 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.

30) 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.” The Panel’s decision has been taken after a full and detailed consideration of the views of both the Union and the Employer as expressed in their written submissions and as amplified orally during the course of the virtual 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.

31) As stated above, the Panel’s first task is to decide, in accordance with 19(2) of the Schedule, whether the Union’s clarified proposed bargaining unit is appropriate. This is the overriding requirement under 19B(2) and relates principally to the matters to be collectively bargained for under the statutory regime namely pay, hours and holidays. The requirement is that the proposed parking unit would be compatible with effective management, not that it be compatible with the most effective management – see R v Central Arbitration Committee and another exparte Kwik-Fit (GB0 Ltd [2022] IRLR 395, CA. The Panel cannot reject the bargaining unit put forward by the Union simply because it forms the view that there is a more appropriate bargaining unit, nor is it the Panel’s task to determine the most effective or desirable unit given the particular circumstances of the case.

32) The Panel finds in the circumstances that the bargaining unit proposed by the Union is compatible with effective management. The Panel’s reasons are as follows:

33) First, the roles in the Union’s proposed bargaining unit are all situated in one location, that is, at the Network Rail Operating Centre at Asbury’s in Manchester.

34) Second, all of the workers in the roles in the Union’s proposed bargaining unit our subject to the same contracts of employment.

35) Third, all of the workers in the roles in the Union’s proposed bargaining unit are on the same contracts of employment and are contracted to work on a 42-hour week.

36) Fourth, all of the workers in the roles in the Union’s proposed bargaining unit have similar working patterns in that they our all rostered on the same shifts.

37) Fifth, the Employer’s HR function not the directors and managers have responsibility for negotiating the terms and conditions of staff in the Union’s proposed bargaining unit.

38) Sixth, although the role of Service Delivery Controller is different to the roles of Customer Information Controller and Duty Customer Experience Manager, it is the Panel’s view this is not a sufficient reason by itself to find that the Union’s proposed bargaining unit is not compatible with effective management:

(a) As stated above, the requirement is that the proposed bargaining unit should be compatible with effective management, not compatible with the most effective management;

(b) Further, the Panel accepts the Union’s evidence, which was not seriously contested by the Employer, is that there are different roles and grades of staff who are included in an existing Collective Bargaining Agreement (CBA). The workers in these different roles and grades also report to different managers, as here;

(c) The Panel is also aware of examples both in the private and public sector. where different types of workers are included in the same bargaining unit, which is not incompatible with effective management.

39) The Panel was also not satisfied that including Duty Customer Experience Managers with Customer Information Controllers in the same bargaining unit would be incompatible with effective management for the following reasons:

(a) There is insufficient evidence in support of the Customer Experience Managers alleged line management responsibilities over the Customer Information Controllers. They were not referred to in the relevant line management structure or the relevant job descriptions before the Panel at Paragraph 27 by the Employer;

(b) Further, these roles were similar and were included in the same management structure.

40) The Panel also considered the matters listed in paragraph 19B(3) of the Schedule, so far as they do not conflict with the need for the bargaining unit to be compatible with effective management.

41) The views of the Employer and the Union, as summarised above, have been fully considered by the Panel.

42) In relation to existing national and local bargaining arrangements, there are no bargaining arrangements of either description in this case.

43) Regarding the desirability of avoiding small, fragmented bargaining units within an undertaking, this relates specifically to fragmentation of collective bargaining, not fragmentation between bodily units all fragmented collective bargaining. At [36] of Lidle Ltd & CAC v GMB [2017] IRLR 646, CA, Underhill LJ said:

“The policy expressed by head (c) is evidently that, other things being equal, where a group of employees can appropriately be bargained for by single trade union in a single bargaining unit it is desirable that they should be. It is thus concerned specifically with fragmentation of collective bargaining.” [Panel’s underlining].

44) Regarding fragmentation, the Panel finds:

(a) Fragmentation was not expressly referred to in the Employer’s statement;

(b) On the evidence available, the Union’s proposed bargaining unit is neither small Nor fragmented;

(c) The outcome of other groups of workers seeking to gain recognition for their own bargaining unit, cannot be predicted by the Panel. None was suggested by the Employer in any event, and

(d) The Union’s proposed bargaining unit presents the Employer with the opportunity to consolidate rather than fragment by incorporating all of the roles in the proposed bargaining unit.

45) As regards the characteristics of workers, although the Panel recognises that the proposed bargaining unit consists of workers with different job roles, that is the Service Delivery Controllers vis a vis the roles of Customer Information Controllers and Duty Customer Experience Managers, the characteristics of the workers is only one factor which the Panel has to consider, and it is not the determining factor. For the reasons given above, the Panel finds that the Union’s proposed bargaining unit is not incompatible with effective management.

46) For all these reasons, the Panel is satisfied that the bargaining unit proposed by the Union is compatible with effective management taking account of the views of the parties, the characteristics of the workforce and the desire to avoid fragmentation. The Panel is also satisfied that the requirements of paragraph 171 of the Schedule are met in this case.

6. Decision

47) The Panel’s decision is that the appropriate bargaining unit is that clarified by the Union, namely: “Customer Information Controllers, Duty Customer Experience Managers and Service Delivery Controllers.”

Panel

Mr Tariq Sadiq, Panel Chair

Ms Stephanie Marston

Mr Sean McIlveen

19 January 2023.

7. Appendix

Names of those who attended the hearing

For the Union

John Tilley - RMT Regional Organiser

Alan Pottage - Head of RMT Organising Unit

For the Employer

Craig Keating - Employees Relations Manager

Nicola Buckley - Human Resources Director

Stephen Chegwin - Principal Associate