Decision

Bargaining Unit Decision

Updated 9 June 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1246/2021

08 June 2022

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

Marlow Foods Limited (t/a Quorn Foods)

1. Introduction

1) Unite the Union (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 17 December 2021 that it should be recognised for collective bargaining purposes by Marlow Foods Limited (t/a Quorn Foods) (the Employer) in respect of a bargaining unit comprising “All employees within the BF1 Plant.” The location of the bargaining unit was given as “BF1 Plant, Belasis Site.” The application was received by the CAC on 17 December 2021 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 24 December 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 Chairman established a Panel to deal with the case. The Panel consisted of Ms Naeema Choudry, Panel Chair, and, as Members, Ms Joanna Brown and William O’Shaughnessy. The Case Manager appointed to support the Panel was Kate Norgate.

3) By a decision dated 16 February 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 4 May 2022 and the names of those who attended the hearing are appended to this decision.

2. Issues for consideration by the Panel

4) The Panel is required, by paragraph 19(2) of Schedule A1 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. 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. 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.”

5) The views of each party relating to the provisions as set out in paragraph 4 above as expressed to the Panel in their written and oral submissions are summarised below.

3. Matters clarified at the beginning of the hearing

6) The Union stated that the bargaining unit for which it was seeking recognition consisted of the following job roles, which were located at the BF1 Plant:

• GO – General Operators (16)

• MT – Manufacturing Technicians (16)

• EMT – Engineering Manufacturing Technicians (8)

• LMT/SL – Lead Manufacturing Technician/Shift Leader (4)

• QA – Quality Assurance (4)

7) During the hearing the Employer confirmed that there was no dispute between the parties concerning the inclusion of the GO, MT, and EMT roles. The Employer also confirmed that the only two roles which remained in dispute were that of the LMT/SL and QA.

4. Summary of the submissions made by the Union

8) By way of background the Union explained that in 2019 it had approached the Employer with regard to voluntary recognition at the BF1 Plant, which consisted of 20 employees at that time. However, before the agreement was finalised Unite’s Regional Officer went on maternity leave for a year and the Agreement was not concluded in their absence. Upon the Regional Officer’s return to work from maternity leave they attempted to resolve the outstanding issues but were informed that the Employer no longer wished to engage with Unite on a Recognition Agreement. The Union had since “mapped the workplace” and increased its union membership. The Union subsequently made a formal request for recognition. In response to a point made by the Union concerning the inclusion of agency workers the Union clarified that at no point had it included agency workers within the information that the Union had submitted at the acceptance stage, nor had it sought to include any agency workers during its campaign for recognition.

9) The Union stated that it currently had an existing Recognition Agreement for the Fermentation Group on the Belasis Site, Quorn Foods in Billingham, and the Stokesley Food Manufacturing Site, Quorn Foods in Middlesbrough. It was the Union’s view that there was good industrial relations at both sites.

LMT/SL role

10) The Union said that there was a discrepancy between what the Employer had claimed was the scope of the LMT/SL role, against that of its members within the role, based on the level of training they had received.  The Union argued that they were not decision makers, but more of a team leader who ran the line alongside the shift, who considered themselves part of the team. In response to the Employer’s claim that they were carrying out first line disciplinaries, sickness absence reviews, and Performance Development Reviews (PDRs), the Union said that PDRs were carried out last year but with very little training. The Union said that, should it be necessary, the LMT/SL workers had offered to speak to the Panel to explain their day to day role.

11) The Union believed that there had been a recent change to a job title for the role of an LMT. In February 2022, a job was advertised for an LMT in which it stated, “no line management responsibility”. In March 2022, the same role was re-advertised as an SL, which was a new title and within which the line concerning ‘management responsibility’ had been removed. The Union attached copies of both documents to its written submissions.

12) The Union stated that all of the workers within the proposed bargaining unit were located on the BF1 Plant at the Belasis Site. The Union maintained that it wished to avoid small fragmented bargaining units. The role of the LMT/SL consisted of only four workers in number and therefore the Union did not consider that those workers should be in a separate bargaining unit. The Union said that all senior managers were excluded.

QA role

13) The Union did however explain that following a recent meeting with the Employer on 17 March 2022 it had informed the Employer that both the Union and QA members did not mind whether the QA role was aligned to the original Fermentation bargaining agreement or to the proposed bargaining unit, but emphasised that there was no reason as why it should not form part of the proposed bargaining unit simply because the Employer now deemed them to be a central function role The Union also said that during the meeting, the Employer had suggested that in the near future it may consider a cross over of employees, moving from the BF1 Plant to the Stokesley Plant, with the Employer suggesting that this would confuse who was being collectively bargained for at the time of a pay offer being negotiated for BF1 the bargaining unit.

14) Finally, the Union said that it had reached out to the Employer on 8 April 2022 to try and seek some common ground in which to agree a bargaining unit, but it had received no response. In response to a further point made by the Employer, the Union emphasised that there was no material difference as to whether the workers worked under food or chemical, as Unite could represent them all. The Union said that it was however more than happy to address and clarify within its next newsletter, the Union’s position in response to the Employer’s claim that workers were misled on the potential benefits of recognition at the food site. The Union also welcomed the Employer’s invitation to attend a meeting on site now that the Covid restrictions had been lifted.

15) Finally, the Union said that it also required clarification from the Employer as to whether there was an error within the Employer’s email 23 February 2022 in which it set out the specified information to the CAC, and in which it had included the role of the Senior Process Technician (SPT) as part of the proposed bargaining unit.

5. Summary of Submissions made by the Employer

LMT/SL role

16) The Employer stated that the role of the LMT/SL was a management role. They covered all aspects of management including resource planning, leading the team, managing absence, recruitment, disciplinary investigations in accordance with company policies and training. The Employer believed that the Job Description clearly demonstrated this. The Employer attached to its submissions a copy of the Job description for the role of the LMT/SL.

17) When questioned by the Panel concerning the amount of autonomy within the role, the Employer said that they covered various shifts and therefore had the authority to make decisions. They corrected problems with production and generally reported any issues. With regard to disciplinaries and absence, they sought advice from HR. If they believed there was a disciplinary issue, they carried out an investigation, which was subsequently passed to another peer or manager to carry out any disciplinary hearings if required. Some were able to do this independently, but others needed more support. The Employer said that if the LMT /SL was a hearing officer at a disciplinary stage, the decision would be verified and consulted with HR, and they would have authority to discipline an individual on the front line. They were salaried, as were all the workers in the proposed bargaining unit and they were not part of any bonus or incentive scheme, nor did they receive overtime.

18) In answer to a question from the Panel as to why the February 2022 Job Description stated, “no line management responsibility”, the Employer explained that it was a genuine mistake as all workers recruited into role of LMT/SL had management responsibility, it was a fundamental part of the role. The Employer explained that 80% of their job covered the management of people. From time to time the job involved some technical/physical work but this was done alongside their colleagues. Most of their work was carried out from the tech area within the Control Centre where the computers were based, managing the shift and the people, and not on the shop floor. In answer to a further question from the Panel, the Employer said that it was not aware of any processes in place in which job descriptions were annually reviewed or signed off. The Employer further explained that the LMT/SL contract was different in terms of notice and pay, but pensions would be similar.

19) The Employer explained that it had introduced PDRs for first time last year so that all managers, including LMT/SL, could be involved. With regard to accountability, from time to time some LMT/SL had the authority to change and adapt PDRs and they would explain whether or not targets had been achieved. The Employer said that team accountability was a two-way conversation led by the group, namely, the LMT/SL and Engineering Support, where they would voice their concerns and bring forward any decision points.

QA role

20) Turning to the role of the QA, the Employer clarified for the Panel this was a central function that covered the administration and quality of the food product. There were currently three QAs who worked across both the BF1 plant and the chemical site. They spent 60% of their time at BF1 and 40% at the chemical site. This role had no reporting function under BF1 but reported to a company central control function through the site’s Technical and Quality Manager. The purpose of the role was to give independent advice, ensuring integrity, quality, safety, and continuity across sites. The role therefore had to be independent of both BF1 and fermentation. It was similar to the role to that of finance and HR, who reported centrally. QAs were salaried, and they like the LMT/SL’s, finance and engineering managers were not part of any bonus or incentive scheme.

SPT

21) Questioned by the Panel on the Employer’s reference to the role of the SPT, the Employer explained that this role also fell with the Union’s proposed bargaining unit because they worked alongside the LMT/SL and MT. There was only one SPT, who was required to work Monday to Friday at the BF1 Plant. They had experience in processing food and packing and worked solely on the food manufacturing side.

22) The Employer also believed that it was important to note that the Union had also contacted agency workers within the GO role to seek recognition as it had assumed that they were Quorn employees. The Employer therefore believed that the Union’s figures within the check at the acceptance stage had included those workers. The Employer said that it did not employ agency workers as they were provided via a contractor when required, they were not Quorn employees.  The Employer confirmed that at present, including the role of the SPT, there were currently 39 workers at the BF1 plant for which the Union were seeking recognition. This figure also included 3 LMT/SL and 3 QAs, of which there was currently a vacancy within both roles. However the Employer explained that it was not actively recruiting at present due to a freeze on recruitment until the Employer’s financial situation improved.

23) Finally, the Employer stated that the Union’s claim had been brought by the Chemical Regional Representative of Unite. The Employer said that BF1 was not a chemical function, but a food function and any representation/recognition from Unite should be made by its Regional food Representative, who also covered its food production site at Stokesley. It was the Employer’s view that the Union’s drive for recognition under food had not been made by its employees and that they had been misled by the Union in relation to the potential to gain the same terms and conditions as those in the chemical sector if recognition were awarded. The Employer emphasised that recognition would not guarantee the same terms and conditions.

6. Considerations

24) The Panel is required, by paragraph 19(2) of the Schedule to the Act, 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) states 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 he considers would be appropriate. 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 parties as expressed in their written submissions and witness statements.

25) The Panel’s first responsibility is to decide, in accordance with paragraph 19(2) of the Schedule, whether the Union’s proposed bargaining unit is appropriate. There is no requirement on the Panel to seek to identify a more appropriate bargaining unit if it finds that the union’s proposed bargaining unit is appropriate. The Panel considers that in this case the Union’s proposed bargaining unit is compatible with effective management and therefore appropriate.

26) The Panel notes the Employer’s submission that the inclusion of the role of the LMT/SL within the bargaining unit would create a conflict of interest owing to their managerial role, in particular in relation to disciplinaries. However, the Panel does not regard this role as incompatible with effective management. The Panel was not persuaded that the role of the LMT/SL was a genuine management position in view of their low-level of autonomy within the role. There were clearly some management duties, for example the authority to hold disciplinary hearings but these were held under close supervision of HR. The Panel has also considered the Employer’s arguments with regard to role of the QA, and it also does not regard this role as incompatible with effective management. The QAs reported off-site, and not to the LMT/SL. Although they worked across both sites, the majority of their time was spent at the BF1 plant. The proposed bargaining unit consists of a distinct and identifiable group of workers at the BF1 plant, who share common terms and conditions of employment. The workers in the proposed bargaining unit were all salaried, and the majority of their work essentially involved activities related to food production at the BF1 plant.

27) The Panel has considered the matters listed in paragraph 19B(3) of the Schedule, so far as they do not conflict with the need for the unit to be compatible with effective management. The views of the Employer and the Union, as described earlier in this decision, have been fully considered. The bargaining unit is compatible with effective management, and existing national and local bargaining arrangements. It is not small and does not give rise to fragmentation. It encompasses a discrete group of workers who share many common terms and conditions and job characteristics. All of the workers are employed predominately at one location, the BF1 Plant. The Panel is satisfied that its decision is consistent with the object set out in paragraph 171 of the Schedule.

7. Decision

28) The Panel’s decision is that the appropriate bargaining unit is that specified by the Union in its application, namely, all employees within the BF1 Plant, who were: (i) General Operators; (ii) Manufacturing Technicians; (iii) Engineering Manufacturing Technicians; (iv) Lead Manufacturing Technician/Shift Leader; and (v) Quality Assurance. In addition, in light of the Employer’s admissions in relation to the Senior Process Technician, that the role of Senior Process Technician should also be included within the bargaining unit.

Panel

Ms Naeema Choudry, Panel Chair

Ms Joanna Brown

Mr William O’Shaughnessy

8 June 2022

8. Appendix

Names of those who attended the hearing:

For the Union

Fazia Hussain-Brown - Regional Officer, Unite the Union

Martin Wright - Legal Officer, Unite the Union

For the Employer

Danny Davison - HR Business Partner: Belasis Site

Paul Prior - Site Lead and Head of Fermentation: Belasis Site.