EWC/4(2008) - Decision on complaint

Case Number: EWC/4/(2008)

23 July 2008

CENTRAL ARBITRATION COMMITTEE

THE TRANSNATIONAL INFORMATION AND CONSULTATION OF EMPLOYEES REGULATIONS 1999

DECISION ON A COMPLAINT UNDER REGULATION 13(4)

Unite the Union

and

easyJet

Introduction

1. Mr J Street of Unite the Union (the Union), in his capacity as a UK employees' representative, submitted a complaint to the CAC dated 20 June 2008 under Regulation 13(4) of The Transnational Information and Consultation of Employees Regulations 1999 (the Regulations) that the Company had failed to consult correctly with UK employees' representatives over the arrangements for the ballot to elect UK members of the Special Negotiating Body.

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 Professor John Purcell, Deputy Chairman, and, as Members, Mr D Coats and Mrs J Patel. The Case Manager appointed to support the Panel was Sarah Kendall.

3. On 27 June 2008 the CAC asked the Union to provide further information in respect of its complaint and also asked the Company for a preliminary reaction to the complaint. The Company responded on 27 June 2008 and the Union on 3 July 2008. Those responses were cross-copied and the parties made additional comments, the Union on 9 July 2008 and the Company on 10 July 2008. The content of the parties' evidence is summarised later in this decision. The relevant sections of the Regulations are appended to this decision. As the parties' positions were expressed clearly, the Panel decided to make its decision on the basis of the written representations.

Summary of the written representations of the Union

4. The Union's response, of 3 July 2008, to the Panel's request for further information was as follows:

a) The Company operated in five member States and employed approximately 4700 staff.

b) On 4 June 2008 the Company's Head of Reward advised the Business Council that the Company intended to ballot all employees for elections to the Special Negotiating Body (SNB). There had been an e-mail of 3 June 2008 to senior representatives and employees on similar lines. There had been no consultation with the two recognised unions, Unite and BALPA.

c) The Union considered the ballot to be defective because it did not know which employees were entitled to vote, employees' representatives had not been given the opportunity to stand, the Company had not appointed a truly independent ballot supervisor, the UK employees' representatives had not been consulted before the final arrangements for the ballot had been published and the Company had not published the final arrangements so as to bring them to the attention of UK employees and their representatives.

d) The existing Business Forum should form the basis of the Special Negotiating Body.

5. The Union was given the opportunity to comment on the Company's response and its comments were as follows:

a) It strongly contested that the Company had consulted over a sustained period. The Unions had driven the discussions.

b) The Company's adviser was hostile to the position of the two unions, Unite and BALPA, and would not accept that the Business Forum could form the basis of the SNB. The Union had received no proposals from the Company about the arrangements for the ballot.

c) It was contradictory of the Company to argue that it had not published the final arrangements for the ballot when it admitted it had appointed Electoral Reform services to conduct the ballot.

d) The Company had been made aware of the Unions' objections. The Unions had consistently pointed out that it regarded the Company as being in breach of Regulation 13.

6. The Union also submitted, in the form of an e-mail, supporting evidence from Mr J Moore, Principal Negotiator of BALPA. Mr Moore stated that the Company did not put forward a proposal, at the January 2008 Business Council meeting, to ballot UK employees but undertook to submit written proposals before the next meeting in May/June 2008. It wrote, on 23 May 2008, to the employee members of the Business Council stating that an election would take place; that communication contained no details of the arrangements for the ballot.

Summary of the written representations of the Company

7. The Company's initial reaction, in an e-mail of 27 June 2008, was as follows:

a) The Company operated in seven Member States and employed some 6000 staff.

b) The Company had not published the final arrangements for the ballot. It had advised that a ballot would take place.

c) The Company was keen to establish a European forum and that had been discussed at the Business Forum during 2007 and 2008.

d) The Company intended to act fully in accordance with the Regulations. It had been advised that the Business Council could not form the basis of the SNB because the Council did not meet the requirements of Regulation 15. It had appointed Electoral Reform Services to ensure the ballot was run correctly.

e) The question of the ballot had been first raised at the Council in January 2008. There had been no objections to the proposed method of SNB selection apart from those raised by Mr Street.

8. In a further e-mail of 10 July 2008, the Company stated that its position was unchanged from its earlier communication but it repeated the following points:

a) The Company had not published final arrangements for the ballot although a preliminary announcement had been made. It had not agreed a final timetable with Electoral Reform Services.

b) It had communicated with all employees in Europe to state that, in developing the European Forum, the respective legislation in each country would be followed.

c) Mr Street's request that Business Council members should be nominated to comprise the SNB did not comply with the regulations.

Considerations

9. By way of a preliminary point, the Panel is satisfied that the Company falls within the auspices of the Regulations. In accordance with Regulation 4, the Company is a community-scale undertaking as it employs at least 1000 employees within the Member States and at least 150 in each of at least two Member States. This was not in dispute between the parties.

10. The Union's complaint is essentially that the Company had not consulted the UK employees' representatives about the arrangements for the ballot and had not granted the Unions' request that the members of the existing Business Council should comprised the SNB.

11. The complaint to the CAC was made under Regulation 13(4) which reads as follows:

(4) Any UK employee or UK employees' representative who believes that the arrangements for the ballot of the UK employees are defective may, within a period of 21 days beginning on the date on which the UK management published the final arrangements under sub-paragraph (f), present a complaint to the CAC.

The Regulation explicitly states that a complaint may be made to the CAC within 21 days of the publication of the final (our emphasis) arrangements for the ballot. By virtue of sub-paragraph (f), those final arrangements should be brought to the attention of UK employees and their representatives.

12. Both parties accept that the Company had indicated its intention to hold a ballot for the election of the UK members of the SNB. The Company, however, denies that is has published final arrangements and has stated very clearly that it will consult on, and publish, the arrangements when it is in a position to do so. In terms of evidence, the Panel has been presented with no documentation that details the final arrangements nor any evidence that such final arrangements have been brought to the attention of the UK employees and their representatives as the Regulations require. In its written evidence, as summarised in paragraph 4 above, Mr Street of Unite concedes that the final arrangements have not been published and Mr Moore of BALPA, as summarised in paragraph 6 above, supports that position.

13. The Panel's inevitable conclusion is that the complaint to the CAC does not conform to the requirements of paragraph 13(4) as the final arrangements for the ballot have not been published. This does not preclude the Union from making another complaint once the final arrangements have been published, should it wish to do so. The Panel accordingly makes no comment on the parties' substantive arguments.

Decision

14. The Panel's decision is that the complaint is not well-founded.

John Purcell

David Coats

Jackie Patel

23 July 2008

Extract from the The Transantional Information and Consultation of Employees Regulations 1999

Ballot arrangements

13. - (1) Subject to regulation 15, the UK members of the special negotiating body shall be elected by a ballot of the UK employees


(2) The UK management must arrange for the holding of a ballot of employees referred to in paragraph (1), which satisfies the requirements specified in paragraph (3).

(3) The requirements referred to in paragraph (2) are that -

(a) the ballot of the UK employees must comprise a single ballot but may instead, if the UK management so decides, comprise separate ballots of employees in such constituencies as the UK management may determine where -

(i) the number of UK members of the special negotiating body to be elected is more than one, and


(ii) the UK management considers that if separate ballots were held for those constituencies, the UK members of the special negotiating body to be elected would better reflect the interests of the UK employees as a whole than if a single ballot were held;

(b) a UK employee who is an employee of the Community-scale undertaking or the Community-scale group of undertakings on the day on which votes may be cast in the ballot, or if the votes may be cast on more than one day, on the first day of those days, is entitled to vote in the ballot of the UK employees;

(c) any UK employee, or UK employees' representative, who is an employee of, or an employees' representative in, the Community-scale undertaking or Community-scale group of undertakings immediately before the latest time at which a person may become a candidate in the ballot, is entitled to stand in the ballot of the UK employees as a candidate for election as a UK member of the special negotiating body;


(d) the UK management must, in accordance with paragraph (7), appoint an independent ballot supervisor to supervise the conduct of the ballot of the UK employees but may instead, where there are to be separate ballots, appoint more than one independent ballot supervisor in accordance with that paragraph, each of whom is to supervise such of the separate ballots as the UK management may determine, provided that each separate ballot is supervised by a supervisor;


(e) after the UK management has formulated proposals as to the arrangements for the ballot of the UK employees and before it has published the final arrangements under sub-paragraph (f) it must, so far as reasonably practicable, consult with the UK employees' representatives on the proposed arrangements for the ballot of the UK employees;


(f) the UK management must publish the final arrangements for the ballot of the UK employees in such manner as to bring them to the attention of, so far as reasonably practicable, the UK employees and the UK employees' representatives.

(4) Any UK employee or UK employees' representative who believes that the arrangements for the ballot of the UK employees are defective may, within a period of 21 days beginning on the date on which the UK management published the final arrangements under sub-paragraph (f), present a complaint to the CAC.