“(a) whether the proposed bargaining unit is appropriate; (b) whether the union has … the support of a majority of the workforce constituting the appropriate bargaining unit.”
“(1) … (2) The CAC must take these matters into account – (a) the need for the unit to be compatible with effective management; (b) the matters listed in sub-paragraph (3) so far as they do not conflict with that need. (3) The matters are – (a) the views of the employer and of the union (or unions); (b) existing national and local bargaining arrangements; (c) the desirability of avoiding small fragmented bargaining units within an undertaking; (d) the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; (e) the location of workers. (4) 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. (5) …”
“In 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.”
“31. Moreover, the proposed bargaining unit results in local fragmentation within the Bridgend RDC. It will lead to:- (a) tension between the 223 warehouse operatives in the Bridgend RDC and the 39 other category 6 employees in the Bridgend RDC who currently enjoy the same terms and conditions but are not warehouse operatives (and fall outside the proposed bargaining unit); (b) tension between the 223 warehouse operatives in the Bridgend RDC and the 957 other category 6 employees costed to the Bridgend RDC (mainly store employees in the Bridgend area), who are employed on the same terms and conditions.” (4) Paras. 33 and 34 read as follows: “33. Further, the proposed bargaining unit results in national (as well as local) fragmentation. It is not compatible with effective management to have one of nine RDCs operating under different terms regarding pay, hours or holiday. It will:- (a) cause tension between the 223 warehouse operatives in the Bridgend RDC and the rest of the 2,443 warehouse operatives in the other eight regions (the Bridgend warehouse operatives representing just 9.1% of all the warehouse operatives); and (b) lead to difficulty when transferring employees between regions – which again can be done for a number of reasons. 34. The logical consequence of the union’s position is that Lidl could end up recognising a substantial and unworkable number of bargaining units, each competing with one another, including:- • nine separate bargaining units, for the warehouse operatives in each of the nine regional RDCs; • nine further bargaining units, for the other category 6 employees within the RDCs; • at least nine (and possibly 637) further bargaining units, either one for the stores within each of the nine regions, or even one for each of the 637 stores; • one for the category 6 employees in head office in Wimbledon and even that is limiting the employees in a bargaining unit to the category 6 employees. If the net is spread wider, there could be more applications for recognition.” • nine separate bargaining units, for the warehouse operatives in each of the nine regional RDCs; • nine further bargaining units, for the other category 6 employees within the RDCs; • at least nine (and possibly 637) further bargaining units, either one for the stores within each of the nine regions, or even one for each of the 637 stores; • one for the category 6 employees in head office in Wimbledon (5) Para. 35 repeats the points that the proposed bargaining unit is too small and that treating it differently is incompatible with Lidl’s “one Lidl culture”
“32. The Panel considers that the Union's proposed bargaining unit is compatible with effective management. The Employer's operation is divided into nine major geographical areas, each of which has its own Regional Distribution Centre, of which Bridgend is one. Each region has its own management team which is expected to deal with local problems. A Regional Director has responsibility for the stores and warehouse within a given region, supported by (amongst others) a Head of Logistics, Heads of Sales and a Head of Administration. Disciplinary and recruitment matters are dealt with by the Team Manager of the warehouse. There is a management structure in place, therefore, which reflects the geographical scope of the Union's proposed bargaining unit. 33. The Employer emphasised to us the importance of the 'One Lidl' culture and the principles of standardisation to its operation, exemplified in the fact that there is a single pay scale applicable to all its category 6 workers. However the Employer informed us of two exceptions to this principle: an enhanced rate for employees who work within the M25, in line with the Employer's commitment to being a living wage employer, and a night shift premium paid in five of its nine warehouses, including Bridgend, due to market forces in those areas. It is evident, therefore, that the Employer is able to accommodate additional allowances within its structures and payroll systems. 34. The Panel appreciates that the scope of regional management for unilateral action can be limited. In relation to the night shift premium we were told that a region requests the premium from Head Office and that the decision to pay it is taken nationally not locally. However this does not obviate the fact that it is consistent with the Employer's current practice for the request to make an additional payment to be initiated at regional level. The Employer confirmed to us that, although it is not its current practice to compile information on personnel costs for an individual warehouse separately the information was technically available to enable it to do so. We understand that there is currently little discretion to alter hours at regional level and that the holiday provisions are currently standard for all category 6 staff. We also understand that current software systems are standardised. Any alteration to the existing terms on hours and holidays would require the consent of both parties to the collective bargaining process. In the event that the parties were to negotiate changes to hours or holidays we would expect that the Employer would adapt its software systems to implement these changes. 35. In relation to the roles within the Union's proposed bargaining unit, the Panel notes that Warehouse Operatives are treated as a distinct group with a separate contract. Although the Employer's written evidence emphasised the importance of its ability to transfer Warehouse Operatives to stores, we were told in oral evidence that this had occurred only at the request of the individual concerned. We consider therefore that a bargaining unit composed only of Warehouse Operatives is consistent with effective management.”
“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 Panel does not consider that there are any existing national or local bargaining arrangements in this case. In relation to the desirability of avoiding small fragmented bargaining units within an undertaking, the Union’s proposed bargaining unit would be the sole existing bargaining unit within the Employer’s undertaking and there is not evidence of any current demand elsewhere [emphasis supplied]. As far as the characteristics of workers are concerned, the Panel notes that Warehouse Operatives are treated as a distinct group with a separate contract and are easily identifiable. All the workers in the proposed bargaining unit are based at a single location. The Panel is satisfied that its decision is consistent with the object set out in paragraph 171 of the Schedule.”
“17. In relation to the matter referred to in paragraph 19B(3)(c) of Schedule A1, the sub-paragraph is not looking at size alone. It is not dealing with small bargaining units but “small fragmented” units. More importantly, the factor that the CAC must take into account is ‘the desirability of avoiding small fragmented bargaining units within the undertaking’. The task for the CAC is to consider what difficulties might be created by accepting the proposed bargaining unit as appropriate. One such difficulty may be the risk of proliferation in the number of small fragmented bargaining units if one (or more) bargaining units is recognised. The recognition of one bargaining unit may lead to demands for other units. Other difficulties could arise if the proposed bargaining unit was not clearly defined, or was not self-contained and did not include many employees whose work was not in reality different from those who were included within the proposed bargaining unit. That may lead other workers, not included within the proposed bargaining unit, to propose further bargaining units. Other difficulties might arise in other cases. The adverse consequences that it is desirable to avoid may arise if there is one (or more than one) bargaining unit within an undertaking. That approach is consistent with the dicta of Collins J. in his decision in the Cable & Wireless case at paragraphs 16 and 17 of the judgment. 18. In the present case, however, the ground of challenge is that the Panel, in its decision, misdirected itself and considered that there had to be more than one unit within the undertaking before the desirability of avoiding small fragmented units became a relevant factor. On a reading of the decision as a whole, however, it is clear that the panel was responding to the arguments put forward on behalf of the Claimant and it was not misdirecting itself. The Claimant itself was arguing that recognising the proposed bargaining unit would result in tension between the workers included within the proposed bargaining unit and others (for example, the other category 6 employees at, or costed to, the Bridgend Regional Distribution Centre who were not included within the proposed bargaining unit) or between warehouse operatives at Bridgend and those who might seek recognition to be entitled to conduct collective bargaining on behalf of a group or groups of workers at other warehouses in the other eight regions. The Claimant contended, as recorded in the decision itself, that the consequence would be that the employer could end up having to recognise a substantial and unworkable number of bargaining units each competing with one another. It was in that context that the Panel noted that the proposed bargaining unit would be the sole existing bargaining unit within the undertaking and that there was no evidence of any current demand elsewhere. In other words, the CAC was not misdirecting itself as to the meaning of paragraph 19B(3)(c) of Schedule A1 to the 1992 Act. It was not setting out a view that there had to be more than one bargaining unit within the undertaking for that factor to be relevant. Rather, it was concluding that the concerns that the Claimant had were not well founded on the material before it and that the risk, which it was desirable to avoid, of creating small fragmented bargaining units within the undertaking did not, on the facts, arise. The CAC did not misinterpret paragraph 19B(3)(c) of Schedule A1.”
“The Panel does not accept the Employer’s argument that the bargaining unit would create a fragmented unit. Fragmentation is not measured numerically as a given proportion of the workforce but in terms of whether a bargaining unit would divide up the workforce into numerous groups prone to compete with each other. The stability and occupational identity of field service workers, who also have a strong company identity, militates against fragmentation. The outcome of other groups of workers seeking to gain recognition for their own bargaining unit, should they seek to do so, cannot be predicted by the Panel. During the course of the hearing evidence was given of a bargaining unit being extended in another company in the industry as other workers sought recognition.”
“16. [Counsel for the employer] complains that the panel were wrong to state that fragmentation was to be measured 'in terms of whether a bargaining unit would divide up the workforce into numerous groups prone to compete with each other'. This is not what the paragraph says nor is it a proper limitation on the ambit of the paragraph. It would be to write into the paragraph words which were not there. The mischief to be avoided by the establishment of small fragmented bargaining units is obviously material. While one such unit is no doubt potentially undesirable, it is what it may lead to that is important from the point of view of the employer and the need for compatibility with effective management. The claimant itself expressed concern that the unit was not self contained, that field engineers who worked with and did similar jobs to those in the particular directorate would not be included and that the 29 directorates within the company might seek separate bargaining units. While I accept that, if intended as a general proposition, the limitation expressed may not be entirely apt, in context the panel has focused on the concern expressed by the claimant. It is what the proposed unit, which was said to be neither self-contained nor to include many whose work was in reality no different from those within the directorate, would be likely to lead to that made it inappropriate. In the next sentence and in paragraph 43, the panel rejects the concern that there are likely to be attempts to establish other units or that there will be a lack of co-operation and sensible approach to negotiations which will lead to problems in effective management or fragmentation. Thus, even if the panel was expressing a general interpretation of paragraph 19B(3)(c) (and as I have indicated I do not think it was), in context it was taking the circumstances before it into account and its decision would undoubtedly have been the same. 17. [Counsel for the union] suggested that the use of the plural 'units' in 19B(3)(c) indicated that Parliament had in mind that the real undesirability was the existence of a number of such units. I do not think the plural necessarily points in that direction. Grammatical English would support a plural whether or not more than one such unit in a particular organisation was contemplated. Small fragmented units are regarded as undesirable in themselves. However, it is obvious that the real problem is the risk of proliferation which is likely to result from the creation of one such unit. Hence it is important to see whether such a unit is self-contained. Fragmentation carries with it the notion that there is no obvious identifiable boundary to the unit in question so that it will leave the opportunity for other such units to exist and that will be detrimental to effective management. Thus, while, as I have said, I think the panel was applying too narrow a test if it was making a general point in the sentence, in the circumstances of this case and having regard to the expressed concerns of the claimant, the approach was not wrong and did not lead to a result which was flawed.”