CAC's method if the voluntary Tiva3
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John Darker describes the Central Arbitration Comm iffee and sketches in its complex relationship with the law
\SK TEN PEOPLE chosen at andom what the initials ''CAC" aand for and it's a fairly safe bet hat most would not have a clue. 3ibald answers confer no prizes.
In fact, the Central Arbitraion Committee has hit the ieadlines more than once. Last )ecernber, in the nick of time, it esolved the pay dispute that lad threatened to blackout the 3BC TV transmissions. 22 lairns were referred under the load Haulage Wages Act 1938 Dart II, following abolition of the load Haulage Wages Council.
The CAC is one of the indust:ial relations institutions set up rnder the Employment Protecion Act, 1975. Unquestionibly, the best known of these )odies is ACAS — the Advisory, :onciliation and Arbitration 3ervice.
The CAC works closely with %CAS, to whom it reports. %CAS provides CAC with prenises, staff and facilities, and it )lso plays a part when members af CAC are chosen. But this does lot mean that the CAC is the 'tame poodle' of ACAS.
The precise relationship and ;taws of CAC with ACAS and, in .ffect, with the Department of Employment is important to inderstand, for the Employnent Protection Act 1975 does lot deal with the issue ipecifically.
The Act makes it clear that he CAC takes over the role of he Industrial Arbitration Board; lence, any references to the IAB n "any enactment, statutory nstrument or other document" tow relate to CAC.
The chairman and deputy ;hairman of CAC are appointed )y the Secretary of State for Employment, who has a duty to onsult the Service (ACAS). The }ther members of CAC are ippointed by the Secretary of ;tate from persons nominated )y ACAS.
Annually, ACAS reports to he Secretary of State on the ictivities of CAC during the year Ind CAC itself must report anwally to ACAS.
If this is less than crystal clear t reflects the facts. The most mportant thing to stress is that :AC is an independent body. This is spelt out in para 27 of the first Schedule of the Act.
Here is the relevant sentence: "The functions of the Committee shall be performed on behalf of the Crown, but the Committee shall not be subject to directions of any kind from any Minister of the Crown as to the manner in which it is to exercise any of its functions under any enactment."
Yet another illustration of CAC's independence can be mentioned. Its chairman, Sir John Wood, who was a member of the ACAS Council, resigned from the ACAS appointment when he was appointed by the Secretary Of State to the arbitration post.
Subsequently, two members of the CAC's panels of arbitrators, one a trade unionist,. the other an employer, resigned from CAC on being appointed to ACAS Council, The CAC describes itself in its Annual Report for 1978 as "a standing arbitral body, cornposed of those with industrial relations experience, concerned with performing arbitration and like functions in the field of industrial relations."'
Accepted canons The Committee is independent "in substance and in spiritand its only constraint — which it welcomes — is that it is subject to review by the High Court should it make an error of law or transgress the accepted canons of fair procedure.
The independent status of CAC, combined with its intimate association with ACAS, is touched on in another revealing section of the Annual Report. "It is essential that those in dispute should at a certain stage be encouraged and assisted to settle their differences by conciliation or mediation.
Voluntary agreements so reached must always be preferable to imposed awards. The Committee has, from the outset, determined to subordinate its own right to give a final judgment to the desire to seek a voluntary agreement wherever possible."
The membership of the CAC is surprisingly large. Sir John Wood — who is Edward Brainley Professor of Law at Sheffield University is assisted by 18 deputy chairmen, (academics, lawyers, industrial relations specialists, former civil servants, one or two from each side of industry).
In addition there are 31 employers' representatives — more correctly members with experience as representatives of employers — and a like number of members with experience as representatives of workers.
As might be expected, the "employers" side of CAC contains plenty of personnel and industrial relations experts. Among the names I picked out: Mr J. Magee, chief personnel officer, British Railways, Scottish Region; Mr W. H. Mallen, former chief industrial relations officer, London Transport; and Mr R. G. Owen, employee relations adviser (UK) Unilever Ltd.
On the trade union side, those with some knowledge of transport include Mr R. Arnold, former assistant general secretary, National Union of Seamen; Mr G. Drain, general secretary of NALGO, whose union has membership in the bus industry; and Mrs C. M. Patterson, a national officer of TGWU. The trade union side incidentally, includes that doughty militant, Mr Mike McGahey, vicepresident, National Union of Miners, and president of the Scottish area NUM'.
It is, alas, not uncommon for the rulings of industrial relations courts and tribunals to be reviewed by higher Courts, even by the House of Lords. There were three important examples in 1 978 whereby the role of
CAC was examined. It is impo sible to summarise these casi adequately but some points mg be stressed.
In one case reviewed by ti Court of Appeal, IMI Kynock AUEW (TASS), the appellant, a case referred to CAC under if Fair Wages Resolution, wishE the Committee to "state case." In commercial arbitratic an arbitrator can be asked state clearly and succinctly h findings of fact and the law k has applied.
Public standard But, as CAC point out, "It is process that has never bet thought appropriate in the art of industrial relations arbitratic where the matters are usually wider and more elusive conter involving interest disputes SE tling terms rather than righ disputes interpreting them.
It appears from the Court Appeal judgment that whE acting in Fair Wages cases It Committee is not in law if CAC, but another independe tribunal, whose function is investigate, to report and to a vise the Minister.
Even more complicated, tt Committee, while considerir what the parties have to say, hi to apply a -publicstandard fairness. But as I understand neither ACAS nor the CA would construe this duty making it a -policemanfor E incomes policy — however th is defined!
In another case taken to if Divisional Court the role of CA when exercising its statuto functions was raised (TI Servici v ASTMS. The Divisional CoL stressed that it would "rega errors of law or abuses of pro edure" as matters justifyir revocation of a CAC decision.
But the Divisional Court he that CAC was in business b cause of its specialised indLe nal relations expertise and e nerience. "So far as decisioi
on these matters were concerned this was a matter solely for the Committee and the Divisional Court would not seek to o, erthrow the Committee's cii nclusions," CAC noted. The third case concerned the jurisdiction of CAC under Schedule II, para 3, which sets out certain exclusions. The Committee thought it was entitled to consider the case of an ambulanceman employed by a Hospital Authority but the Divisional Court disagreed.
CAC would like Parliament to make clear just what para 3 mieans otherwise in each case that is disputed a chain of relationships and bargaining procedure would have to be carefully analysed!
The Committee points out that a fair proportion of cases remitted are against the backgroudn of pay policy. In particular, where the parties are
a reed, the impact of pay policy is the only reason for the case b ing brought to CAC.
For the moment, when there is no formal pay policy, backed b statutory or "informal" a reement, employers and u ions are free to settle pay. The protracted engineers' dispute and the independent TV dispute may suggest that arbitration
through CAC would have achieved a settlement at less cost.
The Fair Wages Resolution, which I believe goes back to the First World War — it required fair wages to be paid to munitions workers — gets mixed up today with Schedule II cases, equally designed to correct areas of pay which are comparatively low. "Comparatively" has to be given due weight; it is not always a question of absolute low pay.
And, as CAC underlines, Schedule II contains in it the concept of unilateral arbitration based on the comparison of district rates. '' It is a concept that is not outside the area of political controversy behind this piece of legislation.
Writing just before the change of Government the Committee noted strong public feelings -that the detailed process of the law, with inexorable logic rarely tempered by wider considerations, is not sutable for the day-to-day settlement of a wide range of disputes that arise, especially those involving elements of bargaining.
-The alternative is not . . . . a complete rejection of formalised procedures. It is the Committee's hope that the work it is doing and the procedures it adopts — quite separate from the actual content of the rules it is asked to apply — offer a sound alternative to other methods of dispute settlement.
In each of the last two years more than a thousand cases have been sent to CAC. Last year there were 529 Schedule I I cases (Terms and Conditions of Employment) and 414 relating to the Fair Wages Resolution. Other matters concerned Discolosures of Information, Road Traffic Act 1960, Road Haulage Wages Act 1938, Equal Pay Act, and Civil Aviation Act. This year, 1979, the input of work has fallen greatly, enabling staff economies to be made.
The offices of CAC in London are a stone's throw from the House of Lords' Tower and from Westminster Abbey. By arrangement, I sat in at a hearing. The pleasant Victorian Chamber where the proceedings occur is well carpeted; there are pleasant trees visible through the large windows. The public — maximum attendance in room is 50 — may observe the hearing, but the front door at the Abbey Garden is left locked — you have to state your business through a door microphone.
The last time I attended anything remotely similar was in the ill-fated National Industrial Relations Court, under Sir John Donaldson. Those were the days when fines of £100,000 could be levied on the Transport and General Workers' Union and others.
But NIRC, despite its overblown powers, was an informal court; Sir John did not wear robes. And this is the pattern with CAC. Everything possible is done to help the nervous — on both sides — present their best possible case.
Normally, each side at the CAC will put its case in writing some time before the hearing, with a copy to the opposing side. The CAC is flexible about where it meets. There are offices at Birmingham (Auchinleck House) and Manchester (Faulkner House) but there have
been hearings in many othi provincial centres, and Scotland, to meet the cor venience of the parties.
One benefit of the large pan of arbitrator members of th Committee is that hearings cz be staffed by the requisite pan of three — a chairman and or from each of the -sides.
In a typical case, probab involving a small employer, proprietor or one of h managers could present the side of the case and tlemployees would have the own spokesmen, who could be trade union official.
The panel listen carefully both sides and each side mu expect its documents to probed not only by the oth, side but by the chairman and h two colleagues who are to art trate. The official arbitration always in writing and it follov about a month after the hearint Most sizeable employers a represented by a profession personnel manager or, possib one of the Employers Protectic Insurance firms. Very few risters appear before CAC. was told it is very rare for partii not to turn up; a refreshing co trast to certain Traffic Courts!.
The CAC represents the late example of a "long stop" industrial relations, subject appeal to a Higher Court. Britain there is a very long trac tion of conciliation and arbitr tion in industrial matters, but parties do not choose to use tt machinery no one can Warr CAC, or Parliament. TI' machinery is there.
Whether the public inter° can be served by ACAS or CA in the context of incomes polii — currently expressed in mon tary terms, and not statutory may be questionable. Mr Ji Mortimer, the ACAS chairma thinks that conciliation cann work if it is part of the mecha ism of pay restraint.
That means that Gover ment, if it chooses to pri money like a profligate sail spends it, takes responsibili for the rampant inflation th could sink us all. What prii conciliation and arbitratic then?