Decision

Acceptance Decision

Updated 6 July 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1334(2023)

4 July 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER TO ACCEPT THE APPLICATION

The Parties:

The Associated Society of Locomotive Engineers and Firemen (ASLEF)

and

East Coast Trains Limited (trading as Lumo)

1. Introduction

1) The Associated Society of Locomotive Engineers and Firemen (ASLEF) (the Union) submitted an application to the CAC on 2 June 2023 that it should be recognised for collective bargaining by East Coast Trains Limited (trading as Lumo) (the Employer) for a bargaining unit comprising “Lumo customer drivers”. The CAC gave both parties notice of receipt of the application on 2 June 2023. The Employer submitted a response to the CAC dated 9 June 2023 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 Stuart Robertson, Panel Chair, and, as Members, Mr Alistair Paton and Ms Stephanie Marston. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 16 June 2023. The acceptance period was then extended to 7 July 2023 to allow time to conduct a membership check and for the parties to comment on the results before the Panel arrived at a decision.

2. Issues

4) The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 9; is made in accordance with paragraphs 11 or 12; is admissible within the terms of paragraphs 33 to 42; and therefore, should be accepted.

3. Summary of the Union’s application

5) In its application to the CAC the Union stated that it made its formal request for recognition on 9 April 2023 and that, in an email received by the Union on 5 May 2023, the Employer confirmed its formal rejection for voluntary recognition but also indicated that it might enter further discussions or negotiations once it had ascertained its employees’ wishes on the subject. The Union confirmed that no timeframe was given for that beyond an assurance that it would be timely.

6) When asked whether the Union had made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Union answered, “Not applicable - no previous application”. The Union stated that, following receipt of the request for recognition, the Employer had not proposed that Acas should be requested to assist the parties.

7) When asked about the total number of workers employed by the Employer, the Union answered “Unknown, however the employer’s website says it created 112 jobs at its Newcastle HQ alone (www.lumo.co.uk/who-we-are/lumonews/lumo-creates-over-one-hundred[1]jobs)”. The Union confirmed there were 34 workers in the proposed bargaining unit and when asked whether the Employer agreed on the number of workers in the proposed bargaining unit the Union answered “Yes”.

8) When asked to state the number of union members in the proposed bargaining unit, and provide evidence to support this figure, the Union stated “ASLEF has 24 members out of the 34 employees in the proposed bargaining unit (70.5%). ASLEF is conscious of the fact that any documentation sent with this application will be sent to the employer. ASLEF is happy to provide evidence of this to the CAC directly as long as confidentiality is preserved”.

9) When called upon to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated “ASLEF refers to the 70.5% membership density within the proposed bargaining unit and relies upon this as evidence that a majority of the workers within it are likely to support recognition for collective bargaining. Please see the response to question 11 in relation to supplying evidence of this to the CAC. ASLEF refers to, and relies upon, the principle in Schedule A1 paragraph 22 TULR(C)A1992 in relation to the later stage of this application whereby membership of the union is directly equated with support for the union, to the extent that the CAC is obliged to grant recognition”.

10) The Union stated it had selected the proposed bargaining unit as it was a specialist trade union which only represented train drivers within the UK rail industry. It wished to be recognised in relation to the train drivers within Lumo. When asked whether the bargaining unit had been agreed with the Employer the Union answered “No”.

11) Finally, the Union stated it was not aware of any pre-existing recognition agreement in relation to the workers in the proposed bargaining unit which covered any of the workers in the bargaining unit, it confirmed that it held a current certificate of independence and it confirmed that it had copied the application and supporting documents to the Employer on 2 June 2023.

4. Summary of the Employer’s response to the Union’s application

12) In its response to the Union’s application the Employer stated that it received the Union’s written request for recognition on 19 April 2023 and it replied by way of an email dated 5 May 2023 rejecting the request but indicating a willingness to negotiate. A copy of the email dated 5 May 2023 was attached to its response form. The Employer also stated in its response that it had received a copy of the Union’s application form on 2 June 2023 via e-mail from Thompsons Solicitors.

13) The Employer confirmed that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union. It said it did not agree with the proposed bargaining unit and set out its objections.

14) When asked if, following receipt of the Union’s request, it had proposed that Acas should be requested to assist, the Employer answered “No”.

15) The Employer stated that it employed a total of 34 permanent workers. Asked whether it agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application the Employer answered, “Yes”.

16) The Employer said there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

17) When invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition the Employer stated “We have undertaken a poll of the colleague group through a specialist third-party independent provider, Choice Voting, in which a total of 19 of the 34 colleagues in the group (Customer Driver) voted for formal ASLEF recognition. From the very start of this process, we have said that we will enter discussions with ASLEF. We hope that we can now take forward work with them on a suitable recognition agreement that is proportional to this result, is modern in its approaches and reflects our small team culture”.

18) When asked if it was aware of any previous application under the Schedule for statutory recognition by the Union in respect of this or a similar bargaining unit the Employer answered “Previous correspondence was received from ASLEF under Schedule A1 of Trade Union and Labour Relations (Consolidation) Act 1992 on 18/08/22, following which discussions were undertaken with the affected colleague group who, after a process to ascertain their views, concluded on a majority basis that, at that time, they did not want formal ASLEF recognition. In responding to ASLEF on this matter on 05/09/22 we additionally stated that “Lumo is aware that a number of our Customer Drivers are members of your trade union and therefore is happy to engage with you on an informal basis”.

19) Finally, when asked on whether it had received any other applications under the Schedule for recognition in respect of any of the workers in the proposed bargaining unit the Employer confirmed “No – None received”.

5. The check of membership and support

20) To assist the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the proposed bargaining unit are members of the union (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed an independent check of the level of union membership within the proposed bargaining unit. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, dates of birth and job titles of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of its paid-up members within that unit including their full names and dates of birth. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party and that agreement was confirmed in a letter dated 13 June 2023 from the Case Manager to both parties.

21) The information requested from the Employer was received on 20 June 2023 and from the Union on 16 June 2023. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

22) The list supplied by the Employer showed that there were 33 workers in the proposed bargaining unit. The list of members supplied by the Union contained 23 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 22, a membership level of 66.67%. A report of the result of the membership check was circulated to the Panel and the parties on 20 June 2023 and the parties’ comments invited.

6. Parties’ comments on the membership check

23) In its response dated 23 June 2023, the Union stated “ASLEF have rechecked the membership list and are satisfied that it is accurate and reflects those employed. The membership check indicates that 66.67% of union members are in the bargaining unit. It would be reasonable for the CAC to infer that union members will usually favour collective bargaining, and that some non-members will also favour it. Accordingly, the union submits that the tests set out in paragraph 36 have clearly been met”.

24) In its response dated 26 June 2023, the Employer confirmed that it did not have any specific comments in respect of the Schedule or tests set out in paragraph 36. The Employer stated it had continued dialogue with the Union throughout the process and had met the Union to discuss a suitable recognition agreement with their District Organiser. The Employer stated that the likely cause for one union member not appearing on the Employer’s list was that they were a colleague who had left the business some time ago. The Employer further stated that it believed a union member was listed on the Employer’s list, but this member had yet not transferred to be on the Union’s membership list. Either way, the Employer stated this did not change the over 50% result.

7. Considerations

25) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 above are satisfied. The Panel has carefully considered the submissions of both parties and all the evidence in reaching its decision.

26) The Panel is satisfied that the Union made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that its application was made in accordance with paragraph 12. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

Paragraph 36(1)(a)

27) Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit. The membership check conducted by the Case Manager described in paragraph 22 above showed that 66.67% of the workers in the proposed bargaining unit were members of the Union. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. The Panel has therefore decided that members of the Union constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

Paragraph 36(1)(b)

28) Under paragraph 36(1)(b) of the Schedule, an application is not admissible unless the Panel decides that a majority of the workers constituting the proposed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

29) The Panel notes from the membership check that a majority of the workers in the proposed bargaining unit (66.67%) are members of the Union. In the absence of clear and cogent evidence to the contrary, the Panel is entitled to assume that members of the Union would be likely to favour recognition of the Union to conduct collective bargaining with the Employer on their behalf. The Employer, in its response to the application also stated that 19 out of the 34 workers in the bargaining unit voted in favour of recognition of the Union in a poll undertaken by a third party on the Employer’s behalf. On the evidence before it, the Panel has decided that a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 36(1)(b) of the Schedule and accordingly, this test is also met.

8. Decision

30) For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Stuart Robertson, Panel Chair

Mr Alistair Paton

Ms Stephanie Marston

4 July 2023