Decision

Acceptance Decision

Updated 20 May 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1254(2022)

15 March 2022

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:

Community

and

Express Reinforcements Limited

1. Introduction

1) Community (the Union) submitted an application to the CAC dated 23 February 2022 that it should be recognised for collective bargaining purposes by Express Reinforcements Limited (the Employer) for a bargaining unit comprising ‘all workers on the factory floor, up to and including Team Leaders, which would include Labourers, Production Operators, Production Team Leaders (working and supervisory) employed by Express Reinforcements Limited’. The location of the bargaining unit was given as Eaglebush Works, Milland Road, Neath. The application was received by the CAC on 23 February 2022 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 1 March 2022 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 Rohan Pirani, Panel Chair, and, as Members, Mr Robert Lummis and Mr Michael Clancy. The Case Manager appointed to support the Panel was Joanne Curtis.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 9 March 2022. The acceptance period was extended to 18 March 2022 to allow the parties to comment on the results of a membership check and for the Panel to consider these comments before arriving 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 had sent a request for recognition to the Employer on 5 January 2022. The Union said that the Employer responded on 14 January 2022 stating that it had yet to see evidence of significant interest in Union recognition amongst the Workers referred to and that at this stage it was not in the interests of the Workers at Neath to recognise Community Union. A copy of the Union’s request letter was not attached to the application.

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, ‘An application was made on 4 February 2022. This application was not accepted.’ The Union stated that, following receipt of the request for recognition, the Employer had proposed that Acas should be requested to assist the parties, and that they had said no.

7) The Union stated that the total number of workers employed by the Employer was 125. The Union stated that there were 50 workers in the proposed bargaining unit, of whom 33 were members of the Union. When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the form was left blank.

8) The Union stated that the reason for selecting the proposed bargaining unit was that ‘there are particular issues and challenges that affect production workers, and a need to improve the relationship between workers in the bargaining unit and management as well as having a unified approach to addressing issues of pay, and terms and conditions of employment’. They went on to say that, ‘Community Union and its predecessor Unions have represented workers in the steel industry for more than a century and we believe that our knowledge, history and expertise will be of particular benefit to workers in the bargaining unit. The Company are part of the Celsa group with whom Community already have recognition for a number of their sites’. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the proposed bargaining unit the Union answered ‘No’.

9) When asked whether the bargaining unit had been agreed with the Employer, the Union replied ‘yes’. The Union confirmed that it held a current certificate of independence and that they had copied the application and supporting documents to the Employer on 23 February 2022.

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

10) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 5 January 2022. When asked what its response was, the Employer referred to a letter attached to its response dated 14 January 2022. The letter stated that it had yet to see evidence of significant interest in Union recognition amongst the workers referred to in the Unions request and it did not therefore see at that stage that it was in the interests of the workers at Neath to recognise Community Union. It went on to say that should the Union provide them with such evidence they would be happy to revisit a voluntary agreement with Community Union.

11) The Employer confirmed that it had received a copy of the application form from the Union on 24 February 2022. When asked following receipt of the union’s request, did you propose that Acas be requested to assist? The Employer responded, ‘no although we had previously requested this prior to the application.’

12) The Employer stated that it had agreed the bargaining unit with the Union, before receiving a copy of the application form from the Union.

13) The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as defined in the Union’s application. It stated the number was ‘61’ and it did not know how Community Union had arrived at their number. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

14) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit it stated that as the members were not through payroll check off it had no way of knowing whether the number was correct. 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 confirmed its previous answer.

15) In answer to the question if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit and when asked if it had received any other applications in respect of workers in the proposed bargaining unit. It stated, ‘yes an application was made on 4 February 2022. This application was not accepted.’

5. The membership and support check

16) To assist in 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 their paid up members within that unit including their full names, date of birth, membership number and position. The Union also agreed to supply a petition with full names, signatures, job position and date of signing. 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 4 March 2022 from the Case Manager to both parties.

17) The information requested from the Union was received by the CAC on 7 March 2022 and from the Employer on 7 March 2022. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

18) The list supplied by the Employer indicated that there were 62 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 32 names. According to the Case Manager’s report the number of members of the Union in the proposed bargaining unit was 25, a membership level of 40.32%. The Unions also provided a copy of a petition bearing the name, date, job position and signature of 57 individuals. Of the 57 individuals only 37 were able to be counted for the purposes of the check. The earliest date of signature appearing on the petition was 19 January 2022 and the most recent dated signature was 20 January 2022. The petition consisted of 5 A4 sheets, which were set out as follows:

‘If you want Community to be your recognised union at Neath Express Reinforcements Sign here! (You do not have to be a member to sign this petition)

19) The comparison of the Union’s petition, which was signed by members and non-members, with the Employer’s list of workers revealed that it had been signed by a total of 36 workers in the proposed bargaining unit, a figure which represents 58.06% of the proposed bargaining unit, of which 14 signatories, 22.58% of the proposed bargaining unit were not members of the Union.

20) A report of the result of the membership and support check was circulated to the Panel and the parties on 8 March 2022 and the parties were invited to comment on the results by noon on 14 March 2022.

6. Summary of the parties’ comments following the membership check

21) In an email to the Case Manager dated 14 March 2022 the Union stated that they were concerned that there appeared to be a difference between the parties in respect of the numbers employed in the bargaining unit. They believed the number to be 50 whereas the Employer’s figure was 62. Taking the Employer’s figure, they stated that the proportion of the bargaining unit in union membership was around 40%, whereas accepting the Union’s figure it would be 50%. Turning to the petition, which was completed in late January of this year, the Union stated that there were 36 signatories who the Employer accepted were within the bargaining unit; 22 were Union members and 14 non-members. They stated that the total number of employees within the bargaining unit who had signed to say that they supported the recognition of Community Union was 58%, a majority of those employed therein. They went on to add that if the Union’s number for employees in the bargaining unit was correct, then that proportion increased to 72%. They stated that whether it be 58% or 72%, there was clear evidence that the majority of employees in the bargaining unit supported Community Union being recognised.

22) The Employer did not respond to the Case Manager with any comments.

7. Considerations

23) 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 considered carefully the submissions of both parties and all the evidence in reaching its decision.

24) 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. The Panel is also satisfied, that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42, and that it was made in accordance with paragraph 12(2) of the Schedule in that before the end of the second period of 20 working days, following the Employer’s indication of a willingness to negotiate, no agreement was reached by the parties. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

8. Paragraph 36(1)(a)

25) 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 proposed bargaining unit. The membership check conducted by the Case Manager (described in paragraphs 16-19 above) showed that 40.32% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 17 above the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached 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.

9. Paragraph 36(1)(b)

26) 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. For the reasons given in paragraphs 18 and 19 above the Panel has concluded that the level of union membership within the bargaining unit stands at 40.32%. The proportion of workers in the proposed bargaining unit (both members and non-members) who had signed the petition stands at 58.06%. The Panel considers that, in the absence of evidence to the contrary, this provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union. The Panel has received no such evidence to the contrary in this case.

27) On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, 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.

10. Decision

28) For the reasons given in paragraphs 23-27 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Rohan Pirani, Panel Chair

Mr Robert Lummis

Mr Michael Clancy

15 March 2022