Decision

Acceptance Decision

Updated 18 February 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1251(2022)

18 February 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 on 4 February 2022 that it should be recognised for collective bargaining by Express Reinforcements Limited (the Employer) for a bargaining unit comprising of ‘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.’ The CAC gave both parties notice of receipt of the application on 4 February 2022. The Employer submitted a response to the CAC dated 14 February 2022 attaching a letter dated 14 January 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. Rob Lummis and Mr. Michael Clancy. The Case Manager appointed to support the Panel was Joanne Curtis. Issues

3) 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.

2. Summary of the Union’s application

4) In its application the Union stated that it had written to the Employer with a formal request for recognition on 5 January 2022. A copy of the Union’s letter dated 5 January 2022 was enclosed with the application. Following receipt of the Union’s request the Employer responded on 14 January 2022 stating:

‘We have yet to see evidence of significant interest in Union recognition amongst the workers referred to in your letter. Therefore, we do not see at this stage that it is in the interests of the workers at Neath to recognise Community Union.

Should you provide such evidence as previously suggested by our HR Manager, Perina Bishop, then we will be happy to revisit a voluntary agreement with Community Union.

As always we remain keen to work with Community Union where it serves the interests of both parties.’

5) In response to the Employers letter the Union sent a further letter to the Employer dated 17 January 2022 to which they also attached to their application. The letter said the matter had been the subject of discussion between the Parties for a considerable time and that their members had concerns that any process risks revealing their identities to management could lead to victimisation and harassment. The union went on to say that ‘The proposals made so far by the company have not reassured our members regarding their confidentiality being respected and given the previous difficulties we are not confident that there would not be further efforts to prolong the process and try to avoid recognition.’ They stated that in the event that the Employer did not agree the request for recognition and complete a recognition agreement by 31 January 2022 they would make an application to the CAC.

6) The Union stated that the total number of workers employed by the Employer was 125 and that 50 fell within the proposed bargaining unit. The Union stated that there are 33 union members within the proposed bargaining unit, and that having regard to the confidential information section they would prefer the CAC to do a statistical check. When asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union left the section blank.

7) 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, terms and conditions of employment. Community Union and its predecessor unions have represented production 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 the workers in the bargaining unit. The company are part of the Celsa group with who Community already have recognition for a number of their sites.’

8) The Union confirmed that the bargaining unit had not been agreed with the Employer. In answer to the question as to whether there was an existing recognition agreement of which it was aware, the Union stated that there was no existing recognition agreement.

9) The Union confirmed that it held a current certificate of Independence. The Union stated that it had copied its application and supporting documents to the Employer on 4 February 2022.

10) Finally, the Union stated there had not been any previous applications in respect of this or a similar bargaining unit and there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

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

11) The Employer stated that it had received the Union’s formal request for recognition on 5 January 2022 via a letter. In response the Employer stated that it had written to the Union on 14 January 2022, as set out above.

12) The Employer confirmed it had received a copy of the Union’s application and supporting documentation on 11 February when it was received by the Depot Manager. However, the employer acknowledged that the Union had produced proof of postage showing that it was signed for on 7 February 2022. The Employer went onto explain that there is major refurbishment being undertaken at the depot, and the administrator was working from home at the time which delayed it being opened.

13) The Employer stated that it did agree with the bargaining unit as proposed by the Union. In answer to the question had you and the Union agreed the bargaining unit before you received a copy of the application form from the Union? It replied ‘yes’.

14) The Employer confirmed that it employed a total of 136 workers. When asked whether it agreed with the number of workers in the bargaining unit as defined in the Union’s application, it replied ‘no’. The Employer stated that the total number of workers in the Union’s bargaining unit was 61 and it did not know how the Union had arrived at the number they did.

15) When asked whether it considered that a majority of the workers in the bargaining unit were likely to support recognition, it said, ‘as the members are not through payroll check off then we have no way of knowing whether the numbers are correct.’

16) The Employer, when asked if it was aware of any recognition agreement in place, stated ‘N/A’. Finally, when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit the Employer again answered, ‘no’.

4. The Schedule

17) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision. The Panel is satisfied that the Union made a valid request to the Employer within the terms specified in paragraphs 5 to 9 of the Schedule, namely that the request was made in writing and identified the Union and the proposed bargaining unit and stated that the request was made under the Schedule.

18) The Panel then has to decide whether the application was made in accordance with paragraphs 11 or 12 of the Schedule. In doing so it has to consider the Employer’s response to the Union’s formal request. Here the Schedule only allows for three scenarios. Firstly, if before the expiry of the first period of 10 working days (starting with the day after that upon which the request is received) the Employer fails to respond to the request the Union may lodge an application with the CAC under paragraph 11(1)(a). Secondly, if before the expiry of the first period of 10 working days (starting with the day after that upon which the request is received) the Employer informs the Union that it does not accept the request without indicating a willingness to negotiate the Union may lodge an application with the CAC under paragraph 11(1)(b). Thirdly, if before the expiry of the first period of 10 working days (starting with the day after that upon which the request is received) the Employer informs the Union that it does not accept the request but is willing to negotiate, the parties may then conduct negotiations with a view to agreeing a bargaining unit and that the Union is recognised as entitled to conduct collective bargaining on behalf of the unit. The period set aside for these negotiations is the “second period” and is defined as a period of 20 working days starting with the day after that on which the first period ends (or such longer period as the parties may from time to time agree). Under the terms of paragraph 12(1), if the Employer informs the Union that it does not accept the request but indicates a willingness to negotiate then the Union must await the expiry of the second period before it can apply to the CAC for a decision as to whether the proposed bargaining unit is appropriate or whether the union has the support of a majority of the workers in the appropriate bargaining unit.

19) Having looked at the papers submitted, the Panel must decide which of the above three scenarios is applicable in this case which will, in turn, determine whether the application is brought under paragraph 11 or 12. What is clear from the papers is that the Employer confirmed that it received the Union’s request on 5 January 2022 and that it responded by way of a letter dated 14 January 2022. In its application the Union confirmed that it received the Employer’s letter of response on 14 January 2022. The first period of 10 working days therefore commenced on 6 January 2022 and expired on 19 January 2022. The Panel finds that the Employer responded to the request before the first period had expired and so the first scenario described above is not applicable. Next, we must consider the terms of the Employer’s letter, as the Panel must decide whether the letter indicates a willingness to negotiate on the Employer’s behalf or not. If there is no indication that the Employer was willing to negotiate then the Union may apply to the CAC forthwith. However, should the Employer give an indication of willingness to negotiate, the second period would have effect and the Union must wait for this period to expire, and, if no agreement is made before the end of this period, it may then present an application.

20) The wording of the 14 January 2022 letter is set out above.

21) The Panel finds that the Employer’s letter did amount to an indication of a willingness to negotiate on the Employer’s part. There need be nothing more than this. In any event, we have no serious reason to doubt the sincerity of the letter. Non-acceptance was communicated “at this stage”. The letter went onto to say that should further evidence be provided then the matter would be revisited. The Employer’s response therefore falls into the third category as set out above and the second period of 20 working days came into effect. The Union should have waited until the expiry of the second period (16 February 2022) before lodging its application.

5. Decision

22) For the reasons given above the application is not accepted by the CAC.

Panel

Mr Rohan Pirani, Panel Chair

Mr Robert Lummis

Mr Michael Clancy

18 February 2022