Decision

Acceptance Decision

Updated 4 August 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1342(2023)

4 August 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:

CWU

and

FedEx UK

1. Introduction

1) CWU (the Union) submitted an application to the CAC on 23 June 2023 that it should be recognised for collective bargaining by FedEx UK (the Employer) for a bargaining unit comprising “Staff working in Customer Experience based in Sutherland House” which was located at 4 Matlock Road, Coventry CV1 4JQ. The CAC gave both parties notice of receipt of the application on 23 June 2023. The Employer submitted a response to the CAC dated 7 July 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 Mrs Lisa Gettins, Panel Chair, and, as Members, Mr Roger Roberts, and Mr David Coats. 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 7 July 2023. The acceptance period was then extended to 21 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 26 May 2023. On 7 June 2023 the Employer responded by stating “… the employees are able to consult with management via reps if they have any concerns; but will meet with CWU on an informal basis to discuss any concerns from the employees”. In response the Union wrote to the Employer on 9 June 2023, asking for dates to meet and discuss employee concerns and asking for a response to the request for voluntary recognition. The Union enclosed the exchange of correspondence with 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, “No”. 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) The Union stated that the total number of workers employed by the Employer was approximately 2233 and that approximately 211 of these workers were in the proposed bargaining unit, of whom 101 were Union members. Asked whether the Employer agreed on the number of workers in the proposed bargaining unit the Union answered “No”.

8) When asked to state the number of union members in the proposed bargaining unit, and provide evidence to support this figure, the Union confirmed that there was 101 union members, and it was happy to provide a list to the CAC on a strictly confidential basis.

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 “Union membership has grown rapidly in the space of a few weeks. It is likely to soon exceed to 50% of staff in the proposed bargaining unit”.

10) The Union stated it had selected the proposed bargaining unit as it was single management unit currently located on a single site. 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 23 June 2023.

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

12) In its response to the application the Employer stated that the Union’s written request for recognition was received on 26 May 2023. The Employer replied on 7 June 2023 stating “We write in response to your letter dated 26 May 2023 regarding union recognition for collective bargaining purposes in respect of all staff in customer experience based in Sutherland House. As you know, we are already part way through the collective consultation process with regards to the closure of Sutherland House and we are continuing to engage with the elected representatives with regards to this. We do not consider that it would be appropriate to bring the CWU into this process in a formal capacity at this stage, particularly as your members are able to raise any concerns they may have via the current collective process. However, in the spirit of co-operation, and as per the suggestion within your letter, we are prepared to meet with you on an informal basis to discuss and understand any concerns your members may have. If this is of any interest, please let me know and we will send over some possible dates for a meeting”. The Union then sent a further letter on 9 June 2023, a copy of which was enclosed and the Employer’s reply, which was sent on 22 June 2023, was also enclosed.

13) The Employer stated it received a copy of the application form from the Union via email on 23 June 2023.

14) 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 as “The location of the proposed bargaining unit, Sutherland House in Coventry, is leased by FedEx and notice has been served to end this. FedEx are currently consulting with all staff based at Sutherland House with regards to this and the proposed closure of the site, and it is anticipated that upon conclusion of the consultation, the site will be closed, and no staff will be present at that location from early September 2023. The Employer therefore considers that the proposed bargaining unit is incompatible with effective management and inappropriate as, subject to the outcome of the consultation, there will be no staff based at Sutherland House and there will therefore be no bargaining unit which exists”.

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

16) The Employer stated that it employed a total of 10,300 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, “There are 202 employees who work in Customer Experience at Sutherland House”.

17) The Employer said there was no existing agreement for recognition in force covering workers in the proposed bargaining unit, however there was currently a voluntary recognition agreement in place covering some workers already in place at the location where the Customer Experience employees at Sutherland House would be relocated to.

18) Asked whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated, “There is no evidence to support the Union’s membership as the Employer does not have this information within its possession as CWU union members do not pay fees via Payroll”.

19) 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 “The Union has not provided any evidence of likely majority support for recognition within the purported bargaining unit set out in the Application. The Employer has not received any direct contact from any of individuals seeking collective bargaining. No other evidence appears to be relied on by the Union. The workplace has functioned adequately without a recognised union and the Company has well developed HR policies to grant all its employee’s suitable channels to raise concerns. The Employer has put in place measures to set up Employee Forums to give staff a collective voice, including an Employee Consultation Forum which operates and includes members of the customer experience team at Sutherland House. Furthermore, with regards to the current collective consultation referred to above regarding the proposal to close Sutherland House, the Employer has elected representatives and is undergoing collective consultation with those representatives. The Employer has invited the Union to participate in the consultation process and has offered to meet with the Union regarding their proposal for recognition, but this has been refused by the Union. The Employer therefore considers this application to be premature given that the Union is involved in the consultation process. The Employer therefore has no evidence that employees are in a position where they would support recognition”.

20) 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 “N/A”.

5. The check of membership and support

21) 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 10 July 2023 from the Case Manager to both parties.

22) The information from the Union was received by the CAC on 12 July 2023, and the Employer on 13 July 2023. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties

23) The list supplied by the Employer showed that there were 200 workers in the proposed bargaining unit. The list of members supplied by the Union contained 79 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 75, a membership level of 37.50%. A report of the result of the membership check was circulated to the Panel and the parties on 13 July 2023 and the parties’ comments invited.

6. Parties’ comments on the membership check

24) The Union did not submit any comments on the results of the membership report by the deadline imposed.

25) In its response dated 19 July 2023, the Employer observed that in its application the Union stated that it had 101 members in the proposed bargaining unit but that the membership check had demonstrated that to be inaccurate. The Employer did not believe the Union had the support of more than 50% of the workers within the proposed bargaining unit as, despite significant efforts to recruit members, it had not achieved anything close to the 50% membership as stated by the Union in its application.

7. Considerations

26) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

27) 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 11. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 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.

8. Paragraph 36(1)(a)

28) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit. In this case membership check conducted by the Case Manager described in paragraph 23 showed that 37.50% of the workers in the proposed bargaining unit were members of the Union. 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)

29) 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. As discussed in the previous paragraph, the level of union membership established by the membership check is 37.50%. Although given the opportunity of commenting on the results of the check the Union did not provide any further evidence of likely support for recognition nor did the Union offer an explanation as to why it submitted a list of 79 members for the purposes of the check having claimed that there were 101 members in the proposed bargaining unit when it submitted its application to the CAC. It is common for a union seeking recognition to present a petition signed by members and non-members as evidence in support of this test, but no such evidence was provided in this case. The level of membership revealed by the membership check was lower than that asserted by the Union in its application. The Panel has concluded that the evidence before it is not sufficient to support a decision 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 proposed bargaining unit as required by paragraph 36(1)(b).

10. Decision

30) For the reasons given above, the Panel’s decision is that the application is not accepted by the CAC.

Panel

Mrs Lisa Gettins, Panel Chair

Mr Roger Roberts

Mr David Coats

4 August 2023