Recognition Decision
Updated 25 July 2024
Applies to England, Scotland and Wales
Case Number: TUR1/1392(2024)
24 July 2024
CENTRAL ARBITRATION COMMITTEE
TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992
SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION
DECLARATION THAT THE UNION IS NOT ENTITLED TO BE RECOGNISED
The Parties:
GMB
and
Amazon UK Services Limited
1. Introduction
1) GMB (the Union) submitted an application to the CAC dated 4 March 2024 that it should be recognised for collective bargaining purposes by Amazon UK Services Limited (the Employer) in respect of a bargaining unit comprising “all hourly paid, level 1 employees at BHX4 with the job code FC Associate.” The location of the bargaining unit was given as “BHX4 Coventry Lyons Park, Sayer Drive, Coventry CV5 9PF.” The application was received by the CAC on 5 March 2024 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 12 March 2024 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 Mustafa Faruqi and Ms Claire Sullivan. The Case Manager appointed to support the Panel was Joanne Curtis.
3) By a decision dated 18 April 2024 the Panel accepted the Union’s application and acknowledged that the parties had agreed a bargaining unit comprising of “all hourly paid, level 1 employees at BHX4 with the job code FC Associate.”
4) On 22 April 2024, the Panel, satisfied that a majority of the workers constituting the bargaining unit were not members of the Union, gave notice in accordance with paragraph 23(2) of Schedule A1 to the Act (the Schedule) that it intended to arrange for the holding of a secret ballot in which the workers constituting the bargaining unit would be asked whether they wanted the Union to conduct collective bargaining on their behalf. The Panel also advised the parties that it would wait until the end of the notification period of ten working days, as specified in paragraph 24(5), before arranging a secret ballot.
5) The notification period under paragraph 24(5) of the Schedule ended on 3 May 2024. Neither party notified the CAC that they did not want the ballot to be held, as per paragraph 24(2). The parties were also asked for their views on the form the ballot should take.
6) The parties both proposed and agreed that the appropriate form of ballot in this matter was a workplace ballot with a postal element for those known in advance to be absent from the workplace on the days of the workplace ballot. Thereafter the parties reached agreement on access arrangements. The Panel directed that Mi-Voice should be appointed as the Qualified Independent Person (QIP) to conduct the ballot.
2. The Ballot
7) Mi-Voice was appointed as QIP on 17 June 2024 to conduct the ballot and the parties were notified accordingly. The workplace ballot took place in the week commencing 8 July 2024. Postal ballot papers for eligible workers were despatched on 3 July 2024, to be returned by no later than noon on 15 July 2024.
8) The QIP reported to the CAC on 15 July 2024, that out of 3012 workers eligible to vote, 2601 ballot papers had been returned: 11 ballot papers were found to be spoilt. 1281 workers, that is 49.5% of those voting, had voted to support the proposal that the Union be recognised for the purposes of collective bargaining with the Employer. 1309 workers, that is 50.5% of those voting, voted to reject the proposal. The number of votes supporting the proposal as a percentage of the bargaining unit was 42.5%.
9) The CAC informed the Employer and the Union on 17 July 2024 of the result of the ballot in accordance with paragraph 29(2) of the Schedule.
3. Receipt of complaint
10) On 17 July 2024 the CAC received a complaint from the Union under Paragraph 27B of the Schedule that the Employer had failed to comply with its duty under Paragraph 27A of the Schedule to refrain from using any unfair practice. The Union stated that it had made its complaint on the first working day after the last of the days on which votes may be cast. The Union added that “on a proper interpretation of paragraph 27B(2) of TULRCA 1992, days means clear days, and the date on which the ballot closed does not count.” The Union also said that on a proper interpretation of paragraph 27B(2) of the Schedule, the time did not run during a period in which the CAC was in breach of its obligations under the legislation. The Union said that votes were cast up until Monday 15 July 2024. The Qualified Independent Person (QIP) counted the votes on the same day and reported the result to the CAC on the same day, 15 July 2024. The Union added that the CAC was in breach of paragraph 29(1-2) of the Schedule as it would have been reasonably practicable to inform the Union of the ballot outcome on 15 July or, at the latest, early on 16 July, both of which were working days. The Union said that as a result of the CAC’s failure to notify the Union as soon as reasonably practicable, it was unaware until the actual announcement that the recognition ballot had been lost by a number of votes far smaller than the likely effect of the QR codes, a fact which made the grant of relief likely.
11) A copy of the complaint was sent to the Employer on 18 July 2024 and the Employer was asked by the Panel Chair whether it had any comments which related specifically to the timing of the complaint.
12) The Employer responded on 22 July 2024 stating that the complaint was made outside the time period prescribed by paragraph 27B(2) and must be dismissed. The Employer said that Paragraph 27B states:
(1) A party may complain to the CAC that another party has failed to comply with paragraph 27A.
(2) A complaint under sub-paragraph (1) must be made on or before the first working day after – (a) the date of the ballot, or (b) if votes may be cast in the ballot on more than one day, the last of those days.
The Employer said that votes in the ballot could be cast on more than one day and that the last day on which a vote could be cast was 15 July 2024 as postal ballots could be received up to noon on 15 July 2024. The Employer went on to say that any complaint under paragraph 27B(1) “must” be made on or before the first working day after 15 July 2024, therefore by no later than 16 July 2024. The Employer said that the Union’s complaint was made on 17 July 2024, outside of the time period prescribed by paragraph 27B(2). The Employer said “the requirements of paragraph 27B(2) are mandatory: a complaint ‘must’ be made by the time limit prescribed. Where it is not, it falls to be dismissed. There is no residual discretion for the CAC to do otherwise.”
13) The Employer said that it disagreed that “days” in paragraph 27(B)(2) meant “clear days” and that the date on which the ballot closed did not count. The Employer said that the Schedule used the phrase “working day” consistently as a measure for setting deadlines and periods within the statutory framework. The Employer said, “the Schedule specifies clearly when periods of working days started, whether that be on the day of, or the day after, a triggering event.” The Employer added that were it the intention of Parliament to introduce the concept of “clear days” it would have done so expressly.
14) The Employer referred to paragraph 74 of “The Statutory Code Access and unfair practices during recognition and derecognition ballots”, which provides:
Unfair Practices Complaints may also surface that a party has committed an unfair practice during the balloting period. Such complaints may be referred by the employer or the union to the CAC to adjudicate though any complaints must be made either before the ballot closes or on the first working day after that. Where time permits, it is a good practice for the parties to try to resolve them locally in the first instance.
The Employer also referred to the CAC’s own Statutory Recognition Guide for the Parties at 8.14 which states:
An unfair practice complaint must be made on or before the first working day after the date of the ballot or, if votes can be cast on more than one day such as in a postal ballot, the last of those days. Where a complaint is made after this period there is no provision in the Schedule for the CAC to consider whether one of the parties has used an unfair practice.
The Employer said that a Union wishing to complain of an unfair practice did not have to (and should not) wait for the ballot result in order to bring that complaint.
15) The Employer said that the time period specified in paragraph 27B(2) “was not linked to or contingent upon (i) the CAC complying with provisions of Schedule A1; or, more specifically, (ii) the result of the ballot being given to the union by the CAC under paragraph 29(2).” The Employer said that this was clear from the wording used in the Schedule. The Employer said that “the time limit specified by paragraph 27B(2) is defined by reference to the last of the days on which votes may be cast in the ballot. It is not linked to, or contingent upon, any actions of the CAC, or the outcome of the ballot being notified. Parliament could have decided to specify a time limit tethered to the notification of the result of the ballot. It did not. To tether the time limit in such a way (which the CAC does not have power to do) would be pure invention.” The Employer went on to say that a complaint of unfair practice could be made at any time up to the date specified by paragraph 27B(2), including before or during the ballot and that there was “no legal requirement” on the Union to wait for the result of the ballot and “indeed every reason for any complaint to be addressed at an earlier point of time.” The Employer said that looking at this case practically, there was no reason why the Union could not have made its paragraph 27B(1) complaint within the time limit specified by paragraph 27B(2) as its complaint related to the use of QR codes by the Employer and that the Union was “supporting Members in bringing complaints about precisely the same issue in the Employment Tribunal.” The Employer said that it was not necessary for the Union to learn of the ballot result from the CAC before submitting its complaint. The Employer said that the purpose of the unfair practice complaints procedure was to allow the CAC to intervene and make appropriate remedial orders where it determined that an unfair practice had taken place. The Employer said, “delaying a complaint until the results are known, deprives the CAC of any opportunity to take any preventive action it considers necessary, which undermines the entire premise of the unfair practice complaint regime.” The Employer stated that it was not correct that the CAC was in breach of its obligations under paragraph 29. The Employer said that the obligation on the CAC to inform the Union of the result of the ballot under paragraph 29(2) was an obligation the CAC “must comply with as soon as is reasonably practicable after the CAC is informed of the result of a ballot by the person conducting it”. The Employer said that reasonable practicability required consideration to be given to “(i) the fact that the CAC is a committee that acts in relation to a particular application as a Panel and (ii) the CAC’s hours of operation. In its published guide Statutory Recognition: Guide for the Parties, the CAC states at 9: Once the QIP has submitted a written report of the ballot result to the CAC it must be considered by the Panel. The CAC Case Manager will only be permitted to inform the parties of the ballot result once authorised to do so by the Panel. In normal circumstances this will be within 48 hours of completion of the balloting period.” The Employer said that this paragraph was material in setting expectations as to reasonable practicability and that in this case, the parties were informed of the result well within the 48-hour period set out in the CAC’s guidance.
4. Panel Decision
16) The complaint is made outside the time period prescribed by paragraph 27B(2) and must be dismissed. As set out above, Paragraph 27(B)(2) provides that a complaint under Paragraph 27B of the Schedule that another party has failed to comply with its duty under Paragraph 27A of the Schedule to refrain from using any unfair practice must be made on or before the first working day after— (a) the date of the ballot, or (b) if votes may be cast in the ballot on more than one day, the last of those days. The Union made the complaint on 17 July 2024. Voting closed at 12 noon on 15 July. This was therefore the last day that votes could be cast. Working days, rather than “clear days”, are used as a measure for setting deadlines and periods within the statutory framework of the Schedule. The mandatory requirement of the time period prescribed by paragraph 27B(2) is that the complaint must have been made by no later than 16 July 2024. The Panel has no discretion in this regard. Further, the period in which parties must submit complaints in paragraph 27B(2) is in no way contingent on the CAC complying with the provisions of Schedule A1 or the Union knowing the result of the ballot. It was open to the Union to make a complaint of unfair practice before or during the ballot and it is not suggested that there were facts or matters which prevented any such complaint being made. In any event, there was no breach of paragraph 29. The parties were informed of the result of the ballot within the 48 hour period set out in the CAC’s guidance. The parties were informed of the result of the ballot as soon as was reasonably practicable. Prior to the said notification the report was considered by the Panel.
5. Declaration that the Union is not entitled to be recognised
17) The ballot establishes that recognition of the Union is not supported by a majority of the workers voting and so, in accordance with paragraph 29(4) of the Schedule, the CAC declares that the Union is not recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.
Panel
Mr Rohan Pirani, Panel Chair
Mr Mustafa Faruqi
Ms Claire Sullivan
24 July 2024