Decision

Acceptance Decision

Updated 30 June 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1332(2023)

30 June 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:

GMB

and

Cepac Rotherham, Cepac Limited

1. Introduction

1) GMB (the Union) submitted an application to the Central Arbitration Committee (the CAC) on 1 June 2023 that it should be recognised for collective bargaining by Cepac Limited (the Employer) for a bargaining unit comprising of “Print Services Grades 2-4 Operations, Conversion Grades 1-5 Operations, Conversion Machine Leader, Despatch Team Leader, Deputy Team Leader, Deputy Despatch Team Leader, Process Improvement Leader, Corrugator Grade 1-5 Operations & Clamp, Truck Operators, Corrugator Team Leader, Factory Services Operator, Despatch Operators & Despatch Goods In, Co-Ordinator & Goods in Clamp Truck and Operator”. The CAC gave both parties notice of receipt of the application on 1 June 2023. The Employer submitted a response to the CAC dated 7 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 Mrs Sarah Havlin, Panel Chair, and, as Members, Mrs Susan Jordan and Mr Ian Hanson. 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 15 June 2023. The acceptance period was then extended to 6 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 24 November 2022 and that, in a letter received by the Union on 7 December 2022, the Employer confirmed “The Company rejects your invitation to automatically recognise GMB as you suggest in your letter of 24 November 2022. However, as the Company’s previous actions have indicated, we remain open to exploring a negotiated recognition agreement with the assistance of Acas”.

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 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 190 and that approximately 118 of these workers were in the proposed bargaining unit, of whom 74 were Union members. Asked whether the Employer agreed on the number of workers in the proposed bargaining unit the Union answered “No”. 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 “GMB will supply a workplace petition on a confidential basis to the CAC”.

8) The Union stated it had selected the proposed bargaining unit because it was a traditional bargaining unit comprising of workers based at a single site. The Union believed that this made industrial common sense and the proposed barraging unit was fully compatible with effective management. When asked whether the bargaining unit had been agreed with the Employer the Union answered “No”.

9) Finally, the Union stated that there was no existing recognition agreement 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 17 April 2023.

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 received the Union’s written request for recognition on 24 November 2022 and it replied by way of a letter dated 7 December 2022, rejecting the request. A copy of the letter was attached to its response form. The Employer stated in its response that it had received a copy of the Union’s application form from the Union by post on 19 April 2023 and the application was dated 17 April 2023.

11) 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. The Employer also confirmed that it did not agree with the proposed bargaining unit and set out its objections, stating that the proposed bargaining unit included Conversion Machine Leaders, Corrugator Team Leaders, Despatch Team Leaders, and Deputy Despatch Leaders. The Employer argued “That these roles cannot be included as they are incompatible with how the business manages and supervises skill development, operational performance, safety, BRC, labour allocation, production KPI’s, quality procedures, appraisals, attendance, and discipline of our people. These roles are responsible for managing some aspects of employment covered by collective bargaining which would be incompatible when managing fellow trade union members if they were included in the proposed Bargaining Unit. Process Improvement Leader roles should also be excluded. These roles are office based, have a separate skills base, and have nothing in common with those within the proposed bargaining unit in terms of pay, skill or job content”.

12) When asked if, following receipt of the Union’s request, it had proposed that Acas should be requested to assist, the Employer answered “Yes, following receipt of original request on 24 November 2022 (although this had already begun)”.

13) The Employer stated that it employed a total of 202 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, “No”. When asked to state the number of workers in the Union’s proposed bargaining unit and the reason for any difference, the Employer answered “122 (plus 4 vacancies)”.

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

15) Asked whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated “No evidence has been presented by GMB to substantiate this level of membership. Cepac Rotherham ‘Check off’ records show ‘zero’ GMB membership deductions”.

16) 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 “No evidence has been presented by GMB to substantiate this level of support”.

17) Finally, the Employer answered it was not aware of any previous application under the Schedule for statutory recognition by the Union in respect of this or a similar bargaining unit. 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 “Not applicable”.

5. The check of membership and support

18) 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 are 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 independent checks of the level of union membership in the proposed bargaining unit and the number of workers in that unit who had signed the Union’s petition in support of recognition. It was agreed with the parties that the Employer would supply to the Case Manager a list of the full 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 the full names and dates of birth of the paid-up union members within that unit and a copy of the petition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and the petition would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to both parties dated 13 June 2023.

19) The information from the Union was received by the CAC on 14 June 2023, and the Employer 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.

20) The list supplied by the Employer showed that there were 121 workers in the proposed bargaining unit. The list of members supplied by the Union contained 72 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 63, a membership level of 52.07%.

21) The Union also provided a petition, which contained 94 names/signatures. The petition consisted of 6 A4 sheets with the headings: “Name”, “Signature”, “Job Title”, and “Date”. The Petition was set out as follows:

“PETITION IN SUPPORT OF RECOGNITION AT CEPAC ROTHERHAM(MANVERS)

GMB trade union is asking your employer to recognise it for collective bargaining. We have to show the Central Arbitration Committee that a majority of workers in the “bargaining unit” support our application. If you do support us, please sign this petition.

I support recognition of GMB trade union as entitled in their claim to conduct collective bargaining on Pay, Hours, and holidays at Cepac Rotherham Manvers

22) The petition supplied by the Union contained 94 names and signatures. The report showed that 69.42% of workers in the proposed bargaining unit had signed the petition in favour of recognition. The proportion of workers in the proposed bargaining unit who had signed the petition and were non-members was 21.49%.

23) A report of the result of the membership and support check was circulated to the Panel and the parties on 19 June 2023 and the parties were invited to comment on the results by noon on the 22 June 2023.

6. Parties’ comments on the membership check

24) In its response dated 22 June 2023, the Employer stated it had no comments other than it appeared that the application should be accepted by CAC.

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

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 above are satisfied. The Panel has carefully considered the submissions of both parties and all the evidence 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 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.

8. Paragraph 36(1)(a)

28) 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 20 above showed that 52.07% 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.

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.

30) The Panel considers that members of the Union would be likely to favour recognition of the Union for collective bargaining (52.07%), as would non-union members who signed the petition (21.49%); giving a total of 73.56%. The Panel can only act on the evidence presented and on the basis of the evidence in this case, 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.

31) The Panel considers that, in the absence of evidence to the contrary, union membership 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.

10. Decision

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

Panel

Mrs Sarah Havlin, Panel Chair

Mrs Susan Jordan

Mr Ian Hanson

30 June 2023