Decision

Acceptance Decision

Updated 20 May 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1377(2023)

15 December 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

City Facilities Management (Distribution) Ltd

1. Introduction

1)         GMB (the Union) submitted an application to the CAC on 15 November 2023 that it should be recognised for collective bargaining by City Facilities Management (Distribution) Ltd (the Employer) for a bargaining unit comprising the “Three sites which are owned by Asda Stores Limited are based in Scotland City Facilities Management Distribution or the third party which provide the staff to carry out cleaning duties within the sites. These staff are known widely as Asda Aces. They are all hourly paid”.  The locations of the proposed bargaining unit were: (Site 1) ADC 4 Asda Grangemouth Distribution, Westmains Industrial Estate, Grangemouth, FK3 8YE. (Site 2) CDC4 Asda Falkirk Distribution, Abbots Road Falkirk, FK2 7XP. (Site 3) ASC Asda Falkirk, Orchard Hallway, Falkirk FK2 7ZS. The CAC gave both parties notice of receipt of the application on 15 November 2023.  The Employer submitted a response to the CAC dated 21 November 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 Alastair Kelly 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 29 November 2023.  The acceptance period was then extended to 13 December 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. The Union confirmed that the Employer had stated “As of present there has been no discussions as the employer have made it clear via Acas that they would not be interested in a voluntary recognition agreement. As their current position of they are a national company, and they could not operate any such agreement without a national agreement” (sic).

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 “N/A”.  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 28 and that 26 of the workers were in the proposed bargaining unit, of whom 16 were Union members. The Union when asked to provide evidence to support this figure stated, “We have 16 numbers of members currently within the sites in Scotland. This has increased since we made the voluntary recognition request. GMB Scotland are happy to provide this to the CAC when requested to do so”.

8)         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 Scotland also carried out a petition within the distribution Scott sites in Scotland (in 2022) and the majority of staff signed this. GMB Scotland are happy to provide this to the CAC when requested to do so”.

9)         The Union stated it had selected the proposed bargaining unit because “The proposed bargaining units, which are solely based in Scotland, have been selected as there are similar job titles who carry out similar duties for the employer. Although the sites may vary in size and employee numbers our members have informed us that those with similar job titles have the same responsibilities”. The Union also confirmed that the proposed bargaining unit had not been agreed with the Employer.

10)       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 15 November 2023.   

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

11)       In its response to the Union’s application the Employer stated that it received the Union’s written request for recognition on 26 May 2023.  It explained that a similar application had been made by the Union which was rejected by the CAC ^{[footnote 1]}.  The Employer explained that the Union had been writing to the Employer on the matter of recognition since July 2021 and that it had met with the Union on 20 September 2022.  At this meeting the Employer tried to clarify if the Union was seeking recognition for ACEs (the cleaning operatives) only or ACEs plus supervisors (both were hourly paid) to which no clear answer was received.  Discussions did not really progress as the Union did not address the questions put by the Employer.  Thereafter Acas was invited to help, and two meetings with the Union facilitated by Acas on 11 January 2023 and 15 March 2023 took place but no progress was made.  The previous application proposed a bargaining unit consisting of three sites – the two sites referenced in the request letter plus a third site ASC, ASDA Falkirk.  During discussion no modified bargaining unit had been agreed with the Union.

12)       The Employer confirmed it did not agree with the proposed bargaining unit as it considered that the Union’s proposed bargaining unit was not an appropriate. The Employer explained that it provided cleaning services to Asda at its 39 distribution centres situated throughout the UK. It employed approximately 388 hourly paid “ACEs” (cleaning operatives) and 53 Supervisors. The Scottish sites identified by the Union employed quite small numbers - a total of 24 ACEs and 2 Supervisors across the three sites named in the application. The Employer had a national contract with Asda and so it genuinely operated nationally, rather than operating cleaning functions at each distribution centre separately. The contract was agreed between the Employer and Asda and any pay rises were driven by terms agreed between the two. The Union could not carry out collective bargaining with Asda in respect of the Employer’s workers as they were not employed by Asda.

13)      When asked if, following receipt of the Union’s request, it had proposed that Acas should be requested to assist, the Employer confirmed to Acas that it was willing to meet with the Union and Acas, if the Union considered that it would be beneficial.

14)       The Employer stated that it employed a total of 441 workers and when asked whether it agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application the Employer answered, “Yes, 24 – ACEs and 2 – Supervisors”.

15)       The Employer said there was no existing agreement for recognition in force covering workers in the proposed bargaining unit. The Employer when asked if it disagreed with the Union’s estimate of membership in the proposed bargaining unit, stated “N/A”.

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 stated, “N/A”

17)       Finally, the Employer stated yes it was aware of a previous application which was rejected by the CAC on 18 May 2023. Asked 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 answered “N/A”.

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 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 22 November 2023 from the Case Manager to both parties. 

19)       The information requested from the Employer was received on 22 November 2023 and from the Union on 23 November 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 28 workers in the proposed bargaining unit.  The list of members supplied by the Union contained 16 names.  According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 15, a membership level of 53.57%.  A report of the result of the membership check was circulated to the Panel and the parties on 23 November 2023 and the parties’ comments invited.

6. Parties’ comments on the membership check

21)       In its response dated 23 November 2023, the Union stated it met the requirement of at least 10% of the workers constituting the relevant bargaining unit.  It currently had a membership density within the 3 sites operated by the Employer of 53.57%.  The majority of the workers would want the Union to conduct collective bargaining on their behalf in the bargaining unit. On this basis, the Union expected the CAC to accept its application for recognition under Schedule A1.

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

7. Clarification of the proposed bargaining unit

23)       In its request for recognition dated 26 May 2023 the Union has described its proposed bargaining unit as: Hourly paid staff identified as Asda Ace (Cleaners) and Hourly Paid staff identified as Supervisors” but in its application it defined its proposed bargaining unit as “The bargaining unit is 3 sites which are owned by Asda Stores Limited are based in Scotland. City Facilities Management (Distribution) are the 3rd party which provide the staff to carry out cleaning duties within the sites. These staff are known widely as Asda Aces. They are all hourly paid”.  As the two definitions were not the same the Panel Chair directed the Case Manager to write and seek confirmation from the Union as to whether the proposed bargaining unit in its request was the same as that in its application.

24)       The Union responded to the CAC’s email on 4 December 2023 by stating “I can confirm that this is all the same. The Asda Aces (as they are known) are the hourly paid staff which work in the 3 sites operated by Asda in Falkirk and Grangemouth. This is up to the level of Supervisors. I can confirm this is up to and including the level of supervisor”.

8. Considerations

25)       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. 

26)       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.  The Panel is satisfied that although expressed in different terms, the definition of the bargaining unit in the Union’s formal request for recognition and in its subsequent application to the CAC, does indeed refer to the same group of workers.  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. 

Paragraph 36(1)(a)

27)       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 53.57% 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.

Paragraph 36(1)(b)

28)       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.

29)       The Panel notes from the membership check that a majority of the workers in the proposed bargaining unit (53.57%) are members of the Union.  In the absence of clear and cogent evidence to the contrary, the Panel is entitled to assume that members of the Union would be likely to favour recognition of the Union to conduct collective bargaining with the Employer on their behalf.  On the evidence before it, the Panel has decided that 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 and accordingly, this test is also met.

9. Decision

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

10. Observation

31)       In the notes that accompany the application form it states that in making an application to the CAC, the description of the bargaining unit should be given in identical terms to those used in the formal request to the employer. The only exception to this is where the parties enter into negotiations as a consequence of the request being made and they agree a modified bargaining unit, but not that the Union is recognised.  The Panel would caution the Union against changing the definition of its proposed bargaining unit between the request and application for any other reason otherwise it runs the risk of its application being rejected under paragraph 11 or 12.

Panel

Mrs Lisa Gettins, Panel Chair

Mr Alastair Kelly

Mr Ian Hanson

15 December 2023

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1. This was under case reference TUR1 1317 GMB & City Facilities Management (Distribution) Ltd. ↩