Decision

Acceptance Decision

Updated 18 May 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1317(2023)

18 May 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 6 April 2023 that it should be recognised for collective bargaining by City Facilities Management (Distribution) Ltd (the Employer) for a bargaining unit comprising the “The bargaining unit is 3 sites which are owned by Asda Stores 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 widely known as known as Asda Aces. They are all hourly paid”. The CAC gave both parties notice of receipt of the application on 6 April 2023. The Employer submitted a response to the CAC dated 17 April 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, Chair of the Panel 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 24 April 2023. The acceptance period was then extended to 18 May 2023 in order to allow time to conduct a membership check and to allow time for the parties to comment thereon 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 22 August 2022 and that, after discussions with the Employer its response was to deny the voluntary recognition request on 15 March 2023.

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. The Union stated that approximately 26 of these workers were in the proposed bargaining unit of whom 19 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 that “GMB Scotland also carried out a petition within the distribution sites in Scotland and the majority of staff signed this. GMB Scotland are happy to provide this to the CAC when requested to do so”.

8) The Union said it had selected the proposed bargaining unit which were solely based in Scotland and had been selected as there were similar job titles who carry out similar duties for the Employer. The Union stated although the sites may vary in size and employee numbers, its members had informed them, that those with similar job titles had the same responsibilities.

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 6 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 15 August 2022. The Employer stated that in the Union’s request it had proposed collective bargaining for “Permanent employees/Hourly paid staff identified as Asda Ace (Cleaners) based at two distribution centres, the Asda CDC4 Distribution Falkirk and Asda ADC4 Distribution Grangemouth.” The Employer replied to the Union on 4 August 2022 suggesting a meeting, a subsequent meeting was held with two Union officials on 20 September 2022, at which the Union confirmed they were seeking voluntary recognition. The Employer tried to clarify whether the Union was seeking recognition for ACEs, the Company’s cleaning operatives only, or ACEs plus supervisors, both who are hourly paid. The Employer was told both yes and no and further discussions did not really progress. Acas was then invited to help and two meetings took place with the Union facilitated by Acas on 11 January 2023 and 15 March 2023 but no progress was made. In its application the Union states its proposed bargaining unit consists of three sites – the two above plus a third site ASC, ASDA Falkirk. However, during discussion no modified bargaining unit has been agreed by the Employer. Consequently, the proposed bargaining unit in the application is not identical to the one set out in the Union’s request.

11) The Employer stated 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 it and set out its objections.

12) When asked if, following receipt of the Union’s request, it had proposed that Acas should be requested to assist, the Employer answered “No, not at first although ACAS were later invited to assist and did so”.

13) The Employer stated that it employed a total of 531 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 “Yes”.

14) When asked if there is an existing agreement for recognition in force covering workers in the proposed bargaining unit, the Employer responded by stating “No”

15) When asked if it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated “N/A”.

16) Finally, the Employer answered “N/A” when asked if it was aware of any previous application under the Schedule for statutory recognition by the Union in respect of this or a similar bargaining unit or whether it had received any other applications under the Schedule for recognition in respect of any of the workers in the proposed bargaining unit.

5. The check of membership and support

17) 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. 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 the workers in the bargaining unit which had been proposed by the Union in its application form, and that the Union would supply to the Case Manager a list of its paid-up members within that unit including their full names, dates of birth and job titles (where available). 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 from the Case Manager to both parties dated 24 April 2023. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

18) The list supplied by the Employer showed that there were 25 workers in the proposed bargaining unit. The list of members supplied by the Union contained 17 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 14, a membership level of 56.00%.

19) A report of the result of the membership and support check was circulated to the Panel and the parties on 27 April 2023 and the parties were invited to comment on the results by the close of business on 4 May 2023.

6. Parties’ comments on the result of the membership and support check

20) Asked for its comments on the Case Manager’s check the Union submitted a letter dated 5 May 2023 in which it stated that it met the requirement of at least 10% of the workers constituting the relevant bargaining unit adding that it currently had a membership density within the three sites operated by City Facilities Management (Distribution) of 56%. The majority of the workers would want the Union to conduct collective bargaining on their behalf of the bargaining unit.

21) In comments received on 4 May 2023 the Employer stated that it accepted the information provided by the Union. It also stated that it had no reason to believe that a significant number of union members in the proposed bargaining unit did not want the union to conduct collective bargaining on their behalf so saw no reason for the CAC to ballot on that point.

7. Considerations

22) 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.

23) In order to determine whether the application was made in accordance with paragraph 12 the Panel must decide whether the bargaining unit proposed by the Union in this application is the same bargaining unit that it proposed in its formal request to the Employer for recognition.

24) Paragraph 1 of the Schedule sets out the first step to be taken by a trade union seeking statutory recognition. It provides:

1) A trade union (or trade unions) seeking recognition to be entitled to conduct collective bargaining on behalf of a group or groups of workers may make a request in accordance with this Part of this Schedule.

25) Paragraph 2 of the Schedule then defines the proposed bargaining unit:

2) - (1) This paragraph applies for the purposes of this Part of this Schedule.

(2) References to the bargaining unit are to the group of workers concerned (or the groups taken together).

(3) References to the proposed bargaining unit are to the bargaining unit proposed in the request for recognition.

26) Paragraph 2 above makes clear that the proposed bargaining unit is the bargaining unit that is set out in the Union’s formal request for recognition. In this case the Union made its formal request for recognition by way of a letter dated 22 August 2022. It stated:

“I am contacting you to seek a Voluntarily Recognition Agreement with City Facilities Management, under Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992.

I am proposing a new agreement between the City Facilities Management (Distribution) and GMB Scotland Trade Union for the two sites in Scotland: Asda CDC4 Distribution Falkirk

Asda ADC4 Distribution Grangemouth

At this stage the job titles and we are making a request to represent (which is not exhaustive) are:

Hourly paid staff Identified as Asda Ace (Cleaners)

It is my proposal that the bargaining unit will cover permanent employees employed at both Scottish sites.

It would be beneficial if we had a meeting to discuss this matter further and if you are agreeable to this then please respond with options for such a discussion to take place and we can co-ordinate diaries accordingly.

I am also willing to include ACAS in any discussions.”

27) However, when the Union lodged its application to the CAC it sought recognition for a bargaining unit that comprised of “3 sites which are owned by Asda Stores 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 widely known as known as Asda Aces. They are all hourly paid”.

28) What had originally been a bargaining unit covering two sites in its request had become a bargaining unit that now extending to three sites. In its application the Union stated that the parties had not agreed the bargaining unit, and this is confirmed by the Employer in its response to the application.

29) The question is whether an application can be treated as made in accordance with paragraph 12(2) if a union applies for recognition in respect of a different bargaining unit to the one in its formal request in the absence of any agreement by the Employer.

30) Paragraph 12 of the Schedule is the relevant paragraph which applies in circumstances, such as here, where the parties entered into negotiations as a result of a formal request having been made, but no agreement is concluded. It provides:

12) - (1) Sub-paragraph (2) applies if-

(a) the employer informs the union (or unions) under paragraph 10(2), and

(b) no agreement is made before the end of the second period.

(2) The union (or unions) may apply to the CAC to decide both these questions-

(a) whether the proposed bargaining unit is appropriate;

(b) whether the union has (or unions have) the support of a majority of the workers constituting the appropriate bargaining unit.

(3) Sub-paragraph (4) applies if-

(a) the employer informs the union (or unions) under paragraph 10(2), and

(b) before the end of the second period the parties agree a bargaining unit but not that the union is (or unions are) to be recognised as entitled to conduct collective bargaining on behalf of the unit.

(4) The union (or unions) may apply to the CAC to decide the question whether the union has (or unions have) the support of a majority of the workers constituting the bargaining unit.

…

31) Where negotiations do not result in an agreement as to the appropriate bargaining unit or any agreement that the union is recognised, a union may apply to the CAC under paragraph 12(2). It is then clear from the wording of paragraph 12(2) that the overarching questions the CAC must address are firstly whether the proposed bargaining unit is appropriate and secondly, whether the Union has the support of a majority of the workers constituting the appropriate bargaining unit.

32) It is evident to the Panel that, given that the parties failed to agree the appropriate bargaining unit, the Union must apply to the CAC in respect of the proposed bargaining unit. Paragraph 2(3) of the Schedule as set out above, states that this is the bargaining unit proposed in the request for recognition. This is a bargaining unit comprising two sites and not the three-site bargaining unit that appeared in the Union’s application to the CAC.

8. Decision

33) That the Union has not brought its application in respect of its proposed bargaining unit leads the Panel to conclude that the application has not been made in accordance with paragraph 12. It is for this reason that the application is not accepted by the CAC.

34) Having reached the decision that the application had not been made in accordance with paragraph 12 the Panel did not consider the other admissibility tests set out in paragraph 4 above.

9. Observations

35) As the application has not been accepted the Union is free to submit a fresh application once it has decided its proposed bargaining unit. If it wishes to apply in respect of the three-site unit it should make a fresh request to the Employer clearly setting this out.

36) The Panel also notes that the Union’s original request for recognition calls upon the Employer to recognise “GMB Scotland trade union” yet the copy of the Certificate of Independence submitted along with its application is in the name of the ‘GMB’. If the Union wishes to seek recognition in a name other than that in its certificate of independence, it may find it runs the risk of its application being rejected under paragraph 6 of the Schedule.

Panel

Mrs Lisa Gettins, Panel Chair

Mr Alastair Kelly

Mr Ian Hanson

18 May 2023