Decision

Acceptance Decision

Updated 11 March 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1333(2023)

26 October 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

DHL Services Ltd (DHL ACCORD)- DHL Supply Chain

1. Introduction

1)         GMB (the Union) submitted an application to the CAC dated 1 June 2023 that it should be recognised for collective bargaining purposes by DHL Services Ltd (DHL ACCORD)- DHL Supply Chain (the Employer) in respect of a bargaining unit comprising “First Line Managers and Full-Time Warehouse Employees (including Inventory Workers, Administration Employees and Receptionists).” The location of the bargaining unit was given as “DHL Services Ltd also known as DHL (Accord), DHL Life Sciences / DHL Supply Chain, Accord Distribution Centre, Collett, Didcot, OX11 7WB.” The application was received by the CAC on 1 June 2023 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 8 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 Chairman established a Panel to deal with the case. The Panel consisted of Ms Laura Prince K.C., Panel Chair, and, as Members, Mr Rob Lummis and Mr Nicholas Childs. The Case Manager appointed to support the Panel was Joanne Curtis.

3)         The CAC Panel has extended the acceptance period in this case. The initial period expired on 15 June 2023. The acceptance period was extended to 30 October 2023 in order to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the comments before arriving 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 had made a request for recognition to the Employer on 31 March 2023. The Union said that the Employer responded to the request on 6 April 2023 stating: “Thank you for your revised Schedule A1 regarding Didcot, which was received 31st March 2023. As per previous dialogue / conversations, if GMB were prepared to give us indicative site membership figures, then we could review our position in terms of engaging in dialogue with yourself / GMB before the formal CAC process starts. I know this particular issue has been discussed a number of times (and I recognise the responses you have previously provided regarding it). If you do not reply with any indicative numbers, then we are unfortunately going to have to let the pre-determined process take its’ course, and do not see any benefit in pursuing other avenues such as ACAS”. A copy of the Union’s letter of 31 March 2023 and the subsequent emails exchanged between the parties were attached to 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, “None.” 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 70. The Union stated that there were 52 workers in the proposed bargaining unit and that 31 of those were members of the Union. The Union said that the Employer agreed on the number of workers in the proposed bargaining unit. The Union went on to say that a list of members and a signed petition could be provided to the CAC for the purposes of carrying out a membership and support check.

8)         The Union stated that the reason for selecting its proposed bargaining unit was that the workers were individuals that had previously been represented at other sites and were reliant on pay and bargaining adding “they also are the predominant site membership.” In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “Yes”. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit, however there was a similar bargaining unit which existed “at a site linked in Banbury.”

9)         The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application and supporting documents to the Employer on 1 June 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 had initially received the Union’s written request for recognition on 15 November 22, after which discussions took place.  The Employer went on to say that a further updated request was sent on 31 March 2023. The Employer attached a copy of its response to the Union’s request dated 6 April 2023.

11)       The Employer stated that it had received a copy of the Union’s application form from the Union on 1 June 2023.  The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union, nor did it agree with the proposed bargaining unit. The Employer said the list of categories of workers that it accepted included “warehouse colleagues, inventory colleagues, administration and receptionist.” The Employer went on to say that in the event that collective bargaining rights were given to the “First Line Manager Population” it would expect a separate collective bargaining agreement to cover those workers and that this was a pre-established protocol across a number of DHL sites.

12)       The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist the parties. The Employer added it had asked the Union to provide details of how many members the Union had at the Didcot site, and the Union wasn’t prepared to disclose this information. The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application and said that there were 104 workers at the Didcot site 92 of which came within the Union’s proposed bargaining unit. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13)       In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated, “we are unaware of the members that GMB has at site we can’t make any comment on GMBs alleged numbers however we have asked them on multiple occasions to share.  This is the first time that we have seen them as part of this application.” 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 said “our understanding from our headcount numbers and the number the GMB has stated we don’t think it’s proportionate representation of the workforce. Of the 92 employees in scope, the GMB have stated that they have 31 employees who have registered their interest, this is approximately 34% of the workforce.”

14)       The employer replied “N/A” when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit and also when asked if it had received any other applications in respect of workers in the proposed bargaining unit. The Employer also stated that it consented to its contact details being provided to Acas.

5. The Union’s comments on the Employer’s response

15)       In an email dated 13 June 2023 the Union stated it had no objection to a separate bargaining unit for first line managers however this would require a representative for what would be a relatively small group. The Union said it considered that it was “more pragmatic to negotiate on behalf of all parties with variations to conditions negotiated by elected representatives for the entire body as adding further representatives would no doubt lead to release for further staff that may be detrimental operationally. GMB of course welcome the opportunity for more representatives but are mindful this site is not substantial in terms of workforce.” Turning to the size of workforce the Union said that when it was granted access to recruit, a large proportion of the workers at that time were agency workers. The Union said that these workers had subsequently been employed in a full-time capacity.

16)       The Union said that it was confident it would see a growth in membership based upon the agency workers changing their status to employees but had no proof that the numbers stated by the Employer were accurate in terms of identifiable staffing levels at the site. The Union said that it was standard practice not to disclose membership numbers so as not to cause detriment to the workers who were members and may be more identifiable. In conclusion the Union said that the Employer had changed its stance on having Acas involved and the Union therefore had no objection to engaging in conciliation.

6. The membership and support check

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 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, and a petition supplied by the Union. 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, dates of birth and job roles (where available) as well as a copy of its petition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and petition would not be copied to the other party. These arrangements were confirmed in a letter dated 9 October 2023 from the Case Manager to both parties.

18)       The information requested from the Employer was received by the CAC on 11 October 2023 and from the Union on 10 October 2023. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

19)       The list supplied by the Employer indicated that there were 85 workers in the Union’s proposed bargaining unit.

20)       The list of members supplied by the Union contained 26 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 21, a membership level of 24.71%.

21)       The petition supplied by the Union contained 67 names, of which 47 were in the proposed bargaining unit, a figure that represented 55.29% of the proposed bargaining unit. Of those 47 names, 21 were members of the Union (24.71% of the proposed bargaining unit) and 26 were non-members (30.59% of the proposed bargaining unit). The petition was submitted on A4 sheets, and was set out as follows:

PETITION IN SUPPORT OF RECOGNITION

DHL (Accord), Accord Distribution Centre, Collett, Didcot, OX11 7WB

GMB trade Union is asking your employer to recognise it for collective bargaining. We have to show the Central Arbitrtaion 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 to conduct collective bargaining on pay, hours and holidays on behalf of First Line Managers and Full-Time Warehouse Employees (including Inventory Workers, Administration Employees, and Receptionists).

22)       A report of the result of the membership and support check was circulated to the Panel and the parties on 11 October 2023 and the parties were invited to comment on the results of that check by noon on 16 October 2023.

7. Summary of the Employer’s comments following the membership and support check

23)       In an e mail dated 16 October 2023 the Employer stated that the bargaining unit described was not what was agreed. The Employer said that whilst it embraced the idea of having bargaining units within the DHL sites, it did not believe that the bargaining unit proposed was compatible with effective management as management positions (including First Line Managers and the Quality Team) should not be within the same bargaining unit as those in non-management positions. The Employer said, “it would be necessary to separate out the warehouse colleagues, including admin and inventory into one bargaining unit and have a separate bargaining unit for our managerial employees, First Line Managers and our Quality team.” The Employer said it did not feel it was appropriate to have the receptionist role included in the collective bargaining unit “due to the nature of confidential information that they are privy to in relation to DHL, our customer, and our businesses and, again, we do not consider this to be compatible with effective management.”

24)       The Employer then went on to say that it did not contest that the 10% threshold had been met, however, the Employer did not believe the petition provided by the Union accurately represented the support of the workers. The Employer said “we have received anecdotal comments and written statements from colleagues stating that they were intimidated/pressurised into signing the petition.  For example, we have been informed that in April 2023, the GMB were outside of the gates of the site to canvas support for membership and recognition and colleagues reported that they felt pressurised into signing the petition and did so simply so that they could exit the site.” The Employer attached a redacted document containing anonymised statements which it said supported the above point. The Employer concluded by stating that it did not believe that the Union had the support for collective bargaining and that it was in the interests of all parties that a secret ballot took place to ascertain the true level of support.

8. Summary of the Union’s comments following the membership and support check

25)       The Union said that it wrote to the Employer on behalf of its members forwarding a recognition agreement to senior site management. The Union said that it attended a meeting, with the expectation of proceeding to negotiation, however the Union was advised that the Employer felt a works council was adequate. Further meetings were arranged, and the Union said that in this time agency workers became full time workers thereby reducing union membership saturation and leaving potential members concerned that joining a Union could be detrimental at such an early stage of employment. In April 2023, the Union said it embarked upon a request for the Union’s “onsite proposed convenor” to obtain petition signatures, as well as holding a session outside the perimeter to meet those coming off shift and obtain signatures. The Union went on to say “this was good natured and took place in very adverse weather conditions. Towards the end of our time nearby to the site we were confronted aggressively by a First Line Manager (FLM) who questioned our right to be near the site without approval and who was also menacing to other staff present. In the immediate days following one individual was faced with an unexpected disciplinary process, which we believe was because of their being seen engaging with myself and the Branch Secretary responsible for the Accord site. In the recent period we are of the opinion that individuals have been dissuaded from union membership based upon internal management behaviours which are of course difficult to prove. However, given a decision at the Banbury Life Sciences site where a voluntary agreement has been breached by DHL during a redundancy process, GMB is naturally reticent to accept DHL being keen to seek meaningful resolution. Attempts by GMB to be as conciliary as possible as well as the enforced redundancy of our lead representative based upon the current consultation and the belief at DHL that disciplinary and grievance procedures can be effected by volunteers ostensibly it appears DHL may be exhibiting anti-union behaviours that affect employees’ rights and protections.” The Union concluded by saying that statutory recognition was the only route forward as it doubted that the Employer would agree to any voluntary agreement.

9. 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 considered carefully 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 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 paragraphs 36(1)(a) and paragraph 36(1)(b) are met

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 proposed bargaining unit. 

29)    The membership check conducted by the Case Manager (described in paragraphs 17 to 21 above) showed that 24.71% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 18 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

30)       For the reasons set out in paragraph 29 above the Panel has 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)

31)       Under paragraph 36(1) 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.

32)       In April 2023 the Union carried out a petition of those workers in the proposed bargaining unit the results of which are described in paragraph 21 above. The Employer submitted that it did not believe the petition provided by the Union accurately represented the support of the workers. The Employer said it had received anecdotal comments and written statements from colleagues stating that they were intimidated/pressurised into signing the petition. The Employer supplied these anonymised comments, which were brief in nature to the Panel when responding to the report on the membership and support check. The Panel does not consider that these comments detract from the level of support indicated by the signatories to the petition and no other workers have provided statements to the Employer withdrawing support.

33)    On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, 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.

10. Decision

34)       For the reasons given in paragraphs 26-33 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Ms Laura Prince K.C., Panel Chair.

Mr Rob Lummis

Mr Nicholas Childs

26 October 2023