Decision

Validity Decision

Updated 11 March 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1333(2023)

18 December 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

AGREEMENT ON THE BARGAINING UNIT

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)         By a decision dated 26 October 2023 the Panel accepted the Union’s application.  Following this decision, the parties then reached agreement on the appropriate bargaining unit.  The agreed bargaining unit was described as “Warehouse Administration, Warehouse Colleagues/ Operatives and Inventory workers.”

2. Issues

4)         As the agreed bargaining unit differed from that proposed by the Union, the Panel is required by paragraph 20 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application is invalid within the terms of paragraphs 43 to 50 of the Schedule. 

3. Membership and support check

5)         To assist the determination of two of the validity tests specified in the Schedule,  namely whether 10% of the workers in the agreed bargaining unit are members of the union (paragraph 45(a)) and whether a majority of the workers in the agreed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 45(b)), the Panel proposed an independent check of the level of union membership within the agreed bargaining unit and a petition compiled 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 agreed bargaining unit, and that the Union would supply to the Case Manager a list of its paid-up members within that unit (including their dates of birth) and a copy of the petition signed by workers in favour of recognition.  It was explicitly agreed with both the 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 23 November 2023 from the Case Manager to both parties.  

6)         The information from the Employer was received by the CAC on 27 November 2023 and from the Union on 24 November 2023.  The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.    

7)         The list supplied by the Employer indicated that there were 70 workers in the agreed bargaining unit.  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 agreed bargaining unit was 21, a membership level of 30.00%.  

8)         The Union also provided a petition which contained 67 signatures. and the name in block capitals across 5 sheets of A4 paper. The date those signatures were obtained was not included. The petition contained the following text at the top of each A4 sheet of paper:

4. 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).

9)         The check of the Union’s petition showed that it had been signed by 46 workers in the agreed bargaining unit, a figure which represents 65.71% of the agreed bargaining unit.  Of those 46 signatories, 20 were members of the Union (28.57% of the agreed bargaining unit) and 26 were non-members (37.14% of the agreed bargaining unit).

10)       A report of the result of the membership and support check was circulated to the Panel and the parties on 29 November 2023.  In a letter dated 29 November 2023 the Case Manager invited each party comment on the result of the check. The parties were also invited to make their submissions on the validity tests for consideration by the Panel.  

5. Union’s comments on the validity tests

11)       The Union said that whilst it accepted the contents of the report individuals had departed since the recognition process began. The Union went on to say, “due to our proposed convenor being on an extended leave until very recently GMB has not been in a position to recruit further membership.” The Union said that it had not carried out a further petition as workers had said they would only join the Union once recognition was in place. The Union said that it still relied on its earlier petition where the workers who had signed were in favour of recognition. The Union went on to say, “there is still a fear of reprisals, and many believe once DHL are in a position where they must fulfil the obligation of recognition then they will feel safer and acquire membership.” The Union further added “given the previous request by DHL to GMB to cease the path to applying to the CAC which was used to change agency staff over to full time employees the membership levels have been skewed and GMB believes that tests would have been met adequately had DHL not attempted to obfuscate and delay in an attempt to avoid recognition.” The Union concluded by saying that the petition proved “that recognition would be appreciated”. The Union emphasised that there was a high level of “approval for recognition in the petition and membership despite departures from the site.” The Union said that recognition should be granted without the need for a ballot.

6. Employer’s comments on the validity tests

12)       The Employer stated that it did not have anything to add regarding the membership and support check figures but wanted to reiterate its views regarding the validity check in particular on the issue of “are the majority of the workers in the new bargaining unit likely to favour recognition?” The Employer said that as membership within the proposed bargaining unit was 30%, the Union would be relying on the support of non-members to pass the validity test, and this had been presented in the form of a petition. The Employer stated that the petition was undated and believed to have been completed “many months ago, in or around April 2023.” The Employer went on to say “we, therefore, do not believe, based on anecdotal evidence and formal statements previously provided, that the petition is an up-to-date reflection of support within the bargaining unit. In addition, as previously advised, there are 22 vacancies within the bargaining unit and therefore within the coming weeks/months it is hoped these will be filled which could impact the support for recognition, one way or the other.” The Employer concluded by saying that a secret ballot should take place to assess the true and current level of support for recognition.

7. Considerations

13)       The Panel is required to decide whether the Union’s application is invalid within the terms of paragraphs 43 to 50 of the Schedule.  In reaching its decision the Panel has considered carefully the submissions of the parties and all the other evidence before it. 

14)       The Panel is satisfied that the application is not rendered invalid by any of the provisions in paragraphs 44 and 46 to 50 of the Schedule. The remaining issue for the Panel to decide is whether the application is invalid under paragraph 45 of the Schedule. 

Paragraph 45(a) 

15)       Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the Union constitute at least 10 per cent of the workers in the agreed bargaining unit. The membership check conducted by the Case Manager (see paragraphs 5 to 10 above) showed that 30.00% of the workers in the agreed bargaining unit were members of the Union.  As stated in paragraph 6 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.  The Panel has therefore decided that members of the Union constitute at least 10% of the workers in the agreed bargaining unit as required by paragraph 45(a) of the Schedule. 

Paragraph 45(b) 

16)       Paragraph 45(b) provides that the application in question is invalid unless the CAC decides that a majority of the workers constituting the agreed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit. The Panel notes that the support check conducted by the Case Manager (see paragraphs 5 to 10 above) showed that 65.71% of the workers in the agreed bargaining unit (46 out of 70 workers) had signed a petition in support of recognition of the Union.  Of those who had signed the petition, 20 were union members and 26 were non-members. The Panel notes the Employer’s submission that the petition was conducted some time ago however the Employer did not provide any evidence to indicate that the signatories had changed their minds about whether they favoured recognition of the Union.

17)       The Panel, at this stage, is testing the likelihood of majority support. On the basis of the evidence before it, and in the absence of any evidence to the contrary, the level of union membership and the fact that 26 non-members signed the Union’s petition in favour of recognition, taken together constitutes sufficient evidence for the Panel to conclude 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 45(b) of the Schedule.

8. Decision 

18)       For the reasons given in paragraphs 13 - 17 above, the Panel’s decision is that the application is not invalid, and that the CAC is proceeding with the application.

Panel  

Ms. Laura Prince K.C., Panel Chair

Mr. Rob Lummis

Mr. Nicholas Childs

18 December 2023