Decision

Acceptance Decision

Updated 26 May 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1318/2023

26 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

CVH Spirits Limited

1. Introduction

1) GMB (the Union) submitted an application to the CAC dated 24 April 2023 that it should be recognised for collective bargaining purposes by Distell International Ltd ^{[footnote 1]} (the Employer) for a bargaining unit “the initial request was for Production/Distillery. On further correspondence between the two parties, and on the insistence of the company, it was defined to roles of Process Operators”. The location of the bargaining unit was given as Bunnahabhain Distillery, Port Askaig, Islay. The application was received by the CAC on 24 April 2023 by e mail and 25 April 2023 by post. The CAC gave notice of receipt of the application to the parties on 25 April 2023. The Employer submitted a response to the CAC dated 3 May 2023 which was copied to the Union. ^{[footnote 2]}

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 Ms Naeema Choudry, Panel Chair, and, as Members, Mr Roger Roberts and Mr Matt Smith OBE . 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 11 May 2023. The acceptance period was extended to 31 May 2023 to allow the Panel to consider all the evidence 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 sent a request for recognition to the Employer on 27 January 2023. It stated that the Employer initially requested to speak with staff before deciding whether or not to engage with Acas. The Union stated that it had agreed to this and gave the Employer time to consult. The Union said that the Employer then confirmed its agreement to a meeting with the Union and Acas on 2 May 2023. The Union went on to say that on 12 April 2023 the Employer wrote to the Union stating that the Employer did not wish to enter into a voluntary agreement with the Union. A copy of the initial request letter and e mail correspondence between the Parties regarding the request 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 “N/A”. The Union stated that, following receipt of the request for recognition, the Employer had proposed that Acas should be requested to assist the parties, and that the Union had agreed.

7) The Union stated that the total number of workers employed by the Employer, was 313. The Union stated that there were 11 workers in the proposed bargaining unit, of whom eight (8) were members of the Union. When asked 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, “have a petition in support also.”

8) The Union stated that the reason for selecting the proposed bargaining unit was that it had identified an area of interest for a distinct bargaining unit amongst Process Operators at Bunnahabhain Distillery. The Union went on to say “this is the only area of the Employer GMB has members. They are specific in location and, the group of workers has provided support in creating a Bargaining Unit.” The Union said that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the proposed bargaining unit the Union answered “No”.

9) The Union did not tick the box to confirm yes or no to having a current certificate of independence. The Union stated that it had copied its application and supporting documents to the Employer on 24 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 had received the Union’s written request for recognition on 27 January 2023 however that application related to “employees who work in the following departments …Production/Distillery”. The Employer said that this was not synonymous with Process Operators. When asked what its response was, the Employer said that initially it had informed the Union that it would speak to the workers to understand what the workers’ views were in order to respond more substantively. Having done so the Employer said that it informed the Union that it was not willing to discuss recognition at present. The Employer attached a copy of its response dated 13 February 2023 and the e-mails exchanged between the parties thereafter. The Employer also provided a copy of the e-mail dated 12 April 2023 confirming that it was not willing to negotiate further with the Union around the issue of a voluntary recognition agreement.

11) The Employer said that it had received a copy of the application form from the Union on 24 April 2023. 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 and that it did not agree the proposed bargaining unit. The Employer said “the request for voluntary recognition in respect of Process Operators was not a valid request under Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1993. A valid application was made in respect of employees who work in the following departments… Production/Distillery but that is not synonymous with the proposed bargaining unit. The Union subsequently did ask for recognition in relation to Process Operators, but that request did not comply with Schedule A1.”

12) The Employer stated that it did not agree the number of workers within the proposed bargaining unit. The Employer explained that there was normally 10 Process Operators. One was currently on maternity leave, and an additional person was working as a Process Operator to cover, making 11. The Employer added that there was also two (2) warehouse employees seconded to work as Process Operators as part of an agreed cross skilling plan. The Employer said that there were therefore currently 13 Process Operators, one of whom was on maternity leave.

13) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas be requested to assist. The Employer said that the Union had suggested that Acas be requested to assist when the application was sent to the Employer on 27 January 2023. The Employer said it agreed to a meeting between Acas and the Union, however after speaking with workers it had concluded that it did not want recognition at that time and informed the Union and Acas that it would no longer be attending the proposed meeting. The Employer confirmed that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

14) When asked if it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer answered “N/A”. 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 that it had held both individual and group meetings with the workers in the proposed bargaining unit and that from these meetings it believed that the workers were satisfied with direct negotiations and that the wish was to continue in this way. The Employer added that in view of the application it would ask the workers again whether they wished the Employer to recognise and collectively bargain with the Union.

15) 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 the Employer answered “N/A.” When asked if it had received any other applications in respect of workers in the proposed bargaining unit the Employer stated “N/A”.

16) The Employer’s response was shared with the Union on 4 May 2023 and the Union invited to comment by Noon on 13 May 2023.

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

17) The Union acknowledged that since the application was made Distell International Ltd had transitioned to CVH Spirits Ltd. The Union stated that it had made the request for Production/Distillery departments as it had been informed by its members that “these were the departmental names for those areas they were employed”. The union went on to say that the request for the job title of Production Operators was during an email exchange discussing the finer details of the request, still within the Schedule A1 conversation. The Union said that it was aware that on 26 April 2023 the Employer had held a ballot of the workers on site regarding views on Trade Union recognition. The Union stated that the result of this ballot was heavily in favour of recognition adding “the initial ballot paper provided by the employer was not designed to allow privacy and was seen as intimidatory by GMB members by asking colleagues to state ‘name’ & ‘signature’ next to your vote. When the ballot was conducted in private, and held in a confidential space, staff voted in favour of a recognition agreement 10 yes, 2 no.” The Union concluded by saying that by holding the ballot amongst Process Operators at Bunnahabhain Distillery only, the Employer had confirmed that the bargaining unit proposed by the Union was correct.

6. Considerations

18) 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.

19) 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.

20) 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.

21) 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.

22) Paragraph 2 makes clear that the proposed bargaining unit is that which is set out in the Union’s formal request for recognition. In this case, on 27 January 2023, the Union made a formal request for recognition to the Employer in the following terms:

“I am writing to you, regarding, GMB request for recognition at Bunnahabhain Distillery

I would like to request that we can arrange a voluntary recognition agreement between Bunahabhain Distillery and GMB Scotland, this would be an agreement that specifically covers employees who work in the following departments, the ‘bargaining unit’:

• Production/Distillery

GMB members are now eager to move forward with this agreement to ensure fairness and clarity within the workplace, and to allow them effective representation when required.

I would urge that this is carried out with the assistance of ACAS, who will independently advise and negotiate with all involved.

This request is being made by GMB Scotland under Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992

This can be an extremely straight forward process and is designed to reduce time and pressure for everyone.

I look forward to hearing from you shortly”.

23) However, the Union then went on to lodge an application to the CAC in which when asked to describe the bargaining unit stated “the initial request was for Production/Distillery. On further correspondence between the two parties, and on the insistence of the company, it was defined to roles of Process Operators”. The location of the bargaining unit was given as Bunnahabhain Distillery, Port Askaig, Islay. In the application the Union stated that the Employer did not agree the bargaining unit. The Union did state that the Employer, upon receiving the request for recognition, had agreed to speak to the workers and come back to the Union.

24) 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.

…

25) Where negotiations do not result in an agreement as to the appropriate bargaining unit or 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 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.

26) It is plain to the Panel that on reading this paragraph, given that no agreement was reached between the Union and Employer as to 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 the bargaining unit as stated by the Union in its letter of 27 January 2023 and one which would comprise “Production/Distillery”. The Panel does not accept the Union’s argument in the letter to the CAC dated 11 May 2023 that the request for the job title of Production Operators was during an email exchange discussing the finer details of the request, still within the Schedule A1 conversation.

7. Decision

27) 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.

28) 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.

8. Observations

29) 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 Process Operators then it should make a fresh request to the Employer clearly setting this out.

30) 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

Ms Naeema Choudry, Panel Chair

Mr Roger Roberts

Mr Matt Smith OBE

26 May 2023

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1. In the Union’s application the Employer is incorrectly stated to be Distell Internation Ltd instead of Distell International Limited ↩

2. In an e mail dated 27 April 2023 the Employer stated that it had now stopped trading under Distell International and had transitioned to CVH Spirits Ltd. The legal day one was 26 April 2023. The Panel Chair directed that the CAC amend its records accordingly. Neither the Employer or the Union objected to this change. ↩