Decision

Acceptance Decision

Updated 13 July 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1216(2021)

19 April 2021

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

Grissan Carrick Limited

1. Introduction

1) GMB (the Union) submitted an application to the CAC dated 20 March 2021 that it should be recognised for collective bargaining purposes by Grissan Carrick Limited (the Employer) in respect of a bargaining unit comprising “Everyone employed by Grissan Carrick Limited excluding the Site Leader, Maintenance Team Leader and the two Process Team Leaders (the bargaining unit).” The location of the bargaining unit was given as “Grangestone Industrial Estate, Ladywell Avenue, Girvan, Ayrshire, Scotland, KA26 9PT.” The application was received by the CAC on 22 March 2021 and the CAC gave both parties notice of receipt of the application the same day. The Employer submitted a response to the CAC dated 29 March 2021 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 Professor Kenny Miller, Panel Chair, and, as Members, Mr Tom Keeney and Mr Steve Gillan. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 5 April 2021. The acceptance period was extended to 20 April 2021 in order to allow time for a membership and support check to take place, for the parties to comment on the subsequent report, and for the Panel to consider those 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 sent its request for recognition to the Employer on 4 March 2021.

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 “Yes”. The Union said that this application was withdrawn by the GMB on 18 May 2020. 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 it estimated that the total number of workers employed by the Employer was approximately 21. The Union stated that it estimated that there were 17 workers in the proposed bargaining unit, of whom 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 said that “as we nearly have a majority of the workers in the bargaining unit at the moment”, it believed the majority were in favour of recognition.

8) The Union stated that the reason for selecting its proposed bargaining unit was because it included everyone but the four senior managers. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. The Union said that there was no existing recognition agreement of which it was aware that covered any workers in the bargaining unit.

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 20 March 2021.

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 4 March 2021. The Employer responded by e-mail dated 11 March 2021. In this e-mail the Employer informed the Union that it was having difficulty understanding why it wanted to pursue recognition or why it considered that it would be successful pursuing formal recognition via the CAC again. The Employer had also asked the Union to explain what had changed since it had last pursued recognition and it asked the Union to confirm the number of GMB members within the bargaining unit. The Employer stated that no substantial response was provided by the Union. The Union responded by e-mail on 15 March 2021, in which it had informed the Employer that the information could be provided if it was for the purpose of meaningful engagement in a voluntary process through Acas, alternatively it would receive it as part of the formal process. A copy of the Employer’s e-mail of 11 March 2021 and the Union’s e-mailed response dated 15 March 2021 were set out within the body of the Employer’s response.

11) The Employer said that it had received a copy of the application form and supporting documents from the Union on 20 March 2021. 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, but it did now agree the proposed bargaining unit.

12) When asked whether following receipt of the Union’s request it had proposed that Acas should be requested to assist, the Employer stated that it had not agreed to Acas involvement following receipt of the 2021 application.

13) The Employer said that it agreed with the number of workers in the bargaining unit as set out in the Union’s application, but it did not agree that there were sufficient members within the bargaining unit to support an application made under the Schedule.

14) The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

15) The Employer said that it disagreed with the Union’s estimate of membership in the proposed bargaining unit. It was the Employer’s view that the Union did not have majority membership within the proposed bargaining unit.

16) Furthermore, the Employer said that the Union’s membership was on a downwards trajectory. The number of union members, as disclosed by GMB, had decreased by 20% since the 2020 application. The Union had failed to provide any evidence of a petition or other means to show or to demonstrate that the majority of workers within the bargaining unit would favour recognition. The Employer believed that it was noteworthy that no evidence had been provided with the application and that it it was “flatly refused” by the Union during the parties’ exchange of correspondence when the formal request for recognition was made on 4 March 2021. The Employer believed that the Union’s best case was only a hope that their fortunes would change and that the decline in union membership would reverse. The Employer maintained that this was not the case on the evidence presented.

17) 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 explained that Grissan Carrick had in place an internal information and consultation forum (the “I&C Forum”). This Forum was created in April 2020. The terms of reference were as attached to its response, which, the Employer said, included:

• The Forum is intended to represent all employees via the elected employee representatives from each site within the company.

• The Forum will be pitched at high-level discussion relating to changes in the organisation.

• The Forum will consider matters relating to Health and Safety; Education; Training; Equal treatment; Pensions; People Policies; Anticipated vacancies, (new roles).

• Employees can bring ideas for improvement or innovation, smarter ways of working and queries to the Forum.

• If any information disclosed at the Forum is Business sensitive, Employee Representatives will be required to sign confidentiality agreements related to the Forum.

18) The Employer stated that a recent example of the workers engaging with the Employer and achieving an outcome in their favour through the I&C Forum was in connection with a request from workers that an additional benefit be provided to reward length of service by awarding additional holiday days (depending on the length of service of an individual worker). The request was presented, debated, considered by senior management and then agreed and offered to the workers. Separately, the I&C Forum was also used by workers to request private health cover, which was now provided following that request. These were examples of the effectiveness of the engagement already in place with workers.

19) The Employer believed that the I&C Forum had a wider and more effective application than the bargaining unit proposed by the Union provided, and it also allowed the workers to benefit from ideas advanced by other companies within the Grissan Group. Since its inception in April 2020, there had been no request by workers at the I&C Forum for Trade Union recognition.

20) When asked whether it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, and, whether had it received any other applications in respect of any workers in the proposed bargaining unit, the Employer referred to the Union’s previous application for recognition dated 24 April 2020.

5. The membership and support check

21) 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 membership of the Union 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 the proposed bargaining unit (including their 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 31 March 2021 from the Case Manager to both parties.

22) The information requested from the Union was received by the CAC on 31 March 2021. The information requested from the Employer was received by the CAC on 6 April 2021. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

23) The list supplied by the Employer indicated that there were 17 workers in the Union’s proposed bargaining unit.

24) The list of members supplied by the Union contained 9 names. According to the Case Manager’s report, the number of union members in the proposed bargaining unit was 8, a membership level of 47.06%.

25) A report of the result of the membership and support check was circulated to the Panel and the parties on 6 April 2021 and the parties were invited to comment on the results of that check, by the close of business on 12 April 2021.

6. Summary of the parties’ comments following the membership and support check

26) In an e-mail to the CAC dated 7 April 2021, the Union stated that although it was disappointed that it did have a clear majority of union members, the test under the legislation was whether the Panel was satisfied that a majority of workers in the bargaining unit would be likely to favour recognition. Therefore, it asked that the Panel consider the following factors. The current density of 47.06% had been created without a single visit to the workforce from a union representative to discuss the merits of union membership. The membership at Grissan Carrick had grown completely organically from a need of representation and bargaining. The Union therefore believed that it was likely that at the very least 1 out of the other 9 workers would favour recognition of the Union. The Union said that it believed the CAC had “made the call that a majority of workers is likely to favour recognition where trade union membership is in the late 40’s percentages.” The Union maintained there was no evidence to suggest that any of the workers did not want the union to be recognised, and as the Union were unable to visit the site to discuss union membership with the workforce it could not be suggested that any of the members were coerced into joining. The Union further added that it therefore did not believe that it was necessary for a ballot to be held as the Panel had enough information to grant recognition.

27) In an e-mail to the CAC dated 13 April 2021 the Employer provided its comments on the report. The Employer reiterated a point made in its earlier response to the Union’s application, that even on the Union’s best case as presented in its application, and now following the membership check, it was unable to show that a majority of the workers in the bargaining unit would favour recognition.

28) The Employer referred to paragraph 3.8 of the CAC’s Guide for the Parties, stating that “Information about the number of workers in the bargaining unit who belong to the union making the application should also be included, together with evidence (in any form) that the majority of workers in the bargaining unit is likely to favour recognition”. The Employer asserted that save for the numbers provided and the membership check, neither of which the Employer believed provided evidence of a majority, no such evidence of a majority in favour of recognition had been provided.

29) The Employer submitted that it was apparent from the information available that there was no majority in the bargaining unit likely to favour recognition. Those workers already had access to the I&C Forum, where via elected representatives across the business, workers could discuss not only issues regarding pay and benefits but wider work place issues. Such a Forum also represented a wider cohort than the bargaining unit. The Employer stated that it had previously provided a copy of the minutes of the I&C Forum with its earlier response to the Union’s application.

30) Finally, the Union said that there had been no request for trade union recognition raised as a concern at the I&C Forum or elsewhere by any of the workers. It believed that in the absence of any such discussion by representatives at the I&C Forum, this was in itself persuasive evidence that workers did not support recognition of the Union.

7. Considerations

31) 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 material to the matters it is required to decide in reaching its decision.

32) 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 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.

8. Paragraph 36(1)(a)

33) 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. The membership check conducted by the Case Manager (described in paragraphs 21 - 24 above) showed that 47.06% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 22 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 proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

9. Paragraph 36(1)(b)

34) 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. For the reasons given in paragraph 33 above the level of union membership within the bargaining unit stands at 47.06%.

35) At this initial stage of the statutory process the assessment that the Panel must make is one of likely support rather than a strict arithmetical measure – one of theoretical rather than concrete support.

36) The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition. No such evidence to the contrary was received in this case.

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

10. Decision

38) For the reasons given in paragraphs 32 - 37 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Kenny Miller, Panel Chair

Mr Tom Keeney

Mr Steve Gillan

19 April 2021