Decision

Acceptance Decision

Updated 2 June 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1324(2023)

2 June 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

Matalan

1. Introduction

1) GMB (the Union) submitted an application to the CAC on 19 May 2023 that it should be recognised for collective bargaining by Matalan (the Employer) for a bargaining unit comprising the “The Matalan Corby Warehouse Management Group consisting of the Shift Managers and Team Managers”. The location of the bargaining unit was given as Matalan Distribution Centre, Curver Way, Corby NN17 5XU. The CAC gave both parties notice of receipt of the application on 19 May 2023. The Employer submitted a response which was received by the CAC on 25 May 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, Panel Chair, and, as Members, Mr Kieran Grimshaw and Mrs Anna Berry. The Case Manager appointed to support the Panel was Kaniza Bibi.

2. Issues

3) 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. The Union’s application

4) In its application the Union said that it had written to the Employer with a formal request for recognition on 5 March 2023 and that on 17 March 2023 the Employer requested 10 working days to consider the matter. It then contacted the Union with dates for discussions to take place. Meetings then took place on 4 April 2023 and 19 April 2023 but no agreement was subsequently reached.

5) According to the Union, there was a total of 275 workers employed by the Employer with 23 of these falling within the proposed bargaining unit. The Union stated that the Employer agreed the number of workers in the proposed bargaining unit. Asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated that there were 15 members in the proposed bargaining unit and referred to a list with names and signatures that was attached to its application and which was titled “AUTHORITY TO PROCEED TO CAC BALLOT FOR GMB RECOGNITION”.

6) The Union stated that it had selected the proposed bargaining unit because membership had grown amongst this group of workers. The group had requested recognition because they had not received a pay rise for the previous six years. The Union confirmed that the bargaining unit had not been agreed with the Employer.

7) The Union enclosed a copy of its certificate of independence with its application. The Union confirmed that, following receipt of its request for recognition, the Employer did not propose that Acas be requested to assist the parties.

8) Finally, when asked if the Union had made a previous application in respect of this or a similar bargaining unit the Union said that a voluntary recognition agreement existed for the Warehouse Workers on the site and this had been in place since 2009. When asked if there was an existing agreement covering any of the workers in the proposed bargaining unit the Union answered “No”.

4. The Employer’s response to the Union’s application

9) When asked on what date the Employer received the Union’s formal request under Schedule A1 for recognition the Employer stated that an email dated 5 March 2023 was received from the Union, copy attached, but this written request did not specify the request for recognition was made under Schedule A1.

10) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated that a copy of the application form and copies of any relevant supporting documents were not received from the Union. The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form and that this was still the case. The Employer then set out its objections to the proposed bargaining unit.

11) The Employer stated that it employed 10,368 workers. The Employer did not agree with the Union’s figure as to the number of workers in the bargaining unit, explaining that there were currently 24 Team Managers and three Shift Managers within the proposed bargaining unit. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer stated that it had no evidence to support the Union’s assertion as to it membership numbers. When asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, the Employer stated that it believed that within the Shift Manager grouping of three there was only one Shift Manager seeking recognition and/or supported recognition. The Employer believed this Shift Manager had then approached Team Leaders he managed and other Team Leaders he was senior to, to seek their assistance in getting recognition for himself and so his pay & conditions would be determined by way of collective bargaining. The Employer therefore did not believe that the Team Leaders had given their support freely and without potential duress and believed a free and independent ballot of Team Leaders would not give the Union the majority support it required. The Employer also noted that the Union had included names/signatures in support of its application which were pp’d and therefore could not be included and should be discounted.

12) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the proposed bargaining unit. When asked whether, following receipt of the Union’s request, the Employer had proposed that Acas be requested to assist, the Employer answered “No”.

5. Considerations

13) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied.

14) Paragraph 1 of Schedule A1 states that a trade union seeking recognition to be entitled to conduct collective bargaining on behalf of a group of workers may make a request in accordance with this Part (Part I) of the Schedule. Paragraph 4 of the Schedule states that paragraphs 5 to 9 apply to the request.

15) Paragraph 8 of the Schedule provides:

8) The request is not valid unless it-

(a) is in writing,

(b) identifies the union or unions and the bargaining unit, and

(c) states that it is made under this Schedule.

16) Paragraph 15(2)(a) requires the CAC to decide whether the request for recognition to which the application relates is valid within the terms of paragraphs 5 to 9. In this case the email relied upon by the Union as its formal request for recognition reads as follows:

“Subject: GMB Recognition Agreement For The Managers at Matalan Corby DC.

Hi Emma,

I am writing to Formally Request a Voluntary Recognition Agreement for the Managers at the Corby DC,we have the 50+1% required(we actually have more than this). We are looking for a robust agreement,that allows for them to have bargaining rights for Pay and Terms, Conditions of Employment,and Check Off(deduction of Union Payments from source) we would also look for a Representative for each Shift with Union Facility Time and time off to attend Union Training Courses. I’m looking for a quick turnaround on this please,as I cannot see any milage in this progressing to a CAC(Central Arbitration Council). I look forward to your reply and a discussion.

Kind Regards”

17) This email, whilst in writing and identifying the union and the bargaining unit, so satisfying the requirements under paragraph 8(a) and (b) of the Schedule, fails to satisfy the requirement in paragraph 8(c), as noted by the Employer. In order for the request to be a valid request it must also state that it is made under Schedule A1. This the Union failed to do. Accordingly, the Panel finds that it is not a valid request.

6. Decision

18) For the reason given above, the Panel concludes that the request is not a valid request for recognition in accordance with paragraph 8 of the Schedule and so the application is not accepted by the CAC.

19) Having arrived at the decision that the request is not a valid request, the Panel did not go on to consider the other matters referred to in paragraph 3 above, that is whether the application was made in accordance with paragraphs 11 or 12 or whether it was admissible within the terms of paragraphs 33 to 42. It is for this reason that the Panel did not seek evidence from the Union that it satisfied the requirements of paragraph 34 of the Schedule which states that an application under paragraph 11 or 12 is not admissible unless the union gives to the employer (a) notice of the application, and (b) a copy of the application and any documents supporting it.

Panel

Mrs Lisa Gettins, Panel Chair

Mr Kieran Grimshaw

Mrs Anna Berry

2 June 2023