Decision

Acceptance Decision

Updated 23 February 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1295/2022

18 January 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

Movianto UK Limited

1. Introduction

1) GMB (the Union) submitted an application to the CAC dated 14 December 2022 that it should be recognised for collective bargaining purposes by Movianto UK Limited (the Employer) for a bargaining unit comprising “Medical Delivery Technician Class 1, and Medical Delivery Technician Van Drivers employed on the NHS contract.” The location of the bargaining unit was given as “Medical Delivery Technician Class 1, and Medical Delivery Technician Van Drivers employed on the NHS Contract at the Movianto site – Unipart Siskin Park Way Middlemarch Business Park CV3 4UP.” The application was received by the CAC on 14 December 2022 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 5 January 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 Professor Gillian Morris, Panel Chair, and, as Members, Mrs Susan Jordan 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 30 December 2022. The acceptance period was extended to 19 January 2023 to allow the parties to comment on the results of a membership check and for the Panel to consider these 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 a request for recognition to the Employer on 28 November 2022. A copy of the initial request letter was attached to the application. The Union stated that the Employer responded by way of an e mail dated 12 December 2022. ^{[footnote 1]} A copy of the response was pasted into the application. In its response the Employer stated that it did not wish to enter into an agreement at this time.

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 “No”. 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 unknown but over 21 nationally. The Union stated that there were 19 workers in the proposed bargaining unit, of whom 11 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 that a petition had been completed and that 15 of 19 names could be provided upon request.

8) The Union stated that the reason for selecting the proposed bargaining unit was that it included all roles outside of management. 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, “Not at this site GMB holds recognition with the company for a group of workers in Scotland”.

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 14 December 2022.

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 first request for recognition on 11 November 2022 and a further request on 28 November 2022. When asked what its response was, the Employer said that it had confirmed that it did not wish to enter into a voluntary agreement at that time. The Employer provided copies of both requests together with its response dated 11 December 2022.

11) The Employer said that it had received the latest copy of the application form from the Union on 14 December 2022 when it was blind copied into the e mail sent to the CAC. 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 stated:

We are a National business with over 16 sites across the country with a similar make up of workers to the proposed bargaining unit. As part of our compensation and benefit strategy, we have a single rate of pay agreed for each role, with allowances for regional differences. We have a number of employees who were transferred into our organisation through TUPE transfer and we have been working to improve terms and conditions for the whole workforce. In the last 2 years, our pay increases for this group of employees equates to c22% which we believe is fair and reasonable in the current business economic climate. We recognise GMB at our depot in Scotland, their pay and conditions are aligned to these employees. We negotiated this latest pay deal with GMB Scotland who accepted on behalf of their members. Therefore, adding in an additional Bargaining Group would fragment the workforce and have a detrimental impact on our holistic compensation and benefits strategy. This proposed bargaining units comprises of 10 employees out (sic) 21 employees at this site and is operating out of one of our partner sites rather than a dedicated Movianto site. The GMB union are in the process of balloting members at this site for strike action against the current pay deal that has been agreed by another GMB branch. The pay deal that has been put in place has been welcomed and accepted by the rest of the workforce in equivalent roles.

12) 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 there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) The Employer said that it did not agree with the number of workers in the bargaining unit as defined in the Union’s application. The Employer stated it believed there to be 20 workers.

14) When asked if it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer said that it had no evidence of membership. 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 no evidence to confirm that the majority supported recognition. The Employer added that it was only aware of one employee who was vocal about membership.

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 provided copies of e mails dated 8 November 2022 and 28 November 2022 ^{[footnote 2]}. When asked if it had received any other applications in respect of workers in the proposed bargaining unit the Employer did not respond.

5. The membership and support check

16) 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 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 36(1)(b)), the Panel proposed an independent check of the level of union membership within the bargaining unit and of the Union’s petition. 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. It was agreed 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 titles (where available), and a copy of the petition. 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 6 January 2023 from the Case Manager to both parties.

17) The information requested was received by the CAC from the Union on 9 January 2023 and the Employer on 10 January 2023. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

18) The list supplied by the Employer indicated that there were 20 workers in the Union’s proposed bargaining unit.

19) The list of members supplied by the Union contained 11 names. According to the Case Manager’s report the number of members of the Union in the proposed bargaining unit was 11, a membership level of 55%.

20) The Union provided two petitions. The first (paper) petition supplied by the Union contained 15 names, all of which were in the proposed bargaining unit, a figure that represented 75% of the proposed bargaining unit. Of those 15 names, 11 were members of the Union (55% of the proposed bargaining unit) and four were non-members (20% of the proposed bargaining unit). Seven of the 15 names were added by the pen of the same individual with pp added after the surname. The petition was submitted on a single A4 sheet. The petition was undated and headed with the Union’s logo and was set out as follows:

We the undersigned want Movianto to recognise the GMB Trade Union for all the drivers at the Coventry site on the NHS Contract.

21) The second petition provided by the Union was an electronic petition. The Union explained that members were sent a “WhatsApp” group link to the e-petition on 6 January 2023 and asked to share the link with any non-members who wished to complete it. The results were returned to the Union directly in a spreadsheet after the closing date of 9 January 2023. The petition stated “please write your full name if you want Movianto to recognise the GMB trade union for the purpose of collective bargaining for all the drivers at the Coventry site” and “confirm your e mail address.” There were 15 typed names on the spreadsheet. all of which were in the proposed bargaining unit, a figure that represented 75% of the proposed bargaining unit. Of those 15 names, 11 were members of the Union (55% of the proposed bargaining unit) and four were non-members (20% of the proposed bargaining unit).

22) A report of the result of the membership and support check was circulated to the Panel and the parties on 12 January 2023 and the parties were invited to comment on the results by noon on 17 January 2023.

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

23) In an email to the Case Manager dated 13 January 2023 the Union stated: “We can see from the information from both the company and the union that GMB Union has met all the tests set out in paragraph 36 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992.” The Union went on to add: “I would like to request therefore that the panel makes a decision on that basis and awards recognition to GMB Union at Movianto.”

24) In an email to the Case Manager dated 16 January 2023 the Employer stated it had received correspondence from GMB regarding a ballot for strike action for the proposed bargaining unit which confirmed that there were 10 members not 11, and that this was less than the number noted in the report. The Employer added: “I am surprised that there are ‘PP’d’ signatures on their submission.  Given the low number of members and engagement, I wonder if this requires further exploration and validation.”

7. Considerations

25) 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.

26) 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. The Panel is also satisfied, on the balance of probabilities, that the application was made in accordance with paragraph 11(2) of the Schedule. Paragraph 11(2) applies if

(a) before the end of the first period the employer fails to respond to the request, or

(b) before the end of the first period the employer informs the union … that the employer does not accept the request (without indicating a willingness to negotiate).

The first period is defined in paragraph 10(6) as “the period of 10 working days starting with the day after that on which the employer receives the request for recognition”. The Panel does not consider that the Employer’s response to the Union’s request, in its email dated 12 December 2022, indicated a willingness to negotiate on the part of the Employer. The Panel therefore considers that paragraph 11 applies.

27) The Panel is also 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.

28) The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

Paragraph 36(1)(a)

29) 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 16 - 22 above) showed that 55% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 17 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 notes the Employer’s comment set out in paragraph 24 above that the Union had recently confirmed ten rather than 11 members in the context of a strike ballot. On that basis there would be a membership level of 50% in the proposed bargaining unit. As this would not change the Panel’s decision that the criterion in paragraph 36(1)(a) of the Schedule has been met the Panel has not investigated this discrepancy further for the purposes of this decision. 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.

Paragraph 36(1)(b)

30) 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 29 above the Panel has concluded that the level of union membership within the bargaining unit stands at 55% whilst also noting the Employer’s comment that it may, rather, stand at 50%. 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 of the Union. The Panel has received no such evidence to the contrary in this case.

31) 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.

32) The Panel notes the Employer’s concern that there were “pp’d” names on the Union’s paper petition. The Panel shares this concern, and had it been necessary to rely on this petition for the purposes of this decision the Panel would have investigated the matter further. In this case the Panel has reached its decision that the criterion in paragraph 36(1)(b) has been met purely on the basis of the level of union membership within the proposed bargaining unit; it has not relied on either the paper or the electronic petition and makes no findings as to their reliability.

8. Decision

33) For the reasons given in paragraphs 25-32 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mrs Susan Jordan

Mr Nicholas Childs

18 January 2023

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1. A copy of the e mail was provided by the Employer. The email from the Employer to the Union is dated 11 December 2022. ↩

2. The email dated 8 November 2022 from the Union to the Employer contained a request by the Union to meet with the Employer to discuss voluntary recognition. The Email dated 28 November 2022 contained the formal request for voluntary recognition from the Union to the Employer which complied with the statutory requirements. ↩