Decision

Acceptance Decision

Updated 29 June 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1224(2021)

29 June 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

Response Engineering Solutions

1. Introduction

1) GMB (the Union) submitted an application to the CAC dated 2 June 2021 that it should be recognised for collective bargaining by Response Engineering Solutions (the Employer) for a bargaining unit comprising “Mechanical Engineers”. The location of the workers was given as mobile engineers working at various locations within Wales and the South West of England as determined by the Employer. The application was received by the CAC on 3 June 2021. The CAC gave both parties notice of receipt of the application on 3 June 2021. The Employer submitted a response to the CAC dated 4 June 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 Mr Tariq Sadiq, Chair of the Panel, and, as Members, Mr Len Aspell and Ms Hannah Reed. Ms Hannah Reed was subsequently replaced by Mr Stephen Gillan. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 17 June 2021. The acceptance period was extended to 2 July 2021 in order to allow time for 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 its formal request for recognition to the Employer on 29 April 2021. On 17 May 2021 the Employer wrote to the Union rejecting its request. A copy of the Union’s letter and of the Employer’s response was attached to the application.

6) The Union stated that the total number of workers employed by the Employer was 47. The Union stated that there were 35 workers in the proposed bargaining unit, of whom 20 were members of the Union. When 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 Union membership had grown over 50+% of the bargaining unit as a result of the recognition campaign.

7) The Union stated that the bargaining unit had been agreed with the Employer. The Union said that there was no existing recognition agreement of which it was aware which covered any of the workers in the bargaining unit.

8) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application to the CAC, and supporting documents, to the Employer on 3 June 2021.

4. Summary of the Employer’s response to the Union’s application

9) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 11 May 2021 and that the letter was dated 29 April 2021. The Employer stated that the request had been rejected by a letter dated 17 May 2021. The Employer attached a copy of this letter.

10) The Employer confirmed that it had received a copy of the Union’s application form from the Union on 3 June 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 and that it did not agree it referring the CAC to their letter dated 17 May 2021. The Employer stated that it currently had circa 80 plus workers. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist as hadn’t realised that was an option.

11) The Employer stated it was unable to comment on the number of workers in the bargaining unit as defined in the Union’s application as they were not aware of numbers and names. The Employer stated that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

12) The Employer did not answer the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit. When invited to give its reasons if it did not consider that a majority of the workers in the proposed bargaining unit would be likely to support recognition, the Employer stated that no evidence had been provided or information received from the workers or GMB.

5. The Membership Check

13) To assist in the application of the admissibility tests 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 union membership 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 that unit (including their full name and date of birth). It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 9 June 2021 from the Case Manager to both parties. The information from the Employer was received by the CAC on 16 June 2021 and from the Union on 10 June 2021. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

14) The list supplied by the Employer indicated that there were 39 workers in the proposed 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 proposed bargaining unit was 19, a membership level of 48.72%.

15) A report of the result of the membership check was circulated to the Panel and the parties on 16 June 2021 and the parties were invited to comment on the result.

6. The parties’ comments on the result of the membership check

16) No comments on the result of the membership check was received by either party. Considerations

17) 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.

18) 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 paragraphs 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.

7. Paragraph 36(1)(a)

19) 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.

20) The membership check conducted by the Case Manager (described in paragraphs 13 and 14 above) showed that 48.72% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 13 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed 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.

8. Paragraph 36(1)(b)

21) 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 paragraphs 22 above the level of union membership is 48.72%. The Union did not provide any additional evidence of support for recognition, such as a petition, but the Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union. No such evidence to the contrary was received in this case. 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.

9. Decision

22) For the reasons given in paragraphs 18 to 21 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Tariq Sadiq, Chairman of the Panel

Mr Len Aspell

Mr Stephen Gillan

29 June 2021