Decision

Acceptance Decision

Updated 20 November 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1365(2023)

20 November 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

Sapphire Utility Services Ltd

1. Introduction

1)         GMB (the Union) submitted an application to the CAC on 12 September 2023 that it should be recognised for collective bargaining by Sapphire Utility Services Ltd (the Employer) for a bargaining unit comprising the “All those involved in wastewater and clean water activities along with all other associated manual support roles up to, but not including team leaders / first line managers”. The location of the proposed bargaining unit was Liverpool WWTW, Regent Road, Sandon Dock, L3 0BE. The CAC gave both parties notice of receipt of the application on 13 September 2023.  The Employer submitted a response to the CAC dated 22 September 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 Ms Naeema Choudry, Panel Chair, and, as Members, Mrs Susan Jordan and Ms Stephanie Marston.  The Case Manager appointed to support the Panel was Kaniza Bibi.

3)         The CAC Panel has extended the acceptance period in this case.  The initial period expired on 26 September 2023.  The acceptance period was extended on two further occasions in order to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the comments before arriving at a decision. The final extension ends the acceptance period on 7 November 2023.

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 made its formal request for recognition on 7 July 2023. The Union confirmed that the Employer had requested an extension to the 10-day period, as it claimed to have actually received the letter on the 26 July 2023.

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, “Not Applicable”.  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 and that approximately 18 of the workers were in the proposed bargaining unit, of whom 10 were Union members. The Union when asked to provide evidence to support this figure stated, “We are willing to provide membership details to the CAC Case Manager on a confidential basis to enable a statistical check to be carried out in the usual way”.

8)         Asked whether the Employer agreed on the number of workers in the proposed bargaining unit the Union answered “No”.  When called upon 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, “We are also prepared to provide any petition evidence to the CAC Case Manager on a confidential basis”.

9)         The Union stated it had selected the proposed bargaining unit because “We propose a traditional bargaining unit comprising of workers who are paid an hourly rate and work a shift system up to, but not including first line managers/team leaders. We believe that this makes sense and is compatible with effective management.”. The Union also confirmed that the proposed bargaining unit had not been agreed with the Employer.

10)       Finally, the Union stated that there was no existing recognition agreement which covered any of the workers in the bargaining unit, it confirmed that it held a current certificate of independence and it confirmed that it had copied the application and supporting documents to the Employer on 11 September 2023.   

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

11)       In its response to the Union’s application the Employer stated that it received the Union’s written request for recognition on 26 July 2023 (albeit letter was dated 7 July 2023). The Employer advised it then requested negotiation.

12)       The Employer confirmed it did not agree with the proposed bargaining unit. The employer considered that the Union’s proposed bargaining unit was not an appropriate bargaining unit. The Employer confirmed its objections to the proposed unit and stated, “The Employer understands the Union’s application to be in respect of all ‘bucket one’ and ‘bucket two’ workers at this site, i.e., non-management workers who the employer would ordinarily describe as Wastewater Operatives, with that group then further breaking down into sub-categories based on, e.g., level of experience. The Union have made four applications for these groups of workers, with each proposed bargaining unit limited to one site. The employer considers that the appropriate bargaining unit is all Wastewater Operatives working under the United Utilities contract. The employer’s reasons for considering that the proposed unit, i.e., all Wastewater Operatives at one site, is not appropriate include the following:

(i)         These workers share characteristics with other Wastewater Operatives at other sites;

(ii)        Recognition of the proposed bargaining unit would lead to inappropriate fragmentation. The Union’s proposed unit covers one out of eight sites where Wastewater Operatives work on the employer’s United Utilities contract. In total, the Union seeks recognition for four sites, i.e., half of the total sites;

(iii)       Workers are on occasion required to work at other sites, e.g., when there is a shortage of resource at one site. The management problems which would be created by such workers falling under separate bargaining units are plain. This is not compatible with effective management and is likely to lead to proliferation;

(iv)       At present, all Wastewater Operatives report into project managers, who in turn report into two project managers, who in turn report into an Operations Manager, Mr. Andrew Knight. Dividing this group is incompatible with effective management;

(v)        At present, the HR function of all Wastewater Operatives is carried out by one HR business advisor;

(vi)       At present, all Wastewater Operatives of a like grade are treated in a like manner on business increase pay offers;

(vii)      While certain workers may have different terms and conditions due to, e.g., prior TUPE transfers, the employer is in the process of creating a uniform pay structure for each grade under its 2023 pay review, with levelling up towards uniformity previously taking place on an ad hoc basis. Further dividing these workers would therefore discourage the employer from promoting fair and efficient practices and arrangements in the workplace.

If necessary, the employer will add to / further develop the above reasons in submissions”.

 13)      When asked if, following receipt of the Union’s request, it had proposed that Acas should be requested to assist, the Employer answered, “Yes, on 8 September 2023”.

14)       The Employer stated that it employed a total of 951 workers and when asked whether it agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application the Employer answered, “Yes”.

15)       The Employer said there was no existing agreement for recognition in force covering workers in the proposed bargaining unit. The Employer when asked if it disagreed with the Union’s estimate of membership in the proposed bargaining unit, stated “The employer has no estimate of union membership and asks that the CAC carry out ordinary checks to confirm the Union’s estimate”.

16)       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 stated, “The employer does not consider that there is likely a majority in support of recognition. The employer has an employee forum which covers the workers in the Union’s proposed bargaining unit. The employee forum holds meetings bi-monthly. While the employer does not seek to argue that this is akin to collective bargaining, it is a forum in which workers can and do raise concerns. Any worker can submit an issue to be considered at this forum. While the Union have engaged with the employer regarding voluntary recognition, at no point has any worker raised this issue, or the issue of recognition more broadly, at the employee forum. The last such meeting was held on 5th September 2023, i.e., after the negotiations with the Union had begun”.

17)       Finally, the Employer stated it was not aware of any previous application under the Schedule for statutory recognition by the Union in respect of this or a similar bargaining unit.   Asked whether it had received any other applications under the Schedule for recognition in respect of any of the workers in the proposed bargaining unit the Employer answered “N/A”.

5. The check of membership and support

18)       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 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 names and 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 26 September 2023 from the Case Manager to both parties. 

19)       The information requested from the Employer was received on 2 October 2023 and from the Union on 28 September 2023.  The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.   

20)       The list supplied by the Employer showed that there were 18 workers in the proposed bargaining unit.  The list of members supplied by the Union contained 11 names.  According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 11, a membership level of 61.11%.  A report of the result of the membership check was circulated to the Panel and the parties on 2 October 2023 and the parties’ comments invited.

6. Parties’ comments on the membership check

21)       In its response dated 17 October 2023, the Union stated “We still stand confident that we not only have membership above the 10% but also the 50% for each of the four depots and we will be more than willing to prove that we have the support of the majority as we move forward. We challenge the company information and numbers as being invalid.  The over 900 is an inflated figure that we do not recognise and does not tally up with the numbers that we know based in each unit. We are clear on the management structures and the people that operate out of the depots we have aligned them to and again we will be willing to prove this as we move forward”.

22)       The Employer in its response dated 6 October 2023 stated, “As regards the para. 36 tests:(i)         Re para. 36(1)(a): We ask that the CAC and/or ACAS take steps to confirm that those the Union says are members are in fact members; and

(ii)        Re para. 36(1)(b): We have not had sight of, e.g., a petition in support of recognition which demonstrates that a majority of workers would likely be in favour of recognition to conduct bargaining over the core terms. Absent such a petition or the like, we do not see how the Union can demonstrate likely support. We appreciate that were the Union’s membership density numbers correct as regards the Liverpool site, that no such petition or the like would be required for that site. For the remained we ask that (i) evidence of support be provided (ii) including the date on which each worker demonstrated said support”.

7. Considerations

23)       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 carefully considered the submissions of both parties and all the evidence in reaching its decision. 

24)       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 12. 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. 

Paragraph 36(1)(a)

25)       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 Union’s proposed bargaining unit.  The membership check conducted by the Case Manager described in paragraph 20 above showed that 61.11% of the workers in the proposed bargaining unit were members of the Union. 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.

Paragraph 36(1)(b)

26)       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.

27)       The Panel notes from the membership check that a majority of the workers in the proposed bargaining unit (61.11%) are members of the Union.  In the absence of clear and cogent evidence to the contrary, the Panel is entitled to assume that members of the Union would be likely to favour recognition of the Union to conduct collective bargaining with the Employer on their behalf.  On the evidence before it, the Panel has decided 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 and accordingly, this test is also met.

8. Decision

28)       For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Ms Naeema Choudry, Panel Chair

Mrs Susan Jordan

Ms Stephanie Marston

 20 November 2023