Decision

Acceptance Decision

Updated 15 May 2019

Case Number: TUR1/1072(2018)

29 November 2018

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

The Net a Porter Group Ltd

1. Introduction

1) GMB (the Union) submitted an application dated 9 October 2018 to the CAC that it should be recognised for collective bargaining purposes by The Net a Porter Group Ltd (the Employer) in respect of a bargaining unit comprising “Distribution Assistants excluding First Line Managers , Shift Managers, Drivers and agency staff.” The location of the bargaining unit was given as “Unit One, Net a Porter, Charlton Distribution Centre, Charlton Gate Business Park, Anchor and Hope Lane, SE7 7RU.” The application was received by the CAC on 10 October 2018 and the CAC gave both parties notice of receipt of the application on 10 October 2018. The Employer submitted a response to the CAC on 17 October 2018 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 James Tayler, Panel Chair, and, as Members, Ms Judy McKnight CBE and Mr Nicholas Caton. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel extended the acceptance period in this case. The initial period expired on 24 October 2018. The acceptance period was extended on two further occasions in order to enable the CAC to carry out a membership and support check, for the parties to comment on that check, to provide time for the Panel to consider all the evidence before arriving at a decision and for the Panel to finalise its written decision. The final extension ends the acceptance period on 3 December 2018.

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 8 October 2018. The Union stated that the Employer had declined its request. The Union further stated that it had been engaged in ongoing discussions regarding a partnership agreement for a number of months. A copy of the Union’s request letter, sent within the body of an e-mail, was attached to its application. The Union also attached to its application a copy of an earlier request letter sent to the Employer 1 October 2018.

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 1,821. The Union stated that there were approximately 290-300 workers in the proposed bargaining unit, of whom 46 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 it had a petition “signed by over 50% of the bargaining unit” which it would be willing to provide to the CAC on a confidential basis.

8) The Union stated that the reason for selecting its proposed bargaining unit was that all of the workers were part of the same department, and although they were on differing shifts, their shift patterns were consistent. The Union further stated that “their line management was supervisory through FLM’s and then shift managers. They were all part of the same grading structure with the same bonus arrangements applied dependant on and subject to performance management issues applied consistently across the bargaining unit by the same group of line managers. They all carry out the same or similar functions at the same location.” The Union stated that it was a distinct group of workers directly employed by the Employer and are the only group of workers of this nature within this employer, in the country.

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 9 October 2018.

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

10) The Employer confirmed that it had received the Union’s written request letter on 8 October 2018. The Employer stated that the definition of the proposed bargaining unit in the Union’s request was different to the definition of the proposed bargaining unit in earlier requests received from the Union. The Employer stated that it had responded to the Union’s latest request by e-mail at 11:11 on 9 October 2018. The Employer stated: “As we have already explained, the Company does not wish to enter into a formal recognition agreement with the GMB so the Company rejects your Request, but remains willing to negotiate with GMB on a voluntary basis.” A copy of the Union’s e-mail of 9 October 2018 was attached to its response.

11) The Employer confirmed that it had received a copy of the application form (without supporting documentation) from the Union by e-mail at 12.21 on 9 October 2018, followed by a hard copy (with some accompanying documentation) received by post on 10 October 2018. The Employer stated that following receipt of the Union’s request it did not propose that Acas be requested to assist.

12) The Employer stated that it agreed with the proposed bargaining unit in principle, but this was subject to clarification concerning the exact scope of the workers it encompassed.

13) The Employer stated that the total number of workers it employed in the UK was 1,930. The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application and said that there were 260 workers in the proposed bargaining unit. The Employer contended that the bargaining unit comprises Distribution Assistants based at NAPG’s Charlton Gate Business Park, Anchor, and Hope Lane, Charlton, SE7 7RU and consists of both workers who are employed by the agency itself, as opposed to NAPG. NAPG contracts with the agency to supply agency workers to work in roles alongside the permanent headcount. For example, at peak periods, when there is a sale, NAPG also contracts with other agencies to source short term, flexible labour.

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

15) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer said that it was not aware of the specific membership numbers amongst the Distribution Assistants as it did not ask its workers, or any agency workers, to disclose this information. The Employer said that it had noted that no evidence had been provided by the Union to support its assertion in its application that there were 46 union members in the proposed bargaining unit. The Employer stated that it was however aware that there were agency workers as well as NAPG workers who were members of the unit in the “Distribution Assistant population.” The Employer stated that without being provided with the names of those individuals so that it could verify their employment status, it was unable to agree or disagree with the Union’s assertion at this stage. 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 that it was in continuous dialogue both formally and informally with its workers through a number of mediums including an Employee Forum. The Employer stated that its understanding through these discussions is that historically there had not been, and still is not, in general, support for recognition by any union in any NAPG site throughout the UK.

16) The Employer considered that if the matter were to proceed as far as a statutory secret ballot, it was unlikely that the Union would have the support of the majority of the workers in the proposed bargaining unit. The Employer said that through an “informal temperature check” by the representatives of the Employee Forum, it did not believe that there was a majority interest in representation by a union.

17) The Employer referred to the Union’s petition and stated that prior to receipt of the Union’s application, it was not aware of any such petition. The Employer stated that it was therefore unable to comment further, for example, about the nature or scope of the proposal put to those workers by the Union, the date of the alleged signatures, and whether those workers were NAPG workers.

18) When asked it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, and whether it had received any other applications under the Schedule in respect of workers in the proposed bargaining unit, the Employer responded “N/A”.

5. Union’s comments on the Employer’s response to the application

19) On 18 October 2018 the CAC copied the Employer’s response to the application to the Union and its comments invited. By e-mail dated 19 October 2018 the Union stated that it was pleased that the Employer had agreed its bargaining unit in principle. The Union said that it was concerned that the employer had carried out what the Employer had referred to as a “temperature check” as the feedback it had received from its members was that “it was conducted in a somewhat intimidatory manner”.

20) The Union stated that it was happy to provide to the CAC supporting evidence to support its claim. The Union said that it had noted the Employer’s comments regarding agency workers but stated that it was confident its membership and evidence “had come from directly employed workers.” The Union explained that it had begun gathering evidence some time ago and the reason for the delay in its application was to allow for ongoing discussions with the Employer on a proposed partnership agreement. The Employer further stated that it was however still confident that it could demonstrate the necessary support.

6. Additional comments from the parties

21) In letters to both parties dated 24 October 2018, written at the request of the Panel, the Case Manager asked that the parties clarify whether it was contended that the Employer’s e-mail of 9 October 2018, and earlier correspondence, represented an offer to negotiate within the meaning of the Schedule and therefore triggered the second period of 20 working days.

22) By letter dated 25 October 2018 the Union stated that it did not believe that the Employer’s e-mail of 9 October 2018 and earlier correspondence represented an offer to meaningfully negotiate over the issue of collective bargaining. The Union explained that it had been engaged in informal negotiations over the issue of collective bargaining and access since February/March 2018 when a request was made under Schedule A1. The Union said that sadly those discussions had not achieved a voluntary agreement on the issue of collective bargaining “on the grounds that the company had refused to enter into one.” The Union said that this position was confirmed by the Employer’s e-mail of 9 October 2018, which stated that “the Company does not wish to enter into a formal recognition agreement with the GMB so the Company rejects your request.”

23) In an e-mail dated 26 October 2018 the Employer stated that its e-mail of 9 October 2018 and earlier correspondence did not represent an offer to negotiate within the meaning of Schedule A1. The Employer stated that its offer to negotiate at that time was made on a voluntary basis and concerned a proposed framework agreement with the Union

7. The membership and support check

24) 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 and of a petition compiled by the Union. 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) and a copy of its petition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and petition would not be copied to the other party and that agreement was confirmed in a letter dated 1 November 2018 from the Case Manager to both parties.

25) The information requested from the Union was received by the CAC on 2 November 2018 and from the Employer on 6 November 2018. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

26) The list supplied by the Employer suggested that there were 258 workers in the Union’s proposed bargaining unit. The following job titles were listed:

• Consumables Assistant - 1 • Distribution Assistant - 218 • Distribution Assistant QA - 1 • Distribution Coordinator - 1 • Helpdesk - 4 • Inventory Coordinator - 4 • Quality Assurer - 15 • RTV Coordinator – 7 • Sample Delivery Driver - 2 • Seamstress – 2 • Senior Inventory Analyst – 1 • Senior Materials Controller – 1 • Stores Coordinator - 1

27) The list of members supplied by the Union contained 56 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 43, a membership level of 16.67%.

28) The petition supplied by the Union contained 283 names and signatures, of which 144 were in the proposed bargaining unit, a figure that represents 55.81% of the proposed bargaining unit. Of those 144 signatories, 36 were members of the Union (13.95% of the proposed bargaining unit) and 108 were non-members (41.86% of the proposed bargaining unit).

29) The petition consisted of 22 A4 sheets and was set out as follows:

8. “PETITION IN SUPPORT OF RECOGNITION

At The Net a Porter Group Ltd (Charlton Distribution Centre)

GMB trade union is asking your employer to recognise it for collective bargaining. We have to show the Central Arbitration Committee that a majority of workers in the “bargaining unit” support our application. If you do support us, please sign this petition.

I support recognition of GMB trade union as entitled to conduct collective bargaining on pay, hours and holidays on behalf of Distribution Workers in the Charlton Distribution Centre (excluding drivers)

NAME	SIGNATURE

30) The Union stated that the signatures on the petition were collected between December 2017 and September 2018.

31) A report of the result of the membership and support check was circulated to the Panel and the parties on 9 November 2018 and the parties were invited to comment on the results of that check by the close of business on 13 November 2018.

9. The parties’ comments following the membership and support check

32) By letter dated 13 November 2018 the Employer stated that on request, it provided to the Case Manager a spreadsheet with the details of 258 workers comprising all of the NAP workers who are in the Distribution Assistant job family (“DA Job Family”). The Employer explained that this job family comprises 40 individuals carrying out a variety of roles, for example, seamstresses, senior inventory analysts, sample delivery drivers, helpdesk, as well as 218 workers who have the job title ‘Distribution Assistant’. Within the wider DA Job Family, there are different pay and grading structures and different working patterns, albeit that all of these workers are based in NAP’s Distribution Centre in Charlton (“DC1”). However, some of the workers in the DA Job Family based in DC1 have colleagues performing similar roles in other departments, where they have different performance management and incentive arrangements and their budgetary costs would not fall within the same cost centre.

33) The Employer noted that the proposed bargaining unit stated in the Union’s application was “Distribution Assistants (excluding Shift Managers, First Line Managers, Drivers and agency staff) at the Net A Porter Charlton Distribution Centre, Unit One, Charlton Gate Business Park, Anchor and Hope Lane, Charlton, SE7 7RU.” The Employer said that this was changed from the proposed bargaining unit advanced by the Union in April 2018, and subsequently re-iterated right up until the day before the Union made its application to the CAC, which described the proposed bargaining unit as “Distribution workers (excluding management grades and drivers) at the Net A Porter Charlton Distribution Centre, Charlton Gate Business Park, Anchor and Hope Lane, Charlton, SE7 7RU.” The Employer stated that the term “Distribution Workers” is not recognised by NAP as having any particular meaning and is not a ‘job family’, department or business unit within the organisation.

34) The Employer stated that there was some confusion surrounding the proposed bargaining unit with reference to the term “Distribution Assistants”; in particular, the Union’s use of the term “Distribution Assistants” in its application, and the Union’s use of the term “Distribution Workers in the Charlton Distribution Centre (excluding drivers)” in its earlier requests for recognition.

35) It was the Employer’s view that the amended description of the Union’s proposed bargaining unit and the justification put forward for it strongly indicated that they intended to cover only those workers whose actual job title is “Distribution Assistant” (218 employees) and not the other roles within the DA Job Family being the 258 names contained within spreadsheet that the Employer had provided for the check. The Employer considered that this was supported by the fact that in the Union’s application to the CAC, it had referred to those within the bargaining unit as all operating under a consistent shift pattern with the same pay grading structure and bonus arrangements. The Employer stated that its understanding of that description was that it was intended to cover only the 218 individuals employed as Distribution Assistants and not those engaged in more specialised roles such as seamstress or quality controller. The Employer stated that the Case Manager’s report was however, clearly based on the wider group of 258 within the entirety of the DA Job Family.

36) The Employer stated that in addition to the confusion surrounding the scope of the Union’s proposed bargaining unit, it was concerned about the legitimacy of the membership numbers provided by the Union. The Employer said that it had noted that even when presented with the names of all of the workers within the wider DA Job Family, the Case Manager was unable to locate 23% of the union members alleged by the Union (13 of 56 workers) on the Union’s list of members.

37) The Employer further stated that when taking into account the concern regarding the proposed bargaining unit, it did not believe that the Panel could have any confidence in the membership figures provided by the Union as these have clearly been based on the wider group rather than just those who actually hold the job role of “Distribution Assistant”.

38) The Employer said that this is not a case where the level of union membership is high. The report stated that the membership figures advanced by the Union are 16.67% of the wider proposed bargaining unit. The Employer maintained that as this figure was the Union’s “best case”, in reality it may be much lower and when taking into account the narrower, more appropriate proposed bargaining unit, it may even result in the Union not meeting the test set out in paragraph 36 of the Schedule.

39) The Employer stated that whilst it was aware that the Union had been campaigning, for example, by handing out leaflets outside of DC1 or in local public houses for many years, it was noteworthy that the levels of support for the Union was still low. The Employer considered that a low level of membership in the proposed bargaining unit was also likely to point against a finding that the workers in the proposed bargaining unit would be likely to favour recognition. The Employer said that that this was not an industry in which the level of union membership is high. NAP is a high end, luxury on-line fashion retailer, which does not have any unions recognised throughout its UK business. Its business is more akin to the technology industry than the retail industry by the nature of its operations. The Employer explained that to aid employee engagement, during the spring/summer, an Employee Forum was established in DC1 with the aim of providing employees with a voice and allowing them even greater access to senior management in order to share ideas, improve communication flow and to raise any concerns. The Employer stated that the feedback from the Employee Forum had been positive.

40) The Employer said that it notes that the report states that the Union had provided a petition in support of its application. The Employer stated that it had “grave concerns about the reliability and legitimacy of the petition”. The Employer stated that it considered the question posed by the Union “provides no background detail or explanation to the proposed signatories about what ‘recognition’ means and how it will affect their ability to negotiate directly with NAP about their terms and conditions of employment in relation to pay, hours and holiday.”

41) The Employer maintained that the description of the proposed bargaining unit was misleading and unclear. The Employer considered that taking this point along with the figures provided in the report, it was unclear which of these alleged signatories identified by the Case Manager would be included in the narrower description of the proposed bargaining unit.

42) The Employer stated that it had the following concerns about the petition:

i. it contained 283 names when the proposed bargaining unit was no more than 218 workers (or even on the wider analysis 258 workers); ii. it is said to have been carried out over a period of 9 to 10 months, which suggests that there may have been considerable hesitation or reluctance on the part of the alleged signatories; iii. it is said to have been carried out in a period prior to the Employee Forum being introduced. This may mean that the evidence is unreliable as those alleged signatories may be content with the current arrangements and not be likely to favour recognition; iv. it includes 54 names which are not known to the employer; and v. includes 85 names (around 30% of the total numbers) which the Case Manager says are “unreadable, duplicates or crossed out”.

43) The Employer stated that it was therefore “very concerned about the validity of the GMB’s petitioning exercise.” It further stated that “it is striking to note that even when taking the figures at face value, 33% (one third) of union members (18/54) do not appear to have signed the Petition even when given almost ten months to do so.”

44) It was the Employer’s view that, considering all of the circumstances, the Panel should not have confidence either that there is 10% union membership within the bargaining unit “as properly identified” or that that a majority of the workers would be likely to support recognition of Union. Finally, the Employer stated that it did not consider that the Union’s application meets the thresholds set out in paragraph 36 of Schedule A1.

45) By e-mail dated 14 November 2018 the Union stated that it was happy with the results of the check and it was satisfied that based on the current information it had demonstrated sufficient support to proceed to the next step. It further stated that “we remain open to discussions with the employer to agree a collective bargaining agreement.”

46) On 15 November 2018 the Case Manager copied the Employer’s comments to the Union and, at the request of the Panel, invited further comment. By e-mail of 19 November 2018 the Union explained that it believed the Union satisfied both tests set out in paragraph 36 of the of the Schedule.

47) The Union stated that it did not at this stage have to demonstrate that it already enjoys majority support, but only that if the application was to proceed to a statutory ballot that a majority would be likely to favour recognition. The Schedule does not require that a majority of workers in the proposed bargaining unit be already members of GMB, nor that the majority has explicitly expressed support for GMB, and nor that they are guaranteed to do so.

48) The Union further stated that in any pool of workers there are likely to be workers who either do support recognition of the union, or would do so if asked in a secret ballot, but who will be reluctant for various reasons to express support by joining the Union where it is not recognised by the employer or to sign a petition. The Union stated that it had not had formal access to the workers.

49) The Union said that it had also noted the Employer’s comments in relation to the bargaining unit. The Union explain that it was correct that the application was made in respect of Distribution Assistants (218 workers). The Union stated that at this stage in determining admissibility its understanding was that this should be assessed on the basis of the Union’s proposed bargaining unit. It further stated that “The next stage is for the parties to agree the bargaining unit (it does appear from the employer’s response that it should be limited to Distribution Assistants).”

50) The Union said that it had also noted that the employer was suggesting there was initially a lack of clarity around the bargaining unit and it had referred to an initial schedule A1 letter sent in April. The Union stated that it wished to reiterate that the letter which its application relied on was not the letter sent in April but the letter sent on 8 October 2018 which more clearly defined the bargaining unit. The Union stated that the relevant letter referred specifically to the bargaining unit of Distribution Assistants as does the application to the CAC. The initial letter sent in April, was irrelevant.

51) The Union stated that it did however wish to submit that on any analysis, the Union had met the statutory tests, including the broader numbers. The Union stated that if the CAC was concerned about whether the tests had been met, the Union would suggest that the check is re-done on the basis of the 218 Distribution Assistants.

52) Finally, the Union stated that in relation to the petition, the Union did not have to explain exactly how the signatures were obtained. The Union said that “it goes without saying that they were obtained fairly and with workers being able to make an informed decision about whether to sign or not.” The Union stated that “it was the workers themselves that asked for the petition to be carried out and have been leading it forward themselves.” The fact that there were additional signatures on the petition does not undermine the check carried out by the Case Manager as the Case Manager had been able to cross-reference the details with existing employer data.

10. The revised membership and support check

53) By letter dated 20 November 2018, at the request of the Panel, the Case Manager informed the parties that the Employer’s letter of 13 November 2018 had raised concern that the Union’s proposed bargaining unit may only have included just the 218 Distribution Assistants rather than the wider “DA family” provided by the Employer, and the Union’s e-mail of 19 November 2018 had confirmed that this was the case. The parties were informed that the Panel had therefore requested that the Case Manager carry out a further check including only those 218 workers on the Employer’s list, whose business title is “Distribution Assistant”.

54) The Employer’s revised list indicated that there were 218 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 56 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 41, a membership level of 18.81%.

55) The petition supplied by the Union contained 283 names and signatures, of which 128 were in the proposed bargaining unit, a figure that represents 58.72% of the proposed bargaining unit. Of those 128 signatories, 34 were members of the Union (15.60% of the proposed bargaining unit) and 94 were non-members (43.12% of the proposed bargaining unit).

56) A report of the result of the revised membership and support check was circulated to the Panel and the parties on 20 November 2018 and the parties were invited to comment on the results of that check by the close of business on 22 November 2018.

11. The parties’ comments following the revised membership and support check

57) By e-mail of 21 November 2018 the Union stated that the revised report showed that it had satisfied the relevant tests.

58) The Union reiterated the points, set out in paragraphs and 47 and 48 above, that at this stage it does not have to demonstrate that it already enjoys majority support, but only that if the application was to proceed to a statutory ballot that a majority would be likely to favour recognition. Further, that in any pool of workers there are likely to be workers who either do support recognition of the union, or would do so if asked in a secret ballot, but who will be reluctant for various reasons to express support by joining GMB where it is not recognised by the employer or to sign a petition. GMB has not had formal access to the workers.

59) The Union stated that in view of the above, and based on the revised report which showed a level of support of 58.72% from union members and non-union members, the Union stated that it believed it had satisfied the “majority likely to favour” test.

60) The Union explained that in respect of the bargaining unit, the Union had clearly defined the bargaining unit as referring to Distribution Assistants in its Schedule A1 letter on which this application rests. The Union stated that the Employer had confirmed in the initial questionnaire that it did not disagree with the definition of the bargaining unit ‘in principle’ and that the Union of course welcomed the fact that the re run of the membership check confirmed the necessary support within this bargaining unit.

61) By e-mail dated 22 November 2018 the Employer stated that it wished to reiterate many of the points, set out in paragraphs 32 - 45 above, that it had raised in response to the first report. The Employer stated that in particular, it had noted that the revised report stated that 18.81% of the workers in the proposed bargaining unit are members of Union. The Employer stated that whilst it appreciates that this is higher than the 10% threshold, it notes that it is a relatively low level of membership despite Union’s lengthy recruitment efforts.

62) The Employer stated that bearing in mind the relatively low level of membership, this would seem to indicate that the workers in the proposed bargaining unit are not likely to favour recognition. The Employer reiterated its concerns about the validity of the Union’s petitioning exercise, which was the only evidence relied upon by Union to show likely majority support in its application. The Employer considered that reliance on the figures stated in the revised report “is an unsafe basis upon which to determine majority support and accept the GMB’s application, especially as their robustness has not been tested.”

63) Finally, the Employer stated that it appreciates that admissibility is a question for the Panel to determine. It asked that the Panel consider its e-mail along with its earlier response.

12. Considerations

64) 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.

65) 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.

13. Paragraph 36(1)(a)

66) 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.

67) The revised membership check conducted by the Case Manager (described in paragraph 54 above) showed that 18.81% of the workers were members of the Union. The Panel is satisfied that both the initial check and the revised check were 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.

14. Paragraph 36(1)(b)

68) 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.

69) The Panel notes that the revised support check conducted by the Case Manager showed that 58.75% of the workers in the proposed bargaining unit (128 out of 218 workers) had signed a petition in favour of recognition of the Union (see paragraph 55 above). Of those who had signed the petition 34 were Union members (15.60% of the proposed bargaining unit) and 94 were non-members (43.12% of the proposed bargaining unit). The Panel notes the Employer’s claim that it had “grave concerns about the reliability and legitimacy of the petition”. However, the Panel has received no documentary evidence to support this claim and is content, therefore, to rely upon the figures given in the Case Manager’s revised report. Furthermore, the Panel does not consider it of significance that “no explanation had been offered by the Union about the circumstances in which these alleged signatures were obtained for the purposes of the petition”, or that that the Employer was not aware of the petition until it had sight of the Union’s application. It is not uncommon for unions to collect evidence of support without this being witnessed by employers and it is routine for those completing petitions that their names will not be disclosed to the employer. Although the petition was signed over a lengthy period and some of the signatories signed before the staff forum was created the Panel considers that the vast majority of the signatories would still be likely to favour recognition as there is no specific evidence of employees having changed their minds. Even if a few have changed their minds, the proportion of the bargaining unit that has signed the petition is so high (58.75%) that it is extremely unlikely that the number has fallen below 50%. In addition the bandwagon effect is likely to increase support for recognition as a result of the union campaigning and the possibility of recognition drawing closer. The names of persons unknown to the employer and the “unreadable, duplicates or crossed out” names have not been taken account of in assessing the proportion of those that have signed the petition.

70) 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.

15. Decision

71) For the reasons given in paragraphs 65 - 70 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr James Tayler, Panel Chair

Ms Judy McKnight CBE

Mr Nicholas Caton

29 November 2018