Decision

Acceptance Decision

Updated 9 September 2019

Case Number: TUR1/1134/2019

09 September 2019

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

Urbaser Ltd

1. Introduction

1) GMB (the Union) submitted an application to the CAC dated 12 August 2019 that it should be recognised for collective bargaining by Urbaser Ltd (the Employer) for a bargaining unit comprising “Drivers (All levels), Loaders, Sweepers, Waste Operatives, Admin. All employees working on (DBC) Services Contract, based at Thames Road Depot Site, employed by Urbaser Ltd (Excluding Management)”. The application was received by the CAC on 13 August 2019. The CAC gave both parties notice of receipt of the application on 13 August 2019. The Employer submitted a response to the CAC dated 21 August 2019 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 Professor Gillian Morris, Panel Chair, and, as Members, Mr Mike Cann and Mr Paul Noon OBE. 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 28 August 2019. The acceptance period was extended to 9 September 2019 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 by email on 25 July 2019 and letter on 26 July 2019. A copy of the email and letter was attached to the application. The Union stated that there had been no response from the Employer.

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 there were 66 workers employed by the Employer on the Employer’s DBC Services Contract. The Union stated that there were 65 workers in the proposed bargaining unit, of whom 49 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 high percentage of membership in the workplace/bargaining unit supporting recognition of the Union. The Union said that its membership list was available to the CAC Case Manager if required.

8) The Union stated that the reason for selecting its proposed bargaining unit was because of the very high density of Union members within the bargaining unit employed by the Employer at the Thames Road Depot site. The Union stated that the bargaining unit had not been agreed with the Employer. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit.

9) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied the application made to the CAC, and supporting documents, to the Employer on 12 August 2019.

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

10) In its response to the Union’s application the Employer said that it had received the Union’s written request for recognition on 27 June 2019 via email. The Employer said that it had responded to that request via email on the 18 July 2019 and attached a copy of that email together with a draft Local Recognition Agreement sent to the Employer by the Union. In its email of 18 July 2019 the Employer declined the offer of a local voluntary recognition agreement but offered to work with the Union towards employee welfare without any agreement in place.

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 27 June and 5 July 2019. The Panel Chair noted that these dates pre-dated the Union’s application to the CAC and asked the Case Manager to investigate the matter. In a letter to the Employer dated 28 August 2019 the Case Manager said that the Union, on its application form, had said that it sent a copy of its application to the CAC to the Employer on 12 August 2019 and asked the Employer to confirm when it had received this. The Employer subsequently confirmed to the Case Manager in a telephone conversation that a copy of the application form had been received from the Union and that the envelope was postmarked 12 August 2019

12) 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. The Employer explained that it had won the bid from Dartford Borough Council (DBC) to service Residual waste, Recycling, Garden waste collections and Street Cleansing Services from 1 July 2019 via TUPE transfer. The Employer stated that it worked with unions on all other sites without any agreement in place and had agreed to continue with the DBC contract as well. The Employer said that it did not agree the proposed bargaining unit and that the bargaining unit should be the whole of Municipal Services not just one contract. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

13) The Employer said that there were 53 workers in the proposed bargaining unit excluding management positions. The Employer stated that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

14) 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 sure how many of the employees were members of the Union. 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 reiterated that it was not sure how many employees were in the Union.

15) In answer to the questions whether it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, or whether it had received any other applications in respect of workers in the proposed bargaining unit, the Employer answered “N/A”.

5. The Membership 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 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 28 August 2019 from the Case Manager to both parties. The information from both parties was received by the CAC on 29 August 2019. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

17) The list supplied by the Employer indicated that there were 53 workers in the proposed bargaining unit. The list of members supplied by the Union contained 47 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 41 a membership level of 77.36%.

18) A report of the result of the membership check was circulated to the Panel and the parties on 30 August 2019 and the parties were invited to comment on the result by noon on 3 September 2019.

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

19) In an email to the Case Manager dated 2 September 2019 the Union stated that the proportion of Union members in the bargaining unit (77.36%) constituted the required percentage as set out in paragraph 36 of the Schedule. The Union also stated that the high percentage of Union membership/recruitment in the workplace was evidence of workers/members fully supporting recognition of the Union as entitled to conduct collective bargaining on behalf of the proposed bargaining unit.

20) No comment on the result of the membership check was received from the Employer.
Considerations

21) 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.

22) 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 notes that the Employer states in its response to the Union’s application that it had received the Union’s request on 27 June 2019. The Panel has not had sight of that request but has seen the requests sent by the Union by email and letter respectively on 25 and 26 July 2019 respectively and is satisfied that they meet the requirements of paragraphs 5 to 9 of the Schedule. The Panel is satisfied that the Union’s 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)

23) 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 and 17 above) showed that 77.36% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 16 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 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)

24) 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 23 above the Panel has concluded that the level of union membership within the bargaining unit stands at 77.36%. 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 provided 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

25) For the reasons given in paragraphs 22-24 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mr Mike Cann

Mr Paul Noon OBE

09 September 2019