Decision

Acceptance Decision

Updated 6 June 2019

Case Number: TUR1/1104(2019)

05 June 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

Viridor Waste Management Limited

1. Introduction

1) GMB (the Union) submitted an application to the CAC on 30 April 2019 that it should be recognised for collective bargaining by Viridor Waste Management Limited (the Employer) for a bargaining unit comprising the “All Viridor ERF employees excluding Management working at the Ardley Facility”. The CAC gave both parties notice of receipt of the application on 30 April 2019. The Employer submitted a response to the CAC dated 8 May 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 Mr Charles Wynn-Evans, Panel Chair, and, as Members, Mrs Susan Jordan and Ms Gail Cartmail. The Case Manager appointed to support the Panel was Nigel Cookson.

2. Issues

3) 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. The Union’s application

4) In its application the Union said that it had written to the Employer with a formal request for recognition on 17 January 2019 which the Employer declined. A copy of the Union’s letter was enclosed with the application.

5) According to the Union, it was not aware of the total number of workers employed by the Employer but stated that there were 38 workers within the proposed bargaining unit. Asked to state the number of Union members within the proposed bargaining unit the Union answered “Will submit on confidential basis”. The Union provided the same answer when asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that all the employees in the bargaining unit were employed by the Employer and worked at the Ardley Site. The Union confirmed that the bargaining unit had not been agreed with the Employer.

7) The Union confirmed that it had a current certificate of independence and also confirmed that, following receipt of the request for recognition, the Employer did not propose that Acas be requested to assist.

8) Finally, the Union confirmed that there had not been a previous application in respect of this or a similar bargaining unit and there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

4. The Employer’s response to the Union’s application

9) The Employer stated that it had received the Union’s formal request for recognition on or about 18 January 2019. When asked what its response was, the Employer stated that it met the Union on 11 March 2019 and on 4 April 2019 it sent a letter summarising its position which was to decline the request for voluntary recognition at that time. A copy of this letter was attached to the Employer’s response.

10) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated that on 30 April 2019 it received the application form but no supporting documents were received. The Employer confirmed that it had not agreed the proposed bargaining unit prior to having received a copy of the completed application form and that this was still the case. Its grounds for not agreeing the bargaining unit were that it was a recycling, renewable energy and waste management business with more than 3,500 employees. The Energy division had around 516 employees split between Power, Landfill and Energy Recovery Facilities (ERF). The ERF business within the Energy division was composed of eight ERFs of which Ardley was one. Accordingly, the proposed bargaining unit was a very small part of the Employer’s business and it believed that to grant recognition in respect of such a small element would lead to unacceptable fragmentation and would be incompatible with effective management. The Employer stated that it would expand further in relation to its concerns as to the bargaining unit at the appropriate stage.

11) The Employer stated that it employed 3,582 workers in total with 89 workers being based at the Ardley Site. The Employer did not agree with the Union’s figure as to the number of workers in the bargaining unit, explaining that there were currently at least 41 workers within the bargaining unit. It added that there were three vacancies and other workers based on the site might be within the bargaining unit depending on how it was delineated. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer stated that it was unable to answer this question as the Union had failed to disclose an estimate of Union membership. Although it had referred to confidentiality in the Employer’s view there was nothing confidential about a number. The Employer noted that, in the discussions following the Union’s request for recognition, the Union had refused to detail its membership level.

12) By failing to disclose Union membership (not just potentially confidential names and addresses) it was submitted that the Union had rendered its application inadmissible. No workers in the proposed bargaining unit paid membership dues to the Union by check-off. If the Union believed membership levels were sufficiently high the Employer would question whether, for instance, workers were full Union members and had paid memberships fees and at full rate, and the dates they joined.

13) When asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, the Employer again answered that, by failing to disclose evidence (even redacted for confidentiality) that a majority of the workers in the bargaining unit were likely to support recognition, even though it had indicated its intention to rely on such evidence, it submitted that the Union had rendered its application inadmissible.

14) As mentioned above, the Employer noted that, during the discussions following the Union’s request for recognition, the Union refused to detail its membership level. If the Union had other grounds for believing a majority of the workers in the bargaining unit were likely to support recognition, the Employer wished to understand the basis for that belief. For instance, if relying on a petition or similar, the Employer wished to understand the question that was asked, the degree of explanation given as to the meaning of collective bargaining and what checks had been undertaken to verify signatures. The Employer also referred to its Employee Voice Forums which it believed were a positive step forward in creating an open environment for its teams to raise issues and for the Employer to respond. The Employer was also using engagement surveys provided by a third party company as another way of gathering the views of its teams and measuring both trust and engagement. In the most recent such survey, the Employer believed that only three workers in the entire energy division of 500 plus mentioned Union recognition as their priority for change to make the company a better place to work.

15) The Employer stated that it did not believe that there was a recognition agreement already in place covering any of the workers in the bargaining unit. When asked whether, following receipt of the Union’s request, the Employer had proposed that Acas be requested to assist, the Employer answered “No”.

16) Finally, 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 answered “N/A”.

5. The membership check

17) 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 17 May 2019 from the Case Manager to both parties.

18) The information requested from the Union was received by the CAC on 16 May 2019 and from the Employer on 20 May 2019. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

19) The list supplied by the Employer contained the names of 43 names but one name was duplicated (identical name and date of birth) and so was excluded from the count leaving a list of 42. Two of the remaining workers were highlighted in blue on the Employer’s list with the Employer querying whether or not they were in the Union’s proposed bargaining unit. Not knowing whether or not these workers were within the Union’s proposed bargaining unit, the Case Manager produced the results of his comparison both with and without these individuals being included.

20) The list of members supplied by the Union contained 23 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit based on there being 42 workers was 21, a membership level of 50%. However, the same comparison having excluding the two workers gave a membership density of 52.5%.

21) A report of the result of the membership and support check was circulated to the Panel and the parties on 21 May 2019 and the parties’ comments invited.

6. Parties’ comments on the membership check

22) In an email dated 21 May 2019 the Union stated that its proposed bargaining unit would not include the two highlighted in blue on the Employer’s list but that, either way, the membership level was 50% or above and it hoped that the application would be accepted.

23) In an email dated 31 May 2019 the Employer stated that of the two workers highlighted in blue, the Business Support Executive was in reality the PA to the Managing Director of the wider Energy Business (so not just the Ardley ERF) and so should be excluded. In contrast, the Business Support Co-ordinator was focused solely on the Ardley ERF and so should be within the proposed bargaining unit. Otherwise the Employer had no further comments to make at this stage save as already mentioned in its response to the initial questionnaire of 8 May 2019.

7. Considerations

24) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

25) 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 and that it was made in accordance with paragraph 12 of the Schedule. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

8. Paragraph 36(1)(a)

26) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit. In this case the membership check conducted by the Case Manager established a membership density between 50% and 52.5% depending on whether the two workers highlighted by the Employer are included. The Union, when commenting on the results of the check, stated that the two were excluded from its proposed bargaining unit whereas the Employer, in its comments, believed that one of the two should be included. The inclusion or exclusion of one or both of these workers is a matter that can be resolved in the next stage of the statutory process. However, the Panel satisfied that whether the bargaining unit comprises 40 or 41 workers as argued by the parties, the test under this paragraph is satisfied and members of the Union constitute at least 10% of the workers in the bargaining unit.

9. Paragraph 36(1)(b)

27) The test in paragraph 36(1)(b) is whether 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. In this case the Union relies solely on its membership density which, as stated above, was established by the Case Manager’s comparison as being between 50% and 52.5% depending on the status of the two workers highlighted by the Employer. The Union argues it is the higher of the two figures – 52.5% - with both workers being excluded from the 42 workers in question whereas the Employer believes that one of those workers should be included which would give a density of 51.2% based on a 41 worker strong bargaining unit. Whether the bargaining unit currently comprises 40 or 41 workers, the Panel is satisfied that Union members constitute a majority of the workers in the proposed bargaining unit. The Panel notes for completeness that the Employer did make reference to a number of unfilled posts which may well be filled at some stage of the statutory process – as these posts are currently unfilled they do not form part of the Panel’s reasoning for the purpose of this decision.

28) In view of the findings above, the Panel considers that the level of Union membership within the proposed bargaining unit – which, as noted above, represents a majority of the proposed bargaining unit on either analysis provided by the parties of the size of the bargaining unit - provides a legitimate indicator as to the degree of likely support for recognition of the Union for collective bargaining especially in the absence of any other determinative factor. It should be remembered that this is a test of “likely” rather than definitive support and the Panel must make an assessment of such support based on the evidence made available.

29) For the reasons given, the Panel is satisfied that, on balance, a majority of the workers in the bargaining unit would be likely to support recognition of the Union and the test set out in paragraph 36(1)(b) is therefore met.

10. Decision

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

Panel

Mr Charles Wynn-Evans, Panel Chair

Mrs Susan Jordan

Ms Gail Cartmail

05 June 2019