Decision

Acceptance Decision

Updated 26 September 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1423(2024)

26 September 2024

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

W.H. Malcolm Limited

1. Introduction

1)         GMB (the Union) submitted an application to the CAC on 19 August 2024 that it should be recognised for collective bargaining by W.H. Malcolm Limited (the Employer) for a bargaining unit comprising the “ All Forklift Truck Drivers (FLT) employed directly by WH Malcolm in the Diageo Leven site carrying out the following job designations, Driver, Material, Loader, Cutter, Shunter, Tipper”.  The CAC gave both parties notice of receipt of the application on 19 August 2024.  The Employer submitted a response to the CAC dated 26 August 2024 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 Mrs Sarah Havlin, Panel Chair, and, as Members, Mr Alastair Kelly and Mr Matt Smith OBE.  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 3 September 2024.  The acceptance period was extended on two further occasions to allow time for a membership and support check to take place, for the parties to comment on the subsequent report, and for the Panel to consider those comments before arriving at a decision. The final extension ends the acceptance period on 1 October 2024.

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 2 July 2024 by way of a letter requesting that the Employer recognise the Union to conduct collective bargaining. The Employer in its response letter, received by the Union on 12 July 2024 requested to meet the Union to discuss matters further. A meeting was held on 15 August 2024, where the Employer rejected the Union’s request for voluntary recognition.

6)         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 1800. The Union confirmed that there were 75 workers in the proposed bargaining unit, of whom 31 were members of the Union. When asked to confirm the number of union members in the proposed bargaining unit and provide evidence to support this figure, the Union stated it had “31 active members within the proposed bargaining unit”

8)         The Union when asked to provide evidence that the majority of the workers in the bargaining unit are likely to support recognition for collective bargaining, stated “We have less than 50% membership however we have a survey with 49 responses which includes 24 non-members which we believe brings us over the threshold of recognition”.

9)         The Union stated that the reason for selecting the proposed bargaining unit was that “GMB are currently recognised in Diageo for collective bargaining purposes, the proposal for the job roles identified aligns with industry standards and the Diageo collective bargaining arrangements also. The roles are non-managerial, hourly paid and focused entirely on the Forklift Truck Driver (FLT) population within a single factory. This is where our members sit also.”

10)       In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the proposed bargaining unit the Union answered, “No, however, there once was a recognition agreement when these job roles were carried out by workers directly employed by Diageo, this recognition was lost when Diageo outsourced the work to W.H Malcolm”. The Union said that the bargaining unit had not been agreed with the Employer.

11)       Finally, the Union confirmed that it held a current certificate of independence and that it had copied the application and supporting documents to the Employer on 19 August 2024.  

4. Summary of the Employer’s application

12)       In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 2 July 2024. The Employer stated it responded to the Union by way of a letter dated 12 July 2024.

13)       The Employer said that it had received a copy of the application form from the Union on 19 August 2024. 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. Asked if it agreed the bargaining unit as set out by the Union the Employer answered “ No. Despite numerous discussions, the specific job roles and the employees at issue are not clear to us. The discussions we had in person were about FLT drivers but there was reference to shunters, cutters loaders, material, tipper, and driver job designations in the request for recognition. Following our last conversation, we believe that the intention is to include all FLT drivers and shunters in the proposed bargaining unit, but we lack absolute clarity on the bargaining unit.

In any case, any bargaining unit with only Leven employees included is incompatible with effective management”.

14)       When asked if the Employer agreed with the proposed bargaining unit, it stated “No” and set out its objections to the bargaining unit at length.  The Employer confirmed that following receipt of the Union’s request, it had not proposed that Acas should be requested to assist. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

15)       The Employer stated that it employed a total of 1891 workers and that it did not agree with the number of workers in the bargaining unit as defined in the Union’s application. When asked the reasons for any difference, the Employer stated there was 110 workers and gave a breakdown of workers as follows: Fork Lift Driver – 96, Fork Lift Driver/Shunter -1, Shunter-3, Shunter/Driver-10.

16)       Asked whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated, “No precise list of Union membership has been provided. We have met with David Hume, GMB on several occasions. During these discussions, the numbers of union members were reported differently each time but were decreasing on each occasion presented to us”.

17)      When asked if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, and to indicate its reasons for taking this view, with any available evidence, the Employer stated, “ No evidence has been provided that the majority of the present workers in the proposed bargaining unit are likely to support recognition.  In fact, it stated that at best it is 49 out of 110 support recognition but we have not had sight of any survey or evidence to substantiate even the 49 figure. Furthermore, regular consultations through our local forums evidence that employee concerns have been and are being handled by Malcolm’s directly and there are minimal concerns around terms and conditions with the points raised being more operational in nature. As such, the application should be rejected”.

18)       Finally, when asked on 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 confirmed “N/A”.

5. The membership and support check

19)       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 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 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 the workers in the bargaining unit which had been proposed by the Union in its application form, and that the Union would supply to the Case Manager a list of its paid-up members within that unit including their full names, dates of birth and job titles (where available) and a copy of the E petition signed by workers in favour of recognition. 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 4 September 2024 from the Case Manager to both parties.

20)       The information requested was received by the CAC from both the parties on 10 September 2024. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

21)       The list supplied by the Employer indicated that there were 107 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 31 names. According to the Case Manager’s report the number of members in the proposed bargaining unit was 28, a membership level of 26.17%.

22)       The E petition supplied by the Union contained 49 names and signatures. The report showed that 39.25% of workers in the proposed bargaining unit had signed the petition in favour of recognition. The proportion of workers in the proposed bargaining unit who had signed the petition and were non-members was 22.43%. The E petition was sent to the CAC case manager in the format of an excel spreadsheet. The E petition was set out as follows:

“I SUPPORT RECOGNITION OF GMB TRADE UNION AS ENTITLED TO CONDUCT COLLECTIVE BARGAINING ON PAY HOURS AND HOLIDAYS ON OUR BEHALF”.

NAME: DATE OF BIRTH: ARE YOU A GMB MEMBER (YES/NO)

23)       A report of the result of the membership check was circulated to the Panel and the parties on 11 September 2024 and the parties’ comments invited.

6. Summary of the parties’ comments following the membership check

24)       In an email to the Case Manager dated 13 September 2024 the Employer stated “I can confirm on behalf of W H Malcolm Limited, that there are 107 employees in the proposed relevant bargaining unit. With reference to the test, the statistics contained in your letter of 11 September 2024 indicate that the application is not admissible as there is not a majority of workers in the proposed relevant bargaining unit that would be likely to favour recognition”.

25)       In an email to the Case Manager dated 21 May 2024 the Union stated, “I believe the employer may have made a mistake in terms of the numbers within the bargaining group, for avoidance of doubt, GMB Union are only seeking recognition for the job titles detailed in the letter who are hourly paid. We are not seeking recognition for any supervisory staff even if they share the same or similar job title designation. I would formally request that you re-engage with the employer to re-establish the correct bargaining group and to ensure that they have mistakenly included any supervisory or managerial staff into the requested bargaining group”.

7. Considerations

26)       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 the submissions of both parties and all the evidence in reaching its decision. 

27)       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. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraphs 36(1)(a) and 36(1)(b) are met. 

Paragraph 36(1)(a)

28)       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 21 above showed that 26.17% 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.

29)       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.

30)       As stated above, membership levels  amount to 26.17% of the workers in the bargaining unit. In the absence of evidence to the contrary, the Panel concludes that membership of the Union is an indicator of support for recognition of the Union. The Panel also considers that the workers who signed the petition in support of recognition but are not union members, a further 22.43% of the workers in the bargaining unit, are likely to support recognition, giving a total claimed support level of 48.60% at present. Accordingly, on the basis of the evidence in this case the Panel has reached the view that there is sufficient evidence to conclude that there is a likelihood 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.

31)       Finally, in terms of the issues raised by the Union in its comments on the membership and support check, in respect of the status of supervisory staff, the Panel observes that this is a matter to be considered at the stage of considering the appropriate bargaining unit.  It is noted by the Panel that the check established that the total number of workers in the proposed bargaining unit is not disputed by the parties at 107, and it is the total number of workers within the proposed bargaining unit which is the necessary information for the  present purpose of the Panel’s considerations. 

8. Decision

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

Panel

Mrs Sarah Havlin, Panel Chair

Mr Alastair Kelly

Mr Matt Smith OBE

26 September 2024