Decision

Acceptance Decision

Updated 16 December 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1239(2021)

16 December 2021

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

William Grant & Sons

1. Introduction

1) GMB (the Union) submitted an application to the CAC on 9 November 2021 that it should be recognised for collective bargaining by William Grant & Sons (the Employer) for a bargaining unit comprising the “Employees linked to an Index rate of pay”. The location of the bargaining unit was given as. The Glenfiddich Distillery, Dufftown, Keith, Banffshire AB55 4DH. The CAC gave both parties notice of receipt of the application on 9 November 2021. The Employer submitted a response to the CAC dated 16 November 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 Professor Kenny Miller, Panel Chair, and, as Members, Mr. Alastair Kelly and Mr Paul Moloney. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) The CAC Panel extended the acceptance period in this case. The initial period expired on 23 November 2021. The acceptance period was extended to 21 December 2021 in order to allow time for a membership check to take place, for the parties to comment on the subsequent report and the Panel to consider said 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 the Union said that it had written to the Employer with a formal request for recognition on 7 September 2021. The Union submitted an email from the Employer dated 20 September 2021. The Employer proposed both parties meet with Acas to help determine whether the requirements of the Schedule had been met. A copy of the Union’s email and the Employer’s response was enclosed with the application.

6) The Union stated that following the request from the Employer to meet with Acas a meeting had been arranged on 5 November 2021 however, the Employer then cancelled the meeting on 4 November 2021. The Union submitted with its application an email from the Employer dated 4 November 2021 with reasons of why the meeting with Acas had been cancelled.

7) The Union stated that the total number of workers employed by the Employer was 1065. The Union stated that from these workers approximately 100 fell within the proposed bargaining unit. The Union stated that it had 25 members within the proposed bargaining unit. When asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated that the majority of the workers would support recognition as the Union currently had a very limited recognition agreement for this group of workers that did not include any bargaining. The Union had witnessed a 50% growth in membership over the last 18 months.

8) The Union stated that the reason for selecting the proposed bargaining unit was that these workers were where the Union had the largest density of members. The Union also stated that these group of workers had no individual arrangements for pay.

9) The Union confirmed that the bargaining unit had not been agreed with the Employer. In answer to the question was there an existing recognition agreement which it was aware of, the Union stated that it had an existing recognition agreement which covered the workers, but it did not have any bargaining rights attached to it.

10) 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 21 September 2021.

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

11) In response to the Union’s application the Employer stated that it had received the Union’s formal request for recognition on 7 September 2021. When asked what its response was, the Employer stated that it emailed the Union on 20 September 2021 confirming that it was not in a position at the moment to confirm acceptance or rejection of the Union’s application. The Employer proposed that together they engaged with Acas to help them determine whether the requirements of the Schedule had been met.

12) The Employer confirmed that it had received a copy of the Union’s application on 9 November 2021 without any further supporting documentation.

13) The Employer stated that it did not agree with the bargaining unit, and it did not recognise the number given by the Union in its application form and it was keen to establish how the Union had arrived at this figure. The Employer confirmed that it had 168 team members in Dufftown who currently received an index rate of pay.

14) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer said the Union have referred to “approximately 100 employees” in the proposed bargaining unit. The Employer did not agree that it was appropriate to change the bargaining unit from what the Union originally proposed, nor that a smaller bargaining unit would be appropriate. The Employer further stated that the Union’s proposed bargaining unit was not all index linked employees and that the bargaining unit was not agreed.

15) The Employer stated that it proposed and agreed to speak to Acas following the Union’s request under the Schedule. A meeting was arranged for 5 November 2021 but, after careful consideration, the Employer decided to cancel the meeting.

16) The Employer confirmed that there was currently a recognition agreement in place dated from 7 February 1994. This agreement recognised that the Union could represent employees for disciplinary and grievance purposes. The agreement did not extend to collective bargaining.

5. The Membership check

17) To assist in the application 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 1 December 2021 from the Case Manager to both parties. The information requested from the Union and Employer was received by the CAC on 6 December 2021. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

18) The list supplied by the Employer contained the names of 170 workers and the list of members supplied by the Union contained 30 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 26, a membership of 15.29%.

19) A report of the result of the membership check was circulated to the Panel and the parties on 7 December 2021 and the parties were invited to comment on the result.

6. Parties’ comments on the membership check

20) In an e-mail to the CAC, dated 13 December 2021, the Union stated although the membership check states 15.29%, the Union asked that the CAC take into consideration, the growth of members in recent months and the concerns raised over the Employers feedback to staff around recognition. The Union ask that consideration is given for the opportunity for the Union to have access to the site, which has been denied in the past, and to have a formal ballot of the ‘Bargaining Unit’ to allow staff to have the opportunity to make an informed decision.

21) In an e-mail to the CAC, dated 13 December 2021, the Employer stated that they accept the figures as set out in the CAC’s membership report. The Employer also accepts that the Union’s proposed bargaining unit has 170 employees. The Employer states they had no reason to dispute the Union membership figures or proportion of Union members in the bargaining unit, as they do not track membership levels. The Employer based on the CAC’s independent analysis, accepts that the Union meets the first validity test, but the Union fails the second test. The Employer’s understanding is that a Union must satisfy both tests for its application to be accepted. As such the Employer urges the CAC to reject the application as inadmissible.

7. Considerations

22) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

23) 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 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.

8. Paragraph 36(1)(a)

24) 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 membership check conducted by the Case Manager (described in paragraphs 17 and 18 above) showed that 15.29% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 17 above, 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

9. Paragraph 36(1)(b)

25) 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. As discussed in the previous paragraph, the level of union membership identified by the membership check is 15.29%. The Union did not provide any further evidence of likely support for recognition. The Panel has concluded that the evidence before it is not sufficient to support a decision 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 proposed bargaining unit as required by paragraph 36(1)(b).

10. Decision

26) For the reasons given above, the Panel’s decision is that the application is not accepted by the CAC.

Panel

Professor Kenny Miller, Panel Chair

Mr Alastair Kelly

Mr Paul Moloney

16 December 2021