Decision

Para 35 Decision

Updated 7 November 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1369(2023)

7 November 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

 DECISION ON WHETHER PARAGRAPH 35 OF THE SCHEDULE APPLIES TO THE APPLICATION

The Parties:

GMB

and

Wincanton

1. Introduction

1)         GMB (the Union) submitted an application to the CAC dated 22 September 2023 that it should be recognised for collective bargaining purposes by Wincanton (the Employer) in respect of a bargaining unit comprising “shunters based at Wincanton contract Heinz NDC.” The location of the bargaining unit was given as “Fourmarts Rd, Wigan, WN5 0LR.” The application was received by the CAC on 22 September 2023 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 22 September 2023 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 Ms Naeema Choudry, Panel Chair, and, as Members Ms Claire Sullivan and Mr Alastair Kelly. The Case Manager appointed to support the Panel was Joanne Curtis.

2. Issues

3)         The Panel is required by paragraph 15 of Schedule A1 to the Act 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 of Schedule A1 to the Act; and should therefore be accepted.

3. Summary of the Union’s application

4)         In its application to the CAC the Union stated that it had made a request for recognition to the Employer on 7 September 2023. The Union stated that the Employer responded by forwarding a copy of an old bargaining agreement which the Union stated was null and void. The Union added that it felt the Employer was trying to frustrate the wishes of members of the GMB Union. A copy of the Union’s letter of 7 September 2023 was attached to the application.  

5)        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.

6)         The Union stated that the total number of workers employed by the Employer was “100+”. The Union stated that there were 13 workers in the proposed bargaining unit, of whom 8 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 said that it was willing to provide membership details to the CAC Case Manager on a confidential basis. The Union also stated that it was prepared to provide a petition to the CAC Case Manager on a confidential basis.

7)         The Union stated that the reason for selecting the proposed bargaining unit was that “they are hourly paid colleagues who currently sit outside of any bargaining unit at the site.”  The Union said that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the bargaining unit, the Union answered “Unite the Union held a collective bargaining agreement with Wincanton when they held the transport contract. Wincanton lost the contract in 2022 with it the collective bargaining agreement ceased. Our members have expressed their wish for Wincanton to recognise GMB as Union of choice.”

8)         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 7 September 2023.

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

9)         In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 3 August 2023.  The Employer said it responded on 8 August 2023 and attached a copy of the written request and the Employer’s response. The Employer also attached a copy of a further request from the Union dated 7 September 2023 and the Union’s response dated 12 September.

10)       The Employer confirmed that it had received a copy of the Union’s application form from the Union on 22 September 2023.  The Employer stated that it had, before receiving a copy of the application form from the Union, “agreed the bargaining unit but that it did not agree the proposed bargaining unit.” The Employer said that it did not agree the proposed bargaining unit because “the bargaining unit already has a recognition agreement between Wincanton and Unite. The role of a D1 Grade Warehouse Shunter falls within the National Bargaining Agreement with Unite, who function as the sole union to represent D1 Grade employees who are entitled to conduct collective bargaining relating to pay, hours and holidays. This agreement remains fully in place today.”

11)       The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as defined in the Union’s application and that the proposed bargaining unit contained 12 workers. The Employer said that there was an existing agreement for recognition in force covering workers in the proposed bargaining unit and said, “please see attached. Unite - Updated Agreement dated and signed on 10/08/2021.” The Employer also attached a copy of a letter from Unite the Union to the GMB Union dated 7 September 2023 which stated “I have been made aware of your recent application to Wincanton for recognition. Please be aware of Unites formal recognition on site for all drivers and shunters working on the Heinz contract. Our membership records show that you do not have the required membership in transport or indeed shunters who are LGV drivers covered by the transport union unite. I am sure you would agree there are many unorganized workplaces we both should be focused on in our respective fields of influence. Unite do not intend to relinquish our recognition now or in the future.”

12)       In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer said “n/a”. When asked 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 answered “n/a”. The Employer answered “n/a” 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 and when asked if it had received any other applications in respect of workers in the proposed bargaining unit.

5. The Union’s comments on the Employer’s response

13)       The Union stated that Unite the Union and the Employer had a recognition agreement up until the Employer lost the contract to run the Transport Department at Heinz National Distribution Centre. The Union said that there was currently 13 shunters employed by the Employer at the site, 8 of whom were GMB Union members. The Union said that its members had formally written to both the Employer and Unite the Union “expressing their wish to be recognised by GMB.” The Union attached a copy of the “old” recognition agreement and a letter to Unite the Union dated 18 September 2023 as supporting evidence.

14)       In the letter of 18 September 2023, the Union said: “In response to your letter dated 7th September 23, I contest your claim that Unite have an active recognition agreement at the Heinz Distribution Centre at Martland Mill since the transport department work was fragmented when Wincanton lost the contract rendering the old recognition agreement void.

As the largest Union currently with a recognition agreement on-site, I intend to do whatever is necessary to further the interest of GMB Members, therefore I intend to pursue the CAC application, I also welcome a meeting to discuss this matter.”

15)       The Union then went on to make reference to the “old” agreement and said “as you can see on the opening page of the agreement it states in respect to General Haulage Drivers based at Wigan NDC and not as the Employer states covered by a National Agreement.” The Union referred to page 1, Section 1.0 of the agreement entitled Union Recognition and Membership which stated:

Throughout this Agreement the terms “the Company” refers to Wincanton General Haulage. It is freely accepted by this Agreement shall have relevance only to the Drivers defined above.  Nothing specified in this document or supplementary thereto shall necessarily have relevance to any other Distribution Centre or Transport Operation operated by Wincanton and no claim will be pursued with or accepted by any other Distribution Centre or Transport Operator purely on the basis of its existence in any other Wincanton operation or in the Company’s General haulage network.

The Union explained that in light of the fact that “workers employed under the old contract were either made redundant, offered transfers to other Wincanton sites, or offered TUPE transfers to haulage companies who operate the Heinz transport network shows the disingenuous claims by both Wincanton and Unite the Union.”

6. The hearing

16)       As the Panel was of the view this matter could not be determined on the papers alone it gave notice to the parties that a hearing would be held. The parties were duly invited to make written submissions on the admissibility of the application under paragraph 35 of the Schedule. The hearing was held by zoom on 27 October 2023 and the names of those who attended the hearing on behalf of the parties are listed below at Appendix A. Both of the parties helpfully supplied written submissions and these were exchanged in advance of the hearing.

7. Issues in dispute

17)       The Chair of the Panel informed the parties that, in accordance with paragraph 35 of Schedule A1, an application to the CAC made under paragraph 11 or 12, was not admissible if the CAC was satisfied that there was already in force a collective agreement under which a Union was recognised as entitled to conduct collective bargaining on behalf of any workers falling within the bargaining unit proposed by the Union. The Panel would hear the evidence and arguments solely on the question as to whether there was an existing collective agreement in force. Consideration of the other requirements contained within paragraph 15 would take place at a later date, subject to the determination of this issue.

8. Matters clarified at the outset of the hearing

18)       At the start of the hearing the panel clarified with the Union that when it referred to the bargaining unit as shunters based at Wincanton contract Heinz NDC they were referring to the Wigan site which was confirmed. The panel also asked for clarification as to the role of the shunters. The panel were advised by the Union that the driver operation at a distribution centre consisted of LGV drivers and the shunters who worked in the yard moving trailers from bays to holding areas. Both the LGV drivers and the shunters are class 1 drivers. Finally, it was also confirmed that the Employer’s recognition agreement with Unite was signed on 10 August 2021, but the bottom of the agreement had the date July 2021. As such, any references to the July agreement were references to the agreement signed on 10 August 2021.

9. Summary of the Union’s submissions

19)       The Union said that it was seeking recognition on behalf of its members employed as shunters by Wincanton PLC at Kraft Heinz National Distribution Centre, Fourmarts Road, Wigan, WN5 0LR. The Union said that Kraft Heinz had three separate business streams each with its own stand-alone contract at the national distribution centre in Wigan. The Union stated that up until July last year Wincanton PLC held all three contracts with three separate bargaining agreements these were: General Haulage Drivers (Transport) based at Wigan which was the agreement with Unite the Union, Warehouse colleagues based at Wigan with the GMB Union and Repack colleagues based at Wigan with United Road Transport Union. The Employer said that Wincanton PLC lost the Transport contract in 2022 to 3T which impacted 75 Drivers.

20)       The Union said that it had been announced in early 2022 that Wincanton PLC had been unsuccessful in the re-tendering bid ending a 25-year partnership with Kraft Heinz to distribute goods out of the national distribution centre at Wigan to “3T.” The Union said that drivers were left with different options including the option to transfer to other operations within Wincanton, one of those being the Warehouse Operation who now had responsibility for shunter function on site and the 13 shunters who transferred. The Union said that it had a longstanding recognition agreement with Wincanton PLC that covered hourly paid colleagues employed by Wincanton on the Warehouse contract who the shunters now worked for, and that “management” had also introduced a dual warehouse colleague/ shunter role that sat within the “GMB/ Wincanton Recognition Agreement.”

21)       The Union said that out of the 13 shunters who transferred eight were members of the GMB Union who had approached the Union to seek recognition on their behalf as they could not understand why they had not been transferred into the GMB agreement and felt they had been left in limbo since Wincanton lost the contract ending the onsite Transport recognition agreement with Unite. The Union said that to its knowledge and that of its members Unite had not pursued a recognition agreement on site with the new contractors. The Union said that its request for recognition was therefore straightforward “agreement between Wincanton and Unite for the drivers employed at Wigan under a separate contract that no longer exists does not constitute as an agreement that is already in force as it is no longer being used.”

22)       During the hearing the Union indicated that the shunters did not believe that Unite and the Employer were doing anything to support them and that they had written to Unite and the Employer to request derecognition.

10. Summary of the Employer’s submissions

23)       The Employer said that following the loss of the Kraft Heinz contract, the role of Shunter colleague (D1 Grade) had since November 2022 migrated to its Grocery and Consumer sector, initially with eight (8) Shunter colleagues moving sectors. The Employer said that it was agreed that as part of this transfer, no changes to their terms and conditions of employment would take place and that the shunter colleagues would remain part of the Recognition Agreement with Unite. The Employer referred to a “Shunter Questions Email” dated 14 December 2022. The Employer said that the 8 had recently increased to 12 Shunter colleagues all of which were driver colleagues (D1 Grade) transferring to Grocery and Consumer on the existing terms and conditions of Employment. The contracts of employment which were issued at the time of the transfer referred to URTU as being the recognized trade union. When the panel questioned the reference to URTU the Employer clarified that this was a typographical error as the contracts were produced centrally and the reference should have been to Unite and not URTU. The Employer indicated that the shunters were doing the same work now as they were prior to the Employer losing the Kraft Heinz contract. Whilst the Employer had lost the transportation contract, Kraft Heinz had realized that they still needed the work being undertaken by the shunters and so they had continued to undertake the same work albeit under the guise of the Grocery and Consumer division.

24)       The Employer stated that in August 2023 it received a voluntary recognition request dated 3 August 2023 from the Union to add the shunter colleagues to “their Warehouse Voluntary Collective Agreement.” The Employer said it responded to the Union in August 2023 informing them that the “Shunter colleagues” were in an existing agreement and that the role of Warehouse Shunter fell within the recognition agreement with Unite the Union who functioned as the sole union to represent D1 Grade employees and therefore entitled to conduct collective bargaining relating to pay, hours and holidays for and on behalf of these “shunter colleagues.” The Employer added that this agreement remained fully in place today.

25)       The Employer provided a copy of the latest correspondence with Group Transports People Team and communication with Unite the Union regarding the agreed annual collective wage negotiations. The Employer said that the agreement it had in place from Transport, covered General Haulage Drivers (otherwise known as Northwest Transport) based at Wigan, Fourmarts Road, which included a group of “colleagues” who carried out shunting (driving) activity for Grocery and Consumer. The Employer said that it had been a long standing process that shunters were covered by the agreement and were part of the wage negotiations. The Employer highlighted that as part of the wage negotiation process for drivers the Unite union representative acting on behalf of all drivers for Northwest Transport (inclusive of the Shunter colleagues) was an active “shunter colleague” based at Wigan, Fourmarts Road. The Employer shared correspondence showing that wage negotiations had been settled and that salary increases would be updated through the appropriate channels for the “shunter colleagues” as per the process. Indeed, the Employer confirmed that the shunters had had the benefit of two wage increased negotiated by Unite since they had lost the contract with Kraft Heinz. The Employer concluded by saying that the relationship it had with both Unions was extremely important to the Employer and that was why it was honouring both recognition agreements “inclusive of other union agreements we have on this contract.”

11. Comments from Unite the Union (interested party)

26)       Unite, as an interested party, indicated that it continued to negotiate on behalf of the shunters following the end of the Kraft Heinz contract resulting in the shunters having the benefit of pay increases which they had negotiated for them. Unite further confirmed that in its view that it had a valid recognition agreement in place covering the shunters.

12. Considerations

27)       The Panel’s task under paragraph 35 is to decide whether there is already in force a collective agreement under which a union is recognised as entitled to conduct collective bargaining on behalf of any of the workers falling within the Union’s proposed bargaining unit. The Panel, in reaching its decision, has taken account of all the evidence to date in this application along with the written and oral submissions at the hearing on 27 October 2023. This case turns solely on the provisions of paragraph 35(1) and whether or not we are satisfied that there is already in force a collective agreement under which a union is recognised as entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit. The relevant bargaining unit comprising “shunters based at Wincanton contract Heinz NDC.”

13. Decision

28)       The Panel considered most carefully all the correspondence and information submitted by the parties. Having done so the Panel is satisfied that the 10 August 2021 recognition agreement between the Employer and Unite in respect of the shunters did not terminate on the Employer losing the Kraft Heinz contract. We note that the shunters continued to do the same work as prior to the loss of the Kraft Heinz contract and that Unite has continued to negotiate on behalf of the shunters securing two salary increases which the shunters have accepted and taken the benefit of.  The Panel is therefore satisfied that, in accordance with paragraph 35(1) of Schedule A1 to the 1992 Act, there is already in force a collective agreement under which a union is recognised as entitled to conduct collective bargaining on behalf of workers within the relevant bargaining unit. Accordingly, paragraph 35 renders the Union’s application inadmissible.

29)       The Panel’s decision is, therefore, that the application is not accepted by the CAC.

Panel

Ms. Naeema Choudry, Panel Chair

Ms. Claire Sullivan

Mr. Alastair Kelly

7 November 2023

14. Appendix A

EMPLOYER:

David Gwilliam (people manager)

Brogan Okley

GMB:

Shaun Buckley (NW)

Pippa Atherton (NW)

UNITE (interested party):

Rowe, Kenny

Jones, Adrian