Decision

Acceptance Decision

Updated 4 September 2019

Case Number: TUR1/1130/2019

03 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

Zyro Limited

1. Introduction

1) GMB (the Union) submitted an application to the CAC dated 7 August 2019 that it should be recognised for collective bargaining purposes by ZYROFISHER (the Employer) for a bargaining unit described as: “All permanent hourly paid warehouse staff including supervisors, but excluding Office staff, managers and personal contract holders employed by Zyrofisher Ltd, Roundhouse Road, Faverhill Industrial Estate, Darlington, DL3 0UR ^{[footnote 1]} ”. The CAC gave both parties notice of receipt of the application on 8 August 2019. The Employer submitted a response to the CAC dated 14 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 Mr James Tayler, Panel Chair, and, as Members, Mrs Maureen Chambers and Ms Virginia Branney. 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 22 August 2019 and was extended to 11 September 2019 to allow time for the Panel to consider all the evidence 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 made a request for recognition to the Employer on 30 July 2019 and the Employer had responded on 5 August 2019 (the letter was actually dated 1 August 2019) rejecting their request. Copies of both letters were attached to the application. The Union explained that they had offered the Employer a meeting to discuss a voluntary recognition but this was declined and enclosed copies of all correspondence that had been exchanged between them.

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 the total number of workers employed by the Employer was 210 and that there were 57 workers in the proposed bargaining unit, of whom 12 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 obtained a petition that demonstrated that the majority of staff had signed supporting recognition and collective bargaining.

8) The Union stated that the reason for selecting the proposed bargaining unit was because GMB members and non-members of staff within the bargaining unit had shown an interest in GMB being the recognised Trade Union for collective bargaining purposes. The Union stated 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 ‘No’.

9) The Union confirmed that it held a current certificate of independence.

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

10) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 31 July 2019. The Employer stated that it had responded to that letter on 1 August asking the Union to define the bargaining unit and provide the details that had been requested by them in earlier correspondence. The Employer gave background information as to the sequence of events that took place before the Union sent to them their formal request for recognition and enclosed copies of all relevant correspondence.

11) The Employer confirmed that a copy of the application form was received by them from the Union on 8 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 stated that the warehouse was a self-contained function within Zyro Ltd so it would be illogical and hinder effective management of the function if the seven managers were excluded from the bargaining unit. All decisions about the warehouse on pay, hours, and holiday affected its managers in the same way as it affected its team members. The Employer said that they are all based at the same site in Darlington and had common interests and worked towards a common goal.

13) The Employer agreed with the number of workers in the bargaining unit as defined in the Union’s application and confirmed that it did not disagree with the Union’s estimate of membership in the proposed bargaining unit. When invited 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 stated that it had been informed by members of the warehouse that there was little support for recognition.

14) 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 membership and support check

15) 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 and of a petition compiled by the Union. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, addresses, and job titles of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of the names and addresses of paid up members within that unit and a copy of a petition signed by workers in favour of recognition. It was explicitly agreed with both parties that to preserve confidentiality the respective lists and petition would not be copied to the other party. These arrangements were confirmed in a letter dated 16 August 2019 from the Case Manager to both parties.

16) The information from the Union was received by the CAC on 18 August 2019 and from the Employer on 19 August 2019. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

17) The Union’s petition consisting of 37 signatures was set out as follows:

GMB GMB @ WORK Northern in Zyrofisher Unit 4, Darlington DL3 0UR

I, the undersigned, support GMB in recognition and collective bargaining.

Signature: _____________

Print Name: _______________

Workplace: ____________

Please note this section can be completed by both members and non-members

Surname: _____________

Forename: ____________

Address: ______________

_________ Postcode: ____

Job title: ______________

Are you an existing union member? YES/NO

If yes, please indicate which:

□ GMB □ OTHER :_____________

GMB Memb No. (if known): ___________

I consent to GMB using this data for the purpose of this petition □

This information will NOT be shown to your employer

Please return this slip to:

Joyce Guthrie GMB @ WORK

Freepost GMB Northern

You can join online at: www.gmb.org.uk/join

18) The list supplied by the Employer indicated that there were 58 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 12 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 12, a membership level of 20.69%. The comparison of the Union’s petition with the Employer’s list of workers revealed that a total of 37 workers had indicated that they wanted the Union to be recognised which corresponded to 63.79%. 12 of the 37 were union members (20.69%) and 25 were non-members (43.10%).

19) A report of the result of the membership and support check was circulated to the Panel and the parties on 19 August 2019 and the parties were invited to comment on the results by 22 August 2019.

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

20) No comments were received from ether party.

7. 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 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. It does not at this stage determine whether the proposed bargaining unit is appropriate.

8. 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.

24) The membership check conducted by the Case Manager showed that 20.69% of the workers in the proposed bargaining unit were members of the Union which the Employer did not contest. As stated in paragraph 16 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.

26) The Panel considers that members of the Union would be likely to favour recognition of the Union for collective bargaining (20.69%) , as would non-union members who signed the petition (43.10%); giving a total of 63.79%. The Panel noted that the Employer in its response stated that it had been informed by members of the warehouse that there was little support for recognition but no factual evidence of this was produced. On the evidence before it, the Panel has decided, on the balance of probabilities, 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.

10. Decision

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

Panel

Mr James Tayler, Panel Chair

Mrs Maureen Chambers

Ms Virginia Branney

03 September 2019

1. There was some confusion about the correct title of the Employer as it trades as ZyroFisher; the parties agreed that the correct name of the Employer company is Zyro Limited. ↩