Decision

Acceptance Decision

Updated 18 December 2018

Case Number: TUR1/1076(2018)

18 December 2018

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:

Industrial Workers of the World

and

XPO Logistics^{[footnote 1]}

1. Introduction

1) Industrial Workers of the World (the Union) submitted an application dated 8 November 2018 to the CAC that it should be recognised for collective bargaining purposes by XPO Logistics (the Employer) in respect of a bargaining unit comprising “all shop floor workers below the level of senior site management” at “XPO Logistics RRU at Style Way, Upton, Northampton, NN4 9BX”. The Union stated that “this XPO facility provides cleaning and RRU work for the company of ‘Wincanton for Sainsbury’s’ at Upton Valley Way N, Upton, Northampton NN4 9BX, (to the rear of this XPO facility).” The application was received by the CAC on 8 November 2018 and the CAC gave both parties notice of receipt of the application on 9 November 2018. The Employer submitted a response to the CAC dated 20 November 2018 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 Professor Gillian Morris, Panel Chair, and, as Members, Miss Mary Canavan and Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Sharmin Khan.

3) The CAC Panel has extended the acceptance period twice in this case. The initial period expired on 22 November 2018. It was first extended to 4 December 2018 to enable the CAC to obtain more information from the parties and to provide more time for the Panel to consider all the evidence. It was extended for a second time to 18 December 2018, once again to enable the CAC to obtain more information from the parties and to provide more time for the Panel to consider all the evidence.

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. As explained in paragraph 20 below, in the light of the Employer’s submission that the application was inadmissible under paragraph 35 the Panel decided to treat this question as a preliminary issue in this case.

3. Summary of the Union’s application

5) In its application to the CAC the Union stated that it had sent a request for recognition to the Employer on 11 October 2018. The Union stated that it had received no response although it understood that there had been communication with an Acas contact, Mr Graham Young, whom the Union had approached for advice/assistance. A copy of the Union’s request letter was attached to its application.

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 said that no previous application had been made. 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 60. The Union stated that there were 60 workers in the proposed bargaining unit. When asked to state the number of Union members in the proposed bargaining unit the Union left the space for an answer to this question blank. 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 could provide evidence that its members constituted over ten per cent of those workers.

8) The Union stated that the reason for selecting its proposed bargaining unit was that it was a standalone facility and its work was specific to that site. The Union said that the site was previously run by Kuehne and Nagel and that the Employer had taken over the contract only in the past few months. When asked whether the bargaining unit had been agreed with the Employer the Union underlined the answer “no”. In answer to the question whether there was any existing recognition agreement of which it was aware which covered any workers in the bargaining unit the Union left the space for the answer blank.

9) 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 8 November 2018.

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 the Union’s letter dated 11 October 2018 had been received via e-mail on the same date. However the Employer said that it did not accept that this letter amounted to a ‘request for recognition to the employer’ as required by paragraph 4 of the Schedule for two reasons. First, the Employer said that its correct name was “XPO Supply Chain (UK) Limited” not “XPO Logistics” and that the letter, having been addressed to XPO Logistics, had not been addressed to the ‘employer’. Secondly, the Employer said that the Union’s letter stated “I write to request a meeting to discuss the matter of voluntarily agreeing a union recognition” and did not, in fact, make a request for recognition. The Employer submitted that for either or both these reasons the application could not be accepted. The Employer said that in response to the Union’s letter “the Employer’s Zoe Elmore” had contacted “the named Acas officer on 18 October 2018. She confirmed that the information provided by the Union did not enable her to identify which of the Employer’s sites it related to.”^{[footnote 2]}

11) The Employer confirmed that it had received a copy of the Union’s application form on 8 November 2018. 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 and when asked if it did agree it said “n/a at this stage”. The Employer said that it was not accepted that the proposed bargaining unit as set out in the application was consistent with the proposed bargaining unit set out in the purported request letter. The Employer said that the application made reference to the site as “XPO Logistics RRU” which was not referred to in the purported request letter. The Employer said that until the application was ruled admissible the question as to the appropriateness of the proposed bargaining unit did not arise. The Employer said that it reserved its right to set out its position in this regard if the application were to be accepted.

12) In its response to the question of whether, following receipt of the Union’s request, the Employer had proposed that Acas should be requested to assist, the Employer said no but that it had sought clarification from Acas as referred to in paragraph 10 above.

13) When asked to state the total number of workers it employed, the Employer said that it employed a total of around 18,000 workers in the Transport, Storage and Communication Sector. The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application and said that there were 42 workers in the proposed bargaining unit.

14) The Employer stated that there was an existing agreement for recognition in force covering workers in the proposed bargaining unit. The Employer said that it had an existing relationship with the Union of Shop, Distributive and Allied Workers (Usdaw). The Employer said that when employees in the proposed bargaining unit, together with employees at other sites, had transferred to the Employer in July 2018 Usdaw had contacted the Employer with a view to discussing union recognition. The Employer said that this contact had pre-dated the purported request from the Union. The Employer said that discussions pertaining to recognition took place with Usdaw and an agreement for recognition with Usdaw, an independent trade union, came into force on 20 November 2018, rendering the Union’s application inadmissible. The Employer attached to its response a copy of the agreement to which it referred. The document was headed “Recognition and Procedural Agreement between XPO/Sainsbury’s and USDAW” and provided for sole recognition of Usdaw at sites “Haydock, East Kildbride, Sherburn, Hams Hall, Northampton, Emerald Park, Basingstoke, Waltham Point”. The Employer also attached an e-mail exchange between the Employer and Usdaw which the Employer submitted confirmed that an agreement for recognition was in force. In an e-mail from the Employer to Usdaw, sent on 20 November 2018 at 6.19, the Employer thanked the Union for having provided a draft recognition and procedural agreement and attached an amended version, with the electronic title “Draft XPO (Sainsburys) new agreement – 19.11.18.doc”, which the Employer said it hoped could be agreed. The Employer said in the e-mail that it was satisfied, from the discussions which commenced around July and its existing relationship with Usdaw, that the parties would be able to continue to build on their relationship. The Employer confirmed that Usdaw was entitled to conduct collective bargaining over all terms and conditions for warehouse operative and team captain employees at Haydock, East Kilbride (Langlands) Sherburn, Hams Hall (Coleshill), Northampton, Emerald Park (Bristol) Basingstoke and Waltham Point and that this description would cover all employees below management level. The Employer asked Usdaw to confirm by return that it accepted that there was now an agreement in force and said it would also be helpful if Usdaw could provide a signed copy of the attached agreement or alternatively confirmation that the terms were agreed. In an e-mail to the Employer sent at 11.11 on 20 November 2018 Usdaw thanked the Employer for returning the agreement so quickly; said that the changes to wording were all fine; and that it was happy that there was an agreement in place to cement their previous discussions/verbal agreements in July. Usdaw proposed that the parties should look to meet on a site to sign the agreement “say in January”.

15) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer said that the Union had failed to confirm its membership and as such the application should not be accepted. The Employer said that if the CAC did not reject the application for the reasons already set out in its response it expected there to be a full membership and support check. 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 said that the Union had not provided any evidence of this.

16) In answer to the questions whether it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, and whether it had received any other applications under the Schedule in respect of workers in the proposed bargaining unit, the Employer replied “n/a”.

5. Summary of the Union’s comments on the Employer’s response

17) In a letter to the Union dated 21 November 2018 the Case Manager invited the Union to comment on the Employer’s response, with particular reference to the matters set out in paragraphs 10 and 14 above. In a letter dated 26 November 2018 the Union said that it had represented workers at what was commonly called the RRU Unit at Style Way, Northampton for more than a year at grievance, disciplinary and appeal meetings and attached correspondence with the Employer relating to this representation. The Union said that it had 30% or more of the workers in the proposed bargaining unit as members and that over the past year it had had meetings with up to 20 or more workers to discuss gaining recognition and they had given the Union their support to proceed. The Union said that it was happy to provide its membership details to the CAC for the purposes of a confidential membership check. The Union said that it did not know the exact number of workers in its proposed bargaining unit but that this could be settled in the course of discussion if its claim went forward.

18) The Union said that the letter of 11 October 2018 was clearly a request for the Employer to “voluntarily discuss” recognition of the Union, The Union said that this was a resubmitted request, the Employer having said that an earlier request, sent by registered mail to the XPO Logistics Style Way, RRU Unit, had not been received by the Employer and that there was no knowledge of the HR person to whom it had been addressed. The Union said that it had resubmitted its request on 11 October 2018 after telephoning Zoe Elmore directly at XPO Head Office and being informed of the above. In response to the Employer’s statement that “XPO Logistics” was not the name of the Employer, the Union said that online searches revealed details of various XPO Logistics sites around Northampton, including that of the Head Office, and that letters and e-mails received by the Union in the course of dealing with disciplinary meetings and similar discussions also detailed the HR/Personnel address, as well as that of its proposed bargaining unit, as XPO Logistics. The Union said that when it had telephoned Zoe Elmore of HR prior to submitting the request of 11 October 2018 it had been told to address it to the HR department of XPO Logistics’ Head Office in Northampton. The Union said that if the name it had used was incorrect it could have been contacted and told otherwise.

19) The Union said that it did not accept that there was an existing recognition agreement with any union ‘in force’ in the proposed bargaining unit at present. The Union said that it was clear that there was no signed agreement in force and that the e-mail exchanges between the Employer and Usdaw regarding a proposed agreement took place on 19 and 20 November 2018, just two days before the Union had received the Employer’s response to its application. The Union said that the e-mails between the Employer and Usdaw talked of signing an agreement at an unspecified date in January 2019 and submitted that Usdaw was not entitled to be considered a recognised union for the purpose of collective bargaining in the proposed bargaining unit. The Union said that it believed that Usdaw had no members at present in the proposed bargaining unit.

6. Preliminary issue

20) Paragraph 35 of the Schedule provides that an application is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit. The Panel decided that this should be treated as a preliminary issue before it gave consideration to whether any of the validity or other admissibility criteria set out in paragraph 4 above had been satisfied.

7. Further submissions on the preliminary issue

21) Having noted the Union’s comments on the Employer’s response set out in paragraph 19 above, the Panel decided that the Union should be invited to consider the Court of Appeal decision in R (on the application of the NUJ) v Central Arbitration Committee [2006] Industrial Relations Law Reports 53, [2005] EWCA Civ 1309 (“the NUJ case”). In a letter to the Union dated 28 November 2018 the Case Manager enclosed a copy of this case and invited the Union to send any further submissions it wished to make having considered the judgment. On 28 November 2018 the Employer sent a signed version of the document headed “Recognition and Procedural Agreement between XPO/Sainsbury’s and Usdaw” described in paragraph 14 above. The Employer stated that it was in force as of 20 November 2018 and covered those employees in the Union’s proposed bargaining unit. The agreement was signed by Usdaw on 23 November 2018 and by the Employer on 26 November 2018. The agreement and the Employer’s covering letter were copied to the Union and the Union was informed that it could include any comments it wished to make about that document in its further submissions.

8. Summary of the further submissions by the Union

22) In a letter received by the Case Manager on 5 December 2018 the Union stated that the copy of the recognition agreement with Usdaw appeared to have been signed off on 26 November 2018 and was the latest effort to thwart the wishes of the Union’s members to have their Union recognised. The Union noted that the recognition agreement was headed “Recognition and Procedural Agreement between XPO/Sainsbury’s and Usdaw” and the first sentence read “This is an agreement between XPO and Usdaw”. The Union said that the agreement then listed eight geographic towns or areas where it was said to be applicable. The Union argued that the name “XPO/Sainsbury’s” did not define the organisation of the employing party correctly and was a catch-all designation that failed to define the bargaining unit or any units at all. The Union said that in relation to Northampton any examination of XPO Logistics operations or a search on any search engine would show that there were at least four XPO facilities/sites in and around the town. The Union asked which units XPO were referring to and asked whether the wording “XPO/Sainsbury’s” constituted a definition of all these sites, some of which did no work for Sainsburys. The Union said that its proposed bargaining unit did work for, and was adjacent to, Wincanton plc (Logistics) not for Sainsburys. The Union said that the Employer had said that the Union had not used its proper name of “XPO Supply Chain (UK) Limited” but now put forward a name “XPO/Sainsbury’s” and a description of its bargaining unit “so vague as to be meaningless”. The Union said that the purported error in the name of the Employer it had used “was as nothing” compared to the descriptions used in this “so called agreement”. The Union reiterated contexts in which the name XPO Logistics and the address in Style Way had been used in correspondence but said that it was prepared to accept the minor changes in the Employer’s name in its application. The Union submitted that for all these reasons the document recently submitted should not be accepted as a valid recognition agreement. The Union also submitted that if the Employer was allowed to go away and change this document any fairness with regard to this case would be hard to justify.

23) The Union submitted that that there was no signed agreement at the time of its request for a voluntary agreement or at the time of its application to the CAC and there was no valid agreement at the time of writing. The Union contrasted this with the situation in the NUJ case where the British Association of Journalists already had a signed agreement prior to the NUJ’s application for recognition. The Union contended that the Employer’s claim that there was a discussion with Usdaw in July 2018, when the bargaining unit was being operated by Kuehne and Nagel, was just another attempt, alongside the claimed recognition agreement with Usdaw, to try to get the CAC to refuse its application for the bargaining unit in Style Way which did work for Wincanton. The Union submitted that its application should be allowed to go forward and that the wishes of its members and workers in the proposed bargaining unit should be respected. The Union contended that Usdaw had no or very little membership or support in the proposed bargaining unit and the imposition of the “so-called agreement” between XPO/Sainsbury’s and Usdaw would be seen as unfair by the workers at the site. The Union submitted that these workers’ choice would be seen as having no value and that this could have a negative impact on industrial relations.

24) In a letter to the Employer dated 7 December 2018 the Case Manager invited the Employer to respond to the Union’s letter summarised in paragraphs 22 and 23 above. The Employer was informed that the Panel had specifically asked for its comments in response to the Union’s points that the signed agreement failed to define the scope of the bargaining unit covered by that agreement, including the sites covered.

9. Summary of the further submissions by the Employer

25) In a letter to the Case Manager dated 12 December 2018 the Employer explained that it provided warehousing and transport services and had various different arrangements with its customers, some of which shared space within warehouses, others of which had dedicated warehousing facilities. The Employer said that the facility described by the Union was a site which was dedicated to the Sainsbury’s contract, which had been successfully acquired by the Employer and resulted in a TUPE transfer from Kuehne and Nagel in July 2018. The Employer said that prior to the TUPE transfer an Usdaw National Officer had raised the possibility with the Employer of a National Bargaining Arrangement and the Employer had indicated a potential willingness but indicated that discussions would need to take place once the TUPE transfer had taken place. The Employer said that following the transfer date it had received a letter from Usdaw, which it attached, requesting a national recognition agreement for all those sites with employees which had transferred and that it was understood by both parties that this included the workers at the site for which the Union was seeking recognition. The Employer said that talks with Usdaw took place on 30 October 2018.

26) The Employer said that the eight geographical areas set out in the Recognition and Procedural Agreement made up eight of the nine Sainsbury’s sites; the remaining site, Dartford, was excluded because there was an existing agreement with Unite. The Employer said that the Haydock site already had a recognition agreement in place with Usdaw. The Employer said that Usdaw had e-mailed a proposed agreement to it on 16 November 2018, together with an additional letter headed “XPO Sainsbury’s”, which the Employer attached, which listed the eight Sainsbury’s sites for which recognition was being discussed which included Northampton. The Employer said that while it had five sites in Northampton, four were dedicated to Carlsberg and were covered by recognition agreements with URTU and Unite and that the site on Style Way was its only Sainsbury’s site in Northampton. The Employer said that the HR partner who had negotiated the agreement was not responsible for the Carlsberg sites nor, so far as he was aware, was the Usdaw National Officer concerned and that neither would have been discussing recognition for sites which were not within their responsibility and which had existing recognition arrangements with other unions. The Employer said that it did not understand the Union’s reference to “Wincanton” in its application. The Employer said that the site was in no way connected to Wincanton but that Wincanton operated the Sainsbury’s Distribution Centre which the Employer’s “reverse site” serviced, a reverse site being a site which cleans the trays sent from the Distribution Centre to the store and then back to the Employer for cleaning. The Employer said that it also bailed returned cardboard for recycling. The Employer said that it was clear that the intention of the parties was for the Recognition and Procedural Agreement to cover the Style Way site, that being the only Sainsbury’s site serviced by it in Northampton.

27) The Employer submitted that paragraph 35 of the Schedule required only that there was “in force a collective agreement under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any worker falling within the relevant bargaining unit”; it did not prescribe the form of that agreement, which could be oral or implied.^{[footnote 3]} The Employer contended that by referring to “XPO/Sainsbury’s” the recognition agreement had identified the sites that it intended to cover which was perfectly understood by both parties. The Employer submitted that it was clear that the Employer had “accepted … [Usdaw’s] … “role and status within its organisation”^{[footnote 4]} and the fact that it may not be understood by the applicant Union was irrelevant. The Employer said that whereas paragraph 4 of the Schedule required the Union, in naming the ‘employer’, to name the correct legal entity, there was no corresponding requirement for an organisation to identify the legal entity within a collective agreement for the purposes of paragraph 35; indeed, no written agreement was required at all. The Employer said that there was no need for the agreement to be amended because it already covered the workers for which the Union was seeking recognition.

28) The Employer submitted that the recognition agreement with Usdaw was in force as at 20 November 2018 when Usdaw’s agreement to its terms was confirmed; it was not necessary for it to be signed for it to be ‘in force’. The Employer said that in any event it was signed on 23 November 2018 and as such was binding and “in force” from that date at the very latest.^{[footnote 5]} The Employer submitted that it was irrelevant that there was no signed agreement at the time the Union’s voluntary request was purportedly made or at the time when the application was made to the CAC; rather the relevant date was the date that the CAC determined the application. ^{[footnote 6]} The Employer cited the NUJ case in support of the submission that it was not necessary for any actual bargaining to have taken place and that the “fairness” issue and membership levels referred to by the Union were irrelevant. However the Employer said that it was satisfied that discussions had commenced with Usdaw before the Union made any request for recognition and was an extension of its existing relationship with the Employer.

10. Considerations

29) Paragraph 35 of the Schedule provides that an application is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit. The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision.

30) The first question for the Panel to consider is whether the Recognition and Procedural Agreement described in paragraphs 14 and 21 above constitutes a ‘collective agreement under which a union is …recognised as entitled to conduct collective bargaining on behalf of any workers falling with the … [proposed] … bargaining unit’. For the reasons given in paragraphs 31-33 below the Panel is satisfied that the Recognition and Procedural Agreement constitutes such a collective agreement.

31) Section 178(1) of the Act defines a ‘collective agreement’ as ‘any agreement or arrangement made by or on behalf of one or more trade unions and one or more employers or employers’ associations and relating to one or more of the matters specified below’ and ‘collective bargaining’ means ‘negotiations relating to or connected with one or more of those matters. Under section 178(2) the matters referred to in section 178(1) include ‘(a) terms and conditions of employment, or the physical conditions in which any workers are required to work’. The Recognition and Procedural Agreement provides that “all changes to terms and conditions for employees covered by this agreement, including the annual pay review” will be negotiated with Usdaw. The subject matter of the agreement therefore falls within section 178.

32) The Panel notes the Union’s submission that the Recognition and Procedural Agreement is not a valid collective agreement because the name “XPO/Sainsbury’s”, rather than XPO Supply Chain (UK) Limited”, has been used in the heading to the agreement. In response to this submission the Employer contended that there is no requirement for an organisation to identify the legal entity within a collective agreement for the purposes of paragraph 35. The Panel notes that the first sentence of the Recognition and Procedural Agreement reads “This is an agreement between XPO and Usdaw”; the agreement throughout refers to “XPO”; and it is signed on behalf of “XPO”. The Panel is prepared to accept on the facts of this case that the term “XPO” is sufficient to identify the employer party to the agreement in question. However this does not mean that the Panel accepts the wider proposition put forward by the Employer that there is no requirement whatsoever for an organisation to identify the legal entity within a collective agreement for the purposes of paragraph 35. Had it been necessary to do so, the Panel would have wished to receive further argument on this proposition.

33) The Union submitted that the reference to “Northampton” in the Recognition and Procedural Agreement as a description of the scope of the bargaining unit is “so vague as to be meaningless”. The Panel appreciates that, in the absence of detailed knowledge of the Employer’s operations in Northampton, the reference purely to a geographical area without specifying the site in question might appear insufficiently precise to delineate the bargaining unit. However the Panel notes that the agreement is confined to “XPO/Sainsbury’s” and that on this basis the reference to “Northampton” covers XPO’s Sainsbury’s site in Northampton of which there is only one, at Style Way. The Panel notes that in the letter received by the CAC on 5 December 2018 the Union states that the bargaining unit for which it submitted its application does work for, and is adjacent to, Wincanton plc (Logistics) not for Sainsburys. However the Panel also notes that in its application the Union stated that “this XPO facility provides cleaning and RRU work for the company of ‘Wincanton for Sainsbury’s’” The Panel found unhelpful the Employer’s statement in its letter of 12 December 2018 that it did “not understand” the Union’s reference to Wincanton given that the Employer went on to explain that Wincanton operates the Sainsbury’s Distribution Centre which the Employer reverse site services. Nevertheless the Panel is satisfied on the basis of the evidence before it that the Recognition and Procedural Agreement between the Employer and Usdaw is intended to cover workers within the Union’s proposed bargaining unit and that it entitles Usdaw to conduct collective bargaining on behalf of those workers.

34) The second question for the Panel to consider for the purposes of paragraph 35 is whether the Recognition and Procedural Agreement is ‘already in force’. The Panel notes that it is common ground between the parties that the agreement was not in force when the Union made its request to the Employer nor when it made its application to the CAC. The relevant question for the Panel is whether the agreement is in force at the time that the Panel takes its decision on the admissibility of the application. In the NUJ case the Court of Appeal made clear that an agreement is in force when it can be shown to be binding of the parties to it. This does not require evidence that any of its specific provisions have been carried out; merely that there is an “earnest desire to work within the agreement”. ^{[footnote 7]} The Employer contended that the agreement came into force on 20 November 2018 or, at the very latest, on the date when it was signed by the parties which, the Panel notes, was 26 November 2018. The Panel is not required to determine which of these dates is the operative date in this case as it is satisfied that the agreement was ‘in force’ within the meaning given to this term in the NUJ case at the date of making its decision. The Panel appreciates that this will be a very disappointing finding for the Union, which has expended considerable time and energy in making its application to the CAC and the subsequent submissions in support of it. The Panel also notes that the Union considers it to be unfair that an employer can enter an agreement with a competing union after a union has made its request for recognition to that employer or, at least, after its application to the CAC. However it is not open to the Panel to make a different finding on grounds of fairness, were it minded so to do, in the light of the clear legal principles governing this matter.

35) For the reasons given in paragraphs 30-34 above, the Panel is satisfied that the application is inadmissible under paragraph 35. The Panel notes that the Employer submitted that the application was inadmissible on other grounds, summarised in paragraphs 10 and 15 above. The Panel has given no consideration to these matters and makes no findings on them.

11. Concluding observations

36) The Panel notes that the Employer did not contest the Union’s contention that Usdaw had very little or no membership or support within the Union’s proposed bargaining unit; rather the Employer submitted that this was irrelevant. The Panel notes, following the NUJ case, that there is no requirement under paragraph 35 for a union with which an employer enters a voluntary agreement to have any given level of support within the workforce. The Panel also notes that if the union with which the employer has entered a voluntary agreement is an independent union within the meaning of the Act, there is no statutory mechanism by which the workers covered by it can seek to have such a union derecognised. ^{[footnote 8]} The Panel appreciates that this may be a cause of considerable frustration for a union which claims to have a greater level of support among workers in the bargaining unit than the recognised union. However whether or not to review its collective bargaining arrangements in these circumstances is a matter for the employer in question and lies outside the jurisdiction of the CAC.

12. Decision

37) For the reasons given in paragraphs 30-35 above, the Panel’s decision is that the application is not accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Miss Mary Canavan

Mr Paul Noon OBE

18 December 2018

1. In its response to the Union’s application the Employer stated that the Employer’s correct name was “XPO Supply Chain (UK) Limited” and this was accepted by the Union in the submission received by the CAC on 5 December 2018. However the Recognition and Procedural Agreement material to this decision refers to “XPO” and the generic name “XPO Logistics” has therefore been retained in naming the parties to this case. ↩

2. The contact named by the Union was Mr Graham Young; see paragraph 5 above. It is not clear from the Employer’s response whether the Employer contacted a different Acas officer from the officer named by the Union or, alternatively, whether it was the same officer and “she” in the Employer’s response refers to Zoe Elmore. In its comments on the Employer’s response dated 26 November 2018 the Union said that Mr Young had informed the Union that the Employer had been in touch with him and that there might be further discussions. ↩

3. The Employer cited in support of this proposition the decision of the Administrative Court in the NUJ case. This is reported at [2005] IRLR 28, [[2004] EWHC 2612 (Admin), Hodge J at 40. ↩

4. Hodge J above at [38]. ↩

5. As recorded in paragraph 21 above, the agreement was signed by the Union on 23 November 2018 and by the Employer on 26 November 2018. ↩

6. The Employer cited in support of this proposition the following sentence from the judgment of Hodge J in the NUJ case at [11]: “The CAC panel then decided that the relevant date for it to ‘be satisfied’, in the words of para 35 of Schedule A1, that a union is recognised is the date the panel takes its decision on the application”. The next sentence of this judgment, not cited by the Employer, reads as follows: “That is clearly correct and appears to have been accepted by the parties”. ↩

7. [2005] EWCA Civ 1309, [2006] IRLR 53, Buxton LJ at [11] and [25]. ↩

8. The derecognition procedure in Part VI of the Schedule applies only to non-independent unions ↩