Decision

Acceptance Decision

Updated 21 September 2020

Case Number: TUR1/1181(2020)

13 July 2020

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:

Nautilus International

and

Condor Marine Crewing Services Limited

1. Introduction

1) Nautilus International (the Union) submitted an application to the CAC dated 16 June 2020 that it should be recognised for collective bargaining purposes by Condor Marine Crewing Services Limited (the Employer) in respect of a bargaining unit comprising “Maritime Professionals working onboard vessels undertaking duties commensurate with being required to hold a valid Certificate of Competency to work in the capacity of: Master, Chief Mate, Officer in charge of Navigational Watch (OOW), Chief Engineer, Second Engineer, Officer in charge of Engineering Watch (OOW), Electro-Technical Officer.” The location of the bargaining unit was given as “Seafarers working onboard vessels that predominately operate from UK Ports where the seafarers embark and disembark the tours of duty from UK Ports. The vessels are frequently alongside in UK Ports overnight, presently; Condor Liberation (IMO 9551363); Commodore Clipper: (IMO 9201750); Commodore Goodwill: (IMO 9117985).” The application was received by the CAC on 16 June 2020 and the CAC gave both parties notice of receipt of the application the same day. The Employer submitted a response to the CAC dated 25 June 2020 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, Mr Nicholas Caton and Mr Gerry Veart. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 30 June 2020. The acceptance period was extended to 17 July 2020 in order 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.

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 sent its request for recognition to the Employer on 1 May 2020. The Union stated that in a letter dated 15 May 2020 the Employer had said that it had made the decision to reject the Union’s request. A copy of the Union’s request and the Employer’s letter of 15 May 2020 were attached to the Union’s 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 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 it estimated that the total number of workers employed by the Employer was approximately 210. The Union stated that it estimated that there were 49 workers in the proposed bargaining unit, of whom 45 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 referred to an online survey which had been undertaken and concluded on 5 May 2020. The Union said that 100% of the responses to the survey were in favour of recognition.

8) The Union stated that the reason for selecting its proposed bargaining unit was because it was commensurate with membership demography and demonstrative of bargaining units held in agreements with other companies in the Maritime Industry. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. The Union said that there was no existing recognition agreement of which it was aware that covered any workers in the bargaining unit.

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 16 June 2020.

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 1 May 2020. The Employer said that it had responded by letter dated 15 May 2020 in the terms set out in paragraph 5 above. A copy of the Employer’s letter of 15 May 2020 was attached to the Employer’s response.

11) The Employer said that it had received a copy of the application form and supporting documents from the Union on 16 June 2020. 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 that it did not agree the proposed bargaining unit. The Employer stated that the proposed bargaining unit included only three of its four ships; Condor Rapide, its high-speed vessel operating from St Malo, was not included. The Employer said that all its crew were employed by the Employer, a Guernsey registered company, in Guernsey and could work on any vessel across the fleet. The Employer said that the proposed bargaining unit excluded several Senior Officers who carried out the same role as those included in the proposed bargaining unit and that this would make overall management of its team of Senior Officers fragmented. The Employer explained that crew were paid in the Channel Islands; that the Employer did not operate a PAYE scheme where tax and NI were deducted at source; and that crew contracts were governed by Guernsey Law.

12) When asked whether following receipt of the Union’s request it had proposed that Acas should be requested to assist, the Employer stated that it had agreed that its contact details could be provided to Acas as part of the process but that it had not to date had any contact with Acas.

13) The Employer said that it disagreed with the number of workers in the bargaining unit as set out in the Union’s application. The Employer said that the number was 45 and that it was likely that the difference was due to the outcome of the recent redundancy process.

14) The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

15) The Employer said that it disagreed with the Union’s estimate of membership in the proposed bargaining unit. The Employer said that it had no evidence on which to base any disagreement as it did not hold or seek details of union membership amongst its crew but it suggested that the number would have changed in view of the outcome of the recent redundancy process.

16) 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 it questioned the likelihood of crew members wanting recognition in the long term for several reasons. It further added that there was also a very important point to consider around the timing of the request.

17) The Employer explained that there were three established forums through which it regularly communicated and discussed issues with its crew: the Liberation Forum; the Rapide Forum; and the Conventional Ships Forum (which covered the Goodwill and Clipper). The Employer said that more recently it had established a Senior Officers Forum and a request for a Pay Forum was also being considered. The Employer said that during the Covid-19 crisis it had increased the frequency of its established Forum meetings to weekly in order to increase communication with its crew.

18) The Employer said that its Senior Officers, apart from Masters, had been represented for many years through those established forums. The Employer said that more recently Senior Officers had requested the introduction of a Senior Officers Forum which the Employer had gladly begun to establish and to agree terms of reference for in partnership with its Senior Officers. The Employer included an e-mail from one of its Senior Masters dated 11 May 2020 which, the Employer stated, demonstrated how constructive those initial discussions had been. The Employer said that on 15 May 2020 it had held its first Senior Officers Forum meeting, for which the agenda included discussion around pay-related items. A second meeting had been planned for 16 June 2020 but this had been delayed at the request of its Senior Officers due to the redundancy consultation process underway at that time. The Employer said that now the redundancy consultation process had been completed, it was in the process of agreeing a date for the next meeting.

19) The Employer stated that there was scope to change the roles represented in each Forum. The Employer said that its aim had always been to engage in direct and open communication with its crew on a frequent basis. The Employer said that it remained flexible and open to suggestions around how these forums were organised, and that it saw the introduction of the new Senior Officers Forum as an opportunity to address issues that its Senior Officers may not feel comfortable raising in the established Forum meetings, such as pay-related matters. The Employer said that it was important to note that Senior Officers on its Conventional Ships (Goodwill and Clipper) had been invited to attend the Senior Officers Forum when this was arranged, but that they had declined to do so as they did not feel the need to be involved at this time. The Employer said that it therefore questioned whether they were in support of Union recognition.

20) The Employer said that it had noted the Union’s claim that 100% of responses to its online survey were in favour of recognition but said that the Union had not specified the number of responses it had received nor had the content or results of this survey been shared as part of the Union’s application. The Employer said that it appreciated that there was an important point concerning confidentiality but it maintained that a redacted version could be made available as clear evidence of support. The Employer also said that the Union’s online survey had been concluded on 5 May 2020, prior to the constructive discussions on 11 May 2020 and the establishment of the Senior Officers Forum, which began on 15 May 2020.

21) The Employer raised a further point concerning the timing of the Union’s request. The Employer said that over the past few months the Employer, and indeed its industry, had been under tremendous strain due to a worldwide crisis which had never been seen before in our lifetimes. The Employer said that these circumstances had been unprecedented and that during this time it had had to make very difficult decisions relating to its crew, like many businesses within the industry. The Employer said that this had understandably been a very stressful time for those involved and therefore it could not possibly reflect the usual day to day circumstances in which the Employer operated. The Employer therefore questioned whether it was an appropriate time to accurately assess the feeling of its crew and their support for union recognition in the longer term. The Employer asked the Panel to take those circumstances into account alongside its clear commitment as a business to engaging meaningfully with its crew and Officers onboard its ships.

22) The Employer stated “N/A” when asked 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 had it received any other applications in respect of any workers in the proposed bargaining unit.

5. The membership and support check

23) To assist in 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 the Union’s online survey. 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 dates of birth) and a copy of the online survey. 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 30 June 2020 from the Case Manager to both parties.

24) The information requested from the Employer was received by the CAC on 1 July 2020 and from the Union on 2 July 2020. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

25) The list supplied by the Employer indicated that there were 45 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 41 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 32, a membership level of 71.11%.

26) The online survey supplied by the Union contained 25 names, of which 17 were in the proposed bargaining unit, a figure that represents 37.78% of the proposed bargaining unit. Of those 17 names, all were members of the Union. The Union had provided a printout of the response data from the online survey. The link to the online survey was issued within an e-mail dated 22 April 2020. The e-mail was headed with the Union’s logo and “Industrial Bulletin”, beneath which was the following text:

“22 April 2020

SO/123/MG

To Nautilus International Members Employed by Condor Ferries

Dear Colleague

UPDATE (3) & INDICATIVE CONSULTATION ON RECOGNITION

Further to Bulletin SO/110/MG dated 7 April 2020 and also Update 4 issued on 20 April 2020 sent to those members who have made contact with us, I must thank you all for the communication being exchanged with us in providing updates with regards to the present situation.

We have again, written to Condor Ferries requesting to be involved in talks. However, we have not received any response. The company is not meaningfully engaging with us at this time and has implemented salary cuts with the threat of forced redundancies.

The situation, whist unique and unexpected, highlights further the company’s deliberate insistence of not recognising trade unions for the purpose of collective bargaining and on post-pandemic normality, we consider it a top priority to gain recognition for our members employed by Condor Marine Crewing Services Limited working onboard vessels operated by Condor Ferries Limited.

With this in mind, we would appreciate your participation in an indicative consultation exercise surrounding recognition for collective bargaining, so that we can ensure that should the company continue to ignore our voluntary requests, we can proceed for statutory recognition without undue delay.

In order to participate in the Survey, please click on the Surveymonkey link below: #############################

The closing date for members to participate in this survey is by no later than midday on Tuesday, 5 May 2020.

I will reiterate that the actions of Condor Ferries in respect to the present pandemic are some of the most severe and draconian changes to Terms & Conditions of Employment that Nautilus International has witnessed in the Maritime Sector. We will continue to seek engagement from the company and from the respective jurisdictions in which the company operates and fight to support all impacted employees of the company.

Members are reminded that support is available to those whose finances are impacted and more information can be found by visiting our website www.nautilusint.org

I look forward to as many of you as possible completing the survey, so that we know there is strong appetite for colleagues at Condor Ferries to have their interests represented and protected by the Union for Maritime Professionals.

Yours sincerely,

Martyn Gray Strategic Organiser”.

27) The data response records for the online survey consisted of 50 A4 sheets (two sheets per each completed survey). At the top of each completed survey it stated “Complete”, following by “Collector:”, “Started:”, “Last Modified:”, “Time Spent:”, and “IP Address:”. Beneath the headings “Started” and “Last Modified” the dates ranged between 22 April 2020 and 2 May 2020. Each individual had answered 9 questions, which were as follows:

Q1 Name

Q2 Membership number

Q3 Job Title

Q4 First Line of address

Q5 Postcode

Q6 Email address

Q7 Mobile

Q8 Would you like Nautilus to seek recognition

Q9 It is helpful for future negotiations to understand the reasons why you may or may not wish for Nautilus to seek recognition.

Beneath Q8, for each of the 25 completed responses, it stated, “I would like Nautilus to seek union recognition”. Beneath Q9, some individuals also gave reasons for their response to Q8.

28) A report of the result of the membership and support check was circulated to the Panel and the parties on 6 July 2020 and the parties were invited to comment on the results of that check by close of business on 8 July 2020.

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

29) In an e-mail to the CAC dated 8 July 2020, the Union stated that with a membership level of 71.11% it believed that it had clearly met the test of membership density within the proposed bargaining unit.

30) The Union stated that its survey was completed on 5 May 2020, and that this was prior to additional processes being instigated by the Employer in respect of members engaged in the proposed bargaining unit. The Union said that at the time of the survey being undertaken, the number of respondents in favour of recognition represented a proportion that was greater than 50% of the workers in the proposed bargaining unit. The Union said that the Employer had since undergone further employee impacting processes, which the Union said it strongly believed would have increased the appetite for employees to be represented in future, through collective bargaining and through union recognition, as well as reducing the proportion of survey respondents remaining as workers within the proposed bargaining unit. The Union said that those 37.78% of employees who remained in the proposed bargaining unit and had indicated their desire for union recognition represented 17 out of 32 union members in the bargaining unit, or 53.13% of union members in the proposed bargaining unit. The Union explained that it was unable to communicate directly with non-union members and said that asking union members to do so on its behalf would potentially violate their right to privacy. The Union said that it considered that, based on those with whom it could communicate, a majority who remained in the bargaining unit were in favour of union recognition.

31) The Union stated that its normal process would have been to arrange ad-hoc meetings with members and potential members of the bargaining unit to discuss the potential benefits of union membership and to seek further non-member support for pursuing recognition. However, the situation with COVID-19 had precluded its ability to do so, further impacting its ability to definitively gauge the views of the entire workforce and demonstrate the strong appetite that existed for recognition of the Union within the proposed bargaining unit. The Union said that it considered that the tests under paragraph 36 of the Schedule had been met to the best of its abilities under the present circumstances, and that its application demonstrated that 71.11% of the workers in the proposed bargaining unit were members of the Union, and 53.13% of those with whom it could communicate, and who were workers in the proposed bargaining unit, were in favour of union recognition for the purposes of collective bargaining. The Union concluded that it therefore believed that its application was admissible.

32) In an e-mail to the CAC dated 8 July 2020 the Employer provided its comments on the report. It also stated that it would appreciate a response to some of the points that it had raised in its response to the Union’s application.

33) Firstly, with regard to the Union’s communication sent to employees on 22 April 2020 (see paragraph 26 above) the Employer said that the communication stated that the Union had received no response from the Employer to its request to be involved in talks. The Employer said that this was not correct. The Employer submitted copies of two letters dated 8 April 2020 and 21 May 2020, headed “Coronavirus Response” and “Potential redundancy situation” respectively, which the Employer stated had been sent to the Union in response to correspondence from the Union. The Employer also stated that the communication referred to the Employer’s actions as ‘some of the most severe and draconian changes to Terms & Conditions of Employment that Nautilus International has witnessed in the Maritime Sector.’ The Employer said that the pandemic crisis had widely impacted the travel industry and that many companies were in the same position. The Employer said that every step that it had taken had been to secure employment for as many of its crew as possible in the absence of any government support. The Employer said that the Union’s communication contained incorrect information; placed the Employer in a light which was not reflective of the wider crisis; and that its tone that was clearly intended to antagonise in order to gain support at an already stressful time for its crew. The Employer questioned whether this was an appropriate way to judge genuine long-term support for union recognition.

34) The Employer commented on the figures in the Case Manager’s report (see paragraphs 25 and 26 above) . The Employer stated that if its understanding was correct, 100% of the workers in the proposed bargaining unit were members of the union (17 people) but only 37.78% of those were in support of union recognition. The Employer said that, from its calculations, this represented approximately six individuals who were in support of union recognition which was not a significant number, particularly at a time of crisis. The Employer also said that this percentage did not calculate to a round number from 17 people, and it therefore asked for clarity on the number of people who were represented by the figure 37.78%. The Employer stated that due to the low number of people included in this representation of support, it would like to draw the Panel’s attention to the points set out in paragraphs 16-21 above and asked for a full response to those points. The Employer stated that over the past few months its industry had been dealing with a worldwide crisis never seen before in our lifetimes. The Employer said that it would like to reiterate that these circumstances were unprecedented and could not be considered reflective of the usual day to day circumstances under which it operated. The Employer therefore questioned whether this could be considered a fair and reasonable time to judge the long-term support for union recognition, particularly when it was amongst such a low number of people.

35) Finally, the Employer asked for a formal response to the points it had made in its response to the Union’s application with regard to the proposed bargaining unit, as set out in paragraph 11 above.

7. Considerations

36) 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 material to the matters it is required to decide in reaching its decision.

37) 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 paragraph 36(1)(a) and paragraph 36(1)(b) are met.

8. Paragraph 36(1)(a)

38) 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. The membership check conducted by the Case Manager (described in paragraphs 23 and 25 above) showed that 71.11% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 24 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached 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)

39) 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. For the reasons given in paragraph 38 above the level of union membership within the bargaining unit stands at 71.11%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition. No such evidence to the contrary was received in this case.

40) On the basis of 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. Concluding observations

41) The Panel considers that the text of any communication accompanying a survey may be significant and capable of calling into question the credibility of the results. As stated in paragraphs 39 and 40 above, in this case the Panel found that paragraph 36(1)(b) of the Schedule was satisfied on the basis of the level of union membership alone. The Panel was not, therefore, required to consider the credibility of the Union’s online survey and that survey played no part in the Panel’s decision. However the Panel notes that there were two statements in the Union’s email to workers dated 22 April 2020 in which the link to the online survey was contained (see paragraph 26 above) which were contested by the Employer and on which the Panel considers it appropriate to comment. The first statement was that the Union had written to the Employer asking to be involved in talks but that it had not received any response. The Employer attached to its comments on the membership and support check a letter dated 8 April 2020 headed “Coronavirus Response” which the Employer said constituted a response to correspondence from the Union (together with a subsequent letter dated 21 May 2020 headed “Potential redundancy situation”). The Panel accepts that the Union’s statement that it had not received any response from the Employer was incorrect. The second statement was that “the actions of Condor Ferries in respect to the present pandemic are some of the most severe and draconian changes to Terms & Conditions of Employment that … [the Union] …has witnessed in the Maritime Sector”. The Employer’s comments on this statement are set out in paragraph 33 above. Had the Panel needed to take the online survey into account in order to reach a decision on whether the Union’s application should be accepted the Panel would have asked for the evidence on which the Union’s second statement and the Employer’s response to that statement was based. In the event the Panel was not required to investigate this matter further; makes no findings on it; and it has played no part in its decision.

42) The Panel notes the Employer’s account of the ways in which it currently engages with its workers and may do so in the future and its concerns about the timing of the Union’s application for recognition (see paragraphs 16-21 above). The Schedule requires the Panel to decide whether an application for recognition should be accepted according to the statutory criteria set out in paragraph 4 above. It is not open to the Panel to take into account matters outside the statutory criteria such as those referred to by the Employer in paragraphs 16-21 when deciding whether an application should be accepted.

43) The Panel notes that the Employer does not consider that the Union’s proposed bargaining unit is appropriate. In the event that the parties are unable to reach an agreement as to what the appropriate bargaining unit is, the Panel will be required to decide whether the Union’s proposed bargaining unit is appropriate and, if it decides that it is not appropriate, to decide a bargaining unit which is appropriate. The parties will have the opportunity to make detailed submissions to the CAC on this matter should it fall to the CAC to determine the issue.

11. Decision

44) For the reasons given in paragraphs 37-40 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mr Nick Caton

Mr Gerry Veart

13 July 2020