Decision

Recognition Decision

Updated 21 September 2020

Case Number: TUR1/1181(2020)

21 September 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECLARATION OF RECOGNITION WITHOUT A BALLOT

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) By a decision dated 13 July 2020 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. As no agreement was reached the Panel was required to reach a decision on the matter. In a decision dated 2 September 2020 the Panel determined that the appropriate bargaining unit was that proposed by the Union, namely “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 working onboard vessels that predominately operate from UK Ports where the seafarers embark and disembark the tours of duty from UK Ports: Condor Liberation (IMO 9551363); Commodore Clipper: (IMO 9201750); Commodore Goodwill: (IMO 9117985)”.

2. Issues

4) Paragraph 22 of Schedule A1 to the Act (the Schedule) provides that if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies. Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled. The three qualifying conditions are:

i. the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

ii. the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

iii. membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf. Paragraph 22(5) states that “membership evidence” is (a) evidence about the circumstances in which union members became members, or (b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

5) The Panel decided that in this case it would be appropriate to decide whether it was satisfied that a majority of the workers constituting the bargaining unit were members of the Union as a preliminary issue before giving the parties the opportunity to make submissions on the application of the qualifying conditions.

3. The membership check

6) To assist in deciding whether it was satisfied that a majority of the workers constituting the bargaining unit were members of the Union the Panel proposed a second independent check of the level of union membership within the bargaining unit ^{[footnote 1]}. 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 from the Case Manager to the parties dated 3 September 2020. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

7) The information from both the Union and the Employer was received by the CAC on 4 September 2020. The result of the check showed that there were 45 workers in the bargaining unit of whom 32 were members of the Union, a membership level of 71.11%. The Case Manager’s report on the membership check was sent to the Panel and the parties on 4 September 2020. The Employer was invited to comment on the report and to make submissions on the three qualifying conditions specified in paragraph 22(4) of the Schedule by close of business on 10 September 2020.

4. Summary of the Employer’s submissions on the qualifying conditions

8) In a letter to the Case Manager dated 10 September 2020 the Employer began by stating that its written submissions were presented without prejudice to its application for judicial review of the CAC’s decision to accept the Union’s application and its position that the CAC had wrongfully accepted that application.

9) The Employer said that the results of the membership check showing the proportion of Union members in the bargaining unit to be 71% was not unexpected and the Employer did not dispute the level of Union membership; the question being posed here was whether those individuals wanted the Union to conduct collective bargaining on their behalf. The Employer stated that during the process it had raised several concerns relating to this point which it stated that the CAC had failed to take into account to date. The Employer said that its concerns were as follows:

1. The Officers usually rostered on the Commodore Goodwill had written to the Union directly to make clear that they did not wish the Union to represent them. The Employer enclosed with its submissions a copy of that letter which the Employer stated it had previously provided to the CAC but which the CAC had not taken into account ^{[footnote 2]}.

2. When the Employer had consulted Officers on its Conventional Ships (the Commodore Clipper and Goodwill), a total of 31 Officers (out of 47 in the bargaining unit), had received no approach from the Union and were not even aware of the approach until the Employer had told them. The Employer said that on that basis alone it could not be assumed that being represented by the Union was the wish of the Officers on the Commodore Clipper and Goodwill and that the fact that the Union had failed to approach those Officers on such a fundamental matter was both surprising and a concern given that the Union claimed to wish to represent these Officers.

3. The Employer said that it had reason to believe that the survey from 30 July 2020 (“the Nautilus Survey”) provided by the Union as an attachment to its written submissions dated 21 August 2020 - which the Employer noted was heavily redacted and did not specify who was contacted and was therefore hardly a ringing endorsement of its independence and/or veracity - covered the wrong group ^{[footnote 3]}. The Employer said that it believed that the survey included Officers on both of the Condor high speed vessels (Condor Liberation and Condor Rapide). The Employer said that it believed this because a survey conducted internally, with a deadline of 30 July 2020, gave a very similar response rate of 82.1% support for recognition. The Employer said that this survey result had been provided by an Officer usually based on Condor Rapide. The Employer said that if it was correct, this meant that the Nautilus Survey included Officers on Condor Rapide, which was not part of the bargaining unit proposed by the Union.

4. The Employer said that surveys were representative of a view at a particular point in time. The Employer said that whatever the status of the Nautilus Survey, clearly it was now out of date given the Employer’s view that the reason Officers on Condor Liberation had contacted the Union in the first place was due to events arising in consequence of the Covid-19 lockdown.

10) The Employer said that through liaising with its Officers in the bargaining unit it was clear that a number of them did not support statutory recognition and did not wish the Union to conduct collective bargaining on their behalf. The Employer said that it could not have confidence that the Union was consulting with all Officers across the Fleet within the bargaining unit, let alone was representative of the views of a majority of Officers. The Employer said that it was also clear to it that Officers did not feel comfortable expressing their views openly and may be nervous to give their opinion where they did not support recognition.

11) The Employer said that, under the circumstances, it would suggest that the only fair and transparent way to establish support was through an independent ballot rather than a partial survey conducted by the Union. The Employer said that this would allow Officers to have their voices heard individually, privately and without fear of retribution, and it would also ensure that the correct group of Officers was balloted. The Employer said that considering the concerns that it had raised throughout the process, and in order for it and, indeed, for the CAC, to be satisfied that support was sufficient, it believed this to be essential and in the interest of good industrial relations moving forward. The Employer therefore proposed that the CAC should arrange for a secret ballot under the Schedule in the interests of good industrial relations in accordance with paragraph 22(4)(a) of the Schedule.

5. Summary of the Union’s submissions on the qualifying conditions

12) In a letter dated 11 September 2020 the Case Manager copied the Employer’s submissions to the Union and invited the Union to comment on the points made by the Employer by the close of business on 15 September 2020.

13) In a letter to the Case Manager dated 15 September 2020 the Union stated that, in general, it had concerns as to how the Employer had undertaken “evidencing” in support of its submissions. The Union said that the Employer had made a variety of claims but had provided no evidence in support of what appeared to be speculation. The Union said that it had further concerns in relation to the numbers the Employer had attempted to utilise in its submissions as being different to those provided to the CAC previously, and highlighted the evidence that the Union had already submitted in relation to the Employer’s prior conduct, late submissions and approach to trade union recognition during the process so far. The Union said that it could demonstrate that the Union was communicating with its members across the entire fleet, including those in the bargaining unit.

14) The Union said that the membership check had shown that the proportion of Union members in the bargaining unit was 71.11% or 32 out of the 45 workers, as provided by the Employer’s list. With reference to the undated letter the Union had received from five of its members, which had been copied to the Employer (see paragraph 9, point 1, above) the Union stated that that these five individuals represented 11.11% of the bargaining unit or 14.29% of Union members within the bargaining unit ^{[footnote 4]}. The Union said that this would still leave a proportion of 56.82% of the bargaining unit as Union members who were likely to want the Union to conduct collective bargaining on their behalf. The Union noted that the Employer had listed 45 workers in the bargaining unit on 4 September 2020 for the purposes of the membership check whereas in its letter dated 10 September 2020 the Employer had stated that there were 47 workers in the bargaining unit (see paragraph 9, point 2, above). The Union said that this required urgent clarification, as either the Employer had made an error in its submissions to the CAC or had made an error in providing the required documentation to the CAC for the purposes of the membership check.

15) The Union said that the Employer had stated that Officers from the Commodore Clipper and the Commodore Goodwill had not received an approach from the Union in relation to collective bargaining but had offered no evidence in support of this claim. The Union said that bulletins have been regularly sent to its members working for the Employer on board Condor Ferries. The Union attached a copy of the analysis report for Bulletin SO/264/MG dated 29 July 2020 updating members initially on the progress of statutory recognition and the latest Bulletin SO/301/MG dated 03 September 2020. The Union said that the analytics for SO/301/MG clearly demonstrated that the Employer’s claims in this regard did not add up, as 34 “unique opens” and 178 “total opens” from 42 e-mails sent clearly demonstrated that the Union was communicating with its members. The Union said that it was patently obvious that Officers onboard the Commodore Goodwill were aware of the Union’s approach owing to the Union’s receipt of a letter stating that these Officers did not feel the time was right for them to be represented through collective recognition. As such, the Union disputed in its entirety the Employer’s claim that it had not approached these Officers.

16) The Union said that the “Nautilus Survey” (see paragraph 9, point 3, above) was not endorsed, established or set up by the Union but had been set up by an individual who worked for the Employer as a means of gathering information in support of continuing statutory recognition and using this to speak with the Employer as per their Officer Forum establishments. The Union said that the heavily redacted nature of this survey was provided to protect the individual who had arranged it and that it had been included in the Union’s submissions as evidence of the general high awareness that the Union was pursuing statutory recognition and the continued existence of a significant appetite for statutory recognition to be awarded. The Union said that it was unable to make any further comments on this survey as it had been undertaken on an individual basis. The Union agreed with the Employer that surveys were representative of a view at a particular point in time. However the Union reiterated that with only 14% ^{[footnote 5]} of Union members confirming that they did not feel the time was right for it to receive statutory recognition, it felt that there was a broader appetite based upon membership density that may preclude the need to undertake a ballot as 11.11% of the bargaining unit, or 14.29% of the union membership within the bargaining unit, would not appear to meet the criterion of significance required under paragraph 22(4) of the Schedule. The Union said that the objection of the five members to the Union conducting collective bargaining on their behalf was caveated by the timing and not necessarily the request in its entirety ^{[footnote 6]}. The Union said that, even with these representations, 56.82% of Union members were likely to support recognition at this time ^{[footnote 7]} and a full 71.11% ^{[footnote 8]} were likely to support recognition, circumstances dependent.

17) With reference to the Employer’s statement that Officers did not feel comfortable expressing their views openly and may be nervous to give their opinion where they do not support recognition (see paragraph 10 above), the Union said that it was easily argued that the reverse was equally true and that those in favour of union recognition might equally be reluctant to freely offer their thoughts to the Employer. The Union referred the Panel to an email from the Union to the Case Manager dated 06 August 2020 which highlighted a communication dated 23 July 2020 entitled “Senior Officers Forum proposal July 2020” whereby the Employer had made an offer to the collective officers’ group which had been conditional on the officers’ group writing to the Union removing the wish for recognition. The Union attached a copy of this communication to its submissions and said that it highlighted that the Employer had (on at least one recorded instance of which the Union was aware) made an offer to its employees of reward in return for seeking their withdrawal of consent to recognition. The Union said that it was concerned that the Employer might again seek to exert undue influence on its employees in relation to its seeking statutory recognition during any ballot procedure. In relation to the qualifying condition of the CAC being satisfied that a ballot should be held in the interests of good industrial relations, the Union highlighted its concerns about the Employer’s prior conduct in relation to this process and the distinct lack of evidence of significance that the Union said that the Employer had so far brought forward.

6. Considerations

18) As set out in paragraph 4 above, the Act requires the Panel to consider whether it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Union, it must then decide if any of the three conditions in paragraph 22(4) is fulfilled. If the Panel considers that any of them is fulfilled it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

19) The membership check conducted by the Case Manager established that 32 of the 45 workers in the bargaining unit are members of the Union, a membership density of 71.11% (see paragraph 7 above). As stated in paragraph 6 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 is satisfied, therefore, that a majority of the workers in the bargaining unit are members of the Union. The Panel understands that, even though the Employer does not dispute the level of Union membership, it has a strong desire for a ballot to be held. However paragraph 22(2) of the Schedule requires the CAC to issue a declaration that the Union is recognised where it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union unless any of the three qualifying conditions in paragraph 22(4) is fulfilled. The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision as to whether any of the qualifying conditions is fulfilled.

20) The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Panel has considered the arguments put forward by both parties and has come to the view that it is not satisfied that a ballot should be held in the interests of good industrial relations. The Panel is therefore satisfied that this condition does not apply.

21) The second condition is that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union to conduct collective bargaining on their behalf. In this case the Employer exhibited a letter signed by five Officers presently rostered on the Commodore Goodwill, which had been sent to the Union and copied to the Employer, stating that they did not want formal recognition of a union or union representation in contractual matters and salary negotiations at this time. The Union acknowledged that the individuals who had signed the letter were Union members. The Union pointed out that the letter was undated but did not question the credibility of the evidence and the Panel is satisfied of its credibility. The Panel is also satisfied that the letter constitutes evidence that the individuals in question do not want the Union to conduct collective bargaining on their behalf. The remaining question for the Panel is whether five out of 32 Union members, representing 15.62% of members, constitutes a “significant number”. The Panel has concluded that five does not constitute a “significant number” in this context.

22) The Panel notes the Employer’s submission that through liaising with its Officers in the bargaining unit it was clear that a number of them did not support statutory recognition and did not wish the Union to conduct collective bargaining on their behalf. However the Panel did not receive any documentary evidence from any Union members other than the five referred to in paragraph 21 above that they do not want the Union to conduct collective bargaining on their behalf. The Panel notes the Employer’s submission that Officers do not feel comfortable expressing their views openly and may be nervous to give their opinion where they do not support recognition. The Panel notes that the Union disputed this submission and it makes no finding on it. However the Panel notes that it would have been open to any Union members beyond the five referred to in paragraph 21 above to have made their views known to the CAC on a confidential basis. None of them did so and the Panel is unable to infer from the evidence before it that any Union members in addition to these five do not want the Union to conduct collective bargaining on their behalf.

23) On the basis of the evidence before it the Panel is satisfied that the second qualifying condition does not apply.

24) The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union to conduct collective bargaining on their behalf. The Panel does not consider that such membership evidence has been produced. The Panel is therefore satisfied that this condition does not apply.

7. Concluding observations

25) Both parties made submissions relating to the “Nautilus Survey”. The Panel has not investigated the scope or validity of that survey and it has played no part in the Panel’s decision.

26) The Panel notes the Employer’s concerns throughout the process that it cannot be assumed that members of the Union want the Union to conduct collective bargaining on their behalf and the reasons it has given for these concerns, including the timing of the Union’s application and the extent to which, and basis upon which, the Union has consulted with its members and the wider bargaining unit. In the Panel’s experience there is a correlation between union membership and the desire for union recognition and this is particularly the case where individuals take out or maintain their membership during a recognition campaign. The Schedule provides that the CAC should declare that a union is recognised as entitled to conduct collective bargaining on behalf of the bargaining unit where the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union. In this case the Panel notes that removing the five Union members who have stated that they do not want the Union to conduct collective bargaining on their behalf from the total number of members within the bargaining unit leaves a figure of 27 members out of 45, based on the membership check, or 27 out of 47 based on the figure given by the Employer in its letter of 10 September 2020, representing 60% or 57.44% of workers in the bargaining unit respectively. The Panel hopes that the Employer will feel reassured that, given that more Officers did not take the opportunity to contact the CAC to indicate their opposition to the Union conducting collective bargaining on their behalf, these figures can be taken to indicate that a majority of workers in the bargaining unit, as well as being members of the Union, are not opposed to Union recognition.

8. Declaration of recognition

27) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that a majority of the workers constituting the bargaining unit are members of the Union. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule is met. Pursuant to paragraph 22(2) of the Schedule, the CAC must issue a declaration that the Union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the 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 working onboard vessels that predominately operate from UK Ports where the seafarers embark and disembark the tours of duty from UK Ports: Condor Liberation (IMO 9551363); Commodore Clipper: (IMO 9201750); Commodore Goodwill: (IMO 9117985)”.

Panel

Professor Gillian Morris, Panel Chair

Mr Nicholas Caton

Mr Gerry Veart

21 September 2020

1. The report of an initial check conducted by the Case Manager to assist the Panel to determine whether the application should be accepted was circulated to the Panel and the parties on 6 July 2020. ↩

2. This letter was attached by the Employer to its initial submissions relating to the appropriate bargaining unit: see decision dated 2 September 2020, paragraphs 14 and 27. ↩

3. See decision of 2 September 2020 paragraphs 11,17 and 28. ↩

4. The Panel calculates the figure of 5 out of 32 members of the Union as representing 15.62% of Union members within the bargaining unit; see further paragraph 21 below. ↩

5. See above, note 4. ↩

6. The letter stated that the team of Officers presently rostered onboard the Commodore Goodwill did “NOT wish for formal recognition of a union or union representation in contractual matters and salary negotiations, at this time”. ↩

7. See further paragraph 26 below for the Panel’s calculation of this percentage. ↩

8. The Panel takes this figure to mean 71.11% of the bargaining unit rather than of Union members. ↩