Decision

Acceptance Decision

Updated 25 September 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1419(2024)

25 September 2024

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:

The Pharmacists’ Defence Association Union (PDA Union)

and

Superdrug Pharmacy (Superdrug Stores Plc)

1. Introduction

1)         The Pharmacists’ Defence Association Union (the Union) submitted an application to the CAC dated 8 August 2024 that it should be recognised for collective bargaining purposes by Superdrug Pharmacy (Superdrug Stores Plc) (the Employer) for a bargaining unit comprising “all UK based General Pharmaceutical Council (GPhC) or Pharmaceutical Society of Northern Ireland (PSNI) registered pharmacists and Trainee Pharmacists, below senior management level, who are employed by Superdrug Pharmacy (Superdrug Stores Plc)”. The location of the bargaining unit was given as “Circa 200 registered pharmacy premises distributed across the UK.” The application was received by the CAC on 8 August 2024 and the CAC gave both parties notice of receipt of the application on 9 August 2024.  The Employer submitted an email to the CAC dated 9 August 2024 and thereafter a response to the CAC dated 15 August 2024 both of which were copied to the Union.

2)         In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case.  The Panel consisted of Mr. Rohan Pirani, Panel Chair, and, as Members, Mr. Sean McIlveen and Ms Claire Sullivan.  The Case Manager appointed to support the Panel was Joanne Curtis.

3)          The CAC Panel has extended the acceptance period in this case.  The initial period expired on 22 August 2024.  The acceptance period was extended to 5 September 2024 in order to allow time for the parties to comment on the results of a membership check and for the Panel to consider said 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 made a request for recognition to the Employer on 22 July 2024 by email and by way of a recorded delivery letter dated 22 July 2024. The Union added “the letter tracking reference is SP360536222GB and it was received by the employer on 23rd July 2024 at 10:41am.” The Union stated that the Employer had not responded to the request. A copy of the Union’s letter and e mail of 22 July 2024 were attached to the 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 previous application has 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 more than 10,000. The Union stated that it estimated there to be 200 workers in the proposed bargaining unit, of whom more than 60% were members of the Union. The Union said that the percentage membership was based on “checking union records and through engagement with the proposed bargaining unit via local union representatives.” The Union said that it was willing to share with the CAC on a confidential basis the names of those in membership who worked for the Employer for the purposes of verification. When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union said that it believed it had “>60% membership density in the proposed bargaining unit which is a strong indicator of support”. The Union went on to say, “One of the primary objectives of the union is to pursue collective agreements with employers, which is a reason why pharmacists join the union. Union membership continues to grow, and it has a number of successful recognition agreements in the community pharmacy sector including at Boots, the largest community pharmacy multiple in the UK, which drives demand for recognition from workers in other pharmacy employers.”

8)         The Union stated that the reason for selecting the proposed bargaining unit was because “the bargaining unit has specific statutory, regulatory and professional responsibilities or will shortly assume these upon professional registration. These responsibilities apply at all times, inside or outside of work, regardless of the job role.” The Union said that the bargaining unit was easily identifiable and managed separately by the Employer. The Union said that the bargaining unit was standard across other collective agreements between pharmacy employers and the union and that it had proved to be an accepted and discrete definition compatible with effective management. The Union said that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the bargaining unit, the Union answered that it was not aware of any.

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 August 2024.

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

10)       In response to the Union’s application dated 8 August 2024 the Employer emailed the CAC and the Union on 9 August 2024. The Employer said that due to the timing of the application for statutory recognition the Union would have been unaware that the Employer intended to, and had in fact, responded to the Union’s letter dated 22 July 2024 seeking voluntary recognition by way of a postal letter dated 8 August 2024 addressed to Mark Pitt, General Secretary of the Union. The Employer attached a copy of this letter. The Employer said it was therefore surprised to receive the Union’s application for statutory recognition by email on 8 August 2024. The Employer said that it had received a hardcopy letter dated 22 July 2024 from the Union seeking voluntary recognition on 26 July 2024. The Employer said that as it had received the letter on 26 July 2024, it believed that the first period, as set out in paragraph 10(6) of Part 1 of Schedule A1 of the Trade Union & Labour Relations (Consolidation) Act 1992, would come to an end on 9 August 2024, being 10 working days after it received the letter requesting voluntary recognition from the Union. The Employer said that the letter dated 22 July 2024 only had a generic email address and for reasons of confidentiality the Employer did not feel it was appropriate to send the response letter to the generic email address. The Employer said it therefore sent a hard copy letter dated 8 August 2024 by post addressed to Mr Pitt which responded to the request for recognition and sought to arrange a meeting to enable discussions between the parties. The Employer said that it had acted in “good faith” in responding to the Union by the 9 August 2024 which was in line with the 10 days from 26 July 2024. The Employer said that the Union’s application for statutory recognition dated 8 August 2024 was therefore premature.

11)       The Employer went on to explain that a manual search of the email account on 8 August 2024 located an email from the Union dated 22 July 2024 and that this email had been caught “in the spam filter and quarantined.” The Employer said it was therefore unaware of its existence until 8 August 2024. The Employer said that the hard copy of the letter from the Union dated 22 July 2024 arrived at the office by recorded delivery on 23 July 2024. The letter was placed into the internal post system and was passed on by a team member on Friday 26 July at 3.45pm. The Employer said that due to it being the first week of the school holidays and annual leave commitments it was disappointed that the Union did not make contact to confirm receipt or that someone was available to respond. According to the Employer, “this behaviour does not evidence an intention on the part of the PDAU to working collaboratively or transparently with Superdrug, which is of itself disappointing.”

12)       The Employer in its response letter dated 8 August 2024 said it was surprised to receive the letter from the Union dated 22 July 2024 and stated “I am unaware that any informal or other approach or contact has been made by the PDA with a view to entering into discussions or building a relationship with Superdrug with a view to seeking recognition. Therefore, your correspondence came out of the blue. I’m also concerned to note the timing of the sending of this letter given that we have entered traditional and primary holiday season.” The letter dated 8 August 2024 went on to say “I note you have indicated a willingness to make yourselves available to meet with us and we would very much like to avail ourselves of that opportunity. In order to meet with you and to ensure that we can have a meaningful discussion, we need to ensure the most appropriate team of leaders from within our pharmacy business are available, which you will appreciate is more difficult in August. We therefore respectfully request an extension of time to facilitate a face-to-face meeting and explore with you the PDA’s and your members’ concerns and how we might work collaboratively to address these. We would like to better understand your rationale for seeking recognition and would also value the opportunity to discuss and understand the bargaining unit that you’ve proposed in your letter.”

13)       The Employer confirmed that it had received a copy of the Union’s application form from the Union on 8 August 2024 by email.  The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit from the Union and that it did not agree the proposed bargaining unit. The Employer said that it did not agree the proposed bargaining unit because “the group of workers (the bargaining unit) that the union seeks to represent are all UK based General Pharmaceutical Council (GPhC) or Pharmaceutical Society of Northern Ireland (PSNI) registered pharmacists and Trainee Pharmacists, below senior management level, who are employed by Superdrug Pharmacy (Superdrug Stores Plc). We believe that the proposed bargaining unit is unclear given the way our business is structured and the roles that are within it. There is no specific definition provided as to who it is envisaged would constitute ‘Senior Management’. Furthermore ‘Trainee Pharmacists’ are not GPhC registered in the same way a qualified and practising Pharmacist is required to be and therefore we believe they should not be included in the bargaining unit. It is unclear whether the BU is intended to include PSNI registered pharmacists who work in the UK or those based in Northern Ireland. Our initial understanding is that the Trade Union Labour Relations (Consolidation) Act does not apply in Northern Ireland and consequently that the CAC has no jurisdiction in Northern Ireland.”

14)       The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as defined in the Union’s application and said that due to the lack of clarity on the proposed bargaining unit description, it was unable to provide specific numbers with any real certainty. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

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 overall numbers in the proposed bargaining unit were currently unknown. When asked to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition, the Employer stated that it had received no indication from workers that they wanted Union recognition. The Employer said its understanding was that workers found union membership beneficial “because of the benefits enjoyed by reason of their subscription.”

16)       The Employer answered “N/A” when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit and when asked if it had received any other applications in respect of workers in the proposed bargaining unit. The Employer said that it consented to its contact details being forwarded to Acas and that although following receipt of the Union’s request, it had not proposed that Acas be requested to assist it would be interested in working with Acas.

5. The Union’s comments on the Employer’s e mail to the CAC dated 9 August 2024

17)       The Union was invited to consider the email from the Employer dated 9 August 2024 and provide any comments should it wish to do so. On 12 August 2024 the Union responded saying that at this stage it did not wish to apply for a stay in the statutory process neither did it wish to withdraw the application for statutory recognition. The Union said that it hoped the Employer would take up the offer of early talks about a voluntary agreement, whilst the statutory processes continued.

18)       The Union then went on to address the application itself and also the letter dated 22 July 2024 and the date upon which it could be said to have been received by the Employer. The Union said that it had previously written informally to the Employer to discuss voluntary recognition but did not receive any response, albeit this contact was some time ago. The Union went on to say it had “complied with the timeframes set out in the legislation and there is an audit trail to this effect. The union adopted a ‘belt & braces’ approach recommended in the ‘CAC Guide to the Parties’ by sending an email which the employer accepts was received on 22nd July, which ended up in a junk folder, and a special delivery letter which was signed for by ‘Lois’ on 23rd July 2024 at 10:41am and proof of receipt by the employer is attached.  I used the same email account to send the application on 8th August 2024 to the CAC copied into the employer, which seems to have evaded the junk folder on that occasion and my second email and attached application then spurred on the employer to make contact. The union would not be aware of Ms Davies holiday plans, the multistorey construction of the employers building nor the inefficiencies in its internal mail handling protocols.  There does not appear to be any provision for such explanations to carry any weight when determining the timing of the application.”

6. The membership and support check

19)       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. 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).  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 20 August 2024 from the Case Manager to both parties. 

20)       The information requested from the Employer was received by the CAC on 27 August 2024 and from the Union on 23 August 2025. The Union provided a supplementary list on 27 August 2024. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.   

21)       The list supplied by the Employer indicated that there were 235 workers in the Union’s proposed bargaining unit.  The list of members supplied by the Union contained 153 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 83, a membership level of 35.32%.^{[footnote 1]}

22)       A report of the result of the membership and support check was circulated to the Panel and the parties on 28 August 2024 and the parties were invited to comment on the results of that check by noon on 3 September 2024.

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

23)       In a letter to the CAC dated 2 September 2024 the Union stated that it had no reason to doubt the accuracy of the data provided by the Employer. The Union went on to say that due to the nature of the community pharmacy sector, pharmacists frequently changed employers and typically did not update member records with their current employer details until they were encouraged to do so at the next annual renewal cycle.  The Union said that membership categories were broad and “for example a Community Pharmacist membership covers pharmacists working for any community pharmacy employer, so members moving within the same sector also tend not to update their membership records mid cycle. There is a steady flow of pharmacists between the various large pharmacy chains including Superdrug. A recent search on Superdrug’s jobs website (29/08/2024) indicates 17 current pharmacist vacancies indicating an active recruitment programme.” The Union said it was therefore probable that some members who it had on record as working for another employer and therefore not captured by this union data extraction exercise, did in fact currently work for Superdrug having joined them, but not updated their member records.

24)       The Union went on to ask that the Panel to consider the fact that Union members are initially asked to identify their employer upon joining and then again upon annual renewal of their membership.  The Union said “Some members will therefore: A, have left Superdrug during a period of membership and are yet to update the union with their new employer details or B, have joined Superdrug and are yet to update the union with their new employer details. The CAC membership check has identified the members who fall into category A and therefore do not appear on the employer’s list; however, the matching exercise will not have picked up those members falling into category B who have joined the employer (unbeknown to the union) and would be in addition to the 83 members common to both lists.” The Union said that it did consider submitting it entire membership database of 38,000 individuals to the CAC for verification against the Employer’s list of workers but decided against this due to it being a considerable administrative burden for the CAC. The Union said that if after considering their the Panel had reservations about whether the second test had been met, the Union would wish to seek permission for the entire member database to be matched against the Employer list “for the reasons stated above which would give the definitive number of union members in the proposed bargaining unit, regardless of whether they had updated their union record or not.”

25)       The Union submitted that the first test was comfortably met as the membership check issued on 7 August 2024 confirmed that 35.32% of the proposed bargaining unit were members of the union and had informed the union of their current employer. In relation to the second test the Union said that the CAC was not required to determine the actual level of support for recognition at this stage. “Rather, it must answer a hypothetical question after considering all the evidence for and against the proposition that if matters were to proceed to a statutory ballot would a majority of the workers within the relevant bargaining unit be likely to favour recognition.”  The Union suggested that on the current figures based on self-reported member information, the union had 35.32% of the workers in its membership and this alone was highly indicative of the likelihood of majority support. The Union went on to say “with a significant proportion of the proposed bargaining unit already in PDAU membership and more than 50% of the entire UK pharmacist profession already being a union member, the CAC can be confident that the remainder of the bargaining unit not identified in the data comparison exercise as being in union membership, will either: 

a)         have joined Superdrug but not yet updated the union with their new employer details

b)        be contemplating joining the PDA Union as they support recognition, particularly at a time of redundancies, pharmacy closures and generally poor morale in the sector due to government underfunding

c)         wish to support recognition and/or join a union that had full negotiating rights over pay, hours and conditions.

d)        currently have a low awareness of union recognition but would support recognition if asked.

e)         not wish to belong to a union but would support recognition as they would benefit from a collective bargaining agreement.

The Union understands that the CAC adopts a broad-brush approach to the interpretation of Para 36(1)(b) and that the Panel will apply its own experience of the issues and industrial relations, rather than view it as a purely mathematical exercise.”

26)       The Union referenced various cases:

TGWU and Armchair Passenger Transport Co Ltd CAC Case No TUR1/291/2003 where the CAC agreed with the union that the task of showing majority support was made difficult by staff turnover and working conditions.  The CAC accepted that a high level of unionisation within that industry added weight to the union’s claim of majority support within the proposed bargaining unit.

Amicus and Sebden Steel Service Centres Ltd CAC Case No TUR1/357/2004 where the CAC stated ‘In our experience a trade union membership level of 39.5% in a bargaining unit of the size and type proposed in this case in the industrial manufacturing sector leads us to conclude that a majority of 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 proposed.’

27)       The Union also referenced previous CAC cases which it said gave a good indication of the general views of the community pharmacist workforce as well as the sector specific difficulties encountered due to the dispersed nature of workers, where each pharmacy tended to only have one member of the bargaining unit in that location.  “Communication with non-union members is particularly challenging due to the geographically dispersed and isolated nature of the proposed bargaining unit.” The Union said that in the case of “PDAU and Boots Management Services Ltd CAC Case No TUR1/823/ (2012) the original membership check for this proposed pharmacist bargaining unit identified that 30.23% of Boots workers were union members.  At this level of membership density there was subsequently an overwhelming vote in favour of PDA Union recognition with 92.4% of those voting in a statutory ballot, having voted to support the proposal that the PDA Union be recognised for the purposes of collective bargaining with the Employer.” The Union said this showed that non-union workers also chose to support union recognition when they could vote freely in a secret ballot. The Union added that the conclusion that could be drawn from the Boots recognition ballot was that when pharmacist bargaining units operating in the community pharmacy sector were given the opportunity to express their views in complete confidence through a secret ballot, there had been significant majority support for union recognition. The Union said that Superdrug, whilst having fewer pharmacies and pharmacists than Boots, operated a similar mixed healthcare and retail business model as their main competitors.

28)       The Union said that it had first written to the Employer in 2012 requesting recognition and its overall membership had more than doubled since that date.  The Union said that this was evidence of significant demand for union membership and a high level of union membership density across the pharmacy sector, which added weight to the union’s case that there was likely to be majority support in the proposed bargaining unit for recognition. The Union went on to say that additional positive indicators underpinning the likelihood of majority support included significant business difficulties reported by the sector, which had led to widespread discontent within the bargaining unit.  The Union said “these serious industry problems exist across the entire community pharmacy sector and the PDAU union recognition agreements secured at Boots and then Lloyds Pharmacy, the two largest private sector pharmacist employers, have led to a growing appetite for union recognition across the whole community pharmacist workforce.  Pharmacists can see how their colleagues in recognised workplaces are able to secure better pay deals and have called for their employers to recognise the PDAU.” The Union said that it firmly believed that there were members currently working for Superdrug in the proposed bargaining unit who had not shown up as such on its database. The Union said that “if members had updated their records, it believed that a majority of the bargaining unit would be in membership of the union.  This can only definitively be established by an additional check of our entire membership base, if the Panel decides this is necessary.”

29)       The Union said that it respectfully submitted that based upon the evidence before it, including previous CAC decisions involving similar bargaining units in the same community pharmacy sector, and after applying its own industrial experience, the Panel could safely conclude that there was likely to be majority support within the proposed bargaining unit for union recognition and requested that the application be accepted. 

30)       In a letter to the CAC dated 3 September 2024 the Employer said “we are surprised by the large disparity between the respective lists whereby only 35.32% of the proposed bargaining unit are union members. In line with paragraph 36 of the schedule we believe this result supports our view that it is unlikely the majority of our workers in the proposed bargaining unit will be in favour of union recognition. It is possible that the extra benefits our workers receive from being members of the PDA (such as additional insurance benefits) may lead our workers to join the union, but not wish for the union to act on their behalf for collective bargaining purposes. Accordingly, we trust the CAC would want to see cogent evidence from the union that a greater number of workers are likely to be in favour of recognition before deciding the threshold is met. Finally, we would be grateful if the CAC can look at the point in relation to jurisdiction of the CAC in Northern Ireland. We note that the union’s information included references to PSNI registration. However, we understand that, under section 301 Trade Union & Labour Relations (Consolidation) Act 1992 the CAC’s jurisdiction extends only to England, Wales, and Scotland and not to Northern Ireland. We would therefore be grateful for clarification as to whether the CAC is including employees based in Northern Ireland in the numbers for the bargaining unit and, if so, how this would work in practice if the CAC does not have jurisdiction in Northern Ireland.”

8. The Issue of jurisdiction

31)       In light of the comments made by the Employer to the CAC on 3 September the Panel Chair asked the Union whether it was proposing to redefine the proposed bargaining unit to include England, Scotland and Wales only as a result of the jurisdictional remit of the CAC prescribed by section 301of the Trade Union & Labour Relations (Consolidation) Act 1992. The Union confirmed that this was its proposal. It was thereafter clarified with the parties that the exclusion of workers in Northern Ireland from the proposed bargaining unit reduced the bargaining unit in size by two workers from 235 workers to 233 workers. Given the small number of workers involved a further brief check was undertaken which showed the Union to now have 82 members in the proposed bargaining unit as opposed to the original figure of 83 provided in the report. This equated to a membership level of 35.19%.

9. Considerations

32)       In deciding whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in Paragraph 4 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

33)       As set out above, the Union stated that it had sent its request for recognition to the Employer on 22 July 2024 by email and by way of a recorded delivery letter dated 22 July 2024.  The Union also stated that it had a tracking reference and proof of delivery from Royal Mail which confirmed the letter was received by the Employer on 23 July 2024 at 10:41am. According to the Employer, in its response to the application, it did not receive a formal request for recognition until 26 July 2024, to which it responded on 8 August 2024. The Employer further explained that a manual search of the email account on 8 August 2024 located an email from the Union dated 22 July 2024 and that this e mail had been caught “in the spam filter and quarantined.” The Employer said it was therefore unaware of its existence until 8 August 2024. The Employer said that the hard copy of the letter from the Union dated 22 July 2024 arrived at the office by recorded delivery on 23 July 2024. The letter was placed into the internal post system and was passed on by a team member on Friday 26 July at 3.45pm. The Employer said that due to it being the first week of the school holidays and annual leave commitments it was disappointed that the Union did not make contact to confirm receipt or that someone was available to respond.

34)       According to paragraph 11 of the Schedule, which applies in circumstances where an employer rejects a formal request for recognition, a union may apply to the CAC to decide whether (a) the proposed bargaining unit is appropriate; and (b) whether the union has the support of a majority of the workers constituting the appropriate bargaining unit. However, in order to make such an application, an employer must, before the end of the first period, either have failed to respond to the request or refused the request without indicating a willingness to negotiate. The “first period” is defined in paragraph 10(6) as being “the period of 10 working days starting with the day after that on which the employer receives the request for recognition”.

35)       Simply put, if the Employer did not receive the Union’s formal request for recognition as set out in its letter of 22 July 2024 until 26 July 2024, then the first period of 10-working days as defined would not have expired until 9 August 2024. In such circumstances as these, the Union’s application made on 8 August 2024 would be premature.

36)       When asked for evidence of service, the Union provided a copy of an email it had sent to the Employer timed at 18:00 on 22 July 2024. This email had been sent to the correct email address for the Employer and there was no evidence to suggest non-delivery of the email. The Union also provided a copy of the proof of delivery from Royal Mail stating the letter was delivered and signed for on 23 July 2024 at 10:41am.

37)       The Panel having examined the evidence submitted by the Union and referred to in Paragraph 29 is satisfied that the Union made its formal request for recognition by letter and email and that the request was received by the Employer at the latest on 23 July 2024, notwithstanding the indication from the Employer that it had not been brought to their attention until 26 July 2024 due to the internal mail processes. Having made this finding, the first period of 10-working days expired on 6 August 2024 which was before the Union submitted its application to the CAC dated 8 August 2024 and the Panel is accordingly satisfied that the Union made a valid request to the Employer within the terms specified in paragraphs 5 to 9 of the Schedule to recognise it for collective bargaining in respect of the proposed bargaining unit as described in paragraph 1 of this decision. The request was made in writing and identified the Union, the proposed bargaining unit and that the request was made under the Schedule. The Panel is also satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 37 to 42 and that the application was made in accordance with paragraph 11 in that before the end of the first period the Employer failed to respond to the request. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraphs 36(1)(a) and paragraph 36(1)(b) are met.

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 19 to 22 above) showed that 35.32%^{[footnote 2]} of the workers in the proposed bargaining unit were members of the Union.  As stated in paragraph 20 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

39)       For the reasons set out in paragraph 38 above the Panel has 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.

Paragraph 36(1)(b)

40)       Under paragraph 36(1) 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.

41)    For the reasons given in paragraph 38 above, the Panel has concluded that the level of union membership within the bargaining unit stands at 35.19%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union.  In the Panel’s experience this is the case irrespective of any additional benefits employees receive due to union membership.

42)       In the Panel’s general experience there will be workers who are not members of the Union who would be likely to favour recognition of the Union. The relatively high proportion of Union membership in the UK pharmacist profession is a relevant factor and indicative of potential likely support for recognition. Increased employee awareness, after acceptance, also tends to have a positive impact on support for recognition. The Panel’s experience of the same or similar sectors is also indicative of relatively high levels of support for recognition. Further, only a relatively modest increase is required from the current level of Union membership in the proposed bargaining unit, which, as we have said is indicative of support, to reach the required level of support for the purposes of acceptance.  Therefore, on the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 36(1)(b) of the Schedule.

10. Decision

43)       For the reasons given in paragraphs 32-42 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr. Rohan Pirani, Panel Chair

Mr. Sean McIlveen

Ms Claire Sullivan

25 September 2024

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1. The Employer confirmed on 3 September 2024 that only two workers out of the 235 workers in the proposed bargaining unit were based solely in Northern Ireland. ↩

2. The proposed bargaining unit was re defined on 3 September 2024 leading to a slight reduction in Union membership to 35.19% ↩