Decision

Recognition Decision

Updated 11 July 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1303/2023

6 April 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

The National Union of Rail, Maritime and Transport Workers (the RMT)

and

Bespoke Facilities Management Limited

1. Introduction

1) The National Union of Rail, Maritime and Transport Workers (the RMT) (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 7 February 2023 that it should be recognised for collective bargaining purposes by Bespoke Facilities Management Limited (the Employer) for a bargaining unit comprising “Bespoke Management Facilities Limited Hitachi Rail, Doncaster, Cleaning Operatives, Team Leaders and Supervisors.” The location of the bargaining unit was given as “Hitachi Train Maintenance Depot, Doncaster.” The application was received by the CAC on 7 February 2023 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 13 February 2023. An updated response was submitted by the Employer on 15 February 2023 in order to rectify a factual error. Both responses 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 Stuart Robertson, Panel Chair, and, as Members, Mr Alastair Kelly and Mr Paul Morley. The Case Manager appointed to support the Panel was Joanne Curtis.

3) By its written decision dated 13 March 2023 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. In an email dated 14 March 2023 the Employer notified the Case Manager that the parties had agreed the bargaining unit and that the agreed bargaining unit was the bargaining unit proposed by the Union in its application.

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 specified in paragraph 22(4) are:

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

(b) 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;

(c) 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. Paragraph 22(5) provides that “membership evidence” for these purposes 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) A membership check conducted by the Case Manager to assist the Panel to determine whether the application should be accepted, issued to the Panel and the parties on 1 March 2023, showed that 20 (57.14%) of the 35 workers in the Union’s proposed bargaining unit were members of the Union. In a letter from the Case Manager to the Union dated 14 March 2023 the Union was asked whether it wished to claim majority membership within the bargaining unit and that it should therefore be granted recognition without a ballot. In a letter to the Case Manager dated 20 March 2023 the Union said that it believed that it had majority membership and that it believed that the Union should be granted recognition without a ballot. In a letter from the Case Manager to the Employer dated 21 March 2023 the Employer was invited to make any submissions it wished to make on the Union’s claim to majority membership and on the three qualifying conditions specified in paragraph 22(4) of the Schedule by close of business on 27 March 2023.

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

6) In a letter to the Case Manager dated 27 March 2023 the Employer said that a ballot should be held to confirm that the Union had majority membership within the bargaining unit The Employer stated that this would help to maintain a good relationship between the Employer and the workers. The Employer went on to say that it had concerns about why some members had joined the Union following a communication that was sent to the workers from the Union. The Employer said “it was clearly intended to injure both our reputation and relationship with our employees. We have since reached out to our employees to address the communication that was sent and therefore would like to know if this had any effect on the membership numbers. We would therefore ask the panel to hold a ballot before the union is recognised.”

4. The Union’s response to the Employer’s submissions on the qualifying conditions

7) The Union stated that the comments made by the Employer were not based on fact. The Union said it believed that there already was good workable industrial relations in place. The Union said this was demonstrated by the fact that the Union and the Employer were able to agree a bargaining unit based on the one proposed by the Union. The Union added that in readiness for recognition, it had been able to agree a draft collective bargaining agreement with the Employer which further proved that the parties were able to negotiate together. The Union concluded by saying that there had been no evidence whatsoever to suggest that members did not want the union conducting bargaining on their behalf. The Union said that it had taken the opportunity to check membership levels again on 27 March 2023 and that it was exactly the same.

5. Considerations

8) 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.

9) The membership check conducted by the Case Manager described in paragraph 5 above showed that 57.14% of the workers in the bargaining unit were members of the Union. The Panel is satisfied that this check was conducted properly and impartially. Neither party submitted evidence of any material changes in the composition of the workforce or the density of union membership since that check had been conducted and the Panel has not received any evidence from any other source which indicates that this might have been the case. The Panel is satisfied, therefore, that a majority of the workers constituting the bargaining unit are members of the Union.

10) The Panel has considered carefully the submissions of the Employer and all the evidence in reaching its decision as to whether any of the qualifying conditions laid down in paragraph 22(4) of the Schedule is fulfilled.

11) 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 submissions put forward by the Employer and is not satisfied that a ballot should be held in the interests of good industrial relations. Beyond the Employer’s assertion, there is no evidence that industrial relations within the relevant workforce have been damaged by the Union’s communications such that a ballot should be held. To the contrary, the Panel notes that the Employer and the Union agreed the bargaining unit and were prepared to negotiate about a draft recognition agreement.

12) 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. No such evidence has been produced and the Panel is satisfied that this condition does not apply.

13) 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. No such evidence has been produced and the Panel is satisfied that this condition does not apply.

6. Declaration of recognition

14) 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 are 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: “Bespoke Management Facilities Limited Hitachi Rail, Doncaster, Cleaning Operatives, Team Leaders and Supervisors.”

Panel

Mr Stuart Robertson, Panel Chair

Mr Alastair Kelly

Mr Paul Morley.

6 April 2023