Decision

Acceptance Decision

Updated 20 April 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1215/2021

12 April 2021

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:

RMT

and

Briggs Marine Contractors Ltd

1. Introduction

1) The National Union of Rail, Maritime & Transport Workers (RMT) (the Union) submitted an application to the CAC dated 20 March 2021 2018 that it should be recognised for collective bargaining purposes by Briggs Marine Contractors Ltd (the Employer) for a bargaining unit described as: “All Able Seaman, Coxswain and Senior Coxswain grades employed at Liverpool Port”. The location of the proposed bargaining unit was “The Mersey Cluster Ports, Liverpool, Lynas and Heysham, who work out of Liverpool Port on the Pilot Launch Service.” The application was received by the CAC on 22 March 2021 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted a response to the CAC dated 24 March 2021 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 Mr Charles Wynn-Evans, Panel Chair, and, as Members, Mr Alastair Kelly and Ms Virginia Branney. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 5 April 2021 and was extended to 14 April 2021 to allow time for the parties to comment on the membership report and for the Panel to consider these 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 16 January 2021. The Union stated that there was correspondence over an initial meeting which was held on 22 February 2021. The Union stated that on 17 March 2021 an email was received from the Employer saying that they were fully committed to further negotiations.

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 the total number of workers employed by the Employer was 580. The Union stated that there were 24 workers in the proposed bargaining unit, of whom 23 were members of the Union, and a confidential list of paid up members could be provided upon request. When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated that it had high levels of RMT Union membership.

8) The Union stated that the reason for selecting the proposed bargaining unit was because it covered the defined bargaining unit and was objective. In answer to the questions as to whether the bargaining unit been agreed with the Employer and whether there was any existing recognition agreement which it was aware of which covered any workers in the bargaining unit the Union answered ‘no’.

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 20 March 2021.

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 by email on Saturday 16 January 2021 which was not read until Tuesday 19 January 2021 and was forwarded to a Director for a response. The Employer stated that on 4 February 2021 a telephone call was made to the Regional Office of the RMT to arrange a meeting to discuss the draft CBA and a meeting took place on 22 February 2021.

11) In response to the question please give the date that you received a copy of the application form (and supporting documents, if any) from the Union the Employer stated that it did not receive an application form only a letter from the GMB (sic) ^{[footnote 1]}. The Employer clarified in an email of 26 March 2021 that where they had stated the GMB in their response form this was an error and they were aware that it should have said RMT.

12) 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 in answer to the question do you agree the proposed bargaining unit answered “YES”.

13) The Employer stated that, following receipt of the Union’s request, it had not proposed that ACAS should be requested to assist and that the parties had agreed to a follow up meeting 2 weeks following 22 February to conclude on the CBA. The Employer stated that the Regional Officer chased for the follow up meeting and they emailed on 17 March 2021 apologising for the delay and said that they were committed to the CBA and wished to arrange another meeting within the month of March. The Employer stated that they did not receive a reply and following this received a letter and a copy of the Application from the CAC.

14) The Employer stated that it did agree with the number of workers in the proposed bargaining unit as defined in the Union’s application.

15) The Employer confirmed that there was currently no recognition agreement in place covering any of the workers in the proposed bargaining unit.

5. The Membership Check

16) To assist in the application of the admissibility tests 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 full name and date of birth). It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 26 March 2021 from the Case Manager to both parties. The information from the Employer was received by the CAC on 31 March 2021 and from the Union on 30 March 2021. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

17) The list supplied by the Employer indicated that there were 24 workers in the proposed bargaining unit. The list of members supplied by the Union contained 26 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 22 i.e. a membership level of 91.67%.

18) A report of the result of the membership check was circulated to the Panel and the parties on 31 March 2021 and the parties were invited to comment on the result.

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

19) In an email to the CAC dated 1 April 2021 the Union stated that in respect of paragraph 36(1)(a) the membership check clearly demonstrated that more than 10% of the bargaining unit were paid up members and this requirement was therefore satisfied. In respect of paragraph 36(1)(b) the union stated that it was initially contacted by members of the proposed bargaining unit in early January 2021 to seek trade union recognition and, following those initial discussions, nearly 100% of the proposed bargaining unit are RMT members. The Union stated that the significant increase in membership was driven by a desire to have a collective bargaining agreement in place and it was therefore reasonable to conclude that the majority of the bargaining unit would vote in favour. The Union stated that more that 50% of the proposed bargaining unit were in membership and therefore recognition for collective bargaining should be granted automatically.

20) No comments were received on the membership and support check from the Employer.

7. Considerations

21) 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 received and all the evidence in reaching its decision.

22) 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 12. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 of the Schedule. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

8. Paragraph 36(1)(a)

23) 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.

24) The membership check conducted by the Case Manager showed that 91.67% of the workers were members of the Union. As stated in paragraph 16 above the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed 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)

25) 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.

26) For the reasons given in paragraph 24 the level of union membership is 91.67%. The Union did not provide any additional evidence of support for recognition, such as a petition, but 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. No evidence to the contrary was provided in this case. On the basis of the evidence before it, namely the very high level of membership of the Union in the proposed bargaining unit, 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

27) For the reasons given above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Charles Wynn-Evans, Panel Chair

Mr Alastair Kelly

Ms Virginia Branney

12 April 2021

1. The Union in its application stated that it had sent a copy of the application form to the Employer on 20 March 2021 and a copy of that email enclosing the application form was forwarded to the CAC. ↩