Decision

Acceptance Decision

Updated 5 June 2020

Case Number: TUR1/1160(2020)

04 June 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:

RMT

and

Carlisle Security Services Limited

1. Introduction

1) RMT (the Union) submitted an application to the CAC dated 14 February 2020 that it should be recognised for collective bargaining purposes by Carlisle Security Services Limited (the Employer) in respect of a bargaining unit comprising “Travel Safe Officers and Team Leaders; this includes the job title of Security Officer whom are employed on the Arriva Rail North Franchise.” The location of the bargaining unit was given as “Across the Arriva Rail North Franchise, locations such as, Liverpool Lime Street, Preston, Bradford, Newcastle, Manchester.” The application was received by the CAC on 17 February 2020 and the CAC gave both parties notice of receipt of the application on 17 February 2020. The Employer submitted a response to the CAC dated 26 February 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 Mr James Tayler, Panel Chair, and, as Members, Mrs Fiona Wilson and Mr Len Aspell. The Case Manager appointed to support the Panel was Kate Norgate.

3) The Panel extended the period for it to decide if the Union’s application was admissible on a number of occasions to allow time for the Panel to consider its decision on a point raised under paragraph 35 of Schedule A1 to the Act (the Schedule) and for the Panel to address the remaining admissibility tests.

2. Issues

4) The Panel is required by paragraph 15 of 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 a request letter to the Employer on 17 January 2020 but that, as of the date of its application, the Employer had not responded. A copy of the Union’s request was 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 the total number of workers employed by the Employer was 1601. The Union stated that there were 55 workers in the proposed bargaining unit, of whom 35 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 said it was happy to disclose confidential membership information upon request.

8) The Union stated that the reason for selecting its proposed bargaining unit was because all of the workers within the bargaining unit were employed on this contract. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said, “No”.

9) The Union said that there was no existing recognition agreement of which it was aware that covered any workers in the bargaining unit.

10) 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 4 February 2020.

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

11) In its response to the Union’s application the Employer stated that it believed that the Union’s written request for recognition was received on 19 January 2020. The Employer said that it had not responded to the request.

12) The Employer stated that it had received a copy of the Union’s application form from the Union “on or about 17 February 2020.”. When asked both whether the Employer had agreed the bargaining unit with the Union before receiving a copy of the application form, and whether it does now agree the bargaining unit, the Employer answered. “No”. The Employer further stated that it had a formal recognition agreement with the GMB in relation to staff employed on its Northern Rail contract. The Employer stated that the GMB was recognised in respect of the proposed bargaining unit. The Employer stated that even if the GMB was not recognised in respect of this bargaining unit, it would be inappropriate to grant recognition to the RMT as it would lead to a small fragmented bargaining unit within that part of the undertaking, involved with the Northern Rail contact.

13) The Employer said that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

14) The Employer stated that it believed the number of workers in the proposed bargaining unit was approximately 50. When asked whether there was existing agreement for recognition in force covering workers in the proposed bargaining unit, the Employer stated that there was an agreement between STM Security Group (UK) Limited and the GMB that covered all operational employees permanently or temporarily employed on Northern Rail. The Employer said that this agreement transferred under TUPE.

15) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated that it had no evidence to verify the Union’s estimate of membership.

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 re-iterated its response as stated in paragraph 16 above, and further stated that it did not know what level of support existed.

17) 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, the Employer stated that it was not aware of any such previous application since it took over the Northern Rail contract from another provider on 26 June 2017.

5. Additional comments from the parties

18) On 26 February 2020 the CAC copied the Employer’s response to the application to the Union and its comments were invited. In an e-mail to the CAC dated 1 March 2020 the Union stated that the contract for which it was seeking recognition was a new contract awarded by the then Franchise Holder, Arriva Rail North, in 2017, to comply with the franchise agreement reached with the DFT. The Union stated that clause 82 of the agreement specifically created the posts for which it was seeking recognition and that they were not currently covered by a collective bargaining agreement. The Union stated that it did not believe that the GMB agreement applied to its proposed bargaining unit.

6. Decision on paragraph 35

19) In light of the Employer’s argument that there was an existing agreement for recognition in force covering workers in the proposed bargaining unit, both parties were invited to make written submissions to the CAC in respect of paragraph 35 of the Schedule.

20) In its decision dated 7 May 2020, the Panel concluded that the application was not rendered inadmissible for the reasons set out in its decision.

7. Remaining admissibility criteria

21) The Panel concluded its decision on 7 May 2020 by directing the Case Manager to conduct an independent membership and support check in order to determine the Union’s level of support within the proposed bargaining unit in order to assist with its decision on whether the Union had met the admissibility criteria specified in paragraph 36 of the Schedule. Paragraph 36 requires that 10% of the workers in the relevant bargaining unit are members of the Union (paragraph 36(1)(a)) and that a majority of the workers in the relevant bargaining unit are likely to support recognition of the Union as entitled to conduct collective bargaining on behalf of the relevant bargaining unit (paragraph 36(1)(b)).

8. The membership and support check

22) To assist 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 full names and 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. These arrangements were confirmed in a letter dated 11 May 2020 from the Case Manager to both parties.

23) The information requested from both parties was received by the CAC on 18 May 2020. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

24) The list supplied by the Employer indicated that there were 51 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 30 names.

25) According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 25, a membership level of 49.02%. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

26) A report of the result of the membership and support check was circulated to the Panel and the parties on 19 May 2020 and the parties were invited to comment on the results of that check by the close of business on 21 May 2020.

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

27) The Union, by e-mail to the CAC dated 20 May 2020, stated that with regard to the first test it believed the result of the check concluded that it had met, and exceeded, the 10% threshold.

28) When addressing the second test, the Union stated that many employees within the bargaining unit had joined the RMT for collective bargaining purposes, to improve pay and conditions of service. The Union stated that the overall membership levels were significant, literature had been distributed, and discussions had taken place over several months. The Union believed that the level of membership would have been higher but due the Covid-19 pandemic organising activity had been curtailed.

29) No comments were received from the Employer.

10. Considerations

30) 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 in reaching its decision.

31) 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. Paragraph 36(1)(a)

32) 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.

33) The membership check conducted by the Case Manager (described in paragraphs 22 - 25 above) showed that 49.02% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 25 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.

11. Paragraph 36(1)(b)

34) 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. The Panel is tasked therefore to determine likely, not actual, majority support for Union recognition.

35) The Union relied on its density of union membership (49.02%) as evidence that there was likely to be majority support for collective bargaining. The Employer did not respond to the membership check. The Panel considers that the level of union membership taken together with the fact that the “bandwagon effect” is likely to result in an increased level of support, constitutes sufficient evidence for the Panel to conclude 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.

12. Decision

36) For the reasons given in paragraphs 31 – 35 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr James Tayler, Panel Chair

Mrs Fiona Wilson

Mr Len Aspell

04 June 2020