Decision

Paragraph 35 Decision

Updated 5 June 2020

Case Number: TUR1/1160(2020)

07 May 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER PARAGRAPH 35 APPLIES TO 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 2010 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 parties to submit further evidence and for the Panel to consider its decision on the point raised under paragraph 35 of Schedule A1 to the Act (the Schedule).

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 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. A copy of the Employer’s e-mail to the Union was attached to the Employer’s response.

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 it therefore believed that the GMB was recognised in respect of the proposed bargaining unit. The Employer stated that even if the GMB were not recognised in respect of this bargaining unit, it believed 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) When asked to give the date of the agreement and, if different, the date on which the agreement came into effect, the Employer stated “1 April 2014 under STM (previous services provider).” A copy of the agreement was attached to the Employer’s response.

16) 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.

17) 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.

18) 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

19) 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.

20) The Union also referred to a letter from STM Group, which was sent to employees on 8 November 2019, a copy of which it provided with its comments. The Union stated that in this letter the Employer “offered employees the opportunity to elect a representative or attend yourself and in its view, the TUPE consultation that took place was under Regulation 13 (3)(b) of the TUPE Regulations i.e. consultations without a recognised trade union, rather than Regulation 13 (3)(a). The Union also enclosed a copy of the “STM Group (UK) Ltd Contract of Employment”, which the Union stated, “applies to these workers and in Clause 16 it confirms no collective agreements apply.” Paragraph 16.1 of the contract of employment states: “16.1 There are no collective agreements that directly affect the terms of your employment.”

21) On 4 March 2020 the CAC copied the Union’s comments on the Employer’s Response to the Employer and its invited comments. The Employer responded by letter to the CAC dated 9 March 2020. The Employer stated that in its response to the Union’s application it had highlighted that there was an existing recognition agreement with the GMB, which transferred to the Employer under TUPE. The Employer stated that the description in clause 2.1 of the agreement, namely “all operational employees permanently or temporarily employed in the Company’s Northern Rail Ltd”, clearly covered the workers in the Union’s proposed bargaining unit.

22) The Employer stated that it had not taken any steps to derecognise the GMB in respect of this bargaining unit, nor had the Union produced any evidence of any previous employer doing so. The Employer said that it therefore considered that the GMB was currently recognised in respect of the Union’s proposed bargaining unit.

23) The Employer stated that its understanding was, that if the CAC did not accept that the GMB was recognised, and should the Union’s application be accepted, that it would have an opportunity to comment in more detail on the appropriateness of the Union being granted recognition in respect of the proposed bargaining unit. The Employer stated that given the circumstances, whereby both contracts that it holds in relation to “Northern Rail” (the Travel Safe contract, in relation to which those employees were employed, and the Revenue contract) were due to be merged over the next three months, and that those “Northern Rail” employees were covered by the recognition agreement with the GMB, if the Union were awarded recognition, it would lead to a small fragmented bargaining unit, which should be avoided.

6. Preliminary issue in dispute

24) In view of the parties’ comments, by letter dated 11 March 2020, the Case Manager informed the parties that the Panel intended to determine as a preliminary issue the question of whether the RMT application was rendered inadmissible by the existence of an agreement between the Employer and GMB on the basis of written submissions. The parties were informed that, consequently, the Panel would not address the other validity and admissibility provisions unless it decided that the RMT application was not rendered inadmissible by paragraph 35.

25) The parties were invited to make any further written submissions relating to paragraph 35 together with any documentary evidence relied on, by the close of business on 18 March 2020. The Employer was also asked to respond specifically to the points made by the Union in its e-mail of 1 March 2020; that the Contract of Employment stated that there were no collective agreements that directly affect terms of employment (clause 16.1) and that the TUPE consultation appeared to have taken place on the basis that there were no elected representatives in place.

7. The parties’ submissions

26) The Union made its submissions by e-mail dated 18 March 2020 in which it stated that it had already submitted contracts of employment that contractually showed that no collective agreements were in place. The Union stated that it believed this unequivocally proved that there was currently no recognised union which covered the workers in its proposed bargaining unit. The Union stated that there was no evidence that collective bargaining had taken place.

27) The Union said the GMB recognition agreement did not apply to the Travel Safe Officer Contract and, therefore, no recognition agreement exists. The Union stated that the TUPE transfer from STM to CSS was carried out with no trade union involvement.

28) Finally, the Union stated that the Travel Safe Officer Contract covered different work to the Revenue Contract, and it was entirely reasonable for the RMT to be recognised for this group of workers.

29) The Employer did not provide any further submissions.

8. The Panel’s request for further evidence

30) On 3 April 2020, at the request of the Panel, the Case Manager wrote to both parties and asked that they provide to the CAC witness statements with supporting documentation; in the case of the Employer, to provide evidence (including evidence from the GMB) that the collective agreement was is in force and had entitled the GMB to conduct collective bargaining on behalf of employees in the proposed bargaining unit; and in the case of the Union, to support its contention that the collective agreement was not in force and that collective bargaining had not occurred.

31) By e-mail to the CAC dated 5 April 2020 the Union stated that it had previously provided evidence of contracts of employment, which clearly stated that no collective agreements applied. In addition, the Union had also provided letters confirming that the TUPE consultation was carried out with employees rather than collectively, with a trade union. The Union stated that it therefore considered that the Panel already had sufficient evidence that the workers in the bargaining unit were not covered by a collective agreement, and it urged the Panel to accept the application.

32) The Union said that notwithstanding the above, and the current difficulties posed by Covid-19 including travel restrictions and social distancing, it had managed to obtain signatories from its members based at Newcastle Central, and it was prepared to provide this information to the CAC on a confidential basis. The Union said that this evidence confirmed that no collective bargaining had taken place, there was no Trade Union involvement in the TUPE process, and that there was no contact from the GMB at any point in time.

33) At the request of the Panel, on 20 April 2020, the Union submitted to the CAC a redacted version of its petition, with all names/signatures removed. The Union’s petition consisted of 1 A4 sheet, and at the top of the page was the following statement:

“We the undersigned Carlisle TSCs on the NT contract can confirm that we have NO collective Bargaining clause in our contract of employment. Any pay increases have been awarded not collectively bargained for. During the recent TUPE transfer we were offered no Trade Union Representation. We have had no contact on any matter from the GMB trade union either prior to or since that same TUPE transfer.”

34) On 20 April 2020 the CAC copied the Union’s e-mail of 5 April 2020, along with the redacted version of its petition, to the Employer and its comments were invited by the close of business on 23 April 2020.

35) The Employer failed to provide any response to the CAC correspondence of 3 April 2020 and 20 April 2020.

9. Considerations

36) Paragraph 35 of the Schedule provides that: “An application under paragraph 11 or 12 is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit.”

37) For the paragraph to apply:

a) There must be a collective agreement

b) The collective agreement must be “in force” so that the union is recognised as entitled to conduct collective bargaining on behalf of at least one worker falling within the proposed bargaining unit

38) In reaching its decision, the Panel has taken account of all the evidence.

39) The Panel notes that the scope of the collective agreement between GMB and STM Group (UK) Ltd is stated to be:

“2. SCOPE 2.1 The frameworks and procedures set out in this Agreement cover all operational employees permanently or temporarily employed in the Company’s Northern Rail Ltd”

40) On the face of it this would appear to be wide enough to cover the employees in the proposed bargaining unit. However, whatever the effect of the agreement in respect of other workers, we still have to consider whether it is in effect so that the union is recognised as entitled to conduct collective bargaining on behalf at least one worker falling within the bargaining unit.

41) The Panel also notes that the Union does not dispute that there has been a transfer of an undertaking and that the transfer of a collective agreement that is in force under which a union is recognised as entitled to conduct collective bargaining on behalf at least one worker falling within the bargaining unit would be automatic under Regulation 5 of TUPE.

42) However, evidence supplied by the Union showed that the STM Group (UK) Ltd contract of employment states that there are no collective agreements in force, and that that the TUPE consultation appeared to have been treated on the basis that there was no recognised union.

43) The Employer has failed to provide any evidence, in respect of this proposed bargaining unit, that the recognition agreement was in force; or that that the union was before the transfer, or has after the transfer, been recognised as entitled to conduct collective bargaining on behalf any workers falling within the bargaining unit. No such evidence has been provided from the Employer, workers in the proposed bargaining unit or the GMB; despite the issue being put squarely in correspondence and the Employer being given a number of opportunities to provide witness and documentary evidence. The CAC steers well clear of inter union disputes. If the GMB had been, or were currently, recognised to conduct collective bargaining on behalf of employees in the proposed bargaining unit we cannot see any reason why they would have been reticent to say so.

44) The Employer has failed to give any response to the points raised by the Union that contracts of employment state that there is no collective agreement, that TUPE consultation appears to have been conducted on the basis that there is no existing trade union recognition or to the limited evidence produced by the union in which some employees in the bargaining unit stated (with names redacted) that there has been no recognition in force under which collective bargaining has been conducted on their behalf by the GMB.

45) It is very unusual for an Employer to fail to engage with the questions of the Panel to this extent. We can only conclude that they have failed to do so because they have no evidence to support their contention that the collective agreement is in force for any employees in the proposed bargaining unit so that the union is recognised as entitled to conduct collective bargaining on behalf at least one worker falling within the bargaining unit.

46) When considering seeking evidence from the Employer about this issue the Panel were reminded of the adage of a trade union officer who used to say that sometimes you have to kick the bush to see how many rabbits come running out; we kicked the bush a number of times, but not a single rabbit.

47) The Panel is not satisfied that there is already in force a collective agreement under which the GMB is recognised as entitled to conduct collective bargaining on behalf of workers in the RMT’s proposed bargaining unit.

10. Decision

48) The Panel therefore concludes that the application is not rendered inadmissible by operation of paragraph 35 as set out above and accordingly the Case Manager shall conduct a membership and support check so that the Panel can decide whether to accept the Union’s application in accordance with paragraph 36 of the Schedule.

Panel

Mr James Tayler, Panel Chair

Mr Fiona Wilson

Mr Len Aspell

07 May 2020