Decision

Acceptance Decision

Updated 9 October 2019

Case Number: TUR1/1135 (2019)

18 September 2019

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 Support Services

1. Introduction

1) RMT (the Union) submitted an application to the CAC dated 29 August 2019 that it should be recognised for collective bargaining by Carlisle Support Services (the Employer) for a bargaining unit comprising “Revenue Security Officers (RSOs), Revenue Protection Inspectors (RPIs), Reliefs and Pushbacks employed by Carlisle Support Services on the Arriva Rail London Contract”. The application was received by the CAC on 30 August 2019 and the CAC gave both parties notice of receipt of the application on the same day. The Employer submitted a response to the CAC dated 6 September 2019 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 James Tayler, Chair of the Panel, and, as Members, Mr Len Aspell and Mr Paul Noon OBE. 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 13 September 2019. The acceptance period was extended to 27 September in order to allow time for the parties to comment on the results of a membership check 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) The Union stated that it had sent its formal request for recognition to the Employer on 7 August 2019 and that the Employer had rejected the request by letter dated 16 August 2019. A copy of the request letter and the response was attached to the application.

6) The Union stated that it had made a previous application under the Schedule for workers in the proposed bargaining unit or a similar unit. The Union explained that it had made an application for Revenue Protection Inspectors on the same contract, application dated 24 July 2019 (Ref TUR1/1126(2019)) and that the application was withdrawn on receipt of the Employer’s response, in order to amend the bargaining unit in line with the Employer’s job descriptions.

7) 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.

8) The Union stated that there were 1000+ workers employed by the Employer and in the proposed bargaining unit there were 49 workers of whom 28 were members of the Union. When asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining the Union stated that their members had joined specifically to achieve recognition for collective bargaining and that they were a small group of workers sub-contracted on an Arriva Rail London (ARL) contract.

9) The Union stated that the reason for selecting the proposed bargaining unit was because it was a coherent group of workers all carrying out specific functions on the same contract.

10) The Union stated that the bargaining unit had not been agreed with the Employer and that it was not aware of any other existing recognition agreement which covered any of the workers in the bargaining unit.

11) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied the application made to the CAC, and supporting documents, to the Employer on 29 August 2019.

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

12) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 7 August 2019. The Employer enclosed a copy of their response dated 16 August 2019 which stated that it was not aware of the RMT having a significant number of members in the three security roles noted and so were minded to reject the application at that time.

13) The Employer confirmed that it had received a copy of the Union’s application form from the Union on 6 September 2019. 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 but in answer to the question ‘do you agree the proposed bargaining unit’ the Employer answered ‘yes’. The Employer stated 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 employed 1843 workers and agreed that there were 49 workers in the bargaining unit. The Employer stated that there was no existing agreement for recognition in force covering workers in the agreed bargaining unit.

15) The Employer stated that a previous application under the Schedule for statutory recognition for workers in respect of this or a similar bargaining unit was made by the Union. The Employer stated that the RMT submitted a previous application for recognition which was received by them on 26 July 2019 in respect of Revenue Protection Inspectors (RPIs) on the Arriva Rail London (ARL) network and was withdrawn by the RMT on 7 August 2019.

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 it’s paid up members within that unit including their 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 10 September 2019 from the Case Manager to both parties. The information from the Employer and the Union was received by the CAC on 12 September 2019. 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 46 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 29 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 27, a membership level of 58.70%.

18) A report of the result of the membership check was circulated to the Panel and the parties on 13 September 2019 and the parties were invited to comment on the result.

6. The parties’ comments on the result of the membership check

19) No comment on the result of the membership check was received from the Employer or the Union.

7. Considerations

20) 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.

21) 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(2). 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 issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

8. Paragraph 36(1)(a)

22) 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 relevant bargaining unit.

23) The membership check conducted by the Case Manager (described in paragraphs 16 and 17 above) showed that 58.70% of the workers in the proposed bargaining unit 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)

24) 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 relevant bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit. For the reasons given in paragraph 23 above the level of Union membership is 58.50%. 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 bargaining unit as to whether they would be likely to favour recognition of the Union. No evidence to the contrary was received in this case. 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

25) For the reasons given in paragraphs 21 to 24 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr James Tayler, Chair of the Panel

Mr Len Aspell

Mr Paul Noon OBE

18 September 2019