Decision

Para 35 Decision

Updated 21 October 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1275/2022

21 October 2022

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER PARAGRAPH 35 OF THE SCHEDULE APPLIES TO THE APPLICATION

The Parties:

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

and

Carlisle Support Services

1. Introduction

1) RMT (the Union) submitted an application to the CAC dated 1 June 2022 that it should be recognised for collective bargaining purposes by Carlisle Support Services (the Employer) for a bargaining unit described as “Gateline Assistants, Gateline Team Leaders, Revenue Enforcement Team Operatives, Revenue Enforcement Team Leaders and Revenue Protection Officers employed by Carlisle Support Services on their Northern Trains Ltd Gateline and Revenue contract, excluding management and clerical grades”. The application was received by the CAC on 1 June 2022 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted a response to the CAC dated 10 June 2022 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 Ms Naeema Choudry, Panel Chair, and, as Members, Mr Ian Hanson and Mr Sean Mcllveen. 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). The final extension ends the acceptance period on 21 October 2022.

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 its request for recognition to the Employer on 18 May 2022. The Union explained that the Employer had responded by letter of 19 May 2022 in which it had declined its request, further stating that it believed the GMB “have been recognised through this agreement …..”. The Union said that it also noted the Employer’s use of past tense in the in its response. The Union said that it believed that the agreement referred to by the Employer had expired before Carlisle Support Services (CSS) had taken over the contract and that it was not in operation with CSS. It was the Union’s view that there was no existing recognition agreement in place. The Union believed that it was the Employer’s intention to set up an Employee Consultative Committee (ECC) and that showed that a collective bargaining agreement did not apply to this contract. A copy of the Union’s request letter and the Employer’s letter dated 19 May 2022 were attached to its 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, it had not proposed that ACAS should be requested to assist the parties.

7) The Union said that the total number of workers employed by the Employer was 4000+. There were 226 workers in the bargaining unit, of whom 141 were members of the Union. When asked to provide evidence that the majority of the workers in the bargaining unit were likely to support recognition for collective bargaining, the Union stated that 50% of the workers in its proposed bargaining unit had joined the RMT, and that they had done so specifically to gain collective bargaining rights. The Union said that a membership list could be provided to the CAC on a confidential basis if required.

8) The Union stated that the reason for selecting the proposed bargaining unit was because it consisted of frontline workers who all carried specific defined duties on the same contract. The Union believed that it made “industrial sense” to treat those workers as a separate individual bargaining unit.

9) The Union confirmed that it held a current certificate of independence and enclosed a copy of the certificate. The Union stated that it had copied its application and supporting documents to the Employer on 1 June 2022.

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 formal request for recognition by post on 19 May 2022. The Employer explained that the letter was undated, but the postmark had indicated that the date of posting was 16 May 2022. The Employer said that it rejected the Union’s request on the basis that there was already a recognition agreement in place with the GMB that covered the workers in the Union’s proposed bargaining unit.

11) When asked to confirm the date on which it had received a copy of the application form from the Union, the Employer stated that it had “Not received any application form to date”, only a copy of the Union’s formal request letter. The Employer further stating that the Union had, however, shared a copy of its application via email at 14:32 on 1 June 2022.

12) The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit, but it did now agree with the proposed bargaining unit.

13) The Employer stated that following receipt of the Union’s request it had not proposed that Acas be requested to assist because there was an existing agreement in place with the GMB.

14) The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application, as it was only 66% of the current workforce.

15) When asked whether there was an existing agreement for recognition in force covering workers in the proposed bargaining unit, the Employer answered “Yes”. The Employer explained that there was already in place an agreement with the GMB, which transferred to CSS in June 2017 when the workforce transferred from another organisation (STM) under TUPE. The original agreement was dated 1 April 2014 and had superseded the previous agreement between GMB and G4S (previous contract holders). The STM agreement was subsequently updated in September 2020. A copy of both agreements were attached to the Employer’s response. The Employer confirmed that the GMB had a certificate of independence

16) When asked whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer said that the Union had previously made informal approaches for recognition and there had previously been evidence that workers from other bargaining units (eg Travel Safe Officers) were included in their figures.

17) When asked whether it considered a majority of the workers in the bargaining unit were likely to support recognition, the Employer said that the number of union members stated by the Union (141) would not be a majority of the 342 workers in the proposed bargaining unit.

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 the Union had made a previous application to the CAC (TUR1/1160(2020) for a different bargaining unit comprising Travel Safe Officers & Team Leaders, which was accepted. When asked if it had received any other applications in respect of workers in the proposed bargaining unit the Employer stated that it had received a letter from the RMT dated July 2020, in which it was seeking recognition. The Employer said that “This letter did not quote Schedule A1.” The Union’s request claimed a membership density of 85% within the workforce, which the Employer stated, “was uncorroborated and the request was subsequently declined on the basis of having an agreement in place with the GMB.”

19) From a perusal of the Union’s application and the Employer’s response it was apparent that there was a preliminary issue in dispute, namely: whether the application was inadmissible under the provisions of paragraph 35 of the Schedule. This provides that an application, in accordance with paragraph 11 or 12 of the Schedule, is not admissible if the CAC is satisfied that there is already in force a collective agreement, under which a union is recognised as entitled to conduct collective bargaining on behalf of any workers falling within the bargaining unit proposed by the union.

5. Additional comments from the parties and the GMB

20) On 23 June 2022 the Case Manager wrote to the GMB as a party having an interest in the matter within the meaning of paragraph 35(5) of Schedule A1. The GMB was asked to clarify its position in relation to both the agreement to which the parties are the Employer and the GMB, and recognition with the Employer.

21) By a letter of the same date, the CAC also wrote to the Employer and asked it to submit to the CAC any documentary evidence to support their assertion that there was a recognition agreement was in force. In an e-mail to the CAC dated 27 June 2022, Mr Gary Smith, GMB General Secretary, stated that “Our understanding is that the agreement is null and void. The membership on the contract is with RMT and we are happy to support their recognition request.”

22) On 28 June 2022 the Employer responded, stating that it was concerned by Mr Smith’s response, which appeared to be a clear disconnect with the reality at a local level. The Employer further stated that prior to this “out of the blue” revelation it had not been formally made aware of this decision, nor did it believe that the GMB’s members had been provided any opportunity to agree to this, either by way of local consultation or a ballot. The Employer further added that it considered this highly unusual for a union “which proudly boasts they are run by their members, for their members” and, despite Mr Smith’s view, remained active under the spirit of the agreement. The Employer said that it had also noted the Mr Smith’s comment with regard to membership on the contract with the RMT, and it could only assume Mr Smith had been provided with evidence of this, as from the information already provided by the RMT through its application it was already known that the Union had heavily understated the size of the bargaining unit in order to demonstrate a higher percentage of membership. In light of Mr Smith’s comments, the Employer asked that contact be made with the Mr Bernie Cleary, GMB Organiser, who was the Employer’s main point of contact, in order to seek his views. As evidence to support its position concerning its recognition agreement with the GMB, the Employer attached to its response copies of the following documents:

i. Letter dated 23 January 2019, received from Mr Cleary, requesting a meeting to discuss pay.

ii. Emailed response, dated 23 January 20219, with proposed meeting dates.

iii. E-mailed discussion, dated 9 July 2019, regarding pay increments.

iv. Letter dated 15 November 2019, received form Mr Cleary, requesting a meeting to discuss pay.

v. Email dated 21 November 2020 confirming the date agreed for the meeting in reference to Mr Cleary’s request.

vi. Email dated 29 September 2020, received from Mr Cleary, with existing (STM) agreement and updated draft for CSS following a meeting.

vii. Email dated 26 October 2020 sent to Mr Cleary, outlining the proposed changes to structure and a request for a meeting to consult.

viii. Email dated 29 October 2020, sent to Mr Cleary, confirming the approach with calculating holiday pay.

ix. Email dated 6 July 2021, sent to Mr Cleary, outlining the new pay rates following discussions.

23) On 8 July 2022 the CAC sent a further letter to Mr Smith, enclosing a copy of the Employer’s e-mail of 28 June 2022 and supporting documentation, and informed that, in light of this information, the Panel had asked that Mr Smith liaise with Mr Cleary before clarifying the current position of the GMB.

24) By e-mail dated 29 July 2022, Mr Cleary responded stating that as he had not been involved in the issue of “giving up a GMB recognition agreement” he was unable to shed any light on the issue, but he was informed by the Employer that the GMB “was stepping away from the agreement” after the RMT had submitted a claim to the CAC.

25) On 1 August 2022, Ms Giovanna Holt, explained that as Senior Organiser in North West & Irish Region of the GMB, she had been forwarded the CAC’s letter of 8 July 2022. Ms Holt stated that as the GMB currently held sole recognition with this group of workers and had done so for many years, it had no intention of joining another union, nor were Management minded to give joint recognition. Ms Holt said that the GMB objected in the strongest terms possible to its membership being handed over wholesale to another union without any consideration given to them. Ms Holt asserted that the RMT had had no involvement with this group of workers and consequently maintained that this continued.

26) On 5 August 2022 the CAC copied the GMB’s comments to the Union and its comments were invited. By letter of 10 August 2022 the Union stated that having looked at the GMB’s e-mails it made the following observations:

i. Mr Cleary’s response was very short stating that he “could not shed any light on the issue’, after being informed by the Employer that the GMB were not claiming to have current recognition in place. Unprompted, Mr Cleary then took it upon himself to contact another GMB official who sent a “short unsubstantiated statement” and, for whatever reason, copied her response to the Employer who was attempting to cast doubt on the statement made by Mr Smith. Ms Holt subsequently submitted a one sentence email which failed to answer the questions posed by the CAC. Ms Holt’s reference to “our membership being handed over wholesale” demonstrated this lack of understanding. Ms Holt, in a rush to provide a statement in support of management’s contention, had confused the CSS Rail contract with other unrelated GMB agreements with the Employer. The comments of Mr Cleary and Ms Holt provided no evidence in support of the Employer’s case concerning paragraph 35 of the Schedule.

ii. On the contrary Mr Smith made a “clear and unambiguous statement of fact”. The “null and void agreement” referred to by Mr Smith was the document dated 2020 which was inherited from a previous employer. This document was solely signed by management side, and it was not a collective bargaining arrangement. The scope of the agreement was limited only to consultation on ‘contractual pay and overtime’. The minimum requirement for a collective agreement covered negotiations over pay, hours and holidays. No negotiations had taken place and it was significant to note that the CAC’s request made to the Employer for ‘minutes of meetings/evidence of a negotiated pay awards’ were not forthcoming.

iii. There was no existing collective bargaining agreement in place and as such paragraph 35 did not apply. Membership details could be supplied to the CAC on a confidential basis as evidence to show that there were 141 RMT members in the proposed bargaining unit. Those members had received representations over the years which involved RMT reps and officials in attendance at the Employer’s offices representing members at approximately 100 investigations, disciplinary and grievances.

6. The Hearing

27) In view of the conflicting information received from the GMB as to the status of the agreements, by letter dated 7 September 2022, the Case Manager informed the parties that to assist the Panel’s consideration of paragraph 35 it intended to hold a hearing 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 the GMB. 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. The GMB were also invited to attend in order to assist the Panel with any enquiries it may have during the hearing. In advance of the hearing the parties were invited to supply the Panel with, and to exchange, written submissions specifically addressing paragraph 35 of the Schedule. A virtual hearing was held on 5 October 2022 and the names of those who attended the hearing are listed in Appendix A to this decision.

28) According to paragraph 35, a union’s application to the CAC made under paragraph 11 (as in this instance) is not admissible if the CAC is satisfied that there is already a collective agreement in force under which a union is recognised for the purposes of collective bargaining on behalf of any workers falling within the bargaining unit proposed by the Union. A collective agreement is defined by section 178 of the Act as any agreement or arrangement made by or on behalf of a trade union and an employer relating to matters such as terms and conditions of employment and the machinery for negotiation. The relevant legislative provisions are listed in Appendix B.

7. Summary of the submissions made by the Union

29) The Union submitted that there was no collective agreement already in force under which the GMB were recognised to conduct collective bargaining on behalf of any workers falling within its proposed bargaining unit.

30) By way of background the Union explained that there were a number of TUPE transfers, as the contract had changed a number of times, from G4S to STM, and then from STM to CSS. It was the Union’s view that it was the right union for those workers in its proposed bargaining, as it covered “core railway work”, and the GMB did not. The Union believed that at the time of the last transfer, from which it was excluded, there was no formal consultation under TUPE. The Union further explained that it was recently involved in negotiations with the Employer to agree a collective bargaining agreement that allowed for negotiations covering hours, pay, holidays and other matters. A number of meetings were held, and e-mails exchanged, copies of which, the Union explained, were submitted to the CAC during an earlier round of correspondence, and following which the Employer’s suggested amendments were incorporated. The Union maintained that none of this would have taken place if there was an existing agreement with another union. The Union maintained that just before the agreement was signed progress was halted following the intervention of a third party, the client Northern Trains, during a re-tendering process, who asked that the talks were put on hold. Following the re-tendering process the Employer successfully gained the new contract, but the Employer was informed by Northern Trains not to sign off the agreement with the RMT. The Union asserted that this was the reason it was here today.

31) The Union referred to the 2020 agreement, signed only by the Employer. The Union submitted that that the document specifically and deliberately only covered collective bargaining over contractual pay/overtime and that it deliberately excluded any reference to hours or holidays. The Union said that pay was set by the client and advised to the Employer and, at best, the Employer may advise the Employer, but there were no negotiations. The Union submitted that it was therefore no more than consultation. The Union said that even on this sole topic of pay, there was no evidence or minutes of any negotiations. The Union further argued that the existence of this document would not bar its application as it did not provide for negotiations that covered the ‘core topics’ as defined in the Schedule, under collective bargaining.

32) The Union referred to Mr Smith’s statement of 27 June 2022 and stated that it believed his comments supported its claim. The Union re-iterated a point made in its earlier comments that the Employer had attempted to confuse the matter by asking that the views of a Mr Cleary be considered. The Union explained that two extremely brief emails were then provided, firstly stating that he “could not shed any light on the issue”. Another GMB official was subsequently invited to comment and appeared confused as to the group of workers it concerned. The Union believed that the e-mails presented “no case” under paragraph 35 of the Schedule.

33) The Union explained that it had been unofficially organising the workers in its proposed bargaining unit for many years and that there was no evidence to suggest there was a valid agreement in place. The Union believed that if this were the case, it would not have been allowed to sustain any [organisating - NC comment: I am not sure what is meant by this] as this would conflict with the TUC’s rules. Furthermore, the GMB would have complained to the TUC and the RMT’s activities would have halted.

34) The Union explained that it had represented its members within this bargaining unit on an individual basis including advocacy at disciplinary and grievance hearings. Countless representations had also taken place over the last three years. The Union believed that this would also be subject to a complaint if there had been a recognised union in place.

35) The Union stated that its 141 members who worked on the contract had seen no communications from the GMB that even suggested that consultation arrangements were in place and being adhered to. The Union further added that no minutes of meetings or evidence of negotiated pay awards were provided to the CAC.

36) The Union said that it had also noted that the Employer had recently attempted to set up an ECC that would not have been an issue had there been a collective bargaining agreement in place. The Union said that it was advised by the Employer that its intention to set up an ECC was the reason that it did not want to progress with proper recognition, and there was no mention of any agreement with the GMB.

37) The Union concluded by stating that its application was therefore admissible under paragraph 35 of the Schedule.

8. Summary of the submissions made by the Employer

38) The Employer explained that CSS was the provider of security and ancillary services to its clients across the UK. Following a successful tender process CSS was awarded the contract to provide Revenue Protection and associated duties on behalf of Northern Trains Limited (formerly Arriva Rail North) commencing June 2017. The RMT first made contact in respect of the proposed bargaining unit by letter dated 23 May 2017, in which it informed CSS that it already had a recognition agreement in place and it therefore expected to take part in the forthcoming TUPE consultations. Upon receipt of the ELI data in respect of transferring employees, the outgoing employer (STM) confirmed that a recognition agreement was in place with another union, the GMB. As this information conflicted with what had been claimed by the RMT, CSS checked the veracity to establish which union held an agreement and copies of the agreement with the GMB were seen. This agreement was live both prior to and at the point of transfer. On 30 May 2017 CSS received an e-mail from the RMT, in which it had changed its original position. In this email the RMT stated that it had actually been engaged in “…protracted communications with STM and the GMB union, about formal recognition….”, and it included a demand for a formal meeting once the contract had commenced. During meetings with the RMT at this time, it was vocal about its negative views on outsourcing companies and stated its aim was to force Arriva Rail North to move the provision in-house. The Employer said that in light of the RMT’s public hostility towards the business, given the existence of an agreement with the GMB, CSS declined the demand to engage with the RMT on the matter of recognition. Since June 2017, the point at which the contract commenced, CSS had enjoyed a positive relationship with the GMB during discussions on pay and other matters relating to the collective bargaining unit.

39) The Employer submitted that at the point of transfer, CSS had fully accepted the existence of the existing recognition agreement and used this as a reference point for discussions with the GMB Union. It was agreed between both parties that they would work within the spirit of the original agreement which STM signed up to and this continued for 3 years. The relationship had also already been established between the GMB and the Contract Operations Manager, who had transferred through TUPE to CSS having worked for approximately 16 years on the Arriva Rail North contract. In January 2020, again following a successful tender, CSS commenced a new contract with the same client for the provision of Security Officers. This prompted the RMT to submit a claim for recognition (TUR1/1160(2020) for a bargaining unit comprising “Travel Safe Officers and Team Leaders”. This included the job title of Security Officer whom are employed on the Arriva Rail North contract. In its response to the CAC, CSS had cited the existing agreement with the GMB (in connection with the Revenue contract) and claimed that the newly transferred employees should be considered part of the same bargaining unit. The Panel found in favour of the RMT, who had accepted the existence of the GMB recognition agreement for people employed to work on the Revenue contract as demonstrated by their rejection of Carlisle’s proposal to include Travel Safe Officers within the same bargaining unit. CSS had continued to have meaningful engagement with the GMB Union. The Employer maintained its position that the existing agreement with the GMB remained active and that it was therefore disappointed to see a response from Mr Smith outlining his belief that the agreement was null and void. The Employer stated that subsequent correspondence suggested that this response was submitted without any discussion or involvement of the local stakeholders such as Mr Cleary and it was likely to have come about through a discussion with senior members of the RMT.

40) Mr Smith subsequently involved Mr Cleary in the matter by email dated 1 August 2022. Ms Holt became involved with the discussion as part of the email thread which originated from Mr Smith. The Employer believed that this suggested that Mr Smith’s assertion of the agreement being null and void were made in the absence of any dialogue with his team at a local level. The Employer said that it was pleased that steps were taken to correct this omission and irrespective of any view from Mr Smith as to the continued validity of the agreement between Carlisle and the GMB, it remained clear this was a unilateral decision which ignored the facts.

41) The Employer said that it had provided of correspondence which confirmed the outcomes of pay reviews and other matters previously discussed with the GMB. In response to the Union’s claim that the lack of minutes from meetings was proof that meetings did not take place, the Employer argued was an interesting point as if it were to ask the RMT for similar evidence of meetings that CSS held with it as part of the collective bargaining machinery, there would be a similar lack of minutes. As with meetings with the RMT, CSS had never received any minutes in its many dealings as there was a tendency to confirm discussions and agreements via email, in the same way that CSS worked with the GMB.

42) The Employer further explained that due to continued pressure from the Union to enter into a recognition agreement, it sought an up-to-date agreement with the GMB in mid-2020 to confirm that CSS was party to the agreement. Following this request an updated agreement was provided by Mr Cleary in September 2020. The updated agreement was however updated differently to that which SCC subscribed at the point of transfer in 2017. The revised agreement was passed to the CEO of CSS for review and signature, but as pointed out by the Union, CSS remained the sole signatories. This was a result of omission in circulating the signed copy. The Employer said that while CSS had continued to work with the GMB in the spirit of the original recognition agreement it noted that the updated version did not speak directly of the full scope that included pay, hours and holidays. However in the time since the updated version was received, CSS had demonstrated engagement with the GMB on matters including pay, holidays and a restructure within the bargaining unit, and it would be happy to amend the agreement to reflect this now that it had been brought to its attention.

43) The Employer concluded, stating that it remained of the view that a voluntary recognition agreement had existed continuously between the CSS and the GMB since June 2017.

9. The comments of the GMB

44) When invited by the Panel to clarify its position Ms Holt explained that she had not had sight of Mr Smith’s e-mail and would follow this up. Ms Smith said that she had attended the hearing in good faith to talk about the paragraph 35 issue.

45) Mr Cleary continued, and explained that when Mr Smith had sent his e-mail of 27 June 2022 he had had no involvement in this. Mr Cleary said that every year he had met with the Employer to discuss wage negotiations, as it was part and parcel of the job. There were Reps on site and discussions took place. Mr Cleary confirmed that the GMB would not be giving up the recognition agreement with the Employer, and that he would speak to senior management to ascertain as to how and why this came about. Mr Cleary thanked the RMT for highlighting “the glitch” concerning with the 2020 document, which he would now look to rectify. Mr Cleary further explained that he had held disciplinaries with the workers both in the Employer’s offices and also via Teams during Covid, and that there was clearly an agreement in place. Mr Cleary said that after CSS had won the contract he had contacted the CEO and subsequently attended management meetings with regard to the restructure. Mr Cleary said that none of its members had ever complained.

10. Considerations

46) The Panel’s task under paragraph 35 is to decide whether there is already in force a collective agreement under which a union(s) is recognised as entitled to conduct collective bargaining on behalf of any of the workers falling within the Union’s proposed bargaining unit. The Panel, in reaching its decision, has taken account of all the evidence to date in this application along with the written and oral submissions at the hearing on 5 October 2022.

47) The Union’s contention as to the current status of the GMB agreement was centered around the comments of the General Secretary’s e-mail of 27 June 2022 in which he referred to the GMB’s agreement as “null and void”.  However, this was at odds with evidence submitted by the Employer as well as the GMB representative at local level.  The Panel found such conflicting evidence unhelpful in trying to establish whether or not paragraph 35 was triggered in this case.

48) The Panel is satisfied, on the information before it, that the Employer has a collective bargaining agreement with the GMB, namely the “Recognition and Collective Bargaining Agreement between STM Security Group (UK) Ltd & GMB”, dated 1 April 2014, which transferred to the Employer in 2017 under TUPE, under which it is recognised as entitled to conduct collective bargaining on behalf of the workers in the RMT’s proposed bargaining unit. The Employer has supplied compelling evidence of pay negotiations in operation under the agreement in the form of a number of e-mails between Mr Cleary and the Employer between 26 May 2017 and 26 July 2021, which also included discussions on other matters including a restructure. During the hearing Mr Cleary also spoke of his ongoing relationship with the Employer, which further supported the Employer’s position concerning the collective agreement that is in force.

49) The Panel will therefore reject the Union’s application by virtue of paragraph 35 of the Schedule.

50) The Panel would remind the parties that its role is not to determine which trade union is best suited to represent the workers in the proposed bargaining unit.  The forum for such disagreements lies elsewhere. Rather, its role is to adjudicate.

11. Decision

51) The Union’s application is inadmissible under the provisions of paragraph 35 of the Schedule. The application is therefore not accepted by the CAC.

Panel

Ms Naeema Choudry

Mr Ian Hanson

Mr Sean Mcllveen.

21 October 2022

12. Appendix A

Names of those who attended the hearing:

For the Union

John Tilley - Regional Organiser, RMT

Steve Shaw - National Executive member

Alan Pottage - National Organising Coordinator, RMT

Gary Corrigan - CSS Worker

For the Employer

Suzanne Hawkins - HR Director

Steven Cere - Managing Director (North)

Dominic Warren-Brown - Contract Operations Manager (Northern Trains Revenue Contract)

For the GMB

Giovanna Holt - GMB Northwest Senior Organiser

Bernie Cleary - GMB Organiser

13. APPENDIX B

THE RELEVANT STATUTORY PROVISIONS

In so far as is material, paragraph 35 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 provides:

(1) 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.

(2) But sub-paragraph (1) does not apply to an application under paragraph 11 or 12 if—

(a) the union (or unions) recognised under the collective agreement and the union (or unions) making the application under paragraph 11 or 12 are the same, and

(b) the matters in respect of which the union is (or unions are) entitled to conduct collective bargaining do not include pay, hours or holidays.

(4) In applying sub-paragraph (1) an agreement for recognition (the agreement in question) must be ignored if—

(a) the union does not have (or none of the unions has) a certificate under section 6 that it is independent,

(b) at some time there was an agreement (the old agreement) between the employer and the union under which the union (whether alone or with other unions) was recognised as entitled to conduct collective bargaining on behalf of a group of workers which was the same or substantially the same as the group covered by the agreement in question, and

(c) the old agreement ceased to have effect in the period of three years ending with the date of the agreement in question.

(5) It is for the CAC to decide whether one group of workers is the same or substantially the same as another, but in deciding the CAC may take account of the views of any person it believes has an interest in the matter.

(6) The relevant bargaining unit is—

(a) the proposed bargaining unit, where the application is under paragraph 11(2) or 12(2);

(b) the agreed bargaining unit, where the application is under paragraph 12(4).

The definition of collective agreement and of collective bargaining are to be found in section 178 of the Act:

(1) In this Act “collective agreement” means any agreement or arrangement made by or on behalf of one or more trade unions and one or more employers or employers’ associations and relating to one or more of the matters specified below; and “collective bargaining” means negotiations relating to or connected with one or more of those matters.

(2) The matters referred to above are:

(a) terms and conditions of employment, or the physical conditions in which any workers are required to work;

(b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;

(c) allocation of work or the duties of employment between workers or groups of workers;

(d) matters of discipline;

(e) a worker’s membership or non-membership of a trade union;

(f) facilities of officials of trade unions;

(g) machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers’ associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures.

(3) In this Act, “recognition”, in relation to a trade union, means the recognition of the union by an employer, or two or more associated employers, to any extent, for the purpose of collective bargaining; and “recognised” and other related expressions shall be construed accordingly.