Decision

Acceptance Decision

Updated 14 November 2019

Case Number: TUR1/1127(2019)

20 August 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:

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

and

CWind Ltd

1. Introduction

1) The National Union of Rail, Maritime and Transport Workers (RMT) (the Union) submitted an application to the CAC on 26 July 2019 that it should be recognised for collective bargaining by CWind Ltd (the Employer) for a bargaining unit comprising “Skippers and Transfer Supervisors employed by CWind Ltd at Robin Rigg Workington”. The CAC gave both parties notice of receipt of the application on 26 July 2019. The Employer submitted a response to the CAC dated 5 August 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 Professor Kenny Miller, Chairman of the Panel, and, as Members, Mrs Maureen Shaw and Mr Matt Smith OBE. The Case Manager appointed to support the Panel was Nigel Cookson.

2. Issues

3) 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. The Union’s application

4) In its application the Union said that it had written to the Employer with a formal request for recognition on 11 July 2019 which was sent by recorded delivery and there was no response from the Employer as of 26 July 2019. A copy of the Union’s letter was enclosed with the application.

5) According to the Union, there was a total of 74 workers employed by the Employer with 6 of these falling within the proposed bargaining unit. The Union stated that it had 5 members within the proposed bargaining unit. 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 said that confidential information of paid up members of the Union would be provided upon request.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that “Employees solely work at location”. The Union confirmed that the bargaining unit had not been agreed with the Employer.

7) The Union confirmed that it was in possession of a certificate of independence and it also confirmed that, following receipt of the Union’s request for recognition, the Employer had not proposed that Acas be requested to assist.

8) The Union said there had not been a previous application in respect of this or a similar bargaining unit but added that the CAC had declared the Union recognised by the Employer for the bargaining unit of Ramsgate on 30 April 2019. Finally, the Union confirmed that there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

4. The Employer’s response to the Union’s application

9) The Employer stated that it had received the Union’s formal request for recognition on 11 July 2019 and, when asked what its response was, the Employer stated “None”.

10) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated this was 26 July 2019. The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form and that this remained the case explaining that there were only six workers in the proposed bargaining unit with the Employer employing a total of 84 workers and the Global Marine Group employing 297 workers in the UK. All of its employee policies, pay reviews, benefits etc were set centrally at a Group Level. It made no economic or logical sense for there to be a separate bargaining unit for this tiny fraction of workers, particularly in view of the Employer’s excellent record of employee relations, pay and benefits.

11) The Employer agreed with the Union’s figure as to the number of workers in the bargaining unit. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer stated that it had not seen evidence of the membership claimed. It was aware that some workers were members of Nautilus International but had seen no evidence to suggest workers had changed membership. When asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, the Employer referred to its answer to the previous question as to Union membership.

12) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the agreed bargaining unit. When asked whether, following receipt of the Union’s request, the Employer had proposed that Acas be requested to assist, the Employer stated that it had been contacted by Acas and it had explained its view on the appropriateness of the proposed bargaining unit but would be happy to work with Acas.

13) Finally, 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 answered “Not for this bargaining unit. CAC granted recognition at a different location, Ramsgate for a similarly tiny group”.

5. The membership check

14) 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 and that agreement was confirmed in a letter from the Case Manager to both parties dated 8 August 2019. The information requested from the Union was received by the CAC on 8 August 2019 and from the Employer on 12 August 2019.

15) The list supplied by the Employer contained the names of 6 workers and the list of members supplied by the Union contained 5 names.

16) According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 5, a membership level of 83.33%. A report of the result of the membership check was circulated to the Panel and the parties on 12 August 2019 and the parties’ comments invited. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

6. Parties’ comments on the membership check

17) No comments were received from either party.

7. Considerations

18) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

19) 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 and that it was made in accordance with paragraph 11(2) of the Schedule in that before the end of the first period of 10 working-days following the Employer’s receipt of the request for recognition, the Employer failed to respond to the request. 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)

20) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit. In this case the comparison undertaken by the Case Manager as outlined above established a membership density of 83.33%. It is clear therefore to the Panel that members of the Union constitute at least 10% of the workers in the bargaining unit.

9. Paragraph 36(1)(b)

21) The test in paragraph 36(1)(b) is whether a majority of the workers constituting the agreed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit. Here the Union solely relies upon its membership as evidence that this test is satisfied. In the absence of any evidence to the contrary, the Panel is of the view that the level of Union membership within the proposed bargaining unit does provide a legitimate indicator as to the degree of likely support for recognition of the Union for collective bargaining. It must be remembered that at this stage of the statutory process the test is of hypothetical support and that the Panel must arrive at a decision on the evidence placed before it.

23) For the reasons given, the Panel is satisfied that, on balance, a majority of the workers in the bargaining unit would be likely to support recognition of the Union and the test set out in paragraph 36(1)(b) is therefore met.

10. Decision

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

Panel

Professor Kenny Miller, Chairman of the Panel

Mrs Maureen Shaw

Mr Matt Smith OBE

20 August 2019