Decision

Recognition Decision

Updated 2 May 2019

Case Number: TUR1/1095/2019

30 April 2019

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

RMT

and

CWind

1. Introduction

1) RMT (the Union) submitted an application to the CAC dated 11 March 2019 that it should be recognised for collective bargaining by CWind (the Employer) in respect of a bargaining unit comprising “Skippers and Crew employed by CWind, based at Ramsgate port.” The application was received by the CAC on 13 March 2019. The CAC gave both parties notice of receipt of the application on 13 March 2019. The Employer submitted a response to the CAC dated 19 March 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 Mr Charles Wynn-Evans, Chairman of the Panel, and, as Members, Miss Mary Canavan and Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Kate Norgate.

3) By a decision dated 1 April 2019 the Panel accepted the Union’s application. In its response to the Union’s application the Employer agreed that the Union’s proposed bargaining unit was an appropriate bargaining unit.

2. Issues

4) Paragraph 22 of the Schedule provides that, if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies. Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled. The three qualifying conditions are:

(i) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(ii) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

(iii) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf.

Paragraph 22(5) provides that “membership evidence” for these purposes is:

(a) evidence about the circumstances in which union members became members, or

(b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

3. The Union’s claim to majority membership and submission it should be recognised without a ballot

5) In a letter dated 1 April 2019 the Union was asked by the CAC whether it claimed majority membership within the bargaining unit and, if so, whether it submitted that it should be granted recognition without a ballot. The Union, in an e-mail dated 1 April 2019, stated that it did claim to have majority membership within the bargaining unit and therefore submitted that it was seeking recognition without a ballot.

Summary of the Employer’s response to the Union’s claim and submission it should be recognised without a ballot

6) On 2 April 2019 the CAC copied the Union’s e-mail of 1 April 2019 to the Employer and invited the Employer to make submissions in relation to the Union’s claim that it had majority membership within the bargaining unit and the three qualifying conditions specified in paragraph 22(4) of the Schedule.

7) As the Employer had not responded to the CAC by the stated deadline, the Case Manager contacted the Employer by telephone on 10 April 2019. The Employer informed the Case Manager that they had “just returned from leave” and that they would submit a response later that day. The Employer subsequently responded by e-mail on 10 April 2019 stating that “We have no submissions to make on the Kentish Thanet Flats CWind bargaining unit.”

8) On 11 April 2019 the CAC copied the Employer’s e-mail of 10 April 2019 to the Union. At the request of the Panel Chair the Case Manager also wrote to the Employer informing that, as the Panel were aware that the Employer had been on leave for the duration of the period in which to respond to the CAC’s letter of April 2019, the Panel had granted the Employer an extension until the close of business on 16 April 2019. This was in order to allow the Employer to make any submissions it wished to make specifically in relation to the points set out in the CAC’s letter of 2 April 2019. In its response dated 16 April 2019 the Employer stated that it had “taken on good faith” the Union’s claim that a majority of the workers were members of the Union. However, the Employer maintained that, as the Union did not use the Check-Off system, it had no quantifiable evidence of this. It was also the Employer’s view that a dispute which had prompted some of the workers to seek recognition had been settled amicably and the Employer was therefore unsure as to whether there was an “appetite to change to a collective bargaining model”. Finally, the Employer submitted that it was satisfied to leave “the issue of a ballot” to the CAC.

4. Considerations

9) The Act requires the Panel to consider whether it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Union, it must declare the Union to be recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit unless it decides that any of the three qualifying conditions set out in paragraph 22(4) is fulfilled. If the Panel considers that any of those specific conditions is fulfilled it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

10) In this case, the Union had stated that of the 16 workers in the proposed bargaining unit 15 were members of the Union. The Employer did not seek to challenge the Union’s position that the majority of the workers in the bargaining unit were members of the Union. The Panel is satisfied that, in the absence of evidence to the contrary, a majority of the workers in the bargaining unit are members of the Union.

11) The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision as to whether any of the qualifying conditions laid down in paragraph 22(4) of the Schedule is fulfilled.

12) The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Panel has considered the submissions put forward by the Employer and has concluded that it is not satisfied that a ballot should be held in the interests of good industrial relations. The Panel notes the Employer’s view that workers were satisfied with its current “employee relations model” and that the Employer was therefore unsure as to whether there was an “appetite to change to a collective bargaining model”. However, no cogent evidence has been put before the Panel to show how industrial relations would be detrimentally affected if it were to award recognition without holding a ballot. The Panel has therefore concluded that this condition has not been satisfied.

13) The second condition is that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union to conduct collective bargaining on their behalf. No such evidence has been produced and the Panel has therefore concluded that this condition has not been satisfied.

14) The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the Union to conduct collective bargaining on their behalf. No such evidence has been produced and the Panel has therefore concluded that this condition has not been satisfied.

5. Declaration of recognition

15) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that a majority of the workers constituting the bargaining unit are members of the Union. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule is met. Pursuant to paragraph 22(2) of the Schedule, the CAC must therefore issue a declaration that the Union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising “Skippers and Crew employed by CWind, based at Ramsgate port”.

Panel

Mr Charles Wynn-Evans, Panel Chair

Miss Mary Canavan

Mr Paul Noon OBE

30 April 2019