Decision

Acceptance Decision

Updated 5 November 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1429(2024)

5 November 2024

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

East Coast Trains Ltd T/A Lumo

1. Introduction

1)         RMT (the Union) submitted an application to the CAC on 2 October 2024 that it should be recognised for collective bargaining by East Coast Trains Ltd T/A Lumo (the Employer) for a bargaining unit comprising the “Customer Experience Ambassadors “ based at 4th Floor, Central Square South, Orchard Street, Newcastle, NE1 3PG .  The CAC gave both parties notice of receipt of the application on 2 October 2024.  The Employer submitted a response to the CAC dated 9 October 2024 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 Chair established a Panel to deal with the case.  The Panel consisted of Mrs Lisa Gettins, Panel Chair, and, as Members, Mr Alistair Paton and Mr Matt Smith OBE.  The Case Manager appointed to support the Panel was Kaniza Bibi.

3)         The Panel has extended the acceptance period in this case. The initial period expired on 16 October 2024.  The acceptance period was extended to 6 November 2024 to allow time to conduct a membership check and for the parties to comment on the results before the Panel arrived 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)         In its application to the CAC the Union stated that it made its formal request for recognition on 30 September 2024, by way of an email requesting that the Employer recognise the Union to conduct collective bargaining. The Employer in its response letter, received by the Union on 30 September 2024 rejected the Union’s request for voluntary recognition.

6)         When asked whether the Union had made any previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Union answered “Previous application was made 24 May 2024 and withdrawn due to not being processed correctly . New A1 application made on the 20 September 2024 . Employer responded on the 30th of September, recognising that a number of their employees were members of the RMT but would only engage on an informal basis”. 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 52. The Union confirmed that there were 52 workers in the proposed bargaining unit, of whom 24 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 stated, “We have conducted an electronic referendum, 19 members responded positively NONE negative (We can supply copies of these responses)”.

8)         The Union stated that the reason for selecting the proposed bargaining unit was that “At members Request”. The Union said that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the proposed bargaining unit the Union answered “No”.

9)         Finally, the Union confirmed that it held a current certificate of independence and it confirmed that it had copied the application and supporting documents to the Employer on 20 September 2024.  

4. Summary of the Employer’s application

10)       In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 20 September 2024. The Employer stated it responded to the Union by way of a letter dated 30 September 2024, confirming “ That we do not accept RMT’s request for recognition but that we are happy to continue to engage with them on an informal basis. Our position was and remains that we are willing to negotiate during the second period (20 working days, starting with the day after the end of the first period). We would therefore respectfully request that the CAC reject the application to enable the appropriate negotiation to take place. On 9 October 2024, we have written again to RMT to reconfirm this and have invited the Union to withdraw this application to enable negotiations to take place”.

11)       The Employer said that it had not received a copy of the application form from the Union ^{[footnote 1]}. The Employer stated that it had not agreed the bargaining unit with the Union. When asked if it agreed the bargaining unit as set out by the Union in its application the Employer answered “No”.

12)       The Employer confirmed that following receipt of the Union’s request, it had not proposed that Acas should be requested to assist. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit. The Employer also stated that it employed a total of 113 workers and that it agreed with the number of workers in the bargaining unit as defined in the Union’s application .

13)       Asked whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated, “We do not agree nor disagree with the Union’s estimate of membership in the proposed bargaining unit. We do not have access to Union membership details. If the Application is accepted, we consider that there should be a full membership and support check.”

14)       When asked if the employer did not consider that a majority of the workers in the Bargaining Unit were likely to support recognition and to indicate its reasons of taking this view with any available evidence, the Employer stated “RMT’s application is a repeat of their earlier request made in June 2024 in respect of which we held an internal ballot of colleagues in our Customer Experience Ambassador role. There was not a clear majority in favour of recognition, and we consider insufficient time has elapsed to change this position. An independent online ballot was undertaken by Choice Voting (Alecta Limited) of all colleagues in the affected grade to ask if they wanted Union representation. Of the 51 colleagues in post and balloted at the time, only 21 voted in favour of wanting formal Union recognition”.

15)       Finally, when asked on whether it had received any other applications under the Schedule for recognition in respect of any of the workers in the proposed bargaining unit the Employer confirmed “RMT made a previous application on 24 May 2024 which was inadmissible for want of a valid written request under Schedule A1 for recognition. RMT revoked this application on 14 June 2024”.

5. The membership and support check

16)       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 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 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 the workers in the bargaining unit which had been proposed by the Union in its application form, and that the Union would supply to the Case Manager a list of its paid-up members within that unit including their full names, dates of birth and job titles (where available). 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 dated 23 October 2024 from the Case Manager to both parties.

17)       The information requested was received by the CAC from the Union on 24 October 2024 and from the Employer on 25 October 2024. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

18)       The list supplied by the Employer indicated that there were 48 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 24 names. According to the Case Manager’s report the number of members in the proposed bargaining unit was 23, a membership level of 47.92%.

19)       The petition supplied by the Union contained 19 names and signatures. The report showed that 37.50% of workers in the proposed bargaining unit had signed the petition in favour of recognition. The proportion of workers in the proposed bargaining unit who had signed the petition and were non-members was 0.00%. The petition was sent to the CAC case manager in the format of an excel spreadsheet. The petition was set out as follows:

“Dear colleague - We recently applied for voluntary recognition with your employer East Coast Trains trading as Lumo, this would have enabled us to negotiate your pay and conditions, it would also enable us to organise within your workplace to provide H&S and workplace representation for all your issues.

Unlike most other Passenger Train Operating companies for which we have recognition, Lumo have rejected this voluntary request.

As most employees on site are RMT members, so we find this rejection unfair and are going to challenge this rejection through the Government Central Arbitration Committee.

This is quite a difficult process and part of it is we must prove to the committee that you as the majority employee’s wish the RMT to represent you in the workplace.

To provide proof of this to the committee, please can you e-mail me back with the following statement. I SUPPORT RMT recognition for the collective bargaining unit within Lumo”.

20)       A report of the result of the membership check was circulated to the Panel and the parties on 25 October 2024 and the parties’ comments invited.

6. Summary of the parties’ comments following the membership check

21)       In an email to the Case Manager dated 28 October 2024 the Union stated, “I can confirm all details are correct and I’m happy with the process to continue”.

22)       The Employer did not submit any comments on the results of the membership report by the deadline imposed.

7. Considerations

23)       In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 of this decision are satisfied.  The Panel has considered all the evidence submitted by the parties in reaching its decision. 

24)       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.  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.

Paragraph 36(1)(a)

25)       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 membership check conducted by the Case Manager (described in paragraphs 18 above) showed that 47.92% of the workers in the proposed bargaining unit were members of the Union.  As stated in paragraph 17 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.

Paragraph 36(1)(b)

26)       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 proposed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

27)       The Panel notes from the membership check that a majority of the workers in the proposed bargaining unit (47.92%) are members of the Union.  In the absence of clear and cogent evidence to the contrary, the Panel is entitled to assume that members of the Union would be likely to favour recognition of the Union to conduct collective bargaining with the Employer on their behalf.  On the evidence before it, the Panel has decided that 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 and accordingly, this test is also met.

8. Decision

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

Panel

Mrs Lisa Gettins, Panel Chair

Mr Alistair Paton

Mr Matt Smith OBE

5 November 2024

---

1. The Union sent an email to the CAC dated 23 October 2024; This email showed that the Union had sent a copy of its application to the Employer on 23 October 2024 at 9:56am. ↩