Decision

Acceptance Decision

Updated 4 April 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1288(2022)

21 October 2022

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

First Transpennine Express (Transpennine Express)

1. Introduction

1) National Union of Rail, Maritime and Transport Workers (the Union) submitted an application to the CAC on 15 September 2022 that it should be recognised for collective bargaining by First Transpennine Express (Transpennine Express) (the Employer) for a bargaining unit comprising the “TPE control grades consisting of Train Service Controller, Service Delivery Controllers, Customer Experience Managers, and Customer Information Controllers. All of whom sit under the Duty Control Manager”. The location of the bargaining unit was given as “TPE Control in the Network Rail Regional Operating Centre at Ashbury’s, Manchester”. The CAC gave both parties notice of receipt of the application on 15 September 2022. The Employer submitted a response to the CAC on 20 September 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 Chair established a Panel to deal with the case. The Panel consisted of Mr Tariq Sadiq, Panel Chair, and, as Members, Mr Sean McIlveen and Ms Stephanie Marston. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 30 September 2022. The acceptance period was extended to 28 October 2022 in order to allow time for a membership and support check to take place, for the parties to comment on the subsequent report, and for the Panel to consider those 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) In its application the Union stated that “This application follows discussions with the company on 25 July and 5 August 2022. We sent by email a letter to TPE on the 31 August requesting under Schedule A1 voluntary recognition for collective bargaining. To date we had no response”. A copy of the Union’s letter of 31 August 2022 was attached to the application.

6) According to the Union, there was a total of 1435 workers employed by the Employer with 30 of these falling within the proposed bargaining unit. The Union stated that it had four (4) members within the proposed bargaining unit. 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 this group of workers formed a distinct group with specific terms and conditions. These workers wished to join the Union to benefit from collective bargaining rights.

7) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that “Control grades staff wish to be covered by a Collective Bargaining Agreement (CBA) like their colleagues in Network Rails and Northern Trains whom they work alongside, in the same building.” The Union confirmed that the bargaining unit had not been agreed with the Employer.

8) The Union confirmed that it held a current certificate of independence and it also confirmed that the Employer, following receipt of the request for recognition, had not proposed that Acas be asked to assist. The Union stated in its application that it had copied its application and supporting documents to the Employer on 31 August 2022. The Union also confirmed that it had emailed the application to the Employer on 15 September 2022. A copy of the Employer’s email of 15 September 2022 was sent to the CAC.

9) Finally, the Union said there had not been a previous application in respect of this or a similar bargaining unit and there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

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 written request for recognition on 31 August 2022. The Employer stated it did not respond to the request.

11) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated it had received the application via email from the CAC on 15th September 2022. The Employer later confirmed that it had received the application from the Union also on 15 September 2022. The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form. When asked if the Employer disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated no as “The proposed bargaining unit contains employees who report into two separate reporting structure within the organisation. Duty Customer Experience Managers and Customer Information controllers report into our Customer Operations & Information team … and Service Delivery Controllers report into the Service Delivery team …”

12) The Employer confirmed that the number of workers it employed was 1589 as of 20 September 2022. In answer to the question if the Employer agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application, the Employer stated it agreed the number claimed. When asked to state the number of workers in the Union’s proposed bargaining unit and the reason for any difference, the Employer stated, “We have 18 Service Delivery Controllers reporting into Service Delivery Team, 6 Customer Experience Managers and 6 Customer Information Controllers reporting into Customer Operations & Information team.”

13) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the proposed bargaining unit. When asked whether, following receipt of the Union’s request, the Employer had proposed that Acas be requested to assist, the Employer answered “No”.

14) When asked if the Employer disagreed with the Union’s estimate of membership in the proposed bargaining unit, and its reasons for disagreeing, the Employer stated “We are aware of 1 RMT member within Control, we are not aware of 4. We would also question how valid the petition is as the petition we have seen isn’t dated and is unclear over the recognition question being asked.”

15) When asked if the Employer considered that a majority of the workers in the bargaining unit are likely to support recognition, the Employer replied “Transpennine Express do not believe that the majority of workers in the bargaining unit are likely to support recognition by the RMT.”

16) 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 that the Union did make a voluntary and statutory request for recognition for its revenue protection team, which had not been accepted by CAC.

5. The membership and support check

17) To assist in 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 Unions (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 and of a petition compiled by the Union. 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 their paid up members within that unit (including their dates of birth) and a copy of a petition signed by workers in favour of recognition. 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 28 September 2022 from the Case Manager to both parties.

18) The information from the Employer was received by the CAC on 28 September 2022, and from the Union on 3 October 2022. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

19) The list supplied by the Employer indicated that there were 28 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 4 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 3, a membership level of 10.71%.

20) The petition supplied by the Union contained 27 names and signatures. The report showed that 78.57% of workers in the proposed bargaining unit (22 out of 28 workers) 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 67.86%. The petition consisted of 2 A4 sheets, which were set out as follows:

“We the undersigned wish to be covered by Collective Bargaining Arrangements applicable to non-management staff, and be represented by our Trade Union of Choice RMT”

Print……. Sign…….

21) A report of the result of the membership and support check was circulated to the Panel and the parties on 4 October 2022 and the parties were invited to comment on the results of that check by 10 October 2022.

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

22) In an e-mail to the CAC, dated 11 October 2022, the Union pointed out that it agreed with the three grade titles as listed by the Employer. The Union confirmed that one of its 4 members was in a different bargaining unit. The Union noted that the membership check showed that its application was compliant with the ten percent threshold, and that the petition was also more than compliant.

23) In a letter to the CAC dated 7 October 2022 the Employer confirmed there was a dispute in respect of numbers in the bargaining unit. The Union had stated there were 30 employees within its proposed bargaining unit. The Employer had provided the CAC with its employee information on 28 September 2022, and this had confirmed it could account for 28 employees within the proposed bargaining unit. The Employer claimed that since providing that data, one employee on the list provided was due to leave employment and a second had recently been promoted to Trainee Train Driver. As such, these 2 employees would no longer be included within the proposed bargaining unit. The Employer further explained that the CAC’s report confirmed that the Union had 3 members common to both the Union’s and the Employer’s list. The Employer also stated that whilst the bargaining unit had reduced to 26, if the 3 members did not include the two individuals referred to above, the Union appeared to have (marginally) fulfilled this threshold. The Employer also stated that it had more significant concerns as the Union had supplied a petition with 27 signatures to demonstrate that a majority of the proposed bargaining unit would be likely to favour recognition. The Employer raised the following issues with the petition and requested that the CAC afforded little weight to it in respect of satisfying Paragraph 36:

• “It does not appear from the information provided by the CAC that the petition has a date on it. Consequently, there is no way of the employer knowing when the signatures were obtained. This is a cause of concern. If it is the same petition that was provided to Transpennine at the commencement of this process, then the petition is ‘stale’ and is not a reliable indicator of support (see below).”

• “The petition states the employees wish to be covered by “Collective Bargaining Arrangements”, however this includes no further information on what such arrangements are. This is extremely vague, and it is questionable whether the employees would have known what they were signing the petition for, noting that Collective Bargaining is a technical legal term.”

• “The information provided in the CAC’s report confirms that the names/signatures common to the petition and our employer information is 22. There are 5 employees on the list that the employer is therefore unable to account for.”

• “The petition states the individuals wish to be covered by “Collective Bargaining Arrangements applicable to non-management staff” (emphasis added). These non-management staff arrangements are significantly wider than the arrangements that can be awarded by the CAC under the statutory process and as such, this is extremely misleading. The employees who signed this petition are unlikely to be aware of the more limited recognition the Union may be entitled to under the statutory process if they were to obtain recognition. They may not have signed the petition if they understood this.”

24) The Employer confirmed it was previously provided with a similar petition from the Union which included 27 signatures and the same heading on 13 June 2022. The Employer stated “Whilst we are unable to confirm that the petitions are the same, this appears likely in light of the fact that the number of signatures and the headings are identical. That petition contained the names of at least three employees who are outside the bargaining unit, one of which was promoted outside the bargaining unit in November 2008, suggesting that the petition could have been obtained years ago. We can supply the name of this person, under confidential cover, upon the request of the CAC.” The Employer explained in light of the above, the Union has clearly not satisfied the test under paragraph 36(1)(b) and the application was inadmissible.

7. Considerations

25) 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.

26) 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 of the Schedule. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

Paragraph 36(1)(a)

27) Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the Unions constitute at least 10% of the workers in the proposed bargaining unit.

28) The membership check conducted by the Case Manager (described in paragraphs 17 – 21 above) showed that 10.71% of the workers in the proposed bargaining unit were members of the Unions. As stated in paragraph 18 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached 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)

29) 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.

30) For the reasons given in paragraph 19 above the Panel has concluded that the level of union membership within the bargaining unit stands at 10.71%. 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 proposed bargaining unit as to whether they would be likely to favour recognition of the Unions. No such evidence to the contrary was received in this case. The Panel also notes that the support check conducted by the Case Manager showed that 78.57% of workers in the proposed bargaining unit (22 out of 28 workers) had signed a petition in favour of recognition (see paragraph 20 above). Of those who had signed the petition 3 were Union members (10.71% of the proposed bargaining unit) and 19 were non-members (67.86% of the proposed bargaining unit).

31) The Panel considers that members of the Union would be likely to favour recognition of the Union for collective bargaining (10.71%), as would non-union members who signed the petition (67.86%); giving a total of 78.57%. The Panel notes that the Employer submission set out concerns in regard to the petition supplied by the Union. However, the Panel is not persuaded that the petition should be disregarded for the reasons argued by the Employer. No evidence has been put forward to show that the signatories have changed their views on recognition of the Union for collective bargaining and whilst the proposition on the petition could have been clearer, we are nonetheless satisfied that the signatories understood what it was that they were being asked to support when they added their signatures. The Panel can only act on the evidence presented and on the basis of the evidence in this case, we have therefore 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.

8. Decision

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

Panel

Mr Tariq Sadiq, Panel Chair

Mr Sean McIlveen

Ms Stephanie Marston

21 October 2022