Decision

Acceptance Decision

Updated 21 November 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1285/2022

8 September 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:

RMT

and

Isles of Scilly Shipping (Guernsey) Ltd

1. Introduction

1) RMT (the Union) submitted an application to the CAC dated 11 August 2022 that it should be recognised for collective bargaining purposes by Isles of Scilly Steamship Company Ltd (the Employer) for a bargaining unit comprising “Motorman, Bosun, Pursers and Able Seaman employed on board the vessel the Scillonian 111”. The location of the bargaining unit was given as on board the vessel the Scillonian 111. The application was received by the CAC on 11 August 2022 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 17 August 2022 which was copied to the Union. ^{[footnote 1]}

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 Sarah Havlin, Panel Chair, and, as Members, Mrs Susan Jordan and Ms Joanna Brown. The Case Manager appointed to support the Panel was Joanne Curtis.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 25 August 2022. The acceptance period was extended to 14 September 2022 to allow the parties to comment on the results of a membership check and for the Panel to consider these 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 to the CAC the Union stated that it had sent a request for recognition to the Employer on 19 July 2022 by letter and e mail. It stated that the Employer responded on 27 July 2022 refusing recognition. A copy of the initial request letter and the Employer’s response dated 27 July 2022 were attached to the 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, 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 over 21. The Union stated that there were 16 workers in the proposed bargaining unit, of whom 11 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 “members have joined specifically to achieve recognition for collective bargaining. We have 69% membership of the Bargaining Unit. We will provide membership lists to the CAC on a confidential basis if and when required”.

8) The Union stated that the reason for selecting the proposed bargaining unit was that it was a self-contained group of workers who had joined the RMT for collective bargaining purposes. It added that the workers were a distinct group within the Company with particular qualifications carrying out particular duties. 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) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application and supporting documents to the Employer on 11 August 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 written request for recognition on 22 July 2022. When asked what its response was, the Employer said that it had declined voluntary recognition and attached a copy of its response dated 27 July 2022.

11) The Employer said that it had received a copy of the application form from the Union on 11 August 2022. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union and that it did not agree the proposed bargaining unit. The Employer stated that it did not agree the number of workers within the proposed bargaining unit. Based upon the categories of workers set out in the Union’s application the Employer believed there to be 12 workers on Scillonian III which had a total summer crew of 35, reducing to 16 permanent crew at the end of the summer season. It added that numbers/names could be provided if requested. The Employer added that it also employed four (4) Able Seamen on one of its other ships and that the crew could be interchangeable between ships on occasions and when required. The Employer stated that it was not practical for Scillonian III workers to have their own bargaining unit as they worked interchangeably with crew on other vessels. The Employer went on to say that a previous “voluntary collective bargaining arrangement” with RMT for the crew of each of its vessels was terminated by the Employer on 10 March 2021. It stated that this was not contested by the Union during the three months notice period. A copy of the letter ending the “arrangement” dated 10 March 2021 was attached to the response. The Employer also referred to a covering letter it had attached to its response dated 17 August 2022. Within the letter the Employer raised a number of additional points on the appropriateness of the proposed bargaining unit and asked the Panel to consider these in addition to its formal response when making a decision. ^{[footnote 2]}

12) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas be requested to assist. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) The Employer said that it did not agree with the number of workers in the bargaining unit as defined in the Union’s application. The Employer said that it believed that there were 12 workers in the proposed bargaining unit and that it could not explain the difference.

14) When asked if it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer said that it did not know how many workers were members of the Union and therefore could not agree or disagree. When invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition the Employer said that since it did not agree the number of workers within the proposed bargaining unit it was not in a position to know whether those workers were likely to support recognition. The Employer added “we were unaware of any workers wishing for recognition prior to receiving the union’s CAC application”.

15) 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 said that it was not aware of any previous application under Schedule A1. When asked if it had received any other applications in respect of workers in the proposed bargaining unit the Employer stated “N/A”.

16) The Employer’s letter of 17 August 2022 together with its response was shared with the Union on 19 August 2022 and the Union invited to comment by Noon on 24 August 2022. The Union did not respond.

5. The membership and support check

17) 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 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, 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 24 August 2022 from the Case Manager to both parties.

18) The information requested was received by the CAC from the Employer on 25 August 2022 and from the Union on 30 August 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 12 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 11 names. According to the Case Manager’s report the number of members of the Union in the proposed bargaining unit was 10, a membership level of 83.33%.

20) A report of the result of the membership and support check was circulated to the Panel and the parties on 31 August 2022 and the parties were invited to comment on the results by Noon on 5 September 2022.

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

21) In an e mail to the Case Manager dated 5 September 2022 the Employer stated that as it did not know who the members within the proposed bargaining unit were, or whether they would be likely to favour recognition of collective bargaining it was unable to comment on Paragraph 36 of the Schedule.

22) In an email to the Case Manager dated 2 September 2022 the Union stated that it believed the membership check underlined the massive support for recognition as soon as possible.

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 above are satisfied. The Panel has considered carefully the submissions of both parties and all the evidence 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. The Panel is also satisfied, on the balance of probabilities, that the application was made in accordance with paragraph 11(2) of the Schedule. Paragraph 11(2) applies if

(a) before the end of the first period the employer fails to respond to the request, or

(b) before the end of the first period the employer informs the union … that the employer does not accept the request (without indicating a willingness to negotiate).

The first period is defined in paragraph 10(6) as “the period of 10 working days starting with the day after that on which the employer receives the request for recognition”. The Panel does not consider that the Employer’s response to the Union’s request, in its letter dated 27 July 2022, indicated a willingness to negotiate on the part of the Employer. The Panel therefore considers that paragraph 11 applies.

25) The Panel is also 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.

26) 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 union constitute at least 10% of the workers in the proposed bargaining unit. The membership check conducted by the Case Manager (described in paragraphs 17 - 20 above) showed that 83.33% 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 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)

28) 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. For the reasons given in paragraph 27 above the Panel has concluded that the level of union membership within the bargaining unit stands at 83.33%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union. The Employer has not submitted any contrary evidence nor has the Panel received any contrary evidence from any other source.

29) On the basis of the evidence before it, the Panel has 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

30) For the reasons given in paragraphs 23-29 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mrs Sarah Havlin, Panel Chair

Mrs Susan Jordan

Ms Joanna Brown

8 September 2022

1. In the covering letter sent in with its formal response the Employer stated that its correct identity was Isles of Scilly Shipping (Guernsey) Ltd and the Panel Chair directed that the CAC amend its records accordingly. Neither the Employer or the Union objected to this change. ↩

2. Questions as to the appropriateness of any bargaining unit are for the next stage of the statutory process. ↩