Decision

Acceptance Decision

Updated 13 May 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1401(2024)

13 May 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:

The Rail Maritime and Transport Union

and

Medway Rail Doncaster

1. Introduction

1)         The Rail Maritime and Transport Union (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 17 April 2024 that it should be recognised for collective bargaining purposes by Medway Rail Doncaster (the Employer) in respect of a bargaining unit comprising “Reach Stacker Drivers, Shunters, Logistics Coordinators.” The location of the bargaining unit was given as “Medway Rail Terminal, Railport Way, Rossington, Doncaster DN11 0BQ.”  The application was received by the CAC on 17 April 2024 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 24 April 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 Chairman established a Panel to deal with the case. The Panel consisted of Mr Stuart Robertson, Panel Chair, and, as Members, Mr Alastair Kelly and Mr Paul Morley. 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 1 May 2024. The acceptance period was extended to 31 May 2024 to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the 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 voluntary request to the Employer via e mail (with a hard copy in the post) on 25 March 2024. The request sought recognition for workers in the following bargaining unit: “Medway Rail for the following grades of staff, Backroom staff, Gatehouse staff, Shunters, Reach stacker operators and Tug drivers”. The Union said that an e mail declining the request was received on 9 April 2024 stating “we do not feel that a union recognition agreement at this site would prove beneficial for either the Company or for the employees. We are confident in our management of this site and the employees, including any and all matters that would be covered under a union agreement.” A copy of the Union’s letter of 25 March 2024 and the Employer’s response was 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 26, that there were 26 workers in the proposed bargaining unit and that the number of Union members in the proposed bargaining unit was 18. The Union contended that the majority of workers in the proposed bargaining unit were likely to support recognition for collective bargaining as the Union had conducted an electronic survey of “all the members” and “they have all responded in favour of RMT gaining recognition rights within the workplace.” The Union went on to say that some members had been concerned that onsite management were going round the terminal asking the workers who the “ring leader” was in terms of recruiting membership to the Union. The Union said that it could provide statements to support this.

8)         The Union stated that the reason for selecting its proposed bargaining unit was that it was “the model of grades we currently represent in comparable Rail Freight Companies where we have recognition already.” In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit.

9)         The Union confirmed that it held a current certificate of independence. The Union said it had copied its application and supporting documents to the Employer on 11 April 2024.

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 formal written request for recognition on 25 March 2024 and had responded declining to accept voluntary recognition. The Employer confirmed that it had received a copy of the Union’s application to the CAC from the Union and said that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union. In answer to the question whether it agreed the proposed bargaining unit the Employer said “No” and explained that “We do not believe that the Logistics Coordinators should be within the bargaining unit. They have a different management structure, pay structure and are office-based rather than yard-based roles.”

11)       The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist the parties. The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application. The Employer explained that “(the) RMT proposed 26 in the bargaining unit. However, their proposed bargaining unit has 23 employees, this consists of: 4 Shunters, 1 Tug Driver, 13 Reach Stacker Drivers and 5 Logistics Coordinators (Disputed). There are also 4 office employees not within the roles specified above.”

12)       In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated “We cannot comment on membership estimate, other than that we do not feel that the Logistics Coordinators are within the bargaining unit and therefore, their membership numbers should be discounted.” 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, “If the RMT have conducted an electronic survey and the result suggest majority support, we cannot provide evidence to discount this.”

13)       The Employer replied “N/A” 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 and when asked if it had received any other applications in respect of workers in the proposed bargaining unit. The Employer stated that it consented to its contact details being provided to Acas.

5. The Union’s comments on the Employer’s response

14)       In a letter dated 25 April 2024 the Union was invited to comment on the Employer’s response. The Union responded by way of an e mail dated 25 April 2024 stating that it had no further comments to make.

6. The membership and support check

15)       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, dates of birth and job roles (where available). It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 25 April 2024 from the Case Manager to both parties.

16)       The information requested by the CAC was received from the Union on 25 April 2024 and from the Employer on 1 May 2024. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

17)       The list supplied by the Employer indicated that there were 23 workers in the Union’s proposed bargaining unit.

18)       The list of members supplied by the Union contained 18 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 18, a membership level of 78.26%.

19)       The CAC sent a report of the result of the membership and support check to the Panel and the parties on 1 May 2024 and the parties were invited to comment on the results of that check by noon on 8 May 2024. The Employer responded on 7 May 2024 stating it had no comments to make. The Union did not respond.

7. The proposed bargaining unit

20)       In an e mail dated 9 May 2024 the Union confirmed that the bargaining unit for which it was seeking recognition was that outlined in its application to the CAC and not as worded in its request for voluntary recognition. The Employer in an e mail also dated 9 May 2024 said “the voluntary request sent to us covered all roles at the site, and split Logistics Coordinators from Backroom Staff, therefore indicating that the entirety of the staff at Medway Rail were in the requested bargaining unit. However, the statutory request^{[footnote 1]} omitted the following roles:

• Backroom Staff
• Tug Drivers

Therefore, I would consider this to be a substantial difference in the bargaining unit initially proposed in the voluntary request for recognition.” The Employer further explained “Logistics Coordinators are based in the Gatehouse; therefore, I would be happy to confirm these are the same role. Reach Stacker Operators and Reach Stacker Drivers are the same role. Tug Drivers are not Shunters, this is an entirely different role. I am not aware of which roles the RMT were referring to under “Backroom Staff”. As this was included in addition to the “Gatehouse Staff” in the initial voluntary request, I would assume this would be other office-based roles, such as the Finance Manager, Operations Supervisor, Business Support Assistant.”

8. Considerations

21)       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 the submissions of both parties and all the evidence in reaching its decision.

22)       Paragraph 11(2) of the Schedule provides that the union may apply to the CAC to decide “(a) whether the proposed bargaining unit is appropriate”.

23)       Paragraph 1 of the Schedule sets out the first step to be taken by a union seeking statutory recognition. It provides:

1) A trade union (or trade unions) seeking recognition to be entitled to conduct collective bargaining on behalf of a group or groups of workers may make a request in accordance with this Part of this Schedule.

24)       Paragraph 2 of the Schedule then defines the proposed bargaining unit:

2) - (1) This paragraph applies for the purposes of this Part of this Schedule.

(2) References to the bargaining unit are to the group of workers concerned (or the groups taken together).

(3) References to the proposed bargaining unit are to the bargaining unit proposed in the request for recognition (emphasis added).

25)       This means that the proposed bargaining unit in the application to the CAC under paragraph 11(2) of the Schedule must be the same as in the request made under paragraph 1. 

26)   In this case, on 25 March 2024 the Union made a formal request for recognition to the Employer (under paragraph 1 of the Schedule) in the following terms:

“We are formally writing to you under the terms of schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 seeking recognition for workers in the following bargaining unit: “Medway Rail for the following grades of staff: Backroom staff, Gatehouse staff, Shunters, Reach stacker operators and Tug drivers.””

27)       On 17 April 2024 the Union in its application to the CAC sought recognition in respect of a bargaining unit comprising “Reach Stacker Drivers, Shunters, Logistics Coordinators.”

28)       This is, on the face of it, a different bargaining unit from that set out in the Union’s request for recognition dated 25 March 2024. The Panel is prepared to accept, based on the Employer’s email dated 9 May 2024 referred to at paragraph 20 of this decision, that “Reach Stacker Operators” and “Reach Stacker Drivers” and “Gatehouse Staff” and “Logistics Coordinators” are one and the same. But this bargaining unit omits “Backroom Staff” and “Tug Drivers”.

29)       The Panel finds, therefore, that the Union’s application to the CAC under paragraph 11(2) was not made in respect of the proposed bargaining unit as defined in paragraph 2(3) of the Schedule, in that it was not made for the bargaining unit specified in the request under paragraph 1. The application was not validly made under paragraph 11.

9. Decision

30)       The Panel therefore decides that the Union’s application in this case does not satisfy the admissibility criterion that it is made in accordance with paragraph 11, in that it was not made in respect of the same proposed bargaining unit as set out in the request for recognition. For this reason that the application is not accepted by the CAC.

31)       Having reached the decision that the application has not been made in accordance with paragraph 11, the Panel has not considered the other admissibility tests set out in paragraph 4 above.

32)       It is open to the Union to seek recognition for the bargaining unit described in the application to the CAC dated 17 April 2024 by making a fresh formal request for voluntary recognition to the Employer for that bargaining unit. Alternatively the Union may submit a fresh application to the CAC for the bargaining unit  it identified in its request dated 25 March 2024.

Panel

Mr Stuart Robertson, Panel Chair

Mr Alastair Kelly

Mr Paul Morley

13 May 2024

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1.    This is a reference to the formal application to the CAC. ↩