Decision

Acceptance Decision

Updated 5 February 2019

Case Number: TUR1/1086(2019)

5 February 2019

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

MTR Crossrail Limited

1. Introduction

1) The RMT (the Union) submitted an application to the CAC on 11 January 2019 that it should be recognised for collective bargaining by MTR Crossrail Limited (the Employer) for a bargaining unit comprising the “Duty Control Managers, Resource Controllers and Custom Experience Controllers”. The location of the proposed bargaining unit was given as “Romford ROC”. The CAC gave both parties notice of receipt of the application on 14 January 2019. The Employer submitted a response to the CAC dated 17 January 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 Chair established a Panel to deal with the case. The Panel consisted of Mr James Tayler, Panel Chair, and, as Members, Mr Simon Faiers and Mr David Coats. The Case Manager appointed to support the Panel was Nigel Cookson.

2. Issues

3) 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. The Union’s application

4) In its application the Union said that it had written to the Employer with a formal request for recognition on 17 December 2018 and the Employer’s response, by way of letter of the same date, was to decline the request. A copy of the letters from the Union and the Employer both dated 17 December 2018 were enclosed with the application.

5) According to the Union, there was a total of 1000 workers employed by the Employer with 37 of these falling within the proposed bargaining unit. The Union did not know whether or not the Employer agreed with the Union’s estimate as to the number of workers in the proposed bargaining unit. The Union stated that it had 30 members within the proposed bargaining unit. 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 said that the workers had joined the Union as there were issues affecting all workers and collective bargaining rights would give them the opportunity to negotiate and be consulted through the Union. The organising campaign had been carried out specifically to achieve collective bargaining rights and approximately 80% of the workers were members of the Union.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that they were a coherent and specific group of workers with similar issues and it would make industrial sense for this group of workers to be recognised as a collective entity for negotiation and consultation purposes. The Union confirmed that the bargaining unit had not been agreed with the Employer.

7) 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.

The Employer’s response to the Union’s application

8) The Employer stated that it had received the Union’s formal request for recognition on 17 December 2018 and, when asked what its response was, the Employer stated that it rejected the application for voluntary recognition. A copy of its letter to this effect dated 17 December 2018 was attached to its response form.

9) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated this was 14 December 2018 when it received documentation from the CAC. Asked to confirm when it received a copy of the application form direct from the Union rather than the CAC the Employer, in an email dated 22 January 2019, stated that it received a copy from the Union by hand on 15 January 2019. The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form and when asked did it agree the bargaining unit, it answered “No” explaining that it believed that matters could be resolved without the need to introduce formal recognition by using the existing arrangements for representation that were currently in place. Failing that the Employer believed that the appropriate bargaining unit should not include Duty Control Managers as it did not have formal recognition arrangements in place for Managers within the business. The Employer further believed that there was limited membership at this level and that matters arising affecting this group were likely to be fewer by comparison.

10) The Employer stated that it employed 1072 workers as at 15 January 2019. The Employer did not agree with the Union’s figure as to the number of workers in the bargaining unit explaining that the correct number of workers was 40. The Employer was not aware as to why there may be a difference in figures. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer answered “N/A”. When asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, the Employer stated that within the bargaining unit there was a colleague who acted as a local representative raising issues with management and representing colleagues on an individual level. This colleague had approached the Employer previously to request recognition of the bargaining unit. Aside from this however, the Employer had not received any correspondence from colleagues in the proposed bargaining unit that would suggest that they were not content with the existing arrangements. There were also no existing matters of dispute affecting colleagues in the proposed bargaining unit.

11) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the agreed 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”.

12) 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 “N/A”.

4. Membership and Support Check

13) To assist in the application of the admissibility tests in the Schedule, the Panel proposed independent checks of the level of union membership in the proposed bargaining unit. The information from the Union was received by the CAC on 24 January 2019 and from the Employer on 25 January 2019. 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 from the Case Manager to both parties dated 23 January 2019.

14) The Union provided a pdf with a table consisting of two columns – one for names and one for dates of birth. There were 31 names on the list provided by the Union. The Employer provided a spreadsheet with the names, dates of birth and job titles of 40 workers. The job titles given were: Duty Control Manager, Duty Control Manager-M, Customer Experience Controller, Customer Experience Controller-M, Customer Experience Controller (Part Time) and Resource Controller.

15) According to the Case Manager’s report, the number of Union members in the bargaining unit was 30, a membership level of 75%. A report of the result of the membership check was circulated to the Panel and the parties on 25 January 2019 and the parties’ comments invited.

5. Parties’ comments on the Case Manager’s report

16) In a letter dated 28 January 2019 although not received by the CAC until 30 January 2019 the Employer stated that it accepted that there was a 75% membership in the bargaining unit proposed for recognition. The Employer added that it would like to understand the percentage of membership for managers within the proposed bargaining unit as it believed that they should be excluded from the bargaining unit. Excluding the managers, so the Employer believed, would mean a far lower level of membership and desire for Union recognition. This would mean excluding two roles from the proposed bargaining unit: Duty Control Manager and Duty Control Manager-M.

17) In an email dated 1 February 2019 the Union stated that it had no additional comments at this stage in the process.

6. Considerations

18) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

19) 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(2) of the Schedule in that before the end of the first period of 10 working-days following receipt of the request, the Employer informed the Union that it did not accept the request without indicating a willingness to negotiate. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

7. Paragraph 36(1)(a)

20) 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. The Case Manager’s check of the level of membership in the proposed bargaining unit conducted on 25 January 2019 showed that membership density stood at 75%. Invited to comment on the result of the Case Manager’s check the Employer stated its acceptance of this figure. It is clear therefore to the Panel that members of the Union constitute at least 10% of the workers in the bargaining unit.

8. Paragraph 36(1)(b)

21) The test in paragraph 36(1)(b) is whether a majority of the workers constituting the bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit. In its application, when addressing the likelihood of majority support for recognition, the Union stated that the workers had joined the Union because of the effect of issues within the workplace and that the Union’s organising campaign had been carried out specifically to achieve collective bargaining rights as a means of addressing these issues. In its response to the application on the same issue, the Employer stated that, as the question of recognition had not been raised by the workforce, the implication was that the workers were content with existing arrangements. When invited to comment on the results of the membership check, the Employer stated a desire to exclude managers from the bargaining unit adding that if this were the case, then support for recognition would not be so great.

22) Having considered all the points made by the parties and the results of the Case Manager’s comparison, the Panel is of the view that, in the absence of any evidence to the contrary, union membership within a particular bargaining unit provides a legitimate indicator of the degree of likely support for recognition of the Union. The test is to be applied to the bargaining unit put forward by the Union. Of that bargaining unit 75% are members of the union. The Panel is fully satisfied that a majority of the workers in the proposed bargaining unit would be likely to support recognition of the Union and the test set out in paragraph 36(1)(b) is therefore met. Decision

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

Panel

Mr James Tayler, Panel Chair

Mr Simon Faiers

Mr David Coats

5 February 2019