Decision

Acceptance Decision

Updated 15 January 2019

Case Number: TUR1/1078(2018)

15 January 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:

The National Union of Rail, Maritime and Transport Workers (RMT)

and

Supertram

1. Introduction

1) The RMT (the Union) submitted an application to the CAC on 28 November 2018 that it should be recognised for collective bargaining by Supertram (the Employer) for a bargaining unit comprising “All tram-train drivers working on tram-train route”. The location of the proposed bargaining unit was given as “Nunnery Depot, Woodbourn Road, Sheffield S9 3LS”. The CAC gave both parties notice of receipt of the application on 28 November 2018. The Employer submitted a response to the CAC dated 4 December 2018 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. Rohan Pirani, Chairman of the Panel, and, as Members, Mrs. Susan Jordan and Mr. Gerry Veart. 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 23 October 2018 and that the Employer responded on 8 November 2018 declining the Union’s request on the basis that there was an existing recognition agreement with Unite. However, the Union disputed the Employer’s claim as the agreement did not cover tram-train drivers. A copy of the Union’s letter and the Employer’s reply thereto were enclosed with the application.

5) According to the Union, the Employer employed “thousands” with 24 of these falling within the proposed bargaining unit. The Union stated that it had 19 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 it was happy to provide membership list in confidence to the CAC to enable an independent verification.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that it was a distinct group of workers who formed a stand-alone bargaining unit due to the specific nature of train driving duties on Network Rail mainline. The tram-train drivers had separate terms, conditions and duties that were only applicable to tram-train drivers. The Union confirmed that the bargaining unit had not been agreed with the Employer.

7) The Union confirmed that it was in possession of a certificate of independence from the Certification officer. When asked whether, following receipt of the request for recognition, did the Employer proposed that Acas be asked to assist, the Union stated “No”.

8) 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. The Employer’s response to the Union’s application

9) The Employer stated that the Union’s formal request for recognition dated 23 October 2018 was received on 25 October 2018. When asked what its response was, the Employer referred to its letter of 8 November 2018 which it had attached to the email along with the completed response form. In its letter of 8 November 2018 the Employer acknowledged receipt of the Union’s request and referred the Union to paragraph 35(1) of Schedule A1 to the Act (“the Schedule”). The employer submitted that the application for statutory recognition was not admissible as there was already in force a collective agreement under which a union was recognised as entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit. The Employer explained that it currently recognised Unite for collective bargaining purposes pursuant to a collective bargaining agreement dated 28 March 1994 as subsequently amended. Under this agreement the “bargaining unit” that was recognised for collective bargaining purposes was “all employees of the Company”. The sole exclusions to this bargaining unit were expressed to be the general manager, tramway controllers, training officers, safety officers and supervisor grades. The existing bargaining unit therefore included those workers identified in the proposed bargaining unit set out in the Union’s request and so the Union had no grounds to apply for statutory recognition. In the circumstances, the Employer declined the Union’s request for voluntary recognition.

10) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated this was on 28 November 2018 when it was copied into the email that the Union submitted to the CAC. The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form and that this remained the case. A copy of the existing agreement was submitted to the CAC along with the Employer’s response form.

11) The Employer stated that it employed a total of 368 workers and that it agreed with the Union’s figure as to the number of workers in the bargaining unit. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer stated that it was not privy to the number of employees in the proposed bargaining unit that had joined the Union as deductions from payroll had not been requested. 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 “Not applicable”.

12) When asked whether there was an existing recognition agreement in place covering any of the workers in the proposed bargaining unit the Employer stated that there was a collective agreement with the Transport and General Workers’ Union (“TGWU”) dated 28 March 1994 which was amended on 12 January 2012. In 2007 the TGWU merged with Amicus to form Unite the Union. The Employer now recognised Unite for collective bargaining purposes for all employees save for the General Manager, Tramway Controllers, Supervisors, Training Officer and Safety Officer. The Employer made clear that the proposed bargaining unit fell within the existing agreement. The agreement had continued to be in effect since it was made and that effect had been recognised by the parties throughout including in relation to salary and rosters during 2018, both of which directly concerned those in the proposed bargaining unit. As stated above, a copy of the agreement was enclosed with the Employer’s response. When asked whether, following receipt of the Union’s request, the Employer had proposed that Acas be requested to assist, the Employer answered “No”.

13) 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 “Not aware of any”.

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

14) A copy of the Employer’s response and attachments was served on the Union. The relevant clause as to the scope of the collective agreement with Unite and the provisions of paragraph 35 of the Schedule were brought to the attention of the Union and it was asked for its reasons as to why the existing collective agreement was not fatal as far as its application was concerned.

15) In a letter dated 13 December 2018 the Union stated The Union submitted that it did not believe that the recognition agreement between the Employer and Unite covered Tram-Train Drivers as the Tram-Train Driver organisation had been set-up as a completely separate entity and was registered as such.

16) The 1994 recognition agreement with Unite gave mention to “all employees,” but then listed those employees not covered by the agreement. If the agreement did not cover all of the then employees, the Union asked how it could justifiably cover all future employees. Especially those not employed by the then registered employer name; who notably continued to operate under the same organisation on the Supertram system alone.

17) Its members in the proposed bargaining unit assured the Union that Unite had not been party to the creation of the Tram-Train Driver organisation. Nor had Unite been party to any negotiations for Tram-Train Drivers on “salary level and structure”, as referenced on page 20 of the recognition agreement. The Union called upon the Employer to provide evidence to the contrary.

18) The Union had been advised that Unite officials had declared that they were not interested in recognition for the Tram-Train Driver organisation choosing instead to concentrate their efforts on the Supertram organisation alone.

19) Further, those employees involved in the July 2018 industrial action called by Unite, were Supertram Drivers alone. At that time there were no Tram-Train Drivers as the organisation was not established at that point and extensive training of Tram-Train Drivers had yet to be undertaken. This was a key element of the Union’s claim for recognition of Tram-Train Drivers. The two grades were not the same. Indeed, it was registered as two separate entities.

20) The Union had long-held recognition agreements on railway infrastructure, proper. That part of the industry had always been the main domain and territory of the Union and its predecessors. This included multiple, single recognition agreements between the Union and employers. The Union was the most-recognised union within all of the infrastructure companies, operations companies, labour-supply and train operating companies across the whole of the geographical location of the Sheffield Tram-Train routes.

21) The Union had grave concerns that should a business be authorised to create a separate entity, which used the railway infrastructure proper and aimed to “shut-out” the Union, this has the potential, in time, to have a severe detrimental impact upon countless existing recognition agreements that the Union had with other employers. Not least for those recognition agreements within the train-operating companies.

22) It was for these reasons that a total of 19 of the Tram-Train Drivers had made a personal choice to join the Union. The Union noted the Employer’s response stated no employees had asked for their subscriptions to be paid via the Employer. That was correct with direct debit arrangements in place.

6. Confirmation as to the identity of the Employer

23) The Panel, having had sight of the Union’s letter above, directed that the Union be asked whether it was claiming that, as far as the workers in the proposed bargaining unit were concerned, there was a separate employing legal entity and that this separate legal entity was not a signatory to the agreement between South Yorkshire Supertram Operating Company Limited and the TGWU (now Unite). If this was indeed the Union’s submission, it was also asked to provide details as to the identity of the separate employing legal entity.

24) In a letter dated 20 December 2018 the Union confirmed that it was not claiming that the workers in the proposed bargaining unit, which it described as an identifiable, standalone group of workers, were employed by a separate legal entity. Rather, they were a group of workers who formed a bargaining unit that was never envisaged when the agreement was signed with the TGWU and the overwhelming majority of this group had chosen the Union as their union of choice. Employer’s comments

25) In a letter dated 18 December 2018 the Employer stated that whilst it had not been invited to comment or provide further evidence at this stage it nevertheless wished to take the opportunity to clarify a couple of points raised by the Union in its letter dated 13 December 2018 as they were wholly inaccurate.

26) First, in relation to the claim of a “completely separate entity” being set up for Tram Train Drivers, which was an assertion with no offer of supporting evidence, the Employer stated that this was not the case. All employees of “Sheffield Supertram”, including Tram Train staff, both Drivers and Conductors, were employed by the same entity (South Yorkshire Supertram Ltd) which had been the employing Company since Stagecoach began operating Supertram in 1997. No new entity had been created, as claimed by the Union. As evidence the Employer attached a copy of the letter issued to all Tram Train Drivers on appointment confirming that there were no changes to the terms and conditions of their employment contracts apart from the salary and job title. The first appointments to this role were made in April 2018 to allow for training and commissioning, prior to Tram Train commencing in passenger service in October 2018.

27) Secondly, in answer to the assertion that the existing recognition Agreement could not apply to grades of employee that came into existence subsequently, the Employer argued that that was clearly wrong. The Agreement said nothing to suggest it applied only to a closed list of jobs. The Agreement clearly stated it applied to all grades save those specifically excluded. As the Panel had seen from the documents previously supplied, in 2012 an amendment was made to the agreement specifically to exclude a certain grade. This was an example, in practice, of how the Agreement applied to grades unless they were expressly excluded from its scope. The Employer noted the Union stated that Unite had not been party to the Tram Train Driver organisation. To clarify, there was no separate organisation and Unite was consulted in respect of the Tram Train Driver salary when the role was created.

28) In response to the comments regarding Industrial Action, the Employer confirmed that there were Tram Train Drivers already appointed to that role, as above, and the pay offers made during these negotiations included Conductors, Tram Drivers and Tram Train Drivers throughout.

7. Considerations

29) In accordance with paragraph 35, an application to the CAC made under paragraph 11 or 12, is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is recognised as entitled to conduct collective bargaining on behalf of any workers falling within the bargaining unit as proposed by the union. There are exceptions to this rule which allow for the union that is already recognised by an employer for matters other than pay, hours or holidays to make an application for recognition in respect of these matters ^{[footnote 1]} , and circumstances in which the CAC can ignore an agreement that involves a non-independent union ^{[footnote 2]} . However, neither of these two exceptions are applicable in this case.

30) It seemed initially that the Union was claiming that the workers in its proposed bargaining unit were employed by a separate legal entity to those workers covered by the collective agreement between the Employer and TGWU (now Unite) but the Union subsequently confirmed to the CAC, in its letter of 20 December 2018, that this was not the case. Rather, its arguments as to why it believes the existing agreement should be set aside for the purposes of this application are, first, that the role of the tram-train drivers did not exist at the time that the agreement between the Employer and the TGWU was made and, second, that the overwhelming majority of the workers in the proposed bargaining unit had, in the Union’s own words, “chosen the Union as their union of choice”.

31) Turning to the Union’s first ground in which it submits that the tram-train drivers fall outside of the scope of the existing agreement as the role did not exist at the time the agreement was made. Countering the Union’s submission the Employer relied upon the original agreement and a subsequent amendment to show that the agreement did indeed extend to its entire workforce save for a number of notable exceptions and these exceptions were updated when necessary.

Clause 6.2 of the original agreement dated 13 May 1994 states:

“6.2 “The bargaining group” is recognised by both parties as “all employees of the Company excluding the General Manager, Tramway Controllers”, Training Officer and Safety Officer. These exclusions could be extended in the future in the event of a restructure or reorganisation of the Company”

32) The Employer also furnished the Panel with a document titled “Memorandum of Agreement Amending the Collective Bargaining agreement between Unite the Union and South Yorkshire Supertram Limited” which was signed on behalf of the Employer on 18 January 2012 and signed on behalf of Unite on the following day, in which the parties agreed that the Supervisor grade would no longer form part of the collective bargaining group and clause 6.2 was suitable amended to reflect this decision.

33) It is clear to the Panel that the intention of the parties to the existing collective agreement was that the agreement extended to all employees save for a specified number of exceptions. That the role of tram-train driver did not exist at the time the original bargaining unit was defined is immaterial. Any new role would automatically fall within the definition of the bargaining unit unless the parties agreed otherwise. Whilst not a new role, the fact that supervisors were subsequently excluded by agreement through the instrument of the memorandum of change shows that the parties operate this part of the agreement in accordance with the exclusion provision in clause 6.2. If the parties had intended to exclude the tram-train drivers when the role was created then, no doubt, they would have done so by a similar instrument. That they did not do so is evidence, in our mind, that the intention was that they be included. In any event, the determining fact is that when the original agreement was entered into it was intended that it would cover grades and types of employees that might come into existence subsequently.

34) Dealing with the Union’s second ground in that it holds itself to be more representative as far as the tram-train drivers are concerned than the currently recognised union the Panel would point out that even if it were so, it is not a test germane to the application of paragraph 35. Indeed, the intention of Parliament was clear in that the role of the CAC was not to disrupt existing bargaining arrangements which was why the Schedule prevented applications for recognition where a union was already recognised. Neither was it the role of the CAC to resolve disputes between unions as to which was best placed to represent workers in any particular bargaining unit. This very doctrine was put to the test in the matter of R (National Union of Journalists) v Central Arbitration Committee [2004] EWHC 2612 (Admin) where Hodge J, in paragraph 44, noted:

“… there is nothing in Schedule A1 of the 1992 Act that allows the CAC to require the employer to enter into another recognition agreement with a union that does have majority support.”

8. Decision

35) The Panel is satisfied that, for the purposes of paragraph 35 of the Schedule, there is in force a collective agreement under which a union is recognised as entitled to conduct collective bargaining on behalf of workers falling within the Union’s proposed bargaining unit. For this reason, the Panel’s decision is that the application is not admissible and therefore is not accepted by the CAC.

Panel

Mr Rohan Pirani, Chairman of the Panel

Mrs Susan Jordan

Mr Gerry Veart

15 January 2019

1. Paragraph 35(2) of the Schedule. ↩

2. Paragraph 35(4) of the Schedule. ↩