Decision

Acceptance Decision

Updated 28 May 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1405(2024)

28 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:

RMT

and

TransPennine Trains Ltd

1. Introduction

1)         RMT (the Union) submitted an application to the CAC on 3 May 2024 that it should be recognised for collective bargaining by TransPennine Trains Ltd (the Employer) for a bargaining unit comprising the “Service Delivery Support Managers”.  The CAC gave both parties notice of receipt of the application on 3 May 2024.  The Employer submitted a response to the CAC dated 10 May 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 Chair established a Panel to deal with the case.  The Panel consisted of Ms Laura Prince K.C., Panel Chair, and, as Members, Mr. Rob Lummis, and Mr Paul Moloney.  The Case Manager appointed to support the Panel was Kaniza Bibi.

3)         The Panel has extended the acceptance period in this case. The initial period expired on 20 May 2024.  The acceptance period was extended to 3 June 2024 to allow time to conduct a membership check and for the parties to comment on the results before the Panel arrived 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 made its formal request for recognition on 8 April 2024 and that there had been no response from the Employer.

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 “I wrote to the company on 1st of November applying for a voluntary recognition agreement under schedule A1 TULCRA which was rejected by TransPennine trains on the grounds that TPT consider the SDSM grade as a management grade that sits outside the current collective bargaining agreement. This my union refutes as these are operational grades covered under the current collective bargaining arrangements.”.

7)         The Union stated that the total number of workers employed by the Employer was 1680 and 10 of the workers were in the proposed bargaining unit, of whom 7 were Union members. The Union said that, following receipt of the request for recognition, the Employer had not proposed that Acas should be requested to assist the parties.

8)         Asked whether the Employer agreed on the number of workers in the proposed bargaining unit the Union answered, “Yes”.  When called upon 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, “Petition being signed by five of the seven members supporting RMT recognition. The other two missing signatures have not been approached to sign at this stage but I’m optimistic they would be supportive”.

9)         The Union stated it had selected the proposed bargaining unit because “RMT position is that these grades are traditionally blue-collar operational grades that fall within the scope of the 1994 traffic grades restructuring agreement”. The Union also confirmed that the proposed bargaining unit had been agreed with the Employer.

10)       Finally, the Union stated that no trade union currently had recognition for this group of workers it was not aware of any existing recognition agreements which covered any of the workers in the bargaining unit. The Union confirmed that it held a current certificate of independence. When asked if it had copied the application and supporting documents to the Employer, this part was left blank by the Union.  

4. Summary of the Employer’s response to the Union’s application

11)       In its response to the Union’s application the Employer stated that it received the Union’s written request for recognition on 8 April 2024, to which it did not respond.

12)       The Employer stated that it had received a copy of the Union’s application form via the CAC on 3 May 2024. ^{[footnote 1]}

13)       The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

14)       The Employer confirmed it did not agree with the proposed bargaining unit. The Employer considered that the Union’s proposed bargaining unit was not an appropriate bargaining unit and confirmed its objections to the proposed unit stating, “The new SDSM position is a managerial role and graded as such, we do not       agree that these are operational grades. The roles work to support and manage the operational grades i.e., give instructions, therefore they need to be graded as a      managerial role. Managerial roles are not collectively bargained”.

15)       The Employer stated that it employed a total of 1805 workers. When asked whether it agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application the Employer answered, “Yes”.

16)       The Employer, when asked if it disagreed with the Union’s estimate of membership in the proposed bargaining unit, and to indicate its reasons for disagreeing, with any available evidence, the Employer’s response was to state, “We are only aware of one or two SDSM’s who could be RMT members based on the recognition agreed from their previous front-line role”.

17)       When asked if the Employer considered that a majority of the workers in the bargaining unit are likely to support recognition, and to indicate its reasons for taking this view, the Employer stated that TransPennine Express did not believe that the majority of workers in the bargaining unit were likely to support recognition by the Union.  

18)       The Employer when asked if it was aware of any previous application under Schedule A1 for statutory recognition made by this Trade Union in respect of this bargaining unit or a similar bargaining unit, stated “The RMT did make a Voluntary & Statutory request for recognition back in 2022 for our Service Delivery Controller team which sits within the same department as the SDSM team. The recognition request was not support by Colleagues within the team”.

19)       Finally, the Employer when asked if it had received any other applications under Schedule A1 for statutory recognition in respect of any workers in the proposed bargaining unit, the Employer did not give a response to this question.

5. The check of membership and support

20)       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 and a check of the Union’s petition.  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 dates of birth). The Union also relied upon a petition which it had already copied to the Employer as part of the supporting documents when the application was lodged and so the petition was outside of the agreement on confidentiality. 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 14 May 2024 from the Case Manager to both parties.

21)       The information requested from the Union was received by the CAC on 15 May 2024 and from the Employer on 14 May 2024.  The Panel is satisfied that this check was conducted properly and impartially in accordance with the agreement with the parties.   

22)       The list supplied by the Employer showed that there were 10 workers in the proposed bargaining unit.  The list of members supplied by the Union contained 7 names.  According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 7, a membership level of 70.00%. 

23)       The petition supplied by the Union contained 5 names and was set out as follows:

“Petition to Central Arbitration Committee

Petition summary and background- We the undersigned wish to be formally recognised by the RMT Trade Union as Service Delivery Support Managers employed by Transpennine Trains Ltd.

Action petitioned for- The purpose of Collective bargaining under Schedule A1 of Trade Union and Labour Relations (Consolidation) Act 1992”.

The report showed that 50.00% of workers in the proposed bargaining unit had completed the petition in favour of recognition. All signatories were members of the Union. A report of the result of the membership check was circulated to the Panel and the parties on 15 May 2024 and the parties’ comments invited.

6. Parties’ comments on the membership check

24)       The Union in its comments dated 20 May 2024 stated, “I can also confirm that I agree with the data provided and the level of membership (70%) for the proposed bargaining unit. I can also confirm that these members are keen to achieve RMT recognition under collective bargaining having discussed this with many in membership. Although we were two signatures short of 100% support for the petition, I can also confirm that the two members names missing from the petition are also supportive but unfortunately were absent from work at the time the petition was circulated. I would also comment that in terms of the employers response that as these are “management” grades that they sit outside of the current collective bargaining agreement this is factually incorrect given that other “management” grades currently employed within TransPennine Trains are covered under the current CBA, namely gateline operative grades”.

25)       The Employer in its comments dated 21 May 2024 stated, “Just to confirm that TPE doesn’t have any comments on the report you sent to us on the 15/05. Just to make you aware, we have today engaged with ACAS to support us through this process”.

7. Considerations

26)       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. 

27)       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 and that its application was made in accordance with paragraph 11. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 37 to 42 of the Schedule.  The Panel is satisfied that the Union complied with the provisions of paragraph 34 of the Schedule and served a copy of the application and supporting documents on the Employer as evidenced by the Union’s email of 3 May 2024.  The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraphs 36(1)(a) and 36(1)(b) are met. 

Paragraph 36(1)(a)

28)       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 Union’s proposed bargaining unit.  The membership check conducted by the Case Manager described in paragraph 22 above showed that 70.00% of the workers in the proposed bargaining unit were members of the Union. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed 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)       The Panel considers that members of the Union would be likely to favour recognition of the Union for collective bargaining. As stated above, these amount to 70.00% of the workers in the bargaining unit. The Panel also notes that 5 of the Union members, representing 50.00% of the workers in the proposed bargaining unit, had signed the Union’s petition in favour of recognition.  On the basis of the evidence in this case, therefore, the Panel decides that 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

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

Panel

Ms Laura Prince K.C., Panel Chair

Mr Rob Lummis

Mr Paul Moloney

28 May 2024

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1. The Union had sent a copy its application to the Employer on 3 May 2024 @ 11:24am, copying in the CAC and the Employer’s Customer Service And Operations Director. ↩