Decision

Validity Decision

Updated 3 October 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1330(2023)

18 September 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

AGREEMENT OF THE BARGAINING UNIT

The Parties:

RMT

and

Unipart Rail Limited

1. Introduction

1) RMT (the Union) submitted an application to the CAC on 31 May 2023 that it should be recognised for collective bargaining by Unipart Rail Limited (the Employer) for a bargaining unit comprising the “Engineering Technician, Production Operative, Mechanical Design and Development Engineer, Co-ordinator, Toolmaker, Quality Assurance, Warehouse Operative, Warehouse Administrator, Site Engineer, Storeperson grades employed by Unipart Rail Ltd at the Southport Facility”. The CAC gave both parties notice of receipt of the application on 31 May 2023. The Employer submitted a response to the CAC dated 7 June 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 Mrs Lisa Gettins, Panel Chair, and, as Members, Mr Alastair Kelly and Mr Paul Morley. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) By a decision dated 4 July 2023 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. On 11 August 2023 the parties notified the CAC that they had reached an agreement as to the appropriate bargaining unit and this was ‘All direct operational employees employed at the Southport site (including Engineering Technicians, Production Operatives, Team Coordinators, Warehouse operatives, warehouse administrator and QA Inspectors) and the following indirect production support roles employed at the Southport site; Toolmaker and Maintenance Engineer”. This bargaining unit differed from the one originally proposed by the Union

2. Issues

4) As the bargaining unit agreed by the parties differed from that proposed by the Union, paragraph 20 of Schedule A1 to the Act (the Schedule) requires the Panel to decide whether the Union’s application is valid within the terms of paragraphs 43 to 50 the Schedule. The matters that the Panel must consider are: -

• is there an existing recognition agreement covering any of the workers within the new bargaining unit? (paragraph 44)

• is there 10% union membership within the new bargaining unit? (paragraph 45(a))

• are the majority of the workers in the new bargaining unit likely to favour recognition? (paragraph 45(b))

• is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? (paragraph 46)

• has there been a previous application in respect of the new bargaining unit? (paragraphs 47 to 49)

5) In a letter dated 11 August 2023 the Panel invited the parties to make submissions on these matters for consideration by the Panel.

3. Views of the Union

6) In an email dated 11 August 2023 the Union advised that:

• there was no existing recognition agreement covering any of the workers within the new bargaining unit;

• There was significantly more than 10% membership as previously proven;

• The Union stated it had a significant number of members with the proposed bargaining unit, which was enough for automatic recognition, the Union also explained that members had joined the Union because they wished to have collective bargaining in place.

• there was no competing application from another union that covered any worker in the new bargaining unit;

• there was no previous application in respect of the new bargaining unit.

4. Views of the Employer

7) In a letter dated 16 August 2023 the Employer advised that:

• (agreeing with the Union) there was no existing recognition agreement covering any of the workers within the new bargaining unit,

• (agreeing with the Union) there was no competing application, from another union, that covered any workers in the new bargaining unit;

• (agreeing with the Union) From the previous communications the Employer believed that there was membership above the 10% level.

• (agreeing with the Union) there was no previous application in respect of the new bargaining unit

Finally, in response to the question, are the majority of the workers in the new bargaining unit likely to favour recognition, the Employer stated “We believe that a one-off issue that occurred in April 2023 related to pay prompted a membership recruitment drive. The cost-of-living crisis and economic difficulties that have affected the whole of the country over the past 20 months have produced this one-off issue. We believe that the support the union has generated is more to do with this one-off issue and support for that rather than a genuine support for the idea that the business needs a recognised TU. The employee forum in place at the Southport site has operated within the business successfully for a number of years. There are 5 employee forum representatives from across the different areas of the business who meet monthly with the management team. This forum has effectively represented the views of employees and worked well to resolve issues jointly with the management team, engaging directly with employees on the site. There has been some excellent work done on wellbeing and engagement activities. We believe that industrial relations between the workforce and management have been positive and healthy. The RMT have already indicated that it would not work with the employee forum. Therefore, we are very conscious of the division that this will create with employees outside of the bargaining unit. We would be moving from a situation where currently all employees are included within the employee forum to a situation where the TU would not work with the forum for those within the bargaining unit. We believe that potentially involving the TU would damage the industrial relations at the site. In summary, we do not believe that the pay issue is a reflection of the general industrial relations on site. Nothing from our recent communications with the workforce indicates an interest in the wider TU recognition and actually confirms that this is a one-off issue concerning pay. We believe that a ballot would be the only reliable way of establishing whether union membership is about a one-off issue or a genuine desire for TU recognition”.

5. Membership and support check

8) To assist in the application of the validity tests set out in paragraph 45 of Schedule A1 to the 1992 Act, the Panel proposed independent checks of the level of Union membership in the agreed bargaining unit. The Union provided a list of 54 Union members in the agreed bargaining unit on 30 August 2023. The Employer provided a list of 72 workers in the agreed bargaining unit on 1 September 2023. 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 30 August 2023.

9) According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 48, a membership level of 66.67%. A report of the result of the membership check was circulated to the Panel and the parties on 4 September 2023 and the parties’ comments invited.

6. Parties’ comments on the membership check

10) In its response dated 6 September 2023, the Union stated “It notes the % listed as 66.67%, with six names not listed, we believe 5 out these 6 are within the bargaining unit, and is potentially due a mis match of a small proportion of data”

11) The Employer did not submit any comments on the results of the membership report by the deadline imposed.

7. Discussion and conclusions

12) The Panel must decide whether the Union’s application is valid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision the Panel has considered the parties’ submissions and the other evidence before it. The following matters are not disputed:

• there is no existing recognition agreement covering any of the workers within the agreed bargaining unit;

• there is no competing application from another union; and

• there has been no previous application in respect of the agreed bargaining unit.

13) The remaining issues for the Panel to decide are whether the validity criteria contained in paragraphs 45(a) and (b) are met.

Paragraph 45(a)

14) Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the union constitute at least 10% of the workers in the agreed bargaining unit.

15) The CAC conducted a membership check conducted on 4 September 2023 had shown a membership density of 66.67%. This is clearly over the threshold set and the Panel finds that this test is satisfied.

Paragraph 45(b)

16) Under paragraph 45(b) of the Schedule, an application is invalid unless the Panel decides that a majority of the workers constituting the agreed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

17) The Employer’s view was that it did not believe that the pay issue was a reflection of the general industrial relations on site. The Employer stated that a ballot would be the only reliable way of establishing whether union membership was about a one-off issue or a genuine desire for union recognition.

18) As stated above, the check of membership in the agreed bargaining unit showed that 66.67% of the workers in the agreed bargaining unit are members of the Union. This was a legitimate indicator of likely support for recognition of the Union for collective bargaining purposes. The Employer had not provided any evidence to demonstrate that the majority of the workers were no longer likely to favour recognition of the Union to conduct collective bargaining on their behalf. On the evidence before it, the Panel has decided that, on the balance of probabilities, a majority of the workers in the agreed 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 45(b) of the Schedule.

8. Decision

19) The decision of the Panel is that the application is valid for the purposes of paragraph 20 of the Schedule and the CAC must proceed with the application.

Panel

Mrs Lisa Gettins, Panel Chair

Mr Alastair Kelly

Mr Paul Morley

18 September 2023