Decision

Recognition Decision

Updated 3 October 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1341(2023)

3 October 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

Transport Salaried Staffs Association (TSSA)

and

First Trenitalia West Coast Rail Limited (trading as Avanti West Coast)

1. Introduction

1)         The Transport Salaried Staffs Association (TSSA) (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 20 June 2023 that it should be recognised for collective bargaining purposes by Avanti West Coast (the Employer) in respect of a bargaining unit comprising “SENIOR DRIVER MANAGERS/DRIVER MANAGERS/DRIVER TRAINERS.” The location of the bargaining unit was given as “London, Wolverhampton, Holyhead, Wales, Manchester, Liverpool, Preston, Glasgow and Crewe.” The application was received by the CAC on 20 June 2023 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 26 June 2023 which was copied to the Union. The Panel has identified that the correct legal name of the Employer is as stated in the heading to this decision, Avanti West Coast being its trading name.

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 David Cadger and Mr Steve Gillan. The Case Manager appointed to support the Panel was Joanne Curtis.

3)         By its written decision dated 25 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 September 2023 the Union informed the CAC that agreement had been reached as to the appropriate bargaining unit in this matter and the agreed bargaining unit was that as originally proposed by the Union and as particularised in paragraph 1 above.  The Employer, in an email dated 12 September 2023, confirmed that agreement had been reached.   

2. Issues

4)        Paragraph 22 of Schedule A1 to the Act (the Schedule) provides that, if the CAC is satisfied that a majority of the workers constituting the agreed bargaining unit are members of the union, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies.  Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled.  The three qualifying conditions are:

(i) the CAC is satisfied that a ballot should be held in the interests of good industrial relations.

(ii) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf.

(iii) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf.

Paragraph 22(5) provides that “membership evidence” for these purposes is:

(a) evidence about the circumstances in which union members became members, or

(b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

3. The Union’s claim to majority membership

5)         In its email of 13 September 2023, the Union claimed majority membership within the bargaining unit.

4. The Employer’s response to the Union’s claim that it should be recognised without a ballot

6)         In an email dated 21 September 2023 the Employer’s Head of Employee Relations and Transformation, Paul Holland, noted that the membership check carried out by the CAC showed that “circa 60%” of the workers in the bargaining unit were members of the Union, and continued: “I must assume this percentage of employees would welcome being represented by the TSSA, given membership status.” However, in a second email of the same date, Mr Holland stated: “The TSSA application does potentially create IR sensitivities between employee’s and business relationship with Aslef Union, as those employees not members of TSSA will highly likely be members of Aslef Union ^{[footnote 1]}. Therefore, in the interests of good industrial relations a ballot of the bargaining unit would be welcomed to demonstrate transparency to Aslef and employees within the BU to mitigate potential IR sensitivities.”

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

7)           In an email dated 22 September 2023 the Union said that it did not consider that the very limited points raised by the Employer showed any of the qualifying conditions had been met. Although the Employer had not suggested that the second and/or third conditions were satisfied, the Union commented on them briefly. With regard to the second condition, the Union said that no evidence had been produced which would cast doubt on the fact that Union members within the bargaining unit wanted the Union to conduct collective bargaining on their behalf. As to the third condition, the Union said that there was no credible evidence from any Union members within the bargaining unit that they did not want the Union to conduct collective bargaining on their behalf, neither had the Employer suggested there was.

8)       The Union noted that the Employer had focussed on the first condition, namely that a ballot should be held in the interests of good industrial relations. The Union disagreed that the condition had been established. The Union said that the Employer had provided no evidence that any of the workers in the agreed bargaining unit were ASLEF members and/or would not favour the TSSA conducting collective bargaining on their behalf. The Employer had merely asserted its assumption that workers who were not members of the TSSA were ASLEF members. The Union continued that the Employer had asserted that “if the other workers are in fact ASLEF members, granting recognition without a ballot would cause potential industrial relations sensitivities without actually specifying why, save for a general assertion that doing so would demonstrate transparency to ASLEF and employees. No evidence has been provided by Avanti to suggest that ASLEF has collective bargaining rights for those employees in the bargaining unit. No evidence has been provided by Avanti to suggest that ASLEF have made any recent attempts to gain such rights. No evidence has been provided to suggest that not holding a ballot would lead to any industrial sensitivities.”

6. Considerations

9)         The Schedule requires the Panel to consider whether it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union.  If the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Union, it must declare the Union to be recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit unless it decides that any of the three qualifying conditions set out in paragraph 22(4) is fulfilled.  If the Panel considers that any of those specific conditions is fulfilled, it must give notice to the parties that it intends to arrange for the holding of a secret ballot. 

10)       The membership and support check conducted by the CAC on 17 July 2023 confirmed that the level of union membership in the proposed bargaining unit was 60.61%.  In its email to the CAC dated 21 September 2023 the Employer said that it did not dispute the fact that the majority of workers in the agreed bargaining unit were members of the Union.  Accordingly, the Panel accepts that the majority of workers in the bargaining unit are members of the Union.

11)       The Panel has considered the submissions of both parties and all the evidence in reaching its decision as to whether any of the qualifying conditions laid down in paragraph 22(4) of the Schedule is fulfilled.

Paragraph 22(4) (a)

12)       The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Panel has considered the parties’ submissions on this condition, as set out at paragraphs 6 – 8 above.

13)       The starting point for the Panel is that the membership check revealed that the Union has 60% membership within the bargaining unit. In the absence of evidence to the contrary, the Panel is entitled to assume that members of the Union will favour recognition of the Union for collective bargaining. The Employer refers in its email of 21 September 2023 to ASLEF. ASLEF is the trade union that represents many train drivers. The Panel assumes that the Employer is concerned that recognition of the Union will cause rivalry with members of the bargaining unit who are ASLEF members or not members of the Union. However, there is no evidence about the extent of ASLEF members within the agreed bargaining unit. There is no evidence of any hostility or inter-union rivalry on the part of any members of ASLEF impacting on recognition of the Union or of any prior requests by ASLEF for recognition within the bargaining unit. The Employer asserts that industrial relations issues may flow from recognition of the Union without a ballot, without explaining why or providing any evidence to support the contention. It is unclear what the Employer means by “transparency” with ASLEF or why the Employer seeks such “transparency”. There is no material from which the Panel can conclude that it would be in the interests of good industrial relations to order a ballot where the Union has a clear majority of members within the bargaining unit. The Panel finds that the first condition is not satisfied.

Paragraph 22(4) (b)

14)       The second condition is that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union to conduct collective bargaining on their behalf. The CAC has no such evidence and this condition does not apply.

Paragraph 22(4) (c)

15)       The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union to conduct collective bargaining on their behalf.  No such evidence has been produced, and this condition does not apply.

7. Declaration of recognition

16)       The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that a majority of the workers constituting the bargaining unit are members of the Union. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule is met. Pursuant to paragraph 22(2) of the Schedule, the CAC must therefore issue a declaration that the Union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit as particularised in paragraph 1 of this declaration.

Panel

Mr Stuart Robertson, Panel Chair

Mr David Cadger

Mr Steve Gillan

3 October 2023

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1. The Panel has not corrected the obvious typographical errors in this quoted sentence; the meaning is clear. ↩