Decision

Acceptance Decision

Updated 14 May 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1218 (2021)

14 May 2021

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:

Transport Salaried Staffs’ Association (TSSA)

and

First Greater Western Limited (operating as Great Western Railways)

1. Introduction

1) Transport Salaried Staffs’ Association (TSSA) (the Union) submitted an application to the CAC dated 19 April 2021 that it should be recognised for collective bargaining by First Greater Western Limited (operating as Great Western Railways) (the Employer) for a bargaining unit comprising “Train Service Controllers within Train Service Delivery based within the Integrated Control Centre in Swindon Western House”. The application was received by the CAC on 19 April 2021 and the CAC gave both parties notice of receipt of the application on 19 April 2021. The Employer submitted a response to the CAC dated 26 April 2021 which was copied to the Union on 28 April 2021.

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, Chair of the Panel, and, as Members, Mr Roger Roberts and Mr Ian Hanson. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 4 May 2021. The acceptance period was extended to 18 May 2021 in order to allow time for the parties to comment on the results of a membership check and for the Panel to consider these comments before arriving 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 had sent its formal request for recognition to the Employer on 29 March 2021 and was read by the Employer on 29 March 2021. The Union stated that no response was received A copy of the Union’s letter and a copy of the read receipt of the email dated 29 March 2021 was attached to the application.

6) The Union stated that, following receipt of the request for recognition, the Employer had not proposed that Acas should be requested to assist the parties.

7) The Union stated that the total number of workers employed by the Employer, according to the First Greater Western Limited Accounts for year ended 31 March 2020, was 6469. The Union stated that there were 22 workers in the proposed bargaining unit, of whom 15 were members of the Union. When 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 stated that at least 50% were in membership. The Union said that there had been a recent increase in membership as workers within the bargaining unit had wanted their Union to have collective bargaining rights for them. The Union stated that they could provide membership data supporting their claim.

8) The Union stated that the reason for selecting the proposed bargaining unit was because the Employees performed a unique, discreet function within the Company, making their proposed bargaining unit fully compatible with effective management. The Union stated that in a recent CAC case, TSSA and Govia Thames Link Railway (TUR1/1163/2020), a similar bargaining unit was accepted by the CAC. The Union explained that the way their rail industry operated was that they had Railway Operating Centres or Integrated Control Centres in which staff from train operators were co-located with those from the infrastructure owner. The Union said that this was the case with Govia Thames Link Railway and was also the case for those they were seeking recognition for. The Union stated that the bargaining unit had not been agreed with the Employer. The Union said that there was no existing recognition agreement of which it was aware which covered any of the workers in the bargaining unit.

9) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application to the CAC, and supporting documents, to the Employer on 19 April 2021.

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

10) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 29 March 2021. The Employer stated that they had notified their Full Time Officer for TSSA verbally that due to annual leave over the Easter period they would not be in a position to arrange a meeting to discuss the request until week commencing 19 April 2021. The Employer stated that this was acknowledged by their Full Time Officer who was also due to go on annual leave. Before cross copying the Employer’s response to the Union, the CAC wrote to the Employer on 27 April 2021 to ask for confirmation of the name of the person the conversation took place with, on what date the conversation took place and what the Full Time Officer’s response to the conversation was. The Employer confirmed in a letter dated 27 April 2021 who the conversation had taken place with and advised that it had taken place via zoom on 15 April 2021. The Employer stated that due to leave commitments they had said to the Union that they would be in touch with some dates for a meeting to discuss the request following the HR Director’s return from leave on 19 April. The Employer stated that the Full Time Officer had said that he would feed that back within his organisational structure.

11) The Employer confirmed that it had received a copy of the Union’s application form from the Union on 19 April 2021. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union and that it did not agree it. The Employer stated that the Train Service Controllers were part of the wider Train Service Delivery department and shared similar terms and conditions of employment benefits and working practices as other groups of employees within that department and as such were not a unique discrete function. The Employer stated that the proposed bargaining unit represented a group of workers which was too narrow to be compatible with effective management. The Employer stated that it did not consider that having a small fragmented bargaining unit was appropriate for effective management of the Train Service Delivery department as a whole. The Employer stated that should the Union’s application be accepted by the CAC they proposed to provide more detailed comments on the appropriate bargaining unit.

12) The Employer stated that it currently employed 6554 workers, 21 of whom were in the Union’s proposed bargaining unit which would reduce to 20 in July as they currently had an extra person who was training to replace a leaver. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

13) In answer to the question was there an existing agreement for recognition in force covering workers in the proposed bargaining unit the Employer answered “N/A”.

14) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated that they did not have the membership information to agree or disagree and invited the Union, as per its suggestion in its application, to provide full membership details in order for them to be able to take a more informed view. The Employer stated that the Union was previously recognised for the whole of the management grades and that following a lack of support for collective bargaining from the management grades the Union was derecognised in 2015. The Employer stated that the Union had not provided an adequate explanation as to why it now proposed a small fragmented bargaining unit. The Employer said that they believed the Union were seeking to propose a significantly smaller bargaining unit in order to put themselves in the best position to secure recognition rather than considering what would be appropriate. The Employer stated that for the reasons set out below they believed a full membership and support check should be carried out, particularly given the very small numbers involved and the subsequent impact the membership status or otherwise of one individual within the proposed bargaining unit would have on overall union membership and or support for recognition.

15) When invited to give its reasons if it did not consider that a majority of the workers in the proposed bargaining unit would be likely to support recognition, the Employer stated that it reserved the right to comment more fully pending receipt of any further membership data supporting the Union’s claim. The Employer stated that the test for the Union to meet was to show that it had specific support for recognition for the purposes of collective bargaining on behalf of the proposed bargaining unit. The Employer stated for the same reasons as set out previously and following a number of employee surveys which had been undertaken over the course of the years demonstrated that there was a lack of employee support for collective bargaining. The Employer stated that some of the comments received from the survey carried our last year were “the negative attitude amongst staff and Union reps” and “we could do so much more if the TUs didn’t take political positions which aren’t to the benefit of the colleagues they are supposed to represent”. The Employer stated that they did not consider that the Union had sufficient following to support recognition and save for asserting its estimate of membership, the Union had provided no other evidence of support for recognition amongst the proposed bargaining unit. The Employer stated that under the circumstances and given recent history the Panel should not infer, on estimated membership numbers alone, that a majority of the workers in the proposed bargaining unit would be likely to favour recognition. The Employer stated that the Union had not provided detailed membership data indicating how their membership had grown over what period and for what reasons. The Employer stated that during early 2020 the Union ran a membership campaign offering a substantial discount of 50% to new members and given the issues of discounted membership offered believed that there should be a full membership and support check carried out.

16) 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 Union the Employer answered “N/A”.

5. The Membership Check

17) To assist in the application of the admissibility tests 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. 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 their full name and date of birth). It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 28 April 2021 from the Case Manager to both parties. The information from the both the Employer and the Union was received by the CAC on 29 April 2021. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

18) The list supplied by the Employer indicated that there were 21 workers in the proposed bargaining unit. The list of members supplied by the Union contained 16 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 14, a membership level of 66.67%.

19) A report of the result of the membership check was circulated to the Panel and the parties on 30 April 2021 and the parties were invited to comment on the result.

6. The parties’ comments on the result of the membership check

20) In a letter to the CAC dated 5 May 2021 the Employer stated that they could see from the data that the TSSA met the first test of having 10 per cent of workers within the relevant bargaining unit as members. The Employer stated that save for the numbers of membership the TSSA had not provided any evidence to suggest that the majority of workers within the proposed bargaining unit would be likely to favour recognition of the Union to conduct collective bargaining on behalf of the bargaining unit. The Employer stated that as detailed in their response they did not consider that the Union had sufficient following to support recognition and would submit that the Panel should not infer, on membership numbers alone, that a majority of the workers in the proposed bargaining unit would be likely to favour recognition. The Employer reiterated that the Union had not provided detailed membership data indicating how their membership had grown over what period and for what reasons. The Employer stated that during early 2020 the Union ran a membership campaign offering a substantial discount of 50% to new members and given the issues of discounted membership offered believed that there should be a full membership and support check carried out.

21) In an email dated 5 May 2021 the Union stated that the membership check conducted by the CAC showed that it had exceeded the 10% membership level required under statute within their proposed bargaining unit. The Union stated that their members joined the Union to receive the full benefits of membership which included pursuing collective bargaining on their behalf and hence was why they had made the application. The Union stated that their membership within the proposed bargaining unit grew by 23.8?% between 9 March 2021 and 23 April 2021 when non-members became aware of their intention to pursue a claim for collective bargaining. The Union stated that the above clearly demonstrated that their application met the admissibility tests and they looked forward to it being accepted.

7. Considerations

22) 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 carefully the submissions of both parties and all the evidence in reaching its decision.

23) 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. ^{[footnote 1]} Furthermore, 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 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

8. Paragraph 36(1)(a)

24) 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 proposed bargaining unit.

25) The membership check conducted by the Case Manager (described in paragraphs 17 and 18 above) showed that 66.67% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 19 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. The Panel notes that the Employer in their letter dated 5 May 2021 confirmed that they agreed that as could been seen from the data the Union had met the first test of having 10% of workers within the relevant bargaining unit as members. 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.

9. Paragraph 36(1)(b)

26) 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. For the reasons given in paragraphs 23 above the level of union membership is 66.67%. The Panel notes that the Employer in their letter of 5 May 2021 stated that save for the numbers of membership, the TSSA had not provided any evidence to suggest that the majority of the workers within the proposed bargaining unit would be likely to favour recognition of the Union to conduct collective bargaining on behalf of the bargaining unit. The Panel also notes that the Employer submitted that the Panel should not infer, on membership alone, that a majority of the workers in the proposed bargaining unit would be likely to favour recognition. The Union did not provide any additional evidence of support for recognition, such as a petition, and the Employer did not provide any evidence to suggest that members would not support the Union. The Panel considers that, in the absence of evidence to the contrary, union membership does provide a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union. On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, 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. Decision

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

Panel

Mrs Lisa Gettins, Panel Chair

Mr Roger Roberts

Mr Ian Hanson

14 May 2021

1. If before the expiry of the first period of 10 working days (starting with the day after that upon which the request is received) the Employer fails to respond to the request the Union may lodge an application with the CAC under paragraph 11(1)(a). As confirmed by the Employer in their letter to the CAC dated 27 April 2021 the conversation with the Union relating to the request letter took place via zoom on 15 April which was outside the first period of 10 working days. ↩