Decision

Acceptance Decision

Updated 20 September 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1283(2022)

12 September 2022

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 Transpennine Express Limited

1. Introduction

1) The Transport Salaried Staffs’ Association (TSSA) (the Union) submitted an application to the CAC on 15 July 2022 that it should be recognised for collective bargaining by First Transpennine Express Limited (the Employer) for a bargaining unit comprising of Revenue Protection Officers (RPO) and, Revenue Protection Assistants (RPA) who sit under the Revenue Protection Manager. The CAC gave both parties notice of receipt of the application on 15 July 2022. The Employer submitted a response to the CAC dated 20 July 2022 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 Mr Stuart Robertson, Panel Chair, and, as Members, Mr Sean McIlveen and Ms Janice Beards. The Case Manager appointed to support the Panel was Kaniza Bibi.

2. The membership and support check

3) To assist the determination of two of the admissibility criteria specified in Schedule A1 to the Act (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 names and dates of birth and a copy of a petition in support of recognition. 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 29 July 2022 from the Case Manager to both parties. The information requested from the Union was received by the CAC on 4 August 2022 and from the Employer on 2 August 2022.

4) The list supplied by the Employer contained the names of 34 workers and the list of members supplied by the Union contained 16 names.

5) The Union also provided results of an e-petition. The names on this petition were compared with the list of workers provided by the Employer and the Union’s membership list and the findings of this comparison were also included in the report to the parties.

6) According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 16, a membership level of 47.06%.

7) A report of the result of the membership check was circulated to the Panel and the parties on 8 August 2022. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

8) On 17 August 2022, before the Panel in this case had made a decision as to whether the application was to be accepted, the CAC received an application from the National Union of Rail, Maritime and Transport Workers (the RMT) that it should be recognised by the Employer for a bargaining unit consisting of “On Board Revenue Protection Assistants (RPAs) and Revenue Protection Officers (RPOs)”. The proposed bargaining unit in the application brought by the RMT was the same as in this application.

9) Where (1) two or more relevant applications are made to the CAC, (2) at least one worker falling within one of the relevant bargaining units also falls within the other relevant bargaining unit (or units), and (3) the CAC has not accepted any of the applications, the Panel is required to decide, in accordance with paragraph 14 of the Schedule, whether to accept one of the applications or to accept neither of them. The second application, from the RMT, was dealt with by a different Case Manager but the same Panel members were appointed to deal with it as were appointed for this application.

10) Under paragraphs 14(4) and (5), the Panel has to decide, in respect of each application, whether members of each union constitute 10% of the workers constituting the respective bargaining units. To assist the Panel in making that decision, the Panel relied upon the membership check which had already been conducted in this case and proposed that a similar check should be undertaken by the Case Manager as to the level of union membership within the bargaining unit as proposed by the RMT in its application.

11) The results of the check of the level of union membership in the RMT application established that there were 13 RMT members in a 34 worker strong bargaining unit, a membership density of 38.24%.

3. Considerations

12) Where there are ‘competing’ applications to the CAC, the Panel has to make a series of decisions. For the purposes of paragraph 14(1)(a) of the Schedule, paragraph 14(2) provides that a relevant application is an application made under paragraphs 11 or 12 of the Schedule. The Panel is satisfied that two relevant applications have been made, by the TSSA and by the RMT. Paragraph 14(1)(b) states that paragraph 14 applies if at least one worker falling within one of the relevant bargaining units also falls within the other relevant bargaining unit. The respective bargaining units are described in paragraphs 1 and 3 of this decision and the Employer, in its response to the application brought by the RMT dated 22 August 2022, confirmed that the bargaining unit in that application was the same as the bargaining unit in this application. Furthermore, the Case Manager was able to confirm to the Panel that, from the lists of workers submitted by the Employer for the membership checks, the names of all the workers in the bargaining unit proposed by RMT also appeared on the list of workers in the bargaining unit proposed by the Union. The Panel is therefore satisfied that the condition in paragraph 14(1)(b) of the Schedule has been met. Under paragraph 14(1)(c), the CAC Panel had not made a decision on the acceptance of the Union’s application when the application from the RMT was received.

13) Under paragraph 14(4) and (5), the Panel must decide, with regard to each application, whether the 10% test is satisfied. The Panel is satisfied that the Case Managers’ checks, which showed that 47.06% of the workers in the TSSA’s proposed bargaining unit were members of the TSSA and that 38.24% of the workers in the RMT’s proposed bargaining unit were members of the RMT, were properly conducted. The Panel has not needed to consider the information relating to the petition that was included in the Case Manager’s report in this case. The Panel has accordingly concluded, in accordance with paragraph 14(7)(a), that the 10 per cent test is satisfied with regard to both applications and that the CAC must not accept either application.

4. Decision

14) For the reasons given above, the Panel’s decision is that the application is not accepted by the CAC.

Panel

Mr Stuart Robertson, Panel Chair

Mr Sean McIlveen

Ms Janice Beards

12 September 2022