Case Number: TUR1/1448(2025)

12 February 2025

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:

TSSA

and

First Trenitalia West Coast Rail Ltd (t/a Avanti West Coast)

1. Introduction

1)         TSSA (the Union) submitted an application to the CAC on 20 January 2025 that it should be recognised for collective bargaining by First Trenitalia West Coast Rail Ltd (t/a Avanti West Coast) (the Employer) for a bargaining unit comprising the “Onboard Managers” based at Glasgow; Holyhead; Liverpool; London; Manchester; Preston; Wolverhampton.  The CAC gave both parties notice of receipt of the application on 20 January 2025.  The Employer submitted a response to the CAC dated 24 January 2025 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 Alistair Paton 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 3 February 2025.  The acceptance period was extended to 17 February 2025 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 18 November 2024, and that recognition request had been rejected but the Employer had agreed to talks.

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 “n/a”. ^{[footnote 1]}

7)         The Union stated that the total number of workers employed by the Employer was 3400 and 28 of the workers were in the proposed bargaining unit, of whom 18 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, “No”.  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, they had over 60% membership.

9)         The Union stated it had selected the proposed bargaining unit because “The members of the proposed bargaining unit perform a discrete and unique function within the company assuming managerial responsibility for a dedicated team of on-board crews (Train Managers, On Board Service Managers, Assistant Service Managers and Customer Service Assistants)”.

10)       The Union confirmed that the proposed bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the proposed bargaining unit the Union answered, “n/a”.

11)       Finally, the Union confirmed that it held a current certificate of independence, and it confirmed that it had copied the application and supporting documents to the Employer on 20 January 2025.  

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

12)       In its response to the Union’s application the Employer stated that it received the Union’s written request for recognition on 18 November 2024. The employer responded in a letter to the union dated 28 November 2024 stating, “On considering your request AWC initially rejects the request from TSSA although we would be prepared to meet with TSSA and hold further discussions which may lead to an agreement being reached between our organisations”.

13)       The Employer stated that it had received a copy of the Union’s application within an email to the CAC on 20 January 2025. 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 when asked if it had agreed the bargaining unit before it had received a copy of the application form from the Union stated “No”.

15)       The Employer confirmed it did not agree with the proposed bargaining unit. The Employer considered that the Union’s proposed bargaining unit was “A small, fragmented and not unique group of managers for this proposed bargaining unit. The Onboard Managers are part of the Customer Experience Directorate (CEX) They share similar terms and conditions of employment, benefits and working practices as other groups of employees within this department and as such are not a unique and discrete function. The proposed bargaining unit, therefore, represents a group of workers which is too narrow for a bargaining unit that would be compatible with effective management. As part of this, we do not consider that having a small, fragmented bargaining unit is appropriate for effective management of the CEX department as a whole. As per the relevant CAC guidance, we would propose to provide more detailed comments on the appropriate bargaining unit, should the Union’s application be accepted by the CAC”.

16)       The Employer stated that it employed a total of 3654 workers in the Rail sector, under the Secretary of State, combining of Private and DfT OLR Holdings Limited (National Rail Contracts). 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, “No”. The Employer when asked if it agreed to the number of workers in the Union’s proposed bargaining unit and the reason for any difference, stated “27”.

17)       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 don’t have the membership information to agree or disagree and invite the Union, to provide full membership details in order for us to be able to take a more informed view. For the reasons set out in our response to question 11 below, we believe 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”.

18)       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, “We reserve the right to comment more fully pending receipt of any further membership data supporting the Union’s claim. The test for the Union to meet is to show that it has specific support for recognition for the purposes of collective bargaining on behalf of the proposed bargaining unit.  Save for asserting its estimate of membership, the Union has provided no other evidence of support for recognition amongst the proposed bargaining unit. In the circumstances, we would submit that 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 Union has not provided detailed membership data, and we believe there should be a full membership and support check carried out”.

19)       Finally, the Employer stated “N/A” when asked it was aware of any previous application under the Schedule for statutory recognition by the Union in respect of this or a similar bargaining unit.   Asked whether it had received any other applications under the Schedule for recognition in respect of any of the workers in the proposed bargaining unit the Employer answered, “N/A”.

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.  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. 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 27 January 2025 from the Case Manager to both parties.

21)       The information requested from the Union was received by the CAC on 28 January 2025 and from the Employer on 31 January 2025.   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 28 workers in the proposed bargaining unit.  The list of members supplied by the Union contained 18 names.  According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 17, a membership level of 60.71%. 

6. Parties’ comments on the membership check

23)       Both parties did not submit any comments on the results of the membership report by the deadline imposed.

7. Considerations

24)       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. 

25)       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 12. 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 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. 

Paragraph 36(1)(a)

26)       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 60.71% 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)

27)       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.

28)       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 60.71% of the workers in the bargaining unit. 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

29)       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 Alistair Paton

Mr Paul Moloney

12 February 2025

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