Decision

Acceptance Decision

Updated 30 April 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1393/2024

29 April 2024

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

and

First TrenItalia West Coast Rail Ltd t/a Avanti West Coast

1. Introduction

1) The Transport Salaried Staffs’ Association (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 8 March 2024 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 “Controllers & Duty Control Managers”. The application was received by the CAC on 8 March 2024.  The CAC gave both parties notice of receipt of the application by letter of the same date.  The Employer submitted a response to the CAC dated 15 March 2024 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 Chairman established a Panel to deal with the case.  The Panel consisted of Mrs Sarah Havlin, Panel Chair, and, as Members, Mr David Cadger and Mr Paul Moloney.  The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case.  The initial period expired on 22 March 2024.  The acceptance period was extended on two further occasions to allow time for a membership and support check to take place, for the parties to comment on the subsequent report, and for the Panel to consider those comments before arriving at a decision. The final extension ends the acceptance period on 29 April 2024.

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. The Union’s application

5) In its application the Union said that it had written to the Employer with a formal request for recognition on 9 January 2024.  The Employer responded by letter dated 19 January 2024, in which it refused the Union’s request but offered an “invitation to discuss”.  A copy of the Union’s request and the Employer’s letter dated 19 January 2024 were enclosed with the application.

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”. 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 said that the total number of workers employed by the Employer was 3400.  There were 39 workers in the proposed bargaining unit, of whom 23 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 referred to its earlier comments in regard to the number of union members within the proposed bargaining unit.         

8)         The Union stated that the reason for selecting its proposed bargaining unit was because those members performed a discrete and unique function within the company in the daily delivery of Avanti West Coast services in real time and associated requirements.

9)         The Union said 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 that covered any workers in the bargaining unit.

10)       The Union confirmed that it held a current certificate of independence.   The Union stated that it had copied its application and supporting documents to the Employer on 8 March 2024. 

4. The Employer’s response to the Union’s application

11)       In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 9 January 2024.  The Employer stated that it responded by letter dated 19 January 2024.  In this letter the Employer had refused the Union’s request but stated that it was “prepared to meet and discuss this request further which could lead to voluntary agreement being established.” A copy of the Employer’s letter of 19 January 2024 was enclosed with its response.

12)       The Employer confirmed that it had received a copy of the application form directly from the Union on 8 March 2024.  The Employer stated that it had not, before receiving a copy of the application from the Union, agreed the bargaining unit with the Union, nor did it now agree with the proposed bargaining unit. The Employer explained that the proposed bargaining unit formed part of a significantly larger train service delivery Management Grade within its business. The roles in the proposed bargaining unit shared similar terms and conditions of employment and benefits as other groups of employees within the operational directorate and they were subject to centralised management and operating processes.  The Employer said that it therefore did not consider that the proposed unit was a unique and a discrete function.  Furthermore, it represented a group of workers that was too narrow for a bargaining unit that would be compatible with effective management, and it did not believe that a “small fragmented bargaining unit” was appropriate for the effective management of its Management Grade as a whole.  It would be solely made up of Management roles extracted from within its control team.   Finally, the Employer said that it would provide more detailed comments on the appropriate bargaining unit, should the Union’s application be accepted.

13)       The Employer said that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application, further explaining that the Union had claimed that there were 39 workers within its proposed bargaining unit, consisting of Controllers & Duty Control Managers (DCM). The Employer said that it had 30 employees with Controller in their job title and 8 employees, who performed the DCM.   It was the Employer’s view that the proposed bargaining unit appeared to single out Management roles, who were members of the Union.

14)       In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer said that it did not have the membership information to agree or disagree and therefore it invited the union to provide full membership details in order to be able to take a more informed view. The Employer said that the Union had not provided an adequate explanation as to why it had now proposed a small, fragmented bargaining unit.  The Employer believed that the Union were seeking to propose a small bargaining unit in order to put itself in the best position to secure recognition, rather than considering what bargaining unit would be appropriate. The Employer stated that a full membership and support check should be carried out, particularly given the very small numbers involved and the subsequent impact the membership status 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 bargaining unit would be likely to support recognition, the Employer said that it reserved the right to comment more fully pending receipt of any further membership data supporting the Union’s claim.  The Employer also reiterated the need for a full membership and support check to be carried out.

16)       The Employer stated that it was not aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, nor had it received any other applications in respect of workers in the proposed bargaining unit.

5. The Membership Check

17)       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 name and date of birth).  It was agreed that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 22 March 2024 from the Case Manager to the parties.  The information requested from the Union was received by the CAC on 25 March 2024, and from the Employer on 26 March 2024.   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 38 workers in the Union’s proposed bargaining unit.  The list of members supplied by the Union contained 24 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 23, a membership level of 60.53%. 

19)       A report of the result of the membership check was circulated to the Panel and the parties on 27 March 2024 and the parties were invited to comment on the result.

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

20)       The Union stated in an email dated 8 April 2024 that the Employer’s figures broadly corresponded with its own and it was therefore happy to accept them.

21)       In an e-mail to the CAC dated 3 April 2024 the Employer stated that it had reviewed the findings of the report and acknowledged that the Union had met the first test, with the required 10 per cent of workers within their proposed bargaining unit as TSSA members. 

22)       The Employer also reiterated the points it had made in paragraph 12 above as to why it believed the Union’s proposed bargaining unit was incompatible with effective management.

7. Considerations

23)       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.

24)       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 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.

Paragraph 36(1)(a)

25)       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.

26)       The membership check conducted by the Case Manager (described in paragraphs 17 and 18 above) showed that 60.53% of the workers in the proposed bargaining unit were members of the Union.  As stated in paragraph 17 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 has 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. For the reasons given in the previous paragraph the level of union membership is 60.53%. The Union did not provide any additional evidence of support for recognition, such as a petition, but the Panel considers that, in the absence of evidence to the contrary, union membership provides 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. No evidence to the contrary was provided in this case. On 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.

28)       Finally, the Panel notes the Employer’s comments on why it believes that the Union’s proposed bargaining unit is unsuitable. However, this is a matter that will, if necessary, be considered at a later stage of the process.

8. Decision

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

Panel

Mrs Sarah Havlin, Panel Chair

Mr David Cadger

Mr Paul Moloney

29 April 2024