Decision

Acceptance Decision

Updated 20 July 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1344(2023)

20 July 2023

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

Southeastern Railway

1. Introduction

1) TSSA (the Union) submitted an application to the CAC on 26 June 2023 that it should be recognised for collective bargaining by Southeastern Railway (the Employer) for a bargaining unit comprising the “Operational Communications Manager (OCM) Passenger Services Coordinator (PSC)”. The CAC gave both parties notice of receipt of the application on 27 June 2023. The Employer submitted a response to the CAC dated 3 July 2023 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 Sarah Havlin, Panel Chair, and, as Members, Mr Martin Kirke and Mrs Anna Berry. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 10 July 2023. The acceptance period was then extended to 24 July 2023 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 22 March 2023. As no response was received, the Union sent a follow up email to the Employer on 5 April 2023 stating if there was no response agreeing to meaningful discussions regarding a recognition agreement by noon on 20 April 2023, the Union intended to progress to statutory proceedings. The Employer did not reply to this email either.

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 “TSSA have previously submitted an application in early 2020 which included the OCM and PSC roles in the bargaining group, however the application had to progress to the CAC and was subsequently unsuccessful because another role which was part of the bargaining group already having non-pay related collective bargaining. TSSA made an application for a bargaining group consisting off the OCM role on the 28 October 2022. This application did not get progressed by the employer and following a change in membership in the PSC role, TSSA decided to cancel this application, and re-apply on the 22 March 2023 for both roles together in the same bargaining group due to their similarity of their roles, this is the application that forms this claim”. 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 was approximately 4000 plus according to the Employer’s website. The Union confirmed that approximately 13 of these workers were in the proposed bargaining unit, of whom 9 were Union members. Asked whether the Employer agreed on the number of workers in the proposed bargaining unit the Union left this question unanswered. 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 “69.23% of staff in the bargaining unit are TSSA members. 76.92% of staff in the bargaining unit have signed a petition supporting union recognition with TSSA for collective bargaining purposes. There has been an increase in members within the bargaining unit since the campaign for collective bargaining has begun.”.

8) The Union stated it had selected the proposed bargaining unit because the workers performed a unique, discrete function making its proposed bargaining unit fully compatible with effective management. Both roles worked closely together as part of the control team. When asked whether the bargaining unit had been agreed with the Employer the Union answered “No”.

9) Finally, the Union stated that there was no existing recognition agreement which covered any of the workers in the bargaining unit, it 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 22 March 2023.

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 received the Union’s written request for recognition on 22 March 2023. When asked what its response to the request was, the Employer stated, “We had previously written to the TSSA on 21 November 2022 outlining why we did not feel the request was appropriate” The Employer stated in its response that it had received a copy of the Union’s application form from the Union on 26 June 2023 by email, and a copy of the application was also received from the CAC on 27 June 2023.

11) The Employer confirmed that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union. The Employer stated, “The intention was to meet with the full-time officer to discuss the rationale for the application, bearing in mind the previous General Secretary had accepted these workers were not in scope or appropriate for the original bargaining unit”.

12) The Employer, when asked if it agreed with the proposed bargaining unit, set out its objections stating “…We do not understand the basis upon which these roles have been selected to form a distinct bargaining unit. The management roles selected by the TSSA for this bargaining unit consist of just 9 members and this only makes up around 1.7% of Southeastern’s overall management population (not including senior managers/directors). We believe the TSSA is not, as it should be, considering what bargaining unit is appropriate, rather it is attempting to propose a bargaining unit which the TSSA believes puts it in the best position to secure recognition. This is particularly apparent given that there is no clear basis for selecting these individual management roles over and above other management roles. It would simply be impractical to have a bargaining unit of such a small size when the company already needs to negotiate and consult with a number of other recognised appropriate bargaining units”.

13) When asked if, following receipt of the Union’s request, it had proposed that Acas should be requested to assist, the Employer answered “No”.

14) The Employer stated that it employed a total of 4500 permanent workers. Asked whether it agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application the Employer answered, “Yes”.

15) The Employer said when asked if there an existing agreement for recognition in force covering workers in the proposed bargaining unit stated, “No but all managers other than the Control bargaining unit have a ‘Manager Forum’ which provides a framework for joint consultation between Southeastern and its Managers”.

16) Asked whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated “N/A”.

17) 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 stated “We have not checked this but have not received any request from any person in the bargaining unit supporting or requesting recognition. It is the size of the bargaining group that is the main issue”.

18) Finally, the Employer stated that it was not aware of any previous application under the Schedule for statutory recognition by the Union in respect of this or a similar bargaining unit. On 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 confirmed “N/A”.

5. The check of membership and support

19) 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 are 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 independent checks of the level of union membership in the proposed bargaining unit and the number of workers in that unit who had signed the Union’s petition in support of recognition. It was agreed with the parties that the Employer would supply to the Case Manager a list of the full 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 the full names and dates of birth of the paid-up union members within that unit and a copy of the petition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and the petition would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to both parties dated 4 July 2023.

20) The information from the Union was received by the CAC on 6 July 2023, and the Employer on 11 July 2023. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

21) The list supplied by the Employer showed that there were 13 workers in the proposed bargaining unit. The list of members supplied by the Union contained 10 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 9, a membership level of 69.23%.

22) The Union also provided a petition, which contained 10 names/signatures. The petition consisted of 1 A4 sheet with the headings: “Name”, “Signature”, “Job Title”, “Date”, and “Email”. The Petition was set out as follows:

“Southeastern May 2023 TSSA

We the undersigned want and support TSSA’s campaign for union recognition in Southeastern’s Puddle Dock Control Room for Operational Communication Managers and Passenger Service Coordinators. We want the bargaining agreement in order to negotiate on our terms and conditions. Southeastern Control Room-Puddle Dock- OCM/PSC** Please note: This petition may be used as evidence in any application for recognition to show strength of feeling amongst workers this will only be used when it is a majority petition so the more of you that joined the better TSA will contact you once it is complete if you give consent for this please provide your e-mail”

23) The report showed that 76.92% of workers in the proposed bargaining unit had signed the petition in favour of recognition. The proportion of workers in the proposed bargaining unit who had signed the petition and were non-members was 15.38%.

24) A report of the result of the membership and support check was circulated to the Panel and the parties on 11 July 2023 and the parties were invited to comment on the results by close of business on the 14 July 2023.

6. Parties’ comments on the membership check

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

7. Considerations

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

27) 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. 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.

8. Paragraph 36(1)(a)

28) 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 21 above showed that 69.23% 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.

9. Paragraph 36(1)(b)

29) 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.

30) The Panel considers that members of the Union would be likely to favour recognition of the Union for collective bargaining (69.23%), as would non-union members who signed the petition (15.38%); giving a total of 84.61%. The Panel can only act on the evidence presented and on the basis of the evidence in this case, 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.

31) The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union.

10. Decision

32) 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 Martin Kirke

Mrs Anna Berry

20 July 2023