Decision

Acceptance Decision

Updated 5 October 2020

Applies to England, Scotland and Wales

Case Number: TUR1/1168(2020)

5 October 2020

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

Southeastern Railway

1. Introduction

1) The TSSA (the Union) submitted an application to the CAC on 16 April 2020 that it should be recognised for collective bargaining by Southeastern Railway (the Employer) for a bargaining unit comprising “Information Delivery Managers (IDM), Senior Information Members (ITM), Train Services Managers (TSM), Passenger Experience Delivery Manager (PEDM), Resource Manager (RM) [and] Operation Communication Manager (OCM)”. The location of the bargaining unit was given as 1 Puddle Dock, London EC4V 3DS. The CAC gave both parties notice of receipt of the application on 17 April 2020. The Employer submitted a response to the CAC dated 30 April 2020 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 Mr Charles Wynn-Evans, Panel Chair, and, as Members, Mr Robert Lummis and Mr David Coats. The Case Manager appointed to support the Panel was Nigel Cookson.

2. Issues

3) 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

4) In its application the Union said that it had written to the Employer with a formal request for recognition on 28 February 2020. A copy of the Union’s letter of 28 February 2020 was enclosed with the application. The Employer responded on 13 March 2020 questioning why the Union had included the role of Senior Information Members in the bargaining unit as they were already covered by collective bargaining. It asked whether the Union would accept that the proposed bargaining unit was wrong and so withdraw the application and failing that, whether the Union would withdraw the application until a later point in the year. If the Union did not wish to do either of those things, the Employer confirmed that it did not accept the request but that, subject to its concerns about its admissibility, it was prepared to negotiate but wished to extend the 20 working day period to mid-June 2020 to allow it to focus on the Coronavirus crisis. A copy of the Employer’s letter of 13 March 2020 was enclosed with the application. The Union responded on 24 March 2020 rejecting the Employer’s proposal to extend the 20 working day period.

5) The Union stated that, according to the Employer, there was a total of 4,000 workers employed by the Employer with 79 of these workers falling within the proposed bargaining unit. The Union stated that it had 46 members within the proposed bargaining unit. Asked to provide evidence that a majority of the workers in the proposed bargaining unit was likely to support recognition for collective bargaining, the Union said that 58% of staff in the proposed bargaining unit were in membership and it attached evidence of the Union’s growth in membership by way of a table.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that the workers therein performed a unique, discrete function within the Employer making the proposed bargaining unit fully compatible with effective management. The Union added that in a recent CAC case a similar bargaining unit was accepted by the CAC. The rail industry operated by way of Railway Operating Centres in which staff from train operators were co-located with those from the infrastructure owner and this was the case here. The Union failed to confirm whether or not the proposed bargaining unit had been agreed with the Employer.

7) The Union confirmed that it was in possession of a certificate of independence from the Certification Officer. Asked whether, following receipt of the Union’s request for recognition, the Employer proposed that Acas be requested to assist, the Union did not give an answer but in the field in its application where it was to provide the details of any Acas contact, if any, it stated that it had suggested to the Employer that Acas should be involved but this did not develop into any talks.

8) Finally, the Union said there had not been a previous application in respect of this or a similar bargaining unit and there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

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

9) The Employer stated that it had received the Union’s formal request for recognition by email on 28 February 2020 and subsequently by recorded delivery. As an aside, the Employer noted that the copy of the Application provided by the CAC did not detail the Union’s responses to Questions 7, 10 and 16. The version provided by the Union confirmed the following details in respect of these Questions: 7 (NO) ^{[footnote 1]}, 10 (YES) ^{[footnote 2]} and 16 (NO) ^{[footnote 3]}. When asked what its response was, the Employer stated that the request was not accepted. The Employer explained its reasons in its letter dated 13 March 2020 which was included in the Union’s supporting documents, but it had confirmed that, if the Union wished to pursue its request at this time, it was prepared to negotiate. However, the Employer’s request that the 20 day negotiation period be extended was rejected by the Union.

10) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated this was 16 April 2020. The Employer confirmed that it had not agreed the proposed bargaining unit prior to having received a copy of the completed application form and this remained the case. The Employer then went on to set out its objections to the proposed bargaining unit which included, inter alia, that the Union (along with the Associated Society of Locomotive Engineers and Firemen (“ASLEF”) and the National Union of Rail, Maritime and Transport Workers (“the RMT”)) was already recognised by the Employer in respect of Administrative grades which included the Senior Information Members (“ITMs”) who had been included in the Union’s proposed bargaining unit.

11) The Employer stated that it employed a total of 4,499 workers, not the figure quoted by the Union. The Employer did not agree with the Union’s figure as to the number of workers in the proposed bargaining unit, stating that there were currently 77 workers and three vacancies in the proposed bargaining unit. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the proposed bargaining unit, the Employer stated that it disagreed with the Union’s claim that it had 58% membership and considered that this was unlikely to be accurate and gave reasons for arriving at this conclusion.

12) When asked to give reasons if it did not consider that a majority of the workers in the proposed bargaining unit were likely to support recognition, the Employer submitted that a membership and support check should be undertaken if the CAC was minded to consider the application. The Union had referred to an alleged petition and provided no evidence in support of this alleged petition or alleged support and, in referring to the alleged petition, the Union sought to rely upon a document or documents in support of the application which had not been provided to the Employer. The Employer submitted that the application was not admissible accordingly pursuant to the clear statutory wording of paragraph 34(b) of the Schedule.

13) Countering the Union’s claim to majority support, the Employer argued that the test established by paragraph 36(1)(b) of the Schedule was not that the majority of the members of the proposed bargaining unit would be likely to support recognition of a union for collective bargaining purposes but that the 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 proposed bargaining unit and there was no evidence to support the satisfaction of the test laid down in paragraph 36(1)(b) of the Schedule. The CAC had not been provided with any cogent and specific evidence of support for recognition which it would need before it could find the test in paragraph 36(1)(b) satisfied.

14) Asked whether there was an existing agreement for recognition in force covering workers in the proposed bargaining unit the Employer answered “Yes” and enclosed with its response a copy of the agreement on which it relied in this regard, being the Procedure Agreement (“the Procedure Agreement”) which came into effect on 28 February 2005 and pursuant to which the Employer jointly recognises ASLEF, the RMT and the Union. The Employer’s Administrative grades were covered by the Procedure Agreement and included the ITMs which the Union had chosen to include in its proposed bargaining unit.

15) When asked whether, following receipt of the Union’s request, the Employer had proposed that Acas be requested to assist, the Employer answered “No” and finally, 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 Employer answered “No”.

5. The Union’s comments on the Employer’s response

16) The Employer’s response was copied to the Union and the Union’s comments invited both in general and specifically on the Employer’s assertion therein that a number of the workers in the proposed bargaining unit were covered by an existing agreement for collective bargaining. In an email dated 1 May 2020 the Union referred to Clause 32 of the Procedure Agreement which clearly stated that the Union did not currently negotiate pay on behalf of those workers who were part of the Administrative Council:

“32 The following questions for negotiation are within the purpose of the Council:- i) pay rates (except the Administrative Council), grade structures, remuneration systems and related terms and conditions of employment ii) promotion, transfer, redundancy and resettlement arrangements.”

17) The Union also set out its response to the Employer on the 18 March 2020 when it had previously raised this point:

“Further to my earlier response with regards to ITMs, I have now checked and your assertion that these workers are covered by collective bargaining is erroneous.

Please see the attached a document from your Company which shows that we don’t bargain for pay for ITMs as they are administrative staff - clause 32(i) in the attached. As you know, statutory recognition covers collective bargaining - as a minimum - for pay, hours and holidays and consequently, our proposed bargaining unit is in order…”

18) The Union submitted that it had selected a proposed bargaining unit which was fully compatible with effective management as all the workers within it performed a unique role and were based at the same location. The Union had majority membership and overwhelming support for recognition and therefore the application should be accepted by the Panel.

6. Paragraph 35 of the Schedule (“paragraph 35”)

19) In light of the Employer’s response, it was apparent to the Panel that a live issue to be determined in relation to whether this application is admissible was the operation of paragraph 35.

20) Paragraph 35 provides as follows:-

(1) An application under paragraph 11 or 12 is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit.

(2) But sub-paragraph (1) does not apply to an application under paragraph 11 or 12 if—

(a) the union (or unions) recognised under the collective agreement and the union (or unions) making the application under paragraph 11 or 12 are the same, and

(b) the matters in respect of which the union is (or unions are) entitled to conduct collective bargaining do not include all of the following: pay, hours and holidays (“the core topics”).

21) Accordingly, paragraph 35(1) precludes an application for recognition where a union is (or unions are) recognised in respect of any workers in the bargaining unit “as entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit” save in the circumstances expressly permitted by paragraph 35(2).

22) However, an application is nonetheless admissible pursuant to paragraph 35(2) where both of two conditions are met:-

(a) the application is made by the same union or unions who are already recognised; and

(b) the existing recognition arrangements do not cover all of the three matters which form the subject matter of statutory trade union recognition under the Schedule, namely pay, hours and holidays.

23) Consequently, in essence, paragraph 35 has the effect that a union or unions which is/are already recognised for collective bargaining purposes under a collective agreement in respect of any workers in the proposed bargaining unit but which is/are not recognised in respect of all of the subject matter of statutory trade union recognition – pay, hours and holidays - can make an application for recognition under the Schedule in order to “top up” the scope of the existing recognition arrangements to cover all the matters in respect of which statutory recognition applies. Crucially, this application must be made by all the jointly recognised unions.

24) The Panel therefore proceeded to make enquiries of the parties and ultimately the other relevant trade unions in order to ensure that it reached its decision on the application of paragraph 35 with the benefit of as much relevant information as possible.

7. The Employer’s initial submissions on paragraph 35 of the Schedule

25) In response to the Panel’s request for its specific comments on the issue of the application of paragraph 35 to the Union’s application, in its letter to the Panel dated 11 May 2020, the Employer accepted that the Procedure Agreement excluded from its scope negotiation over pay in respect of the ITMs. This was a point which the Union had made in its email to the Panel of 1 May 2020. In the Panel’s view this was an uncontroversial matter since, as noted above, the ITMs fall within the scope of the Administrative Council in respect of which negotiation over pay rates is specifically disapplied by clause 32(i) of the Procedure Agreement.

26) The Employer therefore did not contest that, of the two conditions under paragraph 35 needing to be fulfilled for this application to be admissible, the second – under paragraph 35(2)(b) - was therefore satisfied i.e. the existing recognition arrangements did not cover all the subject matter of statutory trade union recognition, being pay, hours and holidays. However, the Employer contended that the Union’s application was nonetheless rendered inadmissible because the first condition needing to be fulfilled for this application to be admissible pursuant to paragraph 35(2)(a) was not satisfied - by virtue of this application not being made by all the unions recognised by the Employer pursuant to the Procedure Agreement.

27) The Employer’s arguments in this regard were in summary that:-

(a) The parties to the Procedure Agreement, and therefore the unions who were recognised for the purposes of determining the application of paragraph 35 to the Union’s application, were ASLEF, the RMT and the Union.

(b) The Union’s application for recognition was not made by the same unions as were recognised under the Procedure Agreement – the unions recognised under the Procedure Agreement (ASLEF, the RMT and the Union) and the union making this application (the Union) were not the same.

(c) Accordingly, the Union’s application was inadmissible since the requirement of paragraph 35(2)(a) was not satisfied – that the application be made by the same union, or unions as applicable in this case, which were currently recognised.

28) In support of this interpretation the Employer referred the Panel, albeit without any specific reference to any particular passage in the judgment, to R (on the application of the Independent Workers’ Union of Great Britain) v CAC and Cordant Security Ltd and the University of London [2019] IRLR 530, submitting that Supperstone J had held that the aims of the Schedule included avoiding a multiplicity of competing collective bargaining arrangements which would not be conducive to efficient and effective collective bargaining and encouraging the formation and maintenance of voluntary collective bargaining.

29) In summary, therefore, the Employer argued that, in accordance with the clear wording of paragraph 35, as well as the purpose, intention and spirit of paragraph 35 and the statutory scheme established by the Schedule, only a joint application by the Union, the RMT and ASLEF could fall within the exception provided by paragraph 35(2) and therefore take advantage of the exception to the admissibility bar generated by the Procedure Agreement already being in place in respect of the workers within the Union’s proposed bargaining unit.

8. The Union’s initial submissions on paragraph 35

30) In its email to the Panel dated 12 May 2020 the Union addressed the issue of the status of the Procedure Agreement as a collective agreement which would bar the Union from making this application. The points made by the Union in that letter, to the extent that they relate to the application of paragraph 35, were as follows.

31) First, the relevant workers had no collective bargaining representation over pay, as the Employer had accepted. Second, clause 29 of the Procedure Agreement provided that nominations for appointment to the Staffs’ Side should be submitted by the “relevant trades unions” to the Secretary of the Council. The Union contended that the use of the word “relevant” in this clause was used because not all unions were recognised for all Councils. In support of that contention the Union noted that it had no representation amongst Drivers, that ASLEF had no representation in relation to the Stations Council and that the Union was the only union recognised in the Administrative Council. The Union, which sought bargaining rights for the ITMs and other workers in its proposed bargaining unit over the statutory minimum matters of pay, hours and holidays, refuted the Employer’s assertion that there was a joint union agreement covering the ITMs. Employer’s further response

32) In its further letter to the Panel dated 26 May 2020 - in relation to which the Union confirmed by email dated 21 May 2020 that it had nothing further to add – the Employer further addressed the requirements of paragraph 35 as requested by the Panel.

33) The additional points which the Employer made were as follows:-

(a) The Procedure Agreement did not constitute “sweetheart” or convenience voluntary arrangements but was a longstanding voluntary arrangement with the three recognised unions where the current agreement had been in place for over 15 years.

(b) The Union’s proposed bargaining unit contained a mixture of management, in respect of whom there was currently no recognition, and administrative grades – the ITMs – who were covered by the Procedure Agreement.

(c) There was no prescribed basis under the Procedure Agreement for a particular union only to represent grades within a particular Council. The Employer argued that the reference in clause 29 of the Procedure Agreement to “relevant trades unions” (emphasis added) was a reference to the unions recognised under the Procedure Agreement and there was no allocation of a particular union to a particular Council under the Procedure Agreement. Whilst the Employer accepted that currently there were only representatives of the Union on the Administrative Council, that was not specified by the Procedure Agreement. All three unions were recognised as the Procedure Agreement specified.

(d) Whilst the Union argued that it did not organise for Drivers, the Employer considered that RMT would be likely to object to the notion that only ASLEF was recognised for Drivers, not least as it proposed candidates for election to the Drivers Council even though none had so far been elected.

(e) Likewise, there was no prescribed basis for a particular union only to represent particular grades in relation to the local representation arrangements established by Annex C to the Procedure Agreement.

(f) The Procedure Agreement was a longstanding voluntary agreement with the three unions in question covering the relevant employees and created a balance reflecting not only what the Employer was prepared to agree voluntarily with the three recognised unions but also what the three recognised unions were prepared to agree between themselves.

(g) The joint recognised status of the three unions in question was reflected, for example, by clause 6 of the Procedure Agreement which stated that “[t]he parties to this Agreement accept that they have a joint responsibility to ensure that the acceptance of proposals is not unreasonably withheld and, once questions or matters have been settled, to take all reasonable steps to ensure their successful implementation.”

(h) The Union’s application sought materially to change the balance of the Procedure Agreement without the input, say, or so far as the Employer was aware, input of ASLEF or the RMT and treated the Procedure Agreement as if it were solely an agreement between the Employer and the Union.

(i) To find that the Union was solely recognised in respect of ITMs would constitute a partial derecognition of ASLEF and the RMT without their input or, so far as the Employer was aware, their knowledge.

9. The Union’s further submissions on the term “relevant unions”

34) In its further response, as requested by the Panel, in relation to the Employer’s contentions with regard to the Procedure Agreement’s reference to “relevant unions” being entitled to nominate members of the Administrative Council, the Union made the following points. It argued that the Employer was “being somewhat disingenuous to say the least.” On its case, whilst both RMT and ASLEF had recognition for Train Drivers and their members could stand for the Drivers Council, the Union did not have recognition for that grade so its members could not stand. Conversely, in the Union’s submission, only it - and neither ASLEF nor RMT - had representation on the Administrative Council. The Union reiterated its refutation of the Employer’s claim that any union other than the Union had any collective bargaining rights for Administrative Staff.

35) The Union also argued that the Employer had produced no evidence to show that any union objected to this application, the Union’s suggestion being that this was because no other union saw the workers in its proposed bargaining unit as being within their sphere of influence and none of them had representation in the Administrative Council nor collective bargaining rights for those covered by that Council. The Union also made reference to the TUC’s disputes procedure in the case of any union being aggrieved at this application and argued that the fact that no dispute had been triggered with the TUC provided additional evidence that the Employer’s argument did not stand up to scrutiny.

36) The Union also reiterated that ASLEF had no representation in the Stations Council but both the Union and RMT did as they were both recognised for this grade. As the only union recognised in the Administrative Council and as the ‘relevant’ union, the only union representatives who could populate that Council were the Union’s.

10. The parties’ further submissions on paragraph 35

37) In a letter dated 23 June 2020 the Panel directed that the Case Manager write to the parties setting out its understanding as to what the Union contended, namely:

• notwithstanding the Procedure Agreement conferring joint recognition on the Union, ASLEF and the RMT, it was the sole recognised trade union in respect of the Administrative Council and therefore the ITMs falling within its proposed bargaining unit and in respect of whom it did not have recognition in respect of pay.

• consequently, the condition at paragraph 35(2)(a) of the Schedule was met by virtue of the Union being the sole recognised union for the purposes of this application and the relevant collective agreement.

38) The Union was asked to:

• confirm whether the Panel’s understanding of its position was correct; and

• whether it contended that its status in relation to the Administrative Council was argued to be by way of a separate collective agreement or a variation to the Procedure Agreement and, if the latter, on what basis such variation took effect.

39) Following receipt of the Union’s confirmation of its position, both parties would then be requested to provide to the CAC:

• their written submissions on whether, for the purposes of this application and in particular paragraph 35 of the Schedule, the Union was the sole trade union recognised in respect of the Administrative Council either in accordance with or notwithstanding the terms of the Procedure Agreement.

• any further submissions they wished to make in relation to the application of paragraph 35 of the Schedule to this application.

40) In an email dated 25 June 2020 the Union confirmed that the Panel’s understanding of its position was absolutely correct. It stated that its argument was based on the fact that it was - and had been since the Procedure Agreement came into being - the only union which had been recognised for and which had exercised bargaining rights for the Administrative Council. It submitted that, notwithstanding the clumsy wording of the Procedure Agreement, this had been an implicit term from the onset. The Union was absolutely confident that the Employer was unable to provide evidence to the contrary as this was de facto the situation. For example, could the Employer provide minutes of Administrative Council meetings showing the involvement of any other union?

41) Furthermore, if, as the Employer disingenuously claimed, all unions were recognised for all grades, then it begged the question as to why it had created six bargaining fora when one would suffice. The reason that there were six Councils was because different unions had bargaining rights for different grades based on long-established spheres of influence within the business and the rail industry. The Union had highlighted this in previous correspondence with the Panel citing the case of Train Drivers. As previously stated, in the case of the Administrative Council, only the Union bargained on behalf of its constituents.

42) On 1 July 2020 the Union confirmed that it had no further submissions to make in relation to the second part of the Panel’s direction above.

43) In a letter of 3 July 2020 the Employer again submitted that the Union’s application was inadmissible under paragraphs 35(1) & (2) of the Schedule and reiterated many of the points previously made. In its response dated 30 April 2020, the Employer noted that there was an existing agreement for recognition in force which covered the Senior Information Members (ITMs) which the Union had included in the proposed bargaining unit. Contrary to the suggestion made by the Union in its emails of 12 May 2020 and 25 June 2020, there was no basis for a particular union only to represent grades within a particular Council and, despite the specific request of the Panel, it was noteworthy that the Union did not identify or seek to rely upon any variation of the Procedure Agreement or any separate or collateral agreement. No such variations or separate agreements existed and, in any event, any such variation would require the agreement of all four parties to the Procedure Agreement.

44) The Union stated that the reason for the six different councils was because different unions had bargaining rights for different grades, but this was not the case and the fact that there were different councils for different grades did not in any way provide the Union with sole recognition in respect of Administrative Grades. The reason for having the different forums was that the considerations, terms, work practices, etc., differed amongst the different grades and it was more efficient to separate these issues. There was no basis for a particular union only to represent particular grades within each constituency.

45) The Employer did not dispute that the only representatives on the Administrative Council were from the Union. However, this did not mean that the Union had sole recognition in respect of Administrative Grades. Indeed, there were only ASLEF representatives on the Drivers Council but, as the Union accepted, this did not mean that ASLEF had sole recognition in respect of Drivers. Clause 3 of the Procedure Agreement was clear in this respect. There could be no “implied” sole recognition as the Union suggested because the Agreement expressly set out the position in respect of how recognition worked.

46) As a longstanding voluntary agreement with the three unions in question, the Procedure Agreement created an important voluntary collective balance. It contained not only what the Employer was prepared to agree voluntarily with the three recognised unions; but also what the three recognised unions were prepared to agree amongst themselves. The Union was seeking materially to change the balance of the Procedure Agreement without the input or knowledge of ASLEF or the RMT. It was approaching this matter as if the Procedure Agreement was an agreement just between the Union and the Employer. A finding by the CAC that the Union was solely recognised in respect of the ITMs was also a partial de-recognition of ASLEF and the RMT. This was expressly prohibited by paragraph 35(2) of the Schedule and the present circumstances were a reflection of the very reason why that prohibition existed. This was a fundamental tenet of the statutory scheme to ensure that voluntary agreements were respected and the CAC did not become involved in any inter-union rivalry.

47) The wording of paragraph 35 was clear - if there were unions (plural) recognised by a collective agreement in respect of any worker in the bargaining unit then an application was inadmissible. If an application sought to take advantage of the exception in paragraph 35(2), then those same unions (plural) must be parties to such an application. The Procedure Agreement recognised the Union, the RMT and ASLEF in respect of all employees except manager and director grades. This included the ITMs which the Union had chosen to include in its proposed bargaining unit. The application had been brought by the Union alone and not by the Union, the RMT and ASLEF. Consequently the Employer submitted that this application was inadmissible.

11. Views of the interested parties

48) On 17 July 2020 the parties were informed that, in view of the Union’s contention in effect that it has sole recognition rights in respect of the Administrative Council, and the parties’ conflicting submissions as to the interpretation of the terms of the Procedure Agreement, the Panel had determined that it should seek the views of ASLEF and the RMT on this issue on the basis that they are interested parties as signatories to the Procedure Agreement whose position on this question might assist the Panel in reaching its decision on the admissibility of this application.

49) In letters of the same date the Case Manager wrote to the interested parties, ASLEF and the RMT, seeking confirmation of their respective positions in relation to the issue of whether the Union had sole recognition and bargaining rights in respect of the Administrative Council or whether all of the unions that were party to the Procedure Agreement were jointly recognised by the Employer in respect of the Administrative Council.

50) On 8 August 2020 the RMT stated that it had members throughout the length and breadth of the Employer’s business, and it was quite surprised that it had not been approached by the Union on the matter of extending recognition to cover pay and other aspects of the bargaining arrangements. The RMT would have historically expected a communication on such a matter and most probably would have been invited to be a party to a submission to the CAC. The RMT said that it had worked well in the past with the Union in dealing with the grouping with the Union taking the lead and informing the RMT of details as and when required. This arrangement, whilst not the most desirable, was as good as the unions could get despite frequent requests for recognition.

51) The RMT had not had time to analyse its membership data but stated that it had members within the proposed bargaining unit and could not understand why the Union had gone it alone without the RMT being consulting or requesting a joint approach instead of attempting to leave the other parties to the current arrangements out of the application.

52) In an email dated 14 August 2020 ASLEF stated that it did not have any information to add because the proposed bargaining unit would not be represented in collective bargaining by ASLEF.

12. Parties’ observations on the interested parties’ comments

53) The correspondence received from ASLEF and the RMT was copied to the parties and their observations invited. The parties were also informed that the Panel proposed to reach its decision on the papers once it had received the parties’ final comments, unless the parties requested a hearing and the Panel was persuaded that this was necessary.

54) In an email dated 14 September 20200 the Union stated that its view was that the Employer was disingenuously claiming that all unions were recognised for all grades and that the email from ASLEF clearly supported the Union’s view.

55) The Union had already highlighted in its previous correspondence that the reason that there were six Councils was because different unions had bargaining rights for different grades based on long-established spheres of influence. ASLEF’s email reiterated the point that, although it was a signatory to the existing recognition agreement, it stated that this bargaining unit “would not be represented in collective bargaining by ASLEF”.

56) As previously stated, in the case of the Administrative Council, only the Union bargained on behalf of its constituents. The RMT’s letter stated that some administrative workers may be individual members of the RMT which was not denied. In fact, it was common practice for both drivers and conductors to move to administrative grades on ill-health grounds and for these workers to retain their membership of ASLEF or the RMT. However, the RMT did not claim that it had recognition for workers within the Administrative Council. Instead, it made reference to one of the Union’s former paid Organisers, ‘taking the lead’ and ‘informing me of details as and when required’. More tellingly, it stated that this was the best arrangement the RMT could get “despite frequent requests for recognition”. This supported the Union’s assertion that it was the only union that bargained on behalf of those covered by the Administrative Council.

57) Finally, as the Panel was aware, the Union’s argument was based on the fact that since the Procedure Agreement came into being, it was the only union which was recognised for and which had exercised bargaining rights for the Administrative Council. Notwithstanding the clumsy wording of the Procedure Agreement, this had been an implicit term from the onset. Nothing in the communications from ASLEF or the RMT contradicted the Union’s position.

58) In a letter dated 16 September 2020 the Employer commented on the correspondence received from the interested parties as follows. In respect of the RMT clearly took exception to the unilateral application of the Union and was surprised that it had not been approached. The RMT confirmed that it had members in the proposed bargaining unit and its position reflected the submissions that had been consistently and repeatedly made by the Employer - that with a multi-party recognition agreement like the Procedure Agreement, where all the unions were recognised for all the employees, any application seeking to take advantage of the exception under paragraph 35(2) had to be made by all the unions to that agreement. The RMT clearly thought that the Union had tried to “steal a march” on the RMT, by seeking to make a unilateral application “and attempting to leave the other parties to the current arrangements out of the application.” Either an application was brought under paragraph 35(2) by all the unions to a joint agreement (in which case it was admissible under paragraph 35(2)) or the application was brought by only one of those unions (in which case it was inadmissible and should be dismissed).

59) In respect of ASLEF, it was quite true that ASLEF’s short email approached the Union’s application with a degree of indifference. It was also quite true that there were no ASLEF representatives on the Administrative Council at present. This current state of affairs would not, however, prevent ASLEF putting forward representatives for the Administrative Council, pursuant to the Procedure Agreement, at some future date, if it wished to do so. That it did not, at the present time, have representatives on the Administrative Council and so may not, at present, be involved in collective bargaining in respect of the workers in the Administrative Council was not the test which was established by paragraph 35(1) of the Schedule. The test was not whether ASLEF currently conducted collective bargaining; rather it was whether there was in force a collective agreement under which ASLEF was “recognised as entitled to conduct collective bargaining” on behalf of any workers falling within the relevant bargaining unit. Thus, the Employer submitted, the position adopted in ASLEF’s brief email failed to address the relevant issue which arose in respect of the Union’s application. However, in the light of the stance taken by the RMT, it submitted that the CAC may be relieved of the burden of having to make a finding to that effect, as the position of the RMT rendered the Union’s application patently inadmissible.

13. Considerations

60) As noted above, the Panel is required by paragraph 15 of 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.

61) The Panel has considered first the question of whether paragraph 35 is applicable and so renders the Union’s application inadmissible by virtue of there being an existing collective agreement in force which precludes this application for recognition.

62) The Panel has taken all the parties’ submissions into account fully and carefully in reaching its decision. The Panel has also reminded itself of the CAC’s general duty under paragraph 171 of the Schedule to have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace. The Panel considered that it was able to reach a decision on the basis of the written submissions it had received without the need for a formal hearing and, despite having been given the opportunity to do so, neither of the parties sought to argue that a formal hearing was necessary for the disposal of this matter.

14. The Procedure Agreement

63) In determining the admissibility of this application the Panel has considered the terms and application of paragraph 35 (as set out above) in connection with the Procedure Agreement. The relevant provisions of the Procedure Agreement for the purposes of this decision are as follows.

64) The parties to the Procedure Agreement are, pursuant to its clause 1, the Employer, ASLEF, the RMT, and the Union.

65) Pursuant to its clause 2, the object of the Procedure Agreement is stated to be to provide a procedural framework for collective bargaining and joint consultation in the interest of the Employer and its employees through a representative system.

66) Pursuant to its clause 3, the scope of the collective bargaining machinery established by the Procedure Agreement is specified to be all employees, except management and director grades, of the Employer whose terms and conditions are regulated by joint agreements with trades unions.

67) In addition to a separate Joint Consultative Forum, the Procedure Agreement provides, pursuant to its clauses 7 and 8 and its Annex B, for there to be a Functional Council. This Functional Council comprises six Councils. These are as follows - Drivers Council, Engineering Council (including Shunter drivers), Stations Council, Revenue Protection Council, Conductors Council and Administrative Council.

68) Clause 27 of the Procedure Agreement specifies the number of representatives on the Staffs’ Side in relation to each Council – there being two staff representatives in the case of the Administrative Council.

69) Clause 29 of the Procedure Agreement provides that nominations for appointment to the Staffs’ Sides shall be submitted by the “relevant trades unions” to the Secretary to the Council with the possibility of an election if nominations exceed the number of staff representatives.

70) The questions for negotiation under the Procedure Agreement extend, pursuant to its clause 31, to pay rates and other matters. However, clause 32(i) of the Procedure Agreement expressly excludes pay rates from the scope of the matters to be negotiated in relation to the Administrative Council.

71) Separate and specific local representation arrangements are established pursuant to Annex C to the Procedure Agreement.

15. The application of the Procedure Agreement to the Union’s proposed bargaining unit

72) The Union’s proposed bargaining unit covers a variety of different categories of employee namely Information Delivery Managers, ITMs, Train Services Managers, Passenger Experience Delivery Manager, Resource Manager and Operational Communication Manager. It is not necessary at this stage for the Panel to consider whether that proposed bargaining unit is compatible with effective management.

73) As is common ground between the Employer and the Union, the ITMs, a category of staff which is included within the scope of the Union’s proposed bargaining unit, are covered by the Administrative Council.

16. Analysis of the Procedure Agreement

74) In reaching its decision the Panel has needed to determine the nature of the Procedure Agreement - in terms of which union or unions are recognised in respect of which category of employee - in the light of the structure of separate Councils operating under the aegis of the Procedure Agreement. In particular, the Panel has considered the Union’s contention that there is no joint union agreement covering the ITMs and that therefore the Union is the sole recognised union in relation to the Administrative Council (and the employees covered by it) - with the consequence that the Union is therefore entitled, pursuant to paragraph 35(2), to seek recognition in respect of the those of the statutory recognition matters for which it is not recognised.

75) The Panel has concluded that the separate Councils established under the aegis of the Procedure Agreement do not constitute separate recognition arrangements for individual unions as they fall under the scope of the joint recognition agreed with all three unions in respect of all employees falling within the scope of the Procedure Agreement. This conclusion is supported by the facts that nominations to be appointed to the Staffs’ Side are, under clause 29 of the Procedure Agreement, to come from the relevant unions (plural), rather than a specific identified union or unions, and that elections are provided for in case of excess nominations. That the three unions are entitled to nominate workers for all the various Councils is consistent with the recognition conferred by the Procedure Agreement applying to all three unions in respect of all employees - and Councils - within the scope of the Procedure Agreement.

76) The reference to the “relevant trades unions” in paragraph 29 of the Procedure Agreement is in our view a reference to nomination by the unions of which the relevant nominees are members as the case may be – as members of all three unions can be nominated. It does not reflect variations as between the various Councils as to which of the three unions can nominate workers for appointment to the Staffs’ Side for a particular Council. This analysis is supported by the provision that any election for appointment to the Staffs’ Side is by secret ballot of all employees in the function who are members of the trades unions which are party to the Procedure Agreement. The Procedure Agreement does not separate out recognition for collective bargaining purposes as between the three relevant unions by reference to the various separate Councils. Rather, within the scope of the joint recognition of the three relevant unions, it provides a process for determining who will be the representatives for the Staffs’ Side from time to time in relation to each Council.

77) The Panel is satisfied that its analysis is correct by reference to the express wording of the Procedure Agreement and the fact that nominations and appointments have variously been made by more than one of the three relevant unions in respect of Councils other than the Administrative Council. In addition, we have seen no evidence that satisfies us that the operation in practice of the Procedure Agreement has varied the recognition conferred on the three relevant unions by the Procedure Agreement such that the Union has become the sole recognised union in respect of the Administrative Council. Not least in light of the appointment process provided for by the Procedure Agreement for the appointment of representatives on the Councils, the Panel is not satisfied that the fact that the Union is the only one of the three recognised unions whose members have in practice to date been nominated to the Administrative Council varied the scope of the joint recognition of all three unions.

78) Whilst the responses received by the Panel from the RMT and ASLEF to its enquiries in relation to the status of the Procedure Agreement did not address the questions asked of them directly, fully or in detail, their responses are consistent with the above conclusions. The RMT would have been expected to be involved in any move to seek to expand the scope of recognition in respect of workers within the Administrative Council as is consistent with its being jointly recognised in respect of those workers. The response from ASLEF - stating that it did not have any information to add because the proposed bargaining unit would not be represented in collective bargaining by ASLEF - did not specifically indicate that the Procedure Agreement had been varied or that the Union was or had become the sole union recognised in relation to the Administrative Council. Its response was also consistent with the fact that ASLEF does not, at the present time, have representatives on the Administrative Council but could under the provisions of the Procedure Agreement have such representatives in future.

79) Having considered the materials and submissions before it carefully, the Panel is satisfied that the joint recognition arrangements established by the Procedure Agreement extends to its constituent Councils, including the Administrative Council. Accordingly, the Union is therefore not the sole union recognised entitled to conduct collective bargaining on behalf of workers covered by the Administrative Council and therefore on behalf of the ITMs. The Panel is satisfied that all three parties to the Procedure Agreement are recognised under the Procedure Agreement as entitled to conduct collective bargaining on behalf of the ITMs.

17. Conclusions

80) The Panel’s decision is that the Union’s application is inadmissible pursuant to paragraph 35, its reasoning being as follows. The Panel is satisfied that:-

(a) The Procedure Agreement constitutes a (joint) collective agreement made between the Employer and the three relevant trades unions – the Union, ASLEF and the RMT.

(b) The Procedure Agreement establishes collective bargaining machinery in respect of all employees of the Employer other than management and director grades. The Procedure Agreement provides a procedural framework for the conduct of the collective bargaining in respect of which the trade unions who are party to it are recognised under its terms.

(c) The Union’s proposed bargaining unit includes workers – the ITMs - in respect of whom a collective agreement, namely the Procedure Agreement, applies.

(d) That there are separate Councils in respect of different categories of employee does not, for the reasons outlined above, confer separate and sole collective bargaining rights on any particular union of the three which are party to the Procedure Agreement in respect of a particular Council. These are Councils which operate under the aegis of the Procedure Agreement conferring collective bargaining rights on all three unions which are party to it in respect of the relevant workers.

(e) The Panel is not satisfied that the application in practice of the Procedure Agreement entails the Union being the sole trade union recognised as entitled to conduct collective bargaining in respect of the Administrative Council and thereby the ITMs.

(f) The Procedure Agreement therefore constitutes a collective agreement under which the three relevant unions – the Union, ASLEF and the RMT - are recognised as entitled to conduct collective bargaining on behalf of workers - the ITMs - falling within the proposed bargaining unit.

(g) Accordingly, paragraph 35(1) operates to render the Union’s application inadmissible unless paragraph 35(2) applies by virtue of both the conditions in paragraphs 35(2)(a) and (b) being satisfied.

(h) As clause 32(i) of the Procedure Agreement expressly excludes pay rates from the scope of the matters to be negotiated in relation to the Administrative Council, and thereby the ITMs, the matters in respect of which the Procedure Agreement confers the entitlement to conduct collective bargaining do not, in relation to the Administrative Council, include all of pay, hours and holidays.

(i) The condition in paragraph 35(2)(b) is therefore satisfied because the Procedure Agreement, excluding as it does from its scope negotiation over pay rates in respect of the employees covered by the Administrative Council, does not cover all three relevant matters of pay, hours and holidays in respect of the ITMs.

(j) However, the condition in paragraph 35(2)(a) is not satisfied because this application is made by the Union alone and not (jointly) by the three unions recognised under the Procedure Agreement. Accordingly, the union (or unions) recognised under the collective agreement and the union (or unions) making the application are not the same - as is required for paragraph 35(2)(a) to engage to render this application admissible.

(k) As one of the conditions of paragraph 35(2) is not satisfied, paragraph 35(1) operates to render this application inadmissible.

81) We are also satisfied that our conclusion is consistent with the scheme of the Act and the purpose of paragraph 35(2). Trade unions who are already partially voluntarily recognised are entitled to seek to extend their recognition rights to (all) the matters provided for under the statutory recognition procedure, However, where joint recognition is in place paragraph 35 ensures that this entitlement is available to and can be utilised only by all the recognised unions acting together, thereby furthering the objective of upholding arrangements which employers have voluntarily agreed and ensuring the maintenance of voluntary collective bargaining.

18. Decision

82) The Panel is satisfied that, by virtue of paragraph 35, the Union’s application to the CAC is not admissible.

Panel

Mr Charles Wynn-Evans, Panel Chair

Mr Robert Lummis

Mr David Coats

5 October 2020

1. Following receipt of the request for recognition, did the Employer proposed that Acas be requested to assist? ↩

2. Did the Employer agree on the number of workers in the proposed bargaining unit? ↩

3. Had the bargaining unit been agreed with the Employer? ↩