Decision

Recognition Decision

Updated 18 March 2025

Applies to England, Scotland and Wales

Case Number: TUR1/1438(2024)

18 March 2025

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

Transport Salaried Staffs’ Association

and

TransPennine Trains Limited

1. Introduction

1)         Transport Salaried Staffs’ Association (the Union) submitted an application to the CAC dated 19 November 2024 that it should be recognised for collective bargaining purposes by TransPennine Trains Limited (the Employer) in respect of a bargaining unit comprising “Employees of TransPennine Trains Limited (operating as TransPeninne Express) within a bargaining unit consisting of Senior Customer Delivery Managers and Customer Delivery Managers.”  The location of the bargaining unit was given as “Manchester x 18” and “Leeds x 14.”  The application was received by the CAC on 19 November 2024 and the CAC gave both parties notice of receipt of the application on 20 November 2024.  The Employer submitted a response to the CAC dated 22 November 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 Chair established a Panel to deal with the case.  The Panel consisted of Mrs Lisa Gettins, Panel Chair, and, as Members, Mr Rob Lummis and Mr Ian Hanson. The Case Manager appointed to support the Panel was Kate Norgate.

3)         By a decision dated 19 December 2024 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit.  In an email to the Case Manager dated 2 October 2024 the Union said that the parties had reached agreement as to the appropriate bargaining unit, namely: “Employees of TransPennine Trains Limited (operating as TransPeninne Express) within a bargaining unit consisting of Senior Customer Delivery Managers and Customer Delivery Managers.”  The agreed bargaining unit was the same as that proposed by the Union in its application to the CAC.

2. Issues

4)         The next stage of the procedure required the Panel to decide whether a majority of the workers in the bargaining unit are members of the Union. Paragraph 22 of the Schedule provides that if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies.  Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled.  The three qualifying conditions are:

(i) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(ii) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

(iii) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf.  Paragraph 22(5) states that “membership evidence” is (a) evidence about the circumstances in which union members became members, or (b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

3. The Union’s claim to majority membership

5)         In a letter dated 10 October 2024 the Union was asked by the CAC whether it claimed majority membership within the bargaining unit and, if so, whether it submitted that it should be granted recognition without a ballot. The Union, in an e-mail dated 18 February 2025, stated that it was claiming majority membership as demonstrated by the previous membership check carried out by the CAC in December.  The Union said that since then, the total staff had reduced to 30 and its current membership was 19.  The Union therefore believed that its membership density had grown as a result.

6)         On 19 February 2025 the Union’s e-mail was copied to the Employer, and it was invited to comment the Union’s claim to majority membership.  The Employer was also invited to make submissions in relation to the three qualifying conditions specified in paragraph 22(4) of the Schedule and set out in paragraph 4 above. 

4. The views of the Employer

7)         In an e-mail to the Case Manager dated 25 February 2025 the Employer disputed the Union’s claim to majority membership, stating that it believed the figure to be much lower, and closer to 50% or less.  When further stating its “Reasons to question the membership”, the Employer made the following points:

• Less than 50% of the team were currently members of the TSSA, with 10% of the colleagues within the team being members of the RMT union.

• There had been a number of leavers since the last membership check, and the Employer believed that there were no longer 19 TSSA members from within the team.

• The discussions that the Employer had held within the team regarding Union recognition had indicated that less than 40% of the team now wanted union recognition.

• When asked for the reasons for wanting union recognition, the team had stated that it was due to changes in uniform, a pay rise, job security and to be represented by the TSSA at grievances or disciplinary hearings.  There seemed to be a lack of understanding over the need for collective bargaining.

• Three known TSSA members were shortly due to leave the bargaining unit.

• The Employer was aware that several colleagues within the team had recently ceased their membership with the TSSA and this had further reduced the number of TSSA members within the team since the last membership check.

8)          Finally, the Employer said that to ensure fairness to the whole team, it requested that the CAC “allow the request of union recognition to go out to a ballot to 100% of the team, as we believe strongly that TSSA do not have majority membership. A ballot will also ensure that we maintain good working relationships with the TSSA.”  

5. The Membership Check

9)         To assist in deciding whether to arrange for a secret ballot under the Schedule the Panel proposed an independent check of the level of union membership within the bargaining unit. It was explicitly agreed with all parties that, to preserve confidentiality, the respective lists would not be copied to the other party. The information from the Union was received on 28 February 2025 and from the Employer on 4 March 2025. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

10)       The Union provided a spreadsheet with the details of 19 members The Employer provided a spreadsheet with the details of 30 workers.  According to the Case Manager’s report, the number of Union members in the bargaining unit was 18, a membership level of 60%.

11)       A report of the result of the membership check was circulated to the Panel and the parties on 6 March 2025.     The letter sent to the Union also invited it to comment on the Employer’s e-mail of 25 February 2025 in which it submitted that one or more of the qualifying conditions as specified in paragraph 22(4) of the Schedule, are fulfilled.

6. The views of the Union

12)       In a letter to the CAC dated 6 March 2025 the Union said that it had been able to maintain good industrial relations with the company in other forums, as well as in its capacity as an Organiser working for the TSSA, in which multiple meetings had taken place with TransPennine Express on a regular basis, and where it had managed to keep cordial relations despite the issues that it needed to raise on behalf of members.   The Union explained that it was also currently in the process of trying to agree a method of collective bargaining for another group of managers where the company had not challenged majority membership. The meeting went well, and the Union had managed to set up further meetings to hopefully conclude the matter.  The Union hoped that it could do the same for this bargaining group.  The Union also responded as follows to the points made by the Employer:

• The Union believed that the Employer’s assertion concerning the current level of union membership was wrong, and that this was demonstrated by the most recent membership check.

• The Union was concerned that the Employer may have excluded a Senior Customer Delivery Manager who was on a secondment from its list, and that this might be why 1 member did not appear on the Employer’s list. The Union maintained that if that was the case, it did have 19 members in the bargaining unit, but nevertheless the Union had a majority in membership as proved by the recent check.

• In response to the Employer’s comment that less than 40% of the team now want union recognition, it was the Union’s view that the Employer had not provided any evidence to substantiate this claim despite having the opportunity to do so, and, as per the first 2 points, the Union believed it was baseless and an attempt to prevent/slow down their staff receiving collective bargaining.

• The Union maintained that the Employer seemed ignorant as to why individuals had chosen to gain collective bargaining, further stating that “individuals concerned had to have a pay rise in April 2024 out of cycle with their pay rise in order to prevent them being paid less than the minimum wage and they face that again this coming April.”  The Union said that Job security was a clear legitimate reason for having collective bargaining and in many of the agreed collective bargaining forums across the rail industry, Uniform was a regular item that was consulted on and discussed with trade unions and reps. In terms of Grievances and Disciplinaries, the members want their own representatives trained up with paid release in order to represent them in these processes.

• In response to the Employer’s comment that three known TSSA members were shortly due to leave the bargaining unit, the Union said that this was not relevant, “as the overall density would still be above 50% +1, unless the employer would seek to fill roles quickly with non-union members in order to seek to prevent collective bargaining.”   The Union said that it believed that “the staff won’t leave until the end of March and they won’t be replaced until April so majority density won’t be affected in the short term.”

• In response to the Employer’s comment that several colleagues within the team  had recently ceased their membership with the TSSA, which had reduced the number of TSSA members within the team further since the last membership check, the Union said that “The membership check has proven this not to be the case in terms of NET membership, people have continued to join us in order to win collective bargaining and the majority membership is the relevant point.”

• Finally, the Union said that the Employer simply wanted to delay the collective bargaining past the pay anniversary date of 1 April so that the group would be unable to have a voice in that process and deal with some very legitimate trade issues in terms of pay and terms and conditions. The Union further adding that on the basis of the membership check, it asked that statutory recognition be granted.

7. Considerations

13)       The Act requires the Panel to consider whether it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union.  If the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Union, it must then decide if any of the three conditions in paragraph 22(4) is fulfilled.   If the Panel considers that any of them is fulfilled it must give notice to the parties that it intends to arrange for the holding of a secret ballot. 

14)       As stated in paragraph 10 above, the membership check conducted by the Case Manager showed that 60% of the workers in the bargaining unit were members of the Union.  The Panel is satisfied that a majority of the workers in the bargaining unit are members of the Union.

15)        The Panel has considered carefully whether any of the qualifying conditions set out in paragraph 22(4) of the Schedule is fulfilled.

16)       The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations.  The Panel has not received any evidence that a ballot should be held in the interests of good industrial relations and is not satisfied that this condition is fulfilled.

17)    The second condition is that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union to conduct collective bargaining on their behalf.  The Panel notes the Employer’s comments that less than 40% of the team now want union recognition, and that there appeared to be a lack of understanding over the need for collective bargaining.  However, the Panel has received no such evidence to support this claim, and the Panel has therefore concluded that this condition does not apply.

18)    The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union to conduct collective bargaining on their behalf.  No such evidence has been produced, and the Panel has therefore concluded that this condition does not apply.

8. Declaration of recognition

19)   The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that a majority of the workers constituting the bargaining unit are members of the Union. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule is fulfilled. Pursuant to paragraph 22(2) of the Schedule, the CAC must therefore issue a declaration that the Union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising “Employees of TransPennine Trains Limited (operating as TransPeninne Express) within a bargaining unit consisting of Senior Customer Delivery Managers and Customer Delivery Managers.” 

Panel

Mrs Lisa Gettins

Mr Rob Lummis

Mr Ian Hanson

18 March 2025