Decision

Acceptance Decision

Updated 18 December 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1439(2024)

18 December 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

TransPennine Trains Limited

1. Introduction

1)         The Transport Salaried Staffs’ Association (the Union) submitted an application to the Central Arbitration Committee (the CAC) on 19 November 2024 that it should be recognised for collective bargaining by TransPennine Trains Limited (the Employer) for a bargaining unit comprising of “Operations Development Managers (sometimes referred to as Operational Development Managers), Driver Operations Managers and Driver Managers.” The location of the bargaining unit was given as “Glasgow, Preston, Liverpool, Manchester, Cleethorpes, Sheffield, Hull, Newcastle, York and Scarborough.” The CAC gave both parties notice of receipt of the application on 20 November 2024. The Employer submitted a response to the CAC dated 26 November 2024.

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 Mr. Stuart Robertson, Panel Chair, and, as Members, Mr. Alistair Paton and Mr. Paul Morley. The Case Manager appointed to support the Panel was Joanne Curtis.

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. Summary of the Union’s application

4)         In its application the Union stated that it had written to the Employer with a formal request for recognition on 6 September 2024.  A copy of the Union’s letter dated 6 September 2024 was enclosed with the application. Following receipt of the Union’s request the Employer responded on 6 September 2024 stating that it would be more than happy to meet with the Union in October and that a mutually convenient date would be found. The parties requested ACAS to assist in negotiations.

5)        On 10 October 2024 the Union emailed the Employer expressing disappointment with the delay in progressing collective bargaining. The Union went on to say:

“When we won collective bargaining for the revenue protection grades I was assured that voluntary processes would be much smoother for other groups of managers. I have been incredibly patient and have tried to be respectful of the company’s desire not to go down the CAC route but at each step there are delays and I have had to write to you on more than one occasion about this so I would ask for two things:

1.    That Craig responds today on the email attached from ACAS confirming that the dates will be fine to move forward.

2.   That I have some assurance that if we have more than 50% +1 within either or both bargaining groups that you will confir1m to signing a collective bargaining agreement for the relevant group(s) using the template that we already have in place for the revenue protection grades, by the end of October.”

6)         The Employer responded on 10 October 2024 and said:

“in order to make the right decisions for the teams involved and the business, we need to ensure that we give full consideration to the impact of any agreements, whether voluntary or statutory.  It is always our intention to avoid a formal CAC process but we need to be assured that we have clear evidence of membership and the support of affected teams and the wider management team before making any commitments. We have enjoyed a positive working relationship and wish to maintain this.

……

If you can demonstrate that you have more than 50% +1 within either or both bargaining groups that we will commit to discussing a voluntary collective bargaining agreement for the relevant group(s) using the template that we already have in place for the revenue protection grades, by the end of October.   The membership check establishes purely membership and not a confirmation that the individuals wish to be collectively bargained. We will set up meetings as required once the membership data is available, as promised.”

7)         On 17 October 2024 ACAS informed the parties that it had carried out a membership density check and provided the parties with a membership certificate.

8)       On 7 November 2024 the Employer e mailed the Union to say

“we have given your recognition requests a great deal of consideration and we have reflected upon the results of the recent membership density check exercise, as well as the discussions you have had with Rob Cox and other senior managers from within the management teams responsible for the above teams. It is clear that the membership density check demonstrated that the TSSA union does have a high proportion of members within the above teams, but what has not been demonstrated through this exercise or through our discussions with the teams is that the majority of colleagues from within the above teams (either members or non-members) now want the Company to agree to the voluntary recognition requests made by the TSSA union. It is our strong belief that at the time of your previous request for voluntary recognition of the revenue protection team, we had far more supporting evidence and understanding from the majority of colleagues within the revenue protection team that they wanted us to accept the voluntary union recognition request made by the TSSA union.  Taking all the above points into consideration, we have therefore decided to decline your voluntary recognition requests for the above teams. I would like to thank you for giving the Company sufficient time to fully consider your requests.”

9)         The Employer confirmed to the Union verbally on 15 November 2024 that its decision to decline the request of the Union for voluntary recognition would not be altered by the Union providing further evidence of support for collective bargaining.

10)       The Union said that following receipt of the Union’s request for recognition the Employer had proposed that ACAS be requested to assist and that the Union had agreed. The Union explained that this was solely to carry out a membership density check. The Union said that this was undertaken on 17 October 2024 and demonstrated that 60% of the proposed bargaining unit were Union members.

11)       The Union stated that the total number of workers employed by the Employer was 1,802 and that 43 fell within the proposed bargaining unit. The Union stated that it had 30 Union members within the proposed bargaining unit. 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 answered:

 “At least 69.7% are TSSA members. Since the ACAS membership check we believe 1 new employee has joined the bargaining group. We have had a recent increase in membership as workers within this bargaining unit want our union to have collective bargaining rights for them. The majority of members have joined us since August 2024 to secure this. We can provide membership data supporting our claim. On Friday 15th November we started an online petition to demonstrate support, 29 people have responded so far.”

12)       The Union stated that the reason for selecting the proposed bargaining unit was that the workers in the proposed bargaining unit performed a discrete and unique function within the Employer making the proposed bargaining unit fully compatible with effective management.

13)       The Union confirmed that the bargaining unit had not been agreed with the Employer. In answer to the question as to whether there was an existing recognition agreement of which it was aware, the Union answered “No”.

14)       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 19 November 2024.

15)       Finally, the Union stated there had not been any previous applications 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. Summary of the Employer’s response to the Union’s application

16)       The Employer stated that it had received the Union’s formal request for recognition on 6 September 2024 and that arrangements had been made to meet with the Union and discuss the request.

17)       The Employer confirmed it had received a copy of the Union’s application by e mail on 20 November 2024. The Employer stated that it did not agree with the bargaining unit as proposed by the Union because “the Driver Managers and Operational Development Managers are graded managerial positions and not covered by our existing collective bargaining agreements; we do not agree that these are operational grades.”

18)       The Employer confirmed that it employed about 1,872 workers as of 22 November 2024. When asked whether it agreed with the number of workers in the bargaining unit as defined in the Union’s application, it replied “No.”  The Employer stated that it currently employed 19 Driver Managers and 27 Operational Development Managers.

19)       When asked whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer said, “we have no evidence to indicate that new members have joined the TSSA.” When asked whether it considered that a majority of the workers in the bargaining unit were likely to support recognition, the Employer said “TPE do not believe that the majority of workers within the DM and ODM teams are likely to support recognition by the TSSA.”

20)       The Employer, when asked if it was aware of any recognition agreement in place, stated “N/A”. 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, “TPE is aware that TSSA have also made a statutory recognition request for another group of managers i.e. our Senior CDM and CDM team.”

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

21)       The Union said that when it submitted its application to the CAC on 19 November 2024 the Employer was copied into the e mail and therefore received it at the same time. The Union said that whether or not the grades of the workers in the proposed bargaining unit were operational was irrelevant as the workers in the proposed bargaining unit had a unique and discrete function in the organisation and therefore it was compatible with effective management to create a bargaining unit. The Union went on to say that “these employees still have the right to be collectively bargained for and similar roles have collective bargaining rights held by TSSA within the rail industry in different Train Operating Companies.”

22)       The Union said that its understanding was that whilst there were 46 roles in the organisation at the time of the application there were three vacancies in the organisation, these being one Operational Development Manager position at Cleethorpes which had now been filled but the occupant was not due to commence the role until mid-December, and two Operational Development Manager positions in York that would commence their positions in January/February next year, “hence our calculation of 43 in total actual people in post at the time of our application and 19 Driver Managers and 24 Operational Development Managers in post. We believe this to be correct in terms of the current people in post until the person at Cleethorpes starts their role in mid-December. Regardless of whether the total is 43 or 46, we still have the majority of staff within membership of TSSA.”

23)       The Union stated that

“On 25 January 2023 we sent the employer notice of our intention to ballot for industrial action. In this notification the letter showed that at that time we had three Driver Manager Members and 13 Operational Development Manager Members. In August and September 2024, we had an influx of members of the proposed bargaining unit join us in order to achieve collective bargaining which then led to us making the request for collective bargaining which led to us performing a membership check with ACAS that demonstrated with the 42 staff in post at that time that we had 30 members or 71.4% density in the proposed bargaining unit. We had previously received assurances from the employer after we signed a voluntary collective bargaining agreement for Revenue Protection managers that if we had future groups of management graded employees that wanted collective bargaining and we could demonstrate membership support that they would agree to new voluntary collective bargaining agreements so we are surprised by the companies response particularly given the high density of members within the group.”

24)       The Union said that to be certain that the workers in the proposed bargaining unit did “support collective bargaining” the Union had conducted an online petition which opened on 15 November 2024 and by 20 November 2024 it had received 32 responses “supporting collective bargaining” and giving the Union permission to send the results to the CAC. The Union said that it had not attached this to the application to the CAC in order to preserve the confidentiality of the members and non-members involved. The Union said it didn’t believe that a petition was needed as the strength in membership demonstrated support for collective bargaining on its own.

6. The membership and support check

25)       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, and a petition supplied by the Union. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, dates of birth and job titles of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of its paid-up members within that unit including their full names, dates of birth and job roles (where available) as well as a copy of its petition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and petition would not be copied to the other party. These arrangements were confirmed in a letter dated 2 December 2024 from the Case Manager to both parties.

26)       The information requested from the Employer was received by the CAC on 3 December 2024 and from the Union on 4 December 2024. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.   

27)       The list supplied by the Employer indicated that there were 42 workers in the Union’s proposed bargaining unit.

28)       The list of members supplied by the Union contained 30 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 30, a membership level of 71.43%.

29)       The e-petition supplied by the Union contained 33 names, of which 33 were in the proposed bargaining unit, a figure that represented 78.57% of the proposed bargaining unit. Of those 33 names, 30 were members of the Union (71.43% of the proposed bargaining unit) and three were non-members (7.14% of the proposed bargaining unit). The results of the e-petition were presented in the form of a spreadsheet which consisted of 12 columns headed, “Response ID”, “Collector ID”, “Start Date”, “End Date”, “IP Address”, “First name”, “Surname”,  “Email address”, “Job Title”, “Workplace”, “Reasons why you support TSSA”, and “I agree to my name being submitted to the Central Arbitration Committee as part of TSSA’s application for recognition/Collective Bargaining”.  

30)       The Union explained that the e-petition was carried out using Survey Monkey. The responses were dated from 15 November 2024 up to and including 28 November 2024.

31)       A report of the result of the membership and support check was circulated to the Panel and the parties on 5 December 2024 and the parties were invited to comment on the results of that check by noon on 9 December 2024.

7. Summary of the parties comments following the membership and support check

32)       The Employer did not submit any comments on the membership and support check. The Union in an e mail dated 9 December 2024 said that the membership check and the petition clearly demonstrated a high level of support for “collective bargaining.”

8. Considerations

33)       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. 

34)       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 paragraphs 36(1)(a) and paragraph 36(1)(b) are met.

Paragraph 36(1)(a)

35)       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. 

36)       The membership check conducted by the Case Manager (described in paragraphs 25 to 31 above) showed that 71.43% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 26 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

37)       For the reasons set out in paragraph 36 above 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)

38)       Under paragraph 36(1) 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.

39)       For the reasons given in paragraph 36 above, the Panel has concluded that the level of union membership within the bargaining unit stands at 71.43%. 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.

40)       The Union carried out a petition of those workers in the proposed bargaining unit. As described in paragraph 29 above, 78.57% of the proposed bargaining unit signed the petition. The Panel has not received any statements from those workers in the proposed bargaining unit who had signed the petition stating that they wished to withdraw their support.

41)       On the basis of the evidence before it, the Panel has decided that Union membership of 71.43% when taken with the percentage of non-members signing the petition (7.14%) shows 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.

9. Decision

42)       For the reasons given in paragraphs 33-41 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr. Stuart Robertson, Panel Chair

Mr. Alistair Paton

Mr. Paul Morley

18 December 2024