Decision

Acceptance Decision

Updated 19 June 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1323(2023)

19 June 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:

Unite the Union

and

Bairds Malt

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 17 May 2023 that it should be recognised for collective bargaining purposes by Bairds Malt (the Employer) in respect of a bargaining unit comprising “Operators, Maintenance, Fitters and Electrical Staff.” The location of the bargaining unit was given as “Bairds Malt, The Maltings, Pencaitland, Tranent, East Lothian, EH34 5DQ.” The application was received by the CAC on 17 May 2023 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 24 May 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 Chairman established a Panel to deal with the case. The Panel consisted of Mrs Sarah Havlin, Panel Chair, and, as Members, Mr Alistair Paton and Ms Stephanie Marston. The Case Manager appointed to support the Panel was Joanne Curtis.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 1 June 2023. The acceptance period was extended to 26 June 2023 in order to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the comments before arriving 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 did not provide the date that it had made the request for recognition to the Employer. The Union said that the Employer responded on 18 January 2023 rejecting the request stating, “further to the meeting on 18 January 2023 with Ian Slater and myself I thank you for your time and the points raised and discussed. I can now confirm having given due consideration to your request and after gaining feedback from the business that we have decided not to accept your request to formally recognise Unite the Union and will instead continue to engage directly with employees as per our internal employee engagement plans.” The Union attached to the application a copy of a letter to the Employer dated 25 November 2022, however this was not the request for recognition.^{[footnote 1]}

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, “No.” 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 by the Employer was 23. The Union stated that there were 18 workers in the proposed bargaining unit, of whom 12 were members of the Union and that evidence of this could be supplied. When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union said it had had discussions with members of the proposed bargaining group and that they would vote in favour of recognition.

8) The Union stated that the reason for selecting its proposed bargaining unit was because “these are roles that have joined the Union and are seeking a collective voice.” In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit.

9) 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 17 May 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 had received the Union’s written request for recognition on 13 December 2022 which requested recognition for the Union in respect of all workers at the Employer’s Pencaitland site. The Employer said that it rejected the Union’s request in an email dated 8 February 2023. The e mail stated “Further to the meeting on 18 January 2023, I thank you for your time and for the points raised and discussed. I can now confirm, having given due consideration to your request and after obtaining feedback from the business, that we have decided not to accept your request to formally recognise Unite the Union and will instead continue to engage directly with employees as per our internal employee engagement plans.” The Employer attached a copy of the email to the response.

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 17 May 2023. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union, nor did it agree with the proposed bargaining unit. The Employer said that in the letter dated 13 December 2023 the Union had defined the proposed bargaining unit as “all workers on site at the Maltings, Pencaitland, Tranent, East Lothian, EH34 5DQ.” However, in the Union’s application dated 17 May 2023 the proposed bargaining unit was defined as “operators, maintenance, fitters and electrical staff.” The Employer went on to say that it was unclear which workers at the Pencaitland site were included in the definition and that as a result the bargaining unit in the application was not identical to the bargaining unit in the request therefore making the application inadmissible.

12) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist the parties. The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application and said that the total number of workers employed by the Employer was 171 and that the total number of workers employed at the Pencaitland site was 19 (although the Employer was planning on recruiting to fill 3 vacancies). The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated it had no information as to how many of the workers in the proposed bargaining unit were members of the Union.

14) When invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition the Employer said that the Union had not provided any evidence of likely majority support for recognition within the proposed bargaining unit set out in the Union’s application. The Employer said that it had not received any direct contact from individuals seeking collectively bargaining and that the Union appeared to be relying on no other evidence. The Employer went on to say that the workplace had functioned adequately without a recognised union and the Employer had well developed HR policies to grant all workers suitable channels to raise concerns. The Employer said that employee forums had been set up to give workers a collective voice. The Employer went on to say that it had gathered evidence in the staff engagement survey and subsequent follow up sessions where staff had been able to voice freely any ideas, issues and concerns.

15) 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 and when asked if it had received any other applications in respect of workers in the proposed bargaining unit. The Employer answered “N/A.”

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

16) In a letter dated 2 June 2023 the Union said that it has first made contact with the Employer via email on 25th November 2022. The Union said that it was hoping to come to a voluntary agreement with the Employer over recognition. The Union again attached a copy of the letter dated 25 November 2022 and said that it was never acknowledged or replied to. The Union went on to say that it has subsequently submitted a letter on the 13 December 2022. The Union submitted that it had good reason to believe that currently 21 staff were employed with 2 jobs vacant. The Union said that it was requesting the bargaining group to cover the following: “All workers with the exception of - Plant Manager, Process Manager, Production Assistant and Engineering Manager (Current Total: 4 people) All operators - Weighbridge, Shift Production, Silo and Utility. (Current Total: 11) Electricians, Maintenance Fitters and a Supervisor. (Current Total: 5) Malt technician. (Current Total: 1).” The Union said that it currently had 12 active members who did not wish to have their details shared with the Employer at this stage.

17) On 7 June 2023 in answer to a question posed by the Panel about whether there were any other workers at the Pencaitland site not listed in the application the Union said “to the best of our knowledge, other workers we are aware of are - Plant Manager, Process Manager, Production Assistant (which we believe is mainly an admin role) and Malt Technician. There are cleaners who work for a contractor, but they are not directly employed by Bairds.”

6. The Employer’s response to the question posed by the Panel

18) When asked the same question by the Panel the Employer In an e mail dated 8 June 2023 said “I can confirm that there are other roles.  There is a Production Assistant, Production Manager, Maintenance Supervisor and Supervisor/Malt Technician as well as a Plant Manager (who is also seconded to a UK Production/Operations Director role).” The Employer reiterated that the request for voluntary recognition made by the Union on 13 December 2022 was for all workers at the Maltings, Pencaitland site to be included in the bargaining unit. The Employer said it understood this to mean all workers, of all grades / seniority, working at Pencaitland; and that there had been no attempt to define the bargaining unit with reference to role titles or descriptions.

The Employer said that the Union’s comments on the Employer’s response dated 2 June 2023 suggested that in addition to Operators, Maintenance, Fitters and Electrical Staff, the Union was also wanting the bargaining unit to include Malt Technician and Maintenance Supervisor, but exclude the Plant Manager, Process Manager, Production Assistant and Engineering Manager and that this proposed bargaining unit differed from the previous two requests again.

7. Considerations

19) 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.

20) Paragraph 1 of the Schedule sets out the first step to be taken by a trade union seeking statutory recognition. It provides:

1) A trade union (or trade unions) seeking recognition to be entitled to conduct collective bargaining on behalf of a group or groups of workers may make a request in accordance with this Part of this Schedule.

21) Paragraph 2 of the Schedule then defines the proposed bargaining unit:

2) - (1) This paragraph applies for the purposes of this Part of this Schedule.

(2) References to the bargaining unit are to the group of workers concerned (or the groups taken together).

(3) References to the proposed bargaining unit are to the bargaining unit proposed in the request for recognition.

22) Paragraph 2(3) states that the proposed bargaining unit is that which is proposed in the Union’s formal request for recognition. The expectation is therefore that both descriptions of the bargaining unit should be the same. In this case, on 13 December 2022, the Union made a formal request for recognition to the Employer in the following terms:

I wrote to you on 25th November 2022 on the above issue of trade union recognition at your site in Tranent, East Lothian.

I am now formally requesting recognition for Unite the union at Bairds Malt for all workers on site at THE MALTINGS PENCAITLAND, TRANENT

EAST LOTHIAN EH34 5DQ

This request is made under Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992

I would like to once again ask for a meeting with your good self to discuss the issue of recognition with a view to reaching agreement. If you wish to use the good offices of ACAS then of course I would agree to co-operate and make contact with them.

Failure to respond within 10 days will result in Unite applying for statutory recognition.

23) The Union stated that the Employer upon receiving the request for recognition, had responded on 22 December 2022 and agreed to meet with the Union in the New Year to discuss whether there was “any basis for trade union recognition” and “prior to any such meeting to give consideration to employee opinion on why they feel any different form of representation is required.”. The parties then went on to hold a discussion on 18 January 2023 which resulted in the Employer refusing the request on 8 February 2023.

24) It therefore follows that Paragraph 12 of the Schedule applies to the circumstances of this application on the basis that the parties entered into negotiations as a result of a formal request having been made, but no agreement is concluded. It provides:

12) - (1) Sub-paragraph (2) applies if-

(a) the employer informs the union (or unions) under paragraph 10(2), and

(b) no agreement is made before the end of the second period.

(2) The union (or unions) may apply to the CAC to decide both these questions-

(a) whether the proposed bargaining unit is appropriate;

(b) whether the union has (or unions have) the support of a majority of the workers constituting the appropriate bargaining unit.

(3) Sub-paragraph (4) applies if-

(a) the employer informs the union (or unions) under paragraph 10(2), and

(b) before the end of the second period the parties agree a bargaining unit but not that the union is (or unions are) to be recognised as entitled to conduct collective bargaining on behalf of the unit.

(4) The union (or unions) may apply to the CAC to decide the question whether the union has (or unions have) the support of a majority of the workers constituting the bargaining unit.

25) Where negotiations do not result in an agreement as to the appropriate bargaining unit or that the union is recognised, a union may apply to the CAC under paragraph 12(2). It is then clear from the wording of paragraph 12(2) that the questions the CAC must address are firstly whether the proposed bargaining unit is appropriate and secondly, whether the Union has the support of a majority of the workers constituting the appropriate bargaining unit.

26) Given that no agreement was reached between the Union and Employer as to the appropriate bargaining unit, the Union must apply to the CAC in respect of the proposed bargaining unit. Paragraph 2(3) of the Schedule as set out above, states that this is the bargaining unit proposed in the request for recognition. This is the bargaining unit as stated by the Union in its letter dated 13 December 2022 and one which would comprise “all workers on site at THE MALTINGS PENCAITLAND, TRANENT EAST LOTHIAN EH34 5DQ.”

27) Therefore, in order to determine whether the application was made in accordance with paragraph 12 the Panel is required to consider whether the bargaining unit proposed by the Union in this application is the same bargaining unit that it proposed in its formal request to the Employer for recognition. Such consideration is necessary because, as described above, where there is no agreement between the parties, paragraph 12 of the Schedule enables the union to make its application in respect of a proposed bargaining unit. The ‘proposed bargaining unit’ is defined in paragraph 2(3) of the Schedule as being the bargaining unit set out in the formal request for recognition to the Employer. Furthermore, the Panel notes that in the CAC Guidance it is stated: “In making an application to the CAC, the bargaining unit should be described in identical terms as that in the request to the employer.” The Panel is therefore required to consider any differences in the bargaining unit proposed in the formal request for recognition and the bargaining unit proposed in the Union’s application.

8. Decision

28) The Union has not brought its application in respect of its proposed bargaining unit as stated in its request for recognition to the Employer. The Panel has considered this issue and balanced a range of factors in its approach to the requirement in Paragraph 2(3) as to the Union’s duties in the consistent definition or description of its proposed bargaining unit. It is clear from CAC Guidance that the language of Paragraph 2(3) is taken to mean that the Union should describe the proposed bargaining unit in both the request to the Employer and in its application ‘in identical terms’. The language of the legislation does not explicitly state that both definitions or descriptions of the proposed bargaining unit must be ‘identical’, but it is the view of the Panel that there is a requirement within Paragraph 2(3) for both the description of the proposed bargaining unit in the formal request to the employer and in the application to be the same. The Panel is of the view that there may be some scope for flexibility in approach to Paragraph 2(3), for example, the two descriptions may be worded differently but in fact both descriptions could be found to refer to the same group of workers and therefore both units might reasonably be interpreted as being ‘the same’. However, in this case the Panel sought to obtain clarity from the Union as to the discrepancy in its two descriptions of the proposed bargaining unit by raising direct questions to the Union on this point. In response, the Union gave a further description of the bargaining unit (as set out at paragraphs 16-18 above) and the further comments by the Union, in clarifying its proposed bargaining unit, confirmed to the Panel that its proposed bargaining unit is materially different from that which was set out by the Union in its formal request to the Employer. The conclusion of the Panel is that the Union’s description of its proposed bargaining unit does not refer to the same bargaining unit and are therefore not the same.

29) The task of the Panel as required by paragraph 15 of Schedule is to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 9, that it is made in accordance with paragraphs 11 or 12, and is admissible within the terms of paragraphs 33 to 42. The Panel concludes that this application has not been made in accordance with paragraph 12 and therefore must be rejected.

30) Having reached the decision that the application had not been made in accordance with paragraph 12 the Panel did not consider the other admissibility tests set out in paragraph 4 above.

9. Observations

31) Having arrived at the above conclusion the Union must now decide and carefully clarify which bargaining unit it wishes to pursue. If it wishes to seek recognition for all workers at the Pencaitland site as identified in its original formal request to the Employer, it can re-apply to the CAC citing this proposed bargaining unit in the fresh application. Alternatively, if the Union wishes to apply for a more specific bargaining unit which only includes specific groups of workers on the Pencaitland site, then it must make a fresh formal request to the Employer citing this specific bargaining unit as its proposed bargaining unit.

Panel

Mrs Sarah Havlin, Panel Chair

Mr Alistair Paton

Ms Stephanie Marston.

19 June 2023

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1. The request for recognition made by the Union dated 13 December 2022 was attached to the Employer’s response to the Union’s application. ↩