Decision

Acceptance Decision

Updated 5 November 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1430(2024)

5 November 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:

Unite the Union

and

Biffa Waste Services Limited

1. Introduction

1)         Unite (the Union) submitted an application to the CAC dated 7 October 2024 that it should be recognised for collective bargaining purposes by Biffa Waste Services Limited (the Employer) for a bargaining unit comprising “Baler Operators, Laboratory Technicians, Multiskilled Operators, Mechanical Technicians, Mechanical Fitters, Production Operators, Lead Production Operators, Scada Operators and Weighbridge Operators.” The location of the bargaining unit was given as “Biffa MBT (Mechanical Biological Treatment Plant), Brookhurst Wood, Horsham, West Sussex, RH12 4QD” The application was received by the CAC on 7 October 2024 and the CAC gave both parties notice of receipt of the application on 7 October 2024.  The Employer submitted a response to the CAC dated 14 October 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 Ms Laura Prince K.C, Panel Chair, and, as Members, Mr Sean McIlveen and Mr Steve Gillan. 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 21 October 2024.  The acceptance period was extended to 12 November 2024 in order to allow time for the parties to comment on the results of a membership check and for the Panel to consider said 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 stated that it had made a request for recognition to the Employer dated 5 August 2024. The Union said that the Employer responded on 14 August 2024 requesting a meeting to discuss the request and that the meeting took place on 5 September 2024 and resulted in the assistance of Acas being sought. The Union went on to say, “a meeting on the 3rd October 2024 on Teams occurred with the Company and myself present along with Matt Penfold from ACAS, the employer/Company refused a membership/employee check due they stated to a reorganisation of the work place due to conclude in November 2024.” A copy of the Union’s letter of 5 August 2024 and the Employer’s written response dated 14 August 2024 were attached to the application.  For the sake of completeness the Union also attached a copy of a letter from the Employer dated 23 September 2024 which stated “having considered the options discussed at the meeting on 5th September 2024 and in the absence of verification for membership we are not in a position to agree to voluntary recognition at our MBT facility in Horsham, and in this regard, we reject your request for voluntary recognition in accordance with Schedule A1 of the 1992 Act.”

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 proposed that Acas should be requested to assist the parties, and the Union had agreed to this. The Union gave the details of the Acas contact.

7)         The Union stated that the total number of workers employed by the Employer was 55. The Union stated that there were 44 workers in the proposed bargaining unit. When asked to state the number of union members in the proposed bargaining unit and to provide evidence to support this figure the union answered “37, Dates of birth spreadsheet can be supplied on request, or any information requested by ACAS/CAC to back up the claim for recognition.” The Union further added “37 new members have joined to ensure they have recognition, growth in union membership as a result of the recognition campaign.”

8)         The Union stated that the reason for selecting the proposed bargaining unit was because representatives of the workers/employees in the workplace had requested recognition. The Union said that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the bargaining unit, the Union answered “NO.”

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 7 October 2024.

4. Summary of the Employer’s response to the Union’s application

10)       The Employer said that it had received the Union’s written request for recognition on 5 August 2024. The Employer said that it had responded to the request in writing but did not attach a copy of the response. The Employer confirmed that it had received a copy of the Union’s application form from the Union on 7 October 2024.  The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit and that it did not agree the proposed bargaining unit. The Employer said, “the site is going through a period of change, and it is expected the bargaining unit will change.”

11)       The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as defined in the Union’s application and said that there were 62 workers. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit. In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer said, “we would like to check and verify the membership stated by the Union.”

12)       When asked 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 answered “N/A.” The Employer answered “N/A” 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 said that it consented to its contact details being forwarded to Acas and that Acas had already been involved.

5. The membership and support check

13)       To assist in 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. The check was carried out on 16 October 2024. 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 dates of birth).  It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party however the roles included in the check would be detailed in the membership and support check report.

14)       The information requested from the Employer was received by the CAC on 16 October 2024 and from the Union on 15 October 2024. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.   

15)       The list supplied by the Employer indicated that there were 68 workers in the Union’s proposed bargaining unit.  The list of members supplied by the Union contained 35 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 31 a membership level of 45.59%.

16)       A report of the result of the membership and support check was circulated to the Panel and the parties on 16 October 2024 and the parties were invited to comment on the results of that check by noon on 21 October 2024.

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

17)       The Union did not submit any comments on the membership and support check. The Employer in an e mail dated 21 October stated “as discussed during the telephone call with Mr Silkstone of Unite the Union and Mr Penfold of ACAS on Thursday 3rd October 2024, the site at which the proposed bargaining unit operates is currently going through a period of considerable and significant change in order to restructure in readiness for the Simpler Recycling Legislation which will come into effect from March 2026. The current period of change is as at the request and requirement of the local authority client. Biffa as the employer would welcome the opportunity to review the proposed bargaining unit once the period of change consultation has concluded in mid-November 2024.”

7. Considerations

18)       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. 

19)       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)

20)       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. 

21)       The membership check conducted by the Case Manager (described in paragraphs 13 to 16 above) showed that 45.59% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 14 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

22)       For the reasons set out in paragraph 21 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)

23)       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.

24)       For the reasons given in paragraph 21 above, the Panel has concluded that the level of union membership within the bargaining unit stands at 45.59%. 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.

25)       On the basis of the evidence before it, the Panel has decided that Union membership of 45.59% 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.

8. Decision

26)       For the reasons given in paragraphs 18-25 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Ms Laura Prince K.C.  

Mr Sean McIlveen

Mr Steve Gillan

5 November 2024