Decision

Acceptance Decision

Updated 17 October 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1425(2024)

17 October 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

Bottega Veneta

1. Introduction

1)         Unite the Union (the Union) submitted an application to the CAC dated 18 September 2024 that it should be recognised for collective bargaining purposes by Bottega Veneta (the Employer) for a bargaining unit comprising “all Bottega Veneta UK Co. Ltd employees working within Bottega Veneta stores within London Heathrow Airport.” The location of the bargaining unit was given as “Bottega Veneta stores within London Heathrow Airport terminals.” The application was received by the CAC on 18 September 2024 and the CAC gave both parties notice of receipt of the application on 19 September 2024. The Employer submitted an email to the CAC dated 19 September 2024 and a full response dated 24 September 2024 both of which were 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 Martin Kirke 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 2 October 2024.  The acceptance period was extended to 31 October 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 on 26 July 2024 by email. The Union said that the Employer had responded on 6 August 2024 stating, “while we are not minded to agree to your request at the moment as we will need to have a number of discussions within the organisation before we would be in a position to do this, we can confirm that we would be prepared to negotiate.” A copy of the Union’s request and Employer’s response were attached to the application.  

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 100. The Union stated that there were 25 workers in the proposed bargaining unit, of whom 20 were members of the Union. The Union said that it was willing to share with the CAC on a confidential basis the names of those in membership who worked for the Employer for the purposes of verification. The Union said that the Employer did not agree with the number of workers in the proposed bargaining unit. 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 that the majority of workers in the proposed bargaining unit were union members. The Union went on to say, “most of these have joined the union in the past year, during which the union has made it known to potential members that it is seeking recognition at the company.”

8)         The Union stated that the reason for selecting the proposed bargaining unit was because “all Bottega Veneta U.K Co. Ltd employees working within Bottega Veneta stores within London Heathrow Airport report into the same retail manager. All employees carry out similar job functions and share the same set of terms and conditions, other than pay.” 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 26 July 2024.^{[footnote 1]}

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

10)       In response to the Union’s application dated 18 September 2024 the Employer emailed the CAC and the Union on 19 September 2024. The Employer said whilst the Union first made its request at the end of July, the Employer had been keen to meet with the Union to discuss the request further. The Union went on to say “unfortunately, it was not possible to schedule a meeting due to both sides being absent at various times over the summer. We had our first meeting with the Union only yesterday to discuss the prospect of recognition, and we left the meeting under the impression that this was going to be the first of a number of discussions.  Indeed, we were on the point of writing to Unite to propose that Acas become involved in the process (as we had mentioned in our letter of 6 August 2024) when we received a copy of their letter to you.  At no point during or after the meeting did the union indicate that they intended to make a formal application to the CAC.  In the circumstances, we believe that the application has been made prematurely.  Rather than potentially wasting the time and resources of the CAC in determining this matter, we respectfully request that we are given an opportunity to explore whether the involvement of Acas could lead to an amicable and mutually agreeable resolution of the matter.  If possible, we would ask that the CAC postpone making any determination until such time as we have had an opportunity to have further discussions with Unite and exercise its discretion to extend time to allow this to happen before making its decision.”

11)       In its response to the Union’s application the Employer stated that it had received the Union’s written request under Schedule A1 for recognition on 26 July 2024 and had responded on 6 August 2024. The letter said “while we are not minded to agree to your request at the moment as we will need to have a number of discussions within the organisation before we would be in a position to do this, we can confirm that we would be prepared to negotiate. You will appreciate that we need to consider what will be most beneficial for our workforce before reaching any conclusion.” The Employer went on to say “I think it may make sense to have an initial conversation towards the end of the week commencing 26th August 2024. If that would be convenient for you. I’m not sure we will necessarily need to involve ACAS, but perhaps we can contact them following our first conversation if it looks like they may be of assistance.”

12)       The Employer confirmed in its response document dated 24 September 2024 that it had received a copy of the Union’s application form from the Union on 18 September 2024. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit but that it did agree to the proposed bargaining unit.

13)       The Employer said that following receipt of the Union’s request it did propose that Acas be requested to assist. The Employer said that it mentioned this in an e mail to the Union dated 21 September 2024. The Employer stated that it agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application and that it did not disagree with the Union’s estimate of membership in the proposed bargaining unit.  

14)       The Employer answered “No” 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.

5. The Union’s comments on whether the Employer proposed that ACAS be requested to assist in its response dated 6th August 2024.

15)       The Union said that its Schedule A1 request for recognition dated 26 July 2024 stated, “We would agree to a proposal, should you wish to make one, that the Advisory Conciliation and Arbitration Service (ACAS) be required to assist us in negotiating a recognition agreement”. The Union said that the Employer’s letter dated 6 August 2024 responding to the Union’s request of 26 July 2024 stated, “I’m not sure we will necessarily need to involve ACAS, but perhaps we can contact them following our first conversation if it looks like they may be of assistance”. The Union said that it accepted that it did not meet with the Employer to discuss the Union’s request for recognition until 18 September 2024. The Union said it had agreed to a meeting to discuss the matter on 9 September 2024 which the Employer cancelled shortly beforehand. The Union went on to say, “on 19th September 2024 the employer wrote to you (the CAC) by email, copying Unite, stating ‘we respectfully request that we are given an opportunity to explore whether the involvement of ACAS could lead to an amicable and mutually agreeable resolution of the matter’. The union asserts that this was the first occasion on which the employer proposed that ACAS be requested to assist, as opposed to merely suggesting that they could perhaps be contacted at some point in the future (as per the letter of 6th August 2024).”

16)       The Union said “Sub-paragraph 12(5) of Schedule A1, Part 1 TULRCA states: ‘But no application may be made under this paragraph if within the period of 10 working days starting with the day after that on which the employer informs the union (or unions) under paragraph 10(2) the employer proposes that ACAS be requested to assist in conducting the negotiations and – (a) the union rejects (or unions reject) the proposal, or (b) the union fails (or unions fail) to accept the proposal within the period of 10 working days starting with the day after that on which the employer makes the proposal.’ The union submits that the employer did not, within the period of 10 working days starting with the day after that on which the employer informed the union of its willingness to negotiate, propose that ACAS be requested to assist. Sub-paragraph 12(5) Sch A1 Part 1 TULRCA does not therefore apply.”

6. The Employer’s comments on whether it proposed that ACAS be requested to assist in its response dated 6th August 2024.

17)       The Employer said that in the letter dated 6 August 2024 it had suggested an exploratory meeting in order better to understand the Union’s position and to set out the Employer’s initial response and concerns.  The Employer said that it had anticipated that, as it would only be an initial conversation, it would not be necessary to involve Acas.  The Employer added “however, if it appeared during that meeting that our relative positions would not lead to an immediate agreement, then I recognised that Acas may be able to assist in reaching a reconciliation.” The Employer said following the meeting on 18 September 2024 it understood that an agreement was not going to be reached immediately and was at the point of writing to the Union to propose a second meeting this time involving Acas. The Employer said “unfortunately, before I could do this, we received notification that afternoon that Unite had instead made an application for recognition to the CAC.  I acknowledge that we did not formally request that Acas should become involved prior to this point, although it was our intention to do so.”

18)       The Employer continued by saying “on 21 September, we wrote to suggest another meeting, and this time I said, ‘Once we have confirmed a time, I think it may be worth seeing if Acas will also be able to attend.’ As soon as we agreed on the meeting date, we started the process of contacting Acas.”

7. The membership and support check

19)       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. 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 and that agreement was confirmed in a letter dated 1 October 2024 from the Case Manager to both parties. 

20)       The information requested from the Employer was received by the CAC on 3 October 2024 and from the Union on 1 October 2025. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.   

21)       The list supplied by the Employer indicated that there were 25 workers in the Union’s proposed bargaining unit.  The list of members supplied by the Union contained 20 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 19, a membership level of 76.00%.

22)       A report of the result of the membership and support check was circulated to the Panel and the parties on 7 October 2024 and the parties were invited to comment on the results of that check by noon on 9 October 2024.

8. Summary of the parties’ comments following the membership and support check

23)       The Employer informed the CAC by e mail on 9 October that it had no comments to make on the report dated 7 October 2024. In an e mail dated 9 October 2024 the Union stated that it still maintained that all of its 20 members were employed by the Employer in roles covered by the bargaining unit, and that given the structure of the bargaining unit it did not understand why one of its current members did not appear on the list provided by the Employer.

9. Considerations

24)       In deciding whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in Paragraph 4 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision and is satisfied that the Union made a valid request to the Employer within the terms specified in paragraphs 5 to 9 of the Schedule to recognise it for collective bargaining in respect of the proposed bargaining unit as described in paragraph 1 of this decision. The request was made in writing and identified the Union, the proposed bargaining unit and that the request was made under the Schedule.

25)       The Panel is also satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 37 to 42 and that the application was made in accordance with paragraph 12. The Panel has considered paragraph 12(5) and paragraph 10(2) and is satisfied that the Employer did not propose that Acas be requested to assist in conducting the negotiations within the period of 10 working days starting with the day after that on which the Employer informed the Union under paragraph 10(2) that it did not accept the request but was willing to negotiate. The Employer informed the Union under paragraph 10(2) on 6 August 2024 but did not propose that Acas be requested to assist until either the 19 or 21 September 2024. The Union was therefore not prevented from making its application under paragraph 12 on 18 September 2024. 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)

26)       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. The membership check conducted by the Case Manager (described in paragraphs 19 to 22 above) showed that 76.00% of the workers in the proposed bargaining unit were members of the Union.  As stated in paragraph 20 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

27)       For the reasons set out in paragraph 26 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)

28)       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.

29)       For the reasons given in paragraph 26 above, the Panel has concluded that the level of union membership within the bargaining unit stands at 76.00%. 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.  In the Panel’s experience this is the case irrespective of any additional benefits employees receive due to union membership. Therefore, on the basis of the evidence before it, the Panel has decided 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.

10. Decision

30)       For the reasons given in paragraphs 24-29 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mrs Lisa Gettins, Panel Chair

Mr Martin Kirke

Mr Steve Gillan.

17 October 2024

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1. The Panel notes that 26 July 2024 was the date of the request for recognition from the Union to the Employer and the application submitted to the CAC for statutory recognition is dated 18 September 2024. ↩