Decision

Acceptance Decision

Updated 7 May 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1400(2024)

7 May 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

Calor Gas Limited

1. Introduction

1)         Unite the Union (the Union) submitted an application to the CAC on 16 April 2024 that it should be recognised for collective bargaining by Calor Gas Limited (the Employer) for a bargaining unit comprising of “All HGV Drivers based at the Immingham depot”. The location of the bargaining unit was given as Calor Gas Limited, Manby Road, Immingham, DN40 3DX.  The CAC gave both parties notice of receipt of the application on 16 April 2024.  The Employer submitted a response to the CAC dated 19 April 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 Alistair Paton, and Mr Matt Smith OBE.  The Case Manager appointed to support the Panel was Kaniza Bibi.

3)         The Panel has extended the acceptance period in this case. The initial period expired on 30 April 2024.  The acceptance period was extended to 14 May 2024 to allow time to conduct a membership check and for the parties to comment on the results before the Panel arrived 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 made its formal request for recognition on 4 March 2024 for voluntary recognition at the site. The Employer in its response email, received by the Union on 11 March 2024 stated it did not wish to pursue the Union’s request for voluntary recognition.

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 1760 and 37 of the workers were in the proposed bargaining unit, of whom 25 were Union members.

8)         Asked whether the Employer agreed on the number of workers in the proposed bargaining unit the Union answered, “Yes and No”.  When called upon to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated, “WhatsApp survey was carried out on 12.04.24, the results being 25 members were in favour of Unite the union representing them for recognition for collective bargaining purposes”.

9)         The Union stated it had selected the proposed bargaining unit because “This includes all members who wish Unite the union to represent them for recognition”. The Union also confirmed that the proposed bargaining unit had not been agreed with the Employer.

10)       Finally, the Union stated that it was not aware of any existing recognition agreements which covered any of the workers in the bargaining unit, it confirmed that it held a current certificate of independence. When asked if it had copied the application and supporting documents to the Employer, this part was left blank by the Union.  

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

11)       In its response to the Union’s application the Employer stated that it received the Union’s written request for recognition on 9 November 2023. It replied via email on 23 November 2023 refusing the request.

12)       The Employer stated that it had received a copy of the Union’s application form direct from the Union on 16 April 2024.

13)       The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

14)       The Employer confirmed it did not agree with the proposed bargaining unit. The Employer considered that the Union’s proposed bargaining unit was not an appropriate bargaining unit and confirmed its objections to the proposed unit stating, “Calor strongly disputes the bargaining unit (Immingham) and disputes the number of HGV Drivers quoted by Unite and the total headcount. Calor considers the establishment of a single bargaining unit to be counter productive to our strategy of treating HGV drivers on a national and regional basis. The proposed bargaining Until will create additional complexity in the adoption of the business strategy, cause division within the driver community and is considered not in the best interest of productive employee relations”.

15)       The Employer stated that it employed a total of 2334 workers. When asked whether it agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application the Employer answered, “No, the Union suggest 37 HGV Drivers”.

16)       The Employer, when asked if it disagreed with the Union’s estimate of membership in the proposed bargaining unit, and to indicate its reasons for disagreeing, with any available evidence, the Employer’s response was to state, “Unable to agree. We do not collect trade union membership data as part of recruitment or onboarding activity. We have no way of validating the membership claim put forward by Unite. Would expect such a claim be validated”.

17)       When asked if the Employer considered that a majority of the workers in the bargaining unit are likely to support recognition, and to indicate its reasons for taking this view, the Employer stated “Calor understands that there have been representations made to the workforce concerning Union representation made from within the local cohort of the proposed Bargaining Unit. Calor has not made any direct counter proposals with the Cohort at this point and therefore disputes if there is support majority support for recognition. Calor have not been afforded opportunity to make our case prior to any ballot to the contrary/counter argument directly to the workforce. We believe this to be unfair as workers have not had opportunity to discuss concerns relating to representation with Calor”.

18)       The Employer said “No” when asked if there was any existing agreement for recognition in force covering workers in the proposed bargaining unit.

19)       Finally, the Employer stated “Not aware, not within last three years” when asked if it was aware of any previous application under the Schedule for statutory recognition by the Union in respect of this or a similar bargaining unit.   Asked whether it had received any other applications under the Schedule for recognition in respect of any of the workers in the proposed bargaining unit the Employer answered, “Single Application from Unite the Union”.

5. The check of membership and support

20)       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 check of the Union’s petition.  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 dates of birth) and a copy of the petition signed by workers in favour of recognition. 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 24 April 2024 from the Case Manager to both parties.

21)       The information requested from the Union was received by the CAC on 26 April 2024 and from the Employer on 25 April 2024.  The Panel is satisfied that this check was conducted properly and impartially in accordance with the agreement with the parties.   

22)       The list supplied by the Employer showed that there were 33 workers in the proposed bargaining unit.  The list of members supplied by the Union contained 23 names.  According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 23, a membership level of 69.70%. 

23)       The petition supplied by the Union contained 21 names. The Union’s petition was sent by an e-mail, which showed 3 screen shots of a WhatsApp petition.   The petition was set out as follows:

“Are you in favour of Unite being recognised at Calor Gas Immingham?

Select one

Yes

No”

The report showed that 63.64% of workers in the proposed bargaining unit had completed the petition in favour of recognition. All signatories were members of the Union. A report of the result of the membership check was circulated to the Panel and the parties on 29 April 2024 and the parties’ comments invited.

6. Parties’ comments on the membership check

24)       The Employer in its response dated 30 April 2024 stated, “On the ballot, my main concern is that Calor were not made aware of it happening and therefore were not afforded an opportunity to make our case. I’m not surprised the Union ballot came out as it did, after all they had nothing to compare it against”.

25)       The Union did not submit any comments on the results of the membership report by the deadline imposed.

7. Considerations

26)       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 the submissions of both parties and all the evidence in reaching its decision. 

27)       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 11. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 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 36(1)(b) are met. 

Paragraph 36(1)(a)

28)       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 Union’s proposed bargaining unit.  The membership check conducted by the Case Manager described in paragraph 22 above showed that 69.70% of the workers in the proposed bargaining unit were members of the Union. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. The Panel has therefore 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)

29)       Under paragraph 36(1)(b) 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.

30)       The Panel considers that members of the Union would be likely to favour recognition of the Union for collective bargaining. As stated above, these amount to 69.70% of the workers in the bargaining unit. The Panel also notes that 21 of the 23 Union members, representing 63.64% of the workers in the proposed bargaining unit, had signed the Union’s petition in favour of recognition.  On the basis of the evidence in this case, therefore, the Panel decides that 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

31)       For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mrs Lisa Gettins, Panel Chair

Mr Alistair Paton

Mr Matt Smith OBE

7 May 2024