Decision

Acceptance Decision

Updated 23 May 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1255(2022)

28 March 2022

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

(Cambus) - Stagecoach East

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 1 March 2022 and which was received on 2 March 2022 that it should be recognised for collective bargaining by (Cambus) - Stagecoach East (the Employer) for a bargaining unit comprising “Controllers, Inspectors, Supervisory and Admin Staff (including Engineering) at Cambridge, Fenstanton, Peterborough and Bedford.”. The CAC gave both parties notice of receipt of the application on 2 March 2022. The Employer submitted a response to the CAC on 8 March 2022 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, Panel Chair, and, as Members, Mrs Anna Berry and Mr Kieran Grimshaw. Mr Kieran Grimshaw was subsequently replaced as a member of the Panel by Mr Richard Fulham. The Case Manager appointed to support the Panel was Kaniza Bibi and, for the purposes of this decision, Nigel Cookson.

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. The Union’s application

4) In its application the Union said that its initial request for recognition was made in June 2021 and that a final response was received form the Employer in September 2021 rejecting the request for voluntary recognition. Copies of the Union’s letter to the Employer dated 24 June 2021 along with the Employer’s reply dated 8 July 2021 and a further letter from the Union dated 20 July 2021 were attached to its application.

5) According to the Union, there was a total of approximately 32 workers employed by the Employer with 23 of these falling within the proposed bargaining unit. The Union stated that it had 23 members within the proposed bargaining unit. 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 said that “membership lists can be provided”.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that this group of employees, who were mostly in membership, wanted their pay terms and conditions to be the subject of collective bargaining. The Union confirmed that the bargaining unit had not been agreed with the Employer.

7) The Union confirmed that it had a current certificate of independence and it also confirmed that the Employer, following receipt of the request for recognition, had not proposed that Acas be asked to assist.

8) Finally, the Union said there had not been a previous application 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 although the Union stated that it was recognised by the Employer for its Drivers and Engineers at all depots.

4. The Employer’s response to the Union’s application

9) In its response to the application received by the CAC on 8 March 2022, the Employer stated that it had received the Union’s formal request for recognition on 24 June 2021 and that it replied, in writing, on 8 July 2021 and 9 September 2021. Both of these letters were attached to its response.

10) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated this was on 1 March 2022. The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form and that this remained the case stating that “single distinct units have been requested”. The Employer also stated that the description of ‘admin’ staff was not precise and not a clearly defined group with specific grade types or aligned for rates of pay. Any request for recognition had only been made through the Union not with any of the staff directly. There was no evidence to demonstrate that there was majority support for recognition in the grades proposed and the proposed distinct bargaining units would add in additional complexity to what was already in place.

11) The Employer stated that it employed a total of 822 workers of which 773 were covered by existing collective agreements with the Union. The remaining 49 staff were Operations/Engineering/Central support positions in management/supervision and admin functions whose terms and conditions were not subject to collective bargaining. The Employer did not agree with the Union’s figure as to the number of workers in the bargaining unit as it believed there to be 12 engineering and administration roles with the remaining number including Depot Controllers (16) and Deputy Engineering Managers (4) which the Employer classed as part of the management structure of the business. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer stated that it had no evidence to support or dispute the Union’s numbers as the Union had not provided the Employer with its membership list. When asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, the Employer stated that the subject had never been raised formally by any of the staff directly.

12) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the agreed bargaining unit. When asked whether, following receipt of the Union’s request, the Employer had proposed that Acas be requested to assist, the Employer answered ‘No’.

13) 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 stated that it was not aware of any previous applications.

5. The membership check

14) To assist in the application of the admissibility tests in Schedule A1 to the 1992 Act, the Panel proposed independent checks of the level of union membership in the proposed bargaining unit. The information from the Union was received by the CAC on 10 March 2022 and from the Employer on 15 March 2022. It was explained to both parties that, to preserve confidentiality, the respective lists would not be copied to the other party and this was confirmed in a letter from the Case Manager to both parties dated 14 March 2022.

15) The Union provided a list with the details of 22 members and the Employer provided a spreadsheet with the names of 32 workers. The job titles given by the Employer for the workers on its list were: Admin Assistant; Cash Office Clerk; Detailer/Payroll Clerk; Controller/Supervisor (sic); Deputy Engineering Manager; Storekeeper; Payroll Clerk; Cash Counting Clerk; Engineering Clerk and Detailer. One role, that of Cash Office Clerk, was annotated by the Employer as being ‘weekly paid - on driver pay so part of the driver pay negotiation group with Unite’.

16) According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 18, a membership level of 56.25%. A report of the result of the membership check was circulated to the Panel and the parties on 15 March 2022 and the parties’ comments invited. The Panel is satisfied that this check was conducted properly and impartially.

6. Parties’ comments on the membership check

17) In a letter dated 21 March 2022 the Employer expressed concern that the numbers did not match, and it was still unclear as to which categories of workers the Union wanted in its proposed bargaining unit especially as it was not a distinct and clearly identifiable group with the same set of terms and conditions. Therefore, any proposed bargaining unit would be extremely challenging and not conducive to effective bargaining. In the initial application the Union gave an approximate number of 32 in its proposed bargaining unit and a list of positions it wanted to include. The Employer had subsequently provided a list of employees in those positions and there were only 18 names that were common to both lists. It was therefore difficult for the Employer to confirm that union membership constituted at least 10% of the bargaining unit given that the parties have not agreed what roles were within the proposed bargaining unit, the numbers not matching and the Employer not having access to the Union’s membership information. Therefore, until the correct number could be confirmed as well as the roles and responsibilities of the bargaining group that the Union was proposing, the Employer could not confirm if the majority of the workers would be likely to favour recognition of the Union

18) In an email dated 22 March 2022 the Union stated that it was well organised in the group of workers for which it sought recognition. Indeed, it considered that it had well in excess of 50% in membership and it confirmed that the workers who were in membership had requested that their pay, terms and conditions were negotiated on their behalf by the Union.

7. Considerations

19) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

20) 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 and that it was made in accordance with paragraph 12(2) of the Schedule. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

8. Paragraph 36(1)(a)

21) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit. In this case the Case Manager’s check established a membership density of 56.25%. The Panel is satisfied that this test is met.

9. Paragraph 36(1)(b)

22) The test in paragraph 36(1)(b) is whether a majority of the workers constituting the agreed/proposed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit. Here the Union relies on its membership density which, as stated above, was established through the Case Manager’s check, as being 56.25% of the workers in the proposed bargaining unit. In its comments on the report the Employer stated its view that the unit proposed by the Union was not a distinct and clearly identifiable group with the same set of terms and conditions and that it would be, to use its words, ‘extremely challenging and not conducive to effective bargaining’. This may or may not be the case. It is not a decision that we are called upon to make at this stage of the statutory process. The tests that we must now apply are in relation to the unit proposed by the Union with no decision taken as to whether it is an appropriate bargaining unit or not. This is a matter that will be addressed in the next stage of the process should the parties not be able to reach agreement as to the appropriate bargaining unit themselves.

23) The question we are tasked with here is simply this, based on the evidence provided, is it likely that the majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union. This is a test of ‘likely’ support. It is a hypothetical question rather than an any empirical measure. In this case we have the result of the Case Manager’s check which shows that a majority of the workers are in membership. On the balance of probabilities, we take the view that it is more likely than not that a member of a trade union would wish that particular union to represent the member’s interests in conducting collective bargaining on their behalf. It is for this reason and in the absence of any evidence to the contrary that we find this test to be satisfied. As stated above, at the moment we are only addressing the question as to whether the application should be allowed forward for further consideration. Any remaining issues as to the precise composition of the bargaining unit will be addressed in the next stage of the process where the appropriateness of the bargaining unit is examined in more detail.

10. Decision

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

Panel

Ms Laura Prince, Panel Chair

Mrs Anna Berry

Mr Richard Fulham

28 March 2022