Decision

Acceptance Decision

Updated 18 February 2019

Case Number: TUR1/1083(2019)

18 February 2019

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

Clugston Distribution Services Ltd

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 12 December 2018 (although it was not received by the CAC until 9 January 2019) that it should be recognised for collective bargaining by Clugston Distribution Services Ltd (the Employer) for a bargaining unit comprising “All Steel Drivers, Fuel Drivers, Powder Drivers (Cement & Ash) Fitters & Apprentices, up to but not including managers at the Scunthorpe Depot”. The CAC gave both parties notice of receipt of the application on 9 January 2019. The Employer submitted a response to the CAC dated 16 January 2019 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 Mr. Barry Clarke, Panel Chair, and, as Members, Mr. David Crowe and Mr. Paul Noon OBE. The Case Manager appointed to support the Panel was 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 it had written to the Employer with a formal request for recognition on 23 July 2018 and the Employer responded by email on 10 August 2018. Copies of the Union’s letter and the Employer’s email were enclosed with the application. In its email the Employer informed the Union that there was an existing agreement in place with the United Road Transport Union (“URTU”) and the consensus of the workforce was that this was their continued and preferred choice for collective bargaining. For this reason the Employer could not accept the Union’s request although it stated it continued to be open to working with the Union as it was with any union that had members within the workforce.

5) According to the Union, there was a total of 165 workers employed by the Employer with 76 of these falling within the proposed bargaining unit. The Union stated that it had 38 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 it had a petition from 67 workers in support of the Union being recognised as well as 38 members within the proposed bargaining unit.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that it covered all drivers, skilled and manual workers who were allocated work from the Scunthorpe Depot. The Union did not state whether or not the bargaining unit had been agreed with the Employer.

7) When asked whether there was an existing recognition agreement which the Union was aware of which covered any workers in the bargaining unit the Union stated that the Employer claimed in its reply to the Union’s request for recognition that there was an existing agreement but that URTU had stated in an email to the Union that this was not the case. The email, a copy of which was enclosed with the application along with other emails in the exchange, was dated 22 May 2018 and was from Alex Harris, an URTU officer. In the email Mr Harris stated “…it’s really none of my business as we do not have any sort of recognition on the steel side and only possess the national agreement for Clugston Food Distribution”.

8) Finally, the Union said there had not been a previous application in respect of this or a similar bargaining unit.

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

9) The Employer stated that it had received the Union’s formal request for recognition by email on 23 July 2019 and by post on 30 July 2018. The Employer responded to the request stating that it could not accept the request due to an existing recognition agreement being in place, a copy of which was enclosed.

10) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated that it only received a copy of the application form from the CAC, by post, on 17 December 2018^{[footnote 1]} . The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form and, when asked did it agree the bargaining unit, it answered “No” adding that the proposed unit did not cover all the applicable employees as the Union’s request was limited to Scunthorpe. The existing agreement in place with URTU covered the Scunthorpe site and also all the applicable employees who worked at or from several locations across the UK.

11) The Employer stated that it employed 127 workers and it did not agree with the Union’s figure as to the number of workers in the bargaining unit. Asked to explain why it did not agree the Employer stated that it believed that some were no longer employed, some had left the Union and had switched membership to URTU or another union or had chosen not to join another union but were still referred to by the Union and some of the bargaining unit appeared to comprise HGV Technicians and Apprentices who had signed the Union’s petition but had subsequently retracted their signatures. The Employer did not give a figure as to the actual number of workers in the proposed bargaining unit. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer stated that the numbers did not match the records of its employees and the Employer had conducted a survey that showed that there were 47 URTU members and 27 members of the Union. The majority of the other 53 employees were not members of any union and those remaining were members of other unions. 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 in addition to what it said above, URTU had suitably and continually represented the employees since at least 2015. Additionally, the Employer referred to a signed document whereby HGV Technicians and Apprentices had retracted their signatures on the Union’s petition, a copy of which was enclosed with the Employer’s response.

12) The Employer confirmed that there was an existing recognition agreement in place covering workers in the proposed bargaining unit. The Employer gave the dates of the agreement as 28 October 2015 and 14 December 2018. It confirmed that the agreements were in writing and provided copies of both documents along with a letter from Chris Dubber, a URTU Regional Officer, dated 15 January 2019 and addressed to the CAC. In this letter Mr Dubber stated:

“In November 2015 a voluntary recognition agreement was signed up to by Alex Harris and David Heath (Clugston – Head of Logistics) Last year the company (Tim Doggett - Distribution Director) and Alex Harris updated / amended and resigned the Recognition Agreement in December 2018.

I must say I was quite surprised when Tim Doggett showed me your letter dated 9th January 2019 with regards to this application by Unite the Union. The company have shown me a response letter to unite the Union dated 20th December 2018 stating the voluntary agreement already in place between URTU and Clugston since 2015 but seem to be ignoring this fact.”

13) When asked whether, following receipt of the Union’s request, the Employer had proposed that Acas be requested to assist, the Employer answered “Yes” and that two telephone conversations had taken place whereby the Employer had explained that there was an existing agreement in place and that this should be conveyed to the Union.

14) 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 answered “Not known”.

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

15) On 22 January 2019 the Union was invited to comment on the Employer’s response, both in general and specifically on the suggestion that there was an overlap between those workers in the Union’s proposed bargaining unit and those covered by the existing agreement with URTU.

16) In a letter dated 28 January 2019 the Union commented on the matters raised by the Employer in its response. In respect of the 2015 agreement the Union stated that the employer party was Clugston Food Distribution and at no stage had the Union tried to gain recognition for that side of the business. The scope of the agreement also made clear that it related only to the food business unit and not the distribution part, which was the subject to the Union’s application. The Union again referred to the email of 22 May 2018 from Alex Harris (the material parts of which are set out above) in which it was stated that there was no agreement in place on the “steel” side.

6. Union’s further comments on the URTU agreement

17) The Union’s letter did not address the agreement dated 14 December 2018 between URTU and Clugston Distribution Services Ltd. The Panel Chair directed that the Case Manager again write to the Union and draw its attention to this agreement and invite its comments thereon. The Union was asked to particularly address the question as to how its application could proceed in view of paragraph 35 of the Schedule which rendered inadmissible any application where there was already in force a collective agreement under which a union is recognised was entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit.

18) In a letter dated 31 January 2019 the Union stated that the Employer, in its covering letter with its response dated 15 January 2019, had incorrectly stated that the 2015 agreement had covered the entire workforce whereas it only covered workers in Clugston Food Distribution. It also pointed out that the Union’s potential application to the CAC was known to the Employer throughout September and October 2018 as it made reference to the Union’s petition.

19) In response to the question as to how the application could proceed in view of paragraph 35 of the Schedule the Union stated that its application was made on 12 December 2018 whereas the agreement between the Employer and URTU was signed off on 14 December 2018 and so the Union requested that the CAC gave its application due consideration.

7. Union’s further clarification on the URTU agreement

20) Having considered the Union’s letter the Panel Chair directed that the Case Manager write to the Union and seek clarification as to whether it accepted that there was currently in force a collective agreement under which URTU was recognised as entitled to conduct collective bargaining on behalf of HGV drivers based at Scunthorpe and if so, to provide any legal authority for its proposition (if, indeed, this was the argument the Union was making) that the time at which admissibility under paragraph 35 was to be considered was to the date of the Union’s application to the CAC rather than the date of the Panel’s decision (or some other date). The Panel chair also directed that the Case Manager write to the Employer and ask it to comment further on whether, irrespective of the above issues, the 2015 agreement (stated to cover “drivers – shunters”) also covered HGV drivers based at Scunthorpe. Either party was free to comment on the question asked of the other. Finally, the Panel Chair invited URTU to comment on these issues, since paragraph 35(5) empowered the CAC to take account of the views of any person that had an interest in the matter. The Case Manager wrote to the parties and URTU as directed by the Panel Chair by way of letters dated 4 February 2019.

21) In a letter dated 8 February 2019 the Union stated that, in response to the question as to whether it accepted that there was in force a collective agreement under which URTU was recognised as entitled to conduct collective bargaining on behalf of HGV Drivers based at Scunthorpe, it believed the agreement may fail if the CAC accepted the Union’s argument that its application was made on 12 December 2018 whilst the agreement between the Employer and URTU was signed off on 14 December 2018. As for whether the Union could provide any legal authority for the proposition that the time at which admissibility under paragraph 35 was to be considered was the date of the Union’s application to the CAC rather than the date of the Panel’s decision (or some other date) the Union stated that under paragraph 35(1) of the Schedule, an application under paragraph 11 or 12 was not admissible if the CAC was satisfied that there was already in force a collective agreement under which a union was recognised as entitled to conduct collective bargaining on behalf of any worker falling within the relevant bargaining unit. It was the Union’s case that at the time of its application there was no collective agreement in force in regard to the dates set out above.

8. Employer’s further clarification on the URTU agreement

22) In a letter dated 11 February 2019 the Employer stated that the processes and procedures in the 2015 agreement had been applied by the Employer and URTU to all drivers from at least that date. Reference to this was included in the email submitted by the Union as part of its application on the 12 December 2018 where it said “…the local officer not attending the last three years of pay talks, leaving URTU to negotiate on their behalf.”

23) During that time, it was assumed there was an agreement in place with the Union and the workforce requested that any bargaining arrangements with the Union be ended because of the lack of any involvement on its part and reference to this could be found in the email submitted by the Union as part of its application.

24) When it was certain that there was no agreement with the Union, a review of the 2015 agreement with URTU took place and it was updated to reflect what URTU were doing as well as changes in the Employer’s business since 2015. This included referring to all “HGV Drivers/HGV Technicians” while the reference to “shunters” was removed. “Shunters” related to moving loads of steel internally around the steelworks in Scunthorpe and was a contract the Employer no longer had.

25) The 2018 agreement would have been signed earlier but it was the first available date possible as it needed the attendance of several people from various locations to be available at the same time and this proved difficult as it coincided with holidays. Further, the URTU Officer at that time was in the process of transferring to another region of the UK and so the Employer coincided the signing of the agreement with a handover meeting to the incoming URTU Officer, Chris Dubber. Even then, Anthony Ellis, a driver and URTU shop steward, was unable to attend in person and signed the agreement later.

26) The Union’s assertion in its letter of 31 January 2019 that “Unite’s potential application for a statute agreement was known to Clugston’s throughout September and October as they cite Unite’s petition” was not correct. This only came to the Employer’s attention on 31 October 2018 following complaints and comments from the HGV Technicians. When the Union representative was challenged on this, he denied all knowledge and only when the application for recognition was received on 17 December 2018 did this become properly known. For information, the Employer has received further comments from the HGV Technicians that the same Union representative had gone back to those who had withdrawn their signatures to try to get their backing but was rebuffed. The Employer also enclosed letters from URTU as well as from the Managers responsible for the Drivers and Technicians and from drivers from each of the sectors who were workplace URTU representatives.

27) The Employer concluded by inviting the Panel to reject the application based on there being an existing agreement in place that covered all HGV drivers and HGV Technicians, including Scunthorpe and all other locations

9. URTU’s comments

28) In a letter dated 7 February 2019, Chris Dubber, the URTU Regional Officer with responsibility for the Scunthorpe area stated that URTU had had a voluntary Recognition Agreement with the Employer since 2015 and it was updated in 2018. This agreement covered all HGV licensed employees throughout the Company on all types of HGV driving duties and across all sites. URTU had representatives covering all sections of HGV drivers.

29) URTU had a very good relationship with the Employer and he believed that there was a mutual, open and transparent relationship in place. The Union had known about this agreement for a long time, so it was not something new. Mr Dubber expressed surprise that URTU and the Employer had to explain themselves to the Union and he could not understand the application being made whilst another union had an agreement in existence. In conclusion Mr Dubber called for the speedy resolution of the matter as it was causing some disturbance to his members and also within the workforce who decided years ago to have URTU as their representative union and this remained the case.

10. Considerations

30) 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 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 bargaining unit as described in paragraph 1 of this decision and that the application was made in accordance with paragraph 11 of the Schedule.

31) The Panel must now consider whether it is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 42.

11. Paragraph 35

32) Paragraph 35(1) states that an application to the CAC is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is or unions are recognised as entitled to conduct collective bargaining on behalf of any workers falling within the bargaining unit proposed by the union.

33) When asked on the application form if there was an existing agreement for recognition in force that covered workers in the proposed bargaining unit the Union said that the Employer had claimed that there was such an agreement in place but it relied upon an email from an official of the union concerned, URTU, as evidence that the agreement did not extend to the workers in the Union’s proposed bargaining unit. This was the 2015 agreement that formed part of the documents comprising the Employer’s response to the application. This agreement was made between URTU and Clugston Distribution Services Ltd, Food Business Unit. Clause 1 of the agreement makes clear that it was made between Clugston Food and URTU and it was signed by Alex Harris on behalf of URTU on 24 November 2015. The 22 May 2018 email from Alex Harris relied upon by the Union did seem to confirm that the URTU recognition was confined to Clugston Food Distribution and so would, on the face of it, not cover any of the workers in the Union’s proposed bargaining unit.

34) However, also attached to the Employer’s response was a further agreement between URTU and Clugston Distribution Services Ltd and which covered HGV Drivers and HGV Technicians. It was signed by the parties on 14 December 2018. One of the signatories signing the agreement on behalf of URTU was Alex Harris, the author of the email of 22 May 2018 mentioned above.

35) The Union did not address this second agreement at the time it commented on the Employer’s response and so the Panel wrote again, specifically drawing the Union’s attention to the agreement, and asking the question as to the effect of paragraph 35 on the application given that the scope of the agreement would seem to encompass those workers for whom the Union sought recognition.

36) In its letter of 31 January 2019 addressing the point, the Union stated that the 14 December 2018 agreement was made after the Union had submitted its application to the CAC on 12 December 2018 and it called upon the CAC to, in its words, “give the application due consideration”. Called upon to clarify its position, the Union, in its letter of 11 February 2019, reiterated its point that the 2018 agreement was not signed until two days after the date of the Union’s application to the CAC and so at the time the application was completed, there was no agreement covering the relevant workers. However, although called upon to do so, the Union did not offer any authority in support of its proposition that the relevant time as far as whether the agreement proved fatal to the Union’s application, was the date of the application to the CAC and not the date of the Panel’s decision.

37) The facts of this case as far as the Panel can discern are that there was an agreement made between URTU and a business within the Clugston Group, Clugston Distribution Services Ltd – Food Business Unit, in 2015 but this agreement, on the face of it, did not extend to the workers in the proposed bargaining unit. That this was so is supported by the email evidence of the URTU official, Alex Harris, who confirmed in his 22 May 2018 email that the Union had, in effect, a clear run for what he described as “the steel side” of the company as the UTRU agreement only extended to the Food Distribution arm. However, this changed on 14 December 2018 when URTU entered into a collective bargaining agreement with the Employer which covered the HGV drivers and technicians within the Union’s proposed bargaining unit.

38) Addressing the Union’s submission that the agreement was not signed until after the date of its application to the CAC the Panel would point out that there is no provision within the terms of the Schedule that states that the making of a formal request for recognition or even the lodging of an application with the CAC, stops the clock and so prevents the intervention of a third party union. On the question of timing the Panel, whilst acknowledging previous decisions of the CAC are non-binding, nevertheless adopts the maxim of the Panel in the case of TUR1/451(2005) TGWU and Securicor Aviation Ltd [13 June 2005]. In paragraph 19(4) of its decision the Panel, with Professor Roy Lewis as chairman, stated:

“(4) The Panel is entitled and indeed must have regard to the collective agreement of 18 May as it is required to consider the evidence that exists at the time when it makes its decision on acceptance, rather than at the time of the Union’s application to the CAC. In some cases this approach may work to the advantage of a union making an application, and in other cases it may work to the disadvantage of such a union.”

39) In common with the approach of the Panel chaired by Professor Lewis, the Panel in this case considers it appropriate to take account of the evidence available at the time that it makes its decision. This means taking into account the 2018 agreement. In the Panel’s view, to look at the reality of the industrial situation as it pertains at the time of its decision, rather than at a fixed point in the past, best accords with the CAC’s general duty under paragraph 171 to have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace (so far as consistent with applying other provisions of the Schedule in the case concerned).

40) The 2018 agreement is an agreement made between the Employer, on the one hand, and URTU, on the other, and the scope of the agreement clearly encompasses those workers in respect of whom the Union seeks to gain recognition for collective bargaining purposes. There is no argument that it is not in force (having been so recently agreed) nor do the exceptions in paragraphs 35(2) or 35(4) apply.

41) It must be remembered that those who drafted the provisions of the Schedule were at pains to ensure that the CAC did not get embroiled in inter-union territorial disputes. Rather, the intention of Parliament was to provide a vehicle that enabled trade unions, should the applicable tests be satisfied, to achieve recognition in workplaces where collective bargaining was absent. It is not for the Panel to become the arbiter in disputes between unions as to which is best placed to represent the needs of the workers and this remains the case.

12. Decision

42) For the reasons given above, the CAC is satisfied that there is already in force a collective agreement under which a union is recognised as entitled to conduct collective bargaining on behalf of any workers falling within the proposed bargaining unit.

43) The decision of the Panel is that paragraph 35 renders the application not admissible and the application is therefore not accepted by the CAC.

Panel

Mr Barry Clarke, Panel Chair

Mr David Crowe

Mr Paul Noon OBE

18 February 2019

1. The copy of the application form received by the Employer must have been that from the Union as the CAC did not receive the application until 9 January 2019 - its receipt being delayed as it was posted to Euston Tower rather than the CAC’s current address in Fleetbank House ↩