Decision

Acceptance Decision

Updated 21 February 2020

Case Number: TUR1/1145(2019)

13 January 2020

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

Cory Riverside Energy

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 19 December 2019 that it should be recognised for collective bargaining by Cory Riverside Energy (the Employer) for a bargaining unit comprising “MSOMA Grouping”. The CAC gave both parties notice of receipt of the application on 19 December 2019. The Employer submitted a response to the CAC which was received on 28 November 2019 and copied to the Union.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chairman established a Panel to deal with the case. The Panel consisted of Mr Charles Wynn-Evans, Chairman of the Panel, and, as Members, Mr Mike Cann and Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 3 December 2019. The acceptance period was extended on two further occasions in order to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the parties’ comments before arriving at its decision. The final extension ends the acceptance period on 17 January 2020.

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. The Union’s application

5) In its application the Union explained that it had initially written to the Employer on 11 June 2019 formally requesting recognition and providing a draft recognition agreement on which the Employer’s comments were sought. The Union stated that, following a meeting with “all managers” on 16 July 2019 recognition was “agreed in principle”. The Union then sent a follow up letter to the Employer on 17 July 2019 and again enclosed a copy of the draft recognition agreement, followed by a further letter in which it “chased” the Employer for a response on 5 September 2019. The Union then wrote again on 18 October 2019 formally requesting recognition. The Union stated that it had not received a response from the Employer. A copy of the correspondence referred to above was attached to the Union’s 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 “N/A”. 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) According to the Union, there were approximately 270 workers in total employed by the Employer, 26 of whom were in the proposed bargaining unit. The Union said that 23 of the workers in the proposed bargaining unit were in membership. When 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 in June 2019 it had undertaken a “recognition petition” that was signed by 22 workers. The Union said that, at the meeting in July, the Employer had confirmed that it was “content with numbers.” The Union further stated that on 21 October 2019 “a further petition signed by 22/26 submitted requesting Unite deal collectively with current issues.”

8) The Union explained that it had selected the proposed bargaining unit on the basis that it consisted of workers who service and operate the Employer’s work to and from the jetty, as well as jetty operations. The Union said that, at the July meeting, the Employer “had agreed the grouping.” In answer to the question of whether the bargaining unit had been agreed with the Employer, the Union said “Yes”. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the proposed bargaining unit. The Union further added that it was recognised elsewhere in the Employer’s business as were the GMB. However, each agreement was separate and distinct.

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 18 November 2019.

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

10) In its response to the application the Employer said that “We have no objection to the application in principle.”

11) When asked to give the date on which the Employer had received a copy of the application form from the Union, the Employer replied that it had received a letter but no application form. When asked both whether it had agreed the bargaining unit with the Union before receiving a copy of the application form from the Union, and whether it now agrees with the proposed bargaining unit, the Employer stated that the scope of the proposed bargaining unit was not in dispute.

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

13) The Employer stated that it agreed with the number of workers as defined in the Union’s application. The Employer stated that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

14) In answer to the question of whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated that it had no evidence of union membership other than that of self-disclosure. When invited 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”.

15) The Employer did not respond to the question of whether it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit.

5. Additional comments from the parties

16) On 2 December 2019 the CAC copied the Employer’s response to the application to the Union and its comments were invited, specifically with regard to the Employer’s answer concerning the date on which it had received a copy of the application form from the Union. In an e-mail dated 3 December 2019 the Union stated that a copy of the application form was sent to the Employer via recorded delivery on 18 November 2019 and that it was signed for on 19 November 2019. The Union stated that, as the Employer had submitted that it had not received the application form from the Union, the Union had “resent today via email.” The Union attached to its e-mail a copy of the Royal Mail tracking document along with the original application.

17) The Union stated that it wrote to the Employer on 11 June 2019 requesting voluntary recognition under Schedule A1 and that it had also met with the Employer to hold talks. The Union stated that it was a “clearly formal approach”. The Union stated that following a number of exchanges it had submitted its application to the CAC, and copied it to the Employer, on 18 November 2019, along with a further copy of its formal request.

18) The Union stated that a meeting was held with the Employer, including Senior Managers and HR colleagues, on 16 July 2019. The Union said that during the meeting it had informed the Employer that it was willing to share the names and membership details with Acas, if verification was needed. The Union stated that it had no objection to “agreeing recognition” with Acas’ assistance.

6. The membership and support check

19) 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 of a petition compiled by the Union. 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) and a copy of a 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 13 December 2019 from the Case Manager to both parties.

20) The information requested from both parties was received by the CAC on 13 December 2019. 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 23 workers in the Union’s proposed bargaining unit. The job description provided by the Employer for each individual was “Multi Skilled Operations and Maintenance Assistant”.

22) The list of members supplied by the Union contained 24 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 16, a membership level of 69.56%.

23) The petition supplied by the Union contained 22 names and signatures, of which 20 were in the proposed bargaining unit, a figure that represents 86.96% of the proposed bargaining unit. Of those 20 signatories, 14 were members of the Union (60.87% of the proposed bargaining unit) and 6 were non-members (26.09% of the proposed bargaining unit). The petition consisted of 4 A4 sheets and at the top of each page it stated:

“We the undersigned support Unite the Union’s application for recognition to conduct collective bargaining on our behalf at R.R.R.L Jetty Ops”

Beneath which was a table of four columns for the worker to complete as follows:

PRINT NAME	SIGNATURE	DATE	UNION MEMBER

24) The signatures on the Union’s petition were dated between 17 June 2019 and 18 June 2019.

25) A report of the result of the membership and support check was circulated to the Panel and the parties on 19 December 2019 and the parties were invited to comment on the results of that check, including any evidence to support those comments, by close of business on 30 December 2019.

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

26) In a letter to the CAC dated 23 December 2019, the Union stated that it believed the report demonstrated that it had met the required threshold for union membership as well as providing evidence of support for union recognition within the proposed bargaining unit. The Union stated that it also wished to draw the Panel’s attention to the petition which was signed by non-union members, as well as members, which shows a wide base of general support for Unite being recognised.

27) The Union also explained that its petition was dated in June when it had initially begun “to organise with the members for recognition”. The Union stated that it had met with the Employer which, whilst expressing no problem with recognition, had failed to respond to the Union’s requests regarding its proposed agreement. The Union said that it had requested that the delay which the Employer was seeking be taken into account if the matter concluded in a formal CAC process. The Union further stated that the Employer did not object.

28) The Employer did not provide any comments on the membership check.

8. Considerations

29) In deciding whether to accept the application the Panel must determine 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.

30) 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 11 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.

9. Paragraph 36(1)(a)

31) 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 - 22 above) showed that 69.56% 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. The Panel has therefore satisfied that the 10% threshold has been satisfied.

10. Paragraph 36(1)(b)

32) 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. For the reasons given in paragraph 31 above the Panel has concluded that the level of membership of the Union within the bargaining unit stands at 69.56%. 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. No such evidence to the contrary was received in this case.

33) On the basis of the level of union membership alone the Panel would have been prepared to conclude, for the reasons set out in paragraph 31 above 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. In this case the Panel also notes that the support check conducted by the Case Manager showed that 86.96% of workers in the proposed bargaining unit (20 out of 23 workers) had signed a petition in favour of recognition (see paragraph 23 above). Of those who had signed the petition 14 were Union members (60.87% of the proposed bargaining unit) and 6 were non-members (26.09% of the proposed bargaining unit).

34) For the reasons given above the Panel is satisfied that, on the balance of probabilities, a majority of the workers in the proposed bargaining unit would be likely to support recognition of the Union and that the test set out in paragraph 36(1)(b) is therefore met.

11. Decision

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

Panel

Mr Charles Wynn-Evans, Deputy Chairman of the CAC

Mr Mike Cann

Mr Paul Noon OBE

13 January 2020