Decision

Validity Decision

Updated 17 December 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1217(2021)

17 August 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING DETERMINATION OF THE BARGAINING UNIT

The Parties:

Unite the Union

and

DHL Parcel UK Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 16 April 2021 that it should be recognised for collective bargaining purposes by DHL Parcel UK Limited (the Employer) in respect of a bargaining unit comprising “Linehaul Drivers based at Ryton in Coventry.” The location of the bargaining unit was given as “DHL Parcel UK Limited, Hillman Way, Ryton-on-Dunsmore, Coventry, CV8 3ED.” The application was received by the CAC on 16 April 2021 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 23 April 2021 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 Chairperson established a Panel to deal with the case. The Panel consisted of Mr Tariq Sadiq, Panel Chair, and, as Members, Ms Stephanie Marston and Mr Robert Lummis. On 21 July 2021 Mr Rob Lummis was replaced for purposes of this decision and subsequent stages of the case by Mr Len Aspell. The Case Manager appointed to support the Panel was Kate Norgate.

3) By a decision dated 24 May 2021 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. No agreement was reached between the parties as to the appropriate bargaining unit. Following a virtual hearing held on 2 July 2021 the Panel decided, by a decision dated 14 July 2021, that the appropriate bargaining unit was “All Linehaul Drivers”.

2. Issues

4) As the determined bargaining unit differed from that proposed by the Union, the Panel is required by paragraph 20 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application is invalid within the terms of paragraphs 43 to 50 of the Schedule. In a letter dated 14 July 2021 the Case Manager invited each party to make submissions on this matter for consideration by the Panel.

5) In a letter to the Case Manager dated 19 July 2021 the Employer made the following comments on the validity tests:

a) Is there an existing recognition agreement covering any of the workers within the new bargaining unit? “There is no existing recognition agreement covering any of the workers within the new bargaining unit”.

b) Is there 10% union membership within the new bargaining unit? The Employer submitted that the Schedule provides that the application for recognition relates to the, “…employer of the workers constituting the bargaining unit concerned”. However, throughout the process the Union had continued to make reference to workers who were not employed by DHL Parcel UK Limited. The Union misunderstood the difference between employees of DHL Parcel UK Limited and the other subsidiary companies of Deutsche Post DHL AG and in particular DHL Supply Chain Limited. The Employer continued to explain the background behind DHL Parcel UK Limited, a subsidiary company of the Deutsche Post DHL AG Group of companies, and emphasised that the workers engaged by DHL Supply Chain Limited could not form part of the new bargaining unit and were not within the scope of the Union’s application for recognition. The Employer further submitted that it was also clear from the Union’s verbal submissions at the hearing on 2 July 2021 and the Union’s written submissions that it did not make a distinction between a Bulk Driver and Linehaul Driver. As such it was very likely that the Union’s membership records do not make this distinction and therefore could not be relied upon for information as to the total membership within the new bargaining unit. At the hearing on 2 July 2021 the Union was asked whether it would be in favour of a Business Unit that included all of the Linehaul Drivers in the national team, to which the Union had responded, “it is not possible to do a membership check, but we are open to the possibility”. The Employer believed that it was therefore essential that the Union were able to demonstrate that any members identified in the new bargaining unit were employees of DHL Parcel UK Limited and not another DHL Group company.

c) Are the majority of the workers in the new bargaining unit likely to favour recognition? The Employer did not know whether the majority of the workers in the new bargaining unit were members of the Union, or whether they were in favour of the new bargaining unit. The Employer considered that a ballot should be held in the interests of good industrial relations. The Employer was not averse to trade union recognition if it was supported by the majority of the workers in the bargaining unit. However, it believed that it must respect the views of the workers and that it must not in any way impose recognition if it was not wanted, so as to act in the best interests of its employees. The Employer said that during discussions with the Union it was clear that they did not have reliable data about membership levels at DHL Parcel UK Limited’s sites other than Ryton (there were 44 Sites not including the Ryton Hub site). Consequently, the Union did not have knowledge of the potential level of support for recognition from the Linehaul Drivers in the rest of the bargaining unit. The Employer believed that it was significant to note that DHL Parcel UK Limited received a request to work with CWU on 22 February 2021. CWU had indicated that they had significant support and membership from the workers at DHL Parcel UK Limited. CWU had also asked that discussions were held about the business. It was the Employer’s view that their aim was for recognition across all Sites. The Employer further explained that GMB also wrote to the business on a regular basis. The Employer considered that unless a secret ballot was held that showed clear majority support from the Linehaul Drivers in the new bargaining unit for Unite or another union, it would be very unfair to the Linehaul Drivers to agree to trade union recognition for Unite. Paragraph 171 of the Schedule provides that. “in exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair an efficient practices and arrangements in the workplace.” It was the Employer’s view that as neither the Union or the Employer were aware of the level of support amongst the workers in the new bargaining unit, if the Union were able to demonstrate 10% membership, a secret ballot should be held in which the Employer’s records of Linehaul Drivers should be the basis for identifying the electorate for that ballot. The Employer maintained that if the Union believed that they were able to demonstrate majority membership in the new bargaining unit, in the interests of justice and fairness the CAC should request evidence that those members were workers engaged by DHL Parcel UK Limited and not another DHL Group Company.

d) Is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? “There is not as far as the Company is aware a competing application from another union for recognition.”

e) Has there been a previous application in respect of the new bargaining unit? “There has not been a previous application for recognition in respect of the new bargaining unit.”

6) In a letter to the Case Manager dated 22 July 2021 the Union made the following comments on the validity tests:

a) Is there an existing recognition agreement covering any of the workers within the new bargaining unit? “There is no existing recognition agreement within the new bargaining unit. This was confirmed by DHL in the Panel hearing.”

b) Is there 10% union membership within the new bargaining unit?

The Union said that at the Panel hearing the Employer confirmed that the National Linehaul driver numbers totalled 307. There were currently 51 members of the Union in the new bargaining unit. The Union offered to supply this information to the CAC on a confidential basis.

c) Are the majority of the workers in the new bargaining unit likely to favour recognition?

The Union said that it had run an online petition in support of recognition for DHL Parcels Linehaul Drivers, of which 300 Linehaul Drivers had signed. ^{[footnote 1]} The Union was happy to provide this information to the CAC on a confidential basis.

d) Is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? “There are no other applications that have been made for the new bargaining unit.”

e) Has there been a previous application in respect of the new bargaining unit? “There has been no previous application submitted for this bargaining unit.”

3. Membership and support check

7) To assist the determination of two of the validity tests specified in the Schedule, namely whether 10% of the workers in the determined bargaining unit are members of the union (paragraph 45(a)) and whether a majority of the workers in the determined bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 45(b)), the Panel proposed an independent check of the level of union membership within the determined bargaining unit and of an e-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 determined 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 the e-petition signed by workers in favour of recognition. It was explicitly agreed with both the 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 27 July 2021 from the Case Manager to both parties.

8) The information from the Union was received by the CAC 28 July 2021 and from the Employer on 29 July 2021. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

9) The list supplied by the Employer indicated that there were 324 workers in the determined bargaining unit. The list of members supplied by the Union contained 48 names. According to the Case Manager’s report, the number of Union members in the determined bargaining unit was 41, a membership level of 12.65%.

10) The Union provided the results of an e-petition. This took the form of a spreadsheet with columns headed: “Respondent ID”, Collector ID”, “Start Date”, “End Date”, “IP Address”, “E-mail Address”, “First Name”, “Last Name”, “Your Details”, “Are you a member of Unite the Union?”. The dates given for “Start Date” and “End Date” ranged between 21 June 2021 and 23 July 2021. The Union also provided a blank copy of its e-petition form with fields for the workers to complete. At the top of the page it stated:

“Please support national recognition of Unite the Union for drivers at DHL Parcels UK! We the undersigned drivers at DHL Parcels UK, wish to have Unite the Union as our union of choice for national recognition for the purposes of collective bargaining.”

Beneath this were boxes for individuals to enter their name, workplace location, shift, e-mail address, and phone number, followed by the question “Are you a member of Unite the Union?” to which individuals could select from the following options, “Yes”, “No - I’m a member of another union”, “No - but I’m interested in joining, contact me with more information”, or “No”.

The workers were also informed that:

“This survey is for ALL DRIVERS at DHL Parcels UK. Any information which might identify you will be kept confidential by Unite the Union and will not be shared with your management. The information you provide on this survey will be used by Unite in order to satisfy the legal process to achieve national recognition of Unite the Union at DHL Parcels UK. The information provided by you will be stored securely and the petition that you completed will be confidentially destroyed once the information has been added to an electronic system. Electronic records will be retained by Unite for the duration of any organising campaign.

Unite the Union’s full up-to-date privacy policy can be found at www.unitetheunion.org/privacypolicy.”

11) The check of the Union’s e-petition showed that it had been signed by 199 workers in the determined bargaining unit, a figure which represents 61.42% of the determined bargaining unit. Of those 199 signatories, 41 were members of the Union (12.65% of the determined bargaining unit) and 158 were non-members (48.77% of the determined bargaining unit).

12) A report of the result of the membership and support check was circulated to the Panel and the parties on 3 August 2021 and the parties were invited to comment on the results of that check by noon on 5 August 2021.

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

13) In an email to the Case Manager dated 5 August 2021 it was the Employer’s view that there should be a secret ballot to decide whether the majority of the workers in the new bargaining unit were in favour of recognition for Unite. The Employer stated that 41 Union members in a bargaining unit consisting of 324 Linehaul Drivers did not therefore demonstrate majority membership.

14) The Employer believed that the 41 Union members worked at only 3 of the 44 national Linehaul Drivers’ Sites. The Employer explained that the Linehaul Drivers were asked as part of the petition whether they wanted to be Unite members, but only a small proportion appeared to have joined Unite. Whilst the Employer accepted that there had been a petition, it believed this to be very different to a secret ballot in which the Linehaul Drivers could make an independent and informed choice. The Employer said that it wanted to ensure that if there was recognition, that it was supported by the majority of the Linehaul Drivers. The Employer therefore asked for a secret ballot to be held in accordance with paragraph 23 of the Schedule.

15) In a letter to the Case Manager dated 5 August 2021 the Union said that it believed the check confirmed that its current level of Union membership in the new bargaining unit stood at over 10%, as required by paragraph 45(a) of the Schedule. The Union explained that the 7 names who did not appear on the Employer’s list may have been due to incorrect spellings when they were entered onto the Union’s database. The Union said that its membership at DHL Parcels continued to grow and it believed that there were a number of workers who had not yet joined the Union but had indicated their desire to do so.

16) With regard to the second test at paragraph 45(b) the Union maintained that the Case Manager’s check of the e-petition demonstrated that a majority of the workers were overwhelmingly in favour of Unite recognition.

17) The Union explained that difficulties presented by the Covid-19 pandemic led to problems communicating with the entire national workforce. For example, the Union would usually have face to face contact with workers, but this was not possible due to travel restrictions and social distancing required by law. The Union therefore had to rely on remote forms of communication.

18) The Union maintained that despite those difficulties the e-petition showed that in a very short space of time, between 21 June and 23 July 2021, the vast majority of the Linehaul Drivers supported Unite recognition. The Union therefore believed that its support for recognition “goes well beyond the 61.42% indicated in the report.”

5. Considerations

19) The Panel is required to decide whether the Union’s application is invalid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision the Panel has considered carefully the submissions of the parties and all the other evidence before it.

20) The Panel is satisfied that the application is not rendered invalid by any of the provisions in paragraphs 44 and 46 to 50 of the Schedule. The remaining issue for the Panel to decide is whether the application is invalid under paragraph 45 of the Schedule.

6. Paragraph 45(a)

21) Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the Union constitute at least 10 per cent of the workers in the determined bargaining unit. The membership check conducted by the Case Manager (described in paragraphs 7 to 9 above) showed that 12.65% of the workers in the determined bargaining unit were members of the Union. As stated in paragraph 8 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 decided that members of the Union constitute at least 10% of the workers in the determined bargaining unit as required by paragraph 45(a) of the Schedule.

7. Paragraph 45(b)

22) Paragraph 45(b) provides that the application in question is invalid unless the CAC decides that a majority of the workers constituting the bargaining unit determined by the CAC would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit. The Panel notes that the support check conducted by the Case Manager showed that 61.42% of the workers in the determined bargaining unit (199 out of 324 workers) had signed the e-petition in support of recognition of the Union (see paragraph 11 above). Of those who had signed the e-petition, 41 were Union members (12.65% of the determined bargaining unit) and 158 were non-members (48.77% of the determined bargaining unit). The Panel considers that, in the absence of evidence to the contrary, the support check provides sufficient evidence of the views of workers in the determined bargaining unit as to whether they would be likely to favour recognition of the Union, as required by paragraph 45(b) of the Schedule.

8. Decision

23) For the reasons given in paragraphs 20 - 22 above, the Panel’s decision is that the application is not invalid, and that the CAC is proceeding with the application.

Panel

Mr Tariq Sadiq, Panel Chair

Ms Stephanie Marston

Mr Len Aspell

17 August 2021

1. See paragraph 10 below for details of this petition. ↩