Decision

Acceptance Decision

Updated 4 September 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1354(2023)

4 September 2023

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

Dow Silicones UK Ltd

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 4 August 2023 that it should be recognised for collective bargaining by Dow Silicones UK Ltd (the Employer) for a bargaining unit comprising the “Industrial Staff”^{[footnote 1]} based at Dow Silicones UK Limited, Barry Plant, Cardiff Road, Barry, Glamorgan, CF63 2YL. The CAC gave both parties notice of receipt of the application on 4 August 2023. The Employer submitted a response to the CAC dated 11 August 2023 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 Rohan Pirani, Panel Chair, and, as Members, Mr Richard Fulham and Ms Janice Beards. 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 18 August 2023. The acceptance period was then extended to 8 September 2023 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 20 July 2023 by way of a letter sent by email requesting that the Employer recognise the Union to conduct collective bargaining relating to pay, hours and holidays. The Union stated that it received a read receipt confirming that the email had been opened by the Employer, but the Employer failed to respond to the letter.

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 560 and that 244 of these workers were in the proposed bargaining unit, of whom 217 were Union members. When asked whether the Employer agreed on the number of workers in the proposed bargaining unit the Union left this question unanswered. 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, “I confirm that I stand ready to let you have (on a confidential basis) evidence that a majority of the workers in the bargaining unit favour our application”.

8) The Union stated it had selected the proposed bargaining unit because it comprised “Staff involved in traditional industrial jobs on site involving the production of the products and maintenance of equipment, this excludes management grades admin staff and supplementary roles based on site”.

9) When asked whether the bargaining unit had been agreed with the Employer the Union answered “No”.

10) Finally, the Union stated that it believed its predecessor unions had recognition on the site in the past, but it had not been able to locate a signed recognition agreement and also the Employer had stated that the Union was not recognised for the site and never had been. The Union confirmed that it held a current certificate of independence and it confirmed that it had copied the application and supporting documents to the Employer on 4 August 2023.

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 20 July 2023. The Employer stated “We have not formally responded although we have been in written communications with the Union regarding recognition for some months. We have confirmed our availability to attend at a meeting with the Union on Monday 4 September 2023 facilitated by ACAS to discuss all the issues that are the subject of the recognition application”.

12) The Employer confirmed that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union. It said it did not agree with the proposed bargaining unit. The Employer then set out its objections to the proposed bargaining unit stating “The Union have identified 14 separate business areas on our site which they believe should all come under one bargaining unit for the purpose of recognition. We disagree that these 14 separate areas are capable of constituting one bargaining unit as they are distinct and separate areas and should be treated separately. This is because the areas deal with different technologies and complexities at a site level and the workers are under a number of different job profiles and job grades. In addition, the workers under the proposed bargaining unit fall into different business organisations, Feedstocks & Intermediates, Consumer Solutions, EHS etc. We believe that the proposed bargaining unit would be detrimental to the individual workers to be included in one bargaining arrangement – at Dow a key concept we have is pay for performance linked to job role and profile. For these reasons we also do not accept that there is General Business sufficient support for trade union collective bargaining in these areas”.

13) When asked if, following receipt of the Union’s request, it had proposed that Acas should be requested to assist, the Employer did not answer.

14) The Employer stated that it employed a total of 597 employees, and 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”.

15) When asked to state the number of workers in the Union’s proposed bargaining unit and the reason for any difference, the Employer stated “260, although it is difficult to determine the General Business exact number as the separate business areas are not matched with our department set up and numbers”.

16) The Employer said there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

17) The Employer, when asked if it disagreed with the Union’s estimate of membership in the proposed bargaining unit, stated “We believe that there are approximately 100 Trade Union members in the proposed bargaining unit based upon the job roles mentioned by the Union in their application and their letter to us dated 20 July 2023”.

18) 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 stated “In direct discussions with employees in the proposed bargaining unit and through feedback via emails etc there is evidence that a number of employees in the proposed bargaining unit do not support recognition. Recently a collective grievance was raised by the Trade Union on behalf of all employees in the proposed bargaining unit and it received only 100 signatures”.

19) Finally, the Employer stated “N/A” in answer to 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 “N/A”.

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 are 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 independent checks of the level of union membership in the proposed bargaining unit and the number of workers in that unit who had signed the Union’s petition in support of recognition. It was agreed with the parties that the Employer would supply to the Case Manager a list of the full 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 the full names and dates of birth of the paid-up union members within that unit and a copy of the petition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and the petition would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to both parties dated 14 August 2023

21) The information requested from the Union was received on 14 August 2023 and from the Employer on 16 August 2023. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

22) The list supplied by the Employer showed that there were 260 workers in the proposed bargaining unit. The list of members supplied by the Union contained 221 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 191, a membership level of 73.46%.

23) The Union also provide an e-petition survey conducted by surveys.unitetheunion.org, which was in the form of an excel spreadsheet. The e-petition was headed “Dow Recognition Petition” and the following information was provided to individuals to explain that any signatures provided were in support of Unite the Union recognition on site:

“PETITION IN SUPPORT OF UNION RECOGNITION

Dow Silicones UK limited - Barry Plant, Cardiff Road, Barry, Glamorgan, CF63 2YL

Unite the Union is asking your employer to recognise it for collective bargaining. We have to show the Central Arbitration Committee that a majority of workers favour our application. If you want your employer to recognise Unite for collective bargaining, please sign the petition.

I support recognition of Unite as entitled to conduct collective bargaining on pay, hours and holidays”

24) The Case Manager’s report showed that the e-petition was signed by 346 workers in the proposed bargaining unit, a figure which represented 68.08% of the bargaining unit. Of those 346 signatories, 167 were members of the Union (64.23% of the proposed bargaining unit) and 10 were non-members (3.85% of the proposed bargaining unit).

25) A report of the result of the membership and support check was circulated to the Panel and the parties on 24 August 2023 and the parties were invited to comment on the results by the close of business on 30 August 2023.

6. Parties’ comments on the membership check

26) The Union in its comments on the Case Manager’s report dated 24 August 2023, stated “No, we don’t have any further comments at this stage other than we have recruited further members since the data was shared for the membership check further increasing our density of membership within the bargaining unit and demonstrating there is a clear desire for Unite to be recognised”.

27) The Employer in its comments on the Case Manager’s report dated 30 August 2023 stated that “Dow do not have any comments on this comparison. We don’t disagree with the way in which the Central Arbitration Committee has analysed the data that’s been provided to them so far”.

7. Considerations

28) 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 carefully considered the submissions of both parties and all the evidence in reaching its decision.

29) 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 paragraph 36(1)(a) and paragraph 36(1)(b) are met.

8. Paragraph 36(1)(a)

30) 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 73.46% 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.

9. Paragraph 36(1)(b)

31) 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.

32) The Panel considers that members of the Union would be likely to favour recognition of the Union for collective bargaining (73.46%), as would non-union members who signed the petition (3.85%); giving a total of 77.31%. The Panel can only act on the evidence presented and on the basis of the evidence in this case, 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.

33) The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union.

10. Decision

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

Panel

Mr Rohan Pirani, Panel Chair

Mr Richard Fulham

Ms Janice Beards

4 September 2023

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1. The Union supplied a document named Appendix 1 with its application to the CAC. This document showed a breakdown of all the job roles which fell under the heading “Industrial Staff”. ↩