Decision

Acceptance Decision

Updated 10 May 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1253(2022)

17 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

Enfinium Ferrybridge 1 Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 18 February 2022 that it should be recognised for collective bargaining purposes by Enfinium Ferrybridge 1 Limited (the Employer) for a bargaining unit comprising “all employees at Ferrybridge (to cover Ferrybridge 1 and 2).” The location of the bargaining unit was given as Enfinium Ferrybridge 1 & 2, Ferrybridge, Kirkham Lane, Knottingley, West Yorkshire WF11 8DX. The application was received by the CAC on 21 February 2022 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 25 February 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 Mr Stuart Robertson, Panel Chair, and, as Members, Mr Sean McIlveen and Mr David Coats. The Case Manager appointed to support the Panel was Joanne Curtis.

3) The Panel has extended the acceptance period in this case. The initial period expired on 4 March 2022. The acceptance period was extended to 18 March 2022 to allow the parties to comment on the results of a membership check and for the Panel to consider these comments and raise with the parties an issue about the identification of the bargaining unit before arriving at a decision.

2. Issues and previous application

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.

5) The Union had presented a previous application to the CAC on 9 February 2022. That application had sought recognition by a different company, Enfinium Holdings Limited, in respect of a bargaining unit comprising “1. Employees 2. Supervisors, 1st Level Management 3.Engineers, Shift Team Leaders, Managers 3rd level.” Following the company’s response that it was not the employer of the employees in the proposed bargaining unit and the bargaining unit was not the same as that proposed in the Union’s request dated 27 October 2021, the Union withdrew the application and immediately presented this application.

3. Summary of the Union’s application

6) In its application to the CAC, the Union stated that it had sent a request for recognition to the Employer on 27 October 2021. The Employer had acknowledged the request on 3 November 2021 and had formally responded on 11 November 2021 asking if the Union wished to have ACAS involvement to support discussions and explore a possible voluntary resolution. The parties thereafter held discussions with ACAS on 13 December 2021, 10 January 2022 and 19 January 2022 regarding the bargaining unit. These discussions were not successful and the Employer did not accept that the Union should be recognised for collective bargaining on the basis proposed. A copy of the Union’s request letter of 27 October 2021 was attached to the application. The proposed bargaining unit in the letter of 27 October 2021 was “all employees at the Ferrybridge site”.

7) The Union stated that it had not made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit. It confirmed that following receipt of the request for recognition, the Employer had proposed that ACAS should be requested to assist the parties, and the parties had agreed.

8) The Union stated that the total number of workers employed by the Employer was 102, and there were 102 workers in the proposed bargaining unit, of whom 73 were members of the Union. When asked 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, ‘indicative ballot, growth of membership, 72% of employees in the proposed bargaining group over a period of 4 months.’

9) The Union advised that the reason for selecting the proposed bargaining unit was that it had well above the application trigger requirements and that it was the wish of all members to be within the bargaining unit. There was no existing recognition agreement of which it was aware which covered any workers in the proposed bargaining unit.

10) The Union confirmed that it held a current certificate of independence.

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 had received the Union’s written request for recognition on 27 October 2021. It had received a copy of the CAC application from the Union on 18 February 2022. It referred to the Union’s previous but withdrawn application which had named the wrong legal entity and did not relate to the same bargaining unit as the request for recognition of 27 October 2021. It observed that the Union had agreed during negotiations that Senior Managers should be excluded from the bargaining unit, which was consistent with the previous application to the CAC (which excluded Senior Managers from the proposed bargaining unit). It commented that the Union could have proceeded by making a new request to the Employer and starting the process again in relation to the reduced bargaining unit, reflecting the agreement reached during the negotiations after 27 October 2021 (in which ACAS assisted), but instead, appeared to have taken the view that it was preferable to disregard the progress made in negotiations and presented a new application for a bargaining unit which had been agreed to be inappropriate.

12) The Employer stated that it had not agreed the proposed bargaining unit, comprising all employees at Ferrybridge sites 1 and 2, and contended that that bargaining unit was not compatible with effective management. It made representations about the appropriate bargaining unit, which are not material at this stage of the process when the Panel is considering whether the application should be accepted.

13) The Employer agreed that the number of workers in the proposed bargaining unit was 102 and that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

14) The Employer did not accept that that a majority of the workers in the bargaining unit would be likely to support recognition, and asserted that many employees may have joined the Union for reasons which “had nothing to do with negotiations or collective bargaining”. It asserted that many of the issues following a recent merger been resolved, and a three-year pay settlement has been reached with Operations Support and Maintenance employees. It contended that membership was not considered to be indicative of support for recognition in any event, and membership was concentrated at Operations Support and Maintenance levels, with little support at the level of Senior Managers.

5. The membership and support check

15) To assist in 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. 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 full names, date of birth and branch details/code membership number. 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 1 March 2022 from the Case Manager to both parties.

16) The information requested from the Union was received by the CAC on 1 March 2022 and from the Employer on 3 March 2022. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

17) The list supplied by the Employer indicated that there were 102 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 71 names. This included some individuals who were not identified in the Employer’s list of workers, and according to the Case Manager’s report the number of members of the Union in the proposed bargaining unit was 64, a membership level of 62.74%.

18) A report of the result of the membership and support check was circulated to the Panel and the parties on 4 March 2022 and the parties were invited to comment on the results by noon on 11 March 2022.

6. Summary of the parties’ comments following the membership check

19) In an email to the Case Manager dated 7 March 2022 the Union stated that the sheer volume of new members joining in such a short period of time without any recruitment campaign suggested the desire for recognition across all roles was very high.

20) In an email to the Case Manager dated 11 March 2022 the Employer stated that it had no reason to doubt the figures provided in the membership check, however it did not consider that all members had joined the Union in order to be represented by the Union for the purposes of collective bargaining. It did not therefore consider that a majority of workers within the bargaining unit were likely to support recognition of the Union, notwithstanding the proportion of 62.74% stated. It believed that many employees may have joined the Union for reasons which had nothing to do with negotiations or collective bargaining. It stated that the Union was actively conducting a membership recruitment drive at a time where there was uncertainty surrounding a merger in June 2021 but that this had now been resolved.

21) The Employer referred to the agreement in negotiations with the Union that Senior Managers (who comprised 8 of the 102 workers) should be excluded. It contended that the Union should have made a fresh request to the Employer on the basis of the agreed exclusion of Senior Managers, recognising the position reached in negotiations. This would have allowed the opportunity to resolve directly with the Union the outstanding matters of dispute in relation to the proposed bargaining unit and discuss recognition on a voluntary basis. The Employer noted that instead, the Union submitted its application to the CAC including the Senior Managers. It contended that this was wholly unacceptable, the bargaining unit as stated in the application was not appropriate and the application should not be accepted by the CAC.

7. Discussion and conclusions

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

23) 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. The Panel is also satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 37 to 42, and that it was made in accordance with paragraph 12(2) of the Schedule when before the end of the second period of 20 working days following the Employer’s indication of a willingness to negotiate, as extended by agreement between the parties to facilitate negotiations, no agreement was reached between the parties.

24) The Panel noted that here was a difference between the bargaining unit proposed in the request letter of 27 October 2021: ““all employees at the Ferrybridge site”, and that in the application to the CAC: “all employees at Ferrybridge (to cover Ferrybridge 1 and 2).”

25) Paragraph 12(2) of the Schedule specifies that the union may apply to the CAC to decide whether the proposed bargaining unit is appropriate, and whether the union has the support of a majority of the workers constituting the appropriate bargaining unit. Paragraph 2(3) provides that references to the bargaining unit are to the bargaining unit proposed in the request for recognition.

26) The Panel requested the parties’ comments on this issue, by close of business on 17 March 2022. In an email dated 15 March 2022 the Union commented that: “the Ferrybridge site encompasses both units 1 and 2 and staff/members are expected to work between the two. The wording “Ferrybridge site” covers the same bargaining unit.” The Employer in an email on 17 March 2022 said that “without prejudice to the above [this was a reference to the Employer’s contention summarised at paragraph 21 above], ….. we confirm that we would want to proceed on the basis that both Ferrybridge 1 and Ferrybridge 2 sites should be included, which is consistent with the discussions and information provided to date. For the avoidance of doubt, all of the employees at both sites are employed by Enfinium Ferrybridge 1 Ltd. There are different management structures in each site which may be relevant to our arguments with regards to the bargaining unit in due course”.

27) Having considered these comments, the Panel is satisfied that the difference in the description of the proposed bargaining unit is not significant and the proposed bargaining unit is the same.

28) The remaining issue for the Panel is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

8. Paragraph 36(1)(a)

29) 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 15-18 above) showed that 62.74% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 16 above the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement 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)

30) 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. As stated in paragraph 17 above, the level of union membership within the bargaining unit stands at 62.74%. 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. Although the Employer has asserted that membership of the Union does not equate to likely support for recognition, and that individuals may have joined the Union for reasons other than collective bargaining, this is a mere assertion unsupported by any evidence, and is insufficient to displace the presumption at this stage that members of the Union are likely to support recognition.

31) On the evidence before it, the Panel has decided 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 as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 36(1)(b) of the Schedule.

32) Whilst appreciating the Employer’s contention that the bargaining unit proposed by the Union in this application does not reflect the position reached by the parties in negotiations, and the Union might have begun the process afresh with a request for recognition reflecting that position, this does not affect the validity of the application such that the CAC should not accept it. The appropriate composition of the bargaining unit is a matter to be explored by the parties (in further negotiations) or by the CAC in determining the appropriate bargaining unit in accordance with paragraphs 18 – 19A of the Schedule, if not agreed by the parties.

10. Decision

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

Panel

Mr Stuart Robertson, Panel Chair

Mr Sean McIlveen

Mr David Coats

17 March 2022