Decision

Acceptance Decision

Updated 10 July 2019

Case Number: TUR1/1114(2019)

9 July 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

Felixstowe Port Container Services Ltd

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 7 June 2019 that it should be recognised for collective bargaining by Felixstowe Port Container Services Ltd (the Employer) for a bargaining unit comprising the “All those employed by Felixstowe Port Container Services (FPCS) as Monitoring Technicians, Reefer Supervisors and Terminal Supervisor, total 16 employees”. The CAC gave both parties notice of receipt of the application on 7 June 2019. The Employer submitted a response to the CAC dated 14 June 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 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 Robert Lummis and Mr David Coats. 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 18 April 2019 to which it received no response although the Employer had indicated informally that it was not prepared to voluntarily recognise this group. A copy of the Union’s letter of 18 April 2019 was enclosed with the application.

5) According to the Union, there was a total of 30 workers employed by the Employer with 16 of these falling within the proposed bargaining unit. According to the Union the Employer agreed this figure. The Union stated that it had 14 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 signed by 16 members of the bargaining unit calling for union recognition for collective bargaining. This petition was not attached but the Union stated that it would provide it to the CAC on request.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that it was a coherent and distinct group comprising all manual workers employed by the Employer. The Union confirmed that the bargaining unit had been agreed with the Employer.

7) Finally, the Union said there had not been a previous application in respect of this or a similar bargaining unit. It also confirmed that it copied the application and supporting documents to the Employer on 7 June 2019 and that there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

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

8) The Employer stated that the Union’s original formal request for recognition was dated 26 November 2018 and the Employer had responded in March 2019. This request was then withdrawn and a new request made on 18 April 2019. When asked what its response was, the Employer stated that it did not respond in writing but verbally, explaining that as it was a joint venture the matter needed to be discussed with the other company involved. Having done so the Employer confirmed that it did not wish to grant collective bargaining to this group of workers. The Employer also informed the Union that it was considering whether to outsource the function in question.

9) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated that it received the application via the CAC on 7 June 2019. When asked if the Employer and Union had agreed the bargaining unit prior to having received a copy of the completed application form the Employer stated “Yes, we understood the application related to the refrigeration part of the FPCS business”. When asked whether it agreed the bargaining unit, the Employer answered “We are clear on the bargaining unit proposed by Unite but please see our response to Q2” which referred to the Employer’s decision not to grant recognition following receipt of the request and its debating whether or not to outsource the function in question.

10) The Employer stated that it employed 23 workers at the site and that there were now 15 workers in the proposed bargaining unit rather than 16 due to a recent leaver. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer stated that it had no reason to disagree. 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 “We have no evidence to submit on this”.

11) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the agreed bargaining unit. When asked whether, following receipt of the Union’s request, the Employer had proposed that Acas be requested to assist, the Employer answered “No”.

12) 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 “na”.

5. Union’s comments on Employer’s response

13) On 18 June 2019 the Union was served with a copy of the Employer’s response and its comments were invited, both in general and specifically on the Employer’s assertion that it had not received a copy of the completed application form direct from the Union. The Union was asked to enclose with its comments any evidence of service of the application form on the Employer that may be in its possession. However, no comments or evidence of service of the application form were received by the deadline imposed by the Panel.

14) On 1 July 2019 the Case Manager sent a further letter to the Union calling for its comments and evidence of service of the application form direct on the Employer but again, no comments or evidence of service were received by the revised deadline set by the Panel.

6. Considerations

15) In deciding 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 has considered all the evidence submitted by the Employer and the Union in reaching its decision. 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. The Panel is also satisfied that the application was made in accordance with paragraph 11 in that before the end of the first period the Employer failed to respond to the request. The Panel must now decide whether the application is rendered inadmissible by any of the provisions in paragraphs 33 to 42 of the Schedule.

16) Paragraph 34 of the Schedule provides as follows: 34. An application under paragraph 11 or 12 is not admissible unless the union gives (or unions give) to the employer- (a) notice of the application, and (b) a copy of the application and any documents supporting it.

17) In this case the Employer has stated that it did not receive a copy of the application form direct from the Union but only the copy that was served on it by the CAC. The Union was asked to comment on the Employer’s assertion to that effect and to provide any evidence of service that may be in its possession, for example proof of delivery by either postal or electronic means. However, no comments on this issue nor any such evidence were forthcoming from the Union despite being sent a reminder and having been given an extended period in which to comply with the Panel’s direction. Paragraph 34 of the Schedule states specifically that the Union is under a duty to serve a copy of the completed application form on the Employer and the consequence of failing to do so is that the application is not admissible. In this case there is no evidence that the terms of paragraph 34 of the Schedule have been complied with. The Panel has therefore concluded that the application is not admissible as provided for by paragraph 34 of the Schedule and, in light of this, the Panel has not considered the remaining admissibility tests.

7. Decision

18) For the reasons given above the application is not accepted by the CAC.

Panel

Mr Charles Wynn-Evans, Panel Chair

Mr Robert Lummis

Mr David Coats

9 July 2019