Decision

Recognition Decision

Updated 16 October 2019

Case Number: TUR1/1131/2019

16 October 2019

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

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 12 August 2019 that it should be recognised for collective bargaining by Felixstowe Port Container Services Ltd (the Employer) in respect of a bargaining unit comprising “All persons employed as Refrigeration Engineers”. The CAC gave both parties notice of receipt of the application on 12 August 2019. The Employer submitted a response to the CAC which was received on 22 August 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 David Coats and Mr Rob Lummis. The Case Manager appointed to support the Panel was Kate Norgate.

3) By a decision dated 9 September 2019 the Panel accepted the Union’s application. On 17 September 2019, the parties wrote to the CAC confirming that the Employer agreed with the Union’s proposed bargaining unit. The parties also confirmed their revised wording of the agreed bargaining unit, namely “All persons employed in the FPCS refrigeration department consisting of Monitoring Technicians, Reefer Supervisors and Terminal Supervisor”. As the agreed bargaining unit consisted of the same group of workers as that proposed by the Union in its application, the Panel moved to the next stage in the statutory process

2. Issues

4) Paragraph 22 of the Schedule provides that, if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies. Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled. The three qualifying conditions are:

(i) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(ii) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

(iii) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf.

Paragraph 22(5) provides that “membership evidence” for these purposes is:

(a) evidence about the circumstances in which union members became members, or

(b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

3. The Union’s claim to majority membership and submission it should be recognised without a ballot

5) In a letter dated 18 September 2019 the Union was asked by the CAC whether it claimed majority membership within the bargaining unit and, if so, whether it submitted that it should be granted recognition without a ballot. The Union, in an e-mail dated 24 September 2019, stated that it did claim to have majority membership within the bargaining unit and therefore submitted that it was seeking recognition without a ballot. The Union stated that if required, it could provide a membership list to the CAC.

4. Summary of the Employer’s response to the Union’s claim and submission it should be recognised without a ballot

6) On 25 September 2019 the CAC copied the Union’s e-mail of 24 September 2019 to the Employer and invited the Employer to make submissions in relation to the Union’s claim that it had majority membership within the bargaining unit and in relation to the three qualifying conditions specified in paragraph 22(4) of the Schedule.

7) In its response dated 3 October 2019 the Employer stated that, whilst it was aware of the number of employees in the proposed bargaining unit, who paid their Unite subscriptions via payroll deduction, it did not know whether other employees paid their subscriptions directly to the Union. It stated that it did, however, accept that a majority of employees were members of the Union.

8) The Employer stated that it did not know how many employees “wish Unite to have collective bargaining rights” nor was it aware of the level of support “across each of the 3 groups in the area”. The Union explained that, for example, there was 1 Terminal Supervisor and it did not know whether they were a member of the Union, or whether they wanted to be included in collective bargaining.

9) It was the Employer’s view that, given that the Employer had “consistently opposed union recognition in this section”, it would prefer that a ballot was held “to ensure that the views of all employees are clearly understood.”

5. Considerations

10) The Act requires the Panel to consider whether it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Union, it must declare the Union to be recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit unless it decides that any of the three qualifying conditions set out in paragraph 22(4) is fulfilled. If the Panel considers that any of those specific conditions is fulfilled, it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

11) In this case, the Union had stated that, of the 19 workers in the proposed bargaining unit, a figure of which the Employer subsequently clarified to be 15, 14 were members of the Union. The Employer did not seek to challenge the Union’s position that the majority of the workers in the bargaining unit were members of the Union. The Panel is satisfied, in the absence of evidence to the contrary, that a majority of the workers in the bargaining unit are members of the Union.

12) The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision as to whether any of the qualifying conditions laid down in paragraph 22(4) of the Schedule is fulfilled.

13) The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Panel has considered the submissions put forward by both parties and is not satisfied that a ballot should be held in the interests of good industrial relations. The Panel notes the Employer’s preference for a ballot as it had “consistently opposed” union recognition and, so as to “ensure the views of all its employees are clearly understood”. However, an unwillingness to recognise a union for collective bargaining is not a sufficient reason for moving to a ballot without more specific and cogent evidence of the need for a ballot to address issues of good industrial relations. The Panel has therefore concluded that this condition has not been satisfied.

14) The second condition is that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union to conduct collective bargaining on their behalf. No such evidence has been produced and the Panel has therefore concluded that this condition has not been satisfied.

15) The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the Union to conduct collective bargaining on their behalf. No such evidence has been produced and the Panel has therefore concluded that this condition has not been satisfied.

6. Declaration of recognition

16) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that a majority of the workers constituting the bargaining unit are members of the Union. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule is met. Pursuant to paragraph 22(2) of the Schedule, the CAC must therefore issue a declaration that the Union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising “All persons employed in the FPCS refrigeration department consisting of Monitoring Technicians, Reefer Supervisors and Terminal Supervisor”.

Panel

Mr Charles Wynn-Evans, Panel Chair

Mr Rob Lummis

Mr David Coats

16 October 2019