Decision

Acceptance Decision

Updated 5 February 2020

Case Number: TUR1/1150(2019)

05 February 2020

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

Hanon Systems UK Limited

1. Introduction

1) Unite the Union (the Union) submitted an application, dated 8 November 2019 and received by the CAC on 12 December 2019, that it should be recognised for collective bargaining by Hanon Systems UK Limited (the Employer) for a proposed bargaining unit comprising the “LL6 Managers” located at the “Chelmsford Site”. The CAC gave both parties notice of receipt of the application on 17 December 2019. The Employer submitted a response to the CAC dated 24 December 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, Miss Mary Canavan and Mr David Coats. The Case Manager appointed to support the Panel was Miss Sharmin Khan.

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 stated that it had made a formal written request for recognition under the Schedule on 27 November 2019, to which the Employer responded on 11 December 2019 stating that the group of workers was best served in direct discussions with the Employer and its consultative process and that it believed that there was a significant number of workers in the proposed bargaining unit who did not favour the Union’s proposal. A copy of this correspondence was enclosed with the Union’s application. The Union also enclosed a copy of its reply to the Employer, by way of a letter dated 12 December 2019, in which it expressed regret that the Employer had not acceded to its request and informed the Employer that it was therefore applying to the CAC for statutory recognition. The Union also stated that a copy of its application form and supporting documentation to the CAC was enclosed with that letter.

5) According to the Union, a total of 36 workers was employed by the Employer, 14 of whom fell within the proposed bargaining unit. The Union stated that of those 14 workers in the proposed bargaining unit, 10 were Union members. When 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 stated that 10 out of the 14 (71%) of the workers in the proposed bargaining unit were Union members and that it had a signed petition from all 14 employees requesting that Hanon Systems recognised Unite the Union for collective bargaining on their behalf.

6) When asked if the Union had made a previous application under the Schedule for statutory recognition for workers in its proposed bargaining unit or any similar unit, the Union answered that Unite the Union was recognised for the Employer’s 17 “Professional” employees following a split with Visteon which continued the established recognition of this group of employees. However, the request for recognition for the current application was for the 14 LL6 Manager community who managed the “Professional” employees.

7) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that the “14 LL6 Managers” were employees treated as its own separate “unit” of workers and who were now requesting collective bargaining rights.

8) Finally, the Union confirmed that the bargaining unit had not been agreed with the Employer; that there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit and that the Employer did not propose that Acas was requested to assist following receipt of the Union’s request for recognition.

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

9) In its response to the Union’s application dated 24 December 2019, the Employer confirmed that it had received the Union’s formal request for recognition by e-mail on 27 November 2019 and by post on 4 December 2019. When asked how it had responded, the Employer stated that it did not accept the request for recognition. The Employer enclosed a copy of its response letter to the Union of 11 December 2019.

10) When asked for the date on which it received a copy of the application form (and any supporting documents) from the Union, the Employer answered that only the Union’s letter of 27 November 2019 had been received and no application form or other supporting documents were received.

11) When asked if it and the Union had agreed the proposed bargaining unit before it had received a copy of the Union’s application, the Employer answered that no prior discussion had occurred with the Union, and so no proposed bargaining unit had been discussed or agreed.

12) When asked if it agreed with the Union’s proposed bargaining unit, the Employer answered “No” as there were 13 Managers within the Manager group, not 14 as stated in Union’s application. Two Managers had been accepted to retire in May 2020. The Employer stated that it felt that the size of the proposed bargaining unit could have a detrimental impact on the business. The Employer believed that the limited size of the group of managers comprising the proposed bargaining unit would be best served in direct discussions with the Employer and through other consultative processes.

13) The Employer stated that it employed 35 workers. The Employer stated that it did not agree with the Union’s figure as to the number of workers in the proposed bargaining unit defined in the Union’s application, explaining that there were currently 13 workers within the Manager group, and out of the total of 13, 2 of the 13 had applied for and had been granted retirement and were due to leave the business in May 2020. This would leave a remaining number of 11 Managers. On the basis of the two workers due to retire in May 2020, the Employer disagreed with the Union’s estimate of its membership within the proposed bargaining unit.

14) When asked to give reasons if it did not consider that a majority of the workers in the proposed bargaining unit were likely to support recognition, the Employer answered that it believed that there might be an important number of Managers within the group who may not understand and/or who may not be in favour of the Union’s proposal. The Employer therefore requested that a secret ballot be conducted as a ballot would allow each Manager to vote independently and with minimal risk of peer pressure / influence. The Employer also stated that 12 of the 13 Managers were based in the same Chelmsford office, and it recognised a risk that the face to face meetings that had occurred between the Managers on this subject may have led to some level of peer pressure. In addition, it had received 1:1 feedback from some of the Manager group that they would welcome independent contact and a secret ballot.

15) When asked whether, following receipt of the Union’s request, the Employer had proposed that Acas be requested to assist, the Employer answered “No”. Finally, the Employer confirmed that there was no recognition agreement in place covering any of the workers in the proposed bargaining unit and that it was not aware of any previous application under the Schedule by the Union in respect of this or similar bargaining unit.

5. Further comments from the parties

6. Union’s comments on the Employers response to the application

16) On 30 December 2019 the CAC copied to the Union the Employer’s response to the application and invited its comments. The Union responded by e-mail to the CAC on 3 January 2020 attaching again a copy of its letter to the Employer dated 12 December 2019 in which it stated that it was applying to the CAC and that it was enclosing a copy of its application to the CAC. In the covering e-mail, in response to the Employer’s response to the application, the Union stated that it did not believe the pending retirement of two of the workers in the proposed bargaining unit in May 2020 had any relevance to the admissibility of its application, as it would still have the majority of the proposed bargaining unit as Union members. The Union also contested the Employer’s assertion that extending collective bargaining to the Union’s proposed group of workers would have a detrimental impact on the business as union collective bargaining already existed elsewhere within the business.

17) In a further e-mail to the CAC on 8 January 2020 the Union confirmed that “Further to our email of the 3rd January, I write to confirm that an additional copy of the application was sent to the employer today via email.”

7. Employer’s further comments to the Panel

18) On 8 January 2020, the Employer submitted an e-mail to the CAC stating that it remained concerned that the Manager meetings that had occurred to discuss Union representation may not have been conducive to all of the Managers giving an unbiased decision, and/or that the Managers may not have fully understood the next steps that would be taken when indicating their view. In the interests of open communication, the Employer had met with the Manager group just before the Christmas break, and explained that it was not in favour of the Union’s application for voluntary recognition and that it would be sending that reply to the Union later that day. The Employer also stated that during that meeting, it also explained that its understanding was that the Managers may be contacted individually by an independent group (the CAC) to canvass their confidential personal opinion about the request for Union recognition, i.e. through a ballot. The Employer’s understanding was that there were a number of Managers that would welcome a ballot to allow un-biased opinions to be collected.

19) The Employer further stated that it was aware that some Managers may have Union membership that was “historical”, for several reasons. For example, a recurring membership from times when that Employee was at a lower grade level (professional) and that they had never cancelled, or it could be from a time when that employee had a personal reason to enrol but had since not been active with regard to the Union.

8. Union’s further comments to the Panel

20) In response to the Employer’s e-mail to the Panel dated 8 January 2020, by way of an e-mail to the CAC dated 20 January 2020, the Union requested the Panel to consider its rebuttal. The Union stated that the petition supporting its application was very current, in that it was signed between the 21 October 2019 and 6 November 2019 by all the Managers. The Union also believed that its petition could be seen as a ‘balloting’ of the LL6 Managers (the proposed bargaining unit) and that these workers had clearly shown their agreement to Unite the Union’s approach to the Employer for recognition.

21) The Union also refuted the Employer’s position that ‘Managers may not have fully understood the next steps that would be taken’. The Union contended that it was clear, from the title and the explanation provided within the petition and with their Managerial status, that the workers were fully capable of understanding what the Union was requesting on their behalf. The Union also stated that it had also informed the workers in the proposed bargaining unit of the Employer’s rejection of the voluntary recognition process and that it had informed the Employer about the next stages in the CAC procedure.

22) The Union also stated in its rebuttal that, from the Union’s membership list, the Employer’s assumption that the majority of the membership was ‘historical’ was also incorrect by reference to the members’ joining dates. The Union contended that the level of activity linked to an individual’s membership had nothing to do with the Employer, and there was no justification for this argument against its application.

9. Case Manager’s membership and support check

23) 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 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 and also took into account the Union’s petition evidence and the Employer’s evidence of feedback that some Managers were not in support of the Union’s proposal. 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, addresses and dates of birth. It was also agreed that the Union would provide a copy of its petition and the Employer would provide a copy of e-mails it had received from workers. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and evidence would not be disclosed to the parties or Panel and this was confirmed in a letter from the Case Manager to both parties dated 16 January 2020 and in an e-mail exchange between the Case Manager and the parties on 21 January 2020.

24) The Employer provided a list of the agreed details for 13 workers in the proposed bargaining unit. The job titles appearing on the list were: Account Manager; PD Manager; Global Programme Manager; Programme & Account Manager; Program Manager; Tech Fellow Applications Manager; Tech Fellow WCAC; European Manufacturing Engineering Manager; Supply Chain Manager and Commercial Finance Manager. The Employer also provided 2 e-mails from workers which stated as follows:

“With regard to union representation, I believe the company has not been given an adequate opportunity to rectify the management concerns as they stand today. I also believe the union may be taking the initial signed doc as 100% of the management wanting immediate representation. At our last management meeting it was clear I was not alone in thinking the company should be given the opportunity to address the situation first.”

and

“Regard the proposal to have the UK management represented by the Unite Union, I would like you to know that I was in favour of giving the company time to address our concerns prior to submitting a request for representation. We had a vote and I wasn’t alone in this belief. After a period of months, which I think is reasonable, the company was unable to demonstrate the concerns could be addressed, then that would be the time to request representation, any sooner is unreasonable.

Thanks”.

25) The Union provided a list with the agreed details of 10 of its fully paid up members and a scanned copy (PDF document) of its petition containing 14 entries from workers who had signed up to the following statement:

“PETITION FOR TRADE UNION RECOGNITION

“We, the undersigned workers who are employed by Hanon Systems ask that Unite the Union be recognised as being entitled to conduct collective bargaining on our behalf.

Please note this petition is confidential and will only be made available to the Central Arbitration Committee (CAC) or ACAS”

10. Results of the checks

26) The Case Manager’s checks established that all 10 of the Union members were in the proposed bargaining unit of 13 workers, a membership level of 77%. The petition supplied by the Union contained 14 names and signatures of which 13 were in the proposed bargaining unit 100% of the proposed bargaining unit. Of the 13 signatories 3 were non-Union members i.e. 23% of the proposed bargaining unit. The two e-mails submitted by the Employer as evidence from workers of non-support for recognition of the Union came from workers in the proposed bargaining unit who were both Union members i.e. 15% of the proposed bargaining unit.

27) The Case Manager’s report of the membership check was circulated to the Panel and to the parties for their comments on 29 January 2020. The Panel was satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

11. Parties’ comments on the membership check report

28) In response to the report of the check, by letter dated 31 January 2020 to the CAC, the Employer stated that with regard to paragraph 36(a) of the Schedule, it accepted that the number of Union members within the proposed bargaining unit constituted at least 10%.

29) The Employer also stated that it would also be willing to accept recognition if this was what the majority of the Managers would like. The Employer referred to a recent letter it had written to the Union expressing its willingness to engage with Acas to assist with arranging a ballot. The Employer’s main concern was that a fair process was completed. Feedback to date from some Managers had raised concerns about the request recognition process and whether recognition was really what was wanted from most of the Managers. The Employer stated that it would like to ensure that Managers had not felt any pressure in joining or signing the Union’s petition, as there had been face-to-face meetings to discuss the matter. In its view a secret ballot would allow the workers to have a fair and unpressurised opportunity to have their say before a final decision was made. The ballot could be held by Acas or the CAC.

30) By telephone to the Case Manager on 3 February 2020, the Union confirmed that it had had no comments for the Panel in respect of the membership and support check and awaited the Panel’s decision on the admissibility of the application.

31) The Employer’s comments and the Union’s position were cross copied between the parties and forwarded to the Panel on 3 February 2020.

12. Considerations

32) In determining 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 parties in reaching its decision.

33) The Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 and that it was made in accordance with paragraph 11(2) of the Schedule. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

34) The Panel noted that the Employer has made the point that two of the workers in the proposed bargaining unit are due to retire later on in the year but nonetheless has based its decision with regard to the admissibility tests by reference to the individuals currently employed in the proposed bargaining unit at the time the Panel is required to reach a decision. Therefore, the Panel accepted that the proposed bargaining unit as established in the Case Manager’s membership and support check contains 13 workers.

13. Paragraph 36(1)(a)

35) In accordance with paragraph 36(1)(a) of the Schedule, the Panel must determine whether 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 established that 77% of the workers in the proposed bargaining unit were members of the Union. As stated above in paragraph 19, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. It is therefore clear to the Panel 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 and that therefore that test is met.

14. Paragraph 36(1)(b)

36) The test in paragraph 36(1)(b) is whether 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. The Employer did not explicitly contest the this assertion made to this effect by the Union in its application but did express concerns throughout that there may be a majority of the Managers that were not in favour of recognition of the Union; that some Managers may have been pressurised to sign the Union’s petition and that its priority was to ensure that its workers were allowed to express their views in a fair manner, in the form of a secret ballot. The Employer reported that feedback from workers raised concerns in this regard and submitted to the CAC the two emails referred to above in which two separate individuals expressed that it was desirable to provide more time for the Employer to address the issues first. However, these emails did not explicitly object to recognition of the Union.

37) In its industrial relations experience the Panel considers that the level of Union membership within the proposed bargaining unit provides a legitimate indicator as to the degree of likely support for recognition of the Union for collective bargaining. As the level of Union membership within the proposed bargaining unit stands at 77%, as verified by the Case Managers membership and support check, and as the Employer did not provide cogent evidence to the contrary, the Panel is satisfied that, on balance, a majority of the workers in the bargaining unit would be likely to support recognition of the Union and the test set out in paragraph 36(1)(b) is therefore met.

15. Decision

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

Panel

Mr Charles Wynn-Evans, Chairman of the Panel

Miss Mary Canavan

Mr David Coats

5 February 2020