Decision

Recognition Decision

Updated 26 October 2020

Case Number: TUR1/1173(2020)

24 August 2020

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

Hayakawa International (UK) Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 7 May 2020 that it should be recognised for collective bargaining by Hayakawa International (UK) Limited (the Employer) for a bargaining unit comprising “all workers in the engineering, production and warehousing departments not inclusive of supervisory or management level”. The location of the bargaining unit was given as 5, Davy Way, Llay Industrial Estate, Llay, Wrexham, Clwyd, Wales LL12 0PG. The CAC gave both parties notice of receipt of the application on 11 May 2020. The Employer submitted a response to the CAC dated 14 May 2020 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 Professor Gillian Morris, Panel Chair, and, as Members, Mrs Susan Jordan and Ms Fiona Wilson. The Case Manager appointed to support the Panel was Nigel Cookson.

3) By a decision dated 28 May 2020 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. No agreement was reached on the appropriate bargaining unit. In a decision dated 10 August 2020 the Panel decided that the appropriate bargaining unit was that proposed by the Union.

4) The next stage of the procedure required the Panel to decide whether a majority of the workers in the bargaining unit are members of the Union. Paragraph 22 of Schedule A1 to the Act (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) states that “membership evidence” 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.

5) The Panel decided that in this case it would be appropriate to decide whether it was satisfied that a majority of the workers constituting the bargaining unit were members of the Union as a preliminary issue before giving the parties the opportunity to make submissions on the application of the qualifying conditions.

2. The Membership Check

6) To assist in deciding whether it was satisfied that a majority of the workers constituting the bargaining unit were members of the Union the Panel proposed a second independent check of the level of union membership in the bargaining unit. ^{[footnote 1]} 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 the workers within the bargaining unit, and that the Union would supply to the Case Manager a list of the names and dates of birth of its paid up members within that unit The information from the Union was received by the CAC on 11 August 2020 and from the Employer on 14 August 2020. It was explicitly agreed with the parties that, to preserve confidentiality, the respective lists would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to the parties dated 11 August 2020. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

7) The result of the check showed that there were 15 workers in the bargaining unit of whom 11 were members of the Union, a membership level of 73.33%. The Case Manager’s report on the membership check was sent to the Panel and the parties on 14 August 2020 with a letter inviting the Employer to make any submissions it wished to make on the qualifying conditions by noon on 20 August 2020.

8) In an email to the Case Manager dated 20 August 2020 the Employer said that the only point that the Employer wished to make was for clarification purposes in relation to working time. The Panel was asked to note that only production operators worked four days a week; the remainder of the workers within the bargaining unit worked five days a week in line with the Employer’s staff outside the bargaining unit. ^{[footnote 2]} The Panel is satisfied that this clarification does not constitute a submission by the Employer that relates to the qualifying conditions.

3. Considerations

9) The Act requires the Panel to consider whether it is satisfied that the majority of the workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that the majority of the workers constituting the bargaining unit are members of the Union, it must then decide if any of the three conditions in paragraph 22(4) is fulfilled. If the Panel considers that any of them is fulfilled it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

10) The membership check issued by the Case Manager on 14 August 2020, described in paragraphs 6 and 7 above, showed that 11 (73.33%) of the 15 workers in the bargaining unit were members of the Union. The Employer has not indicated that any of the workers have left the bargaining unit, or have joined, since the membership check was conducted. In the absence of evidence to the contrary the Panel is satisfied that the majority of workers in the bargaining unit are members of the Union.

11) The Panel has considered carefully whether any of the qualifying conditions set out in paragraph 22(4) of the Schedule is fulfilled.

12) 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 not received any evidence that a ballot should be held in the interests of good industrial relations and is not satisfied that this condition is fulfilled.

13) 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 unions to conduct collective bargaining on their behalf. The Panel has no such evidence and the Panel has therefore concluded that this condition does not apply.

14) 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 unions to conduct collective bargaining on their behalf. No such evidence has been produced, and the Panel has therefore concluded that this condition does not apply.

4. Declaration of recognition

15) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that the 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 fulfilled. 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 workers in the engineering, production and warehousing departments not inclusive of supervisory or management level”.

Panel

Professor Gillian Morris, Panel Chair

Mrs Susan Jordan

Ms Fiona Wilson

24 August 2020.

1. The report of an initial check conducted by the Case Manager to assist the Panel to determine whether the application should be accepted was circulated to the Panel and the parties on 19 May 2020. ↩

2. The material part of the information contained in paragraph 9 of the decision of 10 August 2020 reads as follows: The Employer supplied with its initial submissions two anonymised Statements of Terms and Conditions for a production operator, dated 2005 and 2019 respectively, and for the office manager, dated 2005 and 2017. The Panel noted that the hours of work for a production operator were 7.15-5.15 Monday-Thursday, four days a week, with a ten-minute paid break in the morning and afternoon and 30 minutes unpaid lunch break. The Panel asked the Employer to confirm that this was a standard pattern of hours for workers in the Union’s proposed bargaining unit or, alternatively, to indicate what the hours of work were for each individual group within it. In response the Employer stated that the pattern of work for employees other than production operators varied as per business requirements. The Employer said that Friday work was generally limited to office staff, all of whom received a 30-minute lunch break on all working days, and that the premises closed at 2pm on Fridays. The Panel is satisfied that this is an accurate summary of the information provided by the Employer at the relevant time for the purposes of that decision but notes the Employer’s subsequent clarification in its email dated 20 August 2020 ↩