Decision

Validity Decision

Updated 29 April 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1247(2021)

6 April 2022

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

AGREEMENT OF THE BARGAINING UNIT

The Parties:

Unite the Union

and

John Jempson & Sons Ltd

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 21 December 2021 that it should be recognised for collective bargaining by John Jempson & Sons Ltd (the Employer) for a bargaining unit comprising the “LGV Drivers based out of Slade Yard and BG Robertsbridge”. The location of the bargaining unit was given as John Jempson & Sons Ltd, Slade Yard, 67 Winchelsea Road, Rye, East Sussex, TN31 7DG. The CAC gave both parties notice of receipt of the application on 22 December 2021. The Employer submitted a response to the CAC dated 6 January 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. Tariq Sadiq, Panel Chair, and, as Members, Ms. Stephanie Marston, Mr. Len Aspell was replaced by Mr. Richard Fulham. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) By a decision dated 1 February 2022 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. On 15 March 2022 the parties notified the CAC that they had reached an agreement as to the appropriate bargaining unit and this was ‘LGV drivers that drive on the British Gypsum contract.’ This differed from the original bargaining unit proposed by the Union which was ‘all LGV drivers based out of Slade Yard and BG Robertsbridge. The new bargaining unit totaled 60 workers which had increased due to recent recruitment. From the 60 workers 55 were based at the Robertsbridge site, 4 based at Slade Yard in Rye, and the final 1 based at a remote location. The worker based at the remote location had not been mentioned on the original application by the Union and the subsequent response by the Employer. The membership and support check conducted on 14 January 2022 had shown the Employer listing a total of 58 workers, therefore the new bargaining unit had shown a very small increase in numbers.

2. Issues

4) As the bargaining unit agreed by the parties differed from that proposed by the Union, paragraph 20 of Schedule A1 to the Act (the Schedule) requires the Panel to decide whether the Union’s application is valid within the terms of paragraphs 43 to 50 the Schedule. The matters that the Panel must consider are: -

• is there an existing recognition agreement covering any of the workers within the new bargaining unit? (paragraph 44)

• is there 10% union membership within the new bargaining unit? (paragraph 45(a))

• are the majority of the workers in the new bargaining unit likely to favour recognition? (paragraph 45(b))

• is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? (paragraph 46)

• has there been a previous application in respect of the new bargaining unit? (paragraphs 47 to 49)

5) In a letter dated 25 March 2022 the Panel invited the parties to make submissions on these matters for consideration by the Panel.

3. Views of the Union

6) In an email dated 28 March 2022 the Union advised that

• there was no existing recognition agreement covering any of the workers within the new bargaining unit;

• There was significantly more than 10% membership as previously proven;

• Given the membership levels on the balance the majority of employees would agree recognition;

• there was no competing application from another union that covered any worker in the new bargaining unit;

• there was no previous application in respect of the new bargaining unit.

4. Views of the Employer

7) In an email dated 31 March 2022 the Employer advised that:

• (agreeing with the Union) there was no existing recognition agreement covering any of the workers within the new bargaining unit,

• (agreeing with the Union) From the previous communications the Employer believed that there was membership above the 10% level.

• The Employer did not know whether the majority of the workers in the new bargaining unit were likely to favour recognition as it remained extremely difficult to gauge, whilst there was clearly a level of support for union recognition it had not been possible by the Employers internal efforts to accurately ascertain the precise level.

• (agreeing with the Union) there was no competing application from another union that covered any workers in the new bargaining unit;

• (agreeing with the Union) there was no previous application in respect of the new bargaining unit

5. Discussion and conclusions

8) The Panel must decide whether the Union’s application is valid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision the Panel has considered the parties’ submissions and the other evidence before it. The following matters are not disputed:

• there is no existing recognition agreement covering any of the workers within the agreed bargaining unit;

• there is no competing application from another union; and

• there has been no previous application in respect of the agreed bargaining unit.

9) The remaining issues for the Panel to decide are whether the validity criteria contained in paragraphs 45(a) and (b) are met.

6. Paragraph 45(a)

10) Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the union constitute at least 10% of the workers in the agreed bargaining unit.

11) The CAC conducted a membership and support check at the acceptance stage for the bargaining unit originally proposed by the Union. The new bargaining unit was slightly larger than that proposed by the Union. The new bargaining unit totaled 60 workers which had increased due to recent recruitment. From the 60 workers 55 were based at the Robertsbridge site, 4 based at Slade Yard in Rye, and the final 1 based at a remote location. The membership and support check conducted on 14 January 2022 had shown the Employer listing a total of 58 workers, therefore the new bargaining unit had shown a very small increase in numbers. At the acceptance stage the membership stood at 58.62% and the change in numbers was not material in deciding if the 10% threshold had been reached. The Panel finds that this test is satisfied.

7. Paragraph 45(b)

12) Under paragraph 45(b) of the Schedule, an application is invalid unless the Panel decides that a majority of the workers constituting the agreed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

13) As stated in the acceptance decision dated 1 February 2022, the Union had provided a spreadsheet listing 35 union members which concluded that 58.62% of the workers in the proposed bargaining unit were members of the Union. This was a legitimate indicator of likely support for recognition of the Union for collective bargaining purposes. The Employer had not provided any evidence to demonstrate that the majority of the workers were no longer likely to favour recognition of the Union to conduct collective bargaining on their behalf. On the evidence before it, the Panel has decided that, on the balance of probabilities, a majority of the workers in the agreed 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 45(b) of the Schedule.

8. Decision

14) The decision of the Panel is that the application is valid for the purposes of paragraph 20 of the Schedule and the CAC must proceed with the application.

Panel

Mr Tariq Sadiq, Panel Chair

Mr Richard Fulham

Ms Stephanie Marston

6 April 2022