Decision

Acceptance Decision

Updated 19 August 2019

Case Number: TUR1/1121(2019)

16 August 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

King Lifting Ltd

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 12 June 2019, and received by the CAC on 18 June 2019, that it should be recognised for collective bargaining purposes by King Lifting Ltd (the Employer) for a bargaining unit comprising “All workers employed by King Lifting Limited in connection with crane operations and transport including the following job descriptions (below) but excluding managers, clerical and administration employees: Crane operatives and drivers; Lift supervisors; Slinger/Signallers and Riggers; Lorry drivers and fleet support workers”. The locations of the bargaining unit were described as follows: 1 Rockingham Park, Smoke Lane, Avonmouth, Bristol BS11 0FJ; King Rd Ave Bristol BS11 9HF; 6 Oceanic Way, Marchwood, Southampton SO40 4BD; Tir-y-berth Industrial Estate, Hengoed CF82 8AU; 2 Darby Cl, Swindon SN2 2PN; Albion Parade, Canal Basin, Gravesend, Kent DA12 2RN; Stockley Farm Road, West Drayton UB7 9BW; and Westlands, Lysander Road, Yeovil BA20 2YB. The CAC gave both parties notice of receipt of the application on 18 June 2019. The Employer submitted a response to the CAC dated 24 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 Professor Gillian Morris, Panel Chair, and, as Members, Mr Michael Shepherd and Ms Fiona Wilson. Mr Shepherd was subsequently replaced by Mr Rob Lummis. The Case Manager appointed to support the Panel was Nigel Cookson.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 2 July 2019. On 28 June 2019 the Union wrote to the Case Manager requesting a stay in proceedings until 2 August 2019 to enable the parties to explore a voluntary agreement. The Panel Chair agreed to this request and the parties were notified accordingly. On 31 July 2019 the Union informed the CAC that the Employer had declined to enter into a voluntary agreement and asked the CAC to proceed with the case. On 1 August 2019 the Case Manager wrote to the parties to confirm that the Panel had directed that the stay in proceedings should be lifted and the statutory process recommence. The acceptance period was then extended to 16 August 2019 in order to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider said comments before arriving at a decision.

2. Issues

4) 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. Summary of the Union’s application

5) In its application to the CAC the Union said that its request for recognition had been made to the Employer on 28 May 2019 and that the Union had received a response on 11 June 2019. A copy of the Union’s request was attached to its application to the CAC. In addition the Union attached a further letter to the Employer dated 10 June 2019 in which the Union said that it had not heard back from the Employer in response to its request and that it had set 12 June 2019 as the date when it would write to the CAC and instigate the formal process. The Union also attached a copy of a letter from the Employer dated 12 June 2019 in which the Employer asked the Union to share with the Employer the number of its employees who were members of the Union. The Employer said that when it had this information it would be in a position to make an informed decision.

6) When asked whether the Union had made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Union said that it had not. The Union stated that, following receipt of the request for recognition, the Employer had not proposed that Acas should be requested to assist the parties.

7) The Union stated that the total number of workers employed by the Employer was in the region of 180. The Union said that there were 120 workers in the proposed bargaining unit, of whom 82 were members of the Union. Asked whether the Employer agreed with the number of workers in the proposed bargaining unit the Union had given, the Union said that there had been no dialogue with the Employer despite frequent requests for a meeting.

8) When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union said that it had the support of the majority as demonstrated by its membership of almost 70% and further support from members and non-members via workplace petitions.

9) The Union stated that the reason for selecting the proposed bargaining unit was that it covered all roles within the specific areas articulated in paragraph 1 above which were distinct from those being excluded. The Union said that any collective bargaining arrangement for this bargaining unit would therefore be compatible with effective management. The Union confirmed that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement of which it was aware which covered any workers in the bargaining unit the Union said that there was none.

10) The Union confirmed that it was in possession of a certificate of independence, a copy of which was attached to the application. The Union stated that it had copied its application and supporting documents to the Employer on 17 June 2019.

4. Summary of the Employer’s response to the Union’s application

11) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 29 May 2019. The Employer said that it had made a further request for membership numbers in response to this request, having already requested this information in previous emails, copies of which were attached to the response.

12) The Employer confirmed that it had received a copy of the application form from the Union on 18 June 2019. The Employer said that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union but that it agreed the descriptions but not the numbers of workers in the proposed bargaining unit. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

13) The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as defined in the Union’s application and said that there were 193 workers in the proposed bargaining unit. The Employer said that it did not know where the Union had got its figure of 120 from. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

14) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer said that it had asked the Union for its membership numbers on five separate occasions but had received no evidence of who those members were despite repeated requests. When asked to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition, the Employer said that it was not aware of significant membership numbers or a recent increase. The Employer said that there had been no local manager representation or workplace petitions and that the Employer was not aware of any groundswell of support for the Union.

15) The Employer answered “N/A” 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 and when asked if it had received any other applications in respect of workers in the proposed bargaining unit.

5. The membership and support check

16) 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 of a petition compiled by the Union. 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 and dates of birth and a copy of a petition in support of recognition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and petition would not be copied to the other party and that agreement was confirmed in a letter dated 1 August 2019 from the Case Manager to both parties.

17) The information from both the Union and the Employer was received by the CAC on 2 August 2019. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

18) The Employer provided a spreadsheet with 187 names, together with the job title and date of birth of each individual. The job titles given were as follows: contract supervisor, Crane Operator, Crane Operator/Slinger Signaller, Crane Supervisor/Slinger, Crawler Crane Op, Fitter, Foreman Rigger, Head Engineer, Head Fitter, Hiab Driver, Lift Supervisor, Lorry Driver, lorry driver/rigger, Rigger, Rigger/Lorry Driver, Rigger/Lorry Driver/Lorry Loader, Senior Lift Supervisor, service engineer/fitter, Slinger/Signaller, Trainee Crane Op, Trainee Slinger/Rigger, Workshop Co-ordinator and Yardman. The list of members supplied by the Union contained 79 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 63, a membership level of 33.69%.

19) The Union also provided a 33 page petition bearing the names and signatures of 43 individuals with all bar one page bearing a single signature. All of the pages of the petition were on Union headed paper and carried the following proposition:

PETITION IN SUPPORT OF UNION RECOGNITION

KING LIFTING LTD

Unite the Union is asking your employer to recognise it for collective bargaining. We have to show the Central Arbitration Committee that a majority of workers favour our application. If you want your employer to recognise Unite for collective bargaining, please sign the petition.

I support recognition of Unite as entitled to conduct collective bargaining on pay, hours and holidays:

Underneath the proposition was a table with columns headed “PRINT NAME”, “JOB TITLE”, SIGNATURE” and “DATE”. The dates on the petition ranged between 22 March 2019 and 8 April 2019. At the foot of each page comprising the petition was the following:

This petition and your personal details will be kept confidential by Unite the Union and will be shared with the Central Arbitration Committee only, who will use these to confidentially verify the level of support for our collective bargaining application. Your employer will not receive your details or a copy of this petition. The petition will be retained by Unite for the duration of the recognition campaign and any associated issues. Unite the Union’s full up-to-date privacy policy can be found at www.unitethrunion.org/privacypolicy

According to the Case Manager’s report 37 workers in the proposed bargaining unit had signed the Union’s petition, a figure that represents 19.79% of the proposed bargaining unit. Of those 37 signatories, 36 were members of the Union (19.25% of the proposed bargaining unit) and one was a non-member (0.53% of the proposed bargaining unit).

20) A report of the result of the membership and support check was circulated to the Panel and the parties on 5 August 2019 and the parties were invited to comment on the results by 8 August 2019.

6. Summary of the parties’ comments on the membership check

21) In an email to the Case Manager dated 8 August 2019 the Employer said that the Case Manager’s report showed that only 19.7% of workers in the proposed bargaining unit had signed the union petition which would suggest that there was significantly less support for recognition than that required by the CAC for the Union’s application to be admissible.

22) In an email to the Manager dated 8 August 2019 the Union stated that, having looked at the Case Manager’s report, there was a lack of detail from the Employer. The Union said that the Employer had included job roles that were not included in the Union’s proposed bargaining unit, specifically the roles of Foreman Rigger, Head Engineer, Head Fitter, Workshop Coordinator and Yardman. The Union said that these job titles applied to management roles of various levels and with regard to the workshop coordinators, administration. The Union said that the role of Yardman had not been identified by the Union’s mapping and the Union was concerned that these extra job titles had been added in error. The Union said that, due to the additional job roles, it was unable to define the number of workers who were covered by the Employer’s response and would ask for the figures so that it could challenge their inclusion. The Union also asked that the Employer clearly identify which workplaces it had included as the Union would like to be certain that this again reflected the bargaining unit. The Union asked that the Employer be called upon to provide a breakdown of job roles per site so that the Union could check to see if there had been any movement of workers from other areas such as Hinkley Point C. The Union said that it was aware that since the original CAC application workers had been sent to HPC and so this could skew the figures.

7. The Employer’s response to the Union’s comments

23) Having considered the Union’s comments summarized in paragraph 22 above, the Panel Chair directed the Case Manager to ask the Employer to confirm whether any of the workers who were included on the list the Employer had provided for the purposes of the membership and support check worked at sites other than those specified by the Union in its application. The Employer was also asked for its comments on the Union’s claim that a number of job roles on the Employer’s list related to workers who did not fall within the definition of the proposed bargaining unit as set out in the Union’s request for recognition and subsequent application to the CAC. The Panel Chair did not direct the Case Manager to ask the Employer to provide a breakdown of job roles per site as this information lies beyond the scope of the information required for the purposes of a membership and support check.

24) In an email to the Case Manager dated 12 August 2019 the Employer confirmed that all workers included on the list it had provided were based at sites specified by the Union in its application. The Employer said that, by the nature of its business, its workers covered day to day hires at various customer sites but they were based at a depot where they would generally start and finish their working day. The Employer also commented on the job roles which the Union had claimed did not fall within the definition of the proposed bargaining unit as follows:

Foreman Rigger – effectively the same job role and qualification required as a Lift Supervisor with additional skills in plant and machinery movement; Head Engineer and Head Fitter – both are fitting roles but the job title recognised the individual worker’s experience and advanced skills; Workshop Coordinator is a fitting role with added responsibility for allocation of work within fleet support; Yardman role is to provide assistance within fleet support.

The Employer said that none of these job roles were management or administrative; they were employed on the same terms and conditions of employment; and they all fell within the definition of the Union’s proposed bargaining unit.

8. Alternative membership and support check

25) Having considered the parties’ comments outlined in paragraphs 22 and 24 above, the Panel Chair directed the Case Manager to establish the difference that excluding the disputed job roles would make to the figures reported in the initial membership and support check. It was made clear to the parties that this did not imply acceptance by the Panel that these categories should be excluded from the proposed bargaining unit.

26) According to the Case Manager’s alternative check, the number of workers in the proposed bargaining unit, having excluded the disputed job roles, was 166. The number of Union members in the proposed bargaining unit was 62, giving a membership level of 37.35%. The number of workers in the proposed bargaining unit who had signed the Union’s petition was 36, a figure which represented 21.69% of the proposed bargaining unit. Of those 36 signatories all were members of the Union. A report of the alternative check was circulated to the Panel and the parties on 13 August 2019. The parties were informed that was being sent to them for information only and that the Panel was not seeking further comment from them at that time. For the reasons set out in paragraphs 32 and 33 below the Panel subsequently considered that it was content to reach a decision on the basis of the evidence before it.

9. Considerations

27) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 above are satisfied. The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision.

28) The Panel is satisfied that the Union made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that its application was made in accordance with paragraph 11. Furthermore the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 37 to 42 of the Schedule. The remaining issue for the Panel to decide is whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) of the Schedule are met.

10. Paragraph 36(1)(a)

29) Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the union constitute at least 10% of the workers in the proposed bargaining unit.

30) The initial membership check conducted by the Case Manager (described in paragraphs 16-18 above) showed that 33.69% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 17 above the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. The alternative membership check, described in paragraph 26 above, showed that 37.35% of the workers in the proposed bargaining unit were members of the Union. The Panel has therefore decided that, regardless of whether the disputed job roles are included, 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.

11. Paragraph 36(1)(b)

31) Under paragraph 36(1)(b) of the Schedule, an application is not admissible unless the Panel decides that 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.

32) For the reasons set out in paragraph 30 above, the Panel has concluded that the level of union membership in the proposed bargaining unit stands at 33.69% if the disputed job roles are included and 37.35% if they are not. The Panel has not found it necessary to decide whether the disputed job roles should be included or excluded as it does not consider that, even if they are excluded, there is sufficient evidence to enable it to decide, on the balance of probabilities, that a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union. On the basis of the figure most favourable to the Union the level of union membership is 37.35%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union. No such evidence to the contrary was received in this case. However the Panel does not consider that this level of membership alone constitutes sufficient evidence that a majority of workers in the proposed bargaining unit would be likely to favour recognition. The Panel notes that, again taking the figure most favourable to the Union, 21.69% of workers have signed a petition in favour of recognition. However all these workers are union members. If the disputed job roles are included, there is one non-union member signatory to the petition but this is not sufficient to persuade the Panel that there is sufficient support for recognition among workers who are not members of the Union in addition to that evidenced by the level of union membership.

33) The Panel notes the Union’s concern, described in paragraph 22 above, that the Employer may have included in the list provided for the purposes of the membership and support check workers based at workplaces beyond the scope of the Union’s proposed bargaining unit. As described in paragraph 24 above the Employer confirmed that all the workers who were included in that list were based at sites specified by the Union in its application. The Panel notes that the system of membership and support checks employed to determine whether the admissibility tests in paragraph 36 are satisfied relies on the good faith and honesty of both parties in supplying information. The Panel has received no evidence which leads it to suspect that either party has not acted honestly and in good faith in relation to this application and in accordance with the arrangements agreed with the parties.

34) On the basis of the evidence before it the Panel is not satisfied that a majority of 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, as required by paragraph 36(1)(b) of the Schedule.

12. Decision

35) For the reasons given in paragraphs 32-34 above, the Panel’s decision is that the application is not accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mr Rob Lummis

Ms Fiona Wilson

16 August 2019