Decision

Acceptance Decision

Published 20 August 2020

Case Number: TUR1/1198(2020)

16 September 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

Knapp UK Ltd

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 20 August 2020 that it should be recognised for collective bargaining by Knapp UK Ltd (the Employer) for a bargaining unit comprising “all Knapp UK salaried employees up to site manager level, based at Marks & Spencer Prologis Park, Newhall Way, Bradford”. The CAC gave both parties notice of receipt of the application on 20 August 2020. The Employer submitted a response to the CAC dated 27 August 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 of Professor Kenny Miller, Panel Chair, and, as Members, Mr. Tom Keeney and Ms. Janice Beards. The Case Manager appointed to support the Panel was Nigel Cookson.

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) Asked to give the date of its formal request for recognition and a summary of the Employer’s response, the Union referred to letters enclosed with its application. These were the Union’s formal request to the Employer which was made on 17 July 2020 and the Employer’s reply on 24 July 2020 in which it refused the request.

5) According to the Union, there was a total of 255 workers employed by the Employer nationally with 30 employed at the Bradford site. There were 29 workers within the proposed bargaining unit, 23 of whom were members of the Union. The Union did not know whether the Employer agreed with its estimate of the number of workers in the proposed bargaining unit. 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 said that it had a petition conducted on 12 August 2020 in which 22 workers had signed to say that they supported the Union having recognition and collective bargaining rights.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that that was where it had its membership within the business. The Union confirmed that the bargaining unit had not been agreed with the Employer.

7) Asked whether, following receipt of the request for recognition, the Employer proposed that Acas be requested to assist the Union answered “No”. The Union stated that it copied the application form and supporting documents to the Employer on 20 August 2020.

8) Finally, the Union said there had not been a previous application in respect of this or a similar bargaining unit and there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

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

9) The Employer stated that it had received the Union’s formal request for recognition on 17 July 2020 and that it responded in writing on 24 July 2020.

10) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated this was on 20 August 2020. The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form and confirmed that this was still the case explaining that it would not be beneficial to site-based staff given the Open Book Accounting model in which the Employer operated with M&S. Therefore, all costs would need to be agreed by the customer. If it did not agree then a worst-case scenario was that it would not renew the support contract with the Employer and the on-site team would be made redundant.

11) The Employer stated that it employed 30 workers in the contracted site-based team at M&S Bradford. The Employer agreed with the Union’s figure as to the number of workers in the bargaining unit. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer stated that it did not know and had no visibility of the level of union membership and that further evidence was therefore required. The Employer repeated this answer when asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition.

12) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the agreed bargaining unit. When asked whether, following receipt of the Union’s request, the Employer had proposed that Acas be requested to assist, the Employer answered “No”.

13) Finally, 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 the Employer answered “N/A”.

5. The membership and support check

14) 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. 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 4 September 2020 from the Case Manager to both parties. The information requested from the Union was received by the CAC on 3 September 2020 and from the Employer on 4 September 2020.

15) The list supplied by the Employer contained the names of 28 workers and the list of members supplied by the Union contained 23 names.

16) The Union also provided a two page petition bearing the names and signatures of 22 individuals which were undated. Each petition sheet was headed:

Workers United @ Knapp UK

We, the undersigned workers at Knapp UK, Marks and Spencer, Prologis Park, Newhall Way, Bradford, express our desire to have Unite the Union recognised for collective bargaining and representation purposes.

We were not placed under any duress of any kind to sign this petition and have taken part of our own free will.

Please note that you do not need to be a union member in order to sign this petition.

There then followed a table with columns headed Name, Job Title/Role, and Signature. At the foot of each page it stated:

• All the above information will be kept confidential to Unite and will not be shared with management. It will only be shared with a third party if necessary, for example ACAS as part of the recognition application process.

17) According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 23, a membership level of 82.14%. The check of the petition showed that it had been signed by 22 workers in the proposed bargaining unit, a figure which represents 78.57% of the proposed bargaining unit. Twenty-one of the 22 signatories were members of the Union, representing 75% of the proposed bargaining unit and one signature was that of a non-member, representing 3.57% of the bargaining unit. A report of the result of the membership check was circulated to the Panel and the parties on 4 September 2020 and the parties’ comments invited. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

6. Parties’ comments on the membership check

18) The parties both elected not to comment on the findings in the Case Manager’s report.

7. Considerations

19) 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.

20) 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 in that before the end of the first period of 10 working-days following the Employer’s receipt of the request for recognition, the Employer informed the Union that it did not accept the request without indicating a willingness to negotiate. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

8. Paragraph 36(1)(a)

21) 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. In this case the check of Union membership conducted by the Case Manager on 4 September 2020 established a membership density of 82.14%. Although given the opportunity to challenge this finding, the Employer chose not to do so. The Panel is accordingly satisfied that members of the Union constitute at least 10% of the workers in the bargaining unit.

9. Paragraph 36(1)(b)

22) The test in paragraph 36(1)(b) is whether 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. For the purposes of this test the Union relied on a petition in support of recognition. The Case Manager’s comparison between the petition and the Employer’s list of workers established that it had been signed by 78.57% of the workers in the proposed bargaining unit. The Panel is satisfied that the proposition on the petition is clear and unambiguous and so it would have been clear to the workers in the proposed bargaining as to what they were being asked to support. The Employer, again given the opportunity of challenging the findings in the Case Manager’s report, elected not to do so.

23) In view of the above and in the absence of any evidence to the contrary, the Panel is of the view that the proportion of workers in the proposed bargaining unit that have indicated their support for the Union amply demonstrates that the majority of workers in the bargaining would indeed be likely to favour recognition of the Union for collective bargaining.

24) For this reason, and in the absence of any evidence to the contrary, the Panel is satisfied that the test set out in paragraph 36(1)(b) is therefore met.

10. Decision

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

Panel

Professor Kenny Miller, Panel Chair

Mr. Tom Keeney

Ms. Janice Beards

16 September 2020