Decision

Acceptance Decision

Updated 18 June 2019

Case Number: TUR1/1107(2019)

14 June 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

Oceaneering International Service Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 1 May 2019 that it should be recognised for collective bargaining by Oceaneering International Service Limited (the Employer) for a bargaining unit comprising “Aberdeen based Non Destructive Testing Technicians (NDT)”. The location of the bargaining unit stated in the application was “Aberdeen”. The CAC gave both parties notice of receipt of the application on 7 May 2019. The Employer submitted a response dated 13 May 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 Chairman of the CAC established a Panel to deal with the case. The Panel consisted of Professor Kenny Miller as chair of the Panel and, as Members Mr Alistair Paton and Ms Virginia Branney. The Case Manager appointed to support the Panel was Miss Sharmin Khan.

3) The CAC Panel extended the acceptance period in this case. The initial period expired on 20 May 2019. The acceptance period was extended on three occasions in order for the CAC to: obtain more information from the parties; carry out a membership and support check and for the parties to comment on that check, to provide time for the Panel to consider all the evidence and for the Panel to finalise its written decision. The final extension ended the acceptance period on 14 June 2019.

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 of the Schedule; and therefore should be accepted.

3. Summary of the Union’s application

5) The Union stated that it had a certificate of independence and confirmed that it had not made a previous application under the Schedule for statutory recognition for workers in the bargaining unit and/or a similar unit.

6) Enclosed with the Union’s application was a copy of: the Union’s formal request letter to the Employer dated 18 February 2019; the Employer’s initial reply letter to the Union dated 4 March 2019, not accepting the Union’s request but confirming a willingness to negotiate and proposing a meeting to discuss matters and the Employer’s later substantive response letter to the Union dated 11 April, confirming that following the meeting with the Union on 26 March 2019, the Union’s request was not accepted as well as its reasons for its position.

7) The Union stated that the date on which its application to the CAC and supporting documents were copied to the Employer was 1 May 2019.

8) The Union stated that the Employer employed 350 workers and that there were 62 workers in the proposed bargaining unit of which 46 were members of the Union. When asked to provide evidence that a majority of the workers in the bargaining unit were likely to support recognition for collective bargaining, the Union provided a copy of the results of the Union’s consultative ballot conducted after receipt of the Employer’s formal rejection. The Union stated that the ballot closed on 18 April 2019 and that of 60 ballots sent out, 52 were returned and all of which were yes votes for recognition.

9) The Union stated its proposed bargaining unit had not been agreed with the Employer and the reason for selecting these workers was because they were all Aberdeen based NDT workforce.

10) Finally, the Union stated that it was not aware of any existing recognition agreement that covered any worker in the proposed bargaining unit.

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

11) By completion of the CAC’s “Employer’s Response Questionnaire form” dated 13 May 2019 and its letter to the CAC dated 21 May 2019, the Employer provided the following information for the Panel.

12) The Employer had received the Union’s formal letter of request on 18 February 2019 to which it had responded by letter dated 4 March 2019 proposing a meeting and by letter dated 11 April 2019 following a meeting held. A copy of both letters were provided for the Panel. The Employer had received a copy of the Union’s application by e-mail on 1 May 2019.

13) The Employer had not agreed with the Union’s proposed bargaining unit before the Union’s application to the CAC neither did it agree with it now. The Employer provided detailed reasons for disagreeing with the Union which are not provided here as the parties’ views on the appropriateness of the bargaining unit is only relevant at the next stage of the statutory procedure should an application be accepted by the CAC.

14) The Employer did not agree with the Union’s stated figure for the number of workers in the proposed bargaining unit and declared the current number of workers in the proposed bargaining unit to be 57.

15) The Employer stated that it had no direct knowledge as to the Union’s level of membership within the proposed bargaining unit but in relation to the question of whether the majority of the workers in the proposed bargaining unit were likely to favour recognition for collective bargaining, the Employer questioned the Union’s ballot evidence (see paragraph 8 above) and proposed that an up to date survey of all the workers in the proposed bargaining unit was carried out for the reasons set out in the following paragraph.

16) As it appeared that only Union members were surveyed by the Union, for reasons of good industrial relations, the views of the workers as a whole should be obtained. The Union’s survey appeared to be issued to 60 of its members but the Union had stated in its application to the CAC that there were only 46 Union members in the proposed bargaining unit, furthermore it was accepted by the Union that the number of Union members had reduced since the survey was conducted, due to a subsequent TUPE transfer. The Employer also believed that the results of the Union’s survey could be linked to a recently submitted grievance relating to a collective consultation with employee representatives about proposed changes to terms and conditions of employment and which the Employer believed was being materially addressed through the consultation process itself.

17) Finally the Employer stated that it was not aware of any previous application covering any worker in the proposed bargaining unit or a similar unit or that there was any existing agreement for recognition in force covering workers in the proposed bargaining unit.

5. Summary of the Union’s comments on the Employer’s response

18) On 21 May 2019 the Union submitted its comments on the Employer’s response to the application. The Union stated that it already had a recognition agreement with part of the Employer’s UK workforce at the Port of Rosyth. This application was for another part if its workforce namely the NDT employees based in Aberdeen. The recognition request for this application was brought about by the Employer’s proposals to change this group’s terms and conditions specifically sick pay. The Employer’s proposal and consultation process related to 80 of its workers which by the TUPE transfer was reduced to 62. This workforce requested Unite the Union to help in this process and represent them hence the reason why the Union had requested a voluntary recognition agreement with the Employer.

6. Membership and Support Check

19) 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.

20) 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 as outlined in the Union’s application to the CAC, and that the Union would supply to the Case Manager a list of its paid up members, providing their names, addresses and dates of birth (where possible). It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in the CAC’s letter to the parties dated 25 May 2019.

21) The Case Manager’s report of the results of the membership and support check dated 31 May 2019 was issued to the Panel and to the parties for comments on the same date. The Panel was satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

22) The membership check established that there were 55 workers in the proposed bargaining unit of which 42 were members of the Union; a membership level of 76.36%.

23) Both parties confirmed to the CAC Case Manager that they did not wish to submit any comments in respect of the report to the Panel.

7. Considerations

24) 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.

25) The Panel is satisfied that the Union made a valid request to the Employer within the terms specified in paragraphs 5 to 9 of the Schedule and that its application was made in accordance with paragraph 12. The Panel is also satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 of the Schedule.

26) The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

8. Paragraph 36(1)(a)

27) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether or not members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit. The check of Union membership in the proposed bargaining unit as conducted by the Case Manager as reported on 31 May 2019 established that Union membership stood at 76.36%. The Panel does not consider that it has any reason not to accept the information reflected in the membership check and is therefore satisfied that this test is met.

9. Paragraph 36(1)(b)

28) 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.

29) At this stage the Panel has a duty to determine whether there is currently a majority of workers within the proposed bargaining unit who are likely to support recognition. The test is not of actual support but likely support. There has been no evidence provided in this case that there were workers within the bargaining unit who were not in support of recognition of the Union. In the Panel’s experience being a member of a union can in itself be indicative of support for that union to be recognised by its employer for the purposes of collective bargaining on the worker’s behalf. The Panel is required to reach a decision on the basis of the evidence provided at the time it is required and in so doing has satisfied the Employer’s request for an analysis of all the workers in the proposed bargaining unit rather than relying on the Union’s slightly dated survey alone and has drawn the following conclusion.

30) The Panel has reviewed carefully the evidence submitted by both parties and the figures produced by the Case Manager in the membership check report of 31 May 2019. The level of membership in the proposed bargaining unit at the time of the membership check was over 75%. This level of membership strongly suggests that a majority of the proposed bargaining unit is likely to be in favour of recognition of the Union for the purposes of collective bargaining. The Panel is therefore satisfied that the requirement under paragraph 36(1)(b) of the schedule is met.

10. Decision

31) The Panel is satisfied that the application is valid within the terms of paragraphs 5 to 9, is made in accordance with paragraph 12 and is admissible within the terms of paragraphs 33 to 42 of the Schedule. The Panel also considers that both requirements of paragraph 36 are met. The application is therefore accepted by the CAC.

Panel

Professor Kenny Miller - Panel Chair

Mr Alistair Paton

Ms Virginia Branney

14 June 2019