Decision

Acceptance Decision

Updated 27 October 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1340(2023)

24 July 2023

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

Spirax Sarco Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 20 June 2023 that it should be recognised for collective bargaining by Spirax Sarco Limited (the Employer) for a bargaining unit comprising of “The Bargaining Unit would include all Machine Shop Operators employed by Spirax Sarco Limited within The Machine Shop South (Buildings A, B&C) including CNC Setter/ Operators; Press Shop; Weld Cell; Finishing and Lapping department’s”. The location of the proposed bargaining unit was Spirax Sarco Limited, The Machine Shop South (Buildings A, B, &C), Runnings Road South, Kingditch Trade Park, Runnings Rd, Swindon Village, Cheltenham GL51 9NQ. The CAC gave both parties notice of receipt of the application on 20 June 2023. The Employer submitted a response to the CAC dated 27 June 2023 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 Ms Laura Prince KC, Panel Chair, and, as Members, Mr Sean McIlveen and Ms Claire Sullivan. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 4 July 2023. The acceptance period was then extended to 25 July 2023 to allow time to conduct a membership check and for the parties to comment on the results before the Panel arrived 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 stated that it made its formal request for recognition on 6 April 2023 seeking discussions around voluntary recognition. In an email received by the Union on 24 April 2023, the Employer rejected its request for voluntary recognition but agreed to meet for further discussions. The Union responded on 25 April 2023 agreeing to meet the Employer and both parties met on 17 May 2023. The Employer then wrote to the Union on 23 May 2023 and whilst inviting further discussions, rejected the request for voluntary recognition.

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 answered, “No”. 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 approximately 600 and that approximately 150 of these workers were in the proposed bargaining unit, of whom 77 were Union members. Asked whether the Employer agreed on the number of workers in the proposed bargaining unit the Union answered “No”. When called upon to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated, “The union have a petition signed by 65% of the employees in the proposed bargaining unit, further evidential information can be provided to the CAC to support this on a confidential basis as part of a membership and support check”.

8) The Union stated it had selected the proposed bargaining unit because this unit incorporated shopfloor workers within three buildings which are collectively known as the “Machine shop”. They were under a distinct management structure separate from other areas of the business.

9) When asked whether the bargaining unit had been agreed with the Employer the Union answered “No”.

10) Finally, the Union stated that there was no existing recognition agreement which covered any of the workers in the bargaining unit, it confirmed that it held a current certificate of independence and it confirmed that it had copied the application and supporting documents to the Employer on 9 June 2023.

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 received the Union’s written request for recognition on 6 April 2023 and it had responded on 24 April 2023. The Employer stated its initial response was that it did not accept the proposal for voluntary recognition and offered a meeting to the Union to discuss further. Following a meeting held 17 May 2023 another letter was sent by the Employer, indicating that the proposal for voluntary recognition had not been accepted.

12) The Employer confirmed that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union. It said it did not agree with the proposed bargaining unit. The Employer then set out its objections to the proposed bargaining unit arguing that industrial relations would not be improved if union recognition applied only to the small sections as identified by the Union.

13) When asked if, following receipt of the Union’s request, it had proposed that Acas should be requested to assist, the Employer answered “No”.

14) The Employer stated that it employed a total of 2784 employees at SXS Group UK and 558 total employees at UK Supply Manufacturing Business. Asked whether it agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application the Employer answered, “No”.

15) When asked to state the number of workers in the Union’s proposed bargaining unit and the reason for any difference, the Employer stated “Based on the descriptors provided by Unite our best calculation is 168 employees. It is genuinely difficult to determine this answer accurately as we would not describe or divide our business as Unite has done”.

16) The Employer said there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

17) The Employer, when asked if it disagreed with the Union’s estimate of membership in the proposed bargaining unit, stated “We do not have access to data to validate the 77 identified members and would want to understand if they fall within the bargaining unit as defined by Unite. We would ask that the CAC confirm that the membership figures definitely relate to the areas of the business that have been included by Unite in their proposed bargaining unit”.

18) When invited 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 stated “We do not believe that majority of workers are likely to support recognition. We have an employee committee that stands for employees across the whole UK Supply business called ‘The Voice.’ This is recognised and valued by our employees. Feedback from our employees directly and via ‘The Voice’ is that employees do not want the union to be recognised. We are concerned that a petition has been submitted by Unite, as we received feedback which potentially indicates that individuals were pressured into signing this document by longer serving employees who are union members, without understanding what the implications were. We are anxious to ensure that the desire for recognition described by Unite is fairly tested in a ballot, if this application is allowed to proceed”.

19) Finally, the Employer stated it was not aware of any previous application under the Schedule for statutory recognition by the Union in respect of this or a similar bargaining unit. Asked whether it had received any other applications under the Schedule for recognition in respect of any of the workers in the proposed bargaining unit the Employer answered “N/A”.

5. The check of membership and support

20) 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 are 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 independent checks of the level of union membership in the proposed bargaining unit and the number of workers in that unit who had signed the Union’s petition in support of recognition. It was agreed with the parties that the Employer would supply to the Case Manager a list of the full 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 the full names and dates of birth of the paid-up union members within that unit and a copy of the petition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and the petition would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to both parties dated 3 July 2023

21) The information requested from the Employer and Union was received on 6 July 2023. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

22) The list supplied by the Employer showed that there were 139 workers in the proposed bargaining unit. The list of members supplied by the Union contained 84 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 74, a membership level of 53.24%.

23) The Union also provided a petition in paper and electronic form. The paper version of the petition comprised 7 sheets of A4. Each page of the petition was headed:

“PETITION IN SUPPORT OF UNION RECOGNITION

[SPIRAX SARCO]

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 or 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 four columns headed: “PRINT NAME”, “JOB TITLE”, “SIGNATURE” and “DATE”. The signatures on the paper petition ranged between 28 March 2023 and 24 May 2023.

24) The Case Manager’s report showed that the paper and e-petition combined was signed by 143 workers in the proposed bargaining unit, a figure which represented 68.35% of the bargaining unit. Of those 143 signatories 68 were members of the Union (48.92% of the proposed bargaining unit) and 27 were non-members (19.42% of the proposed bargaining unit).

25) A report of the result of the membership and support check was circulated to the Panel and the parties on 7 July 2023 and the parties were invited to comment on the results by the close of business on 13 July 2023.

6. Parties’ comments on the membership check

26) The Union in its comments on the Case Manager’s report dated 13 July 2023, stated that it believed that the findings of the report clearly satisfied both tests for an application to be set out as admissible. It went on to state that it had been informed by members that there have been some recent changes to staffing within the bargaining unit hence why some of the members included might not have been on the Employer’s list. However, despite this the Union had clearly demonstrated that it had the required membership within the bargaining group for a claim for statutory recognition. The Union also confirmed it had also demonstrated wide support for recognition within the bargaining unit and beyond with 68.35% of the bargaining unit having signed the Union’s petition. Whilst the Union had attempted to reach as many members as possible with the petition, practicably it was unable to engage with all members during the period in which the petition was live. The on-line petition was designed as an additional measure to make the petition exercise as accessible as possible to all workers in the proposed bargaining unit. The petition was conducted mostly between March and May 2023 as this was immediately before and during the period that the Union first wrote to the Employer to request discussions around recognition, and at the time those discussions took place. The Union stated no issues were raised directly to them by either the Employer or individuals about employees feeling pressured to sign this petition at the time, even though the petition was conducted openly within the workplace by members. Any suggestion or allegations as to pressurising or coercion to sign the petition were roundly rejected and the Union would invite evidence of such from the Employer.

27) The Employer in its comments dated 13 July 2023 stated that the CAC had only sought its comments on paragraph 36 of the Schedule, so that any comments were strictly only relevant to the Union’s membership within its proposed bargaining unit and the issue of whether a majority of the workers within the relevant bargaining unit would be likely to favour recognition of the Union for collective bargaining. One point that the Employer noted with interest was that the Union’s analysis of its own membership within the bargaining unit that it had selected appeared to be quite wide of the mark. The Employer would have expected the Union’s knowledge of its own membership within the company to be more accurate than was revealed by the report. It did appear to be clear that the Union had membership of at least 10% in its proposed bargaining unit. The CAC had carried out its analysis of the Union’s membership within the bargaining unit and the Employer had no way of challenging, at this stage, the accuracy of the Union’s membership details and therefore the numbers set out in the report. On the face of it, therefore, it would appear that a majority of those in the bargaining unit selected by the Union were in membership. The Employer added that this was without any confidence in the solidity of the Union’s membership in the bargaining unit or the actual wishes of the Union’s members as far as recognition was concerned.

7. Considerations

28) 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 carefully considered the submissions of both parties and all the evidence in reaching its decision.

29) 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 12. 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 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)

30) 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 Union’s proposed bargaining unit. The membership check conducted by the Case Manager described in paragraph 24 above showed that 53.24% of the workers in the proposed bargaining unit were members of the Union. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. The Panel has therefore decided that 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.

9. 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) The Panel considers that members of the Union would be likely to favour recognition of the Union for collective bargaining (53.24%), as would non-union members who signed the petition (19.42%); giving a total of 72.66%. The Panel can only act on the evidence presented and on the basis of the evidence in this case, 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, as required by paragraph 36(1)(b) of the Schedule.

33) 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.

10. Decision

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

Panel

Ms Laura Prince KC, Panel Chair

Mr Sean McIlveen

Ms Claire Sullivan

24 July 2023