Decision

Acceptance Decision

Updated 7 September 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1319(2023)

22 June 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

WFL (UK) LIMITED

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 27 April 2023 that it should be recognised for collective bargaining purposes by WFL (UK) Limited (the Employer) in respect of a bargaining unit comprising “all tanker delivery drivers employed by WFL UK Ltd across the UK including all Depot Operations Managers (who also perform delivery duties)”^{[footnote 1]}. The location of the bargaining unit was given as “workers are spread across 45 locations.” The application was received by the CAC on 2 May 2023 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 10 May 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 Chairman established a Panel to deal with the case. The Panel consisted of Mrs Lisa Gettins, Panel Chair, and, as Members, Mr Derek Devereux and Mr Paul Moloney. The Case Manager appointed to support the Panel was Joanne Curtis.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 17 May 2023. The acceptance period was extended to 28 June 2023 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 the 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 stated that it had made a request for recognition to the Employer on 31 March 2023. The Union stated that the Employer responded rejecting the request stating, “the bargaining unit requested is not compatible with effective management of the Company’s business; nor are the characteristics of the workers in the proposed bargaining unit compatible enough to be managed as one cohesive unit.” A copy of the Union’s letter of 31 March 2023 and the Employer’s response dated 18 April 2023 was attached to the application.

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, “an application was submitted to the CAC on 17 March 2023, but that application was subsequently withdrawn on 30 March 2023.” 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 637. The Union stated that there were 270 workers in the proposed bargaining unit, of whom 129 were members of the Union. 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 it had e mailed its members who had indicated a wish to have the terms and conditions of employment determined by collective bargaining. The Union went on to say that due to the Employer’s unwillingness to work with the Union it had not been possible to conduct a survey of the entire bargaining unit.

8) The Union stated that the reason for selecting its proposed bargaining unit was because it believed that collective bargaining for all tanker drivers (and Depot Operations Managers who also perform delivery duties) was compatible with effective management of the Employer’s business. The Union went on to say that members of the Union had expressed unhappiness at the Employer’s existing approach to determining terms and conditions of employment. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit.

9) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application and supporting documents to the Employer on 31 March 2023.

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

10) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 31 March 2023. The Employer stated that it rejected the Union’s request in writing by way of a letter dated 18 April 2023. The Employer attached a copy of the letter to the response.

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 27 April 2023. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union, nor did it agree with the proposed bargaining unit. The Employer said that the description of the bargaining unit on the application did not match the description of the bargaining unit on the request for recognition dated 31 March 2023. The Employer said that it was not clear which workers fell within the scope of the proposed bargaining unit.

12) The Employer said that if the description of the bargaining unit given by the Union in the request dated 31 March 2023 was correct the inclusion of Depot Operation Managers (DOM) within the proposed bargaining unit was not appropriate as it was not compatible with effective management. The Employer said that this was because the characteristics of the workers in the proposed bargaining unit were not compatible enough to be managed as one cohesive unit. The Employer said that unlike drivers DOMs held a distinct managerial role which included (amongst other things) non-driving duties, line managing drivers, responsibility for the welfare of drivers, overseeing and running disciplinary and grievance procedures concerning drivers and managing health and safety incidents including any driver infringements. The Employer stated that the proposed bargaining unit would put the drivers the DOMs and the Company in a number of difficult and compromising positions. By way of example the Employer said “a DOM would be expected to handle smaller collective grievances raised by individual drivers. A DOM would also be required to ensure the drivers uphold certain company standards and would need to commence disciplinary procedures where these standards are not met. The DOM could be involved in any part of that disciplinary process, such as investigating or holding the disciplinary meeting at which the relevant driver will have a right to bring a workplace trade union representative, or an official employed by a trade union if he or she wishes. Where both parties sit within the same bargaining unit, this risks conflicts of interest and likely poses confidentiality issues and trust concerns on all sides.” The Employer said this was only one of many examples that could be provided to the CAC.

13) In respect of bargaining more generally the Employer said that it placed emphasis on employee engagement and addressing employee concerns irrespective of union membership, and that recognition of the proposed bargaining unit would be inconsistent with its own employee engagement initiatives. The Employer said that there was a risk of division amongst workers if only union members were eligible to vote on decisions involving the bargaining unit which could also include many non members. The Employer said that it also worked against its own wider employee involvement in particular the Employee Engagement Forum which represented all colleagues and within which five of the nine workers were tanker drivers.

14) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist the parties. The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application and said that its interpretation based on the description of the bargaining unit given by the Union was that there were 258 workers in the bargaining unit. The Employer said that it did not know why there was a difference in the numbers, and this would need to be looked into by the CAC. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

15) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated it had no concrete knowledge of membership numbers within the bargaining unit however it had reason to doubt that the number given by the Union was correct. The Employer explained that this was because the figure given did not quite align with previous figures given by the Union when balloting workers for industrial action and requested that this be verified by the CAC.

16) 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 said that the membership numbers set out in the Union’s application did not represent a majority of individuals in the proposed bargaining unit. The Employer went on to say that a global all people survey was run in December 2022 for Global Physical Operations colleagues in which anonymous comments had been invited on “the biggest change you would like your local management to make.” Within the responses of those who would fall within the Union’s proposed bargaining unit the Employer said that only one reference was made to the Union. The Employer went on to explain that in February 2023 a follow up survey was carried out and there was no mention of the Union or Union recognition. The Employer explained that feedback had shown them that those workers who were Union members were members for benefits other than recognition. The Employer said that Union membership did not equate to support for recognition, and that only a select few workers were vocal about recognition the rest were not interested. The Employer made reference to the fact that the Union had balloted members for industrial action for the purposes of pushing for voluntary recognition prior to the first application to the CAC. The Employer explained that only a small number of those workers within the bargaining unit voted in favour of industrial action and the strike did not go ahead as there was a lack of desire amongst the workers. The Employer said it would be willing to provide the CAC with further details to corroborate this on a confidential basis.

17) 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. The Employer said that the Union submitted an application for recognition to the CAC on 17 March 2023 but subsequently withdrew the application on 30 March 2023 after The Employer had submitted its response form.

5. The Union’s comments on the Employer’s response

18) The Union stated that it had made clear on the application form that it was only asking for Depot Operations Managers (who also perform delivery duties). The Union said that it believed that a maximum of 10% of the role was Depot Operation Manager and the rest made up of doing deliveries. The Union said that it was only right that Depot Operations Managers that spent most of the time carrying out a delivery role should be included in the bargaining group. The Union said that its understanding was that the Depot Operations Managers did not carry out the roles identified by the Employer and that such roles were in fact carried out by more senior Depot operations Managers. The Union said that the feedback it had received about the Employee Engagement Forum was that workers could not talk about any changes to terms and conditions or pay awards and it did not carry with it a right to vote for union and non union members on matters that concerned them. The Union said that the forum was only set up after the Union had requested recognition. The Union said it had pointed out to the Employer that the forum was not a negotiating body and that there was no Union involvement.

19) The Union said that it firmly believed that a majority of the workforce supported recognition of the Union based on the strong feedback it had received. The Union said that if the Employer was confident that the workers did not wish to have recognition why had the Employer refused to let the Union address the workforce. The Union said that it had asked numerous times to meet with the workers and be able to visit the site to get further feedback but the Employer had declined.

6. The membership and support check

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 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, dates of birth and job roles (where available). 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 a letter dated 18 May 2023 from the Case Manager to both parties.

21) The information requested from the Employer was received by the CAC on 24 May 2023 and from the Union on 24 May 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 indicated that there were 253 workers in the Union’s proposed bargaining unit.

23) The list of members supplied by the Union contained 134 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 111, a membership level of 43.87%.

24) A report of the result of the membership and support check was circulated to the Panel and the parties on 24 May 2023 and the parties were invited to comment on the results of that check by noon on 5 June 2023.

7. Summary of the parties’ comments following the membership and support check

25) In an e-mail to the CAC, dated 5 June 2023, the Union stated “five of our members assure us that they should be on the employer’s list of those in the bargaining unit. Additionally, new members have joined since the membership check was initially completed. We now believe that we have over 50% of the bargaining unit in membership and would be grateful if you would look at the membership data once again.”

26) In a letter to the CAC, dated 5 June 2023, the Employer said that it had concerns about the accuracy of the Union’s calculation of membership numbers in the proposed bargaining unit for the following reasons:

• “A global all-people survey was carried out in December 2022 for the company’s Global Physical Operations colleagues, which covers all those that would fall within the Union’s proposed bargaining unit, and many more. Despite the survey providing an opportunity for colleagues to make clear to the company, on an anonymous basis, that they wished for the union to be recognised, this was not done. The survey asked colleagues to anonymously comment on the ‘biggest change you would like your local management to make’. Only one reference was made to the Union. Follow-up survey focus groups were run in February 2023, during which there was no mention of union recognition.

• WFL (UK) Limited know, as a result of one of our employees having approached us, that this employee was erroneously receiving union membership communications, for a period during which the employee had ceased to be a union member/pay membership fees. The individual has agreed to us providing you with this information on a strictly no-names basis. WFL (UK) Limited is therefore concerned there may be other employees in a similar position, who the union believe to be members and are including within their membership numbers, but who are not in fact members.

• Verbal feedback has been provided by employees within the Union’s proposed bargaining unit to WFL (UK) Limited managers in person, as well as to leaders during depot visits, that those who are union members have signed up for membership for reasons other than recognition or bargaining rights. Examples of reasons provided by employees include the benefits/discounts offered to union members and the opportunity to be accompanied to formal meetings. None of the above accords with there being majority support for recognition of the Union.”

8. 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) At paragraph 14 of its Application the Union set out the bargaining unit as “all tanker delivery drivers employed by WFL UK Ltd across the UK including all (who also perform delivery duties)”. At paragraph 15 of the Application the Union stated “the union believes that collective bargaining for all tanker drivers (and Depot Operations Managers who also perform delivery duties) is compatible with effective management of the employer’s business”. The Union attached a copy of their letter to the Employer dated 31 March 2023 in which they requested recognition. In that letter they confirmed the bargaining unit to be “all tanker delivery drivers employed by WFL Ltd across the UK including all Depot Operations Managers (who also perform delivery duties)”. In an e mail dated 16 May 2023 the Union clarified that it had made a typographical error and missed some words from the application before the brackets. The Union stated it should read “all tanker delivery drivers employed by WFL UK Ltd across the UK including all Depot Operations Managers (who also perform delivery duties).”

29) In order to determine whether the application was made in accordance with paragraph 11 of the Schedule the Panel must decide whether the bargaining unit proposed by the Union in this application is the same bargaining unit that it proposed in its formal request to the Employer for recognition. Despite the missing wording of “Depot Operations Managers” in paragraph 14 of its Application the Panel is satisfied that the bargaining unit proposed is the same as that set out in the letter of 31 March 2023, and also referred to in paragraph 15 of the Application which does include the wording “Depot Operations Managers”. The Panel also accepted the submission from the Union that there had been a typographical error and agreed that the application had been made in accordance with paragraph 11.

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

Paragraph 36(1)(a)

31) 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.

32) The membership check conducted by the Case Manager (described in paragraphs 20 - 24 above) showed that 43.87% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 21 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached 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.

Paragraph 36(1)(b)

33) 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.

34) The Union relied on union membership and the fact that membership was increasing all the time as evidence that there was majority support for collective bargaining.

35) For the reasons given in paragraph 32 above, the Panel has concluded that the level of union membership within the proposed bargaining unit stands at 43.87%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union.

36) The Panel has therefore reached the conclusion that, on the balance of probabilities and in the absence of any evidence to the contrary, 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.

9. Decision

37) For the reasons given in paragraphs 27 - 36 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mrs Lisa Gettins

Mr Derek Devereux

Mr Paul Moloney

22 June 2023

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1. The application by the Union stated, “all tanker delivery drivers employed by WFL UK Ltd across the UK including all    (who also perform delivery duties).” In an e mail dated 16 May 2023 the Union clarified that it had made a typographical error and missed some words from the application before the brackets. The Union stated it should read “all tanker delivery drivers employed by WFL UK Ltd across the UK including all Depot Operations Managers (who also perform delivery duties).” This is dealt with in paragraph 28 below. ↩