Decision

Validity Decision

Updated 1 November 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1226(2021)

1 November 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING AGREEMENT ON THE BARGAINING UNIT

The Parties:

Unite the Union

and

Wincanton

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 22 June 2021 that it should be recognised for collective bargaining purposes by Wincanton (the Employer) for a bargaining unit described as: “Team Leaders, Clerks and Site Services who are based at Wincanton for Argos, National Distribution Centre, Kettering NN14 1UB”. The application was received by the CAC on 13 July 2021 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted a response to the CAC dated 27 July 2021 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 Mrs Lisa Gettins, Panel Chair, and, as Members, Miss Kerry Holden and Mr David Coats. The Case Manager appointed to support the Panel was Linda Lehan.

3) By a decision dated 27 August 2021 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. Following this decision, the parties then reached agreement on the appropriate bargaining unit. The agreed bargaining unit was described as “Team Leaders who are based at Wincanton for Argos, National Distribution Centre, Kettering NN14 1UB”.

4) As the agreed bargaining unit differed from that proposed by the Union, the Panel is required by paragraph 20 of the Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (the Schedule) to determine whether the Union’s application is valid or invalid within the terms of paragraphs 43 to 50 of the Schedule.

2. Issues

5) Paragraph 20 of the Schedule states that where an application has, as in the present case, been accepted under paragraph 12 and the parties agreed an appropriate bargaining unit that differs from the proposed bargaining unit then the CAC must, within the decision period, decide whether the application is invalid within the terms of paragraphs 43 to 50 of the Schedule. The tests that the Panel must consider under these paragraphs are:-

• is there an existing recognition agreement covering any of the workers within the new bargaining unit? (paragraph 44)

• is there 10% union membership within the new bargaining unit? (paragraph 45(a))

• are the majority of the workers in the new bargaining unit likely to favour recognition? (paragraph 45(b))

• is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? (paragraph 46)

• has there been a previous application in respect of the new bargaining unit? (paragraphs 47 to 49)

6) In letters dated 27 September 2021 both parties were asked for their views as to whether the application remained valid following the agreement of the bargaining unit.

3. Views of the Union

7) In an email dated 29 September 2021 the Union attached a copy of the letter they received from the CAC dated 27 September 2021 providing their response next to each paragraph. The Union stated that it did not believe that there was an existing recognition agreement covering any of the workers within the new bargaining unit. The Union stated that it was not aware of any competing application from another union that covered any worker in the new bargaining unit and there had not been a previous application in respect of the new bargaining unit. The Union submitted that the 10% threshold had been met in the new bargaining unit and that the majority of the workers in the new bargaining unit would support recognition.

4. Views of the Employer

8) No comments were received from the Employer,

9) To assist the determination of the two admissibility tests under paragraph 45 (a) and 45 (b) of Schedule A1, namely whether 10% of the workers in the new bargaining unit are members of the Union and whether a majority of the workers in this bargaining unit are likely to favour recognition of the Union, the Panel instructed that the Case Manager carry out checks on the level of union membership within the agreed bargaining unit and the number of workers who had indicated support for recognition of the Union for the purposes of collective bargaining.

10) The parties agreed that the Employer would supply, to the Case Manager, a list of the names of workers within the agreed bargaining unit and that the Union would supply, to the Case Manager, a list of its union members within that unit and a copy of its petition to enable a comparison to be undertaken. 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 from the Case Manager to both parties dated 12 October 2021. The information from the Union was received by the CAC on 12 October 2021. The Employer provided a list of workers in the agreed bargaining unit on 14 October 2021.

11) The list supplied by the Employer indicated that there were 35 workers in the agreed bargaining unit. The list of members supplied by the Union contained 349 names. According to the Case Manager’s report the number of Union members in the agreed bargaining unit was 16, a membership level of 45.71%.

12) The Union’s petition consisting of 24 names/signatories was set out as follows: Unite the Union Workers Mandate

We the undersigned, Departmental Managers and Team Leaders, employed by Wincanton/Argos, who are based at Kettering Business Park, call upon our employer to recognise Unite the Union, for the purposes of collective bargaining.

There were four columns under this headed Name, Signature, Department and Date and in the column headed date the dates ranged from 14/10/20 – 06/08/21.

The comparison of the Union’s petition with the Employer’s list of workers revealed that a total of 19 workers had indicated that they wanted the Union to be recognised which corresponded to 54.29% of the agreed bargaining unit. 13 of the 19 were union members (37.14%) and 6 were non-members (17.14%).

13) A report of the result of the membership and support check was circulated to the Panel and the parties on 15 October 2021 and the parties were invited to comment on the results by noon on 19 October 2021.

5. Union’s comments on membership /support check

14) The Union in an email dated 18 October 2021 stated that they were satisfied that both tests had been met i.e. at least 10% of the bargaining unit were members of the union and that the majority of workers within the bargaining unit would likely favour recognition of the Union.

6. Employer’s comments on membership/support check

15) No comments were received from the Employer.

7. Considerations

16) The Panel is satisfied on the evidence available that the application is valid in terms of the tests laid down in paragraphs 44 and 46 to 49 of the Schedule, namely that there is no existing recognition agreement in force, that there is no competing application and that there has been no previous CAC application in respect of the new bargaining unit. The remaining tests before the Panel are whether, in accordance with paragraphs 45(a) and (b) of the Schedule, 10% of the workers constituting the new bargaining unit are members of the union and whether a majority of the workers constituting the new bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit.

8. Paragraph 45(a)

17) The membership and support check established that there was a membership level of 45.71% and this was not challenged by the Employer at any point. The Panel is therefore satisfied that the test set out in paragraph 45(a) of the Schedule is met and that at least 10% of the workers constituting the new bargaining unit are members of the Union.

9. Paragraph 45(b)

18) Under paragraph 45(b) of the Schedule, an application is invalid unless the Panel decides that 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.

19) As stated in paragraph 17 above the level of union membership stands at 45.71% which was not challenged by the Employer at any point. The Panel notes that in this case the Union provided further evidence of support for recognition in the form of a petition which showed that 19 (54.29%) of the workers in the agreed bargaining unit supported recognition of which 6 were non-members of the Union which equates to 17.14% of the agreed bargaining unit (see paragraph 12 above). The Panel has no evidence before it which suggests that workers who signed the petition are no longer in support of recognition. The Panel has decided that, on the balance of probabilities, a majority of the workers in 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, as required by paragraph 45(b) of the Schedule.

10. Decision

20) The decision of the Panel is that the application is valid for the purposes of paragraph 20 of the Schedule and the CAC will therefore proceed with the application.

Panel

Mrs Lisa Gettins, Panel Chair,

Miss Kerry Holden

Mr David Coats

1 November 2021