Decision

Acceptance Decision

Updated 10 December 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1211 (2021)

26 March 2021

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:

United Road Transport Union

and

Eddie Stobart Limited

1. Introduction

1) United Road Transport Union (URTU) (the Union) submitted an application to the CAC dated 22 February 2021 that it should be recognised for collective bargaining by Eddie Stobart Limited (the Employer) for a bargaining unit comprising “Core worker warehouse operatives up to (but not including) the level of supervisor” and the location was given as Eddie Stobart DC420, Kilsby, Rugby CV23 8YL. The application was received by the CAC on 25 February 2021. The CAC gave both parties notice of receipt of the application on 26 February 2021. The Employer submitted a response to the CAC dated 3 March 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 Chairman 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 Fiona Wilson. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 11 March 2021. The acceptance period was extended to 31 March 2021 in order to allow time for a membership check to be carried out, the parties to comment on the results of a membership check and for the Panel to consider these 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 sent its formal request for recognition to the Employer on 23.10.2020 ^{[footnote 1]}. The Union stated the company had refused its request on the basis that there were FTE’s (full time equivalents) within the bargaining group. The Union argued that those workers were not on the same contract as their proposed bargaining unit and said that they had sought to clarify this with the Employer. The Union stated that the Employer had not accepted the revised bargaining unit description and had not aided in identifying it. The Union attached to its application its formal request for recognition letters together with the Employer’s response and emails relating to the request for recognition.

6) The Union stated that the total number of workers employed by the Employer was unknown. The Union stated that there were 40 workers in the proposed bargaining unit, of whom 23 were members of the Union. The Union said that the information was available on request for clarification by the investigating officer and was included in their response but the names had not been provided to the company. When 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 stated that membership had increased over time and had increased in direct response to the suggestion of recognition. The Union stated that a surreptitious approach to employees not in the bargaining unit had produced an affirmative response and they anticipated greater engagement if recognition was granted.

7) The Union stated that the reason for selecting the proposed bargaining unit was because it had been explained that there were 2 sets of workers in the warehouse, contracted and agency and it was the contracted workers that composed the bargaining unit.

8) The Union stated that the bargaining unit had not been agreed with the Employer. In answer to the question is there an existing recognition agreement which you are aware of, which covers any workers in the bargaining unit the Union answered N/A.

9) The Union confirmed that it held a current certificate of independence, a copy of which it enclosed. The Union stated that it had copied its application to the CAC, and supporting documents, to the Employer on 22.02.2021.

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 27 October 2020 which related to the warehouse staff at the DC420 site. The Employer stated that they responded in writing on 3 November 2020 confirming the number of FTE operators employed under the Eddie Stobart Group at DC420 was in excess of the 40 stated by URTU in their request. The Employer stated that they did not consider that URTU had majority membership of the proposed bargaining

11) The Employer confirmed that it had received a copy of the Union’s application form together with their independent trade union certification and an anonymised list of URTU members by email on 22 February 2021. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union and that it did not agree it. The Employer stated that the number of workers employed by them was Group 6500 and Agency 1000.

12) The Employer stated that it did not agree with the proposed bargaining unit because:

a) The proposed definition was unclear.
The Employer stated that in the Union’s letter dated 23 October 2020 they proposed the bargaining unit as ‘Warehouse operators up to (but not including) the level of supervisor at the DC420 site’ and as the company explained in their response there were a number of FTE operators employed under the Eddie Stobart Group at DC420. The Employer stated that the Union subsequently amended their proposed bargaining unit to ‘core worker warehouse operatives up to (but not including) the level of supervisor’ which was the description in their application. The Employer stated that it sought clarification from the Union as to what was meant by ‘core worker warehouse operatives’ and the Union responded by email dated 15 January 2021 stating that the “description was an attempt to include those employees contracted to Stobart”. A copy of this email was attached to the Employer’s response.

b) The proposed make-up of the bargaining unit did not include all warehouse operatives. The Employer stated that the Union in their application said that the proposed bargaining unit was intended only to cover workers contracted to Stobart and that they did not agree this proposed bargaining unit. The Employer stated that the Eddie Stobart Group engaged a number of warehouse operatives at DC420 and staff were engaged both through Eddie Stobart Limited and through Logistic People, a subsidiary company which formed part of the Eddie Stobart Group. The Employer maintained that any bargaining unit for warehouse operatives would need to include all warehouse operatives engaged through the Eddie Stobart Group as those workers were all ultimately contracted to Stobart.

13) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

14) The Employer stated it did not agree with the number of workers in the bargaining unit as defined in the Union’s application. The Employer said that at the DC420 site there were 122 warehouse operatives engaged by the Eddie Stobart Group, 39 employed by Eddie Stobart Limited and 65 employed by Logistic People..

15) The Employer said that they had an existing agreement for recognition in force covering workers in the proposed bargaining unit which continued to be in effect. The Employer stated that they had in place an internal consultation body for warehouse operatives which was documented in the Warehouse Representative Recognition Agreement dated 23 January 2019 a copy of which they attached. The Employer stated that the parties to the agreement were Eddie Stobart and the elected warehouse representatives (on behalf of the warehouse operatives). The Employer stated that the Agreement was not with a Trade Union however the Warehouse Representatives were party to collective consultation in respect of pay, holidays, working rotas, hours of work, workforce agreement and contracts. The Employer said that they are also consulted with regards to health and safety and business developments. The Employer stated that representatives were elected for a 3 year term and consulted on all matters directly affecting the workforce. The Employer stated that there were currently 16 warehouse representatives from 12 sites across the UK and elections were ongoing to fill representative vacancies at a further 5 sites. The Employer stated that the DC420 site had 3 representatives on the staff consultation body.

16) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer said that the Union indicated that they had 23 members in the proposed bargaining unit and a membership list was attached to the Union’s application however it was anonymised. The Employer said that it did not have information with regards to Trade Union membership and was therefore unable to confirm acceptance of the membership levels. The Employer said that it further noted that the Union stated in their application that “Membership has increased over time and has increased in direct response to the suggestion of recognition” but no evidence had been provided in support of that statement to confirm the joining dates of members. The Employer stated that it sought clarification and evidence in that regard.

17) When invited to give its reasons if it did not consider that a majority of the workers in the proposed bargaining unit would be likely to support recognition, the Employer stated that it did not agree that a majority of workers in the bargaining unit were likely to support recognition and as explained above, the number of warehouse operatives employed by the Eddie Stobart Group at DC420 was 122. The Employer stated that it engages with those workers through the Warehouse Representatives body and receives feedback on issues of concern to staff. The Employer stated that at no time had staff indicated either direct to managers or through the consultation body that there was a desire to replace the current arrangements with Trade Union recognition.

18) The Employer said that it regularly consulted with workers as detailed above and had recently conducted its annual anonymous staff survey to identify issues of concern. The results demonstrated high levels of satisfaction amongst the staff within the warehouse at DC420 and very positive feedback. The Employer said that the warehouse representative body worked well and provided a voice for staff. The Employer stated that as a national body including warehouse representatives from numerous sites across the UK, it also provided a consistency of approach and an opportunity to consult on all staff related matters collectively at a national level.

19) The Employer said that it noted that the Union’s application on this point suggested that “A surreptitious approach to those employees not in the bargaining unit has produced an affirmative response and we anticipate greater engagement if recognition is granted”. The Employer said that it noted the following in this regard:

a) It was unclear why URTU were assessing the views of those outside of the proposed bargaining unit.

b) No evidence was provided in support of their claim.

c) An anticipation of greater engagement if recognition was granted did not provide any evidence of current support for Union recognition. The claims made were based on hoped for developments and not any evidence of existing support or desire for Union recognition amongst workers.

20) The Employer confirmed that there was currently no recognition agreement in place covering any of the workers in the proposed bargaining unit nor was it aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit.

5. Union’s comments on Employer’s Response

21) The Union in an email dated 9 March 2021 commented on paragraph 12 above stating that the original request for voluntary recognition was further to a description of the bargaining unit that came directly from their members for whom there was an obvious and verifiable distinction between those on Stobart contracts, (our members) and agency staff. The Union stated that the response from the Employer was that they would not accept the description of the bargaining unit as the workforce included FTEs. The Union stated that the FTEs are agency staff and are on agency contracts and Eddie Stobart as a group own the agency. The Union stated that they had extensive conversations with a senior HR representative at the company in an attempt to agree an identifying description for the contracted workers who were not agency and, having been frustrated by the responses, they raised the subject with their General Secretary and it was his view that, in the absence of a description that the company would agree on, even though the distinction had been discussed and explored extensively, the revised description subsequently submitted of the bargaining unit as being the ‘core workers’ was one that could not be misinterpreted or challenged and that would stand up to legal scrutiny. The Union stated that having submitted a new description they continued to explore the subject of a description that the company would agree to. The Union stated that eventually it was informed in writing that the company was holding fast to the original objection and the insistence that agency employees were contracted Stobart employees.

22) The Union stated that it remained self-evident to them that the employees at the DC420 site make a distinction between agency workers and contracted workers. Agency workers on agency contracts are not the same as Stobart employees on Stobart contracts. The Union stated that the Employer had deliberately obscured an obvious distinction and had been disingenuous throughout the process with those employees who it was seeking to represent.

6. Employer’s response to comments from URTU dated 9 March 2021

23) The Employer stated that:

“1) The company maintains that the proposed definition of the bargaining unit is unclear for the reasons detailed in the Employer’s Response dated 3 March 2021 (see paragraph 12 (a) above).

a) The company maintains that the reference to “core worker warehouse operatives” is not a clear description. The meaning attributed to “core worker” is stated by URTU to be one “that could not be misinterpreted or challenged”. The company does not accept that point and disputes that using the term “core worker” has a clear and obvious meaning.

b) In previous correspondence dated 15 January 2021, as confirmed in the Employer’s Response, URTU sought to clarify the position by stating that the “description is an attempt to include those employees contracted to Stobart”. As confirmed in the Employer’s Response, those staff engaged by Logistic People (a subsidiary of Eddie Stobart Group) are contracted to the Eddie Stobart Group. The company notes that this adds to the uncertainty of the proposed bargaining unit definition.

2) The company maintains that any bargaining unit for warehouse operatives would need to include all warehouse operatives engaged through the Eddie Stobart Group.

3) The company does not agree that there is an obvious and verifiable distinction between those employed on contracts with Eddie Stobart Limited and those engaged through Logistic People. The staff collectively are warehouse operatives for DC420 and those engaged by the agency are very much treated as part of the staff. Agency staff are involved in staff engagement such as staff surveys and staff voice feedback meetings. They carry out the same work, in the same way and as part of the same team.

4) It is denied that the company has been “disingenuous” as alleged. The company position has been consistent and clear throughout with regards to its position as detailed in the Employer Response and above”

7. Union’s comments on the existing agreement for recognition

24) The Union in a letter to the CAC dated 11 March 2021 said that in their opinion the existing agreement for recognition which the Employer says they have in force covering workers in the proposed bargaining unit was irrelevant as it was not an agreement with an independent trade union.

25) The Union stated that three of the existing warehouse representatives were members of the URTU and had been active in their support of trade union recognition. This the Union said was because their experience and that of their fellow workers, was that the construct that was in place, designed to give the impression that an independent body was actively pursuing workers concerns, but did not genuinely afford the employees the opportunity to negotiate on pay, terms and conditions. Neither did it afford them the ability to organise in opposition to that which was dictated by the management.

26) The Union stated that the increase in union membership was proof of the frustration and exasperation that was felt by the majority of the employees within the bargaining group that the URTU was seeking to represent, specifically, those full-time employees in the warehouse that were on Stobart contracts and not agency contracts.

8. The Membership Check

27) To assist in the application of the admissibility tests 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 name and date of birth). 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 15 March 2021 from the Case Manager to both parties. The information from the Employer was received by the CAC on 17 March 2021 and from the Union on 16 March 2021. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

28) The list supplied by the Employer indicated that there were 39 workers in the proposed bargaining unit. The list of members supplied by the Union contained 23 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 21, a membership level of 53.85%.

29) A report of the result of the membership check was circulated to the Panel and the parties on 17 March 2021 and the parties were invited to comment on the result.

9. The parties’ comments on the result of the membership check

30) In a letter dated 22 March 2021 the Employer stated that the membership report confirmed that there were 21 names appearing on both the employer’s list and the list supplied by URTU. The company accepted in light of this confirmation that 10 per cent of the workers in the bargaining unit proposed by the Union were members of the union and that the test at paragraph 36 (1)(a) of the Schedule was met. For the reasons previously detailed however, the company said that they did not agree the definition or scope of the proposed bargaining unit.

31) The Employer stated that it did not agree that the test at paragraph 36 (1)(b) of the Schedule was met or would be met. The Employer maintained that there was no evidence to demonstrate that a majority of the workers constituting the relevant bargaining unit would favour recognition and noted the following in this regard:

a) The proposed bargaining unit was not agreed for the reasons previously detailed.

b) URTU suggested that the current recognition arrangement in place with the Warehouse Representatives did not genuinely afford the employees the opportunity to negotiate on pay, terms and conditions. This the Employer stated was an inaccurate reflection of the work of the Warehouse Representatives body. The Employer confirmed that negotiations took place regularly and on an annual basis with regards to pay and that the pay negotiations with regards to the current year had recently commenced.

c) The Employer stated that the Union further referred to an increase in union membership in support of their application and as previously noted, the company had seen no evidence in support of that claim. In addition, the Employer said that they noted from the membership report that membership levels had actually decreased in recent months. The Employer stated that in October 2020 when the initial request for voluntary recognition was made, URTU stated that they had 23 members within the proposed bargaining unit and in the 5 months since that request the number of members has decreased rather than increased contrary to the position stated by URTU.

32) No comment on the result of the membership check was received from the Union.
Considerations

33) 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.

34) 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, 34 and 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the application is inadmissible under paragraph 35 and whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

10. Paragraph 35

35) Paragraph 35(1) states that an application to the CAC is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any workers falling within the bargaining unit proposed by the Union. The question that the Panel must address is whether, in the circumstances of this case, the Union’s application is rendered inadmissible by virtue of paragraph 35. The Employer in their response stated that the Agreement was not with a Trade Union and the Panel is satisfied that for the purposes of paragraph 35 there is no relevant collective agreement that is already in force, and therefore that the Union’s application is not to be rendered inadmissible by virtue of paragraph 35.

11. Paragraph 36(1)(a)

36) 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.

37) The membership check conducted by the Case Manager (described in paragraphs 27 and 28 above) showed that 53.85% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 27 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. The Employer in their letter of 22 March 2021 stated that they accepted that 10% of the workers in the bargaining unit proposed by the Union were members of the union and that the test at paragraph 36 (1)(a) of the Schedule was met. 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.

12. Paragraph 36(1)(b)

38) 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. For the reasons given above the level of union membership is 53.85%. The Union did not provide any additional evidence of support for recognition, such as a petition, but 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. The Panel notes that the Employer maintained that there was no evidence to demonstrate that a majority of the workers constituting the relevant bargaining unit would favour recognition. But, equally no such evidence to the contrary was received in this case. On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, 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.

13. Decision

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

Panel

Professor Kenny Miller, Panel Chair

Mr Tom Keeney

Ms Fiona Wilson

26 March 2021

1. The Union subsequently revised the description of their proposed bargaining unit in a letter to the Employer made under the Schedule dated 18 November 2020 ↩