Decision

Acceptance Decision

Updated 21 November 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1434(2024)

21 November 2024

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 (URTU)

and

Facilities by ADF PLC

1. Introduction

1)         United Road Transport Union (URTU) (the Union) submitted an application to the CAC dated 30 October 2024 that it should be recognised for collective bargaining purposes by Facilities by ADF PLC (the Employer) for a bargaining unit comprising “all HGV Drivers employed as Swing Drivers, Senior Lead Drivers, Lead Drivers and Waste Tank Drivers.” The location of the bargaining unit was given as “Bridgend, Kitsmead, Manchester and Glasgow.” The application was received by the CAC on 30 October 2024 and the CAC gave both parties notice of receipt of the application that same day. The Employer submitted a response to the CAC dated 5 November 2024 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 Naeema Choudry, Panel Chair, and, as Members, Mr Derek Devereux and Mr Nicholas Childs. 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 13 November 2024.  The acceptance period was extended to 29 November 2024 in order to allow time for the parties to comment on the results of a membership check and for the Panel to consider said 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 15 October 2024. The Union said that the Employer had responded on 22 October 2024 by e mail stating, “in response to your letter, I re-iterate that we maintain the view that we do not feel it necessary to voluntarily recognise URTU or other Unions. As previously mentioned, we remain willing to maintain dialogue and work with URTU where appropriate.” A copy of the Union’s request and Employer’s response were 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, “N/A.” 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 “Circa 275.” The Union stated that there were “Circa 50” workers in the proposed bargaining unit, of whom 25 were members of the Union. The Union said that the Employer agreed with the number of workers in the proposed bargaining unit. 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 “prior to January 2024, the union had two members employed within the proposed bargaining unit. Between February and May 2024, a further twenty three (23) members of the proposed bargaining unit joined the Trade Union. The above surge in membership was due to a desire of the existing and new members to seek recognition of their chosen Trade Union for collective bargaining purposes. The Trade Union believe that the majority of other workers in the proposed bargaining unit would support recognition of the United Road Transport Union.”

8)         The Union stated that the reason for selecting the proposed bargaining unit was because “the United Road Transport Union is a specialised Trade Union, which organises solely in the road transport and logistics sector. The vast majority of its members are employed as HGV Drivers and believe it is best placed, to serve the interests of its members employed within the proposed bargaining unit for collective bargaining purposes.” The Union said that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the bargaining unit, the Union answered “N/A.”

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 30 October 2024.

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 under Schedule A1 for recognition on 15 October 2024 and had responded by e mail on 22 October 2024. The Employer attached a copy of the e mail to its response document.

11)       The Employer confirmed in its response document dated 5 November 2024 that it had received a copy of the Union’s application form from the Union on 30 October 2024. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit but that it did agree to the proposed bargaining unit.

12)       The Employer said that following receipt of the Union’s request it did not propose that Acas be requested to assist. The Employer stated that it agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application which was currently 53. The   Employer did not answer the question on whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit.  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 “we do not believe that the majority of workers in the bargaining unit are likely to support recognition. This is from anecdotal discussions with the workforce. A number of individuals have told us that they originally joined the union but have subsequently cancelled their membership. The company has conducted a pay review in April but deferred processing due to a downturn in business activity. This was now processed in October 2024. We also communicate directly with these employees via Employee Forums and ‘all hands’ company updates. During our initial meeting, union representatives stated that no concerns or issues had been raised from our employees and so we do not consider that our employees would find any benefit from a recognition agreement.”

13)       The Employer answered “N/A” 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 it consented to its contact details being forwarded to Acas.

5. The membership and support check

14)       To assist in 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 dates of birth).  It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party and that agreement was confirmed in a letter dated 6 November 2024 from the Case Manager to both parties. 

15)       The information requested from the Employer and the Union was received by the CAC on 8 November 2024. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.   

16)       The list supplied by the Employer indicated that there were 53 workers in the Union’s proposed bargaining unit.  The list of members supplied by the Union contained 25 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 20, a membership level of 37.74%.

17)       A report of the result of the membership and support check was circulated to the Panel and the parties on 11 November 2024 and the parties were invited to comment on the results of that check by close of business on 13 November 2024.

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

18)       The Union by way of an e mail dated 12 November 2024 said that looking at the membership report the Employer had included two additional roles which were not part of the proposed bargaining unit latterly agreed by the Employer in its response document. The Employer said that the roles that should not have been included were “Tech Driver” and “Driver Assessor.” The Union said that the headcount the Employer provided on 22 July 2024 totalled 50 drivers and not the 53 provided by the Employer for the purposes of the check. The Employer responded that same day to the Union’s query and said that “the Tech Driver (1) was included in error, the individual has recently undertaken some adhoc Class one Swing Driver work but his substantive role is in the base team and he has moved back to that group. However, the Driver Assessors (3) are within the Class One Swing Driver group as they move between assessing potential new drivers, providing training and conducting Class One Swing Driving work themselves.” The Union was asked about the three Driver Assessors being included in the Swing Driver group. The Union responded on 13 November stating “If the role is intrinsically linked as described, the Union is happy for these drivers to be included.”

19)       Regarding the five workers not appearing on the Employer’s list the Union said “I can only provide the current list of members held on record at our Unions head office. Many members pay their union subscriptions via direct debit, at the time they join the union they will give the name and address of their employer at that moment in time. It is not uncommon for members to move to another employer and if they do not inform our head office of their change of employer, they will still be recognised as working for the employer confirmed at the time of joining our union. Due to the above, I can only assume a certain percentage of members who we believed are employed by Facilities by ADF PLC have now changed employment but have failed to inform the Union.”

20)       In an e mail from the Employer dated 13 November 2024 the Employer said it did not have any comments on the report but went on to say that it did not believe the Union would obtain majority support given “we have delivered a pay review across the business in October and have had positive feedback on the back of the increase that generated from the driving team.”

21)       In a further email from the Union dated 14 November 2024 the Union said “I note the company comments regarding a pay increase. Whilst annual pay reviews are an important element of trade union membership, they are not the only advantage of membership.  Our Union offers members a host of additional benefits as follows: Representation at disciplinary and grievance hearings, Legal Helpline, Compensation Claims, Sickness & Accident, Death Benefit, Strike and Lock-out, Victimisation and Benevolent Fund (this assists URTU members who have been charged with offences in relation to Road Traffic Acts whilst following their employment. Further to the above, a trade union organised workforce has the ability to elect workplace Reps plus Health & Safety Reps, who can work with the employer to foster a safer workplace, particularly important in the dangerous industry of Road Transport/Logistics. It is for the above reasons URTU are confident the majority of workers in the proposed bargaining unit would support recognition of our Union.”

7. Considerations

22)       In deciding whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in Paragraph 4 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision and is satisfied that the Union made a valid request to the Employer within the terms specified in paragraphs 5 to 9 of the Schedule to recognise it for collective bargaining in respect of the proposed bargaining unit as described in paragraph 1 of this decision. The request was made in writing and identified the Union, the proposed bargaining unit and that the request was made under the Schedule.

23)       The Panel is also satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 37 to 42 and that the application was made in accordance with paragraph 11. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraphs 36(1)(a) and paragraph 36(1)(b) are met.

Paragraph 36(1)(a)

24)       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. The membership check conducted by the Case Manager (described in paragraphs 14 to 17 above) showed that 37.74% of the workers in the proposed bargaining unit were members of the Union.  As stated in paragraph 15 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

25)       For the reasons set out in paragraph 24 above the Panel has 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)

26)       Under paragraph 36(1) 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.

27)       For the reasons given in paragraph 24 above, the Panel has concluded that the level of union membership within the bargaining unit stands at 37.74%. A test of likely support is, by its very nature, a hypothetical one in that it is not founded on an arithmetical certainty but nonetheless the Panel needs to be persuaded that workers would be likely to support the Union’s application. Accepting that on the balance of probabilities the Union can rely on the support of its members this only amounts to a support level of nearly 38% no such evidence has been forthcoming as to the views of the near 62% of non-members that make up the remainder of the bargaining unit. The Union could have put forward a petition signed by workers in favour of recognition or even mounted arguments to convince us of the views of the non-members, which after all form the vast majority of the workers in the bargaining unit. There may be logistical reasons as to why it was not possible for the Union to gather evidence of majority support, but no such reasons have been put forward. It is clear that the time for a Union to put forward evidence of likely support for recognition is before rather than after a Case Manager’s membership and support report. Inevitably, in order to consider this test, the Panel has to take a snapshot of the level of union membership and support for recognition at a particular point in time. 

28)       Having considered the parties’ submissions the Panel finds that there is insufficient evidence to persuade it that a majority of 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. In the absence of such, the Panel concludes that the statutory test has not been met.

8. Decision

29)       The application is valid within the terms of paragraphs 5 to 9, was made in accordance with paragraph 11 and is admissible within the terms of paragraphs 33 to 35 and 37 to 42 of Schedule A1. However, the Panel is not satisfied that a majority of workers in the proposed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on their behalf, as required by paragraph 36(1)(b) of the Schedule. Accordingly, the decision of the Panel is that the application is not accepted by the CAC.

Panel

Ms Naeema Choudry, Panel Chair

Mr Derek Devereux

Mr Nicholas Childs

21 November 2024