Decision

Acceptance Decision

Updated 14 June 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1385(2024)

15 February 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

and

Industrial Chemicals Limited

1. Introduction

1)         The United Road Transport Union (the Union) submitted an application to the Central Arbitration Committee (the CAC) on 25 January 2024 that it should be recognised for collective bargaining by Industrial Chemicals Limited (the Employer) for a bargaining unit comprising the “The HGV drivers based at Industrial Chemicals Widnes” at Industrial Chemicals, Bowman Works, Gorsey Lane, Widnes WA8 0YZ.  The CAC gave both parties notice of receipt of the application on 25 January 2024.  The Employer submitted a response to the CAC dated 31 January 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 Mr Stuart Robertson, Panel Chair, and, as Members, Mrs Susan Jordan, and Mr Paul Morley.  The Case Manager appointed to support the Panel was Kaniza Bibi.

3)         The Panel has extended the acceptance period in this case. The initial period expired on 8 February 2024.  The acceptance period was extended to 22 February 2024 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 10 January 2024 for voluntary recognition at the site. The Employer in its response email, received by the Union on 16 January 2024 rejected the Union’s 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 “Unknown. At the site there are about 14 HGV drivers”. The Union stated that it had 6 members in the bargaining unit.

8)         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, “I have no evidence to support this section, I have been asked verbally by my members to seek recognition. Our members wish to avoid industrial action, if possible, in their pursuance of recognition”.

9)         The Union stated it had selected the proposed bargaining unit because “We are a road transport Union, and the group of HGV drivers joined our union to collectively bargain for their pay, terms and conditions as they have driver specific issues”. The Union also confirmed that the proposed bargaining unit had not been agreed with the Employer.

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 25 January 2024.  

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 10 January 2024. The Employer responded to the request by an email to the Union on 16 January 2024 stating “Further to your below email regarding Union recognition for the HGV driver group based at Industrial Chemicals, Gorsey Lane, Widnes, WA8 0YZ. Please be advised that as previously confirmed we refuse your request for Union recognition at Industrial Chemicals Widnes.” A copy of the email dated 16 January 2024 was enclosed with the Employer’s response.

12)       The Employer confirmed it did not agree with the proposed bargaining unit. The Employer considered that the Union’s proposed bargaining unit was not an appropriate bargaining unit and confirmed its objections to the proposed unit stating, “The union has failed to meet the requirements needed for their application as there were less than 21 workers in the bargaining unit and that the Union have failed to obtain or provide proof that the majority of the employees are in favour of union recognition”.

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 479 workers. When 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 we do not agree”.

15)       The Employer, when asked to state the number of workers in the Union’s proposed bargaining unit, confirmed there was 12 workers in the bargaining unit.

16)       The Employer said there was no existing agreement for recognition in force covering workers in the proposed bargaining unit. When asked if it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated, “Unable to agree or disagree as no evidence of membership has been provided”.

17)       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, “ A collective grievance was submitted by 10 of the Widnes drivers in June 2023, following the submission of the grievance 4 withdrew from the process and with the exception of 2 the remaining individuals had no issues and had only agreed to the grievance to show solidarity, one of which has now left the company”.

18)       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

19)       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 full names and 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 1 February 2024 from the Case Manager to both parties.  

20)       The information requested from both the parties was received on 7 February 2024.  The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.   

21)       The list supplied by the Employer showed that there were 12 workers in the proposed bargaining unit.  The list of members supplied by the Union contained 6 names.  According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 5, a membership level of 41.67%.  A report of the result of the membership check was circulated to the Panel and the parties on 7 February 2024 and the parties’ comments invited.

6. Parties’ comments on the membership check

22)       The Employer in its response dated 9 February 2024 stated, “I can confirm that we have no comments with regards to the figures provided however; we would like to raise comments in relation to (b) a majority of the workers constituting the relevant bargaining unit would be likely to favour recognition of the union (or unions) as entitled to conduct collective bargaining on behalf of the bargaining unit. As stated, ….in [the] Application under Part 1 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (question 12)), there is no evidence to support that the majority of the workers in the bargaining unit are likely to support recognition for collective bargaining. …… [the Union states that it] has only been asked verbally to seek recognition, however; [it] does not state if this is from one or all of [its] members or workers.  The initial request that was made in July 2023 was in relation to a collective grievance that was submitted by only 9 of the drivers in the requested bargaining unit. Following the submission of the grievance 4 drivers withdrew for the following reasons;

1.         They did not wish to be supported by the United Road Transport Union as they have memberships elsewhere

2.         They did not actually have a grievance against any of the issues raised they only signed in solidarity of the other drivers

3.         The majority of the issues raised were submitted on page 2 of the grievance without the knowledge or agreement of the drivers that had signed on page 1.

The remaining grievance hearings were conducted as individual grievances and following the grievance hearings it was apparent that only 2 of the remaining 5 drivers actually had any issues regarding the points that had been raised, one of which has now left the business. All issues were addressed accordingly with the individuals and no appeals were submitted following the outcomes. For these reasons we do not accept or believe that the majority of the workers in the bargaining unit do or will support recognition for collective bargaining”.

23)       Commenting on the report on 12 February 2024, the Union stated “The membership at the site may be small however, we do have 41.67% of the proposed bargaining unit. The membership may only be 5 strong but until recently we had a larger membership of 9 members in total (I can evidence this if required). I initially asked the company if they would consider voluntary recognition last year but was refused. The Union members did not wish to gain recognition through industrial action, so I instead gave them the CAC option as a potential route for recognition. Throughout this endeavour I have lost members through dismissal and lost members who became too disenfranchised with the company to continue working at the site. I have spoken to most of the membership at Industrial chemicals and I have been informed that the vast majority of workers at the site (Union and non-Union) all support Union recognition. There are many who work at the site that are unhappy and desperate for change which is why they joined the United Road Transport Union. I also believe that if granted recognition it would embolden most of the workers at the site to join our Union as at the moment, they are somewhat sceptical about their employer”.

7. Considerations

24)       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. 

25)       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.  In its response to the application the Employer submitted that the Union had failed to satisfy the requirements of the Schedule as there were less than 21 workers in its proposed bargaining unit.  The test under paragraph 7 however, is whether the employer employs at least 21 workers on the day the employer receives the request, not that there must be at least 21 workers in any proposed bargaining unit.  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)

26)       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 21 above showed that 41.67% 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.

Paragraph 36(1)(b)

27)       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.

28)       The Panel notes from the membership check that a significant minority of the workers in the proposed bargaining unit (41.67%) are members of the Union.  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. There may be some Union members who would not favour recognition, but it is also the Panel’s experience that there will be workers who are not members of the Union but who would be likely to favour recognition of the Union. In this case, the membership constitutes over 40% of workers in the bargaining unit but given the small size of the proposed bargaining unit, it would require only a small number of non-members to favour recognition for the Union to have the support of the majority.  On the evidence before it, the Panel has decided that 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 and accordingly, this test is also met.

8. Decision

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

Panel

Mr Stuart Robertson, Panel Chair

Mrs Susan Jordan

Mr Paul Morley

15 February 2024