Decision

Acceptance Decision

Updated 20 December 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1379(2023)

20 December 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:

URTU

and

Stark Building Materials UK

1. Introduction

1)         URTU (the Union) submitted an application to the CAC on 1 December 2023 that it should be recognised for collective bargaining by Stark Building Materials UK (the Employer) for a bargaining unit comprising of “Yard Operatives” based at North Dock, Alexandra Dock, Newport.  The CAC gave both parties notice of receipt of the application on 1 December 2023.  The Employer submitted a response to the CAC dated 7 December 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 Chair established a Panel to deal with the case.  The Panel consisted of Ms Naeema Choudry, Panel Chair, and, as Members, Mr David Cadger and Ms Janice Beards.  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 14 December 2023.  The acceptance period was then extended to 4 January 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 3 October 2023 by way of a letter requesting that the Employer recognise the Union to conduct collective bargaining. The Employer in a letter dated 12 October 2023 provided the following reasons for denying voluntary recognition: “The business management have a good relationship with colleagues at the Newport site. There is open dialogue between management and colleagues. There is positive harmonious work environment. There was a previous union green agreement with unite that ended in December 2020 as it was no longer required”.

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 21 and 14 of the workers were in the proposed bargaining unit, of whom 8 were Union members. The Union when asked to provide evidence to support this figure stated, “A redacted list was provided to the company at the point of the VR request”.

8)         Asked whether the Employer agreed on the number of workers in the proposed bargaining unit the Union answered “Yes”.  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, “The membership has been developed as a response for the desire for recognition. (see start date of majority of members). I was approached at the dock by a cadre of workers who were seeking recognition and the opportunity to negotiate their pay, terms, and conditions.”

9)         The Union stated it had selected the proposed bargaining unit because “Yard Operative is the description that appears on the contracts of this group of workers”. 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 30 November 2023.  

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 3 October 2023. In its response the Employer wrote to the Union on 12 October 2023 stating “a. The business/management have a good relationship with colleagues at the Newport site b. There is open dialogue between management and colleagues c. There is a positive/harmonious work environment d. There was a previous union agreement with Unite that ended in December 2020 as it was no longer required.” A copy of the letter dated 12 October 2023 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 proposed the bargaining unit to be Yard operatives, however, they have stated there are 14 colleagues within this bargaining unit, this is incorrect. We have 9 Yard operatives on site. Please can the union clarify the proposed bargaining unit and the number of colleagues within it.”

13)       When asked if, following receipt of the Union’s request, it had proposed that Acas should be requested to assist, the Employer answered, “Non applicable”.

14)       The Employer stated that it employed a total of 7948 employees across Stark Building Material UK, including 21 colleagues at the Newport site. 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”.

15)       The Employer said there was no existing agreement for recognition in force covering workers in the proposed bargaining unit. The Employer, when asked if it disagreed with the Union’s estimate of membership in the proposed bargaining unit, stated “The union has proposed the bargaining units to be Yard operatives, however, they have stated there are 14 colleagues within this bargaining unit, this is incorrect. We have 9 Yard operatives on site. Please can the union clarify the proposed bargaining unit and the number of colleagues within it.”

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 stated “We are currently unable to answer this question due to lack of clarity on the proposed bargaining unit. As soon as we have clarity from the union we will respond”.

17)       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, “Non-Applicable”.

5. The check of membership and support

18)       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 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 8 December 2023 from the Case Manager to both parties. 

19)       The information requested from the Employer was received on 13 December 2023 and from the Union on 11 December 2023.  The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.   

20)       The list supplied by the Employer showed that there were 9 workers in the proposed bargaining unit.  The list of members supplied by the Union contained 8 names.  According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 6, a membership level of 66.67%.  A report of the result of the membership check was circulated to the Panel and the parties on 14 December 2023 and the parties’ comments invited.

6. Parties’ comments on the membership check

21)       In its response dated 19 December 2023, the Union stated “Having now spoken with the members I can confirm that 2 of them are employed in supervisory roles.  They work on the Yard, but this may explain the response from the company as they may not consider these employees to be Yard Operatives. As I have not had access to the site, I can only surmise that this is the explanation. I would point out that these members consider themselves a part of the yard workforce and wish to be able to negotiate their pay, terms, and conditions”.

22)       The Employer in its response dated 18 December 2023 stated, “I have a question regarding the number of employees in the bargaining unit as stated by the unions. Could the unions explain how they arrived at the number of employees in the bargaining unit.”

7. Considerations

23)       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. 

24)       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)

25)       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 20 above showed that 66.67% 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)

26)       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.

27)       The Panel notes from the membership check that a majority of the workers in the proposed bargaining unit (66.67%) are members of the Union.  In the absence of clear and cogent evidence to the contrary, the Panel is entitled to assume that members of the Union would be likely to favour recognition of the Union to conduct collective bargaining with the Employer on their behalf.  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

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

Panel

Ms Naeema Choudry, Panel Chair

Mr David Cadger

Ms Janice Beards

20 December 2023