Decision

Acceptance Decision

Updated 16 January 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1370(2023)

25 October 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

Wincanton

1. Introduction

1)         URTU (the Union) submitted an application to the CAC on 28 September2023 that it should be recognised for collective bargaining by Wincanton (the Employer) for a bargaining unit comprising the “HGV Drivers and Shunters working for Wincanton Primark in Islip”.  The CAC gave both parties notice of receipt of the application on 28 September 2023.  The Employer submitted a response to the CAC dated 4 October 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 Mr Tariq Sadiq, Panel Chair, and, as Members, Mr David Cadger and Mr Michael Clancy.  The Case Manager appointed to support the Panel was Kaniza Bibi.

3)         The CAC Panel has extended the acceptance period in this case. The initial period expired on 12 October 2023.  The acceptance period was then extended to 27 October 2023 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 8 August 2023 and that a meeting was held between the Employer and the Union on 19 September 2023, where the Employer verbally confirmed that it declined the Union’s request for 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, “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 approximately 57 and that approximately 42 of these workers were in the proposed bargaining unit, of whom 20 were Union members. The Union explained the information for its membership was taken from current membership lists, held in any document including electronic form at the Union’s head office and had been checked and updated as necessary for this application.

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, “Of the 20 current union members to have been members member since 2018 the remaining 18 members have joined the union in 2023 the increase in membership has been in support of the union seeking recognition with their employer for collective bargaining”.

9)         The Union stated it had selected the proposed bargaining unit because “the union is a specialist road transport union, and its members believe the union is the most appropriate union to negotiate on their behalf for terms and conditions of employment due to their employment within the road transport sector”. 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 28 September 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 8 August 2023 requesting the Employer to discuss voluntary recognition. The Employer advised that it gave verbal confirmation to the Union on 19 September 2023 that it’s decision was to proceed with the ‘Colleague Association’ and not to accept recognition from the Union, following local feedback from colleagues.

12)       The Employer confirmed it agreed with the proposed bargaining unit as Drivers and Shunters, although clarity was required on numbers referenced. When asked if, following receipt of the Union’s request, it had proposed that Acas should be requested to assist, the Employer answered, “Wincanton have not yet requested support from ACAS”.

13)       The Employer stated that it employed a total of 57 Colleagues (Drivers and Shunters at Primark Islip) who were permanent workers.  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, further clarity required on numbers referenced in application”.

14)       When asked to state the number of workers in the Union’s proposed bargaining unit and the reason for any difference, the Employer stated that the Union confirmed 42 in proposed bargaining unit and there was 57 Drivers and Shunters on site. The Employer needed clarity on the 42.

15)       The Employer said there was no existing agreement for recognition in force covering workers in the proposed bargaining unit and currently colleagues were supported by a formal Colleague Association Forum.

16)       The Employer when asked if it disagreed with the Union’s estimate of membership in the proposed bargaining unit, stated “N/A”.

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, “Local feedback from the colleagues on site, who would be part of the proposed bargaining unit, suggests that there are a significant number of colleagues who do not wish to be recognised by a collective recognition agreement and are happy to continue with the colleague association”. 

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 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 9 October 2023 from the Case Manager to both parties.  

20)       The information requested from the Employer and Union was received on 11 October 2023.  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 57 workers in the proposed bargaining unit.  The list of members supplied by the Union contained 20 names.  According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 20, a membership level of 35.09%.  A report of the result of the membership check was circulated to the Panel and the parties on 12 October 2023 and the parties’ comments invited.

6. Parties’ comments on the membership check

22)       In its response dated 17 October 2023, the Union stated “Its officer, who has local responsibility for the Wincanton Primark site at Islip, informs me that she has spoken to our site activists in regard to the result of the check of the level of union membership in the Union’s proposed bargaining unit, as confirmed in the attached letter. Our site activists contest the validity of the company numbers and do not believe there are 57 workers employed as drivers or shunters (the proposed bargaining unit). It is their belief the correct number is circa 45. I have no personal way of verifying this number and I am reliant on their local knowledge. Regardless of the above, if the company figures are correct, it is my understanding of paragraph 36 of the Schedule that the current number of URTU members (20) represents a requisite majority (35.09%) for the application to continue. Furthermore, I am informed that our site activists have confirmed a majority of the workers constituting the relevant bargaining unit would be likely to favour recognition of the URTU as entitled to conduct collective bargaining on behalf of the bargaining unit”.

23)       The Employer in its response dated 18 October 2023 stated, “I can confirm that we have reviewed your document and don’t have any further comments to add”.

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 12. 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)

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 35.09% 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 majority of the workers in the proposed bargaining unit (35.09%) 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

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

Panel

Mr Tariq Sadiq, Panel Chair

Mr David Cadger

Mr Michael Clancy

25 October 2023