Acceptance Decision
Updated 3 May 2024
Applies to England, Scotland and Wales
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Case Number: TUR1/1389(2024)
22 March 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:
Unite the Union
and
Redline Oil Services Limited
1. Introduction
1) Unite the Union (the Union) submitted an application to the CAC dated 16 February 2024 that it should be recognised for collective bargaining purposes by Redline Oil Services Limited (the Employer) in respect of a bargaining unit comprising “Aircraft Refuelers and Allocators working at Gatwick Airport.” The location of the bargaining unit was given as “London Gatwick Airport, Gatwick, RH6 0NP.” The application was received by the CAC on 16 February 2024 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 23 February 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 Chairman established a Panel to deal with the case. The Panel consisted of Mrs Lisa Gettins, Panel Chair, and, as Members, and Mr Martin Kirke, and Ms Claire Sullivan. The Case Manager appointed to support the Panel was Kate Norgate.
3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 1 March 2024. The acceptance period was extended on two further occasions to allow time for a membership and support check to take place, for the parties to comment on the subsequent report, and for the Panel to consider those comments before arriving at a decision. The final extension ends the acceptance period on 22 March 2024.
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 request for recognition to the Employer on 31 January 2024. The Union stated that it received a formal response to its request on 13 February 2024, in which the Employer had said that it did not accept the Union’s request for recognition, nor was it willing to negotiate with the Union. A copy of the Union’s request and the Employer’s letter of 13 February 2024 were attached to its 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 “No – 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 58. The Union said that there were 37 workers in the proposed bargaining unit, comprising 34 Aircraft Refuelling Technicians and 3 Aviation Allocators, of whom 30 were members of the Union. 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 said that 81% of its proposed bargaining unit were in paid Unite membership and it therefore believed that this demonstrated that the workers were in support of creating both a workplace union and recognition. The Union said that workers employed by Redline Oil Services Limited at Gatwick proactively approached Unite to request that the Union sought recognition from the Employer on their behalf. The Union further stated 31 employees (29 members and 3 non-members) in the proposed bargaining unit had signed a petition in support its request for recognition to the Employer.
8) The Union stated that the reason for selecting its proposed bargaining unit was because it reflected the current membership and included workers in operational non-management roles. The Union believed that the proposed bargaining unit was consistent with supporting effective management within the workplace, and that it would avoid the creation of a fragmented bargaining unit. The Union said that the bargaining unit had not been agreed with the Employer. The Union said that there was no existing recognition agreement of which it was aware that covered any workers in the bargaining unit.
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 16 February 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 for recognition on 31 January 2024. The Employer said that it had responded by letter dated 13 February 2024. In this letter the Employer had declined the Union’s request, and further explained why it believed that the request was not compatible with its views on how to effectively manage its business, nor would it be in the interests of its employees. A copy of the Employer’s letter dated 13 February 2024 was attached to its response.
11) The Employer said that it had received a copy of the application form and supporting documents from the Union on 16 February 2024. 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, but it did now agree the proposed bargaining unit.
12) When asked whether following receipt of the Union’s request it had proposed that Acas should be requested to assist, the Employer answered “No”.
13) The Employer said that it agreed with the number of workers in the bargaining unit as set out in the Union’s application, however it disputed the total number of employees based on the site as cited by the Union (58). The Employer said that there was in fact a total of 41, and that this included the supervisory and managerial roles.
14) The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.
15) The Employer said that it disagreed with the Union’s estimate of membership in the proposed bargaining unit as it did not believe that the Union had a strong understanding of the make-up of its London Gatwick site. The Employer stated that it believed this was evidenced by the inflated total workforce figure of 58 as claimed by the Union, as opposed to 41 claimed by the Employer. The Employer further stated that, “we have not been provided with evidence from former employees of Redline Oil Services Limited or previously at Menzies Aviation (having left employment prior to the insource on 1 January 2023) at London Gatwick, now employed within other companies based at the airport, that they have received communications from Unite in line with this process to seek recognition.” The Employer believed that this suggested that the membership details provided by the Union were inaccurate. The Employer therefore wished to request that a membership check be undertaken to determine the level of union membership within the proposed bargaining unit.
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 said that in view of the feedback that it had received from its colleagues based on site, it did not believe that there was a majority case for union recognition. The London Gatwick population already participated within an Employee Representative Forum which met quarterly with Senior Leadership and the site had its own dedicated and active Representative. Within the year since its introduction, positive changes had been introduced on site as a result of the forum, such as more choice of uniform, better shift patterns and changes to how training hours were used. Prior to receiving the Union’s request for statutory recognition there had been no informal approach by the Union to start a dialogue, and only one colleague had approached the Site Manager directly to express a desire for the site to be unionised. The Employer said that in the event of significant support amongst its colleagues, it would find the lack of involvement and/or expressed desire surprising. With regard to the petition referenced by the Union, the Employer stated that it had not been presented to the company, nor had it been made aware of its existence at any point by its colleagues based on the site.
17) It was the Employer’s view that the sensible way to ascertain the level of support would be via an independently administered ballot so that all colleagues could freely express their views in respect of their support of recognition. The Employer further stated that notwithstanding the outcome of the membership check, whilst it fully respected the choice of its employees to be union members or otherwise, union membership in itself was not a request for union recognition and many union members felt that they derived and valued the benefits outside of recognition, such as being accompanied to certain meetings.
18) The Employer answered “No” when asked both whether it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, and whether it had received any other applications in respect of any workers in the proposed bargaining unit.
5. The membership and support check
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 and of the Union’s petition. 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) and a copy of its petition. 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 March 2024 from the Case Manager to both parties.
20) The information requested from Union was received by the CAC on 4 March 2024, and from the Employer on 5 March 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 indicated that there were 37 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 30 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 28, a membership level of 75.68%.
22) The Union’s petition comprised of 4 A4 sheets and contained 31 names/signatures. Each page of the petition was headed:
“PETITION IN SUPPORT OF UNION RECOGNITION
World Fuels Services LGW
World Fuel Services LGW – Room 19-25, Pier 4 North Terminal, Gatwick, RH6 0NP
Unite the Union is building support to ask your employer to recognise it for collective bargaining for the Aircraft Refuelers. We have to show that a majority of workers favour our application. If you want your employer to recognise Unite for collective bargaining for the Aircraft Refuelers, please sign the petition.
This petition and your personal details will be kept confidential by Unite the Union and will be shared with the Central Arbitration Committee only, who will use these to confidentially verify the level of support for our collective bargaining application. Your employer will not receive your details or a copy of this petition. The petition will be retained by Unite for the duration of the recognition campaign and any associated issues.
Unite the Union’s full up-to-date privacy policy can be found at www.unitetheunion.org/privacypolicy
I support recognition of Unite as entitled to conduct collective bargaining on pay, hours and holidays:”
Beneath the proposition was a table with 4 columns headed: “PRINT NAME”, “JOB TITLE”, “SIGNATURE”, and “DATE”. The dates on the petition ranged between 16 and 24 January 2024.
23) The check of the Union’s petition showed that it had been signed by 31 workers in the proposed bargaining unit, a figure which represents 83.78% of the proposed bargaining unit. Of the 31 signatories, 28 were members of the Union (75.68% of the bargaining unit) and 3 were non-members (8.11% of the bargaining unit).
24) A report of the result of the membership and support check was circulated to the Panel and the parties on 7 March 2024 and the parties were invited to comment on the results of that check, by the close of business on 12 March 2024.
6. Summary of the parties’ comments following the membership and support check
25) In an email to the CAC dated 11 March 2024 the Union stated that it was pleased to note that 75.68% of the workers within the bargaining unit were members of Unite, and an even higher percentage, 83.78%, had signed the petition in support of Union recognition. The Union believed that the figures clearly demonstrated a strong and unified mandate for Union representation. The Union said that it had further noted that the Employer had agreed to the Union’s proposed bargaining unit. The Union considered that the result of the check demonstrated that that a ballot would not be appropriate or necessary in these circumstances, as the CAC had accepted that a majority of the workers in the bargaining unit were members of the Union. The Union further stated that, “We note that that the CAC is not entitled to ‘impose, in effect, a threshold for recognition without a ballot higher than that stipulated by the legislators’. On this point, the Union relies on the decision in ISTC and Fuller Computer Industries Ltd (TUR1/29/00) which was affirmed on an application for judicial review in Re Fullarton Computer Industries Ltd, [2001] IRLR 752. In the Union’s submission, once majority membership is established, the Union should be awarded recognition without a ballot unless there is good reason to hold otherwise. The Union submits that none of the 3 statutory exceptions apply in these circumstances.” The Union further explained why it believed that holding a ballot would not be in the interests of good industrial relations.
26) In a letter dated 12 March 2024 the Employer said that it had considered the tests set out in paragraph 36 of the Schedule. Further, that it had noted the number of union members in the bargaining unit, and the Union’s petition. The Employer said that pursuant to paragraph 22(3) the CAC was empowered to hold a secret ballot, regardless of the fact that the majority of workers are members in the union, if any of the following circumstances applied; Such a ballot is in the interest of good industrial relations, and that union membership did not automatically equate to a mandate of such members for the union to conduct collective bargaining on their behalf. The Union said that on both grounds it considered that a ballot should be held. The Employer further explained why it believed that a ballot was imperative to good industrial relations.
7. Considerations
27) 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.
28) 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 issue for the Panel to decide is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.
8. Paragraph 36(1)(a)
29) 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 19 - 21 above) showed that 75.68% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 20 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached 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.
9. Paragraph 36(1)(b)
30) 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 in paragraph 29 above the level of membership of the Unions is 75.68%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition. In this case the Panel also notes that the support check conducted by the Case Manager showed that 83.78% of workers in the proposed bargaining unit (31 out of 37 workers) had signed a petition in favour of recognition (see paragraphs 22 - 23 above). Of those who had signed the petition 28 were Union members (75.68% of the proposed bargaining unit) and 3 were non-members (8.11% of the proposed bargaining unit).
31) On the basis of the evidence before it the Panel has decided, on the balance of probabilities, 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.
10. Concluding observation
32) The Panel notes the parties’ submissions as to whether a ballot should be held in this case. These submissions are not relevant at this stage of the application. Should they be relevant at a later stage, the Union will be invited to comment, and the Employer will be invited to make submissions that one or more of the qualifying conditions set out in paragraph 22(4) of the Schedule is fulfilled.
11. Decision
33) For the reasons given in paragraphs 28 - 32 above the Panel’s decision is that the application is accepted by the CAC.
Panel
Mrs Lisa Gettins, Panel Chair
Mr Martin Kirke
Ms Claire Sullivan
22 March 2024