Decision

Validity Decision

Updated 19 September 2025

Applies to England, Scotland and Wales

Case Number: TUR1/1468(2025)

19 September 2025

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

AGREEMENT OF THE BARGAINING UNIT

The Parties:

CWU

and

Apple Retail UK Ltd

1. Introduction

1)         CWU (the Union) submitted an application to the CAC on 15 May 2025 that it should be recognised for collective bargaining by Apple Retail UK Ltd (the Employer) for a bargaining unit comprising “All permanent staff, excluding Managers -This is taken to mean all permanent staff below manager grades. This includes all permanent staff from the “Specialist” position up to and including “Lead” and “Lead Genius”, but does not include Manager, Senior Manager, Store Leader, Market Leader. As FWE (Flexible working employees) staff are employed on a temporary basis they are not included. Acting or Interim managers are considered to be Managers and are not included.” based at Apple Grand Arcade, Grand Arcade Shopping Centre, Cambridge, CB2 3AX. The CAC gave both parties notice of receipt of the application on 15 May 2025.  The Employer submitted a response to the CAC dated 21 May 2025 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 Jonathan Gray, Panel Chair, and, as Members, Mr Robert Light and Ms Claire Sullivan.  The Case Manager appointed to support the Panel was Kaniza Bibi.

3)         By a decision dated 6 June 2025 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. As no agreement was reached, the parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit. A hearing to determine the bargaining unit was held on 8 August 2025. The Panel determined that the appropriate bargaining unit was ‘All grades 1 to 5, (including permanent and flexible workers) excluding managers, based at Apple Grand Arcade, Grand Arcade Shopping Centre, Cambridge, CB2 3AX’.  This bargaining unit differed from that originally proposed by the Union in its application by the inclusion of flexible workers.

2. Issues

4)         As the bargaining unit determined by the parties differed from that proposed by the Union, paragraph 20 of Schedule A1 to the Act (the Schedule) requires the Panel to decide whether the Union’s application is valid within the terms of paragraphs 43 to 50 the Schedule.  The matters that the Panel must consider are: -

• is there an existing recognition agreement covering any of the workers within the new bargaining unit? (paragraph 44)
• is there 10% union membership within the new bargaining unit? (paragraph 45(a))
• are the majority of the workers in the new bargaining unit likely to favour recognition? (paragraph 45(b))
• is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? (paragraph 46)
• has there been a previous application in respect of the new bargaining unit? (paragraphs 47 to 49)

5)         In a letter dated 15 August 2025 the Panel invited the parties to make submissions on these matters for consideration by the Panel.

3. Views of the Union

6)         In an email dated 19 August 2025 the Union answered the questions as follows:

• Is there an existing recognition agreement covering any of the workers within the new bargaining unit? No.
• Is there 10% union membership within the new bargaining unit? Yes.
• Are the majority of the workers in the new bargaining unit likely to favour recognition? Yes.  We have had more members join since the application despite captive audience briefings against the union by management
• Is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? No
• Has there been a previous application in respect of the new bargaining unit? No

4. Views of the Employer

7)         In a letter dated 21 August 2025 the Employer answered the questions as follows:

• Is there an existing recognition agreement covering any of the workers within the new bargaining unit? There is no existing recognition agreement covering any of the workers within the new bargaining unit.
• Is there 10% union membership within the new bargaining unit? We acknowledge that the membership check conducted by the CAC on 28 May 2025 confirmed a membership level of 50% in the Union’s proposed bargaining unit, and that there is a substantial degree of commonality between the Union’s proposed bargaining unit and the new bargaining unit. However, approximately 2.5 months have passed since the CAC’s previous membership check, during which time there has been staff turnover within the new bargaining unit and a number of workers have indicated that they have resigned from membership of the Union. In addition, the new bargaining unit is larger than the Union’s proposed bargaining unit – it currently contains 97 employees, compared to the 78 employees in the Union’s proposed bargaining unit at the time of the previous membership check. Nevertheless, noting the results of the previous membership check, we acknowledge that it is likely that the Union has at least 10% membership within the new bargaining unit.
• Are the majority of the workers in the new bargaining unit likely to favour recognition? All that said, the Union has provided insufficient evidence to indicate that a majority of workers in the new bargaining unit are likely to support recognition. To date, the only meaningful evidence presented relevant to this test is the membership check conducted by the CAC on 28 May 2025 in respect of the Union’s proposed bargaining unit. [However, that membership check indicated that 39 workers in the Union’s proposed bargaining unit were union members. Even on the assumption that all 39 of those persons continue to be both members of the Union and part of the new bargaining unit (in support of which the Union has provided no evidence), that would not amount a majority of the new bargaining unit]. In the absence of any further evidence from the Union, we respectfully submit that, in isolation, the previous membership check is insufficient evidence to demonstrate that a majority of workers in the new bargaining unit are likely to support recognition. For the reasons noted in our Response to the Union’s application dated 16 May 2025, we respectfully request an opportunity to provide further information before the CAC might use membership levels of the Union as an indicator of support for its recognition. If the Union seeks to introduce new evidence for the Panel to make its decision relating to this test, we would wish to be given the opportunity to comment on it in detail.
• Is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? There is no competing application from another union in respect of a proposed bargaining unit which covers any workers in the new bargaining unit.
• Has there been a previous application in respect of the new bargaining unit? There has been no previous application in respect of the new bargaining unit, whether in the previous 3 years or at all.

8)         Also, in its letter dated the 21 August 2025, the Employer stated that the appropriate bargaining unit was defined as including “All grades 1 to 5…” but the Employer did not refer to “grades 1 to 5” within its internal job grading structure, nor “flexible workers”. The Employer clarified that the correct job grades for these purposes were grades S1 to S5, and the temporary workers are known as “flexible workforce employees”. The Employer respectfully requested that the CAC corrected the definition of the appropriate bargaining unit in the bargaining unit decision to “All grades S1 to S5, (including permanent and flexible workforce employees) excluding managers, based at Apple Grand Arcade, Grand Arcade Shopping Centre, Cambridge, CB2 3AX”.

9)         The Panel, in considering this matter, has taken into account the representations made by the Employer concerning the description of the bargaining unit. The Panel is satisfied that the terminology used was clearly understood by all parties. Specifically, there is no assertion that Apple employs both a Grade 1 and a Grade S1 classification which might otherwise have introduced ambiguity.  Accordingly, the Panel finds no basis for concluding that the description of the bargaining unit lacked clarity.

5. The membership and support check

10)       To assist in the determination of two of the validity tests specified in the Schedule, namely, whether 10% of the workers in the determined bargaining unit are members of the union (paragraph 45(a)) and whether a majority of the workers in the determined bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 45(b)), the Panel proposed an independent check of the level of union membership and support for recognition within the determined bargaining unit. The Union provided a list of its members in the determined bargaining unit, and the Employer provided a list of workers in the determined bargaining unit; both sets of information were received by the CAC on 1 September 2025. 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 from the Case Manager to both parties dated 26 August 2025.  The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

11)       The list supplied by the Employer indicated that there were 102 workers in the determined bargaining unit. The list of members supplied by the Union contained 39 names. According to the Case Manager’s report, the number of union members in the determined bargaining unit was 39, a membership level of 38.24%.

12)       A report of the result of the membership check was circulated to the Panel and the parties on 1 September 2025 and the parties were invited to comment on the result.

6. Unions comments on the membership check

13)       In an email dated 1 September 2025 the Union noted that, as there were no Flexible Workers employed included in the bargaining unit when its application was lodged, the original check did not, and could not, have included them. However, the Union’s main concern was that the Employer had significantly inflated the bargaining unit, as it had predicted, in order to attempt to dilute union density. This was a concern the Union had shared with the Panel and had proven to be valid in the figures it had provided for the membership check. The increase was also significantly higher than that signaled by the Employer to the CAC Panel.

14)       The Union would like the Panel to consider paragraph 9 of the Panel’s Bargaining Unit Decision. This stated that, during the course of the hearing, the Employer gave a clear and unequivocal assurance that it had not, and would not, in the future, take any deliberate steps to dilute the composition of the workforce in a manner that could affect the integrity of the bargaining unit. The Union pointed out specifically, the Employer confirmed that it had not engaged in the recruitment of additional staff, including temporary or flexible workers, for the purpose of altering the demographic or numerical balance of the bargaining unit. The Union stated that the Employer had further assured the Panel that it recognised the importance of maintaining a stable and representative workforce during the recognition process and committed to refraining from any actions that could be perceived as undermining or manipulating the bargaining unit for strategic advantage.

15)       The Union said that at the time of the original membership check, there were 78 employees in the bargaining unit and now the unit contained 102 employees. The Union stated that the Employer had evidently engaged in the recruitment of additional staff in order to alter the numerical balance of the bargaining unit, and this in itself could be perceived as undermining or manipulating the bargaining unit for strategic advantage.

16)       The Union said its members had remained steadfast in the face of closed briefings against the Union at the store, and their number had remained the same (39), and that despite Apple’s unevidenced and incorrect assertions that this number had changed (in their reply to the request for another membership check) the number remained the same and was evidence of the members resolve to achieve recognition.

17)       Finally, the Union formally requested that the Panel advance this application to a ballot, allowing the entire bargaining unit with the opportunity to decide whether they wish to be represented by the Union for the purposes of collective bargaining.

7. Employers comments on the membership check

18)       In an email dated 4 September 2025 the Employer acknowledged that the report indicated that members of the union should constitute at least 10 per cent of the workers in the bargaining unit determined by the CAC. The Employer further stated that the report did not suggest that a majority of the workers in the bargaining unit were likely to support recognition. The Employer stressed that in particular the report was unambiguous that over 60% of the members of the bargaining unit had not chosen to be members of the Union. Also, the Employer pointed out that the report indicated that the CAC must infer, on the basis of no evidence of any kind, that at least 13 employees who had not chosen to be members of the union, were likely to support recognition.

19)       The Employer said this was unlike the position in the Panel’s decision dated 6 June 2025 in respect of the Union’s originally proposed bargaining unit, in which it accepted that a majority would be likely to support recognition on the basis that “at least one non-member may support recognition of the Union”.  The Employer said, for completeness, that the CAC was being asked to make an inference on the basis of no evidence as the Union had not submitted any evidence that the remaining non-union members (over 61%) would be likely to favour recognition of the union.

20)       The Employer confirmed that the Union’s unspecific comment that “captive audience briefings” were held was made without any clarification or supporting evidence and was, in any event, denied. It was also confirmed that previous decisions of the CAC indicated that, in materially identical circumstances, it was appropriate for Panels to conclude that it was not the case that a majority of the workers in the bargaining unit were likely to support recognition. The Employer gave an example in UNISON & BAWSO (2) TUR1/1108(2019), where the CAC decided that to support its position the Union relied on its level of membership, which stood at 39.13%. The Employer said that prior to the membership and support check the Union did not provide any further evidence of likely support for recognition, such as a petition. It also did not provide any evidence to support its statement in the application form that 10 non-members had indicated support for recognition.

21)       The Employer stated that although Union membership was relatively high, that without a petition or other evidence it did not consider that there was sufficient evidence to support the contention that support was likely to be substantially greater than the membership figure suggested. It also did not consider that support would grow so significantly by operation of the “bandwagon effect”, meaning the increasing support that often occurred during the statutory recognition process. The Employer said that we can at this stage, determine that it was likely that more than 50% would support recognition, were a ballot held.

22)       The Employer said that in deciding whether to accept an application it considered that the Panel should focus on the evidence provided prior to the membership and support check; rather than allowing the parties further opportunities after the report to bolster their evidence. The Employer continued by saying that the parties had the opportunity to provide all relevant evidence before the membership and support check was carried out and allowing them to add to that evidence could result in lengthy delays as fairness would require that the other party had the opportunity to comment and potentially provide evidence in response. The Employer stated that alternatively, if it was appropriate to take into account the evidence provided by the Union after the check was conducted it would not alter its conclusion.

23)       The Employer said the Union stated that three members had joined the Union following a recruitment drive after the result of the check had been issued to the parties and this would take the current level of membership to 42%. However, the Employer confirmed that the Panel was not satisfied that even taking account of the “bandwagon effect”, that this further evidence was sufficient to conclude that it was likely that the majority would support recognition, given the lack of any other evidence such as a petition.

24)       The Employer advised that therefore, the Panel had concluded that the evidence before it was not sufficient to support a decision 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 proposed bargaining unit as required by paragraph 36(1)(b)”.

25)       The Employer reported that in URTU & Facilities by ADF PLC (1) TUR1/1434(2024), the CAC decided that: “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.”

26)       Finally, the Employer submitted that for the reasons outlined above, it was accordingly its position that it was not likely that the majority of the bargaining unit would support recognition. Therefore, it would ask the Panel to conclude that the application was therefore invalid under paragraph 45(b) and take no further steps in respect of it.

8. Considerations

27)       The Panel must decide whether the Union’s application is valid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision the Panel has considered the parties’ submissions and the other evidence before it. The following matters are not disputed:

• there is no existing recognition agreement covering any of the workers within the determined bargaining unit;
• there is no competing application from another union; and
• there has been no previous application in respect of the determined bargaining unit.

28)       The remaining issues for the Panel to decide are whether the validity criteria contained in paragraphs 45(a) and (b) are met.

Paragraph 45(a)

29)       Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the Union constitute at least 10% of the workers in the determined bargaining unit.  The membership check conducted by the Case Manager outlined above showed that 38.24% of the workers in the determined bargaining unit were members of the Union. As previously stated, the Panel is satisfied that the 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 bargaining unit as required by paragraph 45(a) of the Schedule.

Paragraph 45(b)

30)       Under paragraph 45(b) of the Schedule, an application is invalid unless the Panel decides that a majority of the workers constituting the determined bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit.

31)       In assessing whether it is likely that a majority of the workers in the determined bargaining unit would be likely to support recognition of the Union, the Panel believes that, in the absence of any evidence to the contrary, trade union membership can be taken as a legitimate indicator of likely support for recognition for collective bargaining purposes.  

32)       As stated above, the Employer has not adduced any evidence to show that any members of the Union would be unlikely to favour recognition, nor has the Panel received such evidence from any other source.  Neither has the Panel received any evidence from any source as to the views of the majority of the workers in the determined bargaining unit that form the pool of non-members and that account for nearly 62% of the total number of workers in the bargaining unit.  Therefore, it is left to our judgement to decide, in the absence of such evidence, whether the light touch test as to whether it is likely that a majority of workers would support recognition is satisfied (emphasis added).  Whilst this is a hypothetical question rather than a strict arithmetical one if we were to look at this numerically, as pointed out by the Employer, it would take at least 13 non-members out of the pool of 63 non-members to favour recognition of the Union for the Union to enjoy majority support.  Is it beyond reason to believe that it is probable that at least 13 workers would favour recognition and tip the balance in favour of the Union? Having given much thought to this question, we believe that it is not.

33)       Accordingly, the Panel has decided that, on the balance and in the absence of any evidence to the contrary, a majority of the workers in the determined 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 45(b) of the Schedule.

9. Decision

34)       The decision of the Panel is that the application is valid for the purposes of paragraph 20 of the Schedule and the CAC must proceed with the application.

Panel

Mr Jonathan Gray, Panel Chair

Mr Robert Light

Ms Claire Sullivan

19 September 2025