Decision

Acceptance Decision

Updated 1 October 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1206/2021

12 February 2021

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:

GMB

and

Fablink Tank Systems Ltd

1. Introduction

1) The GMB (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 29 January 2021 that it should be recognised for collective bargaining by Fablink Tank Systems Ltd (the Employer) for a bargaining unit comprising “All hourly paid employees up to and including Team Leaders but excluding Supervisors, Office Staff, Managers and Personal Contract Holders”. The application was received by the CAC on 29 January 2021 and the CAC gave both parties notice of receipt of the application on the same day. The Employer submitted a response to the CAC dated 2 February 2021 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 Professor Kenny Miller, Panel Chair, and, as Members, Mr Sean McIlveen and Ms Virginia Branney. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 12 February 2021. The acceptance period was extended to 19 February 2021 to allow time for the Panel to consider all the evidence before arriving 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. The Union’s application

5) The Union stated that its request for recognition was sent to the Employer on 22 January 2021. The Union stated that a response was received from the Employer on 25 January 2021 advising that they would not voluntarily recognise the Union as they had a Works Council which they believed was their way forward for staff negotiations. Copies of both documents were attached to the Union’s application.

6) The Union stated that they asked ACAS Newcastle to contact the Company but the offer of voluntary discussions with ACAS was declined.

7) The Union stated that it had not made a previous application under the Schedule for workers in the proposed bargaining unit or a similar unit.

8) The Union stated that the total number of workers employed by the Employer was approximately 150 and approximately 110 workers were in the proposed bargaining unit, of whom 48 were members of the Union. The Union stated that the Employer did not agree with the number of workers in the proposed bargaining unit. When asked for evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining the Union stated that they had approximately 50% of the bargaining unit in membership of the GMB and also petitions from approximately 26 (approx. 25%) of non-members of the GMB. The Union stated that members had started to join the Union in late 2019 and membership had remained largely static throughout the pandemic period, even when furlough applied and through a recent redundancy exercise.

9) The Union stated that the reason for selecting the proposed bargaining unit was because the workers were a group of employees who had indicated that they wished to be members of the Union and be recognised.

10) The Union stated that the bargaining unit had not been agreed with the Employer. The Union confirmed that it held a current certificate of independence. The Union stated that it had copied the application, and supporting documents, to the Employer on 29 January 2021.

4. The Employer’s response to the Union’s application

11) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 22 January 2021. The Employer stated that it responded by email stating that their position was the same and it was last year and that they believed their Works Council was working well and was the way forward for the company and therefore would not be looking to recognise the Union at that stage. The Employer confirmed that it had received a copy of the application from the Union on 29 January 2021.

12) 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 and that it did not agree the proposed bargaining unit. The Employer stated that it believed including Team Leaders in the bargaining unit would cause a conflict of interest as the Team Leaders were part of the management team and therefore felt they should be removed.

13) The Employer confirmed that following receipt of the Union’s request it did not propose that ACAS be requested to assist.

14) The Employer stated that it currently employed about 168 workers. The Employer stated that it did not agree the number of workers in the proposed bargaining unit and that if you excluded the Team Leaders the number would be 114 or 126 with Team Leaders included.

15) The Employer stated that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

16) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated that it was unaware of how many workers were members as they did not have any employees paying union fees through the payroll. 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 that they believed that the majority of the employees highlighted in the potential bargaining unit were happy with using the current methods of communication which was regular management meetings with the Works Council. The Employer stated that this was highlighted recently with the redundancy process that was carried out. The Employer stated that the redundancy process went smoothly and that all communications were done individually where required and collectively through the Works Council.

17) The Employer, when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, answered that it was not aware of any other application.

5. The Membership Check

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 name and date of birth) and a copy of their petition. It was explicitly agreed with both parties that to preserve confidentiality the respective lists and petition would not be copied to the other party. These arrangements were confirmed in a letter dated 3 February 2021 from the Case Manager to both parties. The information from the Employer was received by the CAC on 4 February 2021 and from the Union on 5 February 2021. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

19) The list supplied by the Employer indicated that there were 126 workers in the proposed bargaining unit. The list of members supplied by the Union contained 50 names, but three of these did not appear on the Employer’s list. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 47, a membership level of 37.30%.

20) The Union’s petition consisting of 27 names/signatories was set out as follows:

GMB @ WORK

IN

FABLINK TANK SYSTEMS LTD

Evenwood, Bishop Auckland, County Durham, DH14 9NJ

I, the undersigned, support GMB in recognition and collective bargaining

Signature: __________

Print Name: __________

Workplace: __________

Please note this section can be completed by both members and non-members.

Surname: __________

Forename: __________

Address: ____________________

Post Code: __________

Job Title: __________

Are you an existing union member? YES/NO

If yes please indicate which:

GMB OTHER __________

GMB Memb No. (if known): __________

I consent to GMB using this data for the

Purpose of this petition

This information will NOT be shown to your employer

Please return this slip to:

…………………………………………………………….

21) The comparison of the Union’s petition, which was only signed by non-members, with the Employer’s list of workers revealed that a total of 21 workers (6 not appearing on the Employer’s list) had indicated that they wanted the Union to be recognised which corresponded to 16.67% of the bargaining unit.

22) A report of the result of the membership and support check was circulated to the Panel and the parties on 5 February 2021 and the parties were invited to comment on the result.

6. The parties’ comments on the result of the membership check

23) The Union stated in an email dated 9 February 2021 that their membership levels had clearly passed the 10% threshold. The Union contended that although they were yet to formally agree the bargaining unit, they believed that, including the numbers showing support that they had received from other employees, who were not members of the GMB, added with their membership levels they were confident that the employees of Fablink Tank Systems would vote in support of Trade Union Recognition for their site.

24) The Union stated that they would therefore claim they satisfied the conditions contained within paragraph 36 of the schedule and that their application be accepted.

25) No comment on the result of the membership and support check was received from the Employer.

7. Considerations

26) 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.

27) 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.

28) Next, the Panel has to determine whether the Union’s application to the CAC was made in accordance with the statutory timescale which is set out in paragraph 10(6) of the Schedule which states that:

The first period is the period of 10 working days starting with the day after that on which the employer receives the request for recognition.

Paragraph 11 then reads:

(1) This paragraph applies if-

(a) before the end of the first period the employer fails to respond to the request, or

(b) before the end of the first period the employer informs the union (or unions) that the employer does not accept the request (without indicating a willingness to negotiate).

(2) The union (or unions) may apply to the CAC to decide both these questions-

(a) whether the proposed bargaining unit is appropriate;

(b) whether the union has (or unions have) the support of a majority of the workers constituting the appropriate bargaining unit.

In this case the Union’s formal letter requesting recognition, and upon which it relied, was dated 22 January 2021 and, according to the Employer’s response, was received by the Employer on 22 January 2021. The Employer then responded in writing on 25 January 2021 refusing the request without indicating a willingness to negotiate. The first period of 10 days would therefore have commenced on 25 January 2021 and ended 10 working days later on 5 February 2021. The Union’s application was dated 29 January 2021 and received by the CAC on the same date.

29) In our view the fact that the Union’s application to the CAC was made earlier than 10 days from the Employer’s receipt of the Union’s request was immaterial because the Employer had already responded to the request within the first period and had refused the Union’s request without indicating a willingness to negotiate. The Employer’s letter therefore brought the first period to a premature end in accordance with paragraph 11(1)(b), thus enabling the Union to make its application pursuant to paragraph 11(2). Accordingly, the Panel therefore decides that the application was made in accordance with paragraph 11 of the Schedule in that before the end of the first period the Employer refused the request.

30) The Panel is also satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 37 to 42. The remaining issues for the Panel to address are whether the admissibility criterion set out in paragraph 36 of the Schedule are met.

8. Paragraph 36(1)(a)

31) 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.

32) The membership check conducted by the Case Manager (described in paragraphs 18 and 19 above) showed that 37.30% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 18 above, 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 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)

33) 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.

34) The Panel considers that members of the Union would be likely to favour recognition of the Union for collective bargaining (37.30%), as would non-union members who signed the petition (16.67%); giving a total of 53.97%. No such evidence to the contrary was received in this case and on the basis of the evidence before it, the Panel has decided that, 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. Decision

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

Panel

Professor Kenny Miller, Panel Chair

Mr Sean McIlveen

Ms Virginia Branney

12 February 2021