Decision

Acceptance Decision

Updated 11 May 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1313/2023

11 May 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:

GMB

and

Macdonald & Muir Limited

1. Introduction

1) The GMB (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 23 March 2023 that it should be recognised for collective bargaining purposes by Macdonald & Muir Limited (the Employer) for a bargaining unit comprising “Production and Warehouse Workers.” The location of the bargaining unit was given as “The Glenmorangie Distillery, Tain, IV19 1PZ.” The application was received by the CAC on 23 March 2023 and the CAC gave notice of receipt of the application to the parties on 28 March 2023. The Employer submitted a response to the CAC dated 4 April 2023.

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 Alastair Kelly and Ms Stephanie Marston. The Case Manager appointed to support the Panel was Joanne Curtis.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 13 April 2023. The acceptance period was extended to 12 May 2023 to allow the parties to comment on the results of a membership and support check and for the Panel to consider these comments 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. Summary of the Union’s application

5) In its application to the CAC the Union stated that it had sent a request for recognition to the Employer on 12 May 2021. A copy of the request letter was not attached to the application but provided by the Union to the Case Manager on 6 April 2023. The Union stated that the Employer responded on 25 May 2021 disputing the bargaining unit but agreeing to proceed through Acas. The Union said that it met with the Employer to discuss the potential of creating a bargaining unit. The Union stated that the Employer had suggested a bargaining unit that was extensive and included workers of all grades from four different sites rather than the bargaining unit proposed in the request by the Union.

6) The Union said that negotiations were ongoing until February 2022 when it was agreed that a ballot should be conducted by Acas in May 2022. The Union went on to say that having had the opportunity to visit the sites it became apparent that the higher grades and specific job roles included in the Employer’s proposal did not align under collective bargaining. The Union explained that this was because many of the workers had “a direct relationship” in negotiating their own pay, terms and conditions. The Union added that such workers still supported the rights of the larger groups of workers such as warehouse and production associates to ballot. The Union said that prior to the ballot it therefore asked the Employer to re-negotiate the bargaining unit. The negotiations went on until December 2022 when the Employer confirmed it would not re negotiate the bargaining unit, therefore ending the negotiation period.

7) The Union stated that it had not made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit. The Union further stated that, following receipt of the request for recognition, the Employer had proposed that Acas should be requested to assist the parties, and the Union had agreed with this.

8) The Union stated that the total number of workers employed by the Employer was 250, and that there were 22 workers in the proposed bargaining unit. The Union said that 15 of the workers in the proposed bargaining unit were Union members. When asked 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 “To follow.”

9) The Union stated that the reason for selecting the proposed bargaining unit was that “GMB have historically had a group of members at this workplace and within these departments.” The Union said that the bargaining unit had not been agreed with the Employer. The Union said that it was not aware of any existing recognition agreement which covered any workers in the proposed bargaining unit.

10) The Union confirmed that it held a current certificate of independence. It stated that it had copied its application and supporting documents to the Employer on 8 March 2023.^{[footnote 1]}

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 had received the Union’s request for recognition on 21 May 2021 and a second request on 4 July 2022 after the Union withdrew from a voluntary Acas ballot process. The Employer said that it responded in writing on 25 May 2021 and by e-mail on 5 December 2022. The Employer attached a copy of the letter and the e mail.

12) The Employer said that it had received a copy of the application form from the Union on 23 March 2023. When asked if the Employer had agreed the bargaining unit before receiving a copy of the application from the Union the Employer said that the Union and the Employer had agreed a bargaining unit following discussions involving Acas, which included nearly 200 employees across all of the Employer’s sites. The Employer said that both parties had agreed to hold a voluntary ballot which Acas was going to administer. The Employer said that the bargaining unit included a spectrum of roles in office, logistics and production roles. The Employer added that the Union withdrew from the ballot process one week before the ballot was due to take place.

13) The Employer said that it did not agree the proposed bargaining unit, for the following reasons:

• “The bargaining unit proposal is focused purely on our Glenmorangie Distillery site for production and warehouse workers. The request for recognition is based on where the GMB have paying union members and this is not a criterion for a bargaining unit and does not represent how our company is structured.

• Having certain job roles based on union membership status and/or location being represented by a union with the rest of our employees having direct conversations with us in relation to pay, hours and holiday would fragment our management practices and culture.

• All of our employees enjoy the same access to benefits, company bonus, Moet Hennessy bonus, holiday entitlement and compensation review process.

• We pay for performance for all employees and moving to union negotiated pay changes for some of our employees would result in treating employees differently.

• The decision was jointly made by the GMB and Macdonald & Muir Limited 13 years ago to derecognise the GMB.

• We have an employee forum in place that we are strengthening.”

14) The Employer stated that, following receipt of the Union’s request, it had proposed that Acas be requested to assist. The Employer said that it had engaged with Acas on 27 May 2021 and had numerous e-mails and calls with Acas, and the Union. The Employer added that Acas facilitated the audit for the ballot and that a date was set for the ballot between 23 May and 10 June 2022. 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 did not agree with the number of workers in the bargaining unit as defined in the Union’s application. The Employer stated, “Our headcount for production and warehousing at Tain is 33.” The Employer said that it disagreed with the Union’s estimate of membership in the proposed bargaining unit stating: “We have 5 paying union members at our Glenmorangie Distillery in Tain on our payroll.”

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 “We have informed our employees of the GMB’s request for union recognition. We have already heard from a number of employees telling us that they do not wish to be represented by a union.” The Employer went on to state that the Union in the application made reference to “evidence to follow” but the Employer had not received any additional evidence as part of the application or in the supporting information.

17) The Employer stated that it was not aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, and it had not received any other applications in respect of workers in the proposed bargaining unit.

5. The Union’s comments on the Employer’s response

18) The Union stated that the bargaining unit proposed was based on the similarity in contractual terms and conditions of those working in production and engineering. It said that those conditions were unique to that group of workers and differed from those office based, marketing and visitor centre workers. The Union went on to say that those within the bargaining unit identified “had a collective approach to pay increases, that is the company agree a % rise and individual performance dictates how much of that % each individual collects. With the group identified, each individual has the opportunity to individually negotiate or attract a greater % per annum dependent on their own individual performance.” The Union concluded by saying that the bargaining unit identified was similar to every other whisky company that it had an agreement in place with, and that no other existing agreement covered office working, marketing and visitor centre roles.

6. The membership and support check

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 agreed 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 and support within the bargaining unit. The parties agreed 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 the Union would supply to the Case Manager a list of its paid-up members within that unit including their full names, dates of birth and job titles (where available), and a copy of the e 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 19 April 2023 from the Case Manager to both parties.

20) The information requested was received by the CAC from the Union on 24 April 2023 and from the Employer on 20 April 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 indicated that there were 33 workers in the Union’s proposed bargaining unit.

22) The list of members supplied by the Union contained 16 names. According to the Case Manager’s report the number of members of the Union in the proposed bargaining unit was 15, a membership level of 45.45%.

23) The Union provided an e petition which contained 54 names, 18 of which were in the proposed bargaining unit, a figure that represented 54.55% of the proposed bargaining unit. Of those 18 names, 10 were members of the Union (30.30% of the proposed bargaining unit) and 8 were non-members (24.24% of the proposed bargaining unit). The e petition was submitted on an A4 spreadsheet. which consisted of 7 columns headed, “ID”, “Start time”, “Completion time”, “Email”, “Full Name”, “Workplace Location” and “Job Title.” The earliest entry date was 5 June 2022 and the latest entry date 3 October 2022. The e-petition was carried out using Microsoft forms. A copy of the form was provided. The form stated as follows:

GLENMORANGIE RECOGNITION PETITION

Please complete the following survey pledging your support for GMB to become the recognised Trade Union for Production workers in Glenmorangie, for collective bargaining purposes.

This information will not be shared with your employer but with the application for statutory recognition through the Central Arbitration Committee (CAC)

*Required

1) FULL NAME?

2) WORKPLACE LOCATION?

• Livingston

• Tain

• Ardbeg

3) JOB TITLE?

The 54 entries did not only consist of those workers in the proposed bargaining unit located at The Glenmorangie Distillery, Tain, but also those working at Livingston and Ardbeg.

24) A report of the result of the membership and support check was circulated to the Panel and the parties on 25 April 2023 and the parties were invited to comment on the results by close of business on 4 May 2023.

7. Summary of the Employer’s comments following the membership check

25) In a letter to the CAC dated 3 May 2023 the Employer stated that whilst the report suggested that the Union met the thresholds for both tests in respect of the Tain site, the CAC should refrain from assuming that all Union members wished to be collectively represented by the Union. The Employer said that the information provided by the Union showed that only 10 out of the 15 Union members signed the petition supporting Union recognition. The Employer noted that from the Union’s own evidence the e-petition was open from June – October 2022 and Union members had every opportunity to sign the petition during this 5-month window, with reminders both orally and in writing from the Union or other members on site during this period. The Employer went on to say that five (5) members had consciously chosen not to sign the e-petition declaring support for recognition, which represented 33% of the Union membership at that site. Further the Employer said that the e-petition did not provide evidence as to why workers signed the e-petition, and the fact that eight (8) none members signed the e-petition did not indicate that the majority want recognition.

26) The Employer stated that under the current system of employee engagement at Tain, all employees (Union and Non-Union members) had an input on discussions with the Employer over pay, benefits and other terms and conditions. The Employer said that the current system gave workers an input which recognition would not and could not do and would lead to a split workforce, which went against the values of the Company. The Employer noted that the Union’s petition covered all three locations and gave the impression that the Union was seeking to represent a wider, more inclusive group of workers at all sites, which mirrored the bargaining unit agreed for the Acas facilitated voluntary ballot. The Employer stated that this created an incorrect impression, and could have led to the numbers signing the petition at Tain if those signing believed that the bargaining unit would not be restricted to Tain only. The Employer emphasised that the Union had applied for two separate bargaining units only, and disregarded the third location (Ardbeg).

27) The Employer went on to say “we would also observe that the e-petition the GMB relies on as evidence to support union recognition, has only been provided in a spreadsheet format to the CAC. This is inappropriate and the GMB must provide the CAC with the actual screenshots of the epetition responses they received to ensure the data can be accurately verified. We reserve the right to comment further on this evidence once the GMB have produced the actual data and the CAC has confirmed its accuracy. Please also note we have not seen and were unaware of the existence of the e-petition until your letter the GMB did not disclose they had taken this approach until now; the lack of transparency is concerning especially as they circulated the e-petition to employees in June 2022 after withdrawing one week before the agreed ballot we had scheduled from 23 May – 10 June 2022. They gave no indication they were petitioning employees this way than via the agreed ballot process which had been negotiated via ACAS.”

28) The Employer said that it had agreed via Acas a proposed bargaining unit with the Union. The ballot was due to take place in May 2022 based on the agreed bargaining unit. The Employer said that the Union withdrew unilaterally and at short notice from the ballot process one week prior to it taking place. The Employer said that following the withdrawal of the agreed ballot, the Union progressed with an e-petition of the workers to ascertain interest in collective union representation at three sites, Islay, Alba and Tain. The Employer said that it was not aware of this e-petition and had entered into the process with the support of Acas to establish if the majority of the workers wished to be represented by the Union and that was the purpose of the ballot. The Employer stated that it had always maintained the view that it was not adverse to working with a Union provided it did not fragment the culture of the workplace and the Employer said it had been clear that management practices were the same for all workers. The Employer continued by saying that it would like the CAC to consider whether the right approach had been taken to ascertain whether the majority of workers wished to be represented by the Union. The Employer said that the reason the Union had given for withdrawing from the ballot was that the bargaining unit did not reflect industry standards and that the Union had no members in some job categories at one of the locations.

8. Summary of the Union’s comments following the membership check

29) In a letter to the CAC dated 2 May 2023 received by the CAC on 3 May 2023 the Union said it had demonstrated that the Union had over 10% density in the membership check. The Union said that it had also demonstrated support of over 50% of the proposed bargaining unit.

9. Considerations

30) 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.

31) In order to determine whether the application was made in accordance with paragraph 12 the Panel must decide whether the bargaining unit proposed by the Union in this application is the same bargaining unit that it proposed in its formal request to the Employer for recognition.

32) Paragraph 1 of the Schedule sets out the first step to be taken by a trade union seeking statutory recognition. It provides:

1) A trade union (or trade unions) seeking recognition to be entitled to conduct collective bargaining on behalf of a group or groups of workers may make a request in accordance with this Part of this Schedule.

33) Paragraph 2 of the Schedule then defines the proposed bargaining unit:

2) - (1) This paragraph applies for the purposes of this Part of this Schedule.

(2) References to the bargaining unit are to the group of workers concerned (or the groups taken together).

(3) References to the proposed bargaining unit are to the bargaining unit proposed in the request for recognition.

34) Paragraph 2 makes clear that the proposed bargaining unit is that which is set out in the Union’s formal request for recognition. In this case, and in case reference TUR/1312/2023, on 12 May 2021, the Union made a single formal request for recognition to the Employer in the following terms:

I am writing to you regarding GMB request for recognition at Glenmorangie. The group of workers (bargaining unit) we are requesting recognition for is Production and Engineering workers based at your bottling facility at Alba Campus and Production and Warehouse workers based at Glenmorangie Distillery.

This request is made under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992.

If you have any questions, please get in touch. (Emphasis added)

The request refers to a bargaining unit in the singular and so it is evident to the Panel that the request was made in respect of a single bargaining unit comprising workers based at two sites namely the Alba Campus and Glenmorangie Distillery.

35) However, the Union then went on to lodge two applications to the CAC in which it separated the bargaining unit in its formal request into two parts. In this application it sought recognition for a bargaining unit that comprised “Production & Warehouse Workers” based at the Glenmorangie Distillery, and in application referenced TUR1/1312/2023 it sought recognition for a bargaining unit comprising “Production & Engineering Workers” based on the Alba Campus in Livingston. In both applications the Union stated that the Employer did not agree the bargaining unit. The Union did state in both applications that the Employer, upon receiving the request for recognition, had agreed to enter into negotiations with the assistance of Acas. The parties then went on to hold discussions which included negotiations over the composition of the appropriate bargaining unit but according to the Union, whatever bargaining unit was agreed subsequently unravelled with the Union unsuccessfully seeking to renegotiate its terms.

36) The question is whether an application can be treated as made in accordance with paragraph 12 if a union makes two co-terminus applications based on the same formal request for recognition in which it identified only the one proposed bargaining unit.

37) Paragraph 12 of the Schedule is the relevant paragraph which applies in circumstances, such as here, where the parties entered into negotiations as a result of a formal request having been made, but no agreement is concluded. It provides:

12) - (1) Sub-paragraph (2) applies if-

(a) the employer informs the union (or unions) under paragraph 10(2), and

(b) no agreement is made before the end of the second period.

(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.

(3) Sub-paragraph (4) applies if-

(a) the employer informs the union (or unions) under paragraph 10(2), and

(b) before the end of the second period the parties agree a bargaining unit but not that the union is (or unions are) to be recognised as entitled to conduct collective bargaining on behalf of the unit.

(4) The union (or unions) may apply to the CAC to decide the question whether the union has (or unions have) the support of a majority of the workers constituting the bargaining unit.

…

38) Where negotiations do not result in an agreement as to the appropriate bargaining unit or that the union is recognised, a union may apply to the CAC under paragraph 12(2). It is then clear from the wording of paragraph 12(2) that the questions the CAC must address are firstly whether the proposed bargaining unit is appropriate and secondly, whether the Union has the support of a majority of the workers constituting the appropriate bargaining unit.

39) It is plain to the Panel that on reading this paragraph, given that no agreement was reached between the Union and Employer as to the appropriate bargaining unit, the Union must apply to the CAC in respect of the proposed bargaining unit. Paragraph 2(3) of the Schedule as set out above, states that this is the bargaining unit proposed in the request for recognition. This is a single bargaining unit as stated by the Union in its email of 12 May 2021 and one which would comprise “Production and Engineering workers based at (the Employer’s) bottling facility at Alba Campus and Production and Warehouse workers based at Glenmorangie Distillery.”

10. Decision

40) That the Union has not brought its application in respect of its proposed bargaining unit leads the Panel to conclude that the application has not been made in accordance with paragraph 12. It is for this reason that the application is not accepted by the CAC.

41) Having reached the decision that the application had not been made in accordance with paragraph 12 the Panel did not consider the other admissibility tests set out in paragraph 4 above.

11. Observations

42) Having arrived at the above conclusion the Union must now decide which bargaining unit it wishes to pursue. If it wishes to seek recognition for each site individually, then it must make a fresh formal request to the Employer for each unit. Alternatively, if the Union wishes to apply for the single proposed unit that it identified in its request, it should do so by way of a solitary application.

Panel

Mr Tariq Sadiq, Panel Chair

Mr Alastair Kelly

Ms Stephanie Marston

11 May 2023

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1. The Union copied its first application to the Employer on 8 March 2023. This application was subsequently withdrawn. A copy of the new application to which this decision pertains was sent to the Employer by way of an attachment to an email dated 23 March 2023. ↩