Decision

Validity Decision

Updated 15 May 2019

Case Number: TUR1/1072/2018

11 February 2019

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 ON THE BARGAINING UNIT

The Parties:

GMB

and

The Net a Porter Group Ltd

1. Introduction

1) GMB (the Union) submitted an application dated 9 October 2018 to the CAC that it should be recognised for collective bargaining purposes by The Net a Porter Group Ltd (the Employer) in respect of a bargaining unit comprising “Distribution Assistants excluding First Line Managers , Shift Managers, Drivers and agency staff.” The location of the bargaining unit was given as “Unit One, Net a Porter, Charlton Distribution Centre, Charlton Gate Business Park, Anchor and Hope Lane, SE7 7RU.” The application was received by the CAC on 10 October 2018 and the CAC gave both parties notice of receipt of the application on 10 October 2018. The Employer submitted a response to the CAC on 17 October 2018 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 Mr James Tayler, Panel Chair, and, as Members, Ms Judy McKnight CBE and Mr Nicholas Caton. The Case Manager appointed to support the Panel was Kate Norgate.

3) By a decision dated 29 November 2018 the Panel accepted the Union’s application. Following this decision the parties then reached agreement on the appropriate bargaining unit. The agreed bargaining unit was described as “The ‘Distribution Department’ at Net A Porter, DC1, Charlton Gate Business Park, Anchor and Hope Lane, Charlton, SE7 7RU, excluding First Line Managers, Shift Managers, Drivers and agency staff. The ‘Distribution Department’ includes the following job titles: Distribution Assistant; Quality Assurer; Helpdesk; Consumables Assistant; RTV Co-ordinator; Seamstress; Stores Coordinator; Senior Materials Coordinator.”

2. Issues

4) As the agreed bargaining unit differed from that proposed by the Union, the Panel is required by paragraph 20 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application is invalid within the terms of paragraphs 43 to 50 the Schedule. In a letter dated 11 January 2019 the Case Manager invited each party to make submissions on this matter for consideration by the Panel.

5) In a letter to the Case Manager dated 18 January 2019 the Employer made the following comments on the validity tests:

a) Is there an existing recognition agreement covering any of the workers within the new bargaining unit. “There is not an existing recognition agreement covering any of the workers within the new bargaining unit”. b) Is there 10% union membership within the new bargaining unit? “We do not know if there is a 10% union membership within the bargaining unit”. c) Are the majority of the workers in the new bargaining unit likely to favour recognition? “We do not know if the majority of workers in the new bargaining unit are likely to favour recognition”.
d) Is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit”? “Currently there is not a competing application from another union where their proposed bargaining unit covers any workers in the new bargaining unit”. e) Has there been a previous application in respect of the new bargaining unit? “There has not been a previous application in respect of the new bargaining unit”.

6) In a letter to the Case Manager dated 17 January 2019 the Union made the following comments on the validity tests:

a) 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”. b) Is there 10% union membership within the new bargaining unit? The Panel has already had the benefit of two very recent checks carried out by the Case Manager on the level of union membership and support for recognition. There is a check dated 20 November 2018 based on the Union’s originally proposed bargaining unit limited to job roles of “Distribution Assistants”. There was also an earlier check dated 9 November 2018 based on the job roles now contained within the agreed bargaining unit (with the exception of one role “Distribution Coordinators as this role no longer exists).

The check dated 9 November 2018 reported that from a bargaining unit of 258 workers there were 43 union members (16.67%). In addition, the report also recorded that 144 workers (55.81%) had signed a petition in support of recognition, of whom 36 were union members. 108 (41.86%) of workers who had signed the petition were non-members.

It is the Union’s understanding that the number of workers in the agreed bargaining unit is in fact 251 as opposed to 258 (with 4 vacancies). In addition union membership has increased by at least 3 to 46; a membership level of 18.3% within the agreed bargaining unit.

c) Are the majority of the workers in the new bargaining unit likely to favour recognition? Considering the Case Manager’s report of 9 November 2018 and a bargaining unit comprising 251 workers, 144 workers (57.37%) of the workers in the bargaining unit have signed a petition in support, of whom (at least) 36 are union members. 108 (43.07%) of workers in the proposed bargaining unit who have signed the petition are non-union members. This is sufficient to satisfy the test in paragraph 45 (b) of Schedule A1

As previously submitted, the Union does not at this stage have to demonstrate that it already enjoys majority support, but only that if the application was to proceed to a statutory ballot that a majority would be likely to favour recognition. The Schedule does not require that a majority of workers in the proposed bargaining unit be already members of GMB, nor that the majority has explicitly expressed support for GMB, and nor that they are guaranteed to do so.

Further, in any pool of workers there are likely to be workers who either do support recognition of the union, or would do so if asked in a secret ballot, but who will be reluctant for various reasons to express support by joining GMB where it is not recognised by the employer or to sign a petition. In addition the “bandwagon effect” is likely to increase support for recognition as a result of union campaigning and the possibility of recognition drawing closer. The Union has not had formal access to the workers, yet membership and activity has increased since the start of the CAC application process.

Based on the above and the recent report, the level of support (57.37%) from union members and non-union members satisfies the test under Paragraph 45 (b).

d) 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, where their proposed bargaining unit covers any workers in the new bargaining unit” e) 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”.

3. Additional comments from the parties

7) In a letter to the Employer dated 22 January 2019, written at the request of the Panel, the Case Manager invited the Employer’s comments on the points made by the Union, specifically with regard to the Union’s proposal to reapply the validity tests without the need for a further membership and support check.

8) In an e-mail dated 24 January 2019 the Employer said that it had noted the Union’s assertion that there are further workers in the agreed bargaining unit, who are now GMB members, and that it had acknowledged the results of the previous membership and support checks carried out by the Case Manager on 9 and 20 November 2018. The Employer stated that through dialogue with its workers, it had recently been informed that some of its workers at DC1 had voluntarily relinquished their GMB membership and were no longer members of the GMB union. The Employer stated that as it does not request that its workers disclose whether they are union members, it was not in a position to be able to comment further about whether the 10% threshold had been met in relation to the agreed bargaining unit, and it would therefore be led by the Panel as to what they considered was appropriate in these circumstances.

9) The Employer stated that it had also noted the Union’s comments on whether a majority of workers in the agreed bargaining unit would support recognition of the Union, however, the Employer wished to repeat all its concerns raised in previous correspondence regarding, amongst other things, the petition that had been circulated by the Union and reliance on that evidence. The Employer considered that any reduction in the number of GMB members in the agreed bargaining unit may affect the likely support levels for recognition. Additionally, a number of workers in the agreed bargaining unit had voluntarily reached out to HR/management and explained that they did not support the GMB’s recognition application. Finally, the Employer stated that as noted above, it would be led by the Panel as to what it considered appropriate in the circumstances.

10) On 28 January 2019 the Employer’s e-mail of 24 January 2019 was copied to the Union and its comments invited, specifically with regard to the Employer’s point that “some of our workers at DC1 have voluntarily relinquished their GMB membership and are no longer members of the GMB union”.

11) By e-mail dated 29 January 2019 the Union stated that its comments in the previous correspondence still applied. It further stated that it had seen an increase in membership as a result of its campaign, not a decrease. The Union stated that it was unclear as to what the Employer was referring to.

4. Considerations

12) Paragraph 43 of the Schedule states that paragraphs 44 to 50 apply if the CAC has to decide whether an application is valid. In reaching its decision the Panel has taken into account the submissions of both parties and all the other evidence before it.

13) The Panel is satisfied that the application is not rendered invalid by any of the provisions in paragraphs 44 and 46 to 50 of the Schedule. The remaining issues for the Panel to decide is whether the application is invalid under paragraph 45. Paragraph 45 provides that the application in question is invalid unless the CAC decides that –

(a) members of the union constitute at least 10 per cent of the workers constituting the bargaining unit decided by the CAC, and (b) a majority of the workers constituting the bargaining unit decided by the CAC would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

14) To assist the determination of these criteria for the purposes of its decision on whether the application should be accepted the Panel proposed an independent check by the Case Manager of the level of union membership within the proposed bargaining unit and of a petition compiled by the Union. The first membership and support check was produced on 9 November 2018. A further membership and support check was produced on 20 November 2018 as it appeared that the initial check included workers who fell outside of the Union’s proposed bargaining unit. A detailed account of this check is given in paragraphs 24-30 of the Acceptance Decision dated 29 November 2018. The check conducted on 9 November 2018 included those workers in the bargaining unit as now defined (as opposed to the more limited group in the check of 20 November 2018). The initial list supplied by the Employer indicated that there were 258 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 56 names. According to the Case Manager’s report dated 9 November 2018, the number of Union members in the proposed bargaining unit was 43, a membership level of 16.67%. The petition supplied by the Union contained 283 names and signatures, of which 144 were in the proposed bargaining unit, a figure that represents 55.81% of the proposed bargaining unit. Of those 144 signatories, 36 were members of the Union (13.95% of the proposed bargaining unit) and 108 were non-members (41.86% of the proposed bargaining unit). Since the list of workers submitted by the Employer for the original membership and support check of 9 November 2018 consisted of the same group of workers as in bargaining unit that now has been agreed, the Panel considers it reasonable to rely on the figures contained in the 9 November 2018 check for the purposes of this decision: i.e. it accepts there are 258 workers in the bargaining unit rather than the 251 suggested by the Union, although we note that this difference is not of significance in our analysis. We also base our analysis on the original validly check rather than amending the figures in the light of the Union’s contention that it now has additional members. To make the amendments suggested by the Union we would need to arrange for the membership and support check to be repeated. We do not consider that necessary as the report of 9 November 2018 is reasonably recent and encompasses the workers in the bargaining unit that has now been agreed.

5. Paragraph 45(a)

15) Paragraph 45 provides that the application in question is invalid unless the CAC decides that members of the union constitute at least 10 per cent of the workers constituting the bargaining unit decided by the CAC. As stated in paragraph 14 above, the membership check conducted by the Case Manager showed that 16.67% of the workers in the proposed bargaining unit were members of the Union. 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 45(a) of the Schedule. The Panel notes the Employer’s claim that it was aware that some of its workers had voluntarily relinquished their GMB membership and were no longer members of the GMB union. However, the Panel has received no documentary evidence to support this claim and is content, therefore, to rely upon the figures given in the Case Manager’s report.

6. Paragraph 45(b)

16) Paragraph 45(b) provides that the application in question is invalid unless the CAC decides that a majority of the workers constituting the bargaining unit determined by the CAC would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit. The Panel notes that the support check conducted by the Case Manager on 9 November 2018 (which included the workers in the bargaining unit as now defined) showed that 55.81% of the workers in the proposed bargaining unit (144 out of 283 workers) had signed a petition in support of recognition of the Union (see paragraph 14 above). Of those who had signed the petition, 36 were union members (13.95% of the proposed bargaining unit) and 108 were non-members (41.86%). The check also showed that the level of Union membership is 16.67%. 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 of the Union. No such evidence to the contrary was submitted by the Employer or is otherwise before the Panel in this case. In relation to the Union’s petition, the Panel notes the Employer’s submission that a reduction in membership may affect the likely support levels for recognition, and that a number of workers in the agreed bargaining unit had voluntarily reached out to inform that they did not support the Union’s application for recognition. However the Panel also notes that the Employer did not provide any evidence to indicate that those who signed the Union’s petition had changed their minds about whether they favoured recognition of the Union. The Panel considers that the level of union membership (16.67%) and the fact that 108 non-members signed the Union’s petition in favour of recognition (41.86%), taken together (suggesting a total level of support of 58.53%), together with the fact that the “bandwagon effect” is likely to result in an increased level of support, constitutes sufficient evidence for the Panel to conclude that, on the balance of probabilities, a majority of the workers in the proposed bargaining unit would be likely to favour recognition.

17) On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, a majority of the workers in the bargaining unit decided by the CAC 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.

7. Decision

18) For the reasons given in paragraphs 12-17 above, the Panel’s decision is that the application is not invalid and the CAC is proceeding with the application.

Panel

Mr James Tayler, Chairman of the Panel

Ms Judy McKnight CBE

Mr Nicholas Caton

11 February 2019