Decision

Acceptance Decision

Updated 11 July 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1303/2023

13 March 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:

The National Union of Rail, Maritime and Transport Workers (the RMT)

and

Bespoke Facilities Management Limited

1. Introduction

1) The National Union of Rail, Maritime and Transport Workers (the RMT) (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 7 February 2023 that it should be recognised for collective bargaining purposes by Bespoke Facilities Management Limited (the Employer) for a bargaining unit comprising “Bespoke Management Facilities Limited Hitachi Rail, Doncaster, Cleaning Operatives, Team Leaders and Supervisors.” The location of the bargaining unit was given as “Hitachi Train Maintenance Depot, Doncaster.” The application was received by the CAC on 7 February 2023 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 13 February 2023. An updated response was submitted by the Employer on 15 February 2023 in order to rectify a factual error. Both responses were 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 Stuart Robertson, Panel Chair, and, as Members, Mr Alastair Kelly and Mr Paul Morley. 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 21 February 2023. The acceptance period was extended to 17 March 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 9 September 2022. A copy of the request letter was attached to the application. The Union stated that as a result of the request the Parties entered into an e mail exchange which culminated in a face to face meeting on 19 January 2023. The Union stated that on 3 February 2023 the Employer formally declined the Union’s request for voluntary recognition.

6) 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 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 “100 plus.”, and that there were 28 workers in the proposed bargaining unit. The Union did not state how many of the workers in the proposed bargaining unit were Union members but said that a membership list would be provided to the CAC in confidence should this be required. 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 “we have a petition of signatures of BFM employees in said bargaining group which we again will provide to the CAC for independent verification.”

8) The Union stated that the reason for selecting the proposed bargaining unit was that the group of grades was currently unrepresented in the workplace and workers had voluntarily joined the Union to achieve collective bargaining within the workplace. 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.

9) 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 7 February 2023.

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 request for recognition on 20 September 2022. The Employer explained that remote working was still in place at its head office so the letter was acknowledged as soon as it was received. The Employer said that in an e mail to the Union dated 20 September 2022 it acknowledged receipt of the Union’s letter dated 9 September 2022 and that it would respond to the Union in due course. The Employer provided a copy of the email with its response. The Employer stated that on 9 October 2022 it sent an e mail to the Union explaining that it could not agree to the Union’s request for voluntary recognition but was willing to negotiate further in respect of the proposed bargaining unit and the terms of any collective bargaining. A copy of this e mail was also attached to the response.

11) The Employer said that it had received a copy of the application form from the Union on 7 February 2023. It had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union. The Employer said that it did not agree the proposed bargaining unit, adding it was “unable to establish mutual agreement due to the false information that was given to our employees by the RMT on the 15.12.22 which has led to unrest in our workforce and relationship with our employees so we would not choose to recognise RMT on a voluntary basis.”

12) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas be requested to assist, however it had spoken with Acas independently. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) 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 that the correct number was 31. It did not disagree with the Union’s estimate of membership in the proposed bargaining unit.

14) 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 answered “n/a”.

15) 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

16)  The Union stated that it was asking the Employer for the same recognition agreement that it had with the Employer at other train cleaning/maintenance depots. The draft recognition agreement sent to the Employer was the same as the one used by the Union and the Employer in other parts of the country. The Union did not regard the Employer’s objection to the bargaining unit as a valid one. The Union added that members had raised significant concerns with the Union over delays in meeting with the Employer.

17) The Union stated that it understood that the Employer employed 28 people in Doncaster with a small number of agency staff. The Union said that it strongly believed that the Employer had delayed the process meaning that Union members had suffered undue stress as a result of poor industrial relations and were suffering detriment due to cuts in hours. The Union added that it had received a number of requests from members wanting to know what was going on.

6. The membership and support 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 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 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 27 February 2023 from the Case Manager to both parties.

19) The information requested was received by the CAC from the Union on 27 February 2023 and from the Employer on 28 February 2023. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

20) The list supplied by the Employer indicated that there were 35 workers in the Union’s proposed bargaining unit.

21) The list of members supplied by the Union contained 20 names. According to the Case Manager’s report the number of members of the Union in the proposed bargaining unit was 20, a membership level of 57.14%.

22) The Union provided a petition which contained 27 names, 25 of which were in the proposed bargaining unit, a figure that represented 71.43% of the proposed bargaining unit. Of those 25 names, 15 were members of the Union (42.86% of the proposed bargaining unit) and 10 were non-members (28.57% of the proposed bargaining unit). The petition was submitted on three A4 sheets of paper. The petition contained signatures dating from 21 December 2022 up to and including 11 January 2023, and was set out as follows:

“Bespoke Facilities Management Ltd Petition

We the undersigned workers employed by Bespoke Facilities Management Ltd at the Hitachi Rail Doncaster Carr Depot, ask that the National Union of Rail Maritime and Transport Workers be recognised for the purpose of Collective Bargaining on our behalf with our employer Bespoke Facilities Management Ltd.”

23) A report of the result of the membership and support check was circulated to the Panel and the parties on 1 March 2023 and the parties were invited to comment on the results by noon on 6 March 2023.

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

24) In an e mail to the CAC dated 2 March 2023 the Employer stated that it believed support had been “drummed up using underhand tactics”. The Employer said that a communication sent by the Union to the workers on 15 December 2022 falsely suggested that the Employer was not communicating with the Union, which the Employer said was not the case and the trail of e mails between the Union and the Employer was proof of the fact that it was the Employer waiting for the Union to respond. The second statement suggested that the Employer did not want to improve pay, working conditions and general workplace wellbeing.

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

25) In an e mail to the CAC dated 6 March 2023 the Union observed that the Employer may have changed its “establishments” and asked whether the Employer had included agency staff within its “establishments”.

9. 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 12. 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 address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

Paragraph 36(1)(a)

28) 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 18-23 above) showed that 57.14% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 19 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.

Paragraph 36(1)(b)

29) 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 28 above the Panel has concluded that the level of union membership within the bargaining unit stands at 57.14%. 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. The Panel has received no such evidence to the contrary in this case. In addition, although it has not been necessary to satisfy the test under the Schedule, the Panel notes that the support check conducted by the Case Manager showed that 71.43% of the workers in the proposed bargaining unit had signed a petition in favour of recognition of the Union (see paragraph 22 above). Of those who had signed the petition 15 were Union members (42.86% of the proposed bargaining unit) and 10 were non-members (28.57% of the proposed unit).

30) 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 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

31) For the reasons given in paragraphs 26-30 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Stuart Robertson, Panel Chair

Mr Alastair Kelly

Mr Paul Morley

13 March 2023