Decision

Validity Decision

Updated 14 November 2019

Case Number: TUR1/1127(2019)

14 November 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

DETERMINATION OF THE BARGAINING UNIT

The Parties:

National Union of Rail, Maritime and Transport Workers

(RMT)

And

CWind Ltd

1. Introduction

1) The National Union of Rail, Maritime and Transport Workers (RMT) (the Union) submitted an application to the CAC on 26 July 2019 that it should be recognised for collective bargaining by CWind Ltd (the Employer) for a bargaining unit comprising “Skippers and Transfer Supervisors employed by CWind Ltd at Robin Rigg Workington”. The CAC gave both parties notice of receipt of the application on 26 July 2019. The Employer submitted a response to the CAC dated 5 August 2019 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, Chairman of the Panel, and, as Members, Mrs Maureen Shaw and Mr Matt Smith OBE. The Case Manager appointed to support the Panel was Nigel Cookson.

3) By a decision dated 20 August 2019 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 was held on 8 October 2019 in Newcastle and in a decision promulgated on 16 October 2019 the Panel determined that the appropriate bargaining unit in this case was one comprising all Skippers and Crew employed by CWind except those based at the Ramsgate site that were subject to the existing bargaining arrangements. This bargaining unit differed from that originally proposed by the Union which was limited to the Skippers and Crew based at Robin Rigg, Workington.

2. Issues

4) As the determined bargaining unit differed from that proposed by the Union in its application the Panel is required by paragraph 20 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application is valid or invalid within the terms of paragraphs 43 to 50 of the Schedule. The tests that the Panel must consider under these paragraphs 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 16 October 2019 the Case Manager invited the parties to make submissions on these points for consideration by the Panel.

3. Views of the Union

6) In an email dated 21 October 2019 the Union confirmed that there was no recognition agreement in place covering the workers in the new bargaining unit and this was confirmed by the Employer at the hearing in Newcastle on 8 October 2019. The Union also confirmed that the density of Union membership in the new bargaining unit was greater than 10% and that it believed that the majority of workers would vote in favour of recognition once suitably informed about the benefits. There was no competing application from another union where its proposed bargaining unit covered any workers in the new bargaining unit and there had not been a previous application in respect of the new bargaining unit.

4. Views of the Employer

7) By way of a letter dated 21 October 2019 the Employer stated that there was no recognition agreement covering any of the workers in the new bargaining unit. The Employer was unsure as to whether the Union satisfied the 10% minimum membership density or whether a majority of the workers in the new bargaining unit would be likely to favour recognition of the Union. The Employer was not aware of any competing application and it confirmed that there had not been a previous application in respect of the new bargaining unit. The Employer then went on to criticise the Panel’s decision as to the appropriate bargaining unit claiming that it was no more appropriate than the one originally proposed by the Union.

5. The membership check

8) To assist in the determination of two of the validity tests specified in the Schedule, namely, whether 10% of the workers in the new bargaining unit were members of the union (paragraph 45(a)) and whether a majority of the workers in the new 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 in the determined bargaining unit and the number of workers in the unit who had signed a petition supporting recognition of the Union. The Union provided a list of Union members in the determined bargaining unit and a copy of its petition. The information from the Union was received by the CAC on 31 October 2019. The Employer provided a list of workers in the determined bargaining unit on 30 October 2019. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and petition would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to both parties dated 25 October 2019. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

9) The Union provided the membership details of 7 workers and a petition with one signatory. The form of the petition and the proposition it carried has not been set out as the name of the single petition signatory did not appear on the list provided by the Employer. The Employer provided the details of 16 workers based at the following locations: Scroby Sands (three workers), Barrow in Furness (three workers), Roaming (three workers), Taiwan (two workers) and Robin Rigg (five workers).

10) According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 5, a membership level of 31.25%. A report of the result of the membership and support check was circulated to the Panel and the parties on 4 November 2019 and the parties were invited to comment on the results.

6. Union’s comments on the result of the membership check

11) In an email dated 8 November 2019 the Union stated that in respect of the test under paragraph 45(a) the threshold of 10% was clearly met. In respect of the paragraph 45(b) test the Union believed that the majority of the workforce would in any ballot vote for collective bargaining. This belief was based on membership, the petition, and discussions the Union had had with workers during the short time since the expansion to the bargaining unit to include all locations except Ramsgate.

12) Referring to the CAC decision of 16 October 2019 in respect of the bargaining unit the Employer stated that in addition to the workers at Workington (Robin Rigg) there were three workers permanently floating, three in Great Yarmouth and five in Barrow-in-Furness but the Employer included two workers based in Taiwan and this was the first time details of an overseas location had been disclosed. The Union believed it wholly unreasonable to include Taiwan as a location in membership checks and in any bargaining unit and it should solely be dealing with the UK locations which the Employer disclosed at the CAC hearing in Newcastle on 8 October 2019. The two workers based in Taiwan should therefore be excluded.

13) The Union also disputed the percentages in the petition, given the skipper involved had recently been made a permanent employee and the Union would therefore question the accuracy of the data received. The Union would also remind the CAC that it had been given only a short period of time to organise workers within the expanded bargaining unit since being notified of the bargaining unit decision. The Union requested that the CAC accept the application as to decline would be wholly unreasonable given the overall circumstances, and let the workers decide in a future ballot the fundamental question of whether they wish the Union to conduct collective bargaining.

7. Employer’s comments on the result of the membership check

14) In an email dated 7 November 2019 the Employer stated that since it submitted its list of workers there had been one new starter, a master at Grimsby as at 1 November 2019. The Employer’s view remained unchanged that the proposed bargaining unit was not effective or aligned to its employee relations processes. It was also not aware of any appetite or indication from outside Robin Rigg of any requests for collective bargaining and would want to see that the required processes for evidence and recognition were followed.

8. Considerations

15) The Panel is required to determine whether the Union’s application is valid or invalid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision the Panel has taken into account the submissions of both parties and all the other evidence before it. On the evidence available, the Panel is satisfied that there is no existing recognition agreement covering any of the workers within the determined bargaining unit; that there is no competing application from another union; and that there has been no previous application in respect of the determined bargaining unit. The remaining issues for the Panel to decide are whether the validity criteria contained in paragraphs 45(a) and 45(b) are met.

9. Paragraph 45(a)

16) 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 agreed bargaining unit.

17) The membership check conducted by the Case Manager showed that 31.25% of the workers in the determined bargaining unit were members of the Union. As stated earlier, 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 determined bargaining unit as required by paragraph 45(a) of the Schedule.

10. Paragraph 45(b)

18) Under paragraph 45(b) of the Schedule, an application is invalid unless the Panel decides that a majority of the workers constituting the new bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit. In this case the level of Union membership in the determined bargaining unit has been established as being 31.25%. Although the Union submitted a single signatory petition in addition to its membership list, when the check was undertaken the signatory was not found to be on the list provided by the Employer. In its submissions the Union made a number of points. First, it submitted that it was wrong for the Employer to include the two workers based in Taiwan and these should be excluded when calculating membership density and support for recognition. Second, it questioned the accuracy of the information provided by the Employer given the absence of the petition signatory. Third, it explained that it had had little time to canvass the workers in the wider bargaining unit in order to gain their support for recognition. Taking these factors into account, the Union urged the Panel to find the application valid as it was confident that it would be successful in a ballot.

19) In its comments on the check, the Employer once again reiterated its opposition to the determined bargaining unit. As for support for recognition, the Employer submitted that it was not aware of any appetite or indication of support for collective bargaining from outside Robin Rigg.

20) When the Panel had to determine whether or not to accept the application in August 2019 we had to address the question of likely support for recognition, as set out in paragraph 36(1)(b) of the Schedule, in respect of the bargaining unit originally proposed by the Union. In that decision as here, the only affirmative evidence in support of this test related to membership. Having considered the parties’ submissions we made the point in our decision promulgated 20 August 2019 that, in the absence of any evidence to the contrary, the Panel took the view that the level of Union membership within the proposed bargaining unit did provide a legitimate indicator as to the degree of likely support for recognition of the Union for collective bargaining. We also made clear to the parties that the test under paragraph 36(1)(b) was of hypothetical support and that the Panel must arrive at its decision on the evidence placed before it.

21) We believe that the conclusion we reached in respect of paragraph 36(1)(b) applies equally to the similar test under paragraph 45(b) in respect of the new bargaining unit.

22) The issue here is that the determined bargaining unit is three times the size of the one originally proposed by the Union and this has had a significant effect on the density of Union membership. Whilst we have noted the concerns of the Union the Panel is conscious that two-thirds of the workers in the new bargaining unit are not members of the Union and they have given no indication whatsoever as to whether or not they would favour recognition of the Union. On balance, we acknowledge that a number of these workers may well support recognition of the Union, but there is no confirmatory evidence at all as to whether this would be sufficient to persuade us that this test is satisfied. As at the acceptance stage, we have to make our decision based on the evidence before us and in this case the only evidence we have are the figures set out in the Case Manager’s report.

23) For that reason, on the basis of the evidence before it, the Panel has decided that a majority of the workers in the determined bargaining unit would not be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit and the test in paragraph 45(b) of the Schedule is not satisfied.

11. Decision

24) For the reasons given above, the Panel’s decision is that the application is invalid and the CAC is therefore not proceeding with the application.

Panel

Professor Kenny Miller, Chairman of the Panel

Mrs Maureen Shaw

Mr Matt Smith OBE

14 November 2019