Decision

Acceptance Decision

Updated 2 May 2019

Case Number: TUR1/1095/2019

01 April 2019

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:

RMT

and

CWind

1. Introduction

1) RMT (the Union) submitted an application to the CAC dated 11 March 2019 that it should be recognised for collective bargaining by CWind (the Employer) in respect of a bargaining unit comprising “Skippers and Crew employed by CWind, based at Ramsgate port.” The application was received by the CAC on 13 March 2019. The CAC gave both parties notice of receipt of the application on 13 March 2019. The Employer submitted a response to the CAC dated 19 March 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 Mr Charles Wynn-Evans, Chairman of the Panel, and, as Members, Miss Mary Canavan and Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 27 March 2019. The acceptance period was extended to 1 April 2019 in order to allow more 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 it had sent its formal request for recognition to the Employer on 18 February 2019. The Union stated that the Employer responded by letter dated 4 March 2019, in which the Employer “refused recognition”. The Union attached a copy of both letters to the application.

6) The Union stated that there were 1000+ workers employed by the Employer, of whom 16 were in the proposed bargaining unit. Of the 16 workers in the proposed bargaining unit the Union stated that 15 were members of the Union. When asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated that it considered all members had joined the Union “to achieve recognition for collective bargaining” and that this was “explicitly discussed and explained” during a recent meeting with the workers.

7) The Union stated that the reason for selecting the proposed bargaining unit was because it was a coherent and distinct group of workers, who carried out particular roles within the organisation.

8) The Union stated that the bargaining unit had not been agreed with the Employer and that it was not aware of any other existing recognition agreement which covered any of the workers in the proposed bargaining unit. The Union confirmed that it held a current certificate of independence. The Union stated that it had copied the application made to the CAC, and supporting documents, to the Employer on 11 March 2019.

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

9) The Employer confirmed that it had received the Union’s written request letter on 18 February 2019. The Employer attached to its response a copy of a letter dated 15 March 2019 in which it had responded to the Union’s request stating that, after careful consideration, it was not willing to grant the Union’s request.

10) The Employer confirmed that it had received a copy of the application form from the Union on 15 March 2019. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

11) 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 but stated “Yes” when asked if it did agree the proposed bargaining unit.

12) The Employer stated that, although it agreed with the number of workers in the bargaining unit as set out in the Union’s application, the total number of employees at CWind was 81 and not 1000+ as stated by the Union in its application. The Union stated that it believed the Union was referring to “other group companies”.

13) The Employer did not respond to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, nor did it respond to the invitation to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition.

14) The Employer stated that it was not aware of any existing recognition agreement in place covering any of the workers in the proposed bargaining unit.

15) Finally, the Employer did not respond to the question whether it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit

5. Additional comments from the parties

16) During a telephone conversation with the Case Manager on 21 March 2019, the Union explained that the description of its proposed bargaining unit in its initial request letter dated 18 February 2019 - namely “Skippers and crew employed by CWind Ltd, based at Ramsgate Port, this includes all Yacht Masters, MCA master 200s and deck hands. The bargaining unit excludes Superintendents and all other members of management or administration grades” - covered the same group of workers to that stated in its application to the CAC. The Union explained that the reason for the (more) detailed description in its request letter was merely for clarification, to explain the titles of the skippers and crew.

17) On 21 March 2019 the CAC wrote to the Employer, at the request of the Panel Chair, to ask the Employer to confirm whether it agreed with the Union’s analysis of its proposed bargaining unit, as set out in paragraph 16 above.

18) By e-mail to the CAC dated 22 March 2019 the Employer confirmed that it agreed with the Union’s analysis of its proposed bargaining unit, in that it was limited to Ramsgate, and did not include Managers, Ship Superintendents and Admin. The Employer further stated that it would “expect a ballot” to determine whether there was sufficient support, particularly as it had now agreed new contracts for crew across Cwind including Ramsgate, without the need for any union representation. The Panel is therefore satisfied that the Union’s application for recognition has been made in respect of the same proposed bargaining unit as that set out in the Union’s initial request to the Union.

6. Considerations

19) 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 the evidence referred to above in reaching its decision.

20) 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. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 of the Schedule. The remaining issues for the Panel to decide are therefore whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

7. Paragraph 36(1)(a)

21) 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.

22) In its application the Union said that 15 out of the 16 workers in the proposed bargaining unit were members of the Union. When invited to comment on this claim the Employer did not respond. However, the Employer agreed with the number of workers within the proposed bargaining Unit as stated in the Union’s application.

23) In view of the Union’s assertion of its level of union membership in the proposed bargaining unit and the fact that this contention is not disputed by the Employer in its response, the Panel has determined that, on the balance of probabilities on the basis of the information available, the requisite 10% threshold has been met.

8. Paragraph 36(1)(b)

24) 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.

25) In its application the Union stated that a majority of the workers were likely to support recognition as they had joined the Union “to achieve recognition for collective bargaining.” The Employer did not respond when asked to give reasons if it did not consider that the majority of the workers in the proposed bargaining unit would support recognition of the Union. As with the test in paragraph 36(1)(a), the Employer has not disputed the Union’s assertion that a majority of workers in the proposed bargaining unit are Union members nor has the Employer provided any evidence to show that such a level of membership is not consistent with majority support for recognition. The Panel has therefore concluded that, on the balance of probabilities on the basis of the evidence available, it is likely that a majority of workers in the proposed bargaining unit would favour recognition.

26) For the reasons given above the Panel is satisfied that, on the balance of probabilities on the basis of the evidence available, a majority of the workers in the proposed bargaining unit would be likely to support recognition of the Union and that the test set out in paragraph 36(1)(b) is therefore met.

9. Decision

27) For the reasons given in paragraphs 20 to 26 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Charles Wynn-Evans, Chairman of the Panel

Miss Mary Canavan

Mr Paul Noon OBE

01 April 2019