Decision

Acceptance Decision

Updated 20 September 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1286/2022

12 September 2022

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 (RMT)

And

First Transpennine Express Limited

1. Introduction

1) The National Union of Rail, Maritime and Transport Workers (RMT) (the Union) submitted an application to the CAC dated 30 July 2002 that it should be recognised for collective bargaining by First Transpennine Express (the Employer) for a bargaining unit consisting of “On board Revenue Protection Assistants (RPAs) and Revenue Protection Officers (RPOs)”. The CAC gave both parties notice of receipt of the application on 18 August 2022. The Employer submitted a response to the CAC dated 24 August 2022 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 Chair established a Panel to deal with the case. The Panel consisted of Mr Stuart Robertson, Panel Chair, and, as Members, Mr Sean McIlveen and Ms Janice Beards. 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 1 September 2022. The acceptance period was extended to 12 September 2022 in order to allow time for a membership check to take place, and for the Panel to consider all the evidence before arriving at a decision.

2. Issues

4) On 15 July 2022, the CAC had received an application from the Transport Salaried Staffs’ Association (TSSA) that it should be recognised by the Employer for a bargaining unit comprising, “Revenue Protection Officers (RPO) and, Revenue Protection Assistants (RPA) who sit under the Revenue Protection Manager”. The CAC gave both parties notice of receipt of that application on 15 July 2022, and the CAC Chair appointed the same Panel to deal with that case. The Employer’s response to this application was dated 20 July 2022 and copied to TSSA. The application from the RMT was received before the CAC Panel had decided on the acceptance of the TSSA application.

5) Where two or more applications are made to the CAC, the Panel is required to decide, in accordance with paragraph 14 of Schedule A1 to the Act (the Schedule), whether to accept one of the applications or to accept neither of them.

6) Under paragraphs 14(4) and (5), the Panel has to decide, in respect of each application, whether members of each union constitute 10% of the workers constituting the respective bargaining units. To assist the Panel in making that decision, in respect of this application, the Panel proposed an independent check of the level of union membership within the proposed bargaining unit. It was agreed with the parties 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 that 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 and a copy of its petition. The Case Manager did not however require the Union’s petition for the purpose of the check. 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 26 August 2022 from the Case Manager to both parties.

7) The information requested was received by the CAC from both parties on 31 August 2022. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

8) The list supplied by the Employer indicated that there were 34 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 15 names. According to the Case Manager’s report the number of members of the Union in the proposed bargaining unit was 13, a membership level of 38.24%.

9) A report of the result of the membership and support check was circulated to the Panel and the parties on 1 September 2022.

3. Considerations

10) Where there are ‘competing’ applications to the CAC, the Panel has to make a series of decisions. Under paragraph 14(1)(a) of the Schedule, the Panel is satisfied that two relevant applications have been made. Paragraph 14(1)(b) states that paragraph 14 applies if at least one worker falling within one of the relevant bargaining units also falls within the other relevant bargaining unit. The respective bargaining units are described in paragraphs 1 and 4 of this decision and the Case Manager was able to confirm that the list of workers submitted by the Employer for the purpose of the membership check consisted of the same group of workers submitted for the check in respect of the TSSA’s application. The Panel is satisfied that the condition in paragraph 14(1)(b) of the Schedule has been met. Under paragraph 14(1)(c), the CAC Panel had not made a decision on the acceptance of the TSSA application when the application from the RMT was received.

11) Under paragraph 14(4) and (5), the Panel must decide, with regard to each application, whether the 10% test is satisfied. The Panel is satisfied that the Case Manager’s check showed that 38.24% of the workers in the RMT’s proposed bargaining unit were members of the Union. The Panel also notes that the membership check conducted in respect of the TSSA’s application showed that 47.06% of the workers in the proposed bargaining unit were members of the Union. The Panel has accordingly concluded, in accordance with paragraph 14(7)(a), that the 10 per cent test is satisfied with regard to both applications and that the CAC must not accept either application.

4. Decision

12) For the reasons given above, the Panel’s decision is that the application is not accepted by the CAC.

Panel

Mr Stuart Robertson

Mr Sean McIlveen

Ms Janice Beards

12 September 2022