Decision

Recognition Decision

Updated 21 November 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1285(2022)

21 November 2022

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

RMT

and

Isles of Scilly Shipping (Guernsey) Ltd

1. Introduction

1) RMT (the Union) submitted an application to the CAC dated 11 August 2022 that it should be recognised for collective bargaining purposes by Isles of Scilly Steamship Company Ltd (the Employer) for a bargaining unit comprising “Motorman, Bosun, Pursers and Able Seaman employed on board the vessel the Scillonian 111”. The location of the bargaining unit was given as on board the vessel the Scillonian 111. The application was received by the CAC on 11 August 2022 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 17 August 2022 which was copied to the Union. ^{[footnote 1]}

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 Mrs Sarah Havlin, Panel Chair, and, as Members, Mrs Susan Jordan and Ms Joanna Brown. The Case Manager appointed to support the Panel was Joanne Curtis.

3) By a decision dated 8 September 2022 the Panel accepted the Union’s application. The parties then entered a period of negotiation to reach agreement on the appropriate bargaining unit. As the parties were unable to agree a bargaining unit the CAC arranged a formal hearing to determine the issue on 20 October 2022. At the formal hearing the Panel determined the appropriate bargaining unit to be: “The workers on the Scillonian III vessel with the job titles of Bosun, Able Seaman Motorman and Purser, excluding those who are seasonal workers.” As the determined bargaining unit was different from that proposed by the Union in its request for recognition, the Panel was required by paragraph 20 of the Schedule A1 to the Act (the Schedule) to determine whether the Union’s application was invalid within the terms of paragraphs 43 to 50 of the Schedule. In a decision dated 11 November 2022 the Panel determined that the application was not invalid, and that the CAC would proceed with the application.

2. Issues

4) The next stage of the procedure required the Panel to decide whether a majority of the workers in the bargaining unit are members of the Union. Paragraph 22 of Schedule A1 to the Act (the Schedule) provides that if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies. Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled. The three qualifying conditions are:

(i) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(ii) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

(iii) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf. Paragraph 22(5) states that “membership evidence” is (a) evidence about the circumstances in which union members became members, or (b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

5) The Case Manager conducted a check of the level of union membership within the determined bargaining unit in order to assist the Panel to decide whether the Union’s application was invalid. A report of the result of the check was circulated to the Panel and the parties on 2 November 2022. This check showed that 71.42% of the workers in the bargaining unit were members of the Union. For the reasons set out in paragraph 10 of its decision dated 11 November 2022 the Panel was satisfied that this check provided a proper representation of the level of union membership within the bargaining unit.

3. The Union’s claim to majority membership and submission it should be recognised without a ballot

6) In a letter dated 11 November 2022 the Union was asked by the CAC whether it claimed majority membership within the bargaining unit and, if so, whether it submitted that it should be granted recognition without a ballot. The Union, in an e-mail dated 11 November 2022, stated that it did claim to have majority membership within the bargaining unit as identified through the recent membership check and that it should be granted recognition without the need for a ballot.

4. The Employer’s submissions

7) In a letter dated 11 November 2022, the Employer was invited to make submissions on the three qualifying conditions specified in paragraph 22(4) of the Schedule. In its response dated 15 November 2022 the Employer reiterated each of the concerns raised in its last letter to the CAC dated 7 November 2022 and added that at least one of the three qualifying conditions as specified in paragraph 22(4) of the Schedule had been fulfilled.

8) The Employer went on to say that:

• It had a duty of care to each of its workers to ensure that their views were fully represented. Despite the Union stating that it refuted any unfair pressure had been placed upon workers by RMT members, the Employer was aware that the Union had been openly rallying for membership. The Employer stated that it had been unable to speak to workers regarding the proposed bargaining unit as it was constrained from doing so in this situation.

• There were two workers who did not wish to be a member of any bargaining unit as they were content with the relationship that existed. The two workers opposed represented 29% of the bargaining unit, which was not an inconsiderable percentage in such a small group.

• A number of workers had advised that whilst they did wish to be a member of a trade union, they did not wish to be part of any bargaining unit.

• The Employer was concerned that a small and fragmented group of workers would be able to exert influence over a number of ongoing consultations which affected all crew and officers on both vessels.

• The Employer was surprised that the Union had applied for recognition after the original agreement was terminated by the Employer without contest from the Union.

In conclusion, the Employer stated that it fully encouraged all workers to belong to a Trade Union but that it did not believe the bargaining unit as determined was conducive to the existing employee/employer relationship held with the ship’s crew and that it was a small fragment of the business’s undertaking. The Employer respectfully requested that an independent and confidential ballot be held, free from Trade Union or Employer influence, to ensure fairness and maintain good industrial relations.

5. The Union’s comments on the Employer’s submissions

9) In a response dated 15 November 2022 the Union stated that it wished to reiterate the point that its members had written to the Union stating that no coercion had taken place and that no individual had been pressurised to join the Union. All members wished to benefit from the advantages of collective bargaining within the workplace and, if requested by the CAC, the Union could provide copies of the letters from Union members.

10) The Union stated that the Employer’s interpretation of the previous voluntary agreement was that the Employer could withdraw at any time and that is why the Union was wanting statutory recognition. It added that when the Employer chose to terminate the collective bargaining agreement, it did not seek the views of the workforce or take into consideration the views of the employees. The Union added that it was committed to engaging in constructive discussions with the Employer and if the Employer had met with the Union when invited to do so, some of the issues could have been addressed. The Union concluded by saying that taking into consideration the Union’s vast majority membership the Union should be recognised without the need for a ballot.

6. Considerations

11) As set out in paragraph 4 above, the Act requires the Panel to consider whether it is satisfied that the majority of the workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that the majority of the workers constituting the bargaining unit are members of the Union, it must then decide if any of the three conditions in paragraph 22(4) is fulfilled. If the Panel considers that any of them is fulfilled it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

12) As a result of the membership check set out in paragraph 5 above, the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Union. Paragraph 22(2) of the Schedule requires the CAC to issue a declaration that the Union is recognised where it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union unless any of the three qualifying conditions set out in paragraph 22(4) is fulfilled.

Paragraph 22(4) (a)

13) The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Employer has asked the Panel to consider its comments that Union recognition would damage industrial relations due to the fragmented nature of the bargaining unit which would mean that workers in the bargaining unit could exert influence over a number of ongoing consultations which affected all crew and officers on both vessels. It is the Panel’s view that such comments do not address the statutory test and that no evidence has been put before the Panel to show how industrial relations would be detrimentally affected if it were to award recognition without holding a ballot. The Panel is therefore satisfied that this condition does not apply.

Paragraph 22(4)(b)

14) The second condition is that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the Union to conduct collective bargaining on their behalf. The Employer has not put forward any evidence that the five Union members do not wish the Union to conduct collective bargaining on their behalf. The Employer has not put forward any evidence to support its assertion that the five Union members do not wish the Union to conduct collective bargaining on their behalf. The Employer seeks to rely on the fact that there are two workers in the bargaining unit who do not wish the Union to be recognised for collective bargaining and that workers have being pressurised or coerced in some way. Again the Employer has provided the Panel with no evidence of this. In the absence of any evidence the Panel has decided that this condition does not apply.

Paragraph 22(4)(c)

15) The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union to conduct collective bargaining on their behalf. No such evidence has been produced, and this condition does not apply.

7. Declaration of recognition

16) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that the majority of the workers constituting the bargaining unit are members of the Union. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule are met. Pursuant to paragraph 22(2) of the Schedule, the Panel must issue a declaration that the Union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The Panel accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising “the workers on the Scillonian III vessel with the job titles of Bosun, Able Seaman Motorman and Purser, excluding those who are seasonal workers.”

Panel

Mrs Sarah Havlin, Panel Chair

Mrs Susan Jordan

Ms Joanna Brown

21 November 2022

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1. In the covering letter sent in with its formal response the Employer stated that its correct identity was Isles of Scilly Shipping (Guernsey) Ltd and the Panel Chair directed that the CAC amend its records accordingly. Neither the Employer or the Union objected to this change. ↩