Decision

Acceptance Decision

Updated 10 May 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1214(2021)

10 May 2021

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

Vattenfall Wind Power Limited

1. Introduction

1) The National Union of Rail, Maritime and Transport Workers (RMT) (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 18 March 2021 that it should be recognised for collective bargaining purposes by Vattenfall Wind Power Limited (the Employer) in respect of a bargaining unit comprising “All Service Leader, Offshore Service Technician, Warehouse Co-ordinator and Operational Planner/Service Leader grades employed at Barrow-in-Furness.” The location of the bargaining unit was given as “Ormonde Offshore Wind Farm at Barrow-in-Furness”. The application was received by the CAC on 18 March 2021 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 25 March 2021 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 Stuart Robertson, Panel Chair, and, as Members, Mr Sean McIlveen and Ms Fiona Wilson. 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 April 2021. The acceptance period was extended on three further occasions in order to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the comments and an issue about validity of the application before arriving at a decision. The final extension ends the acceptance period on 10 May 2021.

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 letter to the Employer on 5 January 2021. A copy of the Union’s request was attached to its application.

6) When asked whether the Union had made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Union answered “No”. The Union stated that, following receipt of the request for recognition, on 17 March 2021 the Employer had proposed that Acas should be requested to assist the parties, and the Union accepted the Employer’s proposal on 18 March 2021.

7) The Union stated that the total number of workers employed by the Employer was 251, and there were 25 workers in the proposed bargaining unit, all of whom were members of the Union. The Union offered to supply to the CAC a list of its paid-up members, on a confidential basis. 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 maintained that there were high levels of union membership arising from numerous discussions over a recent harmonisation project.

8) When asked for its reasons for selecting its proposed bargaining unit, the Union stated, “Bargaining unit identified to cover Ormonde Offshore Wind Farm at Barrow-in -Furness and covers the union membership.” In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit.

9) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application and supporting documents to the Employer on 18 March 2021.

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 the Union had not served its request on the correct employer, under paragraph 5 of Schedule A1. The Employer explained that the correct employer of the workers in the Union’s proposed bargaining unit was Vattenfall Wind Power Limited but the Union’s request had been sent to an individual who was employed by Vattenfall Vindkraft A/S. It was therefore the Employer’s view that it had not yet been served with a valid request by the Union, and, as such, the Union’s application was inadmissible. The Employer stated that it responded to the Union’s request on 18 January 2021, in which it had indicated a willingness to negotiate. A copy of the Employer’s letter to the Union was attached to the Employer’s response.

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 18 March 2021. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union, nor did it agree with the proposed bargaining unit, the Employer further adding that this question was not applicable at this stage. The Employer said that until the application was ruled admissible, the question as to the appropriateness of the proposed bargaining unit did not arise, and therefore it reserved its right to set out its position in this regard if the application was accepted and the question should arise.

12) The Employer stated that, following receipt of the Union’s request, on 17 March 2021 it had proposed that Acas be requested to assist. The Employer explained that contact had been established by Mel McRae, Collective Conciliator, and the Employer believed that the Union were also willing to continue negotiations via Acas. The Employer asserted that the application therefore came as a surprise.

13) The Employer stated that it agreed with the number of workers in the proposed bargaining unit as set out in the Union’s application. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

14) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated that it was unable to comment as this was not known to the Employer.

15) 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 alleged that some employees in the proposed bargaining unit had stated that they did not feel supported by the Union and therefore were considering withdrawing their membership with the Union. The Employer said that it did not know how many employees were in this position or would support recognition for collective bargaining.

16) The Employer stated “N/A” when asked, if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, and, whether it received any other applications in respect of workers in the proposed bargaining unit.

5. Additional comments from the parties

17) On 29 March 2021 the CAC copied the Employer’s response to the application to the Union and invited its comments on the Employer’s contention that the request for recognition dated 5 January 2021 was served on a company which was not the Employer. The Union was also asked to provide copies of any covering email to which the request of 5 January 2021 was attached and any other correspondence supporting any contention that the request was sent to the correct entity.

18) In an e-mail dated 30 March 2021 the Union stated that it believed the request had been received by the Employer. The initial request under the Schedule was sent to Tenna Ostrup-Petersen, Head of Operations, Offshore Wind for Vattenfall. The Union said that it would have no visibility of the individual contractual relationships within the Vattenfall AB Group, and that the initial request was also copied to Tony Francis, former Head of Operations for Vattenfall. The request was acknowledged by Tenna Ostrup-Petersen in an email dated 6 January 2021 which stated “Thank you. I will pass this on to Mr Kevin Jones, who is recently appointed Head of Operations in UK, Kevin will be back from vacation on Monday, I hope that is fine”. The Union maintained that this e-mail raised no concerns.

19) The Union further stated that the Employer’s letter of 18 January 2021, from Jay Chowdhury, Head of UK HR Operations had clearly acknowledged its request and concerns were only raised following the application to the CAC, which, the Union stated, was submitted due to slow progress on reaching a voluntary arrangement.

20) By way of supporting documentation, the Union also provided a series of e-mails exchanged between the Union and Jay Chowdhury between 6 January 2021 and 17 March 2021.

21) In a letter dated 6 April 2021 the Case Manager informed the parties that the the Panel would decide as part of the overall acceptance process whether the application has been validly made in terms of service of the request for recognition upon the Employer. The parties were also informed that the Panel would proceed to a check of membership and support within the proposed bargaining unit.

6. The membership and support check

22) 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 proposed 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 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 and dates of birth). It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 6 April 2021 from the Case Manager to both parties.

23) The information requested from the Union was received by the CAC on 9 April 2021 and from the Employer on 15 April 2021. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

24) The list supplied by the Employer indicated that there were 25 workers in the Union’s proposed bargaining unit.

25) The list of members supplied by the Union contained 25 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 25, a membership level of 100%. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

26) A report of the result of the membership and support check was circulated to the Panel and the parties on 19 April 2021 and the parties were invited to comment on the results of that check by the close of business on 22 April 2021.

7. Summary of the parties’ comments following the membership and support check

27) In an e-mail to the CAC, dated 20 April 2021, the Union stated that in respect of the first test, with the level of union membership at 100% the 10% threshold had clearly been met.

28) In respect of the second test, the Union stated that with 100% membership within the bargaining unit, it had given valuable advice to its members in the recent harmonisation process. In addition, it had held numerous online meetings with its members over the last few months, at which recognition was discussed and desired. The Union therefore considered that the majority of its members would favour recognition. Furthermore, the Union requested that the Panel award recognition without the need for a ballot.

29) In an e-mail to the CAC, dated 22 April 2021, the Employer acknowledged receipt of the Case Manager’s report confirming the result of the membership check.

8. Discussion and conclusions

30) 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.

31) The Union’s request for recognition dated 5 January 2021 was sent by email to Ms Petersen, Head of Operations, Offshore Wind for the Employer’s Swedish parent company, and copied to Mr Francis its (by then, former) Head of Operations UK.

32) On 6 January 2021 Ms Petersen responded that she would pass on the application to Mr Kevin Jones, recently-appointed Head of Operations UK, and copied in Mr Jones. On 18 January 2021 Jay Chowdhury, the Employer’s Head of UK HR Operations, responded to the request. No objection was made at the time to the request having been made in that way or sent to that address, and there is no evidence that this was not an appropriate address for correspondence on this matter. The request was made by email rather than to a geographic address. The generic email address Vattenfall.com is the same for the parent company and the Employer, and for Ms Petersen, Mr Francis, Mr Jones and Mr Chowdhury.

33) Paragraph 4 of the Schedule provides that the Union seeking recognition must make a request for recognition to the Employer. Paragraphs 5 to 9 apply to the request. Materially, paragraph 5 states that the request must be received by the Employer. There is no dispute that the request was received by the Employer, which responded to it. It was sent to an appropriate email address, but in any event copied to the UK Head of Operations and forwarded to his successor. The Employer responded without objection to the way in which it had been made on 18 January 2021.

34) 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 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

9. Paragraph 36(1)(a)

35) 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.

36) The membership check conducted by the Case Manager (described in paragraphs 22 - 25 above) showed that 100% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 25 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.

10. Paragraph 36(1)(b)

37) 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. The Panel is tasked therefore to determine likely, not actual, majority support for Union recognition.

38) The Union relied on its density of union membership as evidence that there was majority support for collective bargaining, which the Employer did not dispute.

39) The Panel finds that the level of membership within the proposed bargaining unit can be taken as a legitimate indicator of the strength of support for the Union. With an apparent density of membership of 100% in its proposed bargaining unit, the Panel has concluded that, on the balance of probabilities and in the absence of any evidence to the contrary, 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.

11. Decision

40) For the reasons given in paragraphs 31 - 39 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Stuart Robertson, Panel Chair

Mr Sean McIlveen

Ms Fiona Wilson

10 May 2021