Decision

Acceptance Decision

Updated 3 October 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1341(2023)

25 July 2023

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:

Transport Salaried Staffs Association (TSSA)

and

First Trenitalia West Coast Rail Limited (trading as Avanti West Coast)

1. Introduction

1) The Transport Salaried Staffs Association (TSSA) (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 20 June 2023 that it should be recognised for collective bargaining purposes by Avanti West Coast (the Employer) in respect of a bargaining unit comprising “SENIOR DRIVER MANAGERS/DRIVER MANAGERS/DRIVER TRAINERS.” The location of the bargaining unit was given as “London, Wolverhampton, Holyhead, Wales, Manchester, Liverpool, Preston, Glasgow and Crewe.” The application was received by the CAC on 20 June 2023 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 26 June 2023 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 David Cadger and Mr Steve Gillan. The Case Manager appointed to support the Panel was Joanne Curtis.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 5 July 2023. The acceptance period was extended to 26 July 2023 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 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. Summary of the Union’s application

5) In its application to the CAC the Union stated that it had made a request for recognition to the Employer on 30 March 2023 which the Employer had refused. A copy of the Union’s letter of 30 March 2023 was attached to the 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, “n/a.” The Union stated that, following receipt of the request for recognition, the Employer had not proposed that Acas should be requested to assist the parties.

7) The Union stated that the total number of workers employed by the Employer was 3400. The Union stated that there were 29 workers in the proposed bargaining unit, of whom 20 were members of the Union. 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 said “currently, there are 33 posts within the relevant proposed bargaining unit (inc. 4 vacancies) - 20 of the 29 employees are TSSA members.”

8) The Union stated that the reason for selecting its proposed bargaining unit was that the members of the proposed bargaining unit performed a discrete and unique function “in the supervision of drivers and their competencies, training and welfare etc.” 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 20 June 2023. The Union said that it was happy for its details to be forwarded to Acas.

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 it had received the Union’s written request for recognition on 30 March 2023. The Employer stated that it responded on 30 May 2023 following various communications and meetings between the parties. The Employer attached a copy of its initial response dated 12 April 2023 in which it refused the Union’s request but said “we are prepared to meet and discuss the matter further with TSSA.” In a second letter also attached dated 30 May 2023, the Employer summarised discussions held on 9 May 2023 and 23 May 2023 and said that as a result of the discussions it was formally writing to reject the Union’s request for voluntary recognition.

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 20 June 2023. 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 said the Senior Managers, Driver Managers and Driver Trainers form part of a larger Management Grade and share similar terms and conditions of employment and benefits as other groups of employees within that grade and are subject to centralised management and operating processes. The Employer said that as a result it disagreed with the Union that this group of workers had a unique and discrete function. The Employer went on to say that the proposed bargaining unit represented a group of workers which was too narrow for a bargaining unit that would be compatible with effective management. The Employer said that the proposed bargaining unit would be almost solely made up of Driver Manager and Driver Trainer roles which are significantly different and which fall under separate and divisible organisational structures and departments, across nine different locations. The Employer added that should the CAC accept the Union’s application it would provide more detailed comments on the appropriate bargaining unit.

12) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist the parties. The Employer stated that it did agree with the number of workers in the proposed bargaining unit as set out in the Union’s application “albeit as noted in the Union’s application, there is a total of 33 posts within the relevant bargaining unit (including 4 vacancies 3 of which are shortly due to be filled).” The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) 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 did not have the membership information to agree or disagree and invited the Union to provide full membership details in order for the Employer to be able to take a more informed view. The Employer said that the Union had not provided an adequate explanation as to why it was now proposing a small, fragmented bargaining unit. The Employer said that it believed the Union was seeking to propose a small bargaining unit in order to put itself in the best position to secure recognition rather than considering what bargaining unit would be appropriate. The Employer went on to say that it believed a full membership and support check should be carried out, particularly given the very small numbers involved and the subsequent impact the membership status or otherwise of one individual within the proposed bargaining unit could have on overall Union membership and/or support for recognition.

14) 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 said it reserved the right to comment more fully pending receipt of membership data supporting the Union’s claim. The Employer went on to say “the test for the Union to meet is to show that it has specific support for recognition for the purposes of collective bargaining on behalf of the proposed bargaining unit (not merely whether there is evidence of general support for the Union). Save for providing an excel spreadsheet for its stated membership, the Union has provided no other evidence of support for recognition amongst the proposed bargaining unit. It appears that there was a recruitment drive just 2 weeks prior to the initial request for recognition which suggests that the Union does not have established and/or longstanding support for recognition. Given the apparent very recent recruitment drive it is also not clear from the excel spreadsheet provided the nature of any recent membership, inclusive of any discounted and/or free membership. In the circumstances we would submit that the Panel should not infer, on estimated membership numbers alone, that a majority of the workers in the proposed bargaining unit would be likely to favour recognition.” The Employer said that the Union had not provided detailed membership data and/or evidence indicating how membership has grown and for what reasons and that there should be a full membership and support check carried out.

15) 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 when asked if it had received any other applications in respect of workers in the proposed bargaining unit. The Employer answered, “We are not aware of any previous application and We have not received any other applications under Schedule A1in respect to the proposed bargaining unit.” The Employer stated that it was happy for its contact details to be forwarded to Acas.

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

16) The Union stated that from the Employer’s response it was clear that the bargaining unit was readily identifiable by the Employer. The Union said that it did not accept the Employer’s objection to the bargaining unit on the basis the unit would be fragmented. The Union said “the company’s objection is that the unit would be ‘fragmented’ bearing in mind that our members and others in the proposed unit belong to a much larger category of ‘management grades’. We understand that a significant proportion of the company’s staff are in fact all classified as ‘management grades’. Those grades include, by way of example, people in revenue protection, employees in the payroll department, and others working on the company’s social media platforms.”

17) The Union stated that the bargaining unit it proposed was not only readily identifiable but shared unique skills. It stated that whilst it had listed three categories of worker in the bargaining unit, the practical position was that only one of the total potential group of 33 was a Senior Driver Manager, and that title was unique and as a result of an arrangement “between the employee and a director, when the former relinquished his position as Head of Drivers”. The Union said that in reality everyone fell into the category of being a ‘Driver Manager’ or ‘Driver Trainer’. The Union said that both Driver Managers and Driver Trainers shared many of the same qualifications and, in particular, had to have had 5 years’ competence as a driver, assessor qualifications and training about on-call responsibilities. The Union said that Driver Trainers did the same work as Driver Managers, and could act as a Driver Manager, but in addition delivered classroom training. The Union continued by saying “the company also makes reference to the geographical location of the members of the proposed bargaining group; however, the company already recognises the drivers’ union ASLEF across those locations.  There will be no practical difficulty dealing with this group across those geographical locations.”

6. The membership and support check

18) 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, dates of birth and job roles (where available). 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 11 July 2023 from the Case Manager to both parties.

19) The information requested from the Employer was received by the CAC on 17 July 2023 and from the Union on 14 July 2023. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

20) The list supplied by the Employer indicated that there were 33 workers in the Union’s proposed bargaining unit.

21) The list of members supplied by the Union contained 21 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 20, a membership level of 60.61%.

22) A report of the result of the membership and support check was circulated to the Panel and the parties on 17 July 2023 and the parties were invited to comment on the results of that check by noon on 20 July 2023.

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

23) In an e mail dated 20 July 2023 the Union said that it was clear from the membership check that members of the Union constituted at least 10 per cent of the workers in the proposed bargaining unit. The Union went on to say that it did not dispute the fact that one member had now left the workplace as a result of retirement. The Union said that as the majority of workers in the proposed bargaining unit were Union members, it was not unreasonable to assume that those members would favour collective bargaining.

24) In a letter dated 20 July 2023 the Employer said that having reviewed the membership report it could see that the Union met the first test of having 10 per cent membership within the proposed bargaining unit. The Employer went on to say that save for the number of members, the Union had not provided any evidence to suggest that the majority of the workers within the proposed bargaining unit would be likely to favour recognition of the Union to conduct collective bargaining on behalf of the bargaining unit. The Employer said that it did not consider that the Union had sufficient following to support recognition and that the Panel should not infer this from membership numbers alone. The Employer said that prior to the Union making its application, the Union ran a membership recruitment drive for new members, however, the Union had not provided detailed membership data indicating how membership had grown over what period and for what reasons. The Employer concluded by saying that it believed that fuller membership and support checks should be carried out.

8. Considerations

25) 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.

26) 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 12. 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.

Paragraph 36(1)(a)

27) 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.

28) The membership check conducted by the Case Manager (described in paragraphs 18 - 22 above) showed that 60.61% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 19 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.

Paragraph 36(1)(b)

29) 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.

30) For the reasons given in paragraph 28 above, the Panel has concluded that the level of union membership within the proposed bargaining unit stands at 60.61%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union.

31) The Employer has argued that that save for the number of members, the Union had not provided any evidence to suggest that the majority of workers within the proposed bargaining unit would be likely to favour recognition of the Union to conduct collective bargaining on behalf of the bargaining unit. It has also stated that the Union has undertaken a recent recruitment campaign. The Panel is of the view that Union membership is an indicator of likely support for recognition of the Union. Accordingly for the purposes of the test for acceptance, the Panel has reached the conclusion 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.

9. Decision

32) For the reasons given in paragraphs 25 - 31 above the Panel’s decision is that the application is accepted by the CAC.

33) The Panel has amended the name of the Employer to “First Trenitalia West Coast Rail Limited (trading as Avanti West Coast)” to accord with its full and correct legal and trading names.

Panel

Mr Stuart Robertson, Panel Chair

Mr David Cadger

Mr Steve Gillan

25 July 2023