Decision

Acceptance Decision

Updated 2 August 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1221/2021

30 July 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:

Unite the Union

and

2 Agriculture Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 10 May 2021 that it should be recognised for collective bargaining purposes by 2 Agriculture Limited (the Employer) for a bargaining unit described as “All workers excluding Senior Managers based at 2 Agriculture Limited, Llay Mill, Milner’s road, Llay Industrial Estate, Wrexham, LL12 0PJ”. The application was received by the CAC on 10 May 2021 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted a response to the CAC dated 14 May 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 Ms Naeema Choudry, Panel Chair, and, as Members, Mrs Fiona Wilson and Mr Richard Fulham. The Case Manager appointed to support the Panel was Kate Norgate.

3) The Panel extended the acceptance period in this case. The initial period expired on 25 May 2021. In order to allow time for the Panel to obtain further information, consider the evidence and reach a decision the period was extended on a number of occasions and was finally extended to 30 July 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 made its request for recognition to the Employer on 23 October 2020. The Employer responded by a letter of 5 November 2020, in which it had rejected the Union’s request. The Union said that by further correspondence it had offered the opportunity to involve Acas but this was also rejected by the Employer. A copy of the Union’s request letter and the Employer’s letter of 5 November 2020 were 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, the Employer had not proposed that Acas should be requested to assist the parties.

7) The Union said that the total number of workers employed by the Employer was 62. There were 56 workers in the bargaining unit, of whom 31 were members of the Union. When asked to provide evidence that the majority of the workers in the bargaining unit were likely to support recognition for collective bargaining, the Union stated that in addition to membership it had a petition in support of Unite to conduct collective bargaining on behalf of the workers in the proposed bargaining unit. The Union said that the membership data and petition could be provided to the CAC on a confidential basis.

8) The Union stated that the reason for selecting the proposed bargaining unit was because it believed it was a self- determined unit in regard to the organisational structure of the business. It was compatible with effective management and would avoid the establishment of small fragmented bargaining units within the undertaking. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. When asked whether there was any existing recognition agreement of which it was aware that covered any workers in the bargaining unit, the Union said that it did not believe that there was an active agreement that was in effect that covered the workers in the proposed bargaining unit. It was aware of a historic agreement on-site between the predecessor employer, Cymru Country Feeds Limited and United Road Transport Union (URTU), but it believed that the agreement was dormant following various transfers and /or acquisitions. Furthermore, URTU had no members on-site and no collective bargaining had taken place between the parties for over 12 years. Since acquiring the Llay Mill site in 2013 the Employer had never collectively bargained with URTU. The Union further explained that in an e-mail dated 23 December 2020, the Employer had confirmed that whilst a historic agreement existed, “in practice, collective bargaining does not take place”.

9) The Union confirmed that it held a current certificate of independence and enclosed a copy of the certificate. The Union stated that it had copied its application and supporting documents to the Employer on 10 May 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 it had received the Union’s written request for recognition on 23 October 2020. The Employer said that it rejected the Union’s request, but it had advised the Union that it was willing to meet in order to discuss its approach and negotiate its respective positions.

11) The Employer confirmed that it had received a copy of the Union’s application form from the Union on 10 May 2021. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit, nor did it agree with the proposed bargaining unit. The Employer explained that there was an existing voluntary recognition agreement with URTU. It covered all drivers at the Llay site and therefore there was significant overlap with the Union’s proposed bargaining unit, approximately 42 workers. The Employer maintained that its primary position was that the Union’s application was, accordingly, not admissible.

12) The Employer further explained why it believed the proposed bargaining unit was not appropriate. However, the question of whether this bargaining unit is appropriate would be agreed or determined at the next stage of the process, should the Union’s application be accepted by the Panel. The question of the appropriateness of the proposed bargaining unit is therefore not dealt with in this decision.

13) When asked whether there was an existing agreement for recognition in force covering workers in the proposed bargaining unit, the Employer re-iterated its response as set out in paragraph 11 above. The Employer also confirmed that the agreement was in writing, and that it had attached a copy of the agreement to its response.

14) The Employer explained that around 2 January 2011, Cymru Country Feeds Limited transferred its operations, assets, and employees to VION Agriculture Limited (which was formerly known as Grampian Country Chickens (Rearing) Limited (Company number SC156515)). The employees of Cymru Country Feeds Limited transferred pursuant to TUPE. At the time the recognition agreement was entered into, Cymru Country Feeds Limited only operated at the Llay site. Trade union recognition also transferred pursuant to TUPE.

15) On 14 March 2013, VION Agriculture Limited changed its name to 2 Agriculture Limited. Trade union recognition had continued at the Llay Mill site in respect of the drivers throughout this time. The arrangements simply transferred to the Employer through acquisition and by operation of TUPE.

16) The agreement with URTU was in force and had continued to be in effect since it was made. It transferred through successive corporate acquisitions and by operation of TUPE. No steps had been taken by either party to terminate the agreement at any time.

17) The Employer maintained that by e-mail dated 18 February 2021 the Union had acknowledged that the agreement with URTU continued to take effect and that the Union had requested to join the agreement as a jointly recognised union. The Employer set out the following excerpt from that e-mail, “…may I express my gratitude for furnishing Unite the Union with a copy of the signed Agreement with the United Road Transport Union, combined with a chronology of events. Visibility of this document has facilitated meaningful discussions between the sister Unions of URTU and Unite, who are both in agreement that we should work collaboratively in a Joint Trades Union approach to further the aims and objectives of our respective membership at the Llay site. Therefore, it would be appreciated if another meeting was scheduled to discuss the option of a formal invitation being extended to Unite the Union to “join” the Agreement in force at the Llay site…” The Employer said that it had rejected this request on the basis that a small bargaining unit such as this, a single site, only required a single recognised trade union.

18) The Employer accordingly contended that, as there is already in force a collective agreement under which another union (URTU) was recognised as entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit, the present application by Unite is not admissible pursuant to Section 35(1) of Schedule A1 to TULRCA. The matters to which URTU were entitled to conduct collective bargaining in terms of the agreement included pay, hours and “terms and conditions of employment”. The Employer referred to clause 8.4 of the agreement, which, it stated, included one or more of the matters specified in section 178 of TULRCA.

19) The Employer explained that it operated a system of check-off for URTU union dues through payroll deduction. Through this, it was aware that membership of URTU appeared to have reduced in the last year, which coincided with the time at which the Union had started a recruitment campaign, around February 2020. Although URTU membership may have declined at Llay it made no difference to the fact that there was a voluntary recognition agreement in force.

20) The Employer said that it also had evidence of the appointment of URTU shop stewards and an industrial action ballot from URTU in 2009. There were also recognition agreements with Unite at two of its other UK sites but there had been no collective bargaining at those sites in recent years. Despite this, those three agreements remained active and recognition remained in place.

21) The Employer said that URTU was the sitting union at the Llay site and it remained in dialogue with them in regard to its current agreement. The Employer’s regional contact at URTU was until recently Mr Lee Pimbley. It was now Brian Hart. The Employer maintained that despite the Union’s subsequent approach for recognition, it believed that, as URTU was its sitting Union, it was the right thing to do to continue its relationship with them.

22) When asked whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer explained that as its check-off system of payroll deduction for union dues only applied to its recognised union, URTU, it had no record of Unite membership. From communication with staff, it had not seen evidence to suggest the levels were at those suggested by the Union. The Employer said that it had not seen any evidence of membership or petitions for support. Furthermore, if the Union’s application was found to be admissible, the CAC would require a confidential check to verify membership and support.

23) 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 the Employer stated that an application was submitted to the CAC by the Union on 3 December 2020 but then withdrawn the same day. This application related to the same proposed bargaining unit. It did not mention the URTU agreement. The Employer said that it wrote to the CAC by email of 9 December 2020, pursuant to paragraph 16(2) of Schedule A1 of TULRCA, to request that the CAC give notice of the withdrawal to the Employer, and confirm that no further steps were to be taken under Schedule A1 in relation to this application. The Employer received a response from the CAC the same day confirming that “this application was withdrawn on the same day on which it was submitted and was not therefore processed by the CAC and no further steps have been taken with regard to this application.”

24) Finally, when asked if it had received any other applications in respect of workers in the proposed bargaining unit, the Employer answered “N/A”.

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

25) On 19 May 2021 the Employer’s response to the application was copied to the Union and its comments invited. In its response to the CAC dated 26 May 2021 the Union maintained that the Employer was attempting to prevent the application for recognition based upon an agreement was now defunct. Furthermore, the Union believed that collective bargaining had not taken place at the Llay site since 2009, which not only predated 2 Agriculture Limited’s acquisition of the site on 14 March 2013, but it also predated that of the previous employer VION Agriculture Limited, who transferred the operations, assets, and employees from Cymru Country Feeds Limited on or around 2 January 2011. The Union therefore maintained that the agreement had “withered on the vine” and that it should act as no bar to the Union’s application.

26) The Union considered the Employer’s response to be contradictory as it stated that the Employer appeared to suggest that its application should be declared inadmissible as a collective bargaining agreement already existed on-site, despite the fact that they did not collectively bargain on-site, nor would they as there was no decision making autonomy at a local site level. The Union said that it had attempted to join the agreement alongside URTU, with a view to making representations to expand the bargaining unit to encompass all Unite members so that in future, they would be covered by the collective bargaining agreement, which at the time the Union believed was in effect.

27) The Union explained that it first became aware that URTU had not collectively bargained on-site since 2009 during a phone conversation with Mr Pimbley of URTU in April 2021, which was further evidenced by the Employer’s response that they had “evidence of the appointment of URTU shop stewards and an industrial action ballot from URTU in 2009.” The Union believed that it was notable that the Employer did not appear able to offer any more recent documentary evidence other than that of 2009, which corroborates Mr Pimbley’s assertions. Furthermore, this was also confirmed by David Jones of Acas, who in a meeting with Unite had stated that his notes showed that the last time he provided conciliation services at Llay Mill was 2009 and that his assistance had not been requested since that time. The Union argued that this further corroborated Mr Pimbley’s assertions.

28) It was the Union’s view that collective bargaining had not taken place at the Llay site since 2009, which predated both 2 Agriculture Limited’s acquisition of the site on 14 March 2013, and which also predated the previous employer VION Agriculture Limited who transferred the operations, assets, and employees from Cymru Country Feeds Limited on or around 2 January 2011. The Union said that this was further supported by the Employer’s response that they had “evidence of the appointment of URTU shop stewards and an industrial action ballot from URTU in 2009” yet this was from a different employer than that of both VION Agriculture Limited and 2 Agriculture Limited. The Union said that the Employer appeared unable to offer any more recent documentary evidence of activity such as: annual negotiation agendas; minutes of annual negotiation meetings; agreements reached at conclusion of negotiations; election of shop stewards; formal correspondence between the parties, etc.

29) The Union said that the Employer had made reference to emailed correspondence of 18 February 2021 in which it had requested to “join” the agreement with URTU. The Union explained that this request was made in good faith on the understanding that the agreement was in fact both valid and active. It was subsequently proven inaccurate following discussions held with URTU during late March and early April, which uncovered the fact that URTU had a dwindling membership as a direct result of URTU inactivity on-site since 2009. These discussions led Unite to change its opinion surrounding the validity of the agreement on-site and to proceed with its application for recognition. The Union said that it had noted the Employer’s comments that it operated a check-off system for URTU. Unite contends that this does not substantiate a recognition agreement for the purposes of collective bargaining and that it was merely a chargeable service that was provided to the union. The Union maintained that by the Employer operating the check-off, it was merely providing a service for the Union, and it was not evidence that a recognition agreement for the purposes of collective bargaining existed for any of the matters set out in Section 178 of the Act, which the Union believed must be established by the Employer if it was to be successful in its assertion that such an agreement was effective.

30) The Union submitted that in order to act consistently, the Panel should consider the Panel’s findings in CAC decision Unite the Union & Rettig (UK) Ltd DI/07/(2018).

31) The Union did not believe that written evidence supplied by the Employer could clearly and unequivocally establish the existence of a recognition agreement for the purposes of collective bargaining for one or more of the matters specified in section 178 of TULRCA. The Union referred to “documentary evidence”, by way of a letter from Gavin Berry, Managing Director of 2 Agriculture Limited that, the Union stated, confirmed the pay award for 2021, and which made no reference to collective bargaining having taken place. The Union attached a copy of this letter.

32) The Union also provided a copy of the 2 Agriculture Limited Contract of Employment, which it stated made no reference to collective bargaining or collective agreement affecting terms and conditions contained within. The Union believed that this was further evidenced at paragraph 5.3 of the Contract of Employment which stated: “5.3 Your salary will be reviewed annually entirely at the discretion of the company. There is no guarantee that your salary will be increased as a result of any review.”

33) On 28 May 2021 the CAC copied the Union’s comments to the Employer. In a letter to the CAC dated 31 May 2021 the Employer stated that it had reviewed the Union’s comments on its response and before the Panel made a decision on the matter it wished to make further representations in response to the Union’s comments.

34) The Employer re-iterated its argument that that there was in place a pre-existing voluntary recognition agreement in force with URTU. In particular, it wished the Panel to have regard to the Court of Appeal’s judgment in R (National Union of Journalists) v Central Arbitration Committee (Secretary of State for Trade & Industry Intervening) [2006] ICR 1. The Employer provided a copy of the judgment. In particular, the Employer drew the Panel’s attention to paragraph 21 of the judgment: “… but unless the possibility of the agreement operating is simply not believed in by the parties to it, and as we have seen the CAC did not so find, it is wrong as a matter of contract, or indeed as a matter of logic, to say that an agreement does not come into present force simply on the basis of doubts about its future viability.” And at paragraph 25: “… all that the CAC was looking for, and all that it needed to look for, was an earnest desire to work within the agreement; not evidence that any of its specific provisions had in fact been carried out. Granted that the agreement was in existence, the evidence that the parties had dealt according to any of its terms, even if those were not the terms that gave it its status as a collective agreement, was in my judgement sufficient to show that the written agreement, genuinely signed up to, was not merely a piece of paper.” The Employer maintained that in the present case, its position was that the voluntary recognition with URTU remained in force; that it was genuinely entered into and signed by the parties; and that there remained an earnest desire to work within the terms of this agreement. At no time had the agreement ever been terminated nor had notice of termination been served by either party in accordance with the agreement. Furthermore, it is well established that, provided a recognition agreement covered one or more of the matters specified in Section 178 of TULRCA 1992, there did not have to be collective bargaining on pay, hours and holidays in practice for the agreement to be valid for the purposes of paragraph 35 of Schedule A1 of TULRCA 1992.

35) The Employer submitted that in Transport & General Workers Union v Asda [2004] IRLR 836, the CAC accepted that Section 178 broadly defined the matters described as collective bargaining issues, which set a low threshold in respect of what might amount to collective bargaining for the purposes of paragraph 35 of Schedule A1. In particular, the Employer drew the Panel’s attention to paragraph 22: “There is no requirement for the collective agreement to provide for collective bargaining rights on any of pay, hours, holidays or other terms and conditions of employment. Section 178 defines broadly the matters that it describes as collective bargaining issues and this will have different applications in different circumstances. In the present case, the broad nature of Section 178 coupled with the requirement of paragraph 35 of the Schedule A1, serves to set a low threshold on the matters might be agreed as collective bargaining between the employer and the GMB. Proof of negotiation on only one such matter would still have the effect of rendering another union’s application inadmissible.”

36) The Employer considered that it had submitted proof of a pre-existing relationship with URTU and a genuine commitment to continue this. The Employer said that it had evidence as an employer within its check off system of at least one member of URTU in the bargaining unit in question. It was notable that in the NUJ case referred to above, the union with the pre- existing agreement also only had one member.

37) Finally, the Employer referred to the R (on the application of the Independent Workers Union of Great Britain) v Secretary of State for Business, Energy & Industrial Strategy [2021] EWCA Civ 260, in which the Employer stated, that the Court of Appeal held that there was no breach of a trade union’s ECHR Article 11 right when its application to the CAC for recognition had been denied because the Employer already had a collective bargaining agreement with a different trade union. In that case, the court had emphasised the original spirit and intent of Schedule A1 to TULRCA 1992 which encouraged voluntary agreements and sought to avoid “competing and overlapping collective bargaining arrangements, and ‘turf wars’ between rival unions”. (paragraph 27).

38) On 17 June 2021 the Case Manager wrote to URTU as a party having an interest in the matter within the meaning of paragraph 35(5) of Schedule A1. URTU was asked to comment in relation to the agreement, which came into effect on 1 June 2002, to which the parties were the Employer and URTU.

39) In a letter to the CAC dated 22 June 2021, URTU explained that on undertaking internal investigations in this matter, it could report that it was unable to locate any evidence that the agreement had been used for its purpose of annual negotiations for terms and conditions of employment for a significant number of years. Furthermore, it was unable to locate one current member of URTU who was employed as a driver at the Llay site. URTU therefore believed that the agreement had fallen into disrepute and that it would not stand the test of scrutiny of a current working agreement. Finally, it stated that if Unite could demonstrate the requisite membership numbers to satisfy their claim for sole recognition for the extended bargaining unit inclusive of drivers, URTU would not object.

6. The membership and support check

40) To assist in 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 and of a petition compiled by the Union. 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 dates of birth) and a copy of a petition signed by workers in favour of recognition. 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 23 June 2021 from the Case Manager to both parties.

41) The information requested from both parties was received by the CAC on 28 June 2021. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

42) The list supplied by the Employer indicated that there were 64 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 30 names. According to the Case Manager’s report, the number of union members in the proposed bargaining unit was 30, a membership level of 46.88%.

43) The petition supplied by the Union contained 48 names and signatures, of which 41 were in the proposed bargaining unit, a figure that represents 64.06% of the proposed bargaining unit. Of those 41 signatories, 27 were members of the Union (42.19% of the proposed bargaining unit) and 14 were non-members (21.87% of the proposed bargaining unit). The petition supplied by the Union consisted of 5 A4 sheets, each headed with the Unite logo and set out as follows:

“Unite the Union Recognition Petition

We the undersigned workers who are employed by 2 AGRICULTURE LIMITED at Llay Mill, Miners Road, Llay Industrial Estate, Wrexham ask that Unite the Union be the recognised union that represents all employees at the Llay site (excluding senior managers) for collective bargaining purposes.

This document is strictly private & confidential, this petition will NOT be shown to 2 Agricultural management.”

The 4 columns on the petition were headed “Signature”, “Print”, “Job Title”, and “Date”. The dates on the petition ranged between 19 September 2020 and 24 June 2021.

44) A report of the result of the membership and support check was circulated to the Panel and the parties on 30 June 2021 and the parties were invited to comment on the results of that check by close of business on 5 July 2021.

45) In an e-mail to the CAC dated 2 July 2021 the Union submitted that the Case Manager’s report had demonstrated that the proportion of its union members in the proposed bargaining unit was 46.88%, and that it had therefore exceeded the requirement of the first test. The Union further stated that with regard to the second test, the report had shown that 64.04% of the workers in the bargaining unit had signed its petition in favour of recognition.

46) In a letter to the CAC dated 2 July 2021 the Employer emphasised that its primary position remained that there was a pre-existing agreement in place with URTU. The Employer continued, that without prejudice to that stated position, it wished to make the following comments on the membership check; With regard to membership density: The Case Manager’s report showed the that the Union’s membership density in their proposed bargaining unit was 46.88%, which was above the 10% threshold and it therefore agreed that the Union had satisfied the first test.

47) With regard to the second test, the Employer maintained that while on the face of it, at 64.06% of the proposed bargaining unit it could be seen to indicate majority support, the Employer had misgivings as to whether this was truly representative of the ultimate outcome should the question be put to a secret ballot, for the following reasons:

i. The question posed by the Union in its petition pre-supposed an understanding of the concept of “collective bargaining”. With respect, the Employer was unsure whether all signatories would have understood the implications of this. In particular: Workers might merely support the Union’s right to be recognised; Signatories might only support the Union’s right to engage in collective bargaining; “Collective bargaining” was a term that could be misunderstood by workers; It was unclear that the Union would conduct collective bargaining on behalf of all workers in the proposed bargaining unit; and, the petition statement was unclear about the statutory bargaining topics of pay, hours of work, and holidays.

ii. Only 42.19% of the workers in the proposed bargaining unit who signed the petition were union members. This was fewer than the total percentage of union members in the proposed bargaining unit (46.8%). Accordingly, this showed that the CAC could not make a presumption that all union members would favour collective bargaining.

iii. The Union was relying on aged petition evidence. The petition was carried out over a protracted period from 19 September 2020 to 24 June 2021 (i.e. commencing almost a year ago) and as such it could no longer be said with confidence to reflect the views of workers.

7. Considerations

48) 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.

49) 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, 34 and 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the application is inadmissible under paragraph 35 and whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

8. Paragraph 35

50) In accordance with paragraph 35, an application to the CAC under paragraph 11 or 12 is not admissible if the CAC is satisfied that there is already in force a collective agreement under which an independent trade union is recognised as entitled to conduct collective bargaining on behalf of any workers falling within the bargaining unit proposed by the union.

51) The one exception to this rule can be found in paragraph 35(2), which allows for the union that is already recognised by an employer for matters other than pay, hours or holidays to make an application for recognition in respect of these matters, but this exception is not applicable in this case before us.

52) The Employer argues that in respect of the Drivers at the Llay site, the application is barred by provisions of paragraph 35 of the Schedule. The Union submits that collective bargaining had not taken place at the Llay site since 2009, which it argued not only predated 2 Agriculture Limited’s acquisition of the site on 14 March 2013, but it also predates that of the previous employer VION Agriculture Limited, who transferred the operations, assets, and employees from Cymru Country Feeds Limited 2 January 2011. The Union therefore considers the agreement to be defunct.

53) By letter dated 22 June 2021 URTU confirmed that it was unable to locate any evidence that the agreement had been used for its purpose of annual negotiations for terms and conditions of employment for a significant number of years. It therefore believed the agreement had fallen into disrepute. The Panel considers that URTU’s letter of 22 June 2021 provides unequivocal evidence that there is no existing collective agreement in force under which URTU is recognised as entitled to conduct collective bargaining on behalf of workers in the Union’s proposed bargaining unit. As such, the application is not barred by the provisions of paragraph 35 of the Schedule.

9. Paragraph 36(1)(a)

54) 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.

55) The support check conducted by the Case Manager, described in paragraph 43 above, showed that 64.06% of workers in the agreed bargaining unit (41 out of 64 workers) had signed a petition in favour of recognition. Of those who had signed the petition 27 were union members (64.06% of the proposed bargaining unit) and 14 were non-members (21.87% of the proposed bargaining unit).

56) The Panel considered carefully the Employer’s submission in effect that workers’ views may have changed since they had signed the petition. The Panel is not satisfied that it has been presented with sufficient evidence to demonstrate that the level of support disclosed by the petition is no longer reflective of the position and has changed. Nor has evidence been produced demonstrating a lack of support for trade union recognition from those within the proposed bargaining unit. The Panel also considers that the wording of the petition is sufficiently clear and unambiguous about the Union seeking recognition.

57) Therefore, given the level of union membership and support demonstrated by the petition, and in full consideration of the evidence made available, the Panel finds that the majority of the workers would be likely to support recognition of the Union and that the test set out in paragraph 36(1)(b) is therefore met.

10. Decision

58) For the reasons given in paragraphs 49 - 57 above the Panel’s decision is that the application is accepted by the CAC.

Panel Ms Naeema Choudry

Mrs Fiona Wilson

Mr Richard Fulhan

30 July 2021