Decision

Form of Ballot Decision

Updated 12 May 2025

Applies to England, Scotland and Wales

Case Number: TUR1/1447(2025)

12 May 2025

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON FORM OF BALLOT

The Parties:

Unite the Union

and

Culina Logistics Limited

1. Introduction

1)         Unite (the Union) submitted an application to the CAC dated 17 January 2025 that it should be recognised for collective bargaining purposes by Culina Logistics Limited (the Employer) for a bargaining unit comprising “all warehouse operatives (currently referred to as General Warehouse Operatives and Warehouse Operatives) working at the Culina Logistics Warehouse at the Port of Tilbury (Culina Logistics Ltd, Berth 45, Port of Tilbury, Tilbury, Essex RM18 7EH).” The location of the bargaining unit was given as “Culina Logistics Ltd, Berth 45, Port of Tilbury, Tilbury, Essex RM18 7EH.” The application was received by the CAC on 17 January 2025 and the CAC gave both parties notice of receipt of the application that same day.  The Employer submitted a response to the CAC dated 24 January 2025 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 Rohan Pirani, Panel Chair, and, as Members, Mr David Cadger and Mr Steve Gillan. The Case Manager appointed to support the Panel was Joanne Curtis.

3)         By a decision dated 3 March 2025 the Panel accepted the Union’s application.  Following this decision, the parties then reached agreement on the appropriate bargaining unit. The agreed bargaining unit was described as “Warehouse Operatives, General Warehouse Operatives and Hygiene operatives”. As the agreed bargaining unit differed from that proposed by the Union, the Panel was required by paragraph 20 of Schedule A1 of the Act (the Schedule) to decide whether the Union’s application was invalid within the terms of paragraphs 43 to 50 of the Schedule.  In a decision dated 16 April 2025 the Panel decided that the application was not invalid, and that the application should proceed.

4)         In a letter from the Case Manager dated 16 April 2025, the Union was asked whether it claimed that a majority of workers constituting the bargaining unit were members of the Union. By an email dated 16 April 2025 the Union said that it did not believe it had majority membership within the bargaining unit.

2. Issues

5)         On 16 April 2025, the Panel, not satisfied that a majority of the workers constituting the bargaining unit were members of the Union, gave notice in accordance with paragraph 23(2) of the Schedule that a secret ballot would be held. The Panel also advised the parties that it would wait until the end of the notification period of ten working days, as specified in paragraph 24(5) of the Schedule, before arranging a secret ballot. The parties were also asked for their views on the form the ballot should take.

6)         The notification period under paragraph 24(5) ended on 1 May 2025. The CAC was not notified by the Union or by both parties jointly that they did not want the ballot to be held, as per paragraph 24(2) of the Schedule.

3. Unions’ submissions on the form of ballot

7)         In an email dated 16 April 2025 the Union said it would request a workplace ballot because it was concerned that many of the members and non-members in the bargaining unit were experiencing problems getting their wage slips because their addresses were wrong on the system. The Union said it was concerned that “were there to be a postal ballot and the addresses to which the ballot papers were sent was inaccurate this would cause issues.” On 17 April 2025 the Union elaborated on the system used by the Employer where workers could change their address and book holidays. The Union said that the system used was called “SAP.” The Union said “our members report  they are unable to update SAP, the employer is aware of this with ongoing issues for 1.5 years, due to this issue it is reported by members that  the employer currently  relies on holiday requests being made manually, in addition changes of address issues have been raised, changes to address  requests are not being updated , employer states it is IT issue.”

8)         The Union went on to say that many of its members never received the information sent out by the SIP and that it had also been reported that non-members had never received the SIP information. The Union said that it believed this was due to the address information not being updated. In addition, the Union said that the Employer had a diverse work force and that many workers may need assistance in another language because of their limited English language skills.  The Union added that a workplace ballot would allow support by providing translation notices and assistance.

9)         The Union said that a postal ballot would not allow a fair opportunity for all the workers in the bargaining unit to vote due to the reasons mentioned above and asked the Panel to take all of the comments into consideration when making a decision. The Union went on to give the Panel an idea of the shift patterns in the workplace:

“The employer has a 4 shift in operation (Day 1 and 2 and Night 1and 2) these shifts would require and Days shift, a ballot in the workplace would need to cover all 5 shifts patterns.”

The Union added to this saying:

“The shift patterns are 6am till 6pm Monday to Saturday

Days 1 - 4 days on shift 4 days off covered by opposite Days Shift 2

Day 2    - 4 days on shift 4 days off covered by opposite Days Shift 1

Nights 1 - 4 Nights on shift, 4 nights off shift covered by opposite Night Shift 2

Nights 1 - 4 Nights on shift, 4 nights off shift covered by opposite Night Shift 2

The shift pattern moves a day per week as there are only 7 days in a week not 8

Potential to complete a ballot at shift changes to capture both incoming and outgoing shifts, but this would need to take place over several days to capture both of the days and both of the nights due to 4 on 4 off.”

10)       In an email dated 28 April 2025 the Union went on to provide a further explanation of shift patterns and how a workplace ballot could work practically saying:

“Days 1 = 6am-6pm, days 2 = 6am-6pm, on an alternating 4 on 4 off pattern.

Nights 1 = 6pm-6am, nights 2 = 6pm-6am, on an alternating 4 on 4 off pattern.

The nights 1 rota runs adjacent to the days 1 rota, and the nights 2 rota runs adjacent to the days 2 rota.

There are also two Monday-Friday shifts – one running 6am-2pm and the other running 9.30am-6pm.

Unite believes that a ballot over two weekdays (straddling the last day of a “days/nights 1” shift and the first day of a “days/nights 2” shift) and held between 1pm and 9pm would capture all shift patterns and give everyone in the proposed bargaining unit the opportunity to cast their vote.”

11)       In relation to the loss of 150 production hours the Employer said it would lose through a workplace ballot the Union said that the same loss of production did not concern the Employer “when they carried out a presentation to the workforce taking them upstairs in groups of 10 to talk about implications of Union recognition and conduct their own ballot. In addition, it is reported that One HR IT system is so difficult to install and get access due to authentication app required that the majority of workforce from non-UK struggle with English language and don’t use it, addresses will not be accurate on record, therefore a workplace ballot is required to ensure a fair process.”

4. Employer’s submissions on the form of ballot

12)       The Employer said that its operation was extremely time sensitive due to working in the fresh food network, and that any delays or disruption to the operation would have a severe impact on the service the Employer gave to its customers.

• “Cost implications, it would take roughly 30 mins per colleague to allow them off the floor to be able to vote and that would result in approximately 150 hours of lost productive time.

• There will be additional costs as we will need to back fill with overtime to ensure we maintain a timely operation and meet customer Service Level Agreements.

• The cost of a postal ballot would be significantly less and would be minimal disruption to Culina’s Operations.

We have written to all colleagues within the Bargaining Unit to remind them that our OneHR platform is a self-service system, and it is their responsibility, as they are aware, to ensure that their contact and personal details are up to date. We have offered support for anyone who maybe experiencing issues accessing the system and we have given them a deadline of 12th May 2025 to make any updates. In response to the Union concerns with regards to colleagues who may need assistance in another language, within Culina Logistics we advocate that our one common language is English and all training and written communication is in English. Using a postal ballot will also give our colleagues more time if they need support to fully understand the ballot paper.”

13)       In a further email dated 30 April 2025 the Employer said that in addition to its previous response regarding the concerns the Union had that postal addresses were not up to date. The Employer had tried to further negate such concerns and had also “emailed all shift managers attaching relevant user guides for colleagues, should they be approached for support and as a final back stop, if there are any major technical difficulties which the managers are unable to resolve, I have provided the managers with a copy of a manual form, the colleagues can complete and we will have the system updated accordingly.”

5. Considerations

14)       When determining the form of the ballot (workplace, postal or a combination of the two methods), the CAC must take into account the following considerations specified in paragraphs 25(5) and (6) of the Schedule:

(a)        the likelihood of the ballot being affected by unfairness or malpractice if it were conducted at a workplace;

(b)       costs and practicality;

(c)        such other matters as the CAC considers appropriate.

15)       The parties have put forward two different types of ballots for the Panel to consider. The Union have argued for a workplace ballot, whereas the Employer has submitted that the ballot should be a postal ballot.

16)       The Panel has considered carefully the arguments of both parties and taken into account the considerations specified at paragraph 14 above:

(a) In the judgement of the Panel, there is no evidence to suggest that a workplace ballot would likely be affected by unfairness or malpractice. However, the Panel is persuaded that a postal vote would enable private consideration of voting preference and is most likely to result in an outcome in which the parties have confidence. The Panel noted the comment of both parties regarding languages spoken at the site and the Panels view is that this further supports a postal ballot.

(b) In the judgement of the Panel, a postal ballot would incur lower costs. Further, when assessing the issue of practicality, the Panel has taken into account both the practical needs of workers in terms of accessibility and participation, and the practical needs of the Employer, in terms of the shift patterns at the workplace and the potential for a workplace ballot to disrupt commercial activity given the shift pattern and overtime system currently in place as described by the Employer. In particular, the Panel have noted and considered the specific concerns raised by the Union concerning problems with addresses, updating relevant data on SAP and language skills. We have also taken into account the measures set out by the Employer to mitigate these concerns. In our assessment, although the matters set out by the Union are significant, the steps set out by the Employer are proportionate, on point and likely to be effective. In addition, we have factored in the time sensitive nature of the Employer’s business and operation. It is the assessment of the Panel that a postal ballot is far more practical for both parties than a workplace ballot.

(c) No other considerations were deemed as appropriate.

6. Decision

17)       The decision of the Panel is that the ballot should be a postal ballot.

18)       The name of the QIP appointed to conduct the ballot will be notified to the parties shortly as will the period within which the ballot is to be held.

Panel

Mr Rohan Pirani, Panel Chair

Mr David Cadger

Mr Steve Gillan

12 May 2025