Decision

Acceptance Decision

Updated 17 December 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1217(2021)

24 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:

Unite the Union

and

DHL Parcel UK Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 16 April 2021 that it should be recognised for collective bargaining purposes by DHL Parcel UK Limited (the Employer) in respect of a bargaining unit comprising “Linehaul Drivers based at Ryton in Coventry.” The location of the bargaining unit was given as “DHL Parcel UK Limited, Hillman Way, Ryton-on-Dunsmore, Coventry, CV8 3ED.” The application was received by the CAC on 16 April 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 23 April 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 Tariq Sadiq, Panel Chair, and, as Members, Ms Stephanie Marston and Mr Robert Lummis. 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 30 April 2021. The acceptance period was extended on two further occasions in order to allow time for a membership check and a revised check to take place, for the parties to comment on the subsequent reports and for the Panel to consider the comments before arriving at a decision. The final extension ends the acceptance period on 26 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 26 March 2021. By e-mail dated 1 April 2021 the Employer had rejected the Union’s request on the grounds that it was incompatible with effective management. A copy of the Union’s request and the Employer’s response to that request 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 said that no other applications had been made with regard to this or a similar group. 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. The Union further added that “Unite proposed an approach towards Acas.”

7) The Union stated that the total number of workers employed by the Employer was 300, and there were 38 workers in the proposed bargaining unit, of whom 26 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 explained that it was willing to undertake a petition, which it could supply to the CAC along with its membership list, on a confidential basis.

8) When asked for its reasons for selecting its proposed bargaining unit, the Union explained that its members at DHL Ryton had approached the Union requesting that it made a formal approach to the Employer to seek and secure trade union recognition for the purpose of collective bargaining and negotiations for terms and conditions.

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 16 April 2021.

10) Finally, the Union said there had not been a previous application in respect of this or a similar bargaining unit, nor was there an existing recognition agreement that covered any of the workers in the agreed bargaining unit.

4. Summary of the Employer’s response to the Union’s application

11) In its response to the Union’s application the Employer stated that it had received the Union’s latest written request for recognition on 26 March 2021. The Employer explained that the Union had sent several requests on different dates, and that it had enclosed with its response correspondence exchanged between the parties following those earlier requests. The Employer said that by e-mail of 12 April 2021 it had responded as follows to the Union’s latest request, “The Company feels that it would not be appropriate to accept your request for voluntary recognition because the bargaining unit you propose is not appropriate because it is not compatible with effective management, and the company needs to avoid small, fragmented bargaining units. We have already provided full reasons in our correspondence to you of 21 August and 4 December 2020.” A copy of the Union’s letter of 26 March 2021 and the Employer’s e-mail of 11 March 2021 were attached to its response.

12) The Employer stated that it had received a copy of the Union’s latest application form from the Union on 26 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. Furthermore, the Employer reiterated its views on the proposed bargaining unit, as set out in paragraph 11 above.

13) The Employer stated that, following receipt of the Union’s request, the Union had proposed that Acas be requested to assist. A meeting was held with the Union and Acas on 3 February 2021.

14) 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.

15) 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 any first-hand knowledge of the number of union members in the proposed bargaining unit

16) 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 that it did not know if the majority of the workers in the proposed bargaining unit would support recognition.

17) The Employer answered “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. When asked whether it had received any other applications in respect of workers in the proposed bargaining unit, the Employer said that the Union had sent “several A1 letters” since August 2020 but they were withdrawn.

5. 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 agreed 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 independent checks of the level of union membership within the bargaining unit and the number of workers in the unit who had signed an e-petition supporting recognition of 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 full names and dates of birth and a copy of an e-petition in support 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 28 April 2021 from the Case Manager to both parties. The information requested from both parties was received by the CAC on 30 April 2021.

19) The list supplied by the Employer contained the names of 40 workers and the list supplied by the Union contained the names of 25 members.

20) The Union also provided the results of an e-petition. This took the form of a spreadsheet with columns headed: “Respondent ID”, Collector ID”, “Start Date”, “End Date”, “IP Address”, “Your Details, Name”, “Shift”, “E-mail Address”, “Phone Number”, and “Are you a member of Unite the Union?”. There were 37 entries on the spreadsheet, 36 of which had a unique IP address. The dates given for the “Start Date” and “End Date” of the e-petition ranged between 19 February 2021 and 7 April 2021.

21) The Union also provided a blank copy of its e-petition form with fields for the workers to complete. At the top of the page it stated:

“Please support the recognition for Unite the Union at DHL Parcels! We the undersigned employees of DHL Parcels, Coventry Depot, wish to have Unite the Union as our union of choice for recognition for the purposes of collective bargaining.”

Beneath this were boxes for individuals to enter their name, shift, e-mail address, and phone number, followed by the question “Are you a member of Unite the Union?” to which individuals could select from the following options, “Yes”, “No - I’m a member of another union”, “No - but I’m interested in joining, contact me with more information”, or “No”.

22) According to the Case Manager’s report, the number of Union members in the agreed bargaining unit was 24, a membership level of 60%. The check of the e-petition showed that it had been signed by 35 workers in the proposed bargaining unit, a figure which represents 87.5% of the proposed bargaining unit. Of the 35 signatories, 24 were members of the Union (60% of the bargaining unit) and 11 were non-members (27.5% of the bargaining unit). A report of the result of the checks was circulated to the Panel and the parties on 5 May 2021 and the parties’ comments invited. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

23) The Employer, in a letter dated 7 May 2021, explained that it had come to light that in error it had included four workers who were Shunter Drivers and therefore did not fall within the Union’s proposed bargaining unit, which related only to Linehaul Drivers. Therefore, there were 36 Linehaul Drivers in the proposed bargaining unit, and not 40. The Employer stated that if the Panel agreed to its request for a revised membership and support check, it was happy to provide an updated list to the CAC as this would ensure that the data analysis reflected the true situation.

24) In view of the Employer’s comments, the Panel asked the Case Manager to carry out a further check using the parties’ revised lists to establish the level of union membership in the proposed bargaining unit.

6. The second membership and support check

25) On 10 May 2021 the Employer provided a spreadsheet with the details of 36 workers and the Union submitted the details of 24 members. The Union also relied on the e-petition, the details of which are as set out in paragraphs 20 - 21 above.

26) According to the Case Manager’s revised report, the number of Union members in the agreed bargaining unit was 23, a membership level of 63.89%. The check of the e-petition showed that it had been signed by 32 workers in the proposed bargaining unit, a figure which represents 88.89% of the proposed bargaining unit. Of the 32 signatories, 20 were members of the Union (55.56% of the bargaining unit) and 12 were non-members (33.33% of the bargaining unit). A report of the result of the checks was circulated to the Panel and the parties on 11 May 2021 and the parties’ comments invited. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

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

27) In an e-mail to the CAC, dated 14 May 2021, the Union stated that the only comment it wished to make was that there were no duplicates on the-e petition or the membership listing.

28) No further comments were received from the Employer.

8. Considerations

29) 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.

9. Paragraph 36(1)(a)

30) 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. The revised membership check conducted by the Case Manager (described in paragraphs 25 - 26 above) showed that 63.89% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 26 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)

31) 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. For the reasons given in paragraph 30 above, the level of union membership within the bargaining unit stands at 63.86%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition. No such evidence to the contrary was received in this case.

32) The Panel would have been prepared to decide, on the balance of probabilities, that a majority of the workers in the proposed bargaining unit would be likely to support recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit on the basis of the level of union membership alone. In this case the Union provided further evidence of support for recognition in the form of the petition (see paragraphs 20 - 21 and 26 above) which showed that 88.89% of the workers in the proposed bargaining unit supported recognition.

33) On the basis of the evidence before it the Panel has decided, on the balance of probabilities, that 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

34) For the reasons given in paragraphs 30 - 33 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Tariq Sadiq, Panel Chair

Ms Stephanie Marston

Mr Robert Lummis

24 May 2021