Decision

Validity Decision

Updated 10 May 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1253(2022)

9 May 2022

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING AGREEMENT OF THE BARGAINING UNIT

The Parties

Unite the Union

and

Enfinium Ferrybridge 1 Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 18 February 2022 that it should be recognised for collective bargaining purposes by Enfinium Ferrybridge 1 Limited (the Employer) for a bargaining unit comprising “all employees at Ferrybridge (to cover Ferrybridge 1 and 2).” The location of the bargaining unit was given as Enfinium Ferrybridge 1 & 2, Ferrybridge, Kirkham Lane, Knottingley, West Yorkshire WF11 8DX. The application was received by the CAC on 21 February 2022 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 25 February 2022 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 Stuart Robertson, Panel Chair, and, as Members, Mr Sean McIlveen and Mr David Coats. The Case Manager appointed to support the Panel was Joanne Curtis.

3) By a decision dated 17 March 2022 the Panel accepted the Union’s application. The parties then entered a period of negotiation to reach agreement on the appropriate bargaining unit. On 12 April 2022 the Union notified the CAC that they were unable to agree a bargaining unit. The CAC therefore arranged a formal hearing to determine the issue on 26 April 2022. At the formal hearing discussions took place between the parties and an agreement as to the appropriate bargaining unit was reached, namely: “All workers at Ferrybridge 1 & 2 sites employed by Enfinium Ferrybridge 1 Limited, excluding senior managers and the management administrative team comprising of Plant Manager, Financial Controller, FP&A Manager, Marketing Manager North, Operations Manager, Maintenance Manager, QHS Manager, QHS Officer, Environmental Manager, Environmental Officer, Plant Accountant, Assistant Accountant, Administrator/Document Controller and Purchasing Stock Controller.” This differed from the original bargaining unit proposed by the Union which was “all employees at Ferrybridge (to cover Ferrybridge 1 and 2).”

4) The new bargaining unit included 83 workers. The membership and support check conducted on 4 March 2022 had shown a total of 102 workers in the original proposed bargaining unit, therefore the new bargaining unit involved a decrease in numbers.

2. Issues

5) As the bargaining unit agreed by the parties differed from that proposed by the Union, paragraph 20 of Schedule A1 to the Act (the Schedule) requires the Panel to decide whether the Union’s application is valid within the terms of paragraphs 43 to 50 of the Schedule. The matters that the Panel must consider are: -

• is there an existing recognition agreement covering any of the workers within the new bargaining unit? (paragraph 44)

• is there 10% union membership within the new bargaining unit? (paragraph 45(a))

• are the majority of the workers in the new bargaining unit likely to favour recognition? (paragraph 45(b))

• is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? (paragraph 46)

• has there been a previous application in respect of the new bargaining unit? (paragraphs 47 to 49)

3. Case Manager’s membership check

6) To assist in the determination of two of the validity tests specified in the Schedule, namely, whether 10% of the workers in the new bargaining unit were members of the union (paragraph 45(a)) and whether a majority of the workers in the new bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 45(b)), the Panel proposed an independent check of the level of union membership within the new bargaining unit. The Employer agreed to supply to the Case Manager a list of the names, addresses and job titles of the workers within the new bargaining unit and the Union agreed to supply to the Case Manager a list of the full names, addresses and membership status of its members within that unit. 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 from the Case Manager to both parties dated 26 April 2022. The information from the Union was received by the CAC on 27 April 2022 and from the Employer on 29 April 2022

7) The results of the check showed that there were 83 workers and 71 union members in the new bargaining unit. Seven names appearing on the Union’s membership list did not appear on the list provided by the Employer. Based on the names appearing in common on the parties’ lists, the report established that the Union had a membership level of 74.70% within the new bargaining unit. The report of the check was issued to the parties and the Panel on 29 April 2022. The Panel was satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

8) The CAC invited the parties’ comments on the results of the membership check and on the validity factors set out in the Schedule. Neither party challenged the accuracy of the results or contended that any of the validity requirements were not satisfied.

4. Considerations

9) The Panel must decide whether the Union’s application is valid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision the Panel has considered the parties’ submissions and the other evidence before it. On the evidence available, the Panel is satisfied that:

• there is no existing recognition agreement covering any of the workers within the agreed bargaining unit;

• there is no competing application from another union; and

• there has been no previous application in respect of the agreed bargaining unit.

10) The remaining issues for the Panel to decide are whether the validity criteria contained in paragraphs 45(a) and (b) are met.

5. Paragraph 45

11) Paragraph 45 of the Schedule states an application is invalid unless the Panel decides that (a) members of the union constitute at least 10% of the workers in the determined bargaining unit and (b) a majority of the workers constituting the determined bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of that bargaining unit.

Paragraph 45(a)

12) Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the union constitute at least 10% of the workers in the agreed bargaining unit. The CAC conducted a membership and support check. The results appear at paragraph 7 above. Based on those results, the Panel finds that this test is satisfied.

Paragraph 45(b)

13) Under paragraph 45(b) of the Schedule, an application is invalid unless the Panel decides that a majority of the workers constituting 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.

14) The membership and support check identified that 74.70% of the workers in the agreed bargaining unit were members of the Union. This is a legitimate indicator of likely support for recognition of the Union for collective bargaining purposes. The Employer has not provided any evidence to demonstrate that the majority of the workers were no longer likely to favour recognition of the Union to conduct collective bargaining on their behalf. On the evidence before it, the Panel has decided that, on the balance of probabilities, 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, as required by paragraph 45(b) of the Schedule.

6. Decision

15) The decision of the Panel is that the application is valid for the purposes of paragraph 20 of the Schedule and the CAC must proceed with the application.

Panel

Mr Stuart Robertson, Panel Chair

Mr Sean McIlveen

Mr David Coats

9 May 2022