Decision

Acceptance Decision

Updated 16 October 2019

Case Number: TUR1/1131(2019)

09 September 2019

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

Felixstowe Port Container Services Ltd

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 12 August 2019 that it should be recognised for collective bargaining by Felixstowe Port Container Services Ltd (the Employer) for a bargaining unit comprising “All persons employed as Refrigeration Engineers”. The CAC gave both parties notice of receipt of the application on 12 August 2019. The Employer submitted a response to the CAC which was received on 22 August 2019 and 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 Charles Wynn-Evans, Chairman of the Panel, and, as Members, Mr David Coats and Mr Rob 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 27 August 2019. The acceptance period was extended to 13 September 2019 in order to allow time for the Panel to consider all the evidence before arriving at a decision. 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.

2. The Union’s application

5) In its application the Union explained that it had initially written to the Employer on 26 November 2019 formally requesting recognition, and then sent a further “follow up” letter to the Employer on 23 January 2019. The Union then wrote again on 29 July 2019 formally requesting recognition. The Union stated that it had not received a response from the Employer, albeit that the Employer “had indicated informally that they are not prepared to voluntary recognise for the group.” A copy of the correspondence referred to above was attached to the Union’s 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 “Yes – Rejected 7/7/19 as a result of a clerical error (failure to inform employer.” 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) According to the Union, there were approximately 24 workers in total employed by the Employer, 19 of whom were in the proposed bargaining unit. The Union said that 14 of the workers in the proposed bargaining unit were in membership. When asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union said that it could provide to the CAC a petition signed by 16 members of the bargaining unit “calling for union recognition for collective bargaining”.

8) The Union explained that it had selected the bargaining unit on the basis that it was a coherent and distinct group comprising all manual workers employed by Felixstowe Port Container Services. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “Yes”. 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 12 August 2019.

3. The Employer’s response to the Union’s application

10) In its response to the application the Employer said that it had responded to the Union’s original request in March 2019. This request was subsequently withdrawn by the Union and a new request was made on 18 April 2019, to which the Employer had responded on 14 June 2019. However, in July 2019, this application was not accepted by the CAC. The Employer stated that the Union’s latest (third) request, was made on 29 July 2019. The Employer explained that as per its earlier responses in March and June, it had not responded in writing. The Employer said that it had responded verbally informing the Union that, as Felixstowe Port Container Services was a joint venture with another company (Cosco), the matter therefore needed to be discussed with Cosco. The Employer had stated that “on behalf of its partners, we confirm that we do not wish to grant collective bargaining to this group of workers.” The Employer said that it had also informed the Union that it was considering “whether to outsource this function”.

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 12 August 2019. When asked whether it had agreed the bargaining unit with the Union before receiving a copy of the application form from the Union, the Employer stated that it understood that the application related to the refrigeration part of the business.

12) When asked whether it agreed with the proposed bargaining unit, the Employer said the Union had stated that everyone was employed as a “Refrigeration Engineer”. The Employer said that there was in fact a combination of Monitoring Technicians, Reefer Supervisors and a Terminal Supervisor. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

13) The Employer stated that the Union had maintained that within its third application there were 19 workers in the proposed bargaining unit, but within its second application the Union had stated that this figure was 16. The Employer said that there were currently 15 workers in the proposed bargaining unit “with 2 pending leavers and 1 other leaving”. The Employer stated that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

14) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer answered “We have no reason to disagree”. 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 answered “We have no evidence to submit on this”.

15) When asked whether it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, the Employer referred to its response to an earlier question, as set out in paragraph 10 above.

4. Additional comments from the parties

16) On 22 August 2019 the CAC copied the Employer’s response to the application to the Union and its comments were invited. In an e-mail dated 29 August 2019 the Union said that there did not appear to be any disagreement regarding the constitution of the bargaining unit or the numbers, as both parties were clear which workers were included. It was therefore the Union’s view that both parties were essentially in agreement over the significant facts.

5. Considerations

17) In deciding whether to accept the application the Panel must determine whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

18) The Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 and that it was made in accordance with paragraph 11 of the Schedule. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

6. Paragraph 36(1)(a)

19) 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. In its application the Union said that it had 14 union members in its proposed bargaining unit consisting of 19 workers. When invited to comment on this claim, the Employer said “we have no reason to disagree”. The Panel notes that there appears to be some doubt as to whether the bargaining unit is 19, 15 or somewhere in between in terms of employee numbers. However, on any analysis there is a very strong membership level within the proposed bargaining unit, a matter which the Employer has not sought to challenge.

20) In light of the Union’s assertion as to its level of membership, which has not been contradicted or disputed by the Employer in its response, and on the balance of probabilities on the basis of the information available, the Panel is satisfied that the 10% threshold has been satisfied.

7. Paragraph 36(1)(b)

21) 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. The Panel is tasked therefore to determine likely, not actual, majority support for Union recognition. In its application the Union stated that it had a majority of the workers in membership. The Employer responded “we have no evidence to submit on this” when asked to give reasons if it did not consider that the majority of the workers in the proposed bargaining unit would support recognition of the Union.

22) As with the test in paragraph 36(1)(a), the Employer has not disputed the Union’s assertion that it has a majority of workers in the proposed bargaining unit in membership. The Panel has therefore concluded that, in light of the Union’s declaration of its level of members within the bargaining unit, it is likely that a majority favour recognition.

23) For the reasons given above the Panel is satisfied that, on the balance of probabilities, a majority of the workers in the proposed bargaining unit would be likely to support recognition of the Union and that the test set out in paragraph 36(1)(b) is therefore met.

24) Finally, as stated in paragraph 19 above, the Panel notes that there appears to be a discrepancy in the figures provided by the parties on the number of workers in the Union’s proposed bargaining unit. However, in view of its decision that the admissibility criteria set out in paragraph 36 have been met, the Panel has not found it necessary to investigate this further at this stage for the purposes of this decision. This does not preclude the Panel from undertaking further investigations at a later stage of the process should it consider this to be appropriate.

8. Decision

25) For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Charles Wynn-Evans, Deputy Chairman of the CAC

Mr David Coats

Mr Rob Lummis

09 September 2019