Decision

Acceptance Decision

Updated 26 October 2020

Case Number: TUR1/1173(2020)

28 May 2020

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

Hayakawa International (UK) Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 7 May 2020 that it should be recognised for collective bargaining by Hayakawa International (UK) Limited (the Employer) for a bargaining unit comprising “all workers in the engineering, production and warehousing departments not inclusive of supervisory or management level”. The location of the bargaining unit was given as 5, Davy Way, Llay Industrial Estate, Llay, Wrexham, Clwyd, Wales LL12 0PG. The CAC gave both parties notice of receipt of the application on 11 May 2020. The Employer submitted a response to the CAC dated 14 May 2020 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 Professor Gillian Morris, Panel Chair, and, as Members, Mrs Susan Jordan and Ms Fiona Wilson. The Case Manager appointed to support the Panel was Nigel Cookson.

3) The CAC Panel extended the acceptance period in this case. The initial period expired on 22 May 2020 and this was extended to 3 June 2020 to allow time for the Panel to consider the parties’ comments on the membership and support check and to formulate its decision.

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, when asked to provide the date of its formal request for recognition to the Employer and for a brief summary of the Employer’s response, said “please see attached correspondence”. The Union attached to its application a request letter to the Employer dated 21 April 2020 and the Employer’s response to that request dated 30 April 2020. In its response the Employer asked the Union to address the “validation requirements” of its request for recognition which the Employer said it had asked for in previous correspondence with the Union. The Employer said that it did not see any point in agreeing to negotiation via Acas without confirmation that the application was “valid and compliant within the parameters” of the Schedule.

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 “Not applicable”. 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 adding that the “Union attempted to engage with ACAS mediation” but the Employer’s HR representative had “frustrated the issues”.

7) The Union stated that the total number of workers employed by the Employer was 30. The Union stated that there were 17 workers in the proposed bargaining unit, of whom 12 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 said that it had documentary evidence of members in its membership data system plus additional supporting evidence by way of a petition which would be made available to the CAC at the appropriate time.

8) The Union stated that the reason for selecting the proposed bargaining unit was because it believed it was appropriate for the effective management of the business and easily identifiable to both parties. The Union said that the bargaining unit had not been agreed with the Employer. The Union said that there was no existing recognition agreement of which it was aware which covered any of the 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 7 May 2020.

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 21 April 2020. The Employer attached a copy of its response to the request dated 30 April 2020 summarised in paragraph 5 above. The Employer also attached a copy of earlier correspondence between the parties.

11) The Employer confirmed that it had received a copy of the Union’s application form from the Union on 7 May 2020. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union and that it did not agree it. The Employer gave as its explanation for objecting to the proposed bargaining unit a failure by the Union to clarify and provide evidence of required membership numbers, or production of any evidence that a majority of the workforce were in favour of recognition. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

12) The Employer stated that it agreed with the number of workers in the proposed bargaining unit as defined 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.

13) Asked to give reasons if it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer said “No evidence supplied by the Union to date”. When asked 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 “Unable to confirm or answer at present”.

14) When asked if it was aware of any previous application under the Schedule made by the Union in respect of this or a similar bargaining unit the Employer said “Application on 6 May 2020, subsequently withdrawn”.

5. The membership and support check

15) 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 in support of recognition. 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 the workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of the names and dates of birth of its paid up members within that unit and a copy of a petition signed by workers in the proposed bargaining unit in favour of recognition. It was explicitly agreed with both parties that to preserve confidentiality the respective lists and petition would not be copied to the other party and that agreement was confirmed in a letter dated 18 May 2020 from the Case Manager to both parties.

16) The information from both the Union and the Employer was received by the CAC on 18 May 2020. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

17) The list supplied by the Employer indicated that there were 16 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 12 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 12, a membership level of 75%.

18) The petition supplied by the Union took the form of 13 individual slips each signed by one person. Each slip was headed with the Unite logo under which was the proposition:

I the undersigned, support recognition of UNITE THE UNION for collective bargaining at HAYAKAWA INTERNATIONAL UK LTD including on matters of pay, hours and holidays.

There then followed a small table with columns headed Job Title and Name (Block capitals) and another row for the information to be entered. Under this table was a line where individuals were invited to sign and date. The signatures on the slips forming the petition were dated between 2 May 2020 and 5 May 2020.

19) The petition slips contained 13 names and signatures, all of which were in the proposed bargaining unit, a figure that represents 81.25% of the proposed bargaining unit. Of those 13 signatories, 11 were members of the Union (68.75% of the proposed bargaining unit) and 2 were non-members (12.5% of the proposed bargaining unit).

20) A report of the result of the membership and support check was circulated to the Panel and the parties on 19 May 2020 and the parties were invited to comment on the results.

6. Summary of the Union’s comments on the membership and support check

21) In a letter dated 22 May 2020 the Union invited the Panel to accept that the application had the requisite support to be accepted. The Union said that the report showed that the membership level in the bargaining unit stood at 75% and the additional support shown in the petition raised the overall level of support to 81.25%, which clearly exceeded the requisite 50% required to attain an award of statutory recognition.

7. Summary of the Employer’s comments on the membership and support check

22) In an email dated 26 May 2020 the Employer stated that it did not dispute the figures in the check to establish the level of union membership in the proposed bargaining unit nor did it dispute the number of workers in the proposed bargaining unit who had signed the Union’s petition. The Employer said that the disclosed union membership constituted at least 10 per cent of the workers within the defined bargaining unit and agreed that the petition suggested that a majority of the workers within the defined bargaining unit would be likely to favour union recognition in relation to collective bargaining on behalf of the bargaining unit. The Employer said that the ‘relevance’ of the bargaining unit may be disputed at the appropriate time.

8. Considerations

23) 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 material to the issues it is required to decide in reaching its decision.

24) 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 11. The Panel notes the Employer’s response refers to an earlier application made by the Union to the CAC on 6 May 2020 in respect of the same Employer. This application was withdrawn prior to acceptance by the CAC and is not, therefore, inadmissible under paragraph 39. The Panel is also satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37, 38 or 40 to 42 of the Schedule.

25) The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

9. Paragraph 36(1)(a)

26) 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.

27) The membership check conducted by the Case Manager (described in paragraphs 15-16 above) showed that 75% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 16 above the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed 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)

28) 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 27 above the level of union membership is 75%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of the 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; indeed, the support check conducted by the Case Manager (see paragraphs 15 and 18-19 above) showed that 11 members of the Union (68.75% of the proposed bargaining unit) had signed petition slips in favour of recognition of the Union.

29) The Panel would have been prepared to decide that, on the balance of probabilities, 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 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 petition slips which showed that 81.25% of the workers in the proposed bargaining unit supported recognition. The Employer did not dispute the validity of the petition slips and the Panel has no evidence which would suggest that they represent anything other than the views of the signatories to them.

30) On the basis of the evidence before it the Panel is satisfied 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

31) For the reasons given in paragraphs 24-30 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mrs Susan Jordan

Ms Fiona Wilson

28 May 2020