Decision

Acceptance Decision

Updated 11 September 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1347(2023)

31 July 2023

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

Hedin Automotive London Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 4 July 2023 that it should be recognised for collective bargaining by Hedin Automotive London Limited (the Employer) for a bargaining unit comprising “All Technicians employed at Mercedes Benz at of Bromley, 13-15 Bell Green Retail Park, Sydenham, London SE26 4PR. A ‘Technicians’ is so defined by the job title within the contract of employment and covers Diagnostic, System & Maintenance Technicians as well as Apprentice Technicians” (sic). The CAC gave both parties notice of receipt of the application on 5 July 2023. The Employer submitted a response to the CAC dated 11 July 2023 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 Ms Naeema Choudry, Panel Chair, and, as Members, Mr Richard Fulham, and Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 19 July 2023. The acceptance period was extended to 9 August 2023, to allow the parties to comment on the results of a membership check and for the Panel to consider these comments before arriving at a 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 stated that it had sent a request for recognition to the Employer on 9 June 2023. It stated that it had no response other than to say that it had been passed to the Leadership team.

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 “No”. 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) The Union stated that the total number of workers employed by the Employer was 300. The Union confirmed that there were 19 workers in the proposed bargaining unit, of whom 13 were members of the Union. The Union stated that the majority of workers in the bargaining unit were Union members. 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 stated, “A full list of Unite members in the bargaining unit will be sent to the CAC in due course, subject to confidentiality requirements”.

8) The Union stated that the reason for selecting the proposed bargaining unit was that “All employees within the proposed bargaining unit are working under broadly the same contract and undertaking work which is distinct from the rest of the employer’s workforce. All employees within the proposed bargaining unit sit under the same reporting line in terms of management”. The Union said that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the proposed bargaining unit the Union answered “No”.

9) Finally, the Union confirmed that it held a current certificate of independence and it confirmed that it had copied the application and supporting documents to the Employer on 4 July 2023.

4. Summary of the Employer’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 9 July 2023. When asked what its response was, the Employer stated, “I confirmed that I had forwarded the request to the leadership team for discussion”.

11) The Employer said that it had received a copy of the application form from the Union on 4 July 2023. 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. Asked if it agreed the bargaining unit as set out by the Union the Employer answered “Yes”.

12) The Employer confirmed that following receipt of the Union’s request, it had not proposed that Acas should be requested to assist. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) The Employer stated that it employed a total of 349 workers and that it agreed with the number of workers in the bargaining unit as defined in the Union’s application.

14) Asked whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated, “We do not hold information on the number of union members in the proposed bargaining unit”. The Employer when asked if it did not consider that a majority of the workers in the bargaining unit are likely to support recognition, stated that it did not have any information to say whether members of the proposed bargaining unit did or did not support a recognition agreement.

15) Finally, when asked on whether it had received any other applications under the Schedule for recognition in respect of any of the workers in the proposed bargaining unit the Employer confirmed “N/A”.

5. The membership and support check

16) 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 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 bargaining unit. 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 in the bargaining unit which had been proposed by the Union in its application form, and that the Union would supply to the Case Manager a list of its paid-up members within that unit including their full names, dates of birth and job titles (where available). 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 13 July 2023 from the Case Manager to both parties.

17) The information requested was received by the CAC from both the parties on 20 July 2023. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

18) The list supplied by the Employer indicated that there were 19 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 15 names. According to the Case Manager’s report the number of members in the proposed bargaining unit was 13, a membership level of 68.42%.

19) A report of the result of the membership and support check was circulated to the Panel and the parties on 21 July 2023 and the parties were invited to comment on the results by close of business on 26 July 2023.

6. Summary of the parties’ comments following the membership check

20) In an e mail to the Case Manager dated 25 July 2023 the Employer stated “We have re-checked the numbers in the proposed bargaining unit and their details and confirm the data supplied on behalf of Hedin Automotive London Ltd is correct. It therefore appears that two of the declared members are not in the proposed bargaining unit given your data, which shows that only 13 of the 15 claimed members declared by Unite are common to both lists. Notwithstanding this, if a membership of 13 is claimed and those members are in favour of recognition, in those circumstances we accept this would constitute the majority of the workforce in the bargaining unit. However, the two who are on the list of members which are not in our list of those in the proposed bargaining unit would seem to be matter that requires resolution by the panel, as this could mean the bargaining unit is not that as defined in the request put to the CAC, potentially changing the proposed bargaining unit to include non-technicians. We therefore request that you request that Unite furnishes the CAC with job titles, as we have done, which may then require further checks as to the make-up of the proposed bargaining unit”.

21) In an email to the Case Manager dated 26 July 2023 the Union stated, it had no comments to make on the report.

7. Considerations

22) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

23) 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. Furthermore, 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 of the Schedule. 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.

8. Paragraph 36(1)(a)

24) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit. In this case the membership check conducted by the Case Manager (described in paragraphs 18 above) showed that 68.42% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 17 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

9. Paragraph 36(1)(b)

25) 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. As discussed in paragraph 18, the level of union membership identified by the membership check was 68.42%. 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 of the Union. The Employer has not submitted any contrary evidence nor has the Panel received any contrary evidence from any other source.

26) The Panel considers that members of the Union would be likely to favour recognition of the Union for collective bargaining (68.42%). On the basis of the evidence before it, the Panel has decided 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.

27) In its comments on the Case Manager’s report following the check of Union membership, the Employer questioned whether the Union had changed the composition of its proposed bargaining unit given that two of its members did not appear on the Employer’s list of workers. However, the Panel considers this not to be the case. For the purposes of the check undertaken it is the number in common that is important. There could be a number of reasons why these two members are not on the Employer’s list. Perhaps they have left the company or moved to new roles within the undertaking that are outside of the proposed bargaining unit. That they are absent the Employer’s list does not mean that the Union is changing its definition so as to include them.

10. Decision

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

Panel

Ms Naeema Choudry, Panel Chair

Mr Richard Fulham

Mr Paul Noon OBE

31 July 2023