Decision

Acceptance Decision

Updated 7 June 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1320(2023)

7 June 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

MM Newport LTD

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 5 May 2023 that it should be recognised for collective bargaining by MM Newport LTD (the Employer) for a bargaining unit comprising of “All hourly paid employees below the level of Supervisor working at MM Newport LTD”. The CAC gave both parties notice of receipt of the application on 5 May 2023. The Employer submitted a response to the CAC dated 17 May 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 Mr Rohan Pirani, Panel Chair, and, as Members, Mr Rob Lummis, and Ms Janice Beards. 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 22 May 2023. The acceptance period was then extended to 12 June 2023 in order to allow time to conduct a membership check and to allow time for the parties to comment thereon before the Panel arrived 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 made its formal request for recognition on 8 March 2023 and that, in a letter received by the Union on 17 March 2023, the Employer confirmed its formal rejection for voluntary recognition.

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 approximately 15,000 and that approximately 57 of these workers were in the proposed bargaining unit, of whom 30 were Union members. Asked whether the Employer agreed on the number of workers in the proposed bargaining unit the Union answered “No”. When called upon 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 large proportion of the proposed bargaining group are members of Unite The Union- details of these members can be provided to the CAC on a confidential basis if requested. Majority support from the employees in the bargaining group - Petition in favour of recognition can be provided to the CAC confidentially if required”.

8) The Union said it had selected the proposed bargaining unit as it believed that a unit made up of the hourly paid bargaining group, below the level of the supervisors was conducive with the effective management of this group. When asked whether the bargaining unit had been agreed with the Employer the Union answered “No”.

9) Finally, the Union stated that there was no existing recognition agreement which covered any of the workers in the bargaining unit, it 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 5 May 2023.

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 received the Union’s written request for recognition on 8 March 2023 and it replied by way of a letter dated 24 March 2023, declining the request. A copy of the letter was attached to its response form. The Employer stated in its response that it had not received a copy of the Union’s application form, the Employer then rectified this in a subsequent email to the CAC confirming it had received a copy of the application form from the Union on 5 May 2023.

11) 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. It said it did not agree with the proposed bargaining unit and questioned how the proposed bargaining unit had been determined.

12) When asked if, following receipt of the Union’s request, it had proposed that Acas should be requested to assist, the Employer answered “No”.

13) The Employer stated that it employed a total of 91 permanent workers. Asked whether it agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application the Employer answered “No” adding that the number of workers was unknown as the proposed bargaining unit needed to be confirmed.

14) The Employer said there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

15) Asked whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated “I would be surprised as many individuals have been vocal even informing me that petitions are being made to convenience employees to become union members. This was also discussed at one of the employee forums. I believe that most employees would prefer to work closely with the new management team to influence their business”.

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 stated “We have an established employee forum with good clear communication which seems to be working well and it is my intention that through site collaboration we are able to effectively manage any site challenges locally. During my brief tenure (March) we have made great progress which has been acknowledged”.

17) Finally, the Employer answered “N/A” when asked if it was aware of any previous application under the Schedule for statutory recognition by the Union in respect of this or a similar bargaining unit or whether it had received any other applications under the Schedule for recognition in respect of any of the workers in the proposed bargaining unit.

5. The check of membership and support

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 proposed bargaining unit are 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 in the proposed bargaining unit and the number of workers in that unit who had signed the Union’s petition in support of recognition. It was agreed with the parties that the Employer would supply to the Case Manager a list of the full 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 the full names and dates of birth of the paid-up union members within that unit and a copy of the petition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and the petition would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to both parties dated 22 May 2023.

19) The information requested from the Employer was received on 23 May 2023 and from the Union on 24 May 2023. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

20)The list supplied by the Employer showed that there were 64 workers in the proposed bargaining unit. The list of members supplied by the Union contained 29 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 25, a membership level of 39.06%.

21) The Union also provided a petition consisting of four A4 sheets, the first page of which was set out as follows: I support recognition of Unite as entitled to conduct collective bargaining on pay hours and holidays:

PETITION IN SUPPORT OF UNION RECOGNITION

MM NEWPORT LTD at Imperial Park, Celtic way, Newport, NPIO 8BE.

Unite the Union is asking your employer to recognise it for collective bargaining. We have to show the Central Arbitration Committee that a majority of workers favour our application.

If you want your employer to recognise Unite for collective bargaining, please sign the petition.

This petition and your personal details will be kept confidential by Unite the Union and will be shared with the Central Arbitration Committee only, who will use these to confidentially verify the level of support for our collective bargaining application. Your employer will not receive your details or a copy of this petition. The petition will be retained by Unite for the duration of the recognition campaign and any associated issues.

Unite the Union’s full up-to-date privacy policy can be found at www.unitetheunion.org/privacypolicy

I support recognition of Unite as entitled to conduct collective bargaining on pay, hours and holidays:

Under the proposition was a table with four columns headed: PRINT NAME; JOB TITLE; SIGNATURE and DATE. The rest of the sheets comprising the petition were headed “I support recognition of Unite as entitled to conduct collective bargaining on pay, hours and holidays:” followed by the table with the four columns headed as above. The signatures were dated between 14 April 2023 and 17 April 2023.

22) The Case Manager’s report showed that the petition was signed by 41 workers in the proposed bargaining unit, a figure which represented 64.06% of the bargaining unit. Of those 41 signatories 21 were members of the Union (32.81% of the proposed bargaining unit) and 20 were non-members (31.25% of the proposed bargaining unit).

23) A report of the result of the membership and support check was circulated to the Panel and the parties on 24 May 2023 and the parties were invited to comment on the results by the close of business on 30 May 2023.

6. Parties’ comments on the result of the membership and support check

24) In an e-mail to the CAC, dated 30 May 2023, the Union stated it believed it had met the tests as stated in paragraph 36 of the Schedule specifically, that at least 10% of the bargaining unit were members and that a majority of workers in the proposed bargaining unit were in favour of recognition.

25) The Employer elected not to comment on the report on membership and support.

7. Considerations

26) 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.

27) 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 12. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

8. Paragraph 36(1)(a)

28) The membership check conducted by the Case Manager showed that 39.06% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 22 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 is therefore satisfied that this test is met.

9. Paragraph 36(1)(b)

29) 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.

30) The Panel considers that members of the Union would be likely to favour recognition of the Union for collective bargaining (39.06%), as would non-union members who signed the petition (31.25%); giving a total of 70.31%. On the basis of the evidence before it, the Panel has decided that, 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 and accordingly, this test is also met.

10. Decision

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

Panel

Mr Rohan Pirani, Panel Chair

Mr Rob Lummis

Ms Janice Beards

7 June 2023