Decision

Recognition Decision

Updated 29 January 2021

Case Number: TUR1/1192 (2020)

29 January 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

Unite the Union

and

Parc Adfer Operations Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC that it should be recognised for collective bargaining by Parc Adfer Operations Limited (the Employer) for a bargaining unit comprising “All workers excluding ‘Senior Managers’ at Parc Adfer Operations Limited, Deeside Site, Deeside Industrial Park, Weighbridge Road, Sealand, Flintshire, CH5 2LL”. The application was received by the CAC on 5 August 2020. The CAC gave both parties notice of receipt of the application on 6 August 2020. The Employer submitted a response to the CAC dated 12 August 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 of Mr. Stuart Robertson, Panel Chair, and, as Members, Mrs Susan Jordan and Mr. Gerry Veart. The Case Manager appointed to support the Panel was Linda Lehan.

3) By a decision dated 1 September 2020, the Panel accepted the Union’s application. The parties then entered a period of negotiation to reach agreement on the appropriate bargaining unit. As no agreement was reached, the parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit. A hearing was held virtually on 14 December 2020. After due consideration of the parties’ submissions, both written and oral, the Panel decided that the appropriate bargaining unit was that proposed by the Union, as amended at the hearing, namely “All workers excluding Senior Managers and the Management Administrative Team at Parc Adfer Operations Limited, Deeside Site, Deeside Industrial Park, Weighbridge Road, Sealand, Flintshire, CH5 2LL” ^{[footnote 1]}.

2. Issues

4) Paragraph 22 of Schedule A1 to the Act (the Schedule) provides that if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union (or unions), it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies. Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union (or unions) if any of these qualifying conditions is fulfilled. The three qualifying conditions are:

(i) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(ii) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

(iii) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf. Paragraph 22(5) states that “membership evidence” is (a) evidence about the circumstances in which union members became members, or (b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

3. The Union’s claim to majority membership

5) In a letter dated 12 January 2021 the CAC asked the Union if it claimed majority membership within the bargaining unit, and if so, whether it submitted that it should be recognised without a ballot. By a letter dated 13 January 2021 the Union confirmed that it had majority membership within the bargaining unit and referred back to and relied upon the membership and support check carried out on 19 August 2020. The Union stated that paragraph 6 of that report noted that 54.55% of those in the bargaining unit were Unite members. The Union stated that it had continued to recruit members within the bargaining unit and the exclusion of the Management Administrative Team had a positive impact on the density of union members in the bargaining unit. This letter was copied to the Employer asking for their comments on the qualifying conditions.

6) In a letter dated 18 January 2021 the Employer requested that, in the interests of good industrial relations, as specified in paragraph 22(4) of the Schedule, a formal ballot be held. The Employer stated that the team in Parc Adfer Operations Limited was small and any changes to the definition of the bargaining unit, movement of personnel in and out of the organisation and internal promotions had the potential to impact the density of membership and support for recognition.

7) The Employer stated that five months had passed since August 2020 when the membership verification check had been carried out, and in that time three positions in the Management Administrative Team had been removed from the bargaining unit; there had been three internal promotions (Shift Team Leader to Operations Manager, Maintenance Engineer to Maintenance Manager and EI&C Technician to Maintenance Engineer). The Employer also stated that there had been three new hires (a Plant Operator, Shift Team Leader and EI &C Technician ) and one Shift Team Leader had left.

8) The Employer said that this resulted in a total of 10 changes, eight of which might affect, positively or negatively, the membership density and support for recognition by up to 26%.

9) Finally, the Employer again invited the Panel to agree that in the interests of good industrial relations, as specified in paragraph 22 (4) of the Schedule, a formal ballot be held to establish whether collective bargaining is currently supported on site.

10) In view of the changes within the bargaining unit, the Panel decided to carry out a further membership check.

4. The Further Membership Check

11) To assist in deciding whether it was satisfied that a majority of the workers constituting the bargaining unit were members of the Union, the Panel proposed an independent check be carried out. The information required for the check was received by the CAC from the parties on 21 January 2021. It was 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 20 January 2021. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

12) The list supplied by the Employer indicated that there were 29 workers in the bargaining unit. The list of members supplied by the Union contained 21 names. According to the Case Manager’s report the number of members of the Union in the bargaining unit was 21, a membership level of 72.41% of the bargaining unit.

13) A report of the result of the membership check was circulated to the Panel and the parties on 22 January 2021.

5. Discussion and conclusions

14) The Act requires the Panel to consider whether it is satisfied that the majority of the workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that the majority of the workers constituting the bargaining unit are members of the Union, it must then decide if any of the three conditions in paragraph 22(4) is fulfilled. If the Panel considers that any of them is fulfilled it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

15) The membership check conducted by the Case Manager, described in paragraphs 11 and 12 above, showed that 21 (72.41%) of the 29 workers in the bargaining unit were members of the Union. As stated in paragraph 11 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. Accordingly, the Panel is satisfied that the majority of the workers in the bargaining unit are members of the Union.

16) The Panel has considered carefully whether any of the qualifying conditions set out in paragraph 22(4) of the Schedule is fulfilled.

6. Paragraph 22(4) (a)

17) The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Employer contended that this condition was met in that the team at Parc Adfer was small and any changes to the definition of the bargaining unit, movement of personnel in and out of the organisation and internal promotions had the potential to impact the density of membership and support for recognition. The Panel were not persuaded by this argument. There was a significant majority of the workforce within the bargaining unit in membership of the Union and no evidence that periodic changes in the workforce might materially affect that level of membership; in any event, changes in any workforce might have the same effect. The Employer made no other argument that good industrial relations required a ballot and the Panel is therefore not satisfied that this condition has been met.

7. Paragraph 22(4) (b)

18) The second condition is that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union to conduct collective bargaining on their behalf. The CAC has no such evidence and this condition does not apply.

8. Paragraph 22(4) (c)

19) The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union to conduct collective bargaining on their behalf. No such evidence has been produced, and this condition does not apply.

9. Declaration of recognition

20) The CAC declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising “All workers excluding Senior Managers and the Management Administrative Team at Parc Adfer Operations Limited, Deeside Site, Deeside Industrial Park, Weighbridge Road, Sealand, Flintshire, CH5 2LL”.

Panel

Mr Stuart Robertson, Panel Chair

Mrs Susan Jordan

Mr Gerry Veart

29 January 2021

1. Correspondence between the parties and the CAC suggested agreement that the Management Administrative Team at the site should not form part of the proposed bargaining unit. The Panel agreed to give effect to this, and the proposed bargaining unit description was therefore, with the agreement of both parties, modified to “All workers excluding Senior Managers and the Management Administrative Team at Parc Adfer Operations Limited, Deeside Site, Deeside Industrial Park, Weighbridge Road, Sealand, Flintshire, CH5 2LL”. ↩