Decision

Acceptance Decision

Updated 25 May 2021

Case Number: TUR1/1197/2020

29 September 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

Pioneer Foods (UK) Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 12 August 2020 that it should be recognised for collective bargaining purposes by Pioneer Foods (UK) Ltd (the Employer) for a bargaining unit described as: “All employees employed by Pioneer Foods (UK) Limited, with the exception of employees working in office based roles and employees working at the level of shift manager, warehouse team leader, process lead and above”. The location of the bargaining unit was Unit 2 Southgate Way, Orton Southgate, Peterborough, PE2 6YG. The application was received by the CAC on 20 August 2020 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted a response to the CAC dated 26 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 Chairman established a Panel to deal with the case. The Panel consisted of Mr Rohan Pirani, Panel Chair, and, as Members, Mr Len Aspell and Mr Paul Moloney. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 4 September 2020 and was extended to 18 September 2020 and then to 2 October 2020 to allow time for the parties to comment on the results of the membership check and for the Panel to consider said 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 made a request for recognition to the Employer on 23 April 2020 and the Employer had responded accepting talks via ACAS. The Union stated that 3 meetings took place and an outline bargaining unit was agreed and ACAS completed a membership check. According to the Union, at the 3rd meeting the company decided to pull out of the process. The Union said that a further request letter was sent to the Employer on 24 July 2020 to reflect the bargaining unit that had been agreed in principle with ACAS for the membership check, as this differed from the first request. The Union stated that no reply was received from the Employer to the second request letter. A copy of the Union’s request letter dated 24 July 2020 was attached to the 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 ‘No’.

7) The Union stated that the total number of workers employed by the Employer was approximately 250. The Union stated that there were 175 workers in the proposed bargaining unit, of whom 87 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 stated that the Union membership within the bargaining unit had increased from 3 in November to 87 at the current date. The Union stated that the membership check carried out by ACAS showed 48% membership in the bargaining unit. The Union said that it had a petition from 103 members and non-members requesting UNITE to be recognised and would be happy to supply to the CAC their membership list and petition when required to do so.

8) The Union stated that the reason for selecting the bargaining unit was due to membership density and it was also discussed and agreed with the company in principle via ACAS. The Union stated that the bargaining unit had 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 bargaining unit the Union answered ‘No’.

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 2020.

4. Summary of the Employer’s response to the Union’s application

10) In its response to the Union’s application the Employer confirmed that it had received the Union’s written request for recognition on 24 July 2020. The Employer stated that their response to the request was: 1) The behaviour of the Union to date had not given Pioneer the confidence that a good/fair working relationship would be possible. 2) Their view was that Unite did not have the membership numbers claimed or required. 3) Their belief was that their employees valued the role of their employee forum to discuss matters for them, in both an informal and formal way.

11) The Employer did not state in their response when they received a copy of the application form from the Union but in a telephone conversation with the Case Manager on 9 September 2020 they confirmed that it had been received on or around 12 August 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 the proposed bargaining unit. The Employer stated that during ACAS conciliation an amendment to the proposed bargaining unit was discussed, subject to further discussion via mediation. The Employer said that the business was reluctant to recognise a union on one site which was not supported (by Unite`s own admission) on its other sites. The Employer confirmed that following receipt of the Union’s request they did propose that Acas be invited to assist and there were three meetings held on 1st July, 14th July and 23rd July 2020. The Employer enclosed a copy of a letter dated 1 May 2020 which was their response to the Union’s first request letter dated 23 April 2020.

12) The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as defined in the Union’s application as the headcount had increased internally.

13) 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 stated that it had not been supplied with any evidence and were concerned that various agency workers (i.e. individuals not employed by them) had been included in the count. 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 that they had not canvassed their employees in that regard.

5. The membership and support check

15) 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 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 compiled by the Union. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, addresses, and job titles of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of the names and addresses of paid up members within that unit and a copy of a petition signed by workers 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. These arrangements were confirmed in a letter dated 2 September 2020 from the Case Manager to both parties.

16) The information from the Union and Employer was received by the CAC on 4 September 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 189 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 82 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 80, a membership level of 42.33%.

18) The Union’s petition was set out on their headed paper as follows:

Do you want to have more of a say at work? Do you want to be consulted about changes in the workplace? Do you want to have the right to negotiate with management on your terms and conditions such as pay, holidays and working hours?

CURRENT FIGHT IS OVER RECOGNITION, PAY SYSTEM AND £1 AN HOUR PAY INCREASE

If you want to have your say, sign the Unite Union Petition and support the Union.

We the undersigned workers who are employed by the Pioneer Foods ask that Unite is recognised as being entitled to conduct collective bargaining on our behalf.

SIGNED PRINT NAME DATE

The petition supplied by the Union contained 104 names, of which 84 were in the proposed bargaining unit, a figure that represents 44.44% of the proposed bargaining unit. Of those 84 names, 65 were members of the Union (34.39% of the proposed bargaining unit) and 19 were non-members (10.05% of the proposed bargaining unit).

19) A report of the result of the membership and support check was circulated to the Panel and the parties on 4 September 2020 and the parties were invited to comment on the results by 9 September 2020.

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

20) In a letter to the CAC, dated 9 September 2020, the Employer stated that it did not believe that the application was admissible as there was no evidence to suggest that “a majority of the workers constituting the relevant bargaining unit would be likely to favour recognition” as is required pursuant to para 36 (1) (b) of Schedule 1A to the 1992 Act. The Employer submitted that the onus to satisfy the test rested with the Union and it had had various opportunities to demonstrate that majority support was likely but had failed to do so. By way of illustration, the Employer stated that during the discussions with ACAS the “member check” which was carried out failed to demonstrate 50% support. Also, the Employer said that during discussions with the Union it had been stated (in their terms) that it would not be difficult to find the additional support required to reach the 50% level and it had failed to do so. The Employer also submitted that the most recent analysis of the check undertaken by the CAC showed a reduction (rather than an increase) in the level of Union support.

21) The Employer stated that the above was without the business even being able to identify the cause of the duplications, etc. as mentioned in the CAC Report. The Employer stated that they believed that the Union numbers may well be over-reported by including a number of agency staff (who were not employed by the Company).

22) According to the Employer, the above comments also failed to take into account the belief of the company that a better bargaining unit (if one was to be imposed) would be for all staff in the already identified groups across all of the company`s sites. The Employer stated that the Union had already accepted, in discussions with the Company, that it had lower levels of support on the other 2 sites which would dilute the findings set out in the Report yet further.

23) The Employer stated that the above comments were without prejudice to the argument which the Company had that the basis upon which the Union sought support was inconsistent with the role which the Union, if recognised following this procedure, would be able to undertake. The Employer said that the narrative quoted in the report (see para 18 above) goes beyond the scope of “pay, hours and holiday entitlement” as will be the limit of the collective bargaining should the union be recognised. The Employer stated that even with the enhanced claims the level of support was below 50%.

24) The Employer stated that it also had concerns as to the historic behaviour of the Union on site and how, if the application was allowed, the Union would be made to abide by the Code of Practice in so far as responsible campaigning was concerned.

25) In an email to the CAC, dated 10 September 2020, the Union stated that it had been increasing and organising membership at the company for several months and at the end of last year (2019) it only had a handful of members on site at Peterborough. The Union said that via site visits, handing out information and providing representation to members in grievance and disciplinary meetings it had built membership up to a point where the majority of members supported them becoming their trade union.

26) The Union said that it believed that the 42.33% membership and the number of non-members that have signed the petition was evidence that the majority of staff wished for UNITE to carry out collective bargaining on their behalf. The Union said that they were of the view that the level of membership would have been higher had it not been for COVID which affected their organising. The Union stated that with it being a food manufacturing site they felt they had to be responsible and stop visits to site and follow government advice on social distancing and in terms of complying with the lock down measures that were introduced, to do their part and prevent the spread of COVID.

7. Union’s further comments

27) In a further email received from the Union dated 16 September 2020 the Union stated that they believed that the figure used by ACAS in their check was around 180 PAYE staff and the company had now declared 189 for the CAC to check against and this would have had the effect of reducing the percentage of members form the check that ACAS carried out.

28) The Union stated that it could not be the case that they had used agency workers in their membership information supplied to the CAC because, if they had, those members would not have appeared on the company list of employees, unless they had also included agency workers within the list they supplied. The Union stated that it believed their membership was solely PAYE and that must have been the case for them to appear on the employers list, unless the employer has used agency staff on its list.

29) The Union also stated that the company expressed concerns in meetings with ACAS that they would end up with different agreements at Peterborough than the other two sites by recognising UNITE at Peterborough only. The Union said that although they have members at the other two sites, they were honest with the employer in stating that they did not have sufficient members to seek recognition at those two sites presently. The Union stated that they did however offer to agree to voluntary recognition at all 3 sites to address the companies concerns of different agreements, however the company rejected that offer.

8. Considerations

30) 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 in reaching its decision.

31) 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 issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

9. Paragraph 36(1)(a)

32) 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.

33) The membership check conducted by the Case Manager (described in paragraphs 15-17 above) showed that 42.33% of the workers 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 notes that the Employer had concerns that the Union had included a number of agency staff (who were not employed by the Company). However, the check shows only 2 members from the Union’s list were not on the Employer’s list. The Panel notes that neither party disputed the fact that the members of the union constituted at least 10% of the workers in the proposed bargaining unit. 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)

34) 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.

35) The Panel notes that the support check conducted by the Case Manager showed that 44.44% of the workers in the proposed bargaining unit (84 out of 189 workers) had signed a petition in favour of recognition of the Union. Of those who had signed the petition, 65 were Union members (34.39% of the proposed bargaining unit) and 19 were non-members (10.05% of the proposed bargaining unit). The Panel notes the Employer’s comment that the membership failed to demonstrate 50% support but at this stage we do not need to be satisfied that a majority in the proposed bargaining unit actually does support recognition of the union, rather that a majority would be likely to do so. In considering this we note the level of membership and petition support, including the fact that some support comes from those not in membership of the Union.

36) On the basis of the evidence before it, the Panel has decided, 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.

11. Decision

37) 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 Len Aspell

Mr Paul Moloney

29 September 2020