Decision

CAC Outcome: Unite the Union & Rettig (UK) Ltd

Updated 6 February 2019

Case Number: DI/07/(2018)

5 February 2019

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SECTIONS 181-185 – DISCLOSURE OF INFORMATION

DECISION ON PRELIMINARY ISSUE OF WHETHER THE UNION IS

RECOGNISED FOR COLLECTIVE BARGAINING

The Parties:

Unite the Union

And

Rettig (UK) Ltd

1. Introduction

1) Unite the Union (“the Union”) submitted a complaint to the Central Arbitration Committee (“CAC”) dated 5 September 2018 under section 183 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the Act”). The complaint related to an alleged failure by Rettig (UK) Ltd (“the Employer”) to disclose information to the Union for the purposes of collective bargaining.

2) In accordance with section 263 of the Act, the Chairman of the CAC established a Panel to consider the complaint. The Panel consisted of Mr. James Tayler, Panel Chairman, and, as members, Ms. Virginia Branney and Mr. Tom Keeney. The Case Manager appointed to support the Panel was Ms. Sharmin Khan and, for the purposes of this decision, the Case Manager was Nigel Cookson.

2. The Union’s Complaint

3) The Union’s complaint was submitted by Mr Pat McCourt, a Unite Regional Officer, on behalf of the Union. The workers to whom the complaint related were described as “Shop Floor”.

4) The Union explained that it had requested the following information from the Employer on 6 August 2018 in relation to preparations for pay negotiations:

• Details of the various pay scales/rates for shop floor workers (the bargaining group). • A copy of the latest company accounts.

5) On 14 August 2018 the Employer responded to the Union’s request by way of an email from Miss Helen Duke, Human Resources Manager, in the following terms:

As I have previously stated in previous correspondence, there is no obligation on Rettig UK Ltd to provide you with such information. Please note that should you make any further/similar requests, I will not be responding to these.

6) The Union claimed that the Employer’s action in refusing to provide the information significantly impeded the Union’s ability to formulate a pay claim on behalf of its members in the bargaining group. The Union considered it would be in accordance with good industrial relations practice for the Employer to disclose the information to enable it to formulate a fair pay claim which addressed the bargaining group’s expectations and concerns regarding possible pay disparity. The Union had requested the information as it considered it necessary to enable the Union to effectively negotiate on behalf of its members.

3. The Employer’s Response

7) In its response to the complaint dated 11 September 2018, the Employer stated that it did not recognise the Union or any other union for the purposes of collective bargaining. There was no statutory or voluntary recognition in place with the Union or any other unions and the Union had provided no evidence that it was recognised by the Employer. There had never been any previous collective agreement, as defined in section 178 of the Act between the Union and the Employer, that would enable the Union to argue that the Employer entered in a collective agreement with the Union, in the past, or that there was an entitlement to the information requested.

8) The Employer contended that, in line with the principles set out in National Union of Gold, Silver and Allied Trades v Albury Brothers Limited [1979] ICR 84 CA, there was no evidence of mutual recognition, i.e. no evidence that the Employer acknowledged the role of the Union for the relevant purpose of collective bargaining; there was no implied, clear or unequivocal course of action over a period of time to show that the Union was recognised by the Employer for the purpose of collective bargaining; nor was there any evidence of partial recognition for collective bargaining in relation to any of the topics listed in section 178 of the Act. Section 181 of the Act and the duty to disclose information for the purpose of collective bargaining only applied to unions that are recognised by the employer. This is confirmed in section 131 and in the Acas Code of Practice. As the Union was not recognised by the Employer, section 181 of the Act did not apply and there was therefore no duty on the Employer to provide the information requested and no duty on the Employer to enter into collective bargaining or consultation or negotiations with the Union.

4. The Prelimary Issue

9) Section 181(1) of the Act imposes a duty of disclosure on an employer in the following terms:

(1) An employer who recognises an independent trade union shall, for the purposes of all stages of collective bargaining about matters, and in relation to descriptions of workers, in respect of which the union is recognised by him, disclose to representatives of the union, on request, the information required by this section.

(2)The information to be disclosed is all information relating to the employer’s undertaking (including information relating to use of agency workers in that undertaking) which is in his possession, or that of an associated employer, and is information— (a) without which the trade union representatives would be to a material extent impeded in carrying on collective bargaining with him, and (b) which it would be in accordance with good industrial relations practice that he should disclose to them for the purposes of collective bargaining.

10) The Employer’s position was that it did not recognise the Union for the purposes of collective bargaining in respect of the relevant descriptions of workers. Accordingly, before consideration can be given to the substantive complaint the Panel had to determine whether or not the Union is recognised by the Employer for the purposes of collective bargaining, as required by section 181(1) of the Act.

5. Further Exchanges Of Correspondence

11) On 18 September 2018 the Union responded. The Union concluded its letter stating that it had sufficient members in the bargaining unit to maintain recognition however it would be willing to meet with the Employer under the auspices of Acas to see if matters could be resolved voluntarily.

12) On 5 October 2018 the Employer commented on the Union’s letter of 18 September 2018 and reiterated its assertion that the Union had not obtained recognition through the statutory recognition procedure nor had it ever recognised the Union on a voluntary basis. The submissions are not rehearsed here as the arguments were repeated during the course of the hearing and are set out below.

13) The Panel granted a stay in proceedings to establish whether or not the issue could be resolved by conciliation with the assistance of Acas. However, efforts at conciliation did not prove successful and, having considered further submissions from the Employer dated 16 October 2018 and from the Union dated 8 November 2018, the Panel invited both parties to make any final submissions and to lodge any supporting evidence by no later than noon on 21 November 2018. The Panel also requested that the parties’ provide their views as to whether an oral hearing would assist the Panel in determining the complaint by the same deadline. The Union sought an oral hearing.

6. The Hearing

14) On 20 December 2018 the Panel, being satisfied that there was no reasonable likelihood of the Union’s complaint being resolved by conciliation and having considered the parties’ views, gave notice that a hearing to determine the preliminary issue of whether or not the Union was recognised would take place in Newcastle on 18 January 2019. A list of those that attended the hearing on behalf of the parties is annexed to this decision.

15) When the parties’ written submissions were cross-copied the Panel Chair directed that the Case Manager include copies of the judgment in Working Links (Employment) Ltd & Public and Commercial Services Union [2012] UKEAT/0305/12/RN and the decision of the CAC in DI/10/2014 GMB and Kuehne & Nagel [2015] because he considered that they might be relevant to the analysis of the evidence that was required to establish recognition or de-recognition.

16) During the course of the hearing the Panel heard evidence for the Union from Mr McCourt, Regional Officer and Harry Million, Andrew Coates and Larry Walker all employees of the Employer and from Miss Duke and Mr Barry Lynch, Managing Director, on behalf of the Employer. The Union also furnished the Panel with witness statements from Bill Green, David Bell and Stephen Coates who did not attend the hearing and so were not questioned by the Panel or Employer.

7. Background Leading To The Complaint

17) This claim arises following contact between the Union and the Employer in 2017. In late November 2017 Mr McCourt made contact with Miss Duke, asking to meet to discuss the Employer’s decision to issue updated contracts to some shop floor staff. Miss Duke stated that she had never spoken to Mr McCourt, or any other representatives of the Union, since she started work with the Employer in 2000 before Mr McCourt made contact. Mr McCourt informed her that some employees had contacted the Union about the new contracts and Miss Duke agreed to meet with Mr McCourt to discuss the matter. Mr McCourt, in evidence, stated that this was a formal meeting and that he was there in his capacity as a union official; whereas Miss Duke stated that she viewed the meeting as informal and had only agreed to meet out of courtesy. This meeting took place in November 2017. Miss Duke’s evidence was that at no stage during the meeting did Mr McCourt assert that the Union was recognised or that it should have been consulted before the new contracts were issued. Either at that meeting or subsequently, Mr McCourt asked the Employer to provide him with a copy of the existing contract(s), the new proposed contract with highlighted changes together with copies of communications with the employees, so that he could review the contract and discuss the Union’s concerns before the contract, which had already been issued to the employees, could be signed. Mr McCourt understood the Employer had agreed to provide him with the contracts, however, when he did not receive the documents requested he again contacted the Employer and was promised that he would receive them before Christmas.

18) On 12 February 2018, having received no papers nor having heard from the Employer, Mr McCourt emailed Miss Duke to again request copies of the contracts. Miss Duke replied on the same date stating that the contract had been issued to the employees affected following full discussion and consultation with them.

19) On 27 April 2018 Mr McCourt informed the Employer that Union representatives had been elected. According to Mr McCourt, Mr Harry Million, one of the elected representatives, was congratulated by the Employer on his new position. Following this, Mr Million submitted a pay claim and Mr McCourt asked the Employer to start consultation and negotiation on pay with the Union. Miss Duke replied on 6 July 2018 stating that there was no collective agreement or recognition of the Union for the purpose of collective bargaining and therefore no requirement or obligation to negotiate with the Union. This was reiterated in an email to the Union dated 12 July 2018. The Union then submitted its request for information to the Employer and then lodged its complaint when the information was not forthcoming.

8. Summary Of The Union’s Written And Oral Submissions

20) The Union stated that it was unable to provide documentation to evidence recognition because of a flood at the regional archive storage facility on 26 December 2015 when the River Aire in Leeds burst its banks. The Union’s records were kept in the basement at the storage facility and all were destroyed by the floodwater. The Union confirmed that there were no other documents electronic or otherwise, such as emails or minutes, that it could provide in support of its case. However, the Union maintained that a recognition agreement had existed between it (or its legacy unions MSF and Amicus) and the Employer (or its legacy companies) for over 30 years. There was no documentary evidence to support the existence of such an agreement. Neither was there any evidence from a witness who had negotiated or, even, seen the agreement. The Union inferred such an agreement must have existed as there had been union convenors and shop stewards in the past (the eighties or early nineties) who had been involved in matters such as pay negotiations.

21) The Union supplied evidence from witnesses, who had been elected as workplace representatives and been involved in discussions with the Employer on behalf of the members. When asked by the Panel to say when collective bargaining took place the Union stated that it was unable to give exact dates but referred mainly to the eighties or early nineties.

22) It stated that there had been senior workplace representatives including a convenor and deputy convenor during this period. It contended that the convenor’s position was full-time (paid release by the Employer) and that, under union rules, the establishment of these positions was only possible where there was an established structure of workplace representatives and a recognition agreement was in place.

23) The current Paintline Manager, Mr David Bell provided a written statement stating that he was for a period of time the full-time union convenor. The witness statement provided by the Union’s former Regional Officer, Bill Green also contended that there was a recognition agreement by the reference to a list of former Union workplace representatives who would not have sought election as workplace representatives in the absence of a recognition agreement. Mr Green stated he was responsible for this company for a significant period until a change in his responsibilities in 2009. Under normal circumstances there would have been a handover between officers but as Mr McCourt did not take up his duties until 2014 he was not aware of such a handover. Mr McCourt told the Panel that an officer would have been responsible for the company in the period between Green retiring and him starting, but he did not know the identity of the officer. There were a number of changes in the region that resulted in documentation being archived in Leeds.

24) Mr McCourt stated that there was a delay from him taking up his role in 2014 until he first contacted in the Employer in 2017 because he was extremely busy, being responsible for 4000 members and, in the absence of any local representatives, he was unaware of any issues within the workplace. As a result, making contact with the Employer was not a priority. When asked why no workplace representatives were elected for so many years Mr McCourt said that it was not unique to have a workplace with no representatives; especially when representatives retire or stand down and no one was willing to stand. When asked to give details of the collective bargaining which the Union claimed took place, the Union referred the Employer to the statement of Steven Coates, in which it was alleged that he along with John Aiken, met with Albert Flynn to discuss pay. In the statement no details were given as to when this meeting took place but it was stated at the hearing that the meeting was in about 2005.

25) The Union submitted that since at least 2004 the Employer’s payroll department had operated a ‘check-off system’ for the deduction of Union contributions. Whilst this alone was not conclusive proof of recognition, when considered as part of the overall evidence, the Union considered it was compelling. The Union contended that even if no written recognition agreement could be established, recognition through conduct could be established taking into account all of the evidence.

26) In September/October 1997 the Union contended that Acas assisted in resolving a dispute involving union members and the Employer. A printout from the Acas computer system was provided by the Union.

27) In evidence, Larry Walker stated that he had been a member of the Union for 42 years and that when he first started with the company it was a closed shop. He said that he had been a shop steward in his time and it was simply not true to say that the Union was not recognised. Asked for details of any collective bargaining, Mr Walker stated that back in the 1980s he along with the convenor, Freddie Hare, would meet with Trevor Harvey and David Trotter (at that time the Managing Director) for the Employer and they would all sit down and negotiate the pay award and bonus structure. He was unable to provide any documentary evidence of the meetings. When asked why his involvement in collective bargaining came to an end, Mr Walker said that he moved on and someone else took over as shop steward; but he was unable to say who replaced him. He said that throughout the 1980s there were two shop stewards representing the skilled workers, two representing the semi-skilled, one representing maintenance and a full time convenor. Mr Walker said that the full-time convenor had the use of a small office where union documentation was stored; but all the documents disappeared when there ceased to be a full-time convenor. The last convenor was David Bell, who in his written statement, confirmed that he was convenor during the mid-eighties. It was common ground that the post came to an end in the mid-nineties at the latest. Mr Bell was asked to attend the CAC hearing but declined.

28) Asked by the Panel whether there was any evidence of negotiations since the mid-nineties Andrew Coates stated that his father, Stephen Coates, who was not present at the hearing, had attended a meeting with Phil Sunley, then Production Manager, when the Employer wanted to change its pay system from weekly to monthly in 2008. He also stated that his father had a meeting with Albert Flynn, which he believed took place in about 2004, when his father was taken into an office when he was on night shift to discuss pay and a 3.2% pay award for the shop floor workers was negotiated.

29) Harry Million gave evidence on behalf of the Union in respect of the events since his election as representative in April 2018.

30) In conclusion, the Union stated that it was disappointed to have to attend a hearing as initial contact with the Employer suggested it may be possible to have a good relationship. The Union accepted that the company was a good employer and that this may have accounted for the lack of Union representatives in recent history. However, if the Panel were to examine the course of conduct and ask itself whether there had been collective bargaining in place at any time the answer would be clear. The Employer claimed that there was no collective bargaining but there was clear evidence of pay negotiations, the existence of convenors, deputy convenors, shop stewards and day release and the Employer did not challenge that this was so. Taken together the different strands supported the Union’s case that there had been an agreement for as long as 50 years. The Union accepted that it had been dormant for a number of years but there was no evidence of derecognition and, in the absence of any derecognition, the agreement must still be in place.

9. Summary Of The Employer’s Written And Oral Submissions

31) The Employer submitted that the Union had provided no evidence of a relevant collective agreement: there was no written application for recognition; there was no written collective agreement; the bargaining unit had not been identified; there was no evidence that an appropriate bargaining unit existed; there was no evidence that the Employer ever negotiated with the Union about proposed pay rises for the purpose of reaching an agreement and the Employer’s working practices highlighted that there was no voluntary recognition.

32) It was for the Union to provide evidence of recognition and it had failed to do so. On the other hand, the Employer had provided compelling evidence of the process for pay awards that clearly demonstrated that the Union had not been involved for at least 18 years.

33) The general principles to be considered when deciding whether a union had been recognised were summarised by the Court of Appeal in Albury Brothers. Recognition required mutuality. Such mutuality can be express or implied; if it was implied, the acts relied upon must be clear and unequivocal and usually the result of a course of conduct over a period of time.

34) Giving evidence, Mr Barry Lynch, who had been Managing Director since October 2016, stated that he had started employment with the company as an YTS apprentice Training Administrator in May 1994, when it was still called Myson Radiators, and over the years had worked in various roles through different promotions to his current position. He spent the first 11 years of his career (i.e. until 2005) on the shop floor in the operational side of the business and was therefore very familiar with how the shop floor operated from 1994 onwards.

35) When he started as a training administrator in 1994 he was not made aware that he could join a union and was not approached by any union member seeking to recruit him. He was not aware of any union activities during his time on the shop floor/operational side of the business nor was there any suggestion that the Union was recognised by the Employer. When questioned by the Union, Mr Lynch said that he was unaware that the office in which he worked from 1996/1997 had been the trade union office up to the mid-nineties. He stated that at no time whilst he worked there did anyone refer to it as the former trade union office.

36) Whilst the Employer is a big organisation, it remained part of a family business with strong family values. The core values were openness, modesty, trust and respect. Mr Lynch believed that the business was a fair employer, for example, paying the recommended living wage, which was above the current minimum wage.

37) As Managing Director, he would have expected to know if there was any Union recognition and had seen nothing that would point to such an agreement. During his 24 years’ service he would have expected contact from Union representatives, about pay and redundancy exercises if there was recognition. He felt confident in stating there was no Union recognition for the last 24 years as there had been no such contact.

38) Mr Lynch stated that he had not heard the name Bill Green before he provided a statement on behalf of the Union and believed that he would have come across or heard about him if he had been involved in pay negotiations and redundancy consultation up to 2009.

39) Mr Lynch stated that pay reviews are considered at Board level and had generally been in line with RPI when company performance allowed it. No employees, employee representatives or Union representatives were present during these discussions and none had sought to be present.

40) Mr Lynch had no knowledge of employees being given paid day release to carry out Union duties and the HR department did not have any records to support such a claim. There had not been any union presence when major changes took place, such as when shift patterns were changed.

41) The Union’s witnesses, David Bell, John Aitken, Steven Coates and Garry Allan were known to Mr Lynch but in the entire time he had known them, none had presented themselves as Union officials or representatives or suggested that they should be consulted about pay increases or redundancy situations because they were representatives of a recognised Union.

42) Between 2003 and 2005, when Albert Flynn was the Manufacturing Manager, Mr Lynch confirmed that he never had any dealings with John Aitken in his capacity as a Union shop steward and whilst the terms “shop steward” or “shop floor representative” may have been used, he did not at the time believe that they were linked to the Union or that the Union had elected representatives because it was recognised for the purpose of collective bargaining. Had this been the case, he believed that the representatives would have been more active and he would have known about their link to the Union.

43) In her evidence to the Panel Miss Duke stated that she started employment with the Employer in 2000 as HR Assistant when the company was called Myson Radiators before it became Rettig (UK) Ltd in 2005. Her current role was Human Resources Manager being appointed to this role in October 2013. She was the most senior HR representative in the Gateshead/Birtley division of the business. When she first started with the Employer David Trotter was Personnel Manager and the most senior HR person in Rettig UK. He retired from the Company in December 2004.

44) Mr Green suggested in his statement that he dealt with Mr Trotter, the Personnel Manager between 1989 and 2009, but Mr Trotter had retired in 2004 so this could not be the case. Miss Duke stated that she never saw, spoke or heard of Mr Green from when she stated working in HR in 2000 and that the first she heard of him was when she read his statement to the CAC. The HR team was fairly small with between 2 and 3 employees over the years, so if Mr Green had been regularly involved in discussions with Mr Trotter between 2000 and 2004 Miss Duke would have been aware of that fact. From 2000 to 2004 Miss Duke worked closely with Mr Trotter and was aware of, or involved in, most, if not all, HR issues that he was involved in. During that time, she never saw any representative from the Union, or from any other unions, meet with Mr Trotter or any other HR representatives to discuss employee issues. Since Mr Trotter retired Miss Duke would have been the main point of contact for any HR/employee related issues and again, never spoke to Mr Green during this period nor did she have any contact with any other Union representative until such time as Mr McCourt made contact in 2017. Miss Duke believed this was strong evidence that there was no voluntary recognition of the Union for the purpose of collective bargaining. Miss Duke stated that Albert Flynn was not in a position to negotiate a pay award as he was not part of the leadership team.

45) Miss Duke stated that there had been no union involvement in the redundancy processes which took place in 2003, 2004, 2005, 2008/2009, 2012 and 2014 or any of the pay negotiations during her time with the Employer. This undermined the general statement made by Mr Green that the Union was “involved in Annual Pay Negotiations, Redundancy Consultation” between 2000 and 2009. During that time there were four rounds of redundancy, but at no point did the Union get in touch to demand that it be consulted about the process.

46) Miss Duke had never been informed of the election of any Union representatives until 19 April 2018 when Mr McCourt notified her of the identities of three employees who had been elected. The election of these representatives was not evidence of recognition for the purpose of collective bargaining.

47) Miss Duke stated that she only agreed, out of courtesy, to meet with Mr McCourt in November 2017 after he first made contact to discuss the revised contracts which were being introduced as a number of long serving employees had no written contracts of employment. At no point did he suggest that he should have been consulted about the re-issue of the contracts because the Union was recognised. She stated that the meeting was not a consultation meeting with the Union or an acknowledgment that the Union was recognised. The meeting was brief and polite. She explained to Mr McCourt why the updated contracts were being issued to some employees. Mr McCourt did not suggest during the meeting that the Union should have been consulted on the change. This was the first time that Miss Duke spoke with Mr McCourt and it was clear that he had not dealt with the Employer or any HR representatives before that date. The Panel asked the Employer what provision the contracts make about pay. The Employer stated that the contract only refers to the annual pay award. The Employer provided a copy of a recent contract on 21 January 2019. Clause 3.4 of the new contract provides:

The rate of salary payable to the Employee shall be reviewed annually by the Employer (except in circumstances whereby the Employer has served or received notice of termination of contract) and may be increased by such amount, if any, as the Employer decides. The Employer is under no obligation to grant a pay award.

48) Miss Duke received an email from Mr McCourt on 12 February 2018 regarding the updated contracts. Miss Duke replied informing him that the Employer was not required to consult with the Union but that it had fully consulted with the relevant employees before issuing the contracts.

49) Miss Duke gave examples of significant HR changes since she started her employment in 2000, such as redundancy programmes, cost reduction exercises, moving from weekly to monthly pay and a move from a 5 to a 4 day week, about which there had been no consultation, contact or involvement with the Union.

50) Miss Duke stated that there had been no Union involvement in pay awards since she started in 2000. This included a couple of years when there was no pay award. The first contact by the Union to discuss pay awards was in 2018.

51) Commenting on the written statements provided in advance by the Union Miss Duke stated that she had checked the personnel files for Garry Allan, John Aiken and Larry Walker and found no evidence to support the assertion that they were formally elected representatives of the Union. Miss Duke had not been able to find any evidence of collective bargaining within the Employer’s archives and there was no evidence of a collective agreement.

52) Miss Duke accepted that the Employer operated check-off arrangements but she said that this was in response to requests from employees and was not indicative of recognition.

53) In conclusion, the Employer contended that the Union had failed to demonstrate that there was a voluntary recognition agreement or that there was a sustained course of action with the Employer with a view of negotiating and agreeing pay rises or other collective bargaining, over a number of years. In the absence of an agreement or clear and unequivocal acts over a sustained period it was clear that there was no recognition of the Union. The Union had been unable to provide any evidence to the contrary save for historic information that lacked details. There may have been a union presence at the time the company was a closed shop but the existence of a closed shop was not evidence of voluntary recognition and since 1990 there had been no union presence to speak of. Mr Green, who did not attend the hearing, stated that he had dealings with Mr Trotter up to 2009, yet Mr Trotter left the company in 2004. There was no evidence of collective bargaining, no evidence of de facto recognition by any course of action on the Employer’s part. Evidence of check-off was not evidence of recognition. Before Mr McCourt made contact in 2017 there had been no communication from the Union and there was no evidence of any Union representative being in place for the last 15-20 years. The annual pay review was a process overseen by the senior leadership team and had taken place without any Union involvement since at least 2000. The Union had not fulfilled the tests set out in the case law and was not entitled to the pay information it sought as set out in its application to the CAC.

10. The Law

54) Pursuant to section 181(1) of the Act, which is set out in paragraph 9 above, an employer is under a duty to disclose the required information for the purposes of all stages of collective bargaining about matters, and in relation to descriptions of workers, in respect of which a union is recognised. Section 178(3) of the Act states that “recognition” means the recognition of a union by an employer “to any extent for the purpose of collective bargaining”. Section 178(1) defines a “collective agreement” as “any agreement or arrangement made by or on behalf of” a union and employer “relating to one or more of the matters” listed in section 178(2). The matters listed in section 178(2) are:

(a) terms and conditions of employment, or the physical conditions in which any workers are required to work;

(b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;

(c) allocation of work or the duties of employment between workers or groups of workers;

(d) matters of discipline;

(e) a worker’s membership or non-membership of a trade union;

(f) facilities for officials of trade unions; and

(g) machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers’ associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures.

55) Section 178(1) then defines “collective bargaining” as “negotiations relating to or connected with one or more of those matters” specified in the list. It follows that under the Act a recognised trade union is one that is recognised by the employer to any extent for the purposes of negotiations connected with any of the matters listed above and, as the Union in this case requested information in order that it could pursue a pay claim, it is in respect of collective bargaining for the purposes of terms and conditions of employment that the Union must be recognised and which would bring it under the auspices of section 178(2)(a).

11. The Panel’s Considerations

56) The Panel has carefully considered the submissions made by both parties, in writing and orally, as well as the documents. We would like to thank Mr McCourt for the Union and Miss Besnard for the Employer for the manner in which they advanced their respective cases and to all the witnesses who all gave their evidence in a straightforward manner, obviously trying to help the Panel reach the right decision.

57) Prior to the hearing the Panel directed the Case Manager to send the parties copies of the judgment of the EAT in Working Links and the CAC decision in Kuehne & Nagel. Whilst neither of the parties made reference to these cases during their oral submissions the Panel did consider them in its deliberations especially Working Links which sets out the considerations, and quotes relevant legal authorities, that the Panel should take into account in reaching a determination as to whether or not a union is recognised by an employer.

58) At paragraph 42 of Working Links it provides:

“42. Recognition of a trade union for collective bargaining purposes is an important matter. In NUGSAT v Albury Brothers Ltd [1978] IRLR 504 Lord Denning MR observed at paragraph 11:

“A recognition issue is a most important matter for industry; and therefore an employer is not to be held to have recognised a trade union unless the evidence is clear. Sometimes there is an actual agreement of recognition. Sometimes there is an implied agreement of recognition. But at all events there must be something sufficiently clear and distinct by conduct or otherwise so that one can say, ‘They have mutually recognised one another, the trade union and the employers, for the purposes of collective bargaining.”

Lord Justice Eveleigh held at paragraph 19:

“it seems to me that recognition entails accepting a trade union to some extent as the representative of the employees for the purpose of carrying on negotiations in relation to or connected with one or more of the matters set out in s29(1) of the 1974 Act [now TULR(C)A Section 178(2)]. Thus it entails not merely a willingness to discuss but also to negotiate in relation to one or more such matters. That is to say, to negotiate with a view to striking a bargain…”

Lord McDonald in Transport and General Workers Union v Andrew Dyer [1977] IRLR 93 held:

“8) We agree with the appellants that recognition need not necessarily involve some formal act on the part of an employer, and that it can inferred from his actings and those of the union. 9) Where agreement is to be inferred from actings these must be clear and unequivocal, usually though not necessarily, involving a course of conduct over a period of time.””

59) DI/10/2014 GMB and Kuehne & Nagel [2015] suggests that if there is recognition similar clear and unequivocal evidence is required to show that it has been brought to an end.

60) We first considered whether the Union has established the existence of a written recognition agreement. As set out above, the Union infers that such an agreement must have been in place because of the existence of convenors, shop stewards and employee representatives in the past. It inferred that the agreement must have been destroyed when there was a flood in their office. However, none of its witnesses could give evidence about having negotiated, or seen, the agreement. The Employer had searched its records and not found any such agreement. There were no documents, such a meeting minutes, that supported the existence of a written agreement. On balance of probabilities, we conclude that there was not a written recognition agreement.

61) The next question that the Panel addressed was whether there was clear and unequivocal evidence of a course of conduct that would lead us to conclude that the Union was recognised by the Employer for the purposes of collective bargaining as defined in the Act.

62) Having considered carefully the documents and oral evidence we find that there is insufficient evidence to support a finding that the Union was recognised by the Employer by conduct. Before Mr McCourt made contact with Miss Duke in late 2017 there is none of the sort of documentary evidence that one would expect to be available to support the Union’s case, such as agendas, minutes of meetings and correspondence. Although the Union storage facility was flooded in December 2015 resulting in the loss of all the paper documents held there, the Panel would have expected some documentary evidence (whether paper or electronic) to be available if there had been recognition within the recent past.

63) The Employer witnesses contend there is nothing to support recognition by the Employer during the time they have been employed. This was the evidence of Mr Lynch, who has worked for the Employer and its predecessors since 1994 and Miss Duke, who commenced her employment with the business in 2000.

64) The Union’s witnesses gave some limited evidence about meetings, principally in the eighties or early nineties (with the last specific meeting referred to by any of the witnesses being in 2008) as evidence of collective bargaining. A number of the Union’s witnesses referred to attending meetings with Phil Sunley, a production manager, Albert Flynn, the factory manager, David Trotter, a personnel manager, David Taylor a production manager and Linda Currie in HR. However, there was no written record of these meetings and the Employer made the point that most, if not all, of these people were not authorised by the Employer to conduct collective bargaining negotiations and were not involved in matters such as the annual pay awards.

65) The Union suggested that the check-off arrangement was indicative of recognition through conduct. However, the Panel does not accept this. The Employer operating the check-off is a service for the Union and it is not evidence that the Union has negotiation rights for any of the matters set out in Section 178 of the Act which the Union must establish if it is to be successful in its complaint before the CAC.

66) The Panel accepts that there is evidence, albeit of limited scope, that at some stage in the past there was a relationship between one or more of the predecessors of the Union and the Employer. The evidence of the Union’s witnesses persuades us that there was a relationship between the parties for a period. The Employer provided facilities for the full-time convenor which included the provision of an office solely for trade union duties and there were shop stewards. However, whatever relationship was in place between the Union and the Employer, we conclude it came to an end by the mid-nineties when the Union office was closed. This was supported by the evidence of the current Managing Director, Mr Lynch, who worked in the same office in 1996 after it was no longer occupied by the Union. If there was recognition before 2000 then it withered on the vine. We do not consider that Mr Coates’ evidence about the meetings his father attended is sufficient to persuade us that any recognition lasted past the nineties as the two meetings his father has told him about appear at most to have been one off meetings held with individuals who were not empowered to negotiate on the part of the Employer as part of any process of collective bargaining.

67) It is possible that there was recognition until about the mid-nineties but, perhaps not unsurprisingly, after so long a period of time, the existing evidence is not sufficient to clearly and unequivocally establish that there was recognition by conduct for the purposes of the Act, we having concluded on balance of probabilities that there was no written recognition agreement. Even if recognition by conduct could be established up to the mid-nineties, the evidence is clear and unequivocal that there has been no recognition from at the latest the year 2000. While it may not be possible to say exactly when any recognition withered on the vine, what is certain is that it had done so by the year 2000. It would fly in the face of industrial reality to suggest recognition was merely dormant from 2000 at the latest until Mr McCourt made contact in November 2017; it was non-existent. Ms Duke’s dealing with Mr McCourt since 2017 have not been, and were not argued to have been, such as to involve a clear and unequivocal recognition of the Union, but represent no more than responses to his enquiries.

12. The Panel’s Decision On The Prelimary Issue

68) The Panel finds that the Union is not recognised for the purposes of collective bargaining about matters, and in relation to descriptions of workers, in respect of which it has sought information from the Employer under section 181(1) of the Act.

Panel

Mr James Tayler - Panel Chairman

Mr Tom Keeney

Ms Virginia Branney

5 February 2019

13. Appendix 1

Names of those who attended the hearing on 18 January 2019:

For the Union

Pat McCourt - Unite Regional Officer

Martin Wright - Unite Regional Legal Officer

Harry Million - Workplace union representative

Andrew Coates - Workplace union representative

Larry Walker - Rettig Employee

For the Employer

Helen Duke - HR Manager

Barry Lynch - Managing Director

Alexandra Besnard - Solicitor – Collingwood Legal

Jordan Hassan - Trainee Solicitor – Collingwood Legal