Decision

Acceptance Decision

Updated 23 July 2019

Case Number: TUR1/1122(2019)

19 July 2019

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

Schneider Electric Ltd

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 21 June 2019 that it should be recognised for collective bargaining purposes by Schneider Electric Ltd (the Employer) in respect of a bargaining unit comprising “Production Operatives.” The location of the bargaining unit was given as “Unit 9, Opal Way, Stone, Staffordshire, ST15 0SS”. The application was received by the CAC on 21 June 2019 and the CAC gave both parties notice of receipt of the application on 24 June 2019. The Employer submitted a response to the CAC dated 28 June 2019 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, Mrs Susan Jordan and Ms Virginia Branney. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 5 July 2019. The acceptance period was extended to 22 July 2019 in order to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the 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 letter to the Employer on 2 May 2019. The Union stated that prior to sending its request to the Employer, by letter dated 26 March 2019 it had both written to and subsequently met with Managers to discuss the election of a Unite representative, as its members on site believed that recognition was still in place albeit that it “hadn’t operated for some time”. The Union said that it sent a further letter to the Employer on 26 March 2019 in which it had asked the Employer “to recognise a union member as the workplace representative for Unite.” The Union said that there was a meeting of the parties in late April at which the Union were informed that “the company would not recognise Unite for collective bargaining and also would not recognise a workplace representative”. The Union stated that the Employer had responded to its request of 2 May 2019, declining both a new agreement and a meeting with Acas to discuss a new agreement. A copy of the Union’s request, the Union’s letters of 26 March 2019, and the Employer’s response to the Union’s request were attached to the Union’s 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 other applications have been made for this group or similar”. 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 30. The Union stated that there were 18 workers in the proposed bargaining unit, of whom 13 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 it would provide a list of its full paying members to the CAC on a confidential basis.

8) The Union stated that the reason for selecting its proposed bargaining unit was because “An increase in membership and a request from an employee to become a Unite representative caused my office to initiate contact with the site manager.” The Union said that this request had led to a meeting and subsequent correspondence regarding recognition. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit.

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 21 June 2019.

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 had received the Union’s written request for recognition on 2 May 2019. The Employer had responded by letter to the Union rejecting its request and explaining its reasons for doing so. A copy of the Employer’s letter to the Union was attached to the Employer’s response. In this letter the Employer had set out how terms and conditions were agreed within the business, and the enhancements to terms and conditions that were made in recent years in all of the areas for which the Union wished to seek collective bargaining rights. The Employer also said that it had spoken to the workforce in recent days and it was not aware of “any great appetite” for a collective bargaining agreement, despite an increase in union membership.

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 21 June 2019. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union, nor did it agree with the proposed bargaining unit. The Employer stated that it had managed to establish a good working relationship with the workforce via direct engagement. This had always been a direct collaborative approach and had been mutually beneficial, and it did not want to see this in any way compromised. The Employer said that the terms and conditions amongst both production and support workforce were harmonised, which had helped team cohesion and engagement. The Employer considered that the proposed bargaining unit could potentially disrupt its successful efforts to draw all staff together and it believed that “it may divide the unionised workforce into being excluded from benefits that the company may globally put into place.” The Employer stated that it was therefore working to define the same rules, policy and wages for all of its employees throughout the country. The Employer stated that it would prefer not to create any local rules or policy for a small group of people, creating an unfair situation for all other employees in the UK and Ireland.

12) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

13) The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application and said that there were 18 individuals within the production area. The Employer said that there were also 14 support staff and a further 32 in other businesses, a total of 64 staff within the Stone site. The Employer said 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 the Union had failed to provide details and it was therefore unable to confirm whether those numbers claimed were accurate.

15) 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 said that, following initial contact from the Union, it had met with the workforce to discuss the proposed collective agreement. The Employer said at that meeting there was “no strong opinion in favour of recognition”. The Employer further stated that “Most people seemed supportive to maintain the current arrangement.”

16) The Employer stated that it was not aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, nor had it received any other applications in respect of workers in the proposed bargaining unit.

5. Additional comments from the parties

17) On 30 May 2019 the CAC copied the Employer’s response to the application to the Union and its comments were invited. In an e-mail dated 5 July 2019 the Union said that it had spoken to its members, who considered themselves to be in a distinct role as production workers, as opposed to the support and admin roles who worked at the Stone site. The Union stated that the Employer appeared to agree that the number of production workers was 18. The Union stated that there were currently no staff with collective bargaining rights and that it did not agree with the Employer’s suggestion that Unite being awarded recognition would be detrimental to this group. The Union stated that there was no automatic right to a pay rise or improved Terms and Conditions, and the right to join and organise with the Union was open to the support staff and other groups of employees if they wished to do so. The Union stated that the production workers had joined the Union and continued to be fully paid up members. The Union considered that this was a strong indication that they were interested in the Union achieving recognition. The Union further explained why it believed its proposed bargaining unit was compatible with effective management. However this is an issue that will, if necessary, be considered by the Panel at a later stage of the statutory recognition process.

6. The membership and support check

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 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. 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 workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of its paid up members within that unit (including their full names and dates of birth). It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 8 July 2018 from the Case Manager to both parties.

19) The information requested from the Union was received by the CAC on 8 July 2019 and from the Employer on 9 July 2018. 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 indicated that there were 18 workers in the Union’s proposed bargaining unit. The following job titles were listed:

• Manufacturing Team Leader - 1

• Production – Test Technician - 1

• Production Incoming Goods Inspector - 1

• Production Operative (Level 5) - 1

• Production Operative (Level 6) - 1

• Production Operative (Level 7) - 2

• Production Operator - 6

• Production Stores Controller – 1

• Production Team Leader – 1

• Production Tester – 1

• Raid Engineer – 1

• Tester - 1

21) The list of members supplied by the Union contained 13 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 9, a membership level of 50%. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

22) A report of the result of the membership and support check was circulated to the Panel and the parties on 10 July 2019 and the parties were invited to comment on the results of that check by the close of business on 12 July 2019.

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

23) In an e-mail to the CAC, dated 25 April 2019, the Union stated that it believed the check carried out by the CAC indicated that it had met the tests set out in paragraph 36 of the Schedule.

24) In an e-mail to the CAC, dated 29 April 2019, the Employer said that it could not confirm that 10% of the workers constituting the bargaining unit were members of the Union as it did not have a list of union members. It further stated that it had “no indication of a majority in favour of recognition.”

25) The Employer also stated that it wished to respond to the points raised by the Union in paragraph 17 above. However, as stated in paragraph 17 above, this is a matter to be considered at a later stage.

8. Considerations

26) 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.

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 11. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 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.

9. Paragraph 36(1)(a)

28) 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.

29) The membership check conducted by the Case Manager (described in paragraphs 18 - 21 above) showed that 50% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 21 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached 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.

10. Paragraph 36(1)(b)

30) 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. The Panel is tasked therefore to determine likely, not actual, majority support for Union recognition.

31) The Union relied on its density of union membership as evidence that there was majority support for collective bargaining, which the Employer did not dispute.

32) The Panel is of the view that the level of membership within the proposed bargaining unit can be taken as a legitimate indicator of the strength of support for the Union. With an apparent density of membership of 50% in its proposed bargaining unit, the Panel has therefore reached the conclusion that, on the balance of probabilities and in the absence of any evidence to the contrary, 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

33) For the reasons given in paragraphs 27 - 32 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Rohan Pirani, Panel Chair

Mrs Susan Jordan

Ms Virginia Branney

19 July 2019