Decision

Acceptance Decision

Updated 24 October 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1279(2022)

8 August 2022

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:

URTU

and

Brenntag UK Limited

1. Introduction

1) United Road Transport Union (the Union) submitted an application to the CAC dated 25 June 2022 and which was received on 27 June 2022 that it should be recognised for collective bargaining by Brenntag UK Limited (the Employer) for a bargaining unit comprising the “ Drivers”. The CAC gave both parties notice of receipt of the application on 27 June 2022. The Employer submitted a response to the CAC on 4 July 2022 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 Mrs Lisa Gettins, Panel Chair, and, as Members, Mr Alastair Kelly and Mr Paul Morley. 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 25 July 2022. The acceptance period was extended to 12 August 2022 in order to allow time for a membership and support check to take place, for the parties to comment on the subsequent report, and for the Panel to consider those 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 the Union said it had written to the Employer with a formal request for recognition on 20 April 2022. The Union confirmed that the Employer had responded by stating “We do not believe that it would be proportionate to extend recognition to the Sunderland Depot, given the small size of the workers there”. A copy of the Union’s letter of 20 April 2022 was attached to the application.

6) According to the Union, there was a total of 25 workers employed by the Employer with 8 of these falling within the proposed bargaining unit. The Union stated that it had 8 members within the proposed bargaining unit. Asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union said that “a members list can be provided to the CAC”.

7) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that it had 100% membership in the proposed bargaining unit. The Union confirmed that the bargaining unit had not been agreed with the Employer.

8) The Union stated it was not aware of any existing recognition agreement which covered any worker in the bargaining unit. The Union confirmed that it held a current certificate of independence and it also confirmed that the Employer, following receipt of the request for recognition, had not proposed that Acas be asked to assist. The Union stated that it had copied its application and supporting documents to the Employer on 25 June 2022.

4. Summary of the Employer’s application

9) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 20 April 2022. The Employer responded to the Union’s request on 22 April 2022, in this letter the Employer stated it had written to the Union on 22 June 2022 stating “We do not believe that it would be in proportionate to extend recognition to the Sunderland Depot, given the small size of the workforce there. Employees are already able to be accompanied by an URTU representative in any disciplinary/grievance proceedings, for example - we do not believe that its necessary, at this moment in time, to extend matters beyond that”. The letter was attached to its response.

10) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated this was on 25 June 2022. The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form, as it was happy with the scope of the existing recognition arrangements. When asked if the Employer disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated it had not been given any evidence to confirm membership numbers.

11) The Employer confirmed that the number of workers it employed was 25. In answer to the question if the Employer agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application, the Employer stated it agreed the number claimed.

12) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the proposed bargaining unit. When asked whether, following receipt of the Union’s request, the Employer had proposed that Acas be requested to assist, the Employer answered “No”.

13) Finally, when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit the Employer answered “No”.

5. The membership check

14) To assist in the application of the admissibility tests in Schedule A1 to the 1992 Act, the Panel proposed independent checks of the level of union membership in the proposed bargaining unit. The information from the Union was received by the CAC on 8 July 2022 and from the Employer on 13 July 2022. It was explained to both parties that, to preserve confidentiality, the respective lists would not be copied to the other party and this was confirmed in a letter from the Case Manager to both parties dated 8 July 2022.

15) The Union provided a list with the details of 8 members, the spreadsheet gave the following information for each individual: “Membership number”, “Surname”, “Initial”, “Date of Birth”, “Entry” and “Paid to week”. The Employer provided a list with details of 8 employees, its spreadsheet gave the following information “First Name”, “Surname”, “Site”, “Role”, and “Date of Birth”.

16) According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 7, a membership level of 87.50%. A report of the result of the membership check was circulated to the Panel and the parties on 13 July 2022 and the parties’ comments invited. The Panel is satisfied that this check was conducted properly and impartially.

6. Parties’ comments on the membership check

17) In an email to the CAC dated 13 July the Union stated it agreed with the membership check.  The Union confirmed that one of its members was a yard operative, so this left them with 7 members out of 8 in the proposed bargaining unit.

18) In an email to the CAC dated 20 July the Employer commented “Please can you advise on the next process?”. The Employer confirmed that this was the response it would like on record as its comment on the membership check.

7. Considerations

19) 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.

20) 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 and that it was made in accordance with paragraph 12(2) 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.

8. Paragraph 36(1)(a)

21) In accordance with 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.

22) The membership check conducted by the Case Manager showed that 87.50% 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 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.

9. Paragraph 36(1)(b)

23) 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.

24) For the reasons given in paragraph 16 above, the Panel has concluded that the level of union membership within the proposed bargaining unit stands at 87.50%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union.

25) On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, 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.

10. Decision

26) For the reasons given in paragraphs 20 - 25 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mrs Lisa Gettins, Panel Chair

Mr Alastair Kelly

Mr Paul Morley

8 August 2022