Decision

Acceptance Decision

Updated 21 September 2018

Case Number: TUR1/1051(2018)

11 June 2018

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:

GMB

and

Katmex Limited

1. Introduction

1) The GMB (the Union) submitted an application to the CAC on 8 May 2018 that it should be recognised for collective bargaining by Katmex Limited (the Employer) for a bargaining unit comprising the “All hourly paid employees up to and excluding Team Leaders, Office Staff, Managers and personal Contract holders”. The location of the bargaining unit was given as Bowron Street, Norton, Stockton on Tees, Cleveland TS20 2BH. The CAC gave both parties notice of receipt of the application on 9 May 2018. The Employer submitted a response to the CAC dated 15 May 2018 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 Professor Kenny Miller, Chairman of the Panel, and, as Members, Mrs Maureen Chambers and Mr Paul Gates OBE. The Case Manager appointed to support the Panel was Nigel Cookson. Issues

3) 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.

2. The Union’s application

4) The Union did not answer the question on the application form as to when it had written to the Employer with a formal request for recognition but it attached to the application a letter to the Employer dated 9 February 2018 which stated that the request was being made under the Schedule, set out the proposed bargaining unit and that the Union had a certificate of independence. Although asked, there was no indication given in the application form as to the Employer’s response to the request though a letter from the Employer to the Union dated 20 February 2018 refusing the request but indicating a willingness to negotiate was attached to the application.

5) According to the Union, there was a total of approximately 140 workers employed by the Employer with approximately 103 of these falling within the proposed bargaining unit. The Union stated that it had 30 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 it had petitions from the majority of the workers in the bargaining unit.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that it believed that the bargaining unit was a distinct entity and had been agreed with the Employer and the group of employees had shown an interest in the Union being recognised for collective bargaining purposes. The Union confirmed that the bargaining unit had been agreed with the Employer.

7) The Union said there had not been a previous application in respect of this or a similar bargaining unit and there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

8) Asked whether, following receipt of the formal request for recognition, the Employer proposed that Acas be requested to assist the parties the Union answered in the affirmative. The Union further stated that it agreed to the Employer’s proposal and provided the details of the Acas officers concerned.

9) Finally, the Union stated that it was in possession of a certificate of independence and that it had copied the application and supporting documents to the Employer on 8 May 2018.

3. The Employer’s response to the Union’s application

10) The Employer stated that it had received the Union’s formal request for recognition set out in a letter dated 9 February 2018 which it received on 12 February 2018. When asked what its response was, the Employer said that it agreed to discuss the request and indicated so in a letter dated 20 February 2018. It also proposed the involvement of Acas to which the Union signalled its agreement by way of a letter to the Employer dated 1 March 2018. Copies of the Employer’s letter dated 20 February 2018 and the Union’s letter of 1 March 2018 were attached to the response.

11) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated that it received the application on 8 May 2018 by email from the Union. The Employer confirmed that it had agreed the bargaining unit prior to having received a copy of the completed application form and this remained the case.

12) The Employer stated that it employed 134 workers at the site and that it agreed with the Union’s figure as to the number of workers in the bargaining unit. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer stated that it was unable to fully comment on the Union’s estimate of membership as the Employer was not in possession of all the information. However, it would question how many of the members were on discounted membership, how long they had been in membership and whether they joined the Union for reasons other than collective bargaining. The Employer did not believe that the majority of the bargaining unit supported a request for recognition of the Union for collective bargaining. When asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, the Employer stated that in addition to the reasons stated in the preceding paragraph, it successfully ran a works council with elected representatives from the workforce to discuss matters over many issues including performance and pay. It also had a health and safety council in place which met monthly and the same employee representatives were involved. Employees had a voice through these mechanisms. The Employer annually consulted on pay talks with the advisory works council. It recently successfully concluded pay talks with representatives following a majority ballot of the workforce. This had been the case in previous years. Further, verbal feedback by employees suggested that there was a lack of appetite for trade union recognition and the Employer submitted that a ballot would be necessary to verify the alleged support of the Union.

13) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the agreed bargaining unit. 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 “Not applicable”.

4. Membership and Support Check

14) To assist in the application of the admissibility tests, the Panel proposed independent checks of the level of union membership in the agreed bargaining unit and the number of workers in the unit who had signed a petition supporting recognition of the Union. It was agreed with the parties that the Employer would supply to the Case Manager a list of the full names, dates of birth and job titles of workers within the bargaining unit, and that the Union would supply to the Case Manager a list of the full names and dates of birth of the paid up union members within that unit and a copy of its petition. The information from the Union was received by the CAC on 21 May 2018 and from the Employer on 22 May 2018. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and the petition would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to both parties dated 22 May 2018.

15) The Union provided a spreadsheet bearing the details of 30 individuals. The information provided for each individual included name, date of birth, join date and contribution grade with five of the 30 members annotated as Contribution Grade 1 and the remaining 25 as Contribution Grade 2. In its covering email the Union stated

“With regards to the contribution rate, I can confirm that it is within the ability of the Regional Secretary of the Union to approve a promotional rate on the build up to a formal recognition agreement and I can confirm that his discretion was used in this matter.”

16) In a further email dated 24 May 2018, when asked to explain the distinction between contribution grades, the Union stated:

“In response to your recent email, the distinction between the contribution grades 1 and 2 is purely the amount of financial contributions each member makes, which is based on the hours they normally are contracted per week. Grade 1 is £3.05 per week for those members working 20 hours and above and Grade 2 is £1.78 per week, for those working between 10 and 20 hours per week. The Grades are only used for deciding what Contributions members should pay and the benefits they receive. The benefits given to each grade is identical, an extract from the Rule Book clarifies how long Contributions need to be made for before being entitled to those equal benefits is “However to be entitled to any benefit under rules 53, 54, 56 and 57, the members must pay grade 1 or grade 2 Contributions for 27 and 53 weeks in a row.” This means those on the lower contribution rate must be a member for twice as long in order to qualify for the same benefits. There are no additional benefits given to Grade 1 Members compared to Grade 2.

The GMB has discretion to provide legal services for those members outside of the qualifying period if the circumstances would benefit our members for the purposes of recruitment, organisation and recognition. Our Regional Committee, under Rule 46, has the final say as to which members are appropriate for a promotional rate.

I would also like to highlight that at no point through the voluntary process did the Company raise this issue. We entered into the voluntary process with the assistance of ACAS in good faith and had to end the voluntary arrangements as a consequence of the continued undermining of the voluntary CAC code of practice that they were in possession of, which can be verified by the ACAS contacts we have provided to you. I would urge that the ACAS contacts can verify this information should you wish to include it in your report.”

17) The Union also provided a petition which took the form of individual pledges of support. Each was identical in appearance and was headed:

GMB @ work in Katmex Ltd

“YES, I support the GMB claim through recognition to conduct collective-bargaining on my behalf and would welcome the opportunity to register my opinion in a secret ballot.”

Signatories were asked to append their signature, print their name, state whether they were a member of a union and, if so, to state whether it was membership of the Union or another trade union. It was not apparent from the pages of the petition as to when the petition was conducted.

18) The Employer provided a spreadsheet with the names and grades of 106 workers. The grades given were: Inspection, Key Operators, Level 1, Level 2, Level 3 and Maintenance.

19) According to the Case Manager’s report, the number of Union members in the bargaining unit was 28, a membership level of 26.42%. Four of the members in the bargaining unit were noted on the Union’s list as Contribution Grade 1 and 24 noted as Contribution Grade 2. The check of the petition showed that it had been signed by 56 workers in the bargaining unit, a figure which represents 52.83% of the bargaining unit. Of those 56 signatories, 27 were members of the Union (25.47% of the bargaining unit) and 29 were non-members (27.36% of the bargaining unit).

20) A report of the result of the membership check was circulated to the Panel and the parties on 24 May 2018 and the parties’ comments invited.

5. Parties’ comments on the Case Manager’s report

21) In a letter dated 30 May 2018 the Employer set out its observations on the Case Manager’s report. The Employer was unaware that the Union made a distinction in its membership and was grateful for the clarification already sought. According to the Union, it was being alleged that Grade 2 contributors were only those who worked between 10 and 20 hours per week and that the Union had confirmed that there were 25 individuals currently on Contribution Grade 2 whereas there were only five paying the normal (full) contribution Grade 1. The Employer could confirm that within the bargaining unit there was only one employee working between 10 and 20 hours per week. The Employer was therefore at a complete loss to understand how the Union could assert there were 25 individuals that worked such hours and would ask the CAC to put the Union to strict proof that this did not amount to an inducement, which it was respectfully suggested was inappropriate in these circumstances.

22) The Employer submitted that if one were to look at the contribution Grade 1 members, the Union clearly had an insufficient level of membership within the bargaining unit for the claim to be admissible under paragraph 36(1)(a) which stipulated that at least 10% of the workers must be members of the union. The Union had shown no good reason why it had permitted/induced 24 individuals who were not working 10-20 hours per week as alleged to be paying a preferential rate and accordingly that group should be ignored and the claim be refused on the basis that the Union had failed to make an admissible application as alleged or at all under paragraph 36 of Schedule Al.

23) It should be further noted that the Employer was very concerned that confidential dialogue with Acas had been purportedly referred to in this application and put the Union to strict proof that its assertion that there had been an alleged breach of the Code of Practice was stipulated, giving dates of when, how and why, as the Employer strongly refuted such allegations.

24) It should be further noted that the Employer willingly entered into dialogue with Acas and the Union and it was the Union that withdrew from the process not the Employer. It was contended that the Union had not acted in good faith and there was no undermining on the part of the Employer, as alleged by the Union. The Employer could confirm that it had been in contact with the Acas Official who verified that all dialogue between the parties was and remained confidential and had been most inappropriately disclosed by the Union and, more seriously, distorted in its purported impact in this application.

25) In addition to the test under paragraph 36(1)(a) of the Schedule, the Union relied upon a petition which the Employer argued was not appropriate or proper to be considered because it was undated. The provision of such information without dates gave no real indication that the majority of the workers would be likely to favour recognition now, as against some previous time.

26) It was for the Union to get its house in order and submit accurate and correct information and it was respectfully submitted that it had singularly failed to do so, and it was in those circumstances that the Employer would invite the CAC to formally dismiss the application on the basis that it was inadmissible under paragraph 36(1)(a) and/or in the alternative under paragraph 36(1)(b).

27) In a letter dated 31 May 2018 the Union stated that the results of the verification of the level of union membership in the bargaining unit provided clear evidence that the Union had the required support. First, the proportion of Union members in the bargaining unit was evidenced at 26.42% therefore Union membership passed the admissibility threshold for paragraph 36(1)(a) in that members of the Union constituted at least 10% of the workers in the bargaining unit.

28) With regards to the admissibility test under paragraph 36(1)(b), that the majority of workers constituting the bargaining unit would be likely to favour recognition, the Union submitted that, as evidenced by the level of union members signing the petition and the proportion of the workers who were not union members in the bargaining unit but who had also signed the petition in support of the Union being recognised, equated to a majority of 52.83%. The proportion of union members in the bargaining unit that had signed the petition was 25.47% and the support for the Union from non-union members was higher, at 27.36%. This demonstrated, and satisfied through evidence, that the Union had majority support of the bargaining unit under paragraph 36(1)(b) of the Schedule.

29) The Union also wanted to draw the Panel’s attention to the verification Acas provided on 28 March 2018 when it established membership at the same level as the CAC but Acas also declared that there were 63 names verifiable within the bargaining unit of 103 as supportive of the Union’s recognition claim. There was a difference of seven employees from late March 2018 to 24 May 2018. The Union would request the CAC to seek an explanation from the Employer to clarify the difference, as part of the admissibility of the application under paragraph 36(1)(b) of the Schedule.

6. Considerations

30) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

31) 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 of the Schedule in that before the end of the first period of 10 working-days following the Employer’s receipt of the request for recognition, the Employer informed the Union that it did not accept the request but indicated a willingness to negotiate but no agreement was subsequently reached in the second period of 20 working days which started with the day after that on which the first period ended. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

7. Paragraph 36(1)(a)

32) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Union constitute at least 10% of the workers in the agreed bargaining unit. Here, the findings set out in the Case Manager’s show that out of the 106 workers in the bargaining unit, there were 28 Union members giving a membership level of 26.42%. The Union argues that this is clear indication that the test under this paragraph is fulfilled. Contrariwise, the Employer sought to persuade the Panel to disregard those members paying Grade 2 contributors on the grounds that this category of membership was reserved for those that worked between 10 and 20 hours per week and whilst the Union claimed to have 25 members currently paying this level of contributions the reality was that only one worker in the bargaining unit worked such hours. Having excluded these members this would leave only five members paying the normal, full time, contribution rate and, based on this figure, membership would not be sufficient to satisfy the requirements of this test.

33) Set out in paragraph 16 above is the Union’s explanation as to the distinction in the contribution grades paid by its members. The Union explained that the grade only determines the rate of contribution and the timing of benefits and that there are no additional benefits given to Grade 1 members compared to Grade 2. The crucial point here is that irrespective as to which grade of membership the member falls under, they are all nonetheless full members of the Union in accordance with the Union’s rules. The Employer further queried the length of time members had been in membership and the reasons why they had become members but, at this stage of the statutory process, the call we have to make is simply whether 10% of the workers in the agreed bargaining unit are members of the Union. Having given the matter due consideration we are satisfied that, on the evidence before us, membership of the Union is greater than the statutory threshold and so the test under paragraph 36(1)(a) is met.

8. Paragraph 36(1)(b)

34) The test in paragraph 36(1)(b) is whether a majority of the workers constituting the agreed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit. The Union relies upon the petition it put forward as evidence that this test is met whereas the Employer argues that the absence of any dates on the petition calls into question the legitimacy of the evidence as there was no indication that it represents the current views of the signatories rather than views held some time previously.

35) In our view, the fact that the petition is not dated is not fatal to the Union’s cause. We have not had put before us any evidence that would persuade us that there has been a shift in the views of any of the workers that had signed the petition in favour of recognition and until we have evidence that counters the validity of the petition we believe it can be taken as a legitimate indicator of the signatories’ views on recognition.

36) The question we must address is whether it is likely that the majority of the workers in the bargaining unit favour recognition of the Union and it would seem, given that 52.83% of the bargaining unit signed the petition in support of the Union, this would be the case. The CAC is often at pains to point out in our decisions on acceptance that this test is one of likelihood and so, by its very nature, is a hypothetical measure rather than it being a test in which a union has to demonstrate a strict arithmetical majority at this early stage in the statutory process. The test of whether the Union has the support of an arithmetical majority of the workers will come later should the matter go to ballot and the outcome of the application would then be determined by the views of the majority.

37) Accordingly, on an assessment of the documentation before us and, in the absence of any evidence to the contrary, the Panel is of the view that the petition can be taken as a demonstration of likely support for recognition of the Union for collective bargaining. The Panel is satisfied therefore that this shows that, on balance, a majority of the workers in the bargaining unit would be likely to support recognition of the Union and the test set out in paragraph 36(1)(b) is therefore met.

9. Decision

38) For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Kenny Miller, Chairman of the Panel

Mrs Maureen Chambers

Mr Paul Gates OBE

11 June 2018