Decision

Acceptance Decision

Updated 5 February 2019

Case Number: TUR1/1075/2018

23 November 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

View Logistics Limited

1. Introduction

1) GMB (the Union) submitted an application to the CAC dated 30 October 2018 that it should be recognised for collective bargaining purposes by View Logistics Limited (the Employer) for a bargaining unit described as: “All permanent hourly paid warehouse staff up to and excluding Team leaders, Office staff, managers and personal contract holders”. The application was received by the CAC on 30 October 2018 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted a response to the CAC dated 2 November 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, Panel Chair, and, as Members, Mrs Maureen Chambers and Ms Virginia Branney. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 13 November 2018 and was extended to 27 November 2018 to allow time for the parties to comment on the results of the membership check and for the Panel to consider said comments before arriving at a decision.

2. Issues

4) The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 9; is made in accordance with paragraphs 11 or 12; is admissible within the terms of paragraphs 33 to 42; and therefore should be accepted.

3. Summary of the Union’s application

5) In its application to the CAC the Union stated that it had requested a meeting with the Employer in June 2018 and agreed to meet on 23 August 2018 to discuss a voluntary agreement. The Union said that they met with the Employer and talked about the bargaining unit (58 warehouse staff) and the percentage of GMB membership within the company and the number of petitions it had. The Union explained that the Employer requested time to speak with ACAS which subsequently happened and on the 10 September 2018 the Union had contacted the Employer to inquire which option the company had decided to take, either the voluntary or statutory route. The Union stated that a reply was received from the Employer on 10 September 2018 informing them that they wished to proceed with a voluntary agreement and involve ACAS, however the earliest date that they were prepared to meet was 3 months later (15 December 2018) which the Union felt was unreasonable. The Union stated that it informed the Employer that a CAC application would be lodged and the company understood their position. The Union stated that it subsequently sent an A1 Schedule letter to the Employer on 13 September 2018 and no response was received within the specified timescale. A copy of the Union’s request was attached to the application.

6) When asked whether the Union had made a previous application under the Schedule for statutory recognition for workers in the bargaining unit or a similar unit the Union answered ‘No’. The Union stated that, following receipt of the request for recognition, the Employer had proposed that Acas should be requested to assist the parties and they had agreed.

7) The Union stated that the total number of workers employed by the Employer was 119. According to the Union there were 58 workers in the bargaining unit, of whom 11 were members of the Union. When asked to provide evidence that the majority of the workers in the bargaining unit were likely to support recognition for collective bargaining the Union stated that it had petitions from the majority of workers in the bargaining unit.

8) The Union stated that the reason for selecting the bargaining unit was because it believed that the bargaining unit was a distinct entity and the group of employees had been members of the GMB and shown an interest in being recognised for collective bargaining purposes. The Union confirmed that the bargaining unit had been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the bargaining unit the Union answered ‘No’.

9) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application and supporting documents to the Employer on 30 October 2018.

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 a letter from GMB dated 1 June requesting recognition was received in mid-June. The Employer stated that a call was made to the Union to discuss the letter and the options available to the company and it was agreed that parties would meet on 17 July 2018 however this was delayed until 23 August 2018.

11) The Employer stated that the first sight of the application form had been when the document provided as part of the CAC involvement was received. The Employer stated that a bargaining unit was discussed at the meeting they had with the Union and it was a reasonable request that the unit identified was the one that GMB would bargain for. The Employer advised that at the meeting they had initial discussions but nothing was confirmed. In answer to the question do you agree the bargaining unit the Employer answered “yes”. The Employer stated that, following receipt of the Union’s request, it did propose that Acas should be requested to assist and met with Acas on 5 September 2018.

12) The Employer stated that it did not agree with the number of workers in the bargaining unit as it had increased slightly over the last two months and there were currently 66 in the bargaining unit, with 9 new starters in October.

13) The Employer confirmed that there was no existing agreement for recognition in force covering workers in the bargaining unit.

14) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated that it was uncertain if the majority would support the recognition as from the union numbers there were currently just under 20% that were signed members of the Union. The Employer stated that over recent months the business had started to make changes both in terms of operation and also in culture and in April the MD role changed to two people undertaking a joint MD role and with that there would inevitably be change. The Employer explained that there had been several changes to working conditions, in relation to non-contractual bonus, working hours etc all to benefit the employees, and they had recently started an employee forum, with people from all aspects of the business.

15) The Employer answered ‘N/A’ 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 and when asked if it had received any other applications in respect of workers in the proposed bargaining unit.

5. Summary of the Union’s comments on the Employer’s response

16) On 5 November 2018 the Case Manager wrote to the Union inviting it to comment on the Employer’s response. In an email dated 6 November 2018 the Union confirmed that their written request letter under the A1 Schedule was sent by recorded delivery on 13 September 2018 and a recognition request letter was sent on 31 May 2018. The Union attached a copy of their recorded delivery confirmation.

17) In respect of the increase in number of workers currently in the bargaining unit the Union stated that they were being told by their members that the new employees could be temporary and a number of them were agency staff helping over the busy period and would revert back to normal after the busy period was over. The Union confirmed that it would forward a further copy of the CAC application which was sent to the Employer on 1 October 2018.

6. Summary of email from the Employer

18) In an email to the Case Manager dated 6 November 2018 the Employer stated that they had been working with approximately 22-24 agency workers over several months and on 1 October 2018 they permanently recruited 9 of those agency staff. The Employer explained that they normally used the temporary to permanent offering as provided by local agencies. The Employer confirmed that it had been made aware by the Union that they must not include agency workers or temporary members of staff and the number provided were only for permanent members of staff. The Employer said that their numbers would not revert back after their busy period September – December, as suggested by the Union in their email.

19) The Employer apologised for not appreciating that the letter sent on the 13 September was the official request for recognition. The Employer confirmed that they were in receipt of the letter of 13 September 2018 and that a copy of the application form had been received from the Union.

7. The membership and support check

20) To assist the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the agreed bargaining unit are members of the union (paragraph 36(1)(a)) and whether a majority of the workers in 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 (paragraph 36(1)(b)), the Panel proposed an independent check of the level of union membership within the agreed bargaining unit and of a petition compiled by the Union. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, date of birth and job titles of workers within the agreed bargaining unit, and that the Union would supply to the Case Manager a list of the names and date of birth of the paid up members within that unit and a copy of a petition signed by workers in favour of recognition. It was explicitly agreed with both parties that to preserve confidentiality the respective lists and petition would not be copied to the other party. These arrangements were confirmed in a letter dated 9 November 2018 from the Case Manager to both parties.

21) The information from the Union and the Employer was received by the CAC on 12 November 2018. The Union provided a list of 12 members and the Employer provided a list of 62 workers. Two workers on the Employer’s list were listed as “Leaver since last update” and one as “Transfer to driver since last update”. The Employer in an email to the Case Manager dated 12 November 2018 confirmed that these 3 workers should be excluded from the bargaining unit making the total number of workers in the agreed bargaining unit 59.

22) The Union’s petition consisting of 38 names/signatories was set out as follows:

GMB @ WORK In View Logistics Ltd View Logistics Park View Road East, Hartlepool TS25 1HT

I, the undersigned, support GMB in recognition and collective bargaining.

Signature ___________ Print Name ___________ Workplace ___________

Please note this section can be completed by both members and non-members

Surname ___________ Forename __________ Address ____________ ______ Post Code ____ Job title ____________ Are you an existing union member? YES/NO If yes, please indicate which union you are a member of: □ GMB □ OTHER: __________ GMB Membership number (if known): _______

I consent to GMB using this data for the purpose of this petition □

This information will not be shown to your employer

Please return this slip to: John Guy GMB@WORK Freepost GMB Northern You can join online at: www.gmb.org.org.uk/join

23) The list supplied by the Employer indicated that there were 59 workers in the agreed bargaining unit. The list of members supplied by the Union contained 12 names. According to the Case Manager’s report the number of Union members in the agreed bargaining unit was 11, a membership level of 18.64%. The comparison of the Union’s petition with the Employer’s list of workers revealed that a total of 32 workers had indicated that they wanted the Union to be recognised which corresponded to 54.24% of the bargaining unit. 11 of the 32 were union members (18.64%) and 21 were non-members (35.59%).

24) A report of the result of the membership and support check was circulated to the Panel and the parties on 13 November 2018 and the parties were invited to comment on the results and to bear in mind the two admissibility tests set out in paragraph 36 (1)(a) and paragraph 36 (1)(b) in so doing. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

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

25) No comments were received from either party.

9. 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 paragraphs 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.

10. 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 agreed bargaining unit.

29) The membership check conducted by the Case Manager showed that 18.64% of the workers were members of the Union. As stated in paragraph 24 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 agreed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

11. 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 agreed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

31) The Panel notes that the support check conducted by the Case Manager showed that 54.24% of the workers in the agreed bargaining unit (32 out of 59) had signed a petition in favour of recognition of the Union. 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 agreed 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.

12. Decision

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

Panel

Professor Kenny Miller, Panel Chair

Mrs Maureen Chambers

Ms Virginia Branney

23 November 2018