Decision

Acceptance Decision

Updated 12 September 2018

Case Number: TUR1/1048(2018)

18 May 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:

Unite the Union

and

Certex Lifting Ltd

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on that it should be recognised for collective bargaining by Certex Lifting Ltd (the Employer) for a bargaining unit comprising the “All those employed by Certex Lifting Ltd as UK Renewable Engineers”. The location of the bargaining was given as “Mobile engineers working on offshore installations. They are based in Great Yarmouth office, though in practice they rarely visit it.” The CAC gave both parties notice of receipt of the application on 26 April 2018. The CAC received a response from the Employer on 1 May 2018 which was duly 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, Chairman of the Panel, and, as Members, Mr Alistair Paton and Mr Gerry Veart. The Case Manager appointed to support the Panel was Nigel Cookson.

2. 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.

3. The Union’s application

4) In its application the Union said that it had served the Employer with a formal request for recognition by way of a letter sent by recorded delivery on 6 March 2018. A copy of the Union’s letter was enclosed with the application. The Union did not state whether it received a reply to this letter.

5) When asked to give the total number of workers employed by the Employer the Union stated “Unknown – 1000+”. According to the Union, there was a total of 30 workers within the proposed bargaining unit of whom 13 were in membership. 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 circulated a petition calling for recognition of the Union amongst the renewable engineers and this had been signed by 20 of the 30 engineers. The Union had not copied this petition to the Employer but called upon the CAC to conduct a “blind cross check”.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that renewables division was managed as a discrete unit and all the renewables engineers answered to one manager. He in turn reported to Scott Wilcox who answered to the managing director of the whole of the UK operation comprising production of lifting equipment in Doncaster, sales, North Sea Oil and Gas and Oil and Gas from Great Yarmouth as well as a Montrose facility. All of these departments were run as different cost centres and had different internal management structures. The oil and gas engineers had different contracts to the renewables engineers; the two groups had no contact with each other since they were entirely different entities. The renewables division has, as well as the head of operations, five office-based administrators in Great Yarmouth and the 30 engineers. The Union confirmed that the bargaining unit had been agreed with the Employer.

7) When asked if, following receipt of the request of recognition, the Employer proposed that Acas be requested to assist the Union answered in the affirmative. The Union stated that it agreed to this proposal and the parties entered into talks with Acas but that the Employer decided that it would not voluntarily recognise the Union and so the Union was therefore forced to take the statutory route.

8) Finally, 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 agreed bargaining unit.

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

9) The Employer stated that it had received the Union’s formal request for recognition shortly after 6 March 2018. When asked what its response was, the Employer stated that it responded by telephone call. The Employer then met with the Union for informal discussions.

10) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated this was 30 April 2018. The Employer confirmed that it had agreed the bargaining unit prior to having received a copy of the completed application form.

11) The Employer stated that, as at 1 May 2018, it employed 168 workers. The Employer did not agree with the Union’s figure as to the number of workers in the bargaining unit explaining that there were currently 38 workers within the unit. It gave no reason for the difference in figures. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer stated that it had been provided with no evidence of the Union’s estimate. 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 again stated that feedback from various members of the bargaining unit indicated that there was questionable majority support for recognition. Senior management had yet to discuss in detail with the “renewables engineers” the implications of recognising the Union as representatives of the bargaining unit.

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

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 “N/A”.

5. 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 Employer was received by the CAC on 3 May 2018 and from the Union on 4 and 8 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 2 May 2018.

15) The Union provided a list with the details of its 15 paid up members giving, amongst other information, the membership number, name and date of birth for each individual. The Union also provided a petition bearing the names and signatures of 20 workers. The petition took the form of 17 sheets of A4 with one or two signatures per page. Each page carried the following proposition:

“Unite the Union for Certex Renewable engineers.

Petition for Union Recognition

March 2018

We the undersigned employees of Certex Uk renewable engineers request that Certex recognises out trade union, Unite for the purposes of collective bargaining.

This petition will not be shown to Certex Management- it will be presented to ACAS on the CAC and they will verify the numbers, not the names.”

Beneath the proposition was a table with space for each individual to provide their name, job title, the date and their phone number or email address. The dates against the signatures ranged between 1 March 2018 and 8 March 2018. Ten of the 20 entries were in freehand and ten were typed with the Union explaining in its covering email that “Some are hand-written and others are signed electronically. They were circulated amongst the offshore engineers remotely by our reps. Because they are remote workers based on different North Sea platforms, it would be impractical to circulate a single paper petition”.

16) The Employer provided a spreadsheet with the details of 47 workers with columns headed “Employee Name”, “Job Title” and “Date of Birth”.

17) According to the Case Manager’s report, the number of Union members in the bargaining unit was 11, a membership level of 28.95%. The check of the petition showed that it had been signed by 18 workers in the bargaining unit, a figure which represents 47.37% of the bargaining unit. Of those 18 signatories, 11 were members of the Union (28.95% of the bargaining unit) and 7 were non-members (18.42% of the bargaining unit).

18) A report of the result of the membership check was circulated to the Panel and the parties on 8 May 2018 and the parties’ comments invited.

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

19) In a letter dated 14 May 2018 the Union stated that, in respect of the test under paragraph 36(1)(a), it was clear that the Union had established that it fulfilled the criteria of at least ten percent membership in the bargaining unit. In terms of the test under paragraph 36(1)(b), it should be understood that at the outset of the application, there were 30 workers in the bargaining unit, and they were known to the Union’s activists. Thus, the threshold of 50% was exceeded to the best of their knowledge. The Employer had since recruited more engineers to the bargaining unit as it had threatened to do in a meeting with the Union at the Employer’s Doncaster headquarters on 20 March. Having spoken to the activists today, they were confident that more signatures could be gained on the support petition and the Union could have provide these to the CAC if required. In any event, the Union would ask the CAC to extrapolate from the 50% plus support in the original bargaining unit that this would be likely to be replicated over the extended bargaining unit. Such extrapolation had been used in the past such as in the case of Workplace Solutions where five out of seven nuclear power stations were surveyed-the panel accepted that the support from these five stations indicated that similar levels of support would be gained in the remaining two and indeed this proved to be correct in the ensuing ballot.

20) In an email dated 14 May 2018 the Employer stated that, as the petition was conducted without the knowledge of the Employer, it did not have the opportunity to inform the members of the potential bargaining unit of the consequences of union recognition, particularly the reduced ability for the Employer as a business to respond to the needs of the individual rather than all members of the group collectively.

21) The Employer had recently announced changes to the management and reporting structure with the Renewables Division which addressed some of the issues raised by the engineers, particularly regarding improved communication. A copy of this announcement was attached for the Panel’s reference.

22) In recent weeks the Employer had become aware of peer pressure and coercion taking place within the potential bargaining unit with regards to the union membership petition and possible ballot. There had been misleading information being circulated amongst the potential bargaining unit and, as some members of this team had become aware of this, they had voiced their request to change their mind on the initial petition.

23) Finally, employee engagement was very important to the management team within the business and the Employer was concerned that involvement by the Union may limit its ability to continue this development, and other initiatives within the division, which were evidenced in the changes detailed above.

24) The Employer concluded its comments by stating that it had a strong belief that the argument and drive for union representation amongst the engineering team in the Renewables Division had reduced given the above points and that this process no longer represented the current attitude of this group.

7. Considerations

25) 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.

26) 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 whilst not accepting the Union’s request for recognition the Employer nonetheless indicated a willingness to negotiate but no agreement was arrived at in the course of the parties’ negotiations. 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)

27) 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 Union’s proposed bargaining unit. The check of union membership and support for recognition as conducted by the Case Manager on 8 May 2018 established that there were 11 members in a bargaining unit of 38 workers giving a membership level of 28.95%. In its letter of 14 May 2018 the Employer, whilst questioning the veracity of the Union’s petition, it did not challenge the density of membership within the agreed bargaining unit. Having considered the evidence on this point the Panel is satisfied that members of the Union constitute at least 10% of the workers in the bargaining unit. Paragraph 36(1)(b)

28) 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 emphasis here is that the test is one of likeliness rather than one requiring a definitive answer as, for example, would be demonstrated by the result of a ballot on recognition. Here, the Union relies upon its membership numbers as well as a petition it conducted amongst the workers in the agreed bargaining unit. In the course of the Case Manager’s check of membership and support it was established that 18 of the workers in the agreed bargaining unit had signed the Union’s petition in support of recognition. Eleven of the 18 were members of the Union therefore indicating that all of the Union’s members support its campaign for recognition and seven of the signatories were non-members, representing 18.42% of the agreed bargaining unit. The combined total that the Union can point to as evidence of its support is 47.37%, a figure not too far away from a mathematical majority.

29) In its comments on the results of the Case Manager’s check the Union explained that it had worked on the basis that there were 30 workers in the agreed bargaining unit which was the figure that it understood to be in play at the time of the application and the time the petition was conducted. The Union urged the Panel to take this into account in considering the evidence and to extrapolate the results of the Case Manager’s check to take into account the eight recent recruits to the agreed bargaining unit whose attitudes to the Union’s drive for recognition have yet to be tested.

30) In its comments on the results of the Case Manager’s comparisons, the Employer makes a number of observations on the Union’s claim to majority support within the agreed bargaining unit. First, it said that it was unaware that the Union was conducting the petition and so did not have the opportunity of putting its view to the workers before they signed the petition in support of recognition. Second, it had made internal changes which it believed addressed some of the workers’ concerns that may had influenced their reasoning into signing the petition. Third, the Employer had become aware that peer pressure and coercion may have had a hand in persuading workers to sign the petition and fourth, misleading information had been circulated amongst the workers in the bargaining unit and that this had led to some workers, once they had become aware that they were being misled, indicating that they had change their minds about signing the petition. The fifth reason given by the Employer was that it believed that recognition of the Union may affect its ability to engage with its workers but this is more akin to a reason why the Employer would prefer not to have to deal with a Union rather than a reason why the majority of the workers would not be likely to support recognition of the Union.

31) Addressing the concerns of the Employer that touch on the test under consideration. The Panel has not been provided with any evidence that workers felt that they were coerced into signing the Union’s petition nor has any evidence been adduced to show that any of the petition signatories have changed their minds. That the Union conducted the petition without the knowledge of the Employer is not unusual but the Employer would have been aware of the possibility of an application for recognition being made to the CAC at the time it received the formal request for recognition in the first week in March 2018 and had ample time to conduct its own petition to counter that of the Union. Finally, whether or not the changes that the Employer implemented within the workplace have affected the workers’ views on recognition of the Union is hard to measure with the limited information provided.

32) The Panel would however reassure the Employer that this is a case in which the bargaining unit is agreed and so it will move swiftly forward. Given that the check of Union membership in the agreed bargaining unit was only very recently conducted and established that membership stood at 28.95% the Panel will, in the letter that accompanies this decision, put the parties on notice that a secret ballot of the workers in the bargaining unit will be held in which they will be asked whether they wish the Union to be recognised or not. As part of this process both parties will have the opportunity to address the workers on the consequences of recognition.

33) Finally, the Panel understands that both parties sent further submissions to the Case Manager once they had had sight of the other party’s comments on the membership check. The Panel has not had sight of these submissions or taken them into account in reaching its decision as they were received after the deadline for comment.

34) In view of the above and in the absence of any evidence to the contrary, the Panel is of the view that the level of support as shown by the petition provides a legitimate indicator as to the degree of likely support for recognition of the Union for collective bargaining.

35) For the reasons given, the Panel is satisfied that, on the balance of probabilities, 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

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

Panel

Mr Rohan Pirani, Chairman of the Panel

Mr Alistair Paton

Mr Gerry Veart

18 May 2018