Case No. TUR1/343/2004

12 March 2004

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:

Amicus

and

Premdor Crosby Limited

Introduction

1 Amicus (the Union) submitted an application to the CAC dated 20 February 2004 that it should be recognised for collective bargaining purposes by Premdor Crosby Limited (the Employer) in respect of a bargaining unit comprising ‘Production Supervisors employed at Darton Site’. The Union stated there were 18 workers in the bargaining unit and 15 of those were members of the Union. The CAC gave both parties notice of receipt of the application on 20 February 2004. On 27 February 2004 the employer submitted a response to the CAC.

1. In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chairman established a Panel to consider the case. The Panel consisted of Professor Paul Davies (Panel Chairman) and Mrs Maureen Chambers and Mr Paul Gates (Members). The Case Manager appointed to support the Panel was Nigel Cookson.

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

3. The Employer, in the response received at the CAC on 27 February 2004, stated that it considered that an appropriate bargaining unit would be much larger than the bargaining unit proposed by the Union in the application. In its response, dated 02 March 2004, to a further enquiry from the CAC, the Employer stated that it disputed the Union’s estimate of membership within the proposed bargaining unit. The Employer stated that whilst the Union claimed to have 15 members in the proposed bargaining unit, there were only 14 workers that fell within the description of that unit. The Employer also stated that it had not carried out any research on whether the workers in the proposed bargaining unit would support recognition of the Union.

Membership check

4. To assist the Panel’s consideration of two of the requirements for admissibility specified in the Schedule, 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 are 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 that the Case Manager undertake a confidential check of the level of Union membership within the proposed bargaining unit. In letters, dated 04 March 2004, to both parties the Case Manager requested that the Employer provide a list of the names of the workers and that the Union provide a list of its members within the proposed bargaining unit. The Case Manager’s letter confirmed that neither list would be copied to the other party or to the Panel. By its letter dated 04 March 2004 the Company provided a list of 14 workers stated to be in the Union’s proposed bargaining unit and the Union, by its letter of that same date, provided a list of 15 individuals stated to be its members therein.

5. The Case Manager’s check established that there were 10 members of the Union within the proposed bargaining unit; a membership level of 71.43%. A report of the result of the check was circulated to both parties on 04 March 2004 and comments were invited to be lodged with the Case Manager by Monday 08 March 2004.

Views of the Employer

6. The Employer did not lodge any comments with the Case Manager by 08 March 2004. In a telephone conversation with the CAC, on 09 March 2004, the Employer confirmed that it did not wish to make comment on the report of the confidential membership check.

Views of the Union

7. The Union confirmed, in its letter dated 08 March 2004, that the membership level of 71.4% indicates that a majority of the workers within the proposed bargaining unit are likely to favour recognition.

Considerations

8. In deciding 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 Employer and the Union in reaching its decision.

9. The Union provided a copy of the request made to the Employer to recognise it for collective bargaining in respect of the bargaining unit described in paragraph 1 of this decision, that request being dated 07 January 2004. The Union’s request was in writing, it identified the Union and the bargaining unit and stated that it was made under the Schedule. The Employer has confirmed that it received the request and made its reply known to the Union in its own letter dated 16 January 2004, that reply rejecting the Union’s request for recognition. The Employer confirmed that it had not proposed that Acas be requested to assist. The Union’s application to the CAC was dated, and received on, 20 February 2004.

11. The Panel is therefore satisfied that the Union made a valid request to the employer within the terms of paragraph 5 to 9 of the Schedule and that its application was made in accordance with paragraph 11. Furthermore, on the evidence made available by both parties, 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 questions before the Panel are whether 10% of the workers in the Union’s proposed bargaining unit are members of the Union, and whether the majority of the workers in the Union’s proposed bargaining unit would be likely to favour recognition of the Union for collective bargaining.

Paragraph 36(1)(a)

12. The Employer has not disputed that members of the Union constitute at least 10% of the proposed bargaining unit. The membership report dated 04 March 2004 indicated that Union members constitute 71.43% of the proposed bargaining unit. The Panel is satisfied that the membership check, having been undertaken using information on current workers and Union members as provided by the Employer and the Union, is an accurate reflection of the level of union membership within the proposed bargaining unit. The Panel is therefore satisfied that the 10% threshold is met.

Paragraph 36(1)(b)

13. At this stage in the statutory procedure the Panel must assess whether a majority of the workers in the Union’s proposed bargaining unit would be likely to favour recognition of the Union. If the application is accepted, the proposed bargaining unit will then be open to test.

14. In the present case the Panel must apply the this test to the bargaining unit as proposed in the Union’s application. The level of membership within the proposed bargaining unit has been checked by the Case Manager using the Employer’s and Union’s lists of workers and members, and that check has established that 71.43% of the workers in the proposed bargaining unit are members of that Union.

15. The Panel is satisfied that membership of a Union can, where there is no evidence to the contrary, be accepted as being indicative of that person’s support for collective bargaining on his or her behalf by the union in relation to the employer. It is more likely than not likely that a worker who has joined a Union would be in favour of that Union negotiating with the Employer on matters related to terms and conditions of employment. The Panel believes it is reasonable, taking into account the level of Union membership within the proposed bargaining unit, for it to conclude that a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union.

Decision

16. The application is valid within the terms of paragraph 5-9, is made in accordance with paragraph 11 and is admissible within the terms of paragraphs 33 to 42 of Schedule A1. The application is therefore accepted by the CAC.

Panel

Professor Paul Davies (Panel Chairman)

Mrs Maureen Chambers (Panel Member)

Mr Paul Gates (Panel Member)

120 March 2004