Case Number: TUR1/445/[2005]

13 July 2005

 

 

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

 

 

21st Century Logistics Ltd

 

Introduction

 

1.                  Amicus (the Union) submitted an application to the CAC on 4 April 2005 that it should be recognised for collective bargaining by 21st Century Logistics Ltd (the Employer) in respect of a bargaining unit comprising “All permanent 21st Century Logistic’s Employees excluding office staff on Blue Dot contracts and based at WMS Warehouse, off Ridham Ave, Sittingbourne Kent, Kemsley Mill, Kemsley, Sittingbourne, Kent and Sittingbourne Mill, Mill Way, Sittingbourne Kent”. The CAC gave both Parties notice of receipt of the application on 7 April 2005.  The Employer submitted a response to the CAC on 14 April 2005 that 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 Roy Lewis, Chairman, and, as Members, Mr Bob Hill and Ms Lesley Mercer.  The Case Manager appointed to support the Panel was Nigel Cookson.

 

3.                  The Panel extended the statutory deadline for it to decide if the Union’s application was to be accepted on a number of occasions.  Time was extended on three occasions; to 29 April 2005, 6 May 2005 and 18 May 2005 in order that the Panel could obtain more information.  Time was further extended to 31 May 2005 to allow for a check of the Union’s membership and support within the proposed bargaining unit and for the Parties to comment on the result of the check.  Time was extended to 13 July 2005 to allow for a hearing to be held.

 

Issues which the Panel has to determine

 

4.                  The Panel is required by the Act to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 8; is made in accordance with paragraphs 11 or 12; and is admissible within the terms of paragraphs 33 to 42 of Schedule A1 to the Act (the Schedule); and therefore is to be accepted.

 

The Employer’s response to the Union’s application

 

5.                  In its response to the Union’s application dated 14 April 2005 the Employer stated that the total number of workers it employed was 340, whereas the Union had given the figure of “approximately 90” in its application.  The Employer did not agree with the number of workers in the bargaining unit as defined in the Union’s application nor did it agree the composition of the bargaining unit proposed by the Union.  The Employer explained that it had a contract with an undertaking called “m-real”, which was also referred to as Blue Dot.  This contract was for the management of m-real’s warehouses and for the supply material-handling employees (mhe); the wages and costs for these workers being invoiced to m-real.  The Employer had no workers employed at Kemsley Mill: this was not an m-real site and was owned by another company.  The Employer explained that its workers were based “from” Bonham Drive; with 33 non-office employees at the WMS Warehouse and 8 at Sittingbourne Mill. 

 

6.                  The Employer disagreed with the Union’s estimate of its membership in the proposed bargaining unit.  The Union was claiming 57 members but it had informed the Employer earlier that it had about 20 members with other workers maintaining that they would join the Union if it achieved recognition.  The Union was, the Employer stated, claiming more members than there were workers in the proposed bargaining unit.

 

7.                  The Employer stated that it already operated works councils and health and safety groups, and that it had an existing collective agreement for recognition in force covering workers in the proposed bargaining unit.  This agreement, the Employer explained, was between it and the TGWU and was dated 14 April 2005. 

 

8.                  The Employer did not contend that the Union’s application failed to meet any of the remaining admissibility or validity criteria in the Schedule.

 

Clarification of disputed issues in correspondence between the Parties and the CAC

 

9.                  After considering the Employer’s response to the application the Panel directed that the Case Manager inform the Employer that, if it sought to rely on an existing agreement as referred to therein, it should provide the necessary evidence to enable the Panel to be satisfied that there was already in force a collective agreement under which a union was recognised as entitled to conduct collective bargaining on behalf of any workers falling within the Union’s proposed bargaining unit.  The Case Manager informed the Employer accordingly on 18 April 2005.

 

10.              On 18 April 2005 the Employer lodged with the CAC a copy of its agreement with the TGWU.  The document, signed and dated 14 April 2005, defined the bargaining unit covered by the agreement as “mhe employees on the Blue Dot contract at m-real”. The agreement provided at clause 8 that:

 

In the event of either party wishing to terminate this agreement, the other party will be given six months’ notice in writing, during which period the agreement will remain in force.

 

11.              In a letter also dated 18 April 2005 the Union wrote to the CAC expressing concerns about a number of the comments made by the Employer in its response to the application.  The Union questioned the total number of workers as given by the Employer and asked the CAC to request evidence from the Employer to confirm the accuracy of its statement.  As to the Employer’s contention that there were no workers employed at Kemsley Mill as this was not an m-real site but was owned by another company, the Union argued that the Confederation of Paper Industries listed Kemsley Mill as being part of m-real and, further, it was in possession of a memo from the Employer that was addressed to “all drivers at Kemsley”.  Whilst this memo dated back to 2001 and the Union accepted the possibility of changes since this date, there were Union members in the proposed bargaining unit who believed that their place of work was Kemsley Mill.  As to the existing recognition agreement with the TGWU, the Union submitted that it was clear that the Employer had offered the TGWU the opportunity of a recognition agreement at the time that the Union had lodged its application with the CAC, a fact of which the Employer was clearly aware.  However, the TGWU had not been informed that the Union had lodged an application with the CAC and, having brought this to the attention of the TGWU, the Union was expecting the TGWU to withdraw from the agreement.

 

12.              In a letter dated 25 April 2005 the Employer responded to the Union’s letter of 18 April 2005.  On the question of the number of workers in the company the Employer explained that this was a matter of public record as the figure appeared in the annual accounts.  With regard to Kemsley Mill the Employer explained that m-real was located at New Thames Paper Mill, Kemsley.  However, the Employer had no workers working in the mill only having workers at the recycled fibre plant.  The total number of workers employed on the Blue Dot contract with m-real stood at 66 of which 4 were office workers.  As to the existing agreement with the TGWU, the Employer explained that the TGWU had made a number of requests for recognition; in January 1999, February 2002 and March 2005 and discussions between the Employer and the TGWU had taken place throughout that period.

 

13.              In a letter dated 27 April 2005 the Union stated that, when the TGWU entered into the agreement with the Employer, the TGWU was not aware that the Union had recruited members and had lodged a recognition claim with the CAC.  The Union had arranged a meeting with the TGWU to discuss the situation and requested a stay in proceedings in order that this meeting could take place.

 

14.              The Panel directed that the Case Manager write to the Union to seek confirmation as to whether any of the workers in its proposed bargaining unit fell within the scope of the agreement between the Employer and the TGWU.  If the answer to this question was in the affirmative, the Union was further invited to explain why the provisions of paragraph 35 did not apply in this case. (Paragraph 35 of Schedule A1 is reproduced below at Appendix B.)

 

15.              In a letter dated 6 May 2005 the Union explained that it had met with the TGWU and that, as a result of discussions between the unions, the TGWU would be pulling out of the agreement with the Employer and that the Employer had been verbally informed of this decision.

 

16.              On 9 May 2005, in an email to the Case Manager, the Employer stated that it had been notified by the TGWU that it was giving 6 months’ notice to end the agreement.  However, the Employer continued, this did not change the fact that there was at this time an agreement in place.

 

17.              In a letter dated 11 May 2005 the Union confirmed that the agreement between the Employer and the TGWU did encroach on the Union’s proposed bargaining unit in that it covered employees on Blue Dot contracts.  On the question of why paragraph 35 did not apply in this instance, the Union argued:

 

(1)   The Employer had only invited the TGWU to sign the agreement in order to circumvent the claim lodged with the CAC.

 

(2)   Although there was a six month termination clause, the TGWU entered into the agreement without full knowledge of the situation and could not therefore be held to the agreement.

 

(3)   The agreement signed on 14 April 2005 had not been “enacted upon”.

 

(4)   The agreement was not legally binding.

 

18.              The Employer was invited to respond to the above letter and did so on 12 May 2005 in an email to the Case Manager.  The Employer made the following points:

 

(1)   It had invited the TGWU to sign the recognition agreement after the TGWU had written to the Employer requesting recognition on 21 March 2005.

 

(2)   The TGWU entered into the agreement in the light of knowledge that it would have had of the Union’s application to the CAC since such information was publicly available on the CAC’s website. 

 

(3)   The collective agreement was legally binding.

 

(4)   It had been enacted upon in that variances in disciplinary procedures had been agreed. 

 

(5)   The TGWU had not confirmed in writing its withdrawal from the agreement, although it had indicated that if it withdrew it would give the requisite 6 months’ notice, which had not in fact been given. 

 

(6)   There was thus an existing agreement in place. 

 

19.              On 17 May 2005 the CAC received a letter from the TGWU signed by Bill Lambe, Regional Industrial Organiser, who was also the signatory on behalf of the TGWU to the collective agreement with the Employer.  Mr Lambe’s letter stated as follows:

 

21st Century Logistics Ltd

 

I believe that you are aware of the situation with regard to the T&G at 21st Century Logistics.  Following a meeting with Amicus officials I became aware of their membership base and that they had lodged a claim with yourselves for recognition.

 

Because of this situation I have written to the company and informed them of my decision to withdraw from the recognition agreement, which as I understand it, I did not sign until after Amicus had lodged their CAC claim.  I can therefore confirm that the T&G are no longer party to a recognition agreement with 21st Century Logistics.

 

20.              The TGWU also supplied the CAC with a copy of a letter dated 16 May 2005 that Mr Lambe had sent to the Employer.  This letter stated as follows:

 

Recognition Agreement between TGWU and 21st Century Logistics

 

With reference to the above I am writing to confirm my conversation with you on Friday 6 May, that the T&G is issuing notice of termination of the recognition agreement.

 

As I explained to you on the telephone this decision has been taken following a national meeting between the TGWU and the GPMU when the GPMU clearly demonstrated that they had in excess of 60 members at 21st Century Logistics and were currently in pursuance of a CAC ballot for recognition.

 

It was agreed at that meeting that the T&G would withdraw from the agreement in favour of the GPMU and under these circumstances I would be grateful if the company would recognise the GPMU.

 

21.              The Union, in a letter dated 17 May 2005, responded to the Employer’s email of 12 May 2005.  It explained that the TGWU had made its position clear in that it had withdrawn from the agreement.  It added that the agreement was not legally binding.  The Union also made the point that it had only had sight of the agreement dated 14 April 2005 and had not seen any documentary evidence of any variations to disciplinary procedures.

 

22.              The Panel, not being minded at this stage to consider the application of paragraph 35 as a separate preliminary issue, sought information of relevance to the application of the other admissibility provisions set out in the Schedule.

 

 

Membership and support check

 

23.              To assist the determination of two of the admissibility criteria specified in the Schedule, namely, 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 support recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed a check to be undertaken by the Case Manager of the level of union membership and support for recognition within the proposed bargaining unit.  It was agreed with the Parties that the Employer would supply to the Case Manager a list of the names of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of Union members within that unit and a copy of its petition in support of recognition to enable comparisons to be undertaken.  It was explicitly agreed with the Parties that, to preserve confidentiality, the respective lists and the petition would not be copied to the other Party. These arrangements were confirmed in a letter dated 23 May 2005 from the Case Manager to both Parties.  The information from both Parties was received by the CAC on 23 May 2005.  The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the Parties.  A report of the result of the check of the level of Union membership and of support for recognition was circulated to the Panel and the Parties on 24 May 2005.

 

24.              The list supplied by the Employer showed that there were 65 workers in the Union’s proposed bargaining unit.  The list of members supplied by the Union contained 58 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 48, a membership level of 73.85%.  The petition supplied by the Union contained 66 names and signatures, of which 51 were in the proposed bargaining unit, a figure that represented 78.46% of the proposed bargaining unit.  Of those 51 signatories, 40 were members of the Union (61.54% of the proposed bargaining unit) and 11 were non-members (16.92% of the proposed bargaining unit).  The petition consisted of 3 A4 pages, each carrying the heading set out below.  Each page of the petition had 3 columns: name, signature and date.  The signatures on the petition were dated between 20 and 23 January 2005.   Each page of the petition was headed as follows:-

We the undersigned workers at 21st Century Logistics, Ridham Ave, Kemsley, ask that Amicus the Union GPMSector be recognised for collective bargaining on our behalf.

 

No additional checks were carried out by the Case Manager to verify the information supplied by the Parties.

 

Parties’ comments on the result of the membership and support check

 

25.              The Parties were invited to lodge comments on the result of the membership and support check. 

 

26.              The Employer, in a letter dated 24 May 2005, repeated its request that the CAC reject the application as there was an existing agreement in place.  As to the results of the check of the Union’s membership and support, the Employer stated that it would probably accept the result of the check of Union membership but not that of the degree of support for the Union in the proposed bargaining unit since the petition was too old and out of date.  The petition was collected before the Employer had made its view clear to the workers, before the recognition agreement with the TGWU and before the annual pay review.  The Employer questioned whether the members had been in membership long enough to understand the Union’s reasons and/or commitment.  The Employer concluded by requesting clarification that the members in January were still paying dues and were up to date or “paid up” members. 

 

27.              The Union, in a letter dated 27 May 2005, submitted that it was content with the results of the checks, although it was concerned that the names of 10 of its members did not appear on the list of workers provided by the Employer.

 

Hearing on 28 June 2005

 

28.              The Panel decided to hold a hearing to determine whether the application should be accepted and the Parties were informed accordingly.  In the notice of hearing sent out on 2 June 2005 the Parties were invited to lodge written submissions.   A hearing was held in London on 28 June 2005 and the names of those who attended the hearing are annexed to this decision.  One of the Panel members, Ms Lesley Mercer, was not able to attend on 28 June 2005 and was replaced for this hearing by Mr Derek Hodgson.

 

29.              At the outset of the hearing the Employer confirmed that it was not challenging the validity or admissibility of the Union’s application on grounds other than paragraph 35 of the Schedule.  Accordingly, the oral submissions concentrated on the application of that paragraph, although the Panel’s decision will necessarily involve a consideration of all the statutory criteria applicable to the determination of whether to accept an application.

 

Summary of the submissions made by the Union

 

30.              The Union explained that it had first written to the Employer in November 2004 requesting recognition as it had a substantial number of members at the company.  It followed this letter with an application to the CAC which was subsequently withdrawn before acceptance had been determined.  On 14 March 2005 the Union wrote to the Employer with a further formal request for recognition.  As on the first occasion there was no response to the letter.  Accordingly, on 4 April 2005 an application for statutory recognition was lodged with the CAC.  However, the Employer had entered into an agreement with the TGWU on the same day (14 April 2005) as it put in its response to the Union’s CAC application.

 

31.              The Employer, when it invited the TGWU to sign a recognition agreement, was aware that the Union was pursuing statutory recognition.  At no stage during its negotiations with the TGWU did the Employer inform the TGWU of the Union’s interest.  It was the Union’s case that, if the TGWU had been in full knowledge of the facts, it would not have entered into the agreement with the Employer.

 

32.              In its letter of 25 April 2005 the Employer stated that the TGWU requested recognition in January 1999, in March 2002 and finally in March 2005.  If, the Union argued, the Employer had been keen to recognise the TGWU it would not have taken three requests over six years to be convinced of the arguments for trade union recognition.

 

33.              When the Union became aware of the agreement it arranged a meeting with the TGWU to discuss the situation.  A meeting was held at the TGWU offices in Ashford on 5 May 2005 where it was explained that the Union had lodged a claim for statutory recognition with the CAC.  The TGWU was of the view that the Employer was not in favour of trade union recognition, pointing to the various requests it had made over the years and how it had been refused on each occasion.  The TGWU acknowledged that the Union had a substantial number of members within the company – the Union having 56 members in the proposed bargaining unit compared with 4 TGWU members - and agreed that it would withdraw from the agreement.

 

34.              Accordingly, the TGWU wrote to the Employer on 16 May 2005 abandoning the agreement and, on 17 May 2005, it wrote to the CAC confirming that it was no longer party to an agreement with the Employer. 

 

35.              It was the Union’s belief that the Employer contrived the agreement with the TGWU to circumvent the Union’s claim for recognition.  The TGWU had entered the agreement in good faith but was not in full knowledge of the circumstances.  At the 5 May 2005 meeting it was clear that the TGWU did not know of the Union’s interest, its application to the CAC and its membership level.

 

36.              The Union referred to the Court of Appeal’s judgment in R (on the application of the NUJ) v CAC and MGN Ltd [2005] IRLR 28, which stated that an agreement in that case had not been abandoned or suspended and was thus still in force. 

 

37.              This, the Union argued, was the exact opposite to the circumstances in the present case.  The TGWU had here abandoned the agreement and, as a result, there was no inter-union recognition dispute. 

 

38.              The Union referred the Panel to a memo the Employer issued to all Blue Dot workers on 24 June 2005 wherein the Employer stated that it would “…never meet with them [the Union] to negotiate your terms and conditions.”.  This, the Union argued, gave an insight into the Employer’s attitude and demonstrated that the agreement the Employer reached with the TGWU was contrived; the Employer was simply determined not to recognise the Union.

39.              However, notwithstanding the history between the Parties, the Union still took the view that it could develop a working relationship with the Employer. 

 

40.              The Employer’s assertion that the agreement was legally binding was undermined by the fact that the agreement itself stated otherwise.  Clause 3.5 of the agreement read:

 

The Company and the Union accept that the terms of the agreement are binding in honour upon them but do not constitute a legally enforceable agreement.

 

41.              According to the Union, if the agreement was not legally binding, it followed that the six months’ notice of termination provision was only a gentleman’s agreement and not a legal requirement.  In any event, given that the TGWU was not in full knowledge of the facts of the situation, it could not be considered to be bound by the agreement.

 

42.              In summary, the Union reiterated that the TGWU’s letter of 16 May 2005 constituted an effective abandonment of the collective agreement with immediate effect.

 

Summary of the submissions made by the Employer

 

43.              The Employer’s submitted that the Union’s application for recognition was inadmissible and should not be accepted.

 

44.              On 14 April 2005 the Employer had entered into a collective agreement with the TGWU.  The agreement applied to the mhe employees on the Blue Dot contract at m-real.  This was substantially the same bargaining unit as proposed by the Union in its application.

 

45.              In the present case there was thus a collective agreement already in existence on behalf of the workers falling within the proposed bargaining unit, within the meaning of paragraph 35.   The agreement in question was with the TGWU, which was a trade union in accordance with the definition at section 1 of the Act and had a certificate of independence.

 

46.              The CAC had been provided with a copy of the agreement.  The agreement was signed by a representative of the TGWU and the Employer on 14 April 2005.  The TGWU subsequently gave notice to terminate this agreement by letter on 16 May 2005.  The agreement provided that:

 

In the event of either party wishing to terminate this agreement, the other party will be given six months’ notice in writing, during which period the agreement will remain in force.

 

47.              It had therefore been agreed between the TGWU and the Employer at the outset that during the period of notice to terminate the agreement, given by either party, the agreement remained in force.

 

48.              The admissibility of the Union’s application for recognition was negated under paragraph 35 where, in respect of any of the workers in question, the employer had a collective agreement within the meaning of section 178 of the Act with another union.  (Section 178 of the Act is reproduced below at Appendix B).

 

49.              It was the Employer’s case that the TGWU was entitled to conduct collective bargaining in relation to the matters set out at section 178 of the Act.  The agreement specified that the TGWU was “entitled to represent the interests of the employees [within the defined bargaining] and negotiate on their behalf”.  The Employer’s position was that this statement was intended to encompass at least one, if not all, of the matters set out at section 178 of the Act.  The agreement was entered into by the Employer in good faith and after previous representations by the TGWU seeking collective bargaining rights over the workers in the proposed bargaining unit.  Immediately after the agreement was signed, the Employer and the TGWU entered into consultation to vary the content of the Employer’s disciplinary procedure.  In addition, notwithstanding the fact that notice had been served to terminate this agreement, the TGWU remained “entitled” for a further 6 months to conduct collective bargaining in respect of those employees within the defined bargaining unit.

 

50.              The Employer relied on Transport and General Workers Union v ASDA [2004] IRLR 836.  This held that a union’s application was not admissible in accordance with paragraph 35 due to the existence of a collective agreement between ASDA and the GMB, notwithstanding that the GMB only had very limited negotiating rights.  The CAC was nonetheless satisfied that the existence of an agreement between ASDA and the GMB was sufficient to prevent the TGWU claim proceeding.

 

51.              It was the Employer’s position that the Union’s application for recognition as a matter of law pursuant to paragraph 35 of the Schedule was not admissible because there was already in force a collective agreement under which a union, namely the TGWU, was recognised as entitled to conduct collective bargaining on behalf of the workers falling within the proposed bargaining unit.  Furthermore, any arrangements or discussions that may have taken place between the Union and the TGWU subsequent to this agreement being made were irrelevant to the application of the admissibility tests under the Schedule.

 

52.              In its oral submission the Employer told the Panel that, having received the Union’s formal request for recognition in a letter dated 14 March 2005, it had informed the TGWU of this fact.  It had done this because its preference on union recognition, if any, was to enter into an agreement with the TGWU rather than the Union.  It explained that the TGWU had, on a number of occasions since January 1999 informally requested recognition but each time the Employer had refused the request.  Nonetheless, the Employer had had informal contact with the TGWU since this date as the TGWU had represented workers at disciplinary hearings, appeal hearings and in employment tribunal proceedings. 

 

53.              The Employer submitted that, contrary to the Union’s submissions, the TGWU, at the time it entered into the agreement, was aware not only of the Union’s interest in gaining recognition but also of its application to the CAC.

 

54.              After the Employer had informed the TGWU of the Union’s interest, the TGWU, in a letter dated 21 March 2005, wrote to the Employer with its own request for recognition although not in a format that satisfied the provisions of the Schedule.  The Employer and the TGWU then entered into the agreement on 14 April 2005.  The Employer told the Panel that at that time the TGWU had even suggested that the agreement might be backdated.

55.              The Employer stated that it then received a telephone call from the TGWU with the news that the Union had asked for a meeting with the TGWU in order to discuss the agreement.  After the meeting between the two trade unions, which took place on 5 May 2005, the TGWU, in a telephone conversation with the Employer explained that it had been agreed that the TGWU would withdraw from the agreement.  The Employer responded by asking if the TGWU was complying with the terms of the agreement and giving the requisite 6 months’ notice of termination.  According to the Employer, the TGWU confirmed that it would abide by the terms of the termination clause in the agreement.

 

56.              The TGWU wrote to the Employer on 16 May 2005 as follows:

 

I am writing to confirm my conversation with you on Friday 6 May, that the T&G is issuing notice of termination of the recognition agreement. 

 

57.              The Employer submitted that it was satisfied that the TGWU was giving notice of termination in accordance with the terms of the collective agreement and that, although no reference was made to a six month notice period, it was clear that this was the effect of the letter.  The Employer emphasised the point that the TGWU made no reference in its letter to having being misled into signing the agreement.

 

58.              The Employer referred the Panel to the CAC decision in the case of The Transport and General Workers Union v Securicor Aviation Ltd (TUR1/451/05) in support of its argument that the agreement was still in force.

 

59.              In response to questions from the Panel the Employer submitted that it fully intended to implement the terms of the agreement with the TGWU, although it acknowledged that there had been no contact with the TGWU since 16 May 2005 and that the TGWU had not held elections or sought the use of any facilities.

 

Considerations

 

60.              In deciding whether to accept the application the Panel must determine whether the admissibility and validity provisions referred to in paragraph 4 of this decision are satisfied.  The Panel has carefully considered all the evidence and argument submitted by the Employer and the Union, both orally and in writing, in reaching its decision.

 

61.              The Panel is 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 paragraphs 11.  Furthermore, the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 34 and paragraphs 37 to 42 of the Schedule.

 

Paragraph 35

 

62.              Paragraph 35(1) states that an application to the CAC made under paragraph 11 is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is recognised as entitled to conduct collective bargaining on behalf of any workers falling within the bargaining unit proposed by the union.  The question that the Panel must address is whether, in the circumstances of this case, the Union’s application is rendered inadmissible by virtue of paragraph 35.

 

63.              The Employer submits that its agreement with the TGWU is a collective agreement that is already in force.  It relies on the wording of the termination clause in the agreement and the language of the letter dated 16 May 2005 from the TGWU.  It argues that, notwithstanding the fact that the TGWU has given notice of termination, the agreement remains in force for a further 6 months from 16 May and that accordingly the Union’s application must fail. 

 

64.              The Union submits that the TGWU abandoned the agreement once it became aware of the Union’s membership level and that it had lodged a statutory application for recognition with the CAC.  The consequence, according to the Union, is that the agreement ceased to be in force on 16 May and that accordingly paragraph 35 does not defeat its application.

 

65.              This case turns on the construction of the letter dated 16 May 2005 from the TGWU to the Employer.  If that letter clearly indicates that the TGWU gave notice of termination pursuant to the clause in the collective agreement requiring 6 months’ notice of termination, then the Employer’s collective agreement with the TGWU remains in force for a period of 6 months commencing 16 May 2005.  On the other hand, if the letter clearly indicates that that the TGWU abandoned the collective agreement on 16 May, the agreement may arguably be no longer in force for the purposes of paragraph 35.  As regards the point of construction, an explicitly clear indication either way would make it unnecessary for the Panel to consider the surrounding evidence that might otherwise have a bearing on the TGWU’s intention.

 

66.              As noted, the first paragraph of the letter of 16 May 2005 from the TGWU to the Employer reads:

 

I am writing to confirm my conversation with you on Friday 6 May, that the T&G is issuing notice of termination of the recognition agreement.

 

If the letter had stopped there, it might have seemed that the TGWU was giving the Employer notice of termination pursuant to the collective agreement.  However, the final paragraph of the letter states:

 

It was agreed at that meeting [the meeting between the Union and TGWU on 5 May 2005] that the T&G would withdraw from the agreement in favour of the GPMU and under these circumstances I would be grateful if the company would recognise the GPMU.

 

67.              The meaning of “withdraw” is ambiguous.  Does it mean withdraw now or withdraw in six months’ time?   The ambiguity is underlined by the fact that the word is used in a sentence that asks the Employer to recognise the Union.  Is the TGWU now saying that, rather than giving notice of termination, it is abandoning the agreement forthwith?  It is arguably so in that the letter in terms requests the Employer to recognise the Union; it does not in terms request the Employer to recognise the Union in 6 months’ time after the expiry of the notice period.  In the context of this final paragraph, it may be significant that the TGWU omitted to make an explicit reference to giving 6 months’ notice in the first paragraph.

 

68.              The Panel thus concludes that the meaning of the TGWU’s letter of 16 May 2005 is ambiguous and that the Panel will have to interpret its meaning in the light of the surrounding evidence. 

 

69.              There are two kinds of relevant surrounding evidence.  First, each party gave evidence at the hearing as to the TGWU’s knowledge of the Union’s position at the time when the collective agreement was