Decision

Acceptance Decision

Updated 16 December 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1436(2024)

16 December 2024

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:

RMT

and

DeepOcean Subsea Services Limited

1. Introduction

1)         RMT (the Union) submitted an application to the CAC on 5 November 2024 that it should be recognised for collective bargaining by DeepOcean(DO)Subsea Services Limited (the Employer) for a bargaining unit comprising the “Construction Shift Supervisor, Data Processor, Deck Supervisor, Equipment Superintendent, Equipment Supervisor, Equipment Technician, Inspection Team Leader, Medic Safety Advisor, Offshore Medic, Online Surveyor, ROV Assistant Supervisor, ROV Online Inspector, ROV Pilot Technician, Senior Controller, Senior Geologist, Supervisor ROV Operator, Surveyor, Survey Technician”., based at Offshore North Sea. The CAC gave both parties notice of receipt of the application on 5 November 2024.  The Employer submitted a response to the CAC dated 29 November 2024 which was copied to the Union. ^{[footnote 1]}

2)         In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case.  The Panel consisted of Ms Naeema Choudry, Panel Chair, and, as Members, Mr Alistair Paton, and Mr Matt Smith OBE.  The Case Manager appointed to support the Panel was Kaniza Bibi.

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.

4)         The CAC Panel has extended the acceptance period in this case.  The initial period expired on 19 November 2024.  The acceptance period was extended on two further occasions to allow time for a membership and support check to take place, for the parties to comment on the subsequent report, and for the Panel to consider those comments before arriving at a decision. The final extension ends the acceptance period on 20 December 2024

3. Summary of the Union’s application

5)         In its application to the CAC the Union stated that it made its formal request for recognition on 11 October 2024 and the Employer had responded on 24 October 2024 stating it was surprised by the request, as its employees were already represented by a staff council. The Employer requested further details from the Union on the number of members as a percentage of the workforce.

6)         When asked whether the Union had made any previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Union answered, “Not Joint”. The Union stated that, following receipt of the request for recognition, the Employer had not proposed that Acas should be requested to assist the parties.

7)         The Union stated that the total number of workers employed was unknown. The Union confirmed that there were 178 workers in the proposed bargaining unit, of whom 116 were members of the Union.

8)         When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated, they could provide the CAC a GDPR-compliant membership list.

9)         The Union stated that the reason for selecting the proposed bargaining unit was at the request of its members

10)       The Union said that the bargaining unit had not 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 proposed bargaining unit the Union answered, “None that we are aware of”.

11)       Finally, the Union confirmed that it held a current certificate of independence, and it confirmed that it had copied the application and supporting documents to the Employer on 5 November 2024.  

4. Summary of the Employer’s response to the application

12)       In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 11 October 2024. The Employer stated it responded to the Union by way of a letter dated 24 October 2024 and asking the Union to confirm the percentage of workers in the proposed bargaining unit who were members of Union. In a further letter to the Union dated 11 November 2024, the Employer expressed its surprise at the Union’s application to the CAC but confirmed that it was willing to negotiate with the Union for its request for voluntary recognition.

13)       The Employer said that it had received a copy of the application form from the Union on 5 November 2024. The Employer when asked if it had agreed the bargaining unit before receiving a copy of the application form from the Union stated “ No”. When asked if it agreed the bargaining unit as set out by the Union in its application the Employer answered “Yes – whilst there was some initial confusion regarding the “Medic Safety Advisor” role included in the RMT’s proposed bargaining unit (which is not a role recognised by DO), RMT have since clarified that this should be amended to “Medic/HSE Co-Ordinator”.

14)       The Employer confirmed that following receipt of the Union’s request, it had not proposed that Acas should be requested to assist. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit. The Employer also stated that it employed 278 employee’s (179 offshore and 99 onshore). The Employer confirmed that it agreed with the number of workers in the bargaining unit and further stated, “We do not dispute the number of workers in the bargaining unit to be as defined in the union’s application (178).”

15)       Asked whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated, “N/A”

16)       When asked if the Employer did not consider that a majority of the workers in the bargaining unit were likely to support recognition and to indicate its reasons of taking this view with any available evidence, the Employer stated “N/A” referring to its comments on the Union’s estimate of membership as its response to this question.

17)       Finally, when asked on whether it had received any other applications under the Schedule for recognition in respect of any of the workers in the proposed bargaining unit the Employer stated, “Not aware of any”.

5. The membership and support check

18)       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 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 bargaining unit.  It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, dates of birth and job titles of the workers in the bargaining unit which had been proposed by the Union in its application form, and that the Union would supply to the Case Manager a list of its paid-up members within that unit including their full names, dates of birth and job titles (where available). It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party and that agreement was confirmed in a letter dated 29 November 2024 from the Case Manager to both parties.

19)       The information requested was received by the CAC from the Union on 2 December 2024 and from the Employer on 4 December 2024. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

20)       The list supplied by the Employer indicated that there were 178 workers in the agreed bargaining unit. The list of members supplied by the Union contained 117 names. According to the Case Manager’s report the number of members in the agreed bargaining unit was 115, a membership level of 64.16%.

21)       A report of the result of the membership check was circulated to the Panel and the parties on 4 December 2024 and the parties’ comments invited.

6. Summary of the parties’ comments following the membership check

22)       In a letter to the Case Manager dated 4 December 2024 the Union stated, “Further to your letter of 04 December 2024, containing the membership check report, I would like to make the comments that the RMT does meet the criteria set out, that we have a majority of applicable members and that we agree with the report.”

23)       In a letter to the Case Manager dated 9 December 2024 the Employer asked two questions as follows: Q1.The number of workers we previously provided (178) includes 26 offshore workers who are not ordinarily resident in Great Britain. We understand that it is not appropriate or correct for these individuals to be included in the bargaining unit, and therefore the number of workers in the bargaining unit is reduced to 152. Please see the amended list attached, removing reference to these workers.

Q2. We understand that two union members are not within the bargaining unit – please can you confirm why this is?

7. Considerations

24)       In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 of this decision are satisfied.  The Panel has considered all the evidence submitted by the parties in reaching its decision. 

25)       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 12.  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.

Paragraph 36(1)(a)

26)       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.  In this case the membership check conducted by the Case Manager (described in paragraph 20 above) showed that 64.16% of the workers in the bargaining unit were members of the Union.  As stated in paragraph 19 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.

Paragraph 36(1)(b)

27)       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.

28)       The Panel notes from the membership check that a majority of the workers in the proposed bargaining unit (64.16%) are members of the Union. In its comments the Employer stated that it had supplied a list that included 26 offshore workers who were not ordinarily resident in Great Britain and that it was not appropriate or correct for these individuals to be included in the bargaining unit.  Removing these workers from the total number supplied by the Employer would see the number of workers in the bargaining unit fall from 178 to 152 perhaps giving the Union a greater density of membership than established by the Case Manager’s comparison should it be the case that none of these workers are in membership. The Employer submitted an amended list with these names omitted for a further check to be conducted but the Panel was satisfied that no further check was necessary.  The Employer also queried why two of the Union’s members did not appear on its list, but this may be simply because they were no longer workers in the bargaining unit or had left the business without informing the Union of their new employer.

29)       In the absence of clear and cogent evidence to the contrary, the Panel is entitled to assume that members of the Union would be likely to favour recognition of the Union to conduct collective bargaining with the Employer on their behalf.  On the evidence before it, the Panel has decided that 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 and accordingly, this test is also met.

8. Decision

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

Panel

Ms Naeema Choudry, Panel Chair

Mr Alistair Paton

Mr Matt Smith OBE

16 December 2024

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1. The Employer sent an email to the CAC dated 18 November 2024, requesting an extension to lodge its response to the Union’s application. The Panel Chair granted the extended the time for the Employer to respond by noon on 29 November 2024. ↩