Decision

Acceptance Decision

Updated 20 December 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1438(2024)

19 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:

Transport Salaried Staffs’ Association

and

TransPennine Trains Limited

1. Introduction

1)         Transport Salaried Staffs’ Association (the Union) submitted an application to the CAC dated 19 November 2024 that it should be recognised for collective bargaining purposes by TransPennine Trains Limited (the Employer) in respect of a bargaining unit comprising “Employees of TransPennine Trains Limited (operating as TransPeninne Express) within a bargaining unit consisting of Senior Customer Delivery Managers and Customer Delivery Managers.”  The location of the bargaining unit was given as “Manchester x 18” and “Leeds x 14.”  The application was received by the CAC on 19 November 2024 and the CAC gave both parties notice of receipt of the application on 20 November 2024.  The Employer submitted a response to the CAC dated 22 November 2024 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 Chair established a Panel to deal with the case.  The Panel consisted of Mrs Lisa Gettins, Panel Chair, and, as Members, Mr Rob Lummis and Mr Ian Hanson. The Case Manager appointed to support the Panel was Kate Norgate.

3)         The CAC Panel has extended the acceptance period in this case.  The initial period expired on 3 December 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 19 December 2024.

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 sent its request for recognition to the Employer on 4 September 2024.  The Union provided a chronology of the events that followed.  On 10 October 2024 the Employer had responded to the Union, stating that it wanted assurance that it had clear evidence of membership and support of the affected teams, as well as the wider management team, before making any commitments.  The Employer explained that if the Union could demonstrate that it had more than 50%+1 union members within either or both bargaining groups, that it would commit to discussing a voluntary collective bargaining agreement.  The Employer said that the membership check established purely membership, and that it was not a confirmation that individuals wished to be collectively bargained.  On 17 October 2024 Acas issued the “Membership Density Certificates”. On 7 November 2024 the Employer wrote to the Union and said that although the checks demonstrated that it had a high proportion of union members within the bargaining groups, it was declining the Union’s request on the basis that it still questioned whether those workers wanted the Employer to accept the Union’s request for voluntary recognition.  A copy of the Union’s supporting documents referred to above were attached to the Union’s application. 

6)         When asked whether the Union had made a previous application under the Schedule for statutory recognition for workers in the proposed 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. The Union said that it had agreed to the Employer’s proposal.

7)         The Union stated that total number of workers employed by the Employer was 1802.  The Union said that there were 32 workers in the proposed bargaining unit, of whom 19 were members of the Union.  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 said that at least 59.3% were members of the Union.  Since Acas had conducted a membership check the Union believed that 4 new employees had joined the bargaining unit and 2 non-members had left. The Union said that it had 1 new member.  The Union said had it had seen a recent increase in membership as workers within the bargaining unit wanted it to have collective bargaining rights, and that the majority of workers had joined the Union in 2024 to secure this.  The Union said that it could provide membership data to support its claim that a majority of workers in the bargaining unit were members of the Union.  The Union further added that on 15 November 2024 it had started an online petition to demonstrate support, and that so far 19 people had responded.   

8)         The Union stated that the reason for selecting its proposed bargaining unit was because those workers performed a unique, discrete function within the company, making its proposed bargaining unit fully compatible with effective management.  In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”.  The Union said that there was no existing recognition agreement of which it was aware that covered any workers in the bargaining unit.

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 19 November 2024. 

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 it had received the Union’s written request for recognition on 4 September 2024.  When asked how it had responded, the Employer stated that, “Arrangements were made to meet and discuss the request with the TSSA.” 

11)       The Employer said that it had received a copy of the application form and supporting documents from the Union on 20 November 2024.  The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union, and that it did not agree the proposed bargaining unit. The Employer said that Senior CDM’s and CDM’s were graded managerial positions and were not covered by its existing collective bargaining agreements.  The Employer said that it did not agree that they were operational grades.

12)       When asked whether following receipt of the Union’s request it had proposed that Acas should be requested to assist, the Employer said “Yes”, and further explained that Acas had conducted a membership Density check on 17 October 2024.

13)    The Employer said that it disagreed with the number of workers in the bargaining unit as set out in the Union’s application.  The Employer said that it currently employed 4 Senior Customer Delivery Managers and 29 Customer Delivery Managers, 33 in total.  It had 1 vacancy for a Senior Customer Delivery Manager and 1 vacancy for a Customer Delivery Manager.

14)       The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

15)       The Employer said that it disagreed with the Union’s estimate of membership in the proposed bargaining unit, as it had no evidence to indicate that new members had joined the Union.  The Employer said that it had also been made aware that members from within the CDM team had left the Union.

16)       When invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition, the Employer said that, based on its statement in paragraph 15 above, it did not believe that the majority of workers within the Senior CDM and CDM team were likely to support recognition of the Union.

17)       When asked whether it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, the Employer said that it was aware that the Union had also made a statutory recognition request for another group of managers, namely, Driver Managers and Operational Development Managers.

18)       Finally, the Employer answered “N/A” when asked whether it had received any other applications in respect of any workers in the proposed bargaining unit.

5. The membership and support check

19)       To assist in 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 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 proposed 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 workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of its paid up members within that unit (including their dates of birth).  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. 

20)       The information requested from both parties was received by the CAC on 3 December 2024. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.   

21)       The list supplied by the Employer indicated that there were 32 workers in the Union’s proposed bargaining unit.  The job titles provided by the Employer were, “Customer Delivery Manager”, and “Senior Customer Delivery Manager”.  The list of members supplied by the Union contained 19 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 18, a membership level of 56.25%. 

22)       A report of the result of the membership check was circulated to the Panel and the parties on 5 December 2024 and the parties were invited to comment on the results of that check by close of business on 10 December 2024.

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

23)       In an e-mail to the CAC dated 9 December 2024 the Union submitted that it was aware of one member whose substantive role was still within the proposed bargaining unit, but who had been seconded elsewhere within the company.  The Union said that whilst it had clearly demonstrated majority support for collective bargaining within the proposed bargaining unit, the level of support was even higher, given those whose substantive roles were within the proposed bargaining unit.

24)       No comments were received form the Employer.

7. Considerations

25)       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 material to the matters it is required to decide in reaching its decision.

26)       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 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)

27)       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 proposed bargaining unit.  The membership check conducted by the Case Manager (described in paragraph 18 above) showed that 56.25% of the workers in the proposed bargaining unit (18 out of 32 workers) 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 agreement reached with the parties. The Panel has therefore decided that members of the union constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

Paragraph 36(1)(b)

28)       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 proposed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit. As stated in paragraph 27 above the membership check conducted by the Case Manager showed that 18 out of 32 workers in the bargaining unit were members of the Union, representing a membership level of 56.25%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition. No such evidence to the contrary was received in this case.

29)    On the basis of the evidence before it the Panel has decided, on the balance of probabilities, that a majority of the workers in the proposed 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. 

30)    Finally, the Panel notes the Union’s comments, set out in submissions above, that it believed the information provided by the Employer for the purpose of check did not include a worker from within the bargaining unit, who was currently seconded within the business.  In view of its decision that the admissibility criteria been met the Panel has not found it necessary to investigate the Union’s concerns for the purposes of this decision. However, this does not prevent the Panel from undertaking further investigations at a later stage of the process should it consider this to be appropriate.

8. Decision

31)       For the reasons given in paragraphs 26 - 30 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mrs Lisa Gettins

Mr Rob Lummis

Mr Ian Hanson

19 December 2024