Decision

Validity Decision

Updated 18 June 2019

Case Number: TUR1/1068(2018)

4 March 2019

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

AGREEMENT ON THE BARGAINING UNIT

The Parties:

BECTU a sector of Prospect

and

The Corporation of the Hall of Arts and Sciences

1. Introduction

1) BECTU, a sector of Prospect (the Union), submitted an application to the CAC on 4 September 2018 that it should be recognised for collective bargaining by The Corporation of the Hall of Arts and Sciences (the Employer) in respect of a proposed bargaining unit comprising the “All staff employed by the Corporation of the Hall of Arts and Sciences (commonly known as the Royal Albert Hall) at the Royal Albert Hall below Heads of Department and senior executive grades in the following areas: Box Office, Facilities and Building Services, Front of House, Security, Show: Technical Planning (excluding Venue and Event Planning) and Tours”. The CAC gave both parties notice of receipt of the application on 5 September 2018. The Employer submitted a response to the CAC dated 25 September 2018 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 application. The Panel consisted of Mr. Charles Wynn-Evans, Panel Chair, and, as Members, Mr. Mike Cann and Mr. Michael Leahy OBE. The Case Manager appointed to support the Panel was Nigel Cookson.

3) By a decision dated 12 December 2018 the Panel accepted the Union’s application. The Parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. The appropriate period was initially due to end on 14 January 2019 but this period was extended, at the request of the Employer and with the agreement of the Union, to enable discussions with assistance from Acas to take place. The period was further extended to 15 February 2019 to allow the parties to conclude their agreement as to the appropriate bargaining unit. In a letter to the Case Manager dated 14 February 2019 the Employer stated that the parties had reached agreement that the appropriate bargaining unit was as follows:

“All staff employed by the Corporation of the Hall of Arts and Sciences (commonly known as the Royal Albert Hall) at the Royal Albert Hall below Heads of Department and senior executive grades in the following areas: Box Office, Facilities and Building Services, Front of House, Security, Tours and Production and Technical”.

4) The difference between the proposed bargaining unit and the agreed bargaining unit was the inclusion of Event Managers and Casual Event Managers who, at the date of the agreement, totalled 13 employees.

5) In a letter to the CAC dated 15 February 2019 the Union confirmed that agreement had been reached and that the agreed bargaining unit was that as set out above.

2. Issues

6) As the agreed bargaining unit differed from that originally proposed by the Union in its application, the Panel is required by paragraph 20 of Schedule A1 to the Act (the Schedule) to determine whether the Union’s application is invalid within the terms of paragraphs 43 to 50 of the Schedule. The tests that the Panel must consider under these paragraphs are:-

• is there an existing recognition agreement covering any of the workers within the new bargaining unit? (paragraph 44)

• is there 10% union membership within the new bargaining unit? (paragraph 45(a))

• are the majority of the workers in the new bargaining unit likely to favour recognition? (paragraph 45(b))

• is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? (paragraph 46)

• has there been a previous application in respect of the new bargaining unit? (paragraphs 47 to 49)

7) In a letter dated 15 February 2019 the Case Manager invited the parties to make submissions on these points for consideration by the Panel.

3. Union’s comments

8) In a letter dated 22 February 2019 the Union submitted that were no existing recognition agreements at the Royal Albert Hall and so there was no agreement in place covering any or the workers within the new bargaining unit. On the question as to whether there was 10% union membership within the new bargaining unit the Union stated that, if the Panel were to look at the Case Manager’s original report on the membership and support check dated 29 November 2018, the number of workers in that bargaining unit was 435 and the number of Union members was 58. The density of members in the proposed bargaining unit was therefore 13.33%. The additional 13 Event Managers that were now included in the agreed bargaining unit were not members of the Union and so, if they were added to the original number of workers, membership density would reduce to 12.9% as the level of union membership had remained the same.

9) As to whether the majority of the workers in the new bargaining unit would be likely to favour recognition, the Union answered in the affirmative. The new proposed bargaining unit (including the 13 Event Managers) would total 448 staff. In the Panel’s decision to accept the application dated 12 December 2018, the Union commented that if the number of petition signatures that were identified as being on the Employer’s list of workers in the proposed bargaining unit (which totalled 199), the four members who had not signed the petition and the 15 extra petition signatures collected since the membership list and petition were submitted to the CAC for checks were added together this would show a figure of 50.1% in support of recognition. If the 13 extra Event Managers (who did not sign the petition) were factored in, then likely support would be reduced to 48.6%. The workplace representatives had also been continuing to collect signatures and said the Union indicated that a further seven signatures had been collected. If these were added to the 48.6% figure referred to above, then support for membership could be assessed as 50.2% of the proposed bargaining unit. On the Union’s account, in any event, the Event Managers had not been asked to sign the petition, but one of the Union’s workplace representatives had spoken with them and that representative believed that a majority of the Event Managers would be happy to support recognition at the Hall. As the change to the bargaining unit was relatively small, the Union did not believe that any of the signatories to its petition would re-consider their support for recognition of the Union at the Hall because of this minor addition.

10) Finally, the Union confirmed that there were no competing applications from other unions where the proposed bargaining unit covered any workers in the new bargaining unit nor had there been a previous application to the CAC in relation to the new bargaining unit.

4. Employer’s comments

11) In a letter dated 22 February 2019 the Employer confirmed that it did not challenge the validity of the application in respect of the tests that the CAC must apply to the new bargaining unit.

5. Considerations

12) The Panel is required to decide whether the Union’s application is invalid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision the Panel has considered the comments of the parties and all the other evidence before it. On the evidence available the Panel is satisfied that there is no competing application from another union and that there has been no previous application in respect of the agreed bargaining unit. The Panel is also satisfied that there is no collective agreement in force under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any workers falling within the agreed bargaining unit and so the remaining issue for the Panel to decide is whether the application is invalid under paragraph 45 of the Schedule.

6. Paragraph 45

7. Paragraph 45(a)

13) Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the union constitute at least 10% of the workers in the agreed bargaining unit.

14) The membership check conducted by the Case Manager (described in paragraphs 13 to 28 of the decision to accept the application dated 12 December 2018) showed that the total number of workers in the proposed bargaining unit was 435 and the number of Union members in the proposed bargaining unit was 58, giving a membership level of 13.33%. The difference between the proposed bargaining unit and the agreed bargaining unit is the inclusion of 13 Event Managers none of whom, so the Union confirmed, were members of the Union. As the Union stated, increasing the bargaining unit by 13 to 448 and applying the same membership number as before, would see a membership density of 12.94%. There is no evidence to suggest nor has it been suggested to the Panel that it should apply any other approach. The Panel has on the basis of the evidence before it and the parties’ contentions concluded that members of the union constitute at least 10% of the workers in the agreed bargaining unit as required by paragraph 45(a) of the Schedule.

8. Paragraph 45(b)

15) Under paragraph 45(b) of the Schedule, an application is invalid 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. Here, the Union urges the Panel to accept its figures for likely support based on the results of the Case Manager’s check at the acceptance stage but also taking into account new signatures collected since that check was undertaken. However, the Panel is reluctant to accept the Union’s contentions as to likely support for trade union recognition in full because it has been unable to verify the new signatures in the same manner as those contained within the original petition supplied to the CAC. Excluding the new and unverified signatures and applying the same principle as that used to decide the test in paragraph 45(a) above, the Panel believes that it can in its assessment of the satisfaction of this test safely rely on the stated support of 199 workers, a figure which would represent 44.41% of the agreed bargaining unit. This is a reduction in the level of support since the acceptance stage test of 1.34% and is accounted for by the inclusion of the 13 Event Managers. The Panel set out in detail in paragraphs 41 to 51 of its decision of 12 December 2018 the reasons why the Panel believed a majority of workers in the proposed bargaining unit would be likely to support recognition of the Union based on a level of petitionary support which stood at 45.75%. In the absence of any evidence to the contrary, the Panel believes that it can apply the same reasoning here in respect of the agreed bargaining unit and the only slightly lower level of membership which can safely be relied upon in assessing the satisfaction of this testy.

16) On the basis of the evidence before it, the Union’s contentions and the Employer’s statement that it did not challenge the validity of the application in respect of the tests that the CAC must apply to the new bargaining unit, the Panel has decided that, on the balance of probabilities, 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 45(b) of the Schedule.

9. Decision

17) For the reasons given above, the Panel’s decision is that the application is not invalid and that the CAC will proceed with the application.

The Panel

Mr. Charles Wynn-Evans, Panel Chair

Mr. Mike Cann

Mr. Michael Leahy OBE

4 March 2019