Decision

Recognition Decision

Updated 19 October 2020

Case Number: TUR1/1195 (2020)

19 October 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

Bectu a sector of Prospect

and

Whitechapel Gallery

1. Introduction

1) Bectu a sector of Prospect (the Union) submitted an application to the CAC dated 13 August 2020 that it should be recognised for collective bargaining by Whitechapel Gallery (the Employer) for a bargaining unit comprising “All staff employed by Whitechapel Gallery at 77-82 Whitechapel High Street, London E1 7QX excluding Team Leaders, Directors and the HR & Administration Manager”. The location of the bargaining unit was given as Whitechapel Gallery, 77-82 Whitechapel High Street, London E1 7QX. The CAC gave both parties notice of receipt of the application on 14 August 2020. The Employer did not comply with the CAC’s request to provide a response to the Union’s application by either the original or the extended deadline. ^{[footnote 1]}

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 Gillian Morris, Chair of the Panel, and, as Members, Mr Nicholas Childs and Mr Roger Roberts. The Case Manager appointed to support the Panel was Linda Lehan.

3) By a decision dated 4 September 2020 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. In separate emails to the Case Manager dated 2 October 2020 both parties confirmed that they agreed that the bargaining unit should be that proposed by the Union in its request.

4) The next stage of the procedure required the Panel to decide whether a majority of the workers in the bargaining unit are members of the Union. Paragraph 22 of Schedule A1 to the Act (the Schedule) provides that if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies. Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled. The three qualifying conditions are:

(i) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(ii) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

(iii) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf. Paragraph 22(5) states that “membership evidence” is (a) evidence about the circumstances in which union members became members, or (b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

5) In a letter from the Case Manager dated 2 October 2020 the Union was asked whether it claimed majority membership within the bargaining unit and therefore submitted that it should be recognised without a ballot. By an email to the Case Manager dated 5 October 2020 the Union stated that it was claiming that it had majority membership within the bargaining unit and should be recognised without a ballot. The Panel decided that in this case it would be appropriate to decide whether it was satisfied that a majority of the workers constituting the bargaining unit were members of the Union as a preliminary issue before giving the parties the opportunity to make submissions on the application of the qualifying conditions.

2. The Membership Check

6) To assist in deciding whether it was satisfied that a majority of the workers constituting the bargaining unit were members of the Union the Panel proposed an independent check of the level of union membership in the bargaining unit. The information required for the purposes of the check was received by the CAC from the Union on 12 October 2020 and from the Employer on 9 October 2020. 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 from the Case Manager to both parties dated 6 October 2020. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

7) The list supplied by the Employer indicated that there were 69 workers in the bargaining unit. The list of members supplied by the Unions contained 49 names. According to the Case Manager’s report the number of members of the Union in the bargaining unit was 38, a membership level of 55.07%.

8) A report of the result of the membership check was circulated to the Panel and the parties on 13 October 2020 and the Employer was invited to make submissions on the three qualifying conditions specified in paragraph 22(4) of the Schedule by noon on 16 October 2020 should it wish to make any such submissions. No submissions on the qualifying conditions were received from the Employer by that time.

3. Considerations

9) The Act requires the Panel to consider whether it is satisfied that the majority of the workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that the majority of the workers constituting the bargaining unit are members of the Union, it must then decide if any of the three conditions in paragraph 22(4) is fulfilled. If the Panel considers that any of them is fulfilled it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

10) The membership check conducted by the Case Manager, described in paragraphs 6 and 7 above, showed that 38 (55.07%) of the 69 workers in the bargaining unit were members of the Union. As stated in paragraph 6 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. Accordingly the Panel is satisfied that the majority of the workers in the bargaining unit are members of the Union.

11) The Panel has considered carefully whether any of the qualifying conditions set out in paragraph 22(4) of the Schedule is fulfilled.

12) The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Panel has not received any evidence that a ballot should be held in the interests of good industrial relations and is not satisfied that this condition is fulfilled.

13) The second condition is that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union to conduct collective bargaining on their behalf. The Panel has no such evidence and the Panel has therefore concluded that this condition does not apply.

14) The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union to conduct collective bargaining on their behalf. No such evidence has been produced, and the Panel has therefore concluded that this condition does not apply.

4. Declaration of recognition

15) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that the majority of the workers constituting the bargaining unit are members of the Union. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule is fulfilled. Pursuant to paragraph 22(2) of the Schedule, the CAC must therefore issue a declaration that the Union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising “ All staff employed by Whitechapel Gallery at 77-82 Whitechapel High Street, London E1 7QX excluding Team Leaders, Directors and the HR & Administration Manager”.

Panel

Professor Gillian Morris, Chair of the Panel

Mr Nicholas Childs

Mr Roger Roberts.

19 October 2020

1. The communications sent to the CAC by the Employer in response to the Union’s application were set out in the acceptance decision dated 4 September 2020: see paragraphs 10 and 12 of that decision. ↩