Decision

Acceptance Decision

Updated 5 May 2020

Case Number: TUR1/1137(2019)

03 April 2020

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:

BMA

and

Ministry of Defence

1. Introduction

1) BMA (the Union) submitted an application to the CAC on 10 September 2019 that it should be recognised for collective bargaining by Ministry of Defence (the Employer) for a bargaining unit comprising “All civilian doctors employed or otherwise working for the MoD.” The CAC gave both parties notice of receipt of the application on 10 September 2019. The Employer submitted a response to the CAC which was received on 18 September 2019 and 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 Mr Rohan Pirani, Chair of the Panel, and, as Members, Mrs Fiona Wilson and Mr Robert Lummis. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel extended the acceptance period in this case. The initial period expired on 24 September 2019. The acceptance period was extended on several occasions in order to allow time for a hearing to be held, a membership check to take place and for the parties to comment on the subsequent report. It was finally extended in order to allow time for a revised membership check to be carried out and for the Panel to consider the parties’ comments before arriving at its decision. The most recent extension ends the acceptance period on 3 April 2020.

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. The Union’s application

5) In its application to the CAC the Union stated that it had sent a formal request to the Employer on 10 July 2019. The Union stated that the Employer had responded to this request on 23 July 2019. In its response the Employer stated that “we should wait until the MoD has undertaken a review of all employee relations with the MoD.” The Union said that the Employer had also offered a meeting with two members of the review team. The Union also explained that prior to its formal request for recognition, a meeting was held with the Employer in January 2018 during which it was verbally agreed that the BMA was the recognised union for civilian doctors employed by the MoD. The Union said that on several occasions since then, it had requested that the formal recognition agreement which had been referenced in previous meetings, be confirmed in writing. However, this was not provided to the Union. A copy of the Union’s request, the Employer’s response, and correspondence exchanged between the parties, prior to the Union’s formal request, was 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 stated “No, due to the previous understanding”, as set out in paragraph 5 above.

7) According to the Union, there were approximately 57,000 “civilian employees” employed by the Employer. The Union stated that there were 269 workers in the proposed bargaining unit, of whom 190 were members of the Union. When asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union said that there had been an extensive history of collaboration and negotiation between the MoD and the BMA over matters of interest to civilian doctors, including contract negotiations, annual pay awards and consultation on organisational change, redundancies and TUPE arrangements. The Union maintained that 70 per cent of civilian doctors employed by the MoD were members of the BMA and that recognition had previously been confirmed.

8) The Union stated that it regularly communicated with the workers in the bargaining unit and consulted with them on matters that affect them with high levels of engagement. The Union said that it was the recognised trade union for civilian medical practitioners employed by the MoD and that this was confirmed in the “Minutes of the MoD/British Medical Association Meeting Held at Bailbrook House, Bath, on Friday 28 April 2006”, and the civilian doctors employee manual (Annex A), copies of which were attached to the Union’s application. The Union stated that the Employer was however now refusing to confirm this. The status of other civilian doctors (i.e. consultants) was less clear. The Union stated that at a meeting held in January, during which MoD representatives verbally confirmed that the BMA was the recognised trade union for all civilian doctors, it was agreed that the BMA would produce a letter of agreement for both sides to review. The Union subsequently sent a letter to the Employer on 8 March 2018, a copy of which was also attached to its application. The Union stated that despite repeated attempts the MoD had refused to formally recognise the BMA as the trade union for all civilian doctors.

9) The Union reiterated that it wrote to the Employer on 10 July 2019 requesting formal recognition but on 23 July 2019 the Employer rejected its request. The Union stated that while the MoD was undertaking a review of its recognition arrangements, refusal to confirm previous recognition agreements or to honour what was agreed in meetings, had made its recognition status unclear. The Union stated that it believed it had exhausted opportunities for the MoD to recognise the BMA formally and therefore asked that the CAC intervene so that its correct status was now formalised.

10) The Union stated that it had selected the proposed bargaining unit because the BMA was the trade union for doctors and medical students across the UK. The Union said that this did not just include doctors, who work for the NHS, but also doctors, who practice privately, who are employed in prisons, medical academia and the civil services. The Union also represented uniformed, reservist and civilian doctors employed in the armed forces, and engaged in the annual armed forces pay review body process. The Union stated that the criteria that had been set out, and was verbally agreed by the MoD in January 2018, encompassed all doctors that had a civil service employment contract with the MoD and thus gave those civilian doctors the clarity needed that the BMA was their trade union.

11) In answer to the question of whether the proposed bargaining unit had been agreed with the Employer, the Union said “Yes”. When asked whether there was any existing recognition agreement, of which it was aware that covered any workers in the proposed bargaining unit, the Union stated that a previous recognition agreement had been established between the MoD and the BMA for civilian doctors employed by the MoD. This was a historic agreement and the Union were unable to find evidence of the wording of the agreement in its records, nor had the Employer shared this with the Union.

12) The Union explained that evidence of the pre-existing recognition included the BMA representation being stated in the civilian consultant contract and the minutes of a meeting between the BMA and MoD held in 2006, as referred to in paragraph 8 above, which stated that the BMA was responsible for the representation of ‘all doctors’. The Union said that examples of the MoD consulting with the BMA included the MoD consultants’ contract 2003-2005, local clinical excellence awards and the 2008 amendments to the 2003 consultants’ contract. The Union further added that direct negotiations between the MoD and the BMA on the European working time directive, where both parties came to a specific arrangement for consultants, provided a further example.

13) The Union stated that the DMS arm of the MoD had consistently recognised and engaged with it on employment issues. Last year the BMA negotiated an uplift in pay for Civilian Medical Practitioners acting up as Senior Medical Officers with the MoD and it was routinely consulted on civilian contracts.

14) The Union stated that this recognition appeared to be ignored by CivHR when DMRC Headley Court was closed in 2018. Despite several BMA members working at Headley Court in the run up to the decision to close the centre, the BMA was not consulted on its closure and only became aware of the redundancies imposed on its members at a later stage. The Union said that the BMA also sits on the Whitley Council, a quarterly meeting between the Surgeon General’s office and trade unions. The previous Surgeon General and Whitley Council as a whole, were supportive of the BMA being granted formal recognition, and this was referenced in the minutes from the Whitley Council on 1 April 2019. A copy of those minutes was attached to the Union’s application.

15) The Union stated that despite the overwhelming arguments it had put forward, the MoD had refused to agree recognition in writing.

16) 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 10 September 2019.

4. The Employer’s response to the Union’s application

17) In its response to the application the Employer said that it had received the Union’s initial request letter on 16 July 2019. By letter dated 23 July 2019 the Employer responded to the Union’s request. The Employer stated that in this letter it had requested that the Union await the outcome of a comprehensive review of employee relations that MoD will be undertaking, that would encompass all employee relations policies, including those relating to recognition.

18) The Employer stated that it had received a copy of the Union’s application form from the Union on 10 September 2019. When asked, whether it had agreed the proposed bargaining unit with the Union before receiving a copy of the application form from the Union the Employer stated “No” but further stated that it did now agree with the proposed bargaining unit.

19) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

20) The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application. The Employer stated that the proposed bargaining unit was described as “all civilian doctors employed or otherwise working for the MoD” but according to its figures, this indicated that the unit comprised of a total of 272 individuals, which was made up as follows:

• Civilian Medical Practitioners (CMPs) = 207

• Civilian Consultants = 27

• Medical Officer (MO) = 4

• Senior Medical Officers (SMO)= 3

• Medical Advisors (MA) = 31

21) When asked whether there was an existing agreement for recognition in force covering workers in the proposed bargaining unit, the Employer explained that arrangements for the terms and conditions of service (TACOS) for consultants and civilian medical practitioners in the MoD were complex. Pay for those grades was linked to external analogues in the NHS, who were represented by the BMA. The Employer stated that for this reason the MoD recognised the BMA in respect of pay for those grades. All other TACOS for those grades were however linked to those for MoD civil servants and not to external analogues. The Employer said that Prospect was therefore the recognised trade union in respect of all TACOS apart from pay.

22) The Employer further explained that all civilian medical grades employed by the MoD, which included civilian doctors identified by the BMA in its application as the proposed bargaining unit, were represented by Prospect. Prospect was recognised by the MoD to conduct collective bargaining regarding pay, hours and holidays on behalf of all civilian medical grades. The Employer said that the MoD was unable to confirm the date on which the recognition agreement with Prospect came into effect, but it could confirm that the recognition of Prospect and, prior to 2001, its predecessor union the Institute of Professionals Managers and Specialists, had been in place for as long as anyone in either MoD or Prospect could recall. The Employer attached to its response an email from Prospect “setting out their account of the history to the recognition of Prospect and the IPMS by MoD.”

23) The Employer stated that the BMA had enclosed the minutes of a meeting held in January 2018 with representatives of the MoD, the BMA contending that during this meeting, the MoD had confirmed verbally that the BMA was the recognised union for all civilian doctors. The Employer stated that it did not accept this point.

24) In response to a point made by the Union that it had asked the MoD to confirm that the BMA was the recognised union for all civilian doctors, the Employer stated that it was correct that the MoD had not provided this confirmation. The reason being was that the MoD did not agree that the BMA was recognised as representing those employees in collective bargaining.

25) The Employer stated that the MoD wished to clarify that BMA was consulted concerning the closure of DMRC Headley Court in 2018. The Employer said that it could, if required, provide emails to demonstrate that the documentation that was sent to union representatives was sent to Johnathon Longley, the BMA’s representative. However, the fact that the BMA was consulted on this site closure was not evidence of the fact that the BMA was recognised to conduct collective bargaining on behalf of any MoD employees. The Employer stated that neither the MoD nor Prospect had been able to locate a copy of a written recognition agreement but referred to a further attachment to its response which, it stated, sets out verification from Prospect as to the existence of its recognition by the MoD and the matters on which Prospect conducts collective bargaining.

26) In answer to the question of whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated that it had no information to enable it to make any comment as to the Union’s estimate of union membership in the proposed bargaining unit.

27) When invited to give its reasons if it did not consider that a majority of the workers in the proposed bargaining unit would be likely to support recognition, the Employer explained that it had no information to enable it to make any comment as to whether the employees in the proposed bargaining unit are likely to support recognition.

28) Finally, when asked whether it was aware of any previous application under the Schedule by the Union in respect of the proposed or a similar bargaining unit, the Employer answered, “No knowledge of any previous application.”

5. Additional comments from the parties

29) On 20 September 2020 the CAC copied the Employer’s response to the application to the Union and its comments were invited. In an e-mail to the CAC dated 25 September 2019 the Union stated that it accepted the Employer’s figure of 272 workers in the bargaining unit. The Union stated that its figure (269) was obtained from DMS (Defence Medical Services) earlier in August and it had assumed that this number included either new recruitments or registered medical practitioners in other parts of the MoD that DMS was not aware of.

30) The Union stated that with regards to the email from Prospect, as referred to by the Employer in paragraph 22 above, in which it set out their account of the history to the recognition of Prospect and the IPMS by MoD, it had always been the understanding of the BMA that while Prospect represents civil servants, the BMA represents all grades of medical practitioners employed by the MoD, both in terms of pay and terms and conditions of service. The Union stated that the purpose of its applications was to ask the CAC to formalise this understanding.

31) The Union stated that it was surprised that Prospect were showing such interest in medical practitioners as it was not aware of them undertaking trade union work for any medical grades within the MoD. The Union stated that BMA members made up 70 per cent of the agreed bargaining group. The Union said that following the Employer’s response to its application, one of the BMA’s civilian representatives conducted an informal survey of CMPs. The Union said that responses were received from just under 10 per cent of the bargaining group, a redacted copy of which was enclosed. The Union maintained that this showed that amongst the bargaining group there was little or no awareness of Prospect amongst CMPs, with many stating that they had never heard of Prospect.

32) In response to the Employer’s claim that Prospect was recognised by the MoD to conduct collective bargaining regarding pay, hours and holidays on behalf of all civilian medical grades, the Union stated that this was inconsistent with the Employer’s earlier comment that “…for this reason MoD recognises the BMA in respect of pay for these grades… MoD therefore recognises Prospect in respect of all TACOS apart from pay.” The Union disagreed with the Employer’s argument that issues of pay were separate to the terms and conditions of employment of which Prospect held sole responsibility. Terms of employment were the responsibilities and benefits of a job as agreed upon by an employer and employee at the time of hiring for example, job responsibilities, work hours, dress code, vacation and sick days, starting salary and mechanism for uplifts. The Union stated that it therefore believed pay and pay elements were an integral piece of what constitutes a contract of employment and terms and conditions of service and as such, BMA had been consistently lobbying on the issue of pay uplift for civilian medical practitioner.

33) The Union reiterated its point in paragraph 13 above concerning the pay for CMPs, who had acted up as SMOs. The Union stated that those negotiations had resulted in the BMA achieving an uplift of 20% for CMPs filling the role of SMO in MTF (Medical Treatment Facility) with other accredited military or civilian practitioners and 10% for CMPs with no other accredited military or civilian medical practitioners in their MTF. The Union stated that in addition to securing the pay uplift, it had worked as the negotiating partner of the MoD in developing an appropriate job description, statement of particulars and terms of reference. The Union maintained that at no point during those negotiations or lengthy signing off process had the MoD or any other body suggested that Prospect be involved. The Union stating that this directly contradicted the Employer’s account.

34) The Union further stated that the MoD consults with the BMA on every ToR for overseas CMPs, and more recently Episkopi. The Union stated that it had been in ongoing negotiations concerning updating the CMP terms of references, and it had recently agreed the CMP responsible officer terms of references with the MoD. The Union stated that it had provided advice and support on any employment issue that its CMP members experienced, which was a core function of a trade union. The Union stated that if required, it could provide all the queries received from CMP members in recent years.

35) The Union attached to its comments a “CMP management procedures document” that it stated was helpfully provided by a CMP and which they believe was issued in 2006. The individual first became a CMP in 2002, so it could not date from any earlier. The Union said that the document clearly stated that it had been agreed with both Prospect and the BMA. The Union believed that this provided further evidence that the BMA had represented CMPs on terms and conditions of service, including pay, for a considerable period of time, and it was also the only evidence that the Union could find, apart from a single former CMP member and the MoD policy on trade unions, that Prospect had any involvement with registered medical practitioners employed or otherwise by the MoD.

36) The Union also enclosed a copy of a contract, which it stated was from 2001, and provided further evidence that the CMP contract stated, ‘The Professional Associations representing your grade are the BMA and IPMS.’ The Union said that only recently, had it become aware that new CMP contracts no longer had reference to the BMA, a decision that was taken without consultation with the BMA. The Union said that despite this, the BMA was being consulted on changes to terms and conditions, including pay, of the CMP contract that was completed.

37) The Union disputed the Employer’s assertion that it did not accept that it had verbally agreed that the BMA was the recognised union for all civilian doctors. The Union argued that whilst the meeting note was not sent to the MoD representatives following the meeting, the Union’s initial request for the verbal confirmation to be put in writing using the same language was. The MoD representative did not, at this point or any point since, dispute the language used in the correspondence. In fact, the MoD representative had initially asked for its input into the wording of the current MoD trade union policy. To demonstrate these points the Union referred to further supporting documentation.

38) The Union referred to the current “MoD trade union policy”, a copy of which it enclosed, in which the Union stated, it said “While the interest of nearly all the medical grades employed in the MoD are represented by Prospect, formal recognition extends in part to the British Medical Association (BMA) with support from Prospect in respect of civilian doctors.” The Union argued that the current MoD policy was unclear in terms of what ‘extends in part’ means and what grades were covered as part of this. When applying to the CAC for recognition for all registered medical practitioners employed or otherwise by the MoD the BMA had sought to clarify this. The Union stated that it believed that this policy was out of date and, given the level of BMA membership within the bargaining group, should be changed as it had suggested, namely, that “The Ministry of Defence recognises that the BMA (British Medical Association) represents all grades of civilian doctors working for the Ministry of Defence. The term civilian doctors as used here includes both registered medical practitioners employed as Civilian Medical Practitioners, Civilian Consultant grades and registered medical practitioners employed in other Medical Adviser grades.”

39) The Union said that it should also clarify the point that it had made in its application regarding DMRC Headley Court. The Union said that the MoD had not consulted with the BMA when the closure of the site was decided or announced. The Union only became aware of the situation when it was raised by its members being made redundant at Headley Court. The Union said that it was this situation that led it to request the meeting in January 2018 that set to clarify the status of the BMA, and started the process of seeking formal recognition to avoid similar situations in the future where BMA members might suffer the consequences. The Union stated that, only after January 2018 was the BMA consulted on the site closure, just months before members were being made redundant.

40) The Union stated that in its application it had referenced the 2003 civilian consultants’ contract that the BMA negotiated on behalf of civilian consultants. The Union referred to the terms and conditions for this contract, a copy of which it also enclosed, and in which the Union stated, made multiple references to the BMA.

41) Finally, the Union stated that it was concerned about the conduct of the Employer throughout the process. Their review of recognition agreements should be irrelevant to this process and should not be used as an attempt to further delay or deny the benefit of recognition to members of the BMA. The Union stated that it had a significant and growing membership that was in excess of the required 10% threshold and it was disappointed that voluntary recognition had not been forthcoming. The Union said that it was difficult to see why the Employer was opposed to recognising the BMA as the trade union for all civilian doctors, particularly having agreed it verbally in January 2018.

6. Preliminary Hearing on Paragraph 35

42) On 7 October 2019 the CAC copied the Union’s comments on the Employer’s Response to the Employer and asked it to clarify whether or not it was saying that the Union’s application was inadmissible under the provisions of paragraph 35 of the Schedule.

43) The Employer responded by e-mail to the CAC dated 10 October 2019, in which it maintained that there was already in force a collective agreement between the MOD and Prospect.

44) By letter dated 25 October 2020 the CAC invited the parties to attend a hearing to consider a preliminary point, whether the application from the BMA is rendered inadmissible by the existence of an agreement between the Employer and Prospect. In particular, whether, pursuant to para 35(1), the Employer already has a collective agreement with Prospect which covers any of the workers in the bargaining unit. The Panel invited the parties to lodge written submissions in advance specifically addressing paragraph 35 of the Schedule. Both parties supplied and exchanged written submissions in advance of the hearing. A hearing was held on 5 December 2019.

45) At the commencement of the hearing, and also by letter of 4 December 2019, the BMA clarified that the bargaining unit relied on is clinical medical practitioners (“CMP”) and civilian consultants (“CC”). Further, those who held the job titles Medical Officer (“MO”) or Senior Medical Officer (“SMO”) were included in the bargaining unit. Those MoD employees who had the job title MO or SMO, who were not CMPs or CCs, were not in the bargaining unit.

46) The BMA also conceded, for the purposes of their application that, in relation to the bargaining unit, Prospect was recognised by the MoD for at least one of the section 178 subject matters.

47) Further, the parties agreed, for the purposes of the application, that the BMA is recognised by the MoD in relation to the bargaining unit for some, but not all of the three core topics. Accordingly, both parties agreed that para 35(2) applies to render the application admissible.

48) In view of the agreement reached between the parties at the start of the hearing, the Panel did not hear the evidence submitted by the parties.

49) By letter dated 20 December 2020 CAC asked both to confirm whether they were content to proceed on the basis as agreed by the parties on 5 December 2020 and, if so, informed the parties that the Panel would continue to apply the further admissibility tests to the Union’s application.

50) In an e-mail to the CAC, dated 6 January 2020, the Union confirmed that the Case Manager’s letter of 20 December 2019 accurately set out the agreement reached between the parties on 5 December 2019.

51) In an e-mail to the CAC, dated 8 January 2020, the Employer also confirmed that it was content to proceed on the basis as set out in the Case Manager’s letter.

52) On 9 January 2020 the CAC invited the Employer to comment on the remaining admissibility tests in respect of the redefined bargaining unit, namely, whether there was 10% union membership within the bargaining unit, and whether the majority of the workers in the bargaining unit were likely to favour recognition.

53) The Employer responded by e-mail dated 17 January 2020 in which it stated that it did not hold any knowledge or records that would enable it to make submissions as to whether either test had been satisfied.

7. The first membership and support check

54) 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 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 membership of the Union within the proposed bargaining unit and of a petition compiled by the Union. 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 the proposed bargaining 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 22 January 2020 from the Case Manager to both parties.

55) The information requested from the Union was received by the CAC on 28 January 2020. The information requested from the Employer was received by the CAC on 5 February 2020. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

56) The list supplied by the Employer indicated that there were 228 workers in the Union’s proposed bargaining unit.

57) The list of members supplied by the Union contained 195 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 92, a membership level of 40.35%.

58) A report of the result of the membership and support check was circulated to the Panel and the parties on 13 February 2020 and the parties were invited to comment on the results of that check, by the close of business on 18 February 2020.

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

59) The Union, in a letter to the CAC dated 26 February 2020, stated that it had identified a number of inaccuracies in the list of union members it provided to the Case Manager on 28 January 2020. The Union stated that this was due to members, who had misidentified themselves in their membership details. The Union stated that it believed 40 union members were consequently omitted in error. The Union requested for a revised check to be undertaken. The Union also questioned some of the job descriptions provided by the Employer.

60) The Employer did not provide any comments on the membership check.

61) On 28 February 2020 the Union’s comments were copied to the Employer and its comments invited. By e-mail to the CAC dated 6 March 2020 the Employer explained that position titles were often self-reported or entered by the Line Manager, which explained why there had been the use in some cases of different terminology. The Employer clarified that the use of different terminology had not resulted in an increase in the number of workers in the relevant bargaining unit. The Employer also stated that since the date of the check there had been several changes to the bargaining unit due to joiners and leavers, and it now consisted of 237 individuals. The Employer stated that if the Panel agreed to the Union’s request for a revised membership check, it was happy to provide an updated list to the CAC.

9. The second membership and support check

62) In view of the parties’ comments, the Panel asked the Case Manager to carry out a further check using the parties’ revised lists to establish the level of union membership in the proposed bargaining unit.

63) The information requested from the Union was received by the CAC on 10 March 2020. The information requested from the Employer was received by the CAC on 12 March 2020. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

64) The revised list of members supplied by the Union contained 216 names. The updated list supplied by the Employer indicated that there were 237 workers in the Union’s proposed bargaining unit. According to the Case Manager’s further report, the number of Union members in the proposed bargaining unit was 122, a membership level of 51.48%.

65) A report of the result of the second membership and support check was circulated to the Panel and the parties on 13 March 2020 and the parties were invited to comment on the results of that check, by the close of business on 17 March 2020.

10. Further comments received from parties

66) In a letter to the CAC dated 17 March 2020 the Union stated that with regard to the first test, it was clear that the members of the BMA constitute at least 10% of the workers in the bargaining unit.

67) When addressing the second test, the Union stated that the membership check established that 51.48% of the redefined bargaining unit were members of the Union.

68) It was the Union’s view that the level of union membership within this type and size of health sector, was persuasive evidence that a majority of the workers in the bargaining unit would be likely to favour recognition of the Union as enitled to conduct collective bargaining. To demonstrate this point the Union relied on Amicus and Sebden Steel Sevice Centres TUR1/357/2004. The Union stated that membership of a union was indicative of an individuals’ desire for that union to negotiate for him or her on matters related to terms and conditions of employment.

69) The Union further stated that, in any view, it was accepted that the BMA had been recognised by the MoD to negotiate with the Employer in respect of pay for several decades in respect of members of the bargaining unit. The Union stated that it was unambiguously the case that the BMA had conducted, and continues to conduct, negotiations with the MoD on behalf of the bargaining unit in respect of, for example, pay, without objection.

70) The Union stated this fortified its contention of the clear likelihood of support.

71) The Union further stated that the Panel would be aware that ‘likely’ was a word that had been subject to judicial consideration in the sphere of employment in an analogous threshold decision in respect of Disability. In the case of Boyle v SCA Packaging [2009] UKHL 37 [2009] IRLR 746, the House of Lords addressed the meaning of ‘likely’ and held that ‘likely’ meant ‘could well happen’.

72) Finally, the Union stated that on this basis, it believed that the majority of the workers in the redefined bargaining unit were likely to support recognition.

11. Considerations

73) In deciding whether to accept the application the Panel must determine whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

74) 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, 34 and 37 to 42 of the Schedule.

75) The Panel must now decide whether Union’s application is inadmissible under the provisions of paragraph 35 of the Schedule. An application is inadmissible if another union, or even the same union, is already recognised as having bargaining rights (TULR(C)A 1992 Sch A1 para 35). ‘Collective agreement’ means ‘any agreement or arrangement’ between an employer and a union relating to specified matters (TULR(C)A 1992 s 178). For the purposes of the statutory recognition procedures, that general definition is disapplied and for those purposes ‘collective bargaining’ usually means negotiations relating to pay, hours and holidays — and such other items (if any) as the parties may agree (TULR(C)A 1992 Sch A1 para 3(2)–(4)).

76) Therefore, the concession by the BMA that Prospect is recognised by the MoD, for at least one of the section 178 subject matters, means that para 35(1) applies to render the application initially inadmissible. However, para 35(2) provides that sub-paragraph (1) does not apply to an application under paragraph 11 or 12 if—(a) the union (or unions) recognised under the collective agreement and the union (or unions) making the application under paragraph 11 or 12 are the same, and (b) the matters in respect of which the union is (or unions are) entitled to conduct collective bargaining do not include all of the following: pay, hours and holidays (“the core topics”).

77) The Panel is satisfied that, for the purposes of this application, the parties agreed that the BMA is recognised by the MoD in relation to the bargaining unit for some, but not all of the three core topics. Accordingly, both parties agree that para 35(2) applies to render the application admissible.

78) The application is not, therefore, rendered inadmissible by the provision in paragraph 35 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.

12. Paragraph 36(1)(a)

79) 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 revised membership check conducted by the Case Manager (described in paragraphs 63 - 64 above) showed that 51.48% of the workers in the proposed bargaining unit were members of the Union, which the Employer did not contest. As stated in paragraph 63 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 satisfied that the 10% threshold has been satisfied.

13. Paragraph 36(1)(b)

80) 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. The Panel is satisfied that on the basis of the membership check the union membership density level is 51.48%. The Union did not provide any additional evidence of support for recognition, such as a petition, but the Panel considers that, in the absence of any evidence to the contrary, union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union. On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, 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.

14. Decision

81) For the reasons given in paragraphs 74 - 80 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Rohan Pirani, Deputy Chair of the CAC

Mrs Fiona Wilson

Mr Robert Lummis

03 April 2020