Decision

Acceptance Decision

Updated 25 October 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1322(2023)

19 June 2023

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:

Communication Workers Union

and

Maintel Europe Limited

1. Introduction

1) The Communication Workers Union (the Union) submitted an application to the Central Arbitration Committee (the CAC) on 17 May 2023 that it should be recognised for collective bargaining by Maintel Europe Limited (the Employer) for a bargaining unit comprising the “Unify Multi-Vendor Team”. The CAC gave both parties notice of receipt of the application on 17 May 2023. The Employer submitted a response to the CAC dated 24 May 2023 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 Mr Stuart Robertson, Panel Chair, and, as Members, Mr Sean McIlveen and Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 1 June 2023. The acceptance period was then extended to 22 June 2023 to allow time to conduct a membership check and for the parties to comment on the results before the Panel arrived at a decision.

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 made its formal request for recognition on 5 April 2023 and that, in a letter received by the Union on 21 April 2023, the Employer confirmed its formal rejection for voluntary recognition.

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 not proposed that Acas should be requested to assist the parties.

7) The Union stated that the total number of workers employed by the Employer was approximately 494 and that approximately 19 of these workers were in the proposed bargaining unit, of whom 12 were Union members. Asked whether the Employer agreed on the number of workers in the proposed bargaining unit the Union answered “No”. When called upon 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 “All CWU members have been contacted and have acknowledged that they would support recognition”.

8) The Union stated it had selected the proposed bargaining unit because the Unify Multi-Vendor team is managed separately and is the only team which carries out work on Atos and Unify contracts, it is the only engineers on call for Atos and Unify products and is the only team to carry out site visits such as prisons and hospitals. When asked whether the bargaining unit had been agreed with the Employer the Union answered “No”.

9) Finally, the Union stated that there was no existing recognition agreement which covered any of the workers in the bargaining unit, it 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 17 May 2023.

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 received the Union’s written request for recognition on 5 April 2023 and it replied by way of a letter dated 21 April 2023, declining the request. A copy of the letter was attached to its response form. The Employer stated in its response that it had received a copy of the Union’s application form from the Union on 17 May 2023.

11) The Employer confirmed that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union. It said it did not agree with the proposed bargaining unit and set out its objections, stating that the proposed bargaining unit was only approximately 20% of the total number of engineers within the Support Services Department, and only 15% of the total number of engineers it employed.

12) When asked if, following receipt of the Union’s request, it had proposed that Acas should be requested to assist, the Employer answered “No”.

13) The Employer stated that it employed a total of 491 permanent workers. Asked whether it agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application the Employer answered, “We do not agree the proposed bargaining unit, however, can confirm that there are 19 workers within the identified team”.

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

15) Asked whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer referred to its previous answer detailing why it believed the proposed bargaining unit was not appropriate. However, this answer did not include any statement which alluded to the accuracy of the Union’s claim to the number of workers in membership.

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 stated “This is difficult for us to answer accurately as we have not canvassed opinion from this group of employees at this stage. We do, however, believe there are many within this area who are either not part of the union and / or do not agree with this request. This is due to feedback provided directly to their manager”.

17) Finally, the Employer answered it was not aware of any previous application under the Schedule for statutory recognition by the Union in respect of this or a similar bargaining unit. 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 confirmed “No others received”.

5. The check of membership and support

18) 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 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 full names and 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 31 May 2023 from the Case Manager to both parties.

19) The information requested from the Employer was received on 5 June 2023 and from the Union on 6 June 2023. 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 showed that there were 19 workers in the proposed bargaining unit. The list of members supplied by the Union contained 12 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 12, a membership level of 63.16%. A report of the result of the membership check was circulated to the Panel and the parties on 7 June 2023 and the parties’ comments invited.

6. Parties’ comments on the membership check

21) In its response dated 13 June 2023, the Union stated that it had no comment on the membership report, which showed that a clear majority of the workforce in the proposed bargaining unit members of the Union.

22) In its response also dated 13 June 2023, the Employer commented that the number of Union members in the particular group seemed correct and in line with feedback received from the Union when the engineers transferred to its employment in March 2023, and separate feedback given to their Line Manager, namely 12 members in total.

23) The Employer noted that in respect of the question whether a majority of the workers constituting the relevant bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit, the Union did not appear to have given feedback about members being likely to be in favour of recognising the Union to conduct collective bargaining. The Employer asked whether the Union had garnered feedback from individual members on their thoughts / feelings in respect of this and commented that recent feedback provided by these employees to their Line Manager had not indicated that this was their request or view, and to the contrary the Employer had received very favourable feedback about their time with the Employer since transfer and how different the Employer was as an employer compared to their previous employer.

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 above are satisfied. The Panel has considered carefully the submissions of both parties and all the evidence 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 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.

8. Paragraph 36(1)(a)

26) 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 Union’s proposed bargaining unit. The membership check conducted by the Case Manager described in paragraph 20 above showed that 63.16% of the workers in the proposed bargaining unit were members of the Union. 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 proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

9. 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 proposed 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 (63.16%) are members of the Union. 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 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 and accordingly, this test is also met.

10. Decision

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

Panel

Mr Stuart Robertson, Panel Chair

Mr Sean McIlveen

Mr Paul Noon OBE

19 June 2023