Validity Decision
Updated 25 October 2023
Applies to England, Scotland and Wales
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Case Number: TUR1/1322(2023)
25 October 2023
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:
Communication Workers Union
and
Maintel Europe Limited
1. Background
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 (replaced by Mr Martin Kirke for this decision) and Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Kaniza Bibi.
3) By a decision dated 25 May 2023 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. Following the parties’ failure to reach agreement, a hearing was held on 19 September 2023 for the Panel to decide on the appropriate bargaining unit. Following that hearing, by a decision dated 27 September 2023, the Panel determined that the bargaining unit proposed by the Union was not appropriate and decided that the appropriate the bargaining unit was “All Software Engineers employed by Maintel Europe Limited in its Support Services function”.
4) As the bargaining unit decided on by the Panel differed from the Union’s proposed bargaining unit, by virtue of the inclusion of all Software Engineers in the Employer’s Support Services function, the Panel was required by paragraph 20 of the Schedule to decide whether the Union’s application was valid in accordance with the tests stipulated in paragraphs 43 to 50. The parties were invited, by a letter from the Case Manager dated 27 September 2023, to submit written evidence relating to those tests. The Union’s response was received on 2 October 2023, and the Employer’s response on 3 October 2023.
2. The Union’s response
5) In its response dated 2 October 2023, the Union stated that as far as it was aware there was no recognition agreement covering any of the workers in the new bargaining unit. In reply to the question if there was 10% union membership within the new bargaining unit, the Union stated it had 18 members within the new bargaining unit which, according to the Employer, comprised 90 to 100 engineers. The Union stated, therefore, that its membership comfortably exceeded 10% of the workforce.
6) In response to the question whether the majority of the workers in the new bargaining unit were likely to favour recognition, the Union stated that its application had been for a smaller bargaining unit comprising of 19 workers and it had not, to date, made a systematic attempt to recruit members beyond this additional group. The Union further stated that nevertheless, as well as increasing membership from 9 to 13 engineers within the originally proposed bargaining group, the Union had also gained members outside of that group with overall membership currently standing at 18. In addition, the Union stated it was aware of membership of other unions within the workforce, though it was not possible to say with any certainty the overall number. The Union submitted that it was reasonable to presume that members of other unions in the bargaining unit would be likely to support union recognition for collective bargaining.
7) The Union stated that the workforce predominantly worked remotely, which made contact for the purpose of union organisation more difficult, and the Employer had a clear position of opposition to collective bargaining, preferring to deal with staff individually and operating a purely consultative employee forum. The Union stated that the Employer’s unwillingness to contemplate collective bargaining was evidenced at the bargaining unit hearing by its reluctance to suggest an alternative bargaining unit to that proposed by the Union. The Union contended that against this background, and bearing in mind the relatively small size of the bargaining unit, the recruitment of an additional 4 members in the bargaining unit as proposed by the Union, taking membership within that group to 68%, and the further recruitment outside the original proposed bargaining unit without any organising campaign, was evidence of a desire for collective bargaining within the wider group and it believed that the access provided by a ballot on recognition for collective bargaining would be likely to produce a majority in favour and meet the 40% minimum threshold.
8) Finally, the Union stated it was unaware of any existing or previous competing application, from another union, covering any workers in the bargaining unit..
The Employer’s response re-application of the validity tests to the new bargaining unit
9) In its response dated 3 October 2023 the Employer confirmed the number of Software Engineers in the bargaining unit of “All Software Engineers employed by Maintel in its Support Services function”, as 98.
10) The Employer stated that there was no existing recognition agreement covering any of the workers within the new bargaining unit. The Employer accepted that, based on the information supplied by the Union, it appeared that there was 10% union membership within the new bargaining unit. The Employer disputed that the majority of the workers in the new bargaining unit likely to favour recognition.
11) The Employer noted that under paragraph 45 of the Schedule, the application was invalid unless the CAC decided that a majority of the workers constituting the relevant bargaining unit would be likely to favour recognition. The Employer firmly believed that the majority of the bargaining unit would not favour recognition and that therefore the CAC should decide that the application was invalid.
12) The Employer contended that the Union could not satisfy the CAC that a majority of the workers in the bargaining unit would be likely to favour recognition. The Employer considered that paragraph 45 required the CAC to have sufficient information to take a positive view that the majority would be likely to favour recognition. Whilst it recognised that the CAC must weigh the evidence from its own industrial experience, and exercise its own judgment in this respect, it noted that the initial application for recognition of the small bargaining unit of 19 Software Engineers which the CAC had not accepted was prompted by a TUPE transfer of engineers who had been unhappy with the manner of their treatment by their former employer. It stated that it had not received any indication that any of its engineers wanted a union to be recognised by it for the purposes of collective bargaining.
13) The Employer maintained that it had a very active and successful employee forum which it consulted on all relevant staffing matters and proposed changes, including changes to terms and conditions. It noted that consultation had recently taken place with the employee forum about changes to overtime and on-call rates its proposals for change had been accepted by 202 employees out of the 214 affected employees, which included engineers in the new bargaining unit. Within that bargaining unit, out of the 98 engineers (including the 10 engineers who had transferred in), 87 had agreed to the new terms. The 11 engineers yet to agree included 8 out of the 10 transferring engineers plus 1 Maintel engineer and 2 employees currently on long-term sick leave.
14) The Employer stated as such it believed that the CAC should decide that the majority of workers in the bargaining unit would not be likely to favour recognition, and that the application should therefore be considered invalid. The Employer stated it may assist if we also made it clear at this stage that if, contrary to our primary contention, the CAC were to decide that the application is valid, we would invite the CAC to arrange for the holding of a secret ballot. The Employer confirmed that at the time of writing, we do not know what evidence the Union may produce as to membership numbers within the new bargaining unit, but even if the Union was able to show clear evidence that a majority of workers constituting the new bargaining unit were members of the union, the Employer considered that it would be in the interests of good industrial relations, in light of the history described above, for the CAC to arrange for a ballot to be held. The Employer stated it must however emphasise that this submission was made without prejudice to its primary position, which was that the CAC cannot be satisfied on the evidence currently before it that a majority of the workers constituting the new bargaining unit would be likely to favour recognition of the Union.
3. Considerations
15) Paragraph 20 of the Schedule applies where (1) the CAC accepts an application under paragraphs 11(2) or 12(2), (2) the CAC has decided an appropriate bargaining unit, and (3) the bargaining unit differs from the proposed bargaining unit. Paragraph 20(2) provides that in these circumstances, which apply in the present case, the CAC must decide whether the application is invalid within the terms of paragraphs 43 to 50 of the Schedule. By paragraph 20(3), the CAC must consider which has been provided by the Union and the Employer. Under paragraph 20(4), if the CAC decides that the application is invalid, it must give notice of its decision to the parties, it must not proceed with the application, and no further steps are to be taken under this Part of the Schedule.
16) Paragraph 43 of the Schedule provides that paragraphs 44 to 50 apply if the CAC has to decide under paragraph 20 whether an application is valid. The Panel is satisfied that the application is valid in terms of the tests laid down in paragraphs 44, 46 and 47 of the Schedule, namely that there is no existing recognition agreement in force, that there is no competing application and that there has been no previous CAC application in respect of the new bargaining unit. Paragraphs 48 and 49 do not apply in this case.
17) The Panel must also consider, in accordance with paragraphs 45(a) and (b) of the Schedule, whether (a) 10% of the workers constituting the new bargaining unit are members of the Union and (b) that a majority of the workers constituting the new bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit. In this regard, the Panel has considered the evidence and submissions of the parties.
18) The Panel finds that the test in paragraph 45(a) is satisfied. The Panel accepts the Union’s evidence that it has 18 members within the new bargaining unit. The Panel also accepts the Employer’s evidence that there are 98 workers within the unit. Neither of these figures have been disputed. This means that 18.37% of the new bargaining unit are members of the Union, meeting the 10% threshold test.
19) The Panel is not satisfied that the test in paragraph 45(b), namely that a majority of the workers constituting the new bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit, is satisfied in this case. The Union has not produced any evidence of support for recognition beyond its membership figure. Whilst it has suggested that workers within the bargaining unit are members of other unions, it has not produced any evidence in support of this contention; in any event, membership of another union would not of itself provide support for recognition of this particular union. Although the Union has achieved a modest increase in membership since the CAC carried out its membership check, the level of membership at just over 18% falls substantially below a majority and well below a level from which the Panel would be prepared to conclude that a majority of the workforce in the 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 therefore decides that the application is invalid in terms of paragraph 45(b).
4. Decision
20) For the reasons given above, the Panel’s decision is that the application is invalid for the purposes of paragraph 20 of the Schedule, and in accordance with paragraph 20(4), the CAC will not proceed any further with the application or take any further action within this Part of the Schedule.
Panel
Mr Stuart Robertson, Panel Chair
Mr Martin Kirke
Mr Paul Noon OBE
25 October 2023