Decision

Acceptance Decision

Updated 4 September 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1336(2023)

10 July 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

Saab UK Ltd

1. Introduction

1) The CWU (the Union) submitted an application to the CAC on 7 June 2023 that it should be recognised for collective bargaining by Saab UK Ltd (the Employer) for a bargaining unit comprising the “Development & Customer Solutions Team: Software Engineer- Solutions & Test Engineer- Scrum Master- Solution Architect- Technical Lead- Lead Engineer. Service & Delivery Operations Team: Commissioning & Support Engineer- Project and Service Engineer and Project Management Team”. The CAC gave both parties notice of receipt of the application on 8 June 2023. The Employer submitted a response to the CAC dated 13 June 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 Ms Naeema Choudry, Panel Chair, and, as Members, Mr Alastair Kelly and Mr Paul Morley. 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 21 June 2023. The acceptance period was then extended to 12 July 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 22 May 2023 and that no response was received from the Employer within the 10 working days.

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 153 and that approximately 42 of these workers were in the proposed bargaining unit, of whom 13 were Union members. Asked whether the Employer agreed on the number of workers in the proposed bargaining unit the Union answered “No”.

8) When asked to state the number of union members in the proposed bargaining unit, and provide evidence to support this figure, the Union confirmed that there was 13 union members, and it was happy to provide a list to the CAC on a strictly confidential basis.

9) 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 “At the time of the application 23% were CWU members, this has risen to about 30% in the subsequent 10 days. We believe that support for recognition extends beyond those staff who are union member members and constitutes the majority of the workforce”

10) The Union stated it had selected the proposed bargaining unit as the three departments were the main workforce of the UK public safety division in the UK. When asked whether the bargaining unit had been agreed with the Employer the Union answered “No”.

11) Finally, the Union stated it was not aware of any pre-existing recognition agreement in relation to the workers in the proposed bargaining unit 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 7 June 2023.

4. Summary of the Employer’s response to the Union’s application

12) In its response to the Union’s application the Employer stated “The written request was emailed on 22 May 2023, however this was not discovered or read until 7 June 2023. This is because I was out of the office during this time period, attending various confidential conferences in Sweden and on annual leave. I did not have any access to my emails during this time and my emails were not monitored in my absence. This would have been obvious to the sender of the email, as an out of office message was set to alert anyone emailing that I was out of the office, and that my emails would not be read until I returned. Despite this, the CWU made an application to the CAC before my return, which was unreasonable and unnecessary in the circumstances. It would have been reasonable for the CWU to wait until my return before making the application so that we could have tried to come to a resolution before resorting to the statutory process”. The Employer when asked what its response was to the request replied, “No response was made as the letter was not discovered or read until the 7 June 2023, by which point an application had already been made by the CWU to the CAC”. The Employer stated it received a copy of the application form from the Union on 7 June 2023.

13) 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.

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

15) The Employer stated that it employed a total of 156 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, “No”.

16) When asked to state the number of workers in the Union’s proposed bargaining unit and the reason for any difference, the Employer answered that there were 156 workers in the bargaining unit and alternatively, there was 58 workers within the public safety division. The Employer also stated it did not agree with the proposed bargaining unit, and that the proposed bargaining unit should comprise of 156 workers.

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

18) Asked whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated “We have limited evidence as to who within the proposed bargaining unit is currently a union member as we do not operate check off. Notwithstanding this, we believe the proposed bargaining unit to be incorrect, and that the correct bargaining unit comprises 156 workers. On that basis, if the union only has 13 members, this is insufficient to prove that they have the required density, as they would need at least 15 people from the bargaining unit to be a member of the union to demonstrate at least 10% of the bargaining unit are currently members”.

19) 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 “The CWU have outlined in their application that they believe support for recognition extends beyond those members of staff that are union members yet have failed to provide any evidence to support this assumption. No petition to show a majority of workers within the proposed bargaining unit would vote in favour of recognition has been provided, and no other evidence exists to prove that a majority of workers would vote in favour. On the contrary, we believe that a majority of workers would not support recognition. In support of this, a message was sent by a union member to all staff within the public safety division to encourage them to join the CWU. Within that time, as far as we are aware, only 3 other employees opted to become a member. As such, we believe that support for trade union recognition is low, and certainly less than 50%. The sector is also one where trade union membership is rare and disliked. We are, at the request of colleagues, in the process of setting up an employee council for the proposed bargaining unit and believe that employees will find it more appropriate to discuss any concerns in respect of pay, holiday and hours within this internal forum. Whichever bargaining unit is selected, there is no indication that a ballot would result in more than 50% voting for recognition”.

20) Finally, when asked 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 “N/A”.

5. Union’s comments on the Employer’s response

21) The Employer’s response was copied to the Union and its comments invited. In a letter to the CAC dated 21 June 2023 the Union stated that its voluntary recognition request was emailed to the appropriate person on Monday 22 May as the Employer had confirmed. The Union did not receive an out of office message. It did, however, receive a Microsoft Outlook confirmation of successful delivery of the email at 10.01am. The Union found it rather surprising that a senior manager in the UK arm of a major multinational company did not have access to emails for a period of 10 working days and that emails were not monitored during this period. Given that the Union had on record a successful delivery of the email to the correct email address it was the Union’s reasonable expectation that either the recipient or some other appropriate person would have read it. In the circumstances the Union did not believe that the recipient’s absence from the office represented reasonable grounds on which to rule out an application made in full compliance with the statutory requirements.

6. The check of membership and support

22) 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 26 June 2023 from the Case Manager to both parties.

23) The information requested from the Employer and Union was received on 28 June 2023. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

24) The list supplied by the Employer showed that there were 43 workers in the proposed bargaining unit. The list of members supplied by the Union contained 22 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 22, a membership level of 51.16%. A report of the result of the membership check was circulated to the Panel and the parties on 30 June 2023 and the parties’ comments invited.

7. Parties’ comments on the membership check

25) In its response dated 4 July 2023, the Union stated that the Employer had provided a list of 43 names, but the Union’s list of workers in the proposed bargaining unit had only 41 names. The Union asked if the Employer could give a breakdown of individuals in each role as specified by the Union.

26) The Employer was asked to provide their comments on the membership report by close of business 5 July 2023, but it did not submit its comments on the results of the membership report until after by the deadline imposed nor was any advance application made for an extension of time to provide their comments. As such, the Employer’s comments were not considered.

8. Considerations

27) 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 carefully considered the submissions of both parties and all the evidence in reaching its decision.

28) As part of the process set out in the paragraph above, the Panel has to decide whether the application is made in accordance with paragraphs 11 or 12. According to Paragraph 11 of the Schedule, which applies in circumstances where, before the end of the first period, an employer fails to respond to the formal request for recognition, a union may apply to the CAC to decide whether (a) whether the proposed bargaining unit is appropriate; and (b) whether the union has the support of a majority of the workers constituting the appropriate bargaining unit. The “first period” is defined in paragraph 10(6) as being “the period of 10 working days starting with the day after that on which the employer receives the request for recognition”.

29) In this case, the Union states that it served the Employer with its formal request by email on 22 May 2023 and that it received no response from the Employer within the ‘first period’ of 10 working days. The request was sent by email and by post according to what was said in the request itself. On the basis that the Employer received the formal request on 22 May 2023, the first period of 10 working-days would commence the following day and expire on 6 June 2023. The Union says that the first period had expired on 6 June 2023 and, as it had not received a response from the Employer, it was free to submit its application to the CAC on 7 June 2023. According to the Union it had no intimation that the recipient of the request was absent as it did not receive an ‘out of office’ message but it said it did receive a Microsoft Outlook confirmation of successful delivery of the email which was timed at 10.01 a.m. on 22 May 2023.

30) The Employer on the other hand, states that the formal request for recognition was not discovered or read until 7 June 2023 when the recipient of the request returned to the office having been away attending conferences abroad and on annual leave. This person stated that she did not have access to her emails during their time away and neither were her emails monitored in her absence. We are told that this would have been obvious to the sender of the email as an out of office message was set to alert anyone sending an email that she was out of the office, and that any emails would not be read until her return.

31) That the Employer received the formal request for recognition is not in doubt so there is no argument that the request was not a valid request in accordance with paragraph 5 of the Schedule. Rather, the question for the Panel to determine is whether the application was made in time or whether it was premature as it was made before the expiry of the first period based on the date the Employer opened the email and read the request which was 7 June 2023 rather that the date the Union sent its email and received confirmation of delivery, which was 22 May 2023.

32) The Panel having considered this issue is satisfied that the first period started on 23 May 2023 when the email was received by the Employer. That it was not read until more than a fortnight later is a matter for the Employer. If we were to conclude otherwise and find that the first period started on the date the email was opened, it seems to us to open the door for an unscrupulous employer to leave any emailed request for recognition in its inbox unopened and claim in perpetuity that it did not receive a request from the union thus simply sidestepping the statutory process in a stroke. Rather, the logical approach must be that time starts when it is received by the Employer in the same way that a formal request sent by post would be deemed to have been received by the Employer once it is delivered and a signature taken rather than some time later when the request is handed to the person named on the envelope and the envelope opened and its contents read.

Having made this finding, the first period of 10-working days expired on 6 June 2023 and the panel is satisfied that the Union was entitled to submit its application on the first working day thereafter. The application has therefore been made in accordance with paragraph 11. The Panel is also satisfied that the Union made a valid request to the Employer within the terms specified in paragraphs 5 to 9 of the Schedule to recognise it for collective bargaining in respect of the proposed bargaining unit as described in paragraph 1 of this decision. The request was made in writing and identified the Union, the proposed bargaining unit and that the request was made under the Schedule. The Panel is also satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 37 to 42.

33) The remaining issues for the Panel to address are whether the admissibility criterion set out in paragraph 36 of the Schedule are met.

9. Paragraph 36(1)(a)

34) 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 24 above showed that 51.167% 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.

10. Paragraph 36(1)(b)

35) 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.

36) The Panel notes from the membership check that a majority of the workers in the proposed bargaining unit (51.16%) 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.

11. Decision

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

Panel

Ms Naeema Choudry, Panel Chair

Mr Alastair Kelly

Mr Paul Morley

10 July 2023