Acceptance Decision
Updated 22 August 2024
Applies to England, Scotland and Wales
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Case Number: TUR1/1388(2024)
25 March 2024
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
SeeChange Technologies Ltd
1. Introduction
1) The Communication Workers Union (the Union) submitted an application to the CAC on 12 February 2024 that it should be recognised for collective bargaining by SeeChange Technologies Ltd (the Employer) for a bargaining unit comprising “Engineering Employees”. The location of the bargaining unit was given as “SeeChange Technologies Ltd, 45 Newton Street, Manchester, M1 1FT.” The CAC gave both parties notice of receipt of the application on 12 February 2024. The Employer submitted a response to the CAC dated 19 February 2024 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 Chairman established a Panel to deal with the case. The Panel consisted of Ms Naeema Choudry, Panel Chair, and, as Members, Mr Alastair Kelly and Ms Stephanie Marston. The Case Manager appointed to support the Panel was Kate Norgate.
3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 26 February 2024. The acceptance period was extended on two further occasions to allow time for a membership and support check to take place, for the parties to comment on the subsequent report, and for the Panel to consider those comments before arriving at a decision. The final extension ends the acceptance period on 25 March 2024.
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 the Union said that it had written to the Employer with a formal request for recognition on 25 January 2024, but there was no response received from the Employer within the 10 days. A copy of the Union’s letter was enclosed with the application.
6) According to the Union, there was a total of 24 workers employed by the Employer with 15 of these falling within the proposed bargaining unit. The Union stated that it had 12 members within the proposed bargaining unit, and it was happy to provide a list on a confidential basis. 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 “80% of staff in membership voted in September 2023 to support recognition for collective bargaining.”
7) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that all staff within the Engineering Department carried out a specific type of work and that they were compensated and managed differently from the other departments. The Union confirmed that the bargaining unit had not been agreed with the Employer.
8) The Union confirmed that it was held a certificate of independence and it also confirmed that, following receipt of the Union’s request for recognition, the Employer had not proposed that Acas be requested to assist.
9) The Union said there had not been a previous application in respect of this or a similar bargaining unit. Finally, the Union confirmed that there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.
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 had received the Union’s written request for recognition on 25 January 2024. When asked what its response was, the Employer said, “No response”.
11) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated that this was 9 February 2024. The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form and that this remained the case, explaining that the engineering department was not compensated and managed differently from anyone else within the company, as claimed by the Union. Everyone in the organisation was treated as an individual and according to both a defined compensation banding, and grade. This was not adjusted for engineering, and it was consistent across the entire company. Engineering was also managed according to exactly the same process as everyone else in every way.
12) The Employer did not agree with the Union’s figure as to the number of workers in the bargaining unit, further stating that there were “16 members within Engineering (+ 7 contractors)”, and that “they have omitted the “VP of Engineering”. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer referred to its “Org chart for Engineering”, a copy of which was enclosed with its response. When asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, the Employer said, “separate to the question of the proposed bargaining unit being ill-defined, a number of the members of engineering have not been involved in any conversations about the TU or the proposed bargaining unit. (I know because have reached out directly and indirectly to some members of engineering) So, it’s not clear how many of the 16 members of engineering have been actively part of these conversations and how much is being mostly driven by the desire of a small number of people.”
13) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the agreed bargaining unit. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas be requested to assist.
14) Finally, the Employer answered “None” when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit and when asked if it had received any other applications in respect of workers in the proposed bargaining unit.
5. Additional comments from the parties
15) On 22 February 2024 the CAC copied the Employer’s response to the application to the Union and its comments were invited. On 28 February 2024 the Union confirmed that it did not it did not wish to submit any comments.
6. The membership check
16) 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 from the Case Manager to both parties dated 4 March 2024.
17) The information requested from both parties was received by the CAC on 6 March 2024. The list supplied by the Employer contained the names of 16 workers and the list of members supplied by the Union contained 12 names. The Panel was satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.
18) According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 12, a membership level of 75%. A report of the result of the membership check was circulated to the Panel and the parties on 8 March 2024 and the parties’ comments invited.
7. Parties’ comments on the membership check
19) No comments were received from either party.
8. Considerations
20) 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.
21) 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 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.
Paragraph 36(1)(a)
22) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit. In this case the comparison undertaken by the Case Manager as outlined above established a membership density of 75%. It is clear therefore to the Panel that members of the Union constitute at least 10% of the workers in the bargaining unit.
Paragraph 36(1)(b)
23) The test in paragraph 36(1)(b) is whether a majority of the workers constituting the agreed 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 case the Union solely relies upon its membership as evidence that this test is satisfied. In the absence of any evidence to the contrary, the Panel is of the view that the level of Union membership within the proposed bargaining unit does provide a legitimate indicator as to the degree of likely support for recognition of the Union for collective bargaining. At this stage of the statutory process the test is of hypothetical support and that the Panel must arrive at a decision on the evidence placed before it.
24) For the reasons given, the Panel is satisfied that, on balance, a majority of the workers in the bargaining unit would be likely to support recognition of the Union and the test set out in paragraph 36(1)(b) is therefore met.
9. Decision
25) For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.
Panel
Ms Naeema Choudry, Chairman of the Panel
Mr Alastair Kelly
Ms Stephanie Marston
25 March 2024