Decision

Para 35 Decision

Updated 14 November 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1265(2022)

24 August 2022

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER PARAGRAPH 35 OF THE SCHEDULE APPLIES TO

THE APPLICATION

The Parties:

GMB

and

Compass Group UK and Ireland Ltd operating as Medirest Northwick Park NHS Trust

1. Introduction

1) GMB (the Union) submitted an application to the CAC on 4 May 2022 that it should be recognised for collective bargaining by Compass Group UK and Ireland Ltd operating as Medirest Northwick Park NHS Trust (the Employer) for a bargaining unit comprising the “All workers employed in the following roles, up to and including supervisors in Compass Group UK and Ireland operating as Medirest Northwick Park NHS Trust: Porters, Domestics, Domestic Assistants, Cleaners, Help Desk Operators, Catering Assistants, Catering Hostess, Catering Supervisors, Supervisors, Security Staff, Receptionists, Housekeeper, Diet Chef, Senior Diet Chef, Hosts, Hostesses, Ward Hosts, Ward Hostesses, Floorman, Theatre Domestic Assistant”. The CAC gave both parties notice of receipt of the application on 4 May 2022. The Employer submitted a response to the CAC dated 11 May 2022 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 Mrs Lisa Gettins, Panel Chair, and, as Members, Mr Mustafa Faruqi and Ms Claire Sullivan. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) In its application the Union referenced an earlier application made on 28 September 2021 which was not accepted by the CAC. The Union wrote to the Employer with a formal request for recognition again on 14 April 2022. The Union stated in its application that the Employer had responded by letter dated 20 April 2022 stating “We must advise that the request for voluntary recognition is rejected. There is already a recognition agreement in place along with active participation at the national UK works council with the predominant union, Unison”.

4) In its response to the Union’s application the Employer stated it had written and informed the Union on 19 April 2022, that a recognition agreement was already in place with another union. The Employer enclosed with its response four documents in support of its position that a recognition was already in place with Unison.

5) 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.

2. Enquires by the Panel

6) The Panel invited comments from the Union on the documentation provided by the Employer with its Response, specifically the document which the Employer relied upon as being a valid recognition agreement with Unison. The Union responded on 18 May 2022, stating that the agreement was a partnership agreement between the Employer and Unison which the Union did not view as a formal recognition agreement which would preclude its application to the CAC. The Union stated there was no provision for collective bargaining in the arrangements between the Employer and Unison. The Union also brought the Panel’s attention to the commencement date of the agreement, namely 14 April 2022. The Union’s position was that it was signed during a period of time in which the Employer would have been fully aware that the Union was in process of making an application to the CAC. The Union stated that this was an attempt by the Employer to sign an agreement during the process and was viewed by the Union as undermining the formal process.

7) The Panel invited comments from the Employer on the submission made by the Union and asked the Employer to answer a number of further queries of the Panel.

8) The Employer responded in a letter dated 30 May 2022. The Employer stated that the framework of the Joint Consultation Committee met the criteria required under the Schedule and demonstrated that Unison was recognised. The Employer enclosed the further documentation which had been requested by the Panel. The Employer also stated that Agenda for Change terms were set by the Government and that the Union would not be able to influence its NHS Trust client on matters pertaining to the employees as it was not party to an agreement with the Trust.

9) The Employer submitted that the recognition agreement in place met the requirements of the Schedule, and that the Joint Consultative Committee established under that agreement dealt with all matters in relation to negotiation of relevant terms. The Employer submitted that the CAC could not accept an application if there was already an existing agreement entitling a union to conduct collective bargaining on behalf of the workers in the bargaining unit. Therefore, the existing recognition agreement with Unison should disqualify the Union’s application and the CAC should reject the application.

3. The Hearing

10) The Panel decided that the matter could not be dealt with informally and that a hearing was necessary. The parties were invited to attend a hearing to assist the Panel in its consideration of paragraph 35, and whether the Union’s application was rendered inadmissible by an existing collective agreement. The Panel invited the parties to lodge written submissions in advance specifically addressing paragraph 35 of the Schedule.

11) Both parties supplied and exchanged written submissions in advance of the hearing. The Union submitted a two-page Statement of Case. The Employer submitted a written Submission; a document headed “Voluntary Recognition and Procedural Agreement” dated 14 April 2022 between the Employer and Unison; a document headed “Appendix 1 – Constitution of the Joint Consultation Committee” (referred to in this decision as “Appendix 1”); a document headed “Annex A Medirest London North West Medirest and Unions Joint Consultative Committee (JCC) Terms of Reference” (referred to in this decision as Annex A); and a document headed “London Northwest Healthcare NHS Trust Trade Union Recognition Agreement”. The hearing was held on 8 July 2022 and appended to this decision are the names of those attending the hearing on behalf of the parties.

12) According to paragraph 35, a union’s application to the CAC made under paragraph 11 (as in this instance) is not admissible if the CAC is satisfied that there is already a collective agreement in force under which a union is recognised for the purposes of collective bargaining on behalf of any workers falling within the bargaining unit proposed by the Union. A collective agreement is defined by section 178 of the Act as any agreement or arrangement made by or on behalf of a trade union and an employer relating to matters such as terms and conditions of employment and the machinery for negotiation.

4. Summary of the Union’s Submission

13) The Union explained it had initially submitted an application on 28 September 2021 which was not made in accordance with paragraphs 11 or 12 and subsequently it was not accepted by the CAC. The Union then submitted a second application on 14 April 2022, to which the Employer had responded on 20 April 2022 advising the Union that its request was rejected. The Employer stated, “There was already recognition in place and an agreement had been signed with Unison on 14 April 2022.” The Union confirmed it was relying on the fact that the agreement with Unison was not signed until the point of submission of the second application. This demonstrated to the Union that there was a deliberate attempt to circumvent the process by the Employer to avoid a formal recognition being imposed.

14) The Union explained it was a nationally recognised union within the NHS Staff Council, which had a seat on the pay review body along with a substantive number of other NHS unions. The Union confirmed it relied on the NHS Staff Council membership to negotiate recognition agreements locally with NHS trusts. The Union also confirmed that any outsourced contract would have a tendering exercise that would have to comply with the NHS tendering process. The Union argued that if the Employer was to rely on the NHS local recognition agreement, this agreement would have been in situ at the point the first application was made and would not have been signed at the point of when the second application was made. The Union once again confirmed that it met the criteria under the Schedule.

15) The Union stated that it had 194 members at the time of making the application. The Union also argued that premises facilities, noticeboards, and union facilities, all formed part of the joint recognition agreement with the Northwick Park NHS Trust, and remained the property of the Trust.

16) The Union stated the Employer could not rely on an assertion that it could not negotiate pay. The Union would negotiate directly with Medirest who would then seek negotiations from its client in line with its own tender procedure.

17) The Union stated that the Agreement produced by the Employer between the London Northwest Healthcare NHS Trust and Unison was not relevant to its application as this would only apply to employees of the NHS Trust and not to the employees of the Employer who were at best covered by the Voluntary Recognition and Procedural Agreement between the Employer and Unison.

5. Summary of the Employer’s Submission

18) The Employer stated that the agreement with Unison acted as a bar to the Union’s application. The Employer, relying expressly on paragraph 35(1), stated that the agreement between Unison and the Employer entitled Unison to conduct collective bargaining on behalf of workers within the proposed bargaining unit. The Employer relied upon Appendix 1 as evidence of negotiation between Unison and the Employer on core topics. It stated that “.the recognition agreement and the corresponding framework specifically uses the terms negotiation and terms and conditions there is no ambiguity in relation to this”. On that basis it submitted that the Union’s application must fail.

19) The Employer stated that if Unison did not believe that the recognition agreement covered aspects of collective bargaining, it would have contacted the CAC under paragraph 35, to state that the Employer was not honouring the recognition agreement as a fully functioning collective bargaining agreement. The Employer clarified to the Panel that it had taken many months to get a recognition agreement with Unison and confirmed that there was no previous recognition agreement in place. The Employer further explained that by having conversations with Unison, it had gone into negotiations informally in the past and one such example was in relation to sickness pay.

20) The Employer claimed that since it signed the agreement with Unison on 14 April 2022, it had regular meetings with Unison, and it believed there were minutes of those meetings, but it was not able to produce them. The Employer confirmed that collective bargaining was going to take place regarding pay, and this was scheduled under the agreement, but that it was waiting for the outcome of the pay review body which was due in April 2022 and currently delayed.

21) The Employer made further observations that if the Union was to be granted recognition it would be difficult operationally, as the Union would be looking at one bargaining unit and the Employer would be looking across its three locations.

22) Finally the Employer stated that it did not accept there was a timing issue, or that this had any relevance, and explained it was having conversations with Unison’s National Officer regarding recognition since October 2021. The Employer also confirmed it held conversations in the spirit of recognition and the collective agreement discussions were taking place around this period. The Employer reiterated that it did not accept the timing point had any impact, and that it was clear there was recognition in place that covered the core topics. It therefore considered that the application should be rejected.

23) The Panel went through the various documents submitted by the Employer and questioned the interrelationship of the various documents, particularly Annex A and Appendix 1. The Employer confirmed that no JCC meetings as referenced under Annex A had taken place. The Employer accepted that Annex A was referenced in the Agreement signed by the Employer and Unison, but that Appendix 1 was not. The Employer maintained that Annex A and Appendix 1 were formed as part of the agreement signed on 14 April 2022. It accepted that Annex A was signed by three signatories, but there was no signature on Appendix 1 and it could not explain this. Nor could it explain why Appendix 1 was not referenced in the main body of the agreement it entered into with Unison.

6. Considerations

24) The overall question for determination is whether, in the circumstances of this case, paragraph 35 renders the Union’s application inadmissible. Paragraph 35 of Schedule A1 states:

35 - (1) An application under paragraph 11 or 12 is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit.

(2) But 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 paragraphs 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”).

(3) A declaration of recognition which is the subject of a declaration under paragraph 83(2) must for the purposes of sub-paragraph (1) be treated as ceasing to have effect to the extent specified in paragraph 83(2) on the making of the declaration under paragraph 83(2).

(4) In applying sub-paragraph (1) an agreement for recognition (the agreement in question) must be ignored if-

(a) the union does not have (or none of the unions has) a certificate under section 6 that it is independent,

(b) at some time, there was an agreement (the old agreement) between the employer and the union under which the union (whether alone or with other unions) was recognised as entitled to conduct collective bargaining on behalf of a group of workers which was the same or substantially the same as the group covered by the agreement in question, and

(c) the old agreement ceased to have effect in the period of three years ending with the date of the agreement in question.

(5) It is for the CAC to decide whether one group of workers is the same or substantially the same as another, but in deciding the CAC may take account of the views of any person it believes has an interest in the matter.

(6) The relevant bargaining unit is-

(a) the proposed bargaining unit, where the application is under paragraph 11(2) or 12(2);

(b) the agreed bargaining unit, where the application is under paragraph 12(4).

25) On the basis of the parties’ written submissions and presentations made at the hearing, the Panel decided it needed to consider under paragraph 35 whether the agreement was “in force”. If the Panel concluded that despite there being an agreement there was no evidence to show it was in force, then paragraph 35 would not block the application. If a union is (or unions are) recognised for one or more of the matters in under section 178(1) of the 1992 Act then paragraph 35 was triggered, and the application was not admissible. The parties agreed at the outset that section 35(2) was not being relied upon.

26) The Panel noted that the agreement signed by the Employer with Unison on 14 April 2022 specifically set out intent in clause 3.2, namely “The Purpose of this agreement is to determine trade union recognition and representation within the organisation and establish a framework for sharing information and communicating”. Clauses 5.1 and 5.2 expressly reference information and communication but there was no reference to or provision for collective bargaining.

27) The Panel further considered Annex A and Appendix 1. It noted that Annex A was specifically referenced in the Agreement signed by the Employer and Unison. Clause 7 referred to the Joint Consultation Committee and confirmed that the functions of the JCC would include Information (clause 7.3.1) and Communication (Clause 7.3.2). Annex A set out the “Aim of the Partnership” and the arrangements for the JCC.

28) The Panel was satisfied that the Recognition Agreement between the London Northwest Healthcare NHS Trust and Unison did not extend to any of the workers employed by the Employer and was not relevant to this application.

29) The Panel was further satisfied that whilst the documentation submitted by the Employer was unclear, particularly between Appendix 1 and Annex A, the agreement being relied upon by the Employer was not one which entitled Unison to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit, and instead was a partnership arrangement designed for informing and consulting purposes. Even if the Employer had satisfied the Panel that the agreement could potentially have entitled Unison to carry out collective bargaining (which it did not) there was no evidence of any collective bargaining being carried out or planned to be carried out. Further, the JCC meetings provided for within Annex A did not appear to have taken place. There was no evidence of any type of collective bargaining agreement either being in existence or being in force.

30) The Panel noted the submissions made by the Union in respect of the timing of the signature of the Agreement between the Employer and Unison, however it concluded that the Union’s assertion that this was an attempt to thwart an application being made by the Union was not a relevant issue for the Panel to consider further or adjudicate upon.

7. Decision

31) For the reasons given in paragraphs 24 to 30 above, the Panel is satisfied that, for the purposes of paragraph 35 of Schedule A1, there is not in force a collective agreement under which unions are recognised as entitled to conduct collective bargaining on behalf of workers falling within the Union’s proposed bargaining unit. Having decided that paragraph 35 does not render the Union’s application inadmissible, the Panel will now take the necessary steps to determine whether the remaining admissibility and validity provisions referred to in paragraph 5 above are satisfied.

Panel

Mrs Lisa Gettins, Panel Chair

Mr Mustafa Faruqi

Ms Claire Sullivan

24 August 2022

Names of those who attended the 8 July 2022 hearing:

For the Trade Union

Gavin Davies - Senior Organiser GMB London Region

For the Employer

Finola Carey - Director of Employee Relations Compass Group