Decision

Validity Decision

Updated 14 November 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1265(2022)

14 November 2022

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 OF THE BARGAINING UNIT

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) By a decision dated 16 September 2022 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. On 19 October 2022 the parties notified the CAC that they had reached an agreement as to the appropriate bargaining unit and this was “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 and Retail Operatives.” This differed from the original bargaining unit proposed by the Union by the inclusion of 12 Retail Operatives.

2. Issues

4) As the bargaining unit agreed by the parties differed from that proposed by the Union, paragraph 20 of Schedule A1 to the Act (the Schedule) requires the Panel to decide whether the Union’s application is valid within the terms of paragraphs 43 to 50 the Schedule. The matters that the Panel must consider are: -

• is there an existing recognition agreement covering any of the workers within the new bargaining unit? (paragraph 44)

• is there 10% union membership within the new bargaining unit? (paragraph 45(a))

• are the majority of the workers in the new bargaining unit likely to favour recognition? (paragraph 45(b))

• is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? (paragraph 46)

• has there been a previous application in respect of the new bargaining unit? (paragraphs 47 to 49)

5) In a letter dated 27 October 2022 the Panel invited the parties to make submissions on these matters for consideration by the Panel.

3. Views of the Union

6) In a letter dated 31 October 2022 the Union advised that:

• There is no existing recognition agreement in place covering any of the workers within the new bargaining unit. The Union also stated “The only agreement that we would have been aware off was the partnership agreement as disputed at the hearing on 8 July 2022. The employer requested at the meeting on 19 October 2022 to agree the bargaining unit as detailed in our application for the inclusion of Retail Operatives.”

• There was significantly more than 10% membership as previously proven, the Union confirmed it had 38.00% of members within the new bargaining unit;

• Given the membership levels on the balance the majority of employees would agree recognition;

• there was no competing application from another union that covered any worker in the new bargaining unit;

• Retail staff was included in the initial application which was rejected by the CAC. Consequently, Retail Staff was withdrawn from the second application because at the point of making that application the Union would have struggled to identity the required 10%. However, the inclusion of Retail Staff was now at the Employer’s request.

4. Views of the Employer

7) In an email dated 31 October 2022 the Employer advised that:

• (agreeing with the Union) there was no existing recognition agreement covering any of the workers within the new bargaining unit,

• (agreeing with the Union) From the previous communications the Employer believed that there was membership above the 10% level.

• (agreeing with the Union) The Employer agreed that the majority of the workers in the new bargaining unit were likely to favour recognition.

• (agreeing with the Union) there was no competing application from another union that covered any workers in the new bargaining unit;

• (agreeing with the Union) there was no previous application in respect of the new bargaining unit

5. Discussion and conclusions

8) The Panel must decide whether the Union’s application is valid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision the Panel has considered the parties’ submissions and the other evidence before it. The following matters are not disputed:

• there is no existing recognition agreement covering any of the workers within the agreed bargaining unit;

• there is no competing application from another union; and

• there has been no previous application in respect of the agreed bargaining unit.

9) The remaining issues for the Panel to decide are whether the validity criteria contained in paragraphs 45(a) and (b) are met.

Paragraph 45(a)

10) Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the Union constitute at least 10% of the workers in the agreed bargaining unit.

11) The CAC conducted a membership and support check at the acceptance stage for the bargaining unit originally proposed by the Union. The new bargaining unit was slightly larger than that proposed by the Union as it now contained an extra 12 Retail Operatives. At the acceptance stage union membership stood at 38.00%. The change in numbers, even on the assumption that none of the Retail Operatives are in membership, is not sufficient to significantly affect membership density within the agreed bargaining unit. Indeed, the Employer, when asked to comment on this test, accepted that the 10% threshold had been reached. The Panel finds that this test is satisfied.

Paragraph 45(b)

12) Under paragraph 45(b) of the Schedule, an application is invalid unless the Panel decides that 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.

13) As stated in the acceptance decision dated 16 September 2022, the Union had 38.00% of the workers in the proposed bargaining unit in membership. This, the Panel accepted, was a legitimate indicator of likely support for recognition of the Union for collective bargaining purposes. The Employer, commenting on this test, agreed that the majority of the workers were likely to favour recognition of the Union to conduct collective bargaining on their behalf. On the evidence before it, the Panel has decided that, on the balance of probabilities, a majority of the workers in 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, as required by paragraph 45(b) of the Schedule.

6. Decision

14) The decision of the Panel is that the application is valid for the purposes of paragraph 20 of the Schedule and the CAC must proceed with the application.

Panel

Mrs Lisa Gettins, Panel Chair

Mr Mustafa Faruqi

Ms Claire Sullivan

14 November 2022