Decision

Acceptance Decision

Updated 14 October 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1234(2021)

14 October 2021

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:

GMB

and

Compass Group UK & Ireland Ltd (operating locally as Medirest)

1. Introduction

1) The GMB (the Union) submitted an application dated 28 September 2021 to the CAC that it should be recognised for collective bargaining by Compass Group UK & Ireland Ltd (operating locally as Medirest) ^{[footnote 1]} (the Employer) for a bargaining unit described as “all of the employees”. The location of the bargaining unit was given as Medirest (Northwick Park Hospital). The CAC gave both parties notice of receipt of the application on 30 September 2021. The Employer submitted a response dated 7 October 2021 to the CAC, 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 Nigel Cookson.

2. Issues

3) The Panel is required by the Act to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 8; is made in accordance with paragraphs 11 or 12; is admissible within the terms of paragraphs 33 to 42 of Schedule A1 to the Act (“the Schedule”); and therefore should be accepted.

3. The Union’s application

4) In its application dated 28 September 2021 the Union stated that it had sent a formal request to the Employer on 10 August 2021 and it attached correspondences sent to and received from the Employer dated 10 August 2021, 1 September 2021 and 9 September 2021. In its letter of 10 August 2021 the Union referred to its proposed bargaining unit in the following terms: “For the purpose of this voluntary agreement let’s progress with establishing collective bargaining for our GMB members employed by you at Northwick Park Hospital”. In the same letter it stated: “In terms of the basis of our voluntary recognition for our members at Northwick Park we can suggest the following ways to progress this process….” and “We are requesting voluntary recognition in order to engage in collective bargaining for our compass Medirest GMB members at Northwick Park Hospital”.

5) However, in its application to the CAC the Union defined its proposed bargaining unit as “All of the employees are part of the bargaining unit” explaining that it had selected this bargaining unit on the basis of “Memberships within and the petition support from the bargaining unit”. When asked if the proposed bargaining unit had been agreed with the Employer the Union stated that the Employer’s view was not known at this stage.

6) According to the Union, there were approximately 450 workers employed by the Employer with the same number within the proposed bargaining unit. The Union stated that it had 237 members within the proposed bargaining unit. 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 there were approximately 300 petition signatures signed by the majority of the bargaining unit and it would supply a copy when needed.

7) When asked to give the date the application and supporting documents were copied to the Employer, the Union stated “At this stage, we have not sent supporting documents prior to voluntary recognition letter (employer would like us to disclose membership without the involvement of ACAS, which is not acceptable, due to data protection)”.

8) When asked if, following receipt of the request for recognition, the Employer proposed that Acas be requested to assist, the Union said that it had not made such a proposal. The Union conformed that it had a current certificate of independence to its application.

9) Finally, the Union said there had not been a previous application in respect of this or a similar bargaining unit and there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

4. The Employer’s response to the Union’s application

10) In its response to the application dated 7 October 2021 the Employer stated that it had received the Union’s formal request for recognition on 16 July 2021. When asked what its response was, the Employer stated “Letter attached” however, the letter that was attached to its response was one dated 1 September 2021 and which opened by thanking the Union for its letter of 10 August 2021 with no reference to any request of 16 July 2021.

11) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated this was on 28 September 2021.

12) The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form and when asked if it agreed the bargaining unit, stated “No it is unclear what bargaining unit the Union are proposing”.

13) The Employer stated that it employed 468 workers. Asked whether it agreed with the Union’s figure as to the number of workers in the bargaining unit, the Employer stated “No the union claims are 237 employees however it is not clear what roles this unit would belong to, a request for anonymised data was requested from GMB but was not provided.” When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer answered that “Evidence of membership numbers requested but not supplied.” 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 answered, “No evidence of membership numbers”.

14) Asked if there was a recognition agreement in place covering any of the workers in the proposed bargaining unit the Employer stated that it was currently in discussions with Unison in relation to voluntary recognition and attached an email in confirmation. Both the Employer and Unison reasonably believed that the majority of employees at the site were Unison members and would support Unison recognition. Unison represented its members both nationally at the UK Works Council and at the European Works Council. The Union did not represent workers at either of these established bodies.

15) Finally, the Employer confirmed that it was not aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit nor had it proposed to the Union that Acas be approached to assist, following receipt its request for recognition.

5. Considerations

16) In deciding whether to accept the application, the Panel must determine whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied.

17) Paragraph 1 of the Schedule states that a trade union seeking recognition to be entitled to conduct collective bargaining on behalf of a group of workers may make a request in accordance with this Part (Part I) of the Schedule. Paragraph 4 of the Schedule states that paragraphs 5 to 9 apply to the request. Paragraph 8 states that a request will not be valid unless it is in writing, identifies the union and the bargaining unit, and states that it is made under Schedule A1. Paragraph 2(2) states that references to the bargaining unit are to the group of workers concerned.

18) Paragraph 15(2)(a) requires the CAC to decide whether the request for recognition to which the application relates is valid within the terms of paragraphs 5 to 9. The Panel considers that the request for recognition which the Union made to the Employer on 8 August 2021 complied with paragraphs 5 to 9 and is a valid request on the basis that the bargaining unit proposed by the Union comprised “GMB members employed by you (the Employer) at Northwick Park Hospital”.

19) Paragraph 15(2)(b) requires the Panel to decide whether the application is made in accordance with paragraph 11 or 12 of the Schedule. Paragraph 11 applies if, before the end of the period of 10 working days starting with the day after that on which the employer receives the request for recognition (the ‘first period’), the employer fails to respond to the union’s request for recognition or informs the union that it does not accept the request. Paragraph 12 applies if, before the end of the first period, the employer informs the union that it does not accept the request but is willing to negotiate. In this case, the Employer did respond to the request but not until 1 September 2021, which was after the first period had expired. The Panel has concluded, therefore, that paragraph 12 does not apply to the application and that it is required to consider whether the application is made in accordance with paragraph 11 of the Schedule.

20) Paragraph 11(2) of the Schedule states that a union, where the employer fails to respond to the request for recognition, may apply to the CAC to decide two questions: whether the proposed bargaining unit or some other bargaining unit is appropriate, and whether the union has the support of a majority of the workers constituting the appropriate bargaining unit. Paragraph 2(2) states that references to the ‘proposed bargaining unit’ are to ‘the bargaining unit proposed in the request for recognition’. Thus, paragraph 11(2) permits a union to apply to the CAC to decide whether the bargaining unit proposed in the request for recognition or some other bargaining unit is appropriate.

21) In this case, the bargaining unit that was proposed in the request for recognition was Compass Medirest GMB members at Northwick Park Hospital. This is the bargaining unit in respect of which paragraph 11 of the Schedule would permit an application to be made to the CAC. However, in its application to the CAC the Union, when asked to describe its proposed bargaining unit, stated “All of the employees are part of the bargaining unit”. If all of the employees were members of the Union, then the bargaining units in the formal request and subsequent application would be the same, albeit expressed in different terms. However, the Union stated in its application that it had 237 members within its proposed bargaining unit and that the total number of workers in the proposed bargaining unit was approximately 450 so it follows that, on the face of it, the two definitions do not refer to the same group of workers. The Panel considers that the bargaining unit defined in the application to the CAC is therefore different to that identified in its request for recognition; it does not merely clarify the bargaining unit identified in the request. That being so, the Union has not applied to the CAC to decide whether the bargaining unit proposed in the request for recognition is appropriate in accordance with the terms of paragraph 11(2).

6. Decision

22) For the reasons given above, the Panel concludes that the application is not made in accordance with paragraphs 11 or 12 of the Schedule and is not accepted by the CAC.

Panel

Mrs Lisa Gettins

Mr Mustafa Faruqi

Ms Claire Sullivan

14 October 2021

1. In its application the Union had given the name of the employer as ‘The Medirest Campus Group (London North West University Healthcare)’. In a letter dated 7 October 2021 the Employer stated that its correct name was Compass Group UK & Ireland Ltd (operating locally as Medirest) as an outsourced provider at Northwick Park Hospital. ↩