Decision

Acceptance Decision

Updated 29 June 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1329(2023)

29 June 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:

GMB

and

Spectrum Service Solutions Limited

1. Introduction

1) GMB (the Union) submitted an application to the CAC dated 26 May 2023 that it should be recognised for collective bargaining purposes by Spectrum Service Solutions Limited (the Employer) in respect of a bargaining unit comprising “all workers employed by Spectrum based at Edinburgh Zoo.” The location of the bargaining unit was given as “Edinburgh Zoo, Corstorphine, EH12 6TS.” The application was received by the CAC on 26 May 2023 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 31 May 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 Chairman established a Panel to deal with the case. The Panel consisted of Mr Rohan Pirani, Panel Chair, and, as Members, Mr Roger Roberts and Ms Stephanie Marston. The Case Manager appointed to support the Panel was Joanne Curtis.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 12 June 2023. The acceptance period was extended to 30 June 2023 in order to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the comments before arriving 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 had made a request for recognition to the Employer by email on 9 May 2023. The Union stated that a telephone call took place between the Employer and the Union on 9 May 2023 during which the Employer advised the Union that the Employer would not be willing to enter into a voluntary recognition agreement with the Union. On 10 May 2023 the Union asked the Employer to respond to the request in writing. The Employer sent an email to the Union in response on 18 May 2023. A copy of the Union’s email of 9 May 2023 and the subsequent emails exchanged between the parties were attached to the application.

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 during this year averaged 557. In the year 2021, it was 450. The Union stated that there were 14 workers in the proposed bargaining unit but did not state how many of those 14 were members of the Union. The Union went on to say that a list of members could be provided to the CAC for the purposes of carrying out a membership check. When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union said “members joined the union with the request and aspiration to get collective bargaining.”

8) The Union stated that the reason for selecting its proposed bargaining unit was: “all workers based on the Edinburgh Zoo contract and therefore according to our members is a logical bargaining unit.” In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit.

9) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application and supporting documents to the Employer on 26 May 2023.

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 9 May 2023. The Employer stated that it rejected the Union’s request in the telephone call on 9 May 2023 and emailed the Union on 18 May 2023. The Employer did not attach any documents to the response.

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 26 May 2023. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union, nor did it agree with the proposed bargaining unit. The Employer said, “the dedicated team on site is 16 employees.”

12) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist the parties. The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application and said that there should be 16 workers in the proposed bargaining unit and not 13, as stated by the Union. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated, “we have no evidence for us to consider.” 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 said that evidence had not been provided by the Union for the Employer to consider.

14) The employer replied “N/A” 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 also when asked if it had received any other applications in respect of workers in the proposed bargaining unit. The Employer also stated that it did not consent to its contact details being provided to Acas.

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

15) In an email dated 8 June 2023 the Union stated “in terms of comments, we have agreed to a full membership check and provide a list of members are prepared to do so with the guidance of ACAS or CAC in order to protect GDPR for members.  At the time of our application, our membership has advised that it was 14, however the employer has since hired additional staff.  We would also note that we have highlighted the proposed job titles within the bargaining unit has been proposed as not all job titles would be relevant to the bargaining unit - such as higher management on site.”

6. The membership and support 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, dates of birth and job roles (where available). It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 12 June 2023 from the Case Manager to both parties.

17) The information requested from the Employer was received by the CAC on 13 June 2023 and from the Union on 13 June 2023. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

18) The list supplied by the Employer indicated that there were 16 workers in the Union’s proposed bargaining unit.

19) The list of members supplied by the Union contained 8 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 8, a membership level of 50.00%.

20) A report of the result of the membership and support check was circulated to the Panel and the parties on 14 June 2023 and the parties were invited to comment on the results of that check by noon on 20 June 2023.

7. Summary of the parties’ comments following the membership and support check

21) In an e-mail to the CAC, dated 19 June 2023, the Employer stated, “the report details that there are 8 names provided by the union in which are also the same names in common on both lists. We have reason to believe that this number may not be current following various conversations within the employee group where they have volunteered this information.” The Employer queried whether all 8 workers were still Union members as of 19 June 2023, and whether the Union’s membership list was up to date.

22) The Union in an email dated 20 June 2023 stated that the Employer had hired additional workers since the Union had submitted its application to the CAC. The Union said that due to this it believed that the job titles outlined in the application would be an appropriate bargaining unit and the Union would not want to consider management as part of a bargaining unit at this stage. The Union added that workers not currently members of the Union had expressed an interest in supporting recognition and would join the Union were it to be recognised. The Union concluded by saying that the figure of 8 in the report was current and accurate.

8. Considerations

23) 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.

24) In deciding whether to accept an application the Panel must be satisfied that it is valid within the terms of paragraphs 5 to 9. Paragraph 6 of the Schedule states:

6) The request is not valid unless the union (or each of the unions) has a certificate under section 6 that it is independent.

In this case the Panel notes that the Union’s original request for recognition calls upon the Employer to recognise “GMB Scotland trade union” but the copy of the Certificate of Independence submitted along with its application, and upon which it relies, is in the name of the ‘GMB’. The Panel therefore concludes that as the Employer has been asked to recognise “GMB Scotland trade union”, a union that does not appear to be in possession of a Certificate of Independence, it must follow that the request is not valid.

9. Decision

25) For the reasons given above the Panel is not satisfied that the Union made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule. Accordingly, the application is not accepted by the CAC.

10. Observations

26) There are two observations that the Panel would wish to make. First, we would caution trade unions that there are consequences when it comes to changing or amending its name without following due process. If GMB Scotland trade union wishes to make use of the statutory recognition procedures independently of the GMB trade union, then it must apply to the Certification Officer for the necessary certificate that would enable it to do so. Alternatively, for recognition must state the trade union’s officially certified name as listed with the Certification Officer.

27) Second, had the Panel accepted that the Union had made a valid request it would have gone on to consider whether the bargaining unit identified in the initial request for recognition on 9 May 2023 was the same as that proposed in the application. The request stated: “At this stage the job roles we are making a request to represent (which is not exhaustive) are: Park Presentation, Cleaning Operatives, Cleaning Supervisors, Waste Management.” However, the Union then went on to lodge an application to the CAC in which, when asked to describe the bargaining unit, stated “all workers employed by Spectrum based at Edinburgh Zoo.”

28) As the Employer had informed the Union that it would not be willing to enter into a voluntary recognition agreement with the Union, paragraph 11 of the Schedule is the relevant paragraph which would apply. This is where, in circumstances such as here, before the end of the first period an employer informs a union that it does not accept the request without indicating a willingness to negotiate. In this case, as the Employer refused the request and no agreement was reached between the Union and Employer as to the appropriate bargaining unit, the Union must apply to the CAC in respect of the proposed bargaining unit. This is the bargaining unit proposed in the request for recognition and one which would comprise “Park Presentation, Cleaning Operatives, Cleaning Supervisors and Waste Management.”

29) In addition to correctly identifying itself in any fresh request for recognition, the Union must also consider which bargaining unit it wishes to represent. It must then ensure that, if no agreement as to the appropriate bargaining unit is reached, the bargaining unit set out in its application to the CAC matches that as set out in its formal request to the Employer.

Panel

Mr Rohan Pirani, Panel Chair

Mr Roger Roberts

Ms Stephanie Marston.

29 June 2023