Decision

Acceptance Decision

Updated 18 August 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1282/2022

18 August 2022

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 Scotland

and

The Active Care Group

1. Introduction

1) GMB Scotland (the Union) submitted an application to the CAC dated 14 July 2022 that it should be recognised for collective bargaining purposes by The Active Care Group (the Employer) for a bargaining unit comprising “Administrator, Catering, Carer/care worker, Domestics, Finance Administrator, Head House Keeper, Healthcare Assistant, House Keeper, House Manager, HR administrator, Maintenance, Medical Secretary, Practitioner, Support Worker, Senior Support Worker and Team Leaders.” The location of the bargaining unit was given as Murdostoun Brain Injury Rehabilitation Centre, Wishaw, ML2 9BY and Moorpark Place, School Road, Kilbirnie, KA25 7LD. The application was received by the CAC on 14 July 2022 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 21 July 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 Ms Naeema Choudry, Panel Chair, and as Members, Mr Robert Lummis and Mr Ian Hanson . 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 28 July 2022. The acceptance period was extended to 12 August 2022 and thereafter to 19 August 2022 in order 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.

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 sent a request for recognition to the Employer on 1 July 2022. The Union said that the Employer had responded on 13 July 2022 refusing the Union’s request stating “unfortunately we are not prepared to enter into a voluntary recognition agreement. We do not accept that the bargaining units that you propose are compatible with the Active Care Group operational and management structure. We are open and committed to meeting on a regular basis as agreed with the National Officers for the GMB, Unison and RCN at the last meeting at the end of June.” A copy of the Union’s request letter of 1 July 2022, together with the Employer’s response dated 13 July 2022 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 “N/A”. 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 was 257 in Scotland. The Union stated that there were 180 workers in the proposed bargaining unit of whom 105 were members of the Union. 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 stated that “since the announcement by The Active Care Group our membership has consistently increased. We also have a petition of support for GMB Scotland recognition which is signed by our members and non-members. We are happy to provide this to the CAC when requested to do so.”

8) The Union stated that the reason for selecting the proposed bargaining unit was that it believed that “the bargaining unit makes industrial sense and it is a logical request with similar job titles across both sites in Scotland which are covered by regulatory bodies which have to be adhered to in Scotland.” The Union said that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the proposed bargaining unit the Union answered “No”.

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 14 July 2022.

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 1 July 2022. The Employer said that it had responded by letter dated 13 July 2022 rejecting the request. The Employer attached a copy of the letter dated 13 July 2022 to its response.

11) The Employer confirmed that it had received a copy of the application form from the Union on 14 July 2022. The Employer added “this included the original GMB letter and our response (both included in the GMB application form). There were no other documents supporting their application for union recognition. A similar application was made on 22 April 2022 but then withdrawn.” The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union and that it did not agree the proposed bargaining unit. The Employer stated:

“Active Care Group (ACG) employs approximately 3,100 workers in the categories identified by the GMB out of a total workforce of 4,400 across the UK in health and social care roles. At present these employees are on two slightly different terms and conditions. The Scottish sites were part of the former Huntercombe Group that was acquired in March 2021 by Montreux Capital Management and were legally merged with ACG (who were already owned by Montreux) on 24 December 2021. There are approximately 1,700 employees employed on these terms with only 255 based in Scotland. Operationally ACG is split into a North and South region, both regions are managed by a Managing Director, we have 65 services across the whole Group plus over 200 clients who are looked after in their homes. They have similar structures, have the same governance processes and the same KPI’s. For the avoidance of doubt Scotland is not a dedicated region, it forms part of our northern region which is managed by one Managing Director, who has three Operations Directors. The Scotland services are only a part of one Operational Directors region. Within the northern region there are approximately 1600 employees and approximately 1200 in similar roles that the GMB have identified. Whilst we are split operationally North and South, however, it is more complex than this as we rely on being operationally nimble and flexible. We do move services between regions and we do grow both organically and by acquisition which will inform our decisions around where services sit in a region. It would not be desirable or indeed practicable in terms of the organisation’s management structure to treat the two services in Scotland differently to the rest of the organisation. What is proposed would create a fragmented unit in isolation from the rest of the workforce which is not how we operate. For these reasons we do not agree that they can be considered a bargaining unit.”

12) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas be requested to assist.

13) The Employer stated that it disagreed with the number of workers in the bargaining unit as set out in the Union’s application. The Employer said that its records showed 255 workers in total across the two sites, with 212 in the proposed bargaining unit. It added that it was unable to comment as to why the numbers differed. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

14) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated, “28 employees across both services pay their union membership through our payroll, we have no other visibility of union membership across the services although acknowledge that some employees could be paying fees directly. Furthermore, we have had no communication or indication whatsoever from our workforce that they are supportive of GMB recognition. In all the circumstances it seems most unlikely that membership is anywhere near the level claimed. No evidence has been provided by the GMB to substantiate this. We believe that the figure of 105 that the GMB have provided is not accurate and we should be allowed to see the information to cross check against our own records.” 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 answered, “see above.”

15) The Employer answered “No” 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. When asked if it had received any other applications in respect of workers in the proposed bargaining unit the Employer answered, “No”.

5. Summary of the Union’s comments on the Employer’s response

16) In a letter from the Case Manager dated 22 July 2022, the Union was invited to comment on the Employer’s response. The Union responded by way of a letter dated 26 July 2022 stating “following on from the response from the Active Care Group, we consider our proposed bargaining unit to be appropriate and compatible with effective management. We are willing to agree to a confidential membership check that is carried out by the Case Manager, and we are also willing to confidentially disclose GMB Scotland’s petition of support which has been signed by many employees at the two Active Care sites where GMB Scotland is seeking recognition.”

6. The membership and support check

17) 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 agreed 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 independent checks of the level of union membership within the bargaining unit and the number of workers in the unit who had signed a petition supporting recognition of the Union. 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 titles. The Union also agreed to supply a petition in support of recognition. 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 dated 1 August 2022 from the Case Manager to both parties.

18) The information requested from the Union was received by the CAC on 1 August 2022 and from the Employer on 3 August 2022. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

19) The list supplied by the Employer indicated that there were 212 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 97 names. According to the Case Manager’s report the number of members of the Union in the proposed bargaining unit was 88, a membership level of 41.51%.

20) The petition supplied by the Union contained 116 names and signatures, of which 102 were in the proposed bargaining unit, a figure that represents 48.11% of the proposed bargaining unit. Of those 102 signatories, 59 were members of the Union (27.83% of the proposed bargaining unit) and 43 were non-members (20.28% of the proposed bargaining unit). The petition consisted of 14 sheets of A4 paper all dated May 2022 with the Union banners at the top and bottom of each page and three columns headed, “Print Name”, “Signature”, “Mobile Number/Workplace.” The petition was set out as follows:

“SIGN THE PETITION TO SUPPORT RECOGNITION OF GMB SCOTLAND TRADE UNION AT HUNTERCOMBE: MOORPARK AND MURDUSTOUN

GMB Scotland Trade Union is asking your employer to recognise it for the purposes of collective bargaining. We have to show the Central Arbitration Committee (CAC) that a majority of workers favour our application. The CAC adjudicates on applications relating to the statutory recognition and derecognition of trade unions for collective bargaining purposes.

If you want the employer to recognise GMB Scotland Trade Union for collective bargaining please add your name to the petition.

Signing the petition shows you support GMB Scotland Trade Union to conduct collective bargaining on your pay, hours of work, health and safety and annual leave.”

21) A report of the result of the membership and support check was circulated to the Panel and the parties on 4 August 2022 and the parties were invited to comment on the results by noon on 8 August 2022.

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

22) In an email dated 4 August 2022 the Employer stated, “I would like the panel to be aware that we were made aware by some colleagues that they felt pressurised into signing the petition and weren’t 100% sure what they agreeing to.”

23) In an email dated 16 August 2022 the Union stated, “Our membership at the Active Care Group is mostly made up with employees paying by direct debit, and as such, if they leave the Active Care Group’s employment and do not cancel their direct debit with their bank, then they will still show on our records as being a member.  This is largely out of our control until the member makes contact to inform us that they have changed employer and their records are updated.  The high turnover of staff in the private care sector will, I assume, account for previous employees who have signed the petition and have never been members of our trade union. We are content that the company has provided accurate staffing levels and that the natural turnover of staff will be the reason for any minor inaccuracies in the exchange of information.  In terms of paragraph 36 of the Schedule, we believe – even with the adjustments previously highlighted - that we meet the statutory requirements based on membership levels and would request that our application progresses.”

8. Considerations

24) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 above are satisfied. The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision.

25) 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. The Panel is also satisfied, on the balance of probabilities, that the application was made in accordance with paragraph 11(2) of the Schedule. Paragraph 11(2) applies if

(a) before the end of the first period the employer fails to respond to the request, or

(b) before the end of the first period the employer informs the union … that the employer does not accept the request (without indicating a willingness to negotiate).

The first period is defined in paragraph 10(6) as “the period of 10 working days starting with the day after that on which the employer receives the request for recognition”. The Panel does not consider that the Employer’s response to the Union’s request, in its letter dated 13 July 2022, indicated a willingness to negotiate on the part of the Employer. The Panel therefore considers that paragraph 11 applies.

26) The Panel is also satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42.

27) The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

Paragraph 36(1)(a)

28) Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the union constitute at least 10% of the workers in the proposed bargaining unit. The membership check conducted by the Case Manager (described in paragraphs 17 - 21 above) showed that 41.51% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 18 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. The Panel has therefore decided that members of the union constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

Paragraph 36(1)(b)

29) Under paragraph 36(1)(b) of the Schedule, an application is not admissible unless the Panel decides that a majority of the workers constituting 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. For the reasons given in paragraph 19 above the Panel has concluded that the level of union membership within the bargaining unit stands at 41.51%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union. No such evidence to the contrary was received in this case. The Panel also notes that the support check conducted by the Case Manager showed that 48.11% of workers in the proposed bargaining unit (102 out of 212 workers) had signed a petition in favour of recognition. Of those who had signed the petition 59 were Union members (27.83% of the proposed bargaining unit) and 43 were non-members (20.28% of the proposed bargaining unit).

30) The Employer mentioned in its response to the membership check that it had been informed that workers had felt pressurised to sign the petition and were not entirely clear what the purpose was. The Panel has considered the argument raised by the Employer, however there has been no evidence produced from Union members or non-members within the proposed bargaining unit that they are not supportive of recognition.

31) On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, 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, as required by paragraph 36(1)(b) of the Schedule.

9. Decision

32) For the reasons given in paragraphs 24-31 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Ms Naeema Choudry, Panel Chair

Mr Robert Lummis

Mr Ian Hanson

18 August 2022