Decision

Acceptance Decision

Updated 8 November 2018

Case Number: TUR1/1067(2018)

07 November 2018

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:

IPA

and

UK Research and Innovation

1. Introduction

1) IPA (the Union) submitted an application dated 31 August 2018 to the CAC that it should be recognised for collective bargaining purposes by British Antarctic Survey in respect of a bargaining unit comprising “All Pilots employed by British Antarctic Survey (BAS) also known as the National Environment and Research Council (NERC), and any subsequent organisation.” The location of the bargaining unit was given as “Cambridge/Antarctic”. The application was received by the CAC on 3 September 2018 and the CAC gave both parties notice of receipt of the application on 3 September 2018.

2) It later transpired that the organisation which employs the workers for which the Union is claiming recognition is UK Research and Innovation (known as UKRI and referred to hereafter as the Employer). British Antarctic survey is one of the institutes within the Natural Environment Research Council and, as a consequence, is a constituent part of the Employer.

3) The Employer submitted a response to the CAC on 7 September 2018 which was copied to the Union.

4) 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, Mrs Lesley Mercer and Mr Len Aspell. The Case Manager appointed to support the Panel was Kate Norgate. On 12 October 2018 Mr Len Aspell, Panel Member, was replaced by Mrs Sue Jordan.

5) The CAC Panel has extended the acceptance period in this case. The initial period expired on 17 September 2018. In an e-mail to the CAC dated 14 September 2018 the Union explained that the parties wished to hold further talks on voluntary recognition and, in view of this, requested that the statutory procedure be stayed. By e-mail, dated 14 September 2018, the Employer confirmed that it also requested a stay in the process, until 11 October 2018. In line with the CAC policy of helping parties, where possible, reach voluntary agreements outside the statutory process the Panel was happy to accede to the Union’s request and gave notice, by way of a letter, dated 17 September 2018, that proceedings would be stayed until 11 October 2018. On 8 October 2018 the Union informed the CAC that it wished to return to the statutory process. The stay was therefore lifted and the statutory process resumed.

6) The acceptance period was then extended on two further occasions in order to give the parties further opportunity to comment and to allow more time for the Panel to consider all the evidence before arriving at a decision as to whether or not to accept the application. The final extension ends the acceptance period on 7 November 2018.

2. Issues

7) 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

8) In its application to the CAC the Union stated that it had sent a request for recognition to the Employer on 27 July 2018. The Union stated that its “original approach” was made several months before but despite negotiations, no agreement had been reached. A copy of the Union’s request letter was attached to its application.

9) 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.

10) The Union stated that there were 9 workers in the proposed bargaining unit, all of whom 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 following a phone call between IPA’s legal department and one of its members in the proposed bargaining unit, the Union saw a steady increase in its membership of BAS Pilots, “in support of a request for recognition”.

11) The reason for selecting its proposed bargaining unit was said to be that the IPA represents professional pilots and it was therefore a group that the Union was competent to represent. The Union further stated that the bargaining unit had been agreed with the Employer. In answer to the question whether there was any existing recognition agreement of which it was aware and which covered any workers in the bargaining unit the Union stated “No”.

12) The Union also 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 31 August 2018.

4. Summary of the Employer’s response to the Union’s application

13) In a covering letter to its response, dated 7 September 2018, the Employer clarified that the organisation for which the Union was seeking recognition was UK Research and Innovation (UKRI) and not British Antarctic Survey, as stated in the Union’s application to the CAC.

14) In its response to the Union’s application the Employer stated that the Union’s written request for recognition had been received on 27 July 2018. In answering the question about the Employer’s response to the Union’s request the Employer referred to an e-mail it sent to the Union on 31 July 2018. In that e-mail the Employer explained that it had continued to explore recognition for the IPA in respect of the 9 pilots employed by UKRI within the British Antarctic Survey. The Employer had explained that it was unable to include the IPA within the existing Joint National Consultative Committee (JNCC) due to the views of the seven Trade Unions who are signatories to the agreement, resulting from differences in affiliation to the Trade Union Congress. The Employer had also stated that it proposed drawing up a new agreement with the Union in respect of recognition of the IPA, solely to represent the BAS pilots. The Employer also informed the Union that it would submit the first draft by the end of August “with the aim of a signed agreement early in September.”

15) The Employer stated that it agreed with the Union’s proposed bargaining unit. It further stated that “In principle UKRI is prepared to voluntary recognise IPA for the nine employed pilots subject to reaching agreement on the scope of recognition taking account of our existing bargaining agreement with our recognised trade unions.” According to the Employer, it was not appropriate to agree a separate bargaining unit in respect of a statutory recognition application with the Union until common ground could be established between the parties on the extent of any collective bargaining rights and collective consultation with the Union that may be possible in light of the established bargaining arrangements that are in place at UKRI. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

16) The central point made by the Employer, in response to the application, was that there was already in force a collective agreement covering employees within the proposed bargaining unit. The Employer explained that the written agreement (a copy supplied) was dated 22 March 2018 and came into effect on 1 April 2018. It set out those who were party to the agreement and it included the following provision at paragraph 3 of agreement:

“3.1 The Organisation recognises the following Trade Unions for its entire non-marine staff:

a) The British Medical Association (BMA)

b) The FDA (FDA)

c) Prospect

d) The Public and Commercial Services Union (PCS)

e) Unite the Union (Unite)

f) The University and College Union (UCU).

3.2 Additionally for marine staff within the British Antarctic Survey (BAS) and National Oceanography Centre (NOC), UKRI formally recognises the following Trade Unions, for whom local negotiating arrangements are in place at NOC and BAS:

a) Nautilus International (for Ships’ officers & ratings)

b) The Rail, Maritime, and Transport Union (RMT) (for Ships’ ratings)

3.3 Those Trade Unions listed in paragraph 3.2 will be included in all negotiations regarding matters which impact on their members’ terms and conditions.”

17) The agreement defines the “organisation” as being UKRI. Paragraph 6 of the written agreement provides, among other things, that the organisation recognises the trade unions listed as party to the agreement as employee representatives with which it will consult and negotiate in all matters set out in paragraph 7.9 of the agreement. Paragraph 7.9 includes hours of work, job descriptions, pay awards and terms and conditions of employment, in addition to many other matters set out therein.

18) The Employer stated that those unions who were party to the agreement were entitled to carry out collective bargaining on behalf of the workers within UKRI, including those within the Union’s proposed bargaining unit. The Employer also confirmed that all of the unions who were party to the agreement held a certificate of independence.

19) The Employer further stated that it agreed with the number of workers in the proposed bargaining unit as set out in the Union’s application. In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated “Not Applicable”. 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 stated that it considered that a majority of the workers in the Union’s proposed bargaining unit would be likely to support recognition.

20) The Employer also 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.

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

21) In a letter to the CAC, dated 11 September 2018, the Union stated that it did not accept the points made by the Employer. The Union said that it had contacted James Miller, HR Business Partner BAS, on 26 March 2018, and it had attached a written request for voluntary recognition. Mr Miller responded on the 29 March 2018, “accepting the voluntary process.” The Union stated that the proposed bargaining unit was described as “all those pilots employed by BAS and any subsequent organisation.” This acceptance, it is said, predates the implementation date of the Recognition Agreement submitted by the Employer. The Union also does not accept that the said written agreement covers their proposed bargaining unit. The Union maintained that at no point had the employer indicated that there was an existing agreement in respect of pilots, or that there would be within two days of the Employer’s response.

22) The Union explained that on 17 April 2018, Jan Juillerat, HR Director at NERC, had written to Philip Flower, IPA’s General Secretary, stating that UKRI would be pleased to formally recognise the IPA in respect of its pilots at BAS. This would be on the basis that it wished to agree the terms of recognition that was in line with the wider UKRI recognition terms. A copy of that agreement was provided but at no point was it indicated that this would be a collective arrangement with other unions. This view, the Union believe, was supported by the words “in line with”, rather than that the IPA would be added to UKRL’s list of recognised unions. The Union stated that as it appeared that suggested amendments, which related to pilots were rejected, the Union failed to see how it could be suggested that the agreement of 1 April 2018 could include pilots, irrespective of the broad and non-specific bargaining unit, although the agreement had not defined it as such. The Union explained that a meeting was held on 10 May 2018 between BAS, NERC and the IPA. The Union maintained that again, there was no indication from BAS HR, or from NERC’s HR Director that there was any issue with IPA’s eligibility to advance recognition on behalf of its proposed bargaining unit.

23) The Union stated that neither the IPA nor its BAS members accept the statement that the IPA’s proposed bargaining unit is covered by the Recognition Agreement submitted, either from 1 April 2018 or previously. The Union said that it had been able to establish from its members that pilots had been unrepresented for at least 15 years.

24) It was further emphasised that on 6 September 2018 the Employer had proposed a draft voluntary agreement, which Philip Flower responded to by way of amendments to Tanya Robinson, Senior HR Business Partner. Paul Ellix, HR Manager, People, Policies and Management – UKRI, had stated that he would respond, which he subsequently did. The Union said that rather than progressing the terms of agreement, a further meeting was suggested to “better understand our different positions”. The Union stated that since the start of the process it believed it had been “clear of its aims on behalf of its BAS members, and that has not changed.”

25) The Union further explained that as the employer accepted the approach by the IPA in March 2018, it believed that it could have reasonably expected an agreement to have been reached by now, and this was reflected in Tanya Robinson’s email of 31 July 2018, disclosed by the Employer. The Union stated that if an agreement could be reached within a sensible timescales going forward, it remained open to negotiating the terms of that agreement with the Employer and it awaited a substantive response to its suggested amendments. The Union said that its members were disappointed that an agreement had not been reached, given the positive start to the process back in March, and that it was the absence of progress that prompted its application for statutory recognition. The Case Manager copied this correspondence to the Employer.

6. Preliminary issue in dispute

26) From a perusal of the Union’s application, its subsequent correspondence, and the Employer’s response it was apparent that there was a preliminary issue in dispute, namely: whether the application was inadmissible under the provisions of paragraph 35 of the Schedule. This provides that an application, in accordance with paragraph 11 or 12 of the Schedule, is not admissible if the CAC is satisfied that there is already in force a collective agreement, under which a union is recognised as entitled to conduct collective bargaining on behalf of any workers falling within the bargaining unit proposed by the union.

7. Further written submissions and evidence on paragraph 35

27) Under cover of a letter, dated 8 October 2018, the Union enclosed copies of 7 witness statements it stated were from its members, who comprise the entire pilot workforce of the Employer. The Union explained that it believed the statements provided clear evidence that:

i. The pilots had never been told by their employer that their employment was subject to any form of collective agreement.

ii. Pilots were never consulted with on the recognition of other Trade Unions prior to the agreement of 1 April 2018, and they still had not been advised by their employer or any of the trade unions recognised by the Employer that they may form part of a bargaining unit.

iii. None of the pilot’s contracts contained any clause referencing there being a recognition agreement in place, even though it is understood that new contracts were issued during the time when the Employer said that there was a relevant recognition agreement.

iv. The pilots had been consistently disadvantaged by the lack of recognition and representation.

v. None of the pilots had had the benefit of communication from their employer pursuant to the provisions of The Information and Consultation of Employees Regulations 2005.

vi. A pilot employee was used by the Employer for the purposes of pay and conditions negotiations in preceding years in the role of ‘Employee Representative’, and not an appointed Union Representative from any of the unions. This, it was said, provides clear evidence that none of the unions that the company now recognised had represented or indeed now represent the bargaining unit that the IPA proposes to represent.

28) The Union enclosed copies of the following documents; letter dated 20 March 2018 from the IPA to UKRI / BAS in which it was seeking voluntary recognition; e-mail dated 26 March 2018 in which that letter attached and sent by email to James Miller, HR Business partner at BAS; e-mail dated 29 March 2018, James Miller’s reply to that e-mail in which the Union confirmed that the Employer “expected that voluntary recognition could be arranged.” The Union stated that it was not until the 1 April 2018 that the Recognition Agreement of which the Employer was relying “to resist this application” had come into existence.

29) The Union also enclosed a letter, dated 17 April 2018, received by the IPA from Jan Juillerat, HR Director (NERC), who, the Union confirmed, had replied on behalf of the Employer stating that “I can confirm that UKRI would be pleased to formally recognise the IPA in respect of its pilots at BAS. This would be on the basis that we wish to agree terms of recognition in line with the wider UKRI recognition terms, recently agreed with other trade unions recognised by the organisation.” The Union stated that at no point was it suggested that the “Wider UKRI Recognition Terms” included pilots. The Union considered that offering the IPA recognition “In line with” suggests, as it had previously stated, that pilots were not recognised.

30) The Union explained that a meeting took place on 10 May 2018 between the IPA and the Employer to discuss the recognition agreement. That meeting concluded with an agreement to progress the request subject to sharing points made by the IPA with the JNCC. The Union said that “at no point was it said or suggested to the IPA that the employer was effectively seeking the approval of other Trade Unions for the request to be ratified.”

31) Finally, the Union enclosed; a letter, dated 23 May 2018, from Jan Juillerat to the IPA which the Union said was “thanking the IPA for the ‘constructive’ meeting and advising that they had requested the appropriate amendments to the UKRI Recognition Agreement”; e-mail, dated 10 July 2018, from Jan Juillerat to the IPA, which the Union confirmed “conceded that the employer was failing to follow the process that had been agreed with the IPA by seeking approval of the other Trade Unions to our recognition.”

32) The Union stated that at the meeting held between the Employer and the IPA on 27 September 2018, “the employer was unable to provide any evidence of proper communication with the pilots at any time pursuant to the Information and Consultation of Employee Regulations 2004 which showed that the pilots were ever considered, communicated with or advised of any recognition agreements or any intention to enter into a recognition agreement that would affect their terms and conditions of employment.”

33) The Union further stated that “It is the strong position of the IPA that whilst the recognition agreements relied on by the employer may be valid in respect of other employees, they are not in respect of pilots.” It was the Union’s view that such recognition agreements were only now relied on “as a sham to conceal the failings of the organisation to properly consult, inform and advise its pilot employees and to give them a fair opportunity to express their desire to be represented by the IPA.” The Union stated that it now urged the CAC to accept its application.

8. The Employer’s comments

34) On 10 October the CAC copied the Union’s submission to the Employer and invited its comments. Included in the points of response were:

i. The agreement came into force on 1 April 2018 on the establishment of UKRI: having been signed on 22 March 2018. The unions that are party to the agreement were recognised historically by the organisations that came together to form UKRI. UKRI recognises, for its entire non-marine staff (Including the pilots at British Antractic Survey) the following unions:

a) The British Medical Association (BMA),

b) The FDA (FDA),

c) Prospect,

d) The Public and Commercial Services Union (PCS),

e) Unite the Union (Unite),

f) The University and College Union (UCU). All parties to the agreement recognise that it applies to all non-marine staff employed by UKRI. Additionally for its marine staff within the British Antarctic Survey (BAS) and National Oceanography Centre (NOC), for whom local negotiating arrangements are in place at NOC and BAS, UKRI recognises a) Nautilus International (for Ships’ officers & ratings),

b) The Rail, Maritime, and Transport Union (RMT) (for Ships’ ratings). Both of these unions are included in all negotiations regarding matters that impact on their members’ terms and conditions.

ii. The recognition agreement was entered into in good faith with no intention on the part of UKRI to exclude the IPA.

iii. The agreement is not a sham as alleged by IPA in its letter to the CAC. If required, UKRI will be able to supply evidence from the trade union partners to this agreement that they do already (and will continue to in the future) represent the interests of the pilots and that Prospect specifically have confirmed that they have appropriate expertise in this regard.

iv. UKRI fail to see how the CAC are in a position to accept the IPA’s application. This application should not therefore be allowed to proceed in light of the provision at paragraph 35 of Schedule A1.

v. Notwithstanding this position, UKRI has proposed to the other parties to the existing recognition agreement that it be amended to incorporate recognition of IPA. However, as IPA is not an affiliate of the Trades Union Congress (TUC), the other parties to the agreement have informed UKRI that they will not accept the IPA becoming a party to the existing agreement or a co-party to any future negotiations. In addition IPA has indicated to UKRI that it would prefer not to be a co-party to negotiations including other trade unions.

vi. UKRI is appreciative that the pilots are all members of IPA and that they want IPA to represent them. Accordingly, there was a will on the part of UKRI to recognise IPA for collective bargaining purposes for the pilots in line with how it recognises Nautilus and RMT for its marine employees. UKRI considers that this is covered in the letter sent by Jan Julierat on 17 April 2018 by the phrase, “I can confirm that UKRI would be pleased to formally recognise the IPA in respect of its pilots at BAS. This would be on the basis that we wish to agree terms of recognition that are in line with the wider UKRI recognition terms, recently agreed with other trades unions recognised by the organisation”. that this was UKRI’s intention.

vii. However, owing to the position adopted by the other parties to the existing recognition agreement UKRI’s own position has had to be modified, which has been communicated to IPA during the meeting that took place on 27 September 2018 and through the draft recognition agreement that was supplied to it beforehand for consideration, which states:

“The Organisation recognises the Independent Pilots Association (IPA) as having recognition and negotiation rights for all pilots in its employ within the British Antarctic Survey (BAS) for matters which relate exclusively to this Bargaining Unit. The Organisation recognises the Independent Pilots Association as having consultation rights for all pilots in its employ within the British Antarctic Survey for matters which relate to wider UKRI staff and where negotiation rights are conferred within the wider UKRI Recognition Agreement.” For the circumstances summarised above there should be no compulsion or legal declaration that forces UKRI to recognise the IPA. This is especially so when it is clear at this time that UKRI, acting in good faith with all trade union parties, has so far been unable to find an appropriate way of accomodating some form of IPA representation for the pilots that will not undermine the collective agreement already in place and will allow all parties to work harmoniously. viii. In light of the positions adopted by the various trade unions it is not appropriate for the CAC to allow the IPA’s application to proceed as there are serious reservations that the IPA would be able to work co-operatively with the other eight trade unions if the CAC were to over-ride the existence of the current UKRI collective agreement and its applicability to the pilots as part of a broader bargaining unit. In this regard UKRI would refer the CAC to the general duty and object of promoting fair and efficient practices and arrangements in the workplace at paragraph 171 of Schedule A1.

35) The Employer also made the following points in relation to the pilots statements:

i. UKRI refutes that the pilots have never been told that their employment is subject to any form of collective agreement. Notification of the signing of the agreement was posted on the UKRI staff portal on 19 April 2018. All employees were encouraged to sign up for access to the staff portal in order to obtain information relevent to their employment with UKRI.

ii. Pilots and all other employees of NERC who were employed at the time of the establishment of UKRI were issued with notices by both NERC and UKRI advising them of the change of their employer. All UKRI employees , employed since the establishment of UKRI have been issued with contracts but these contracts are silent on the issue of collective recognition agreements. However this is not a deliberate omission by the UKRI but merely an oversight.

iii. UKRI does not consider that the pilots have, at any time, had a lack of representation and consequently have not been disadvantaged.

iv. Notwithstanding the IPA assertion that the pilots consider that none of the trade unions currently recognised by UKRI is competent to represent them, the Prospect union has informed UKRI that it is competent to represent the pilots.

v. UKRI has no knowledge of any request being made by any group of staff under the provisions of The Information and Consultation of Employees Regulations 2005. It negotiates and consults with the trade unions that it recognises and provides information to its employees on many subjects including by email, on its website and intranet.

vi. It was agreed mutually that one of the pilots would work collectively with BAS local HR to complete some research on industry standards in terms of pay and progression, which formed the basis of representations by BAS to NERC and the Department for Business, Energy & Industrial Strategy (UKRI’s sponsoring government department) leading to the introduction of new pilot pay arrangements. UKRI does not consider that this should be construed as negotiations with an employee representative of the pilots.

36) Finally, the Employer made points in relation to the further evidence submitted by the Union which included:

i. The IPA’s letter dated 20 March 2018 was received as an attachment to an email on 26 March 2018.

ii. The response to the letter of 20 March 2018 comprised an email by James Miller, HR Business Partner BAS on 29 March 2018 in which he advised that he anticipated that voluntary agreement could be reached and additionally he informed IPA that, effective from 1 April 2018, the employer would become UKRI.

iii. The recognition agreement between UKRI and the eight trade unions that it recognises was finalised on 22 March 2018, which is before a claim for recognition was received from IPA on 26 March 2018. The agreement came into force on the formation of UKRI on 1 April 2018 when the staff were transferred into it from their previous employers.

iv. A meeting took place on 10 May 2018 at which it was indicated that the points made by the IPA would be shared with the Joint National Consultation Committee (JNCC). It was envisaged by UKRI at that time that the other parties to the recognition agreement would be amenable to incorporate amendments to permit IPA to become a party.

v. The letter from Jan Juillerat dated 23 May 2018 that was sent following the meeting on 10 May 2018 advised that UKRI was seeking amendments to the existing recognition agreement to incorporate recognition of the IPA . In order amend the recognition agreement consent was required from the other parties, which the other parties to the recognition agreement considered and declined. The IPA was informed of this on 31 July 2018.

vi. The email to which IPA refers appears not be included in the documentation that it has submitted to IPA. The email that UKRI is able to trace on that day from Jan Juillerat to IPA does not make the concession to which IPA alludes.

vii. UKRI considers that the pilots are within the group of employees designated as non-marine staff and not a separate group of staff and consequently have been treated equally and have received the same level of communication as all other non-marine staff.

viii. UKRI acknowledges that the pilots are members of and wish to be represented by IPA and UKRI has consulted with the IPA over several months to seek to accommodate this, subject to the IPA respecting the current collective agreement and bargaining arrangements. However no agreement has been reached at this point and UKRI’s willingness to engage with IPA and attempts to seek a resolution does not change the legal position as stipulated under paragraph 35.

9. The Union’s final comments

37) On 15 October 2018 the CAC copied the Employer’s submission to the Union. By letter dated 16 October 2018 the Union made the following comments using the same numbering as the Employer’s submission:

i. It is stated that Nautilus and the RMT are included in all negotiations regarding matters that impact on their Members terms and conditions. IPA’s interpretation is that these two unions are afforded full negotiation rights in respect of marine staff. It has been suggested that the IPA be given similar rights solely in respect of pilots which should therefore mean exclusive negotiation rights in respect of the bargaining unit submitted with our application.

ii. The evidence provided by the IPA points firmly to the contrary view. The pilots were completely overlooked in the process applied for the appointment of recognised unions and the assertions made by the Employer are an attempt to conceal this failing.

iii. The evidence has not been provided. Further, Tanya Robinson stated that Prospect’s expertise lies with Air Traffic Control. This indicates that the employer continues to fail to recognise the niche and specialised work of pilots who the IPA have been asked to represent by its BAS members.

iv. The IPA does not wish to enter into an agreement that requires us to represent any person other than those we are competent to represent. TUC affiliation is irrelevant to capabilities or competencies to represent a unions membership. The BAS pilots consider us to be the most suitable union to represent their interests. Additionally, IPA assert that it is not for other trade unions to dictate to the employer who it should recognise. By taking this position the Employer is denying an unrepresented part of its workforce any representation.

v. It is clear from the statement of Jan Juillerat that it was intended for the IPA to have full negotiating rights in respect of pilots.

vi. This is denied. It is a matter for the employer to determine the recognition rights afforded to the various parts of its workforce.

vii. The position of the other trade unions on the recognition of the IPA is not relevant.

38) The Union also made the further comments in relation to the pilots’ statements. According to the Union, there is no evidence to establish that Prospect or any other union has in the past or now does represent the proposed bargaining unit.

39) It was also maintained that the Employer has been slow to respond to all communications and appears to be pursuing a policy of obfuscation.

10. Considerations

40) In deciding whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 7 of this decision are satisfied. The Panel has taken into account all the evidence and argument submitted by the Employer and the Union.

41) As noted above, the key preliminary issue is whether the application is inadmissible under paragraph 35 of the Schedule. The CAC cannot accept an application if there is an existing agreement under which a union is entitled to conduct collective bargaining on behalf of any workers in the bargaining unit. For this purpose, the existing agreement can be with any trade union, whether or not it has a certificate of independence, and can be a voluntary or statutory agreement. Equally, an existing collective agreement does not need to cover hours, pay or holidays (subject to what is set out below) as long as it covers one or more of the matters specified in section 178 of the Trade Union and Labour Relations (Consolidation) Act 1992. The existing agreement only needs to cover one worker in the bargaining unit to make the application inadmissible.

42) There are two exceptions to the rule about existing agreements. The first applies if the union recognised is a non-independent union that was de-recognised in the preceding three years, then an application from an independent union can be accepted. Without this provision an employer attempting to avoid statutory recognition could simply re-recognise a non-independent union (or staff association) as soon as it was de-recognised following an application (under part VI of the Schedule) from a worker, therefore barring the independent union indefinitely. The second exception applies when there is an existing agreement with the same union as is making the application, and that existing agreement does not cover all of the following: pay, hours and holidays, then the application can still be accepted.

43) It is not contended that either of the exceptions to paragraph 35 of the Schedule apply in this case.

44) As set out above, the application by the Union was dated 31 August 2018 and received by the CAC on 3 September 2018.

45) A recognition agreement was made between the Employer and some eight other unions in March 2018 which came into force, according to paragraph 2 of the written agreement, on 1 April 2018.

46) We are satisfied that at the date of the application to the CAC there was an existing agreement in place. The agreement provides that the unions listed are entitled to consult and negotiate on matters set out in the agreement at paragraph 7.9. Those matters include pay, hours and holidays. Paragraph 3 of the agreement provides that the unions listed are entitled to carry out collective bargaining on behalf all of the workers within the Employer. The bargaining unit proposed by the Union, namely all pilots employed by the Employer who are located in Cambridge and/or the Antarctic, is included in paragraph 3. Acceptance by us does not pre-date the implementation date of the said agreement.

47) The letter referred to us by the Union, dated 17 April 2018 from Jan Juillerat, confirmed that NERC’s employees transferred to UKRI on 1 April 2018 under the terms of a statutory transfer order and that UKRI would be pleased to recognise IPA formally in respect of its pilots at BAS. However, such recognition was said to be “in line with the wider UKRI recognition terms, recently agreed with other trades unions recognised by the organisation.” Express reference was therefore made to written recognition agreement. The recognition agreement cannot be read so as to exclude pilots from the “entire non-marine staff” as set out at paragraph 3. We are also satisfied that the letter of 17 April 2018 makes no such concession, rather it acknowledges that the IPA had a legitimate claim to be party to the joint recognition agreement. As we have set out, the existing agreement only needs to cover one worker in the bargaining unit to make the application inadmissible. In this case, we are satisfied that it covered the entire proposed bargaining unit. The agreement covers the entire non-marine staff and therefore includes pilots.

48) We make no comment as to the effectiveness or otherwise of the recognition agreement, or the quality of representation the pilots have received, other than to say we are satisfied it is not a sham. It was quite properly referred to by the Employer in its correspondence with the Union as well as being copied to them. The conditions set out in paragraph 35 of the Schedule apply irrespective of how the agreement operates in practice, so long as it is in force and complies with the definition set out therein.

49) The factual background to this application, as set out above, which includes a stated willingness by the Employer to engage with the Union and seek a resolution also does not impact on the effect of Paragraph 35 of the Schedule.

50) The Panel is therefore satisfied that there is already in force a collective agreement under which The British Medical Association (BMA); The FDA (FDA); Prospect; The Public and Commercial Services Union (PCS); Unite the Union (Unite); The University and College Union (UCU) is recognised as entitled to conduct collective bargaining on behalf of workers in the IPA’s proposed bargaining unit. The Panel therefore reject the Union’s application by virtue of paragraph 35 of the Schedule. It follows that it is unnecessary to consider the other provisions referred to at paragraph 7 of this decision.

11. Decision

51) The Union’s application is inadmissible under the provisions of paragraph 35 of the Schedule. The application is therefore not accepted by the CAC.

Panel

Mr Rohan Pirani

Mrs Lesley Mercer

Mrs Susan Jordan

07 November 2018