Decision

Acceptance Decision

Updated 7 December 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1276/2022

30 June 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:

Independent Workers Union of Great Britain (IWGB)

and

RSA (The Royal Society for the Encouragement of the Arts, Manufactures and Commerce)

1. Introduction

1) IWGB (the Union) submitted an application to the CAC dated 8 June 2022 that it should be recognised for collective bargaining purposes by RSA (the Employer) for a bargaining unit comprising “all staff members of the RSA (including permanent, temporary and fixed-term staff and paid interns), apart from the Senior Management Team (consisting at time of writing of the Chief Executive, Chief Operating Officer, incoming Chief Impact Officer and the eight directors).” The location of the bargaining unit was given as The Royal Society for the Encouragement of the Arts, Manufacturers and Commerce, 8 John Adam Street London, WC2N 6EZ. The application was received by the CAC on 9 June 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 16 June 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 Mr Tariq Sadiq, Panel Chair, and, as Members, Mr Martin Kirke and Mr David Coats. 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 23 June 2022. The acceptance period was extended until 30 June 2022 to allow the parties to comment on the results of a membership check and for the Panel to consider these 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 10 March 2022. The Union said that the Employer had responded on 24 March 2022 requesting that the IWGB provide answers to a series of questions. It stated that the Employer had refused the application on the basis that it was not reassured that the IWGB would be able to best represent the interests of the workers at RSA. A copy of the Union’s request letter of 10 March 2022, together with the Employers response dated 24th March was 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 was 122. The Union stated that there were 113 workers in the proposed bargaining unit, of whom 68 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 “68 are Union members – this constitutes more than 50% of the bargaining unit. In addition there is a petition that has been submitted to the RSA with 80 signatures of workers supporting recognition for collective bargaining.” The Union attached a copy to its application but did not seek to rely on it as part of the membership and support check carried out.

8) The Union stated that the reason for selecting the proposed bargaining unit was that “the workers in the bargaining unit are under the control and direction of RSA and their primary location is RSA’s headquarters. The bargaining unit comprises of all workers except for senior management. The choice of the bargaining unit is practical and reasonable, because the workers all have similar terms and conditions, are subject to the same control and management procedures and all work at the same primary location.” 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 of which it was aware 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 8 June 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 10 March 2022. It added that additional requests were received on 29 March 2022, 14 April 2022 and 12 May 2022. The Employer said that it had responded in writing each time, and in its letters requested further information. It enclosed copies of its responses dated 24 March 2022, 1 April 2022, 29 April 2022 and 26 May 2022. In its final letter dated 26 May 2022 the Employer stated “I remain firmly of the view that recognising your union would not be in the best interests of the RSA or its people, or compatible with effective management. Your latest recognition request, like your previous requests, is therefore declined.”

11) The Employer said that it was copied into the application to the CAC in an email from the Union on 8th June 2022. 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 said “we do not consider the proposed bargaining unit to be consistent with effective management or to be in the best interests of the RSA or its staff. Our reasons are summarised in our correspondence with the Union. They will be set out in more detail if the CAC Panel decides that the Union’s application is admissible.”

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

12) The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as defined in the Union’s application. It added “we believe it is currently 112, which is our total number of staff minus casuals (5) and the Executive team (9). The figures do change from week-to-week due to recruitment and attrition (i.e. normal staff turnover).” 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 think it is unlikely to be accurate because, since the union’s original application for recognition, we have had significant staff turnover. It is likely that some of these leavers were union members. We have a further 4 staff due to leave within the next month. We have received no evidence from the union to support its membership claim.”

14) 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 “We do not consider that the majority of those who work in the proposed bargaining unit are likely to support recognition once: (1) they have had sufficient time to consider on a fully informed and objective basis the RSA’s latest communications, including on a wide range of key strategic and staffing issues as a result of the recent arrival of a new CEO, and the associated relative advantages and disadvantages of recognition; (2) we have had a sufficient opportunity to clear up the confusion caused by the circulation of various communications from a self-appointed group of employees describing themselves as ‘the RSA Union’ and the misleading impression they have unfortunately created that it is the RSA Union and not the IWGB Union who would be granted statutory recognition rights if the IWGB’s application to the CAC is successful; and (3) workers in the proposed bargaining unit have digested and had sufficient time to consider on a properly informed basis the Union’s recent complicity in breaches of legal obligations in relation to data privacy and confidential information, and the implications these breaches have for its reliability, integrity, and suitability as a fit and proper organisation for collective bargaining purposes - especially in view of the Union’s very limited personnel and resources, the privacy and sensitivity of pay data, the confidentiality which handling such data necessarily entails, and the Union’s failures to date to provide any satisfactory explanation or reassurance in relation to these matters. Despite repeated requests for information about how the interests of staff (and especially non-IWGB staff) would be understood, protected and represented in the event of recognition, virtually no information has been provided. The Union has also failed to provide the RSA with a range of other requested information which we believe to be important in judging whether Union recognition is in the best interests of the RSA. This includes any information on the issues, specific to the RSA, that the Union believes recognition would help tackle. So, as well as having serious concerns about the democratic accountability of the Union, and the degree to which it can validly reflect and represent staff views and interests, we also have serious concerns about its transparency, professionalism, competence and, latterly, the legality of some of its actions. We reserve the right to expand on the above grounds and to add further grounds if the CAC Panel decides that the Union’s application is admissible.”

15) The Employer answered “not aware” 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. But, as mentioned above, there appears to be considerable confusion and misunderstanding among staff caused by the group of employees who are calling themselves the ‘RSA Union’. They are corresponding with us separately to the IWGB, and also communicating with the RSA direct. Despite our requests for information, their role and the basis on which they are self-appointed, or chosen by the Union, or elected by members of staff, remains unclear. It is difficult to understand the reasons for the RSA Union’s reticence. Their failure to communicate candidly and effectively is not a helpful characteristic for a group which appears to be seeking to acquire (for reasons not yet explained) the exclusive legal right to negotiate and agree the pay of their colleagues.”

5. Clarification by the Union on points raised by the Employer

16) In Paragraph 15 above when asked if it had received any other applications in respect of workers in the proposed bargaining unit the Employer stated that there appeared to be considerable confusion and misunderstanding among staff caused by the group of employees who were calling themselves the ‘RSA Union’. The Panel felt it was important to ask the Union to clarify the reference to the RSA Union. The Union responded to the Case Manager on 24 June 2022 stating “members of the IWGB have also named themselves the ‘RSA’ Union and whilst it is true they have created an email (RSAunion@gmail.com) to send the petition in support of recognition with the IWGB to the employer directly, they have always made it clear they belong to the IWGB and that the union they wish to be recognised is the IWGB. The employer knows this but it is nonetheless using this in order to create confusion. To be clear, the employer has not received another request for recognition from another union other than the IWGB. The ‘RSA union’ is not a registered and independent union and it reflects only the denomination adopted by the employees (members of the union) to directly and collectively communicate with the employer.” In reply by way of e mail dated 29 June 2022 the Employer stated that it still felt there was considerable confusion around what the ‘RSA Union’ was. It said “the petition referred to was sent to all staff, and the RSA’s Chief Executive by ‘the RSA Union’.  It is also signed off as from the ‘RSA Union’; It has not been made clear in various ‘RSA Union’ correspondence with the RSA that they are speaking on behalf of IWGB.”

6. The membership and support check

17) To assist in 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 and dates of birth. The Union informed the case manager that it did not wish to rely on an undated letter previously sent to the Employer and attached to its CAC application which contained a list of typed names at the bottom. 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 20 June 2022 from the Case Manager to both parties.

18) The information requested from the Union was received by the CAC on 20 June 2022 and from the Employer on 22 June 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 110 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 67 names. According to the Case Manager’s report the number of members of the Union in the proposed bargaining unit was 62, a membership level of 56.36%.

20) A report of the result of the membership and support check was circulated to the Panel and the parties on 23 June 2022 and the parties were invited to comment on the results by close of business on 27 June 2022.

7. Summary of the Union’s comments following the membership check

21) In an email to the Case Manager dated 23 June 2022 the Union stated that it had no comments to make.

8. Summary of the Employer’s comments following the membership check

22) In a response dated 27 June 2022 the Employer accepted that the test in paragraph 36(a) of the Schedule was satisfied. It went on to address the question of whether the admissibility test in paragraph 36(b) was satisfied – namely, whether a majority of the workers constituting the relevant bargaining unit would be likely to favour recognition of IWGB as entitled to conduct collective bargaining on behalf of the bargaining unit. The Employer stated that it did not consider that a majority of workers in the proposed bargaining unit would be likely to favour such recognition. It stated that senior management had been given direct feedback from at least 10 separate individuals who shared some or all of senior management’s concerns about IWGB’s transparency, professionalism, resources, competence, and the legality of its actions – especially IWGB’s involvement (for apparently deliberate and self-serving reasons) in recent data privacy and confidentiality breaches – breaches which the Employer stated cast serious doubt over the Union’s reliability, integrity, and suitability as a fit and proper organisation for collective bargaining purposes.

23) It went on to state that the Union had failed to supply meaningful and relevant information, and this had been commented on by staff in confidence. It stated that the Union (despite repeated requests) had failed to provide a detailed, coherent and plausible explanation: “(1) of how, in the event of recognition, the interests of all workers would be understood, protected and represented (whether members of IWGB or not); (2) of how workers would be represented accurately, fairly and effectively; (3) of how RSA (The royal society for arts, manufactures and commerce) 8 John Adam Street, London, WC2N 6EZ. Registered charity in England and Wales no. 212424 and Scotland no. SC037784. IWGB would provide satisfactory levels of transparency and accountability; (4) and of why IWGB considers recognition to be in the best interests of workers. There is also little evidence to suggest that IWGB has made sufficient efforts to gain a sound understanding of the nature and scope of the RSA’s operations or of its constitution, constraints, and main objectives as a charity. Those members of staff who have so far expressed support for recognition have not done so therefore on a properly informed basis, and some have in the RSA’s view been misled.”

24) The Employer added that considerable confusion has been caused by the appearance of a group of RSA employees calling themselves the RSA Union. It stated that this had given staff the misleading impression that it was the RSA Union and not IWGB that would be recognised and that such recognition would extend “well beyond the important but narrow range of matters actually covered by statutory recognition.” It stated “they are corresponding with us separately to, but seemingly in partnership with, IWGB – although this is not transparent in their correspondence, which we feel is misleading. They are also communicating with RSA staff direct. Despite our requests for information, their role and the basis on which they are self-appointed, or are chosen by the Union, or are elected by members of staff, remains unclear. They lack any obvious transparency or democratic accountability and this lack of clarity helps nobody.”

25) The Employer concluded by saying that neither the IWGB or the RSA Union had provided any meaningful and relevant information about issues specific to the RSA or explained the advantages and goals of recognition. It stated that the IWGB and the RSA Union had misrepresented the reality of union recognition for collective bargaining purposes by suggesting to staff that recognition gave the union automatic rights to talk formally to the RSA about issues well outside the legal scope of pay, holidays and benefits.

9. Considerations

26) 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.

27) 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(1) states that paragraph 11 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 24 March 2022, indicated a willingness to negotiate on the part of the Employer. The Panel therefore considers that paragraph 11 applies.

28) 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.

29) 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)

30) 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 17-20 above) showed that 56.36% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 17 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)

31) 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 30 above the Panel has concluded that the level of union membership within the bargaining unit stands at 56.36% The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union.

32) The Employer mentioned in its response to the membership check dated 27 June 2022 that it did not consider that a majority of workers in the proposed bargaining unit would be likely to favour such recognition. It stated that senior management had been given direct feedback from at least 10 separate individuals who shared some or all of senior management’s concerns. The Panel has received no evidence from Union members or non-members within the bargaining unit to this effect. Similarly, the Panel has received no evidence that those members of staff who have so far expressed support for recognition were misled into doing so.

33) 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.

10. Decision

34) For the reasons given in paragraphs 26-33 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Tariq Sadiq, Panel Chair

Mr Martin Kirke

Mr David Coats

30 June 2022