Decision

Validity Decision

Updated 7 December 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1276(2022)

3 October 2022

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

AGREEMENT OF THE BARGAINING UNIT

The Parties:

Independent Workers’ Union of Great Britain (IWGB)

and

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) By a decision dated 30 June 2022 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. On 9 September 2022 the parties notified the CAC that they had reached an agreement as to the appropriate bargaining unit and this was: “all staff, including casual staff (but only those who are engaged by the employer as employees) and excluding Heads of Teams, the HR team (HRBP and HR Coordinator) and Staff at Director level and above.” This differed from the original bargaining unit proposed by the Union.

2. Issues

4) As the bargaining unit agreed by the parties differed from that proposed by the Union, paragraph 20 of Schedule A1 to the Act (the Schedule) requires the Panel to decide whether the Union’s application is valid within the terms of paragraphs 43 to 50 the Schedule. The matters that the Panel must consider are: -

• is there an existing recognition agreement covering any of the workers within the new bargaining unit? (paragraph 44)

• is there 10% union membership within the new bargaining unit? (paragraph 45(a))

• are the majority of the workers in the new bargaining unit likely to favour recognition? (paragraph 45(b))

• is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? (paragraph 46)

• has there been a previous application in respect of the new bargaining unit? (paragraphs 47 to 49)

5) In a letter dated 9 September 2022 the Panel invited the parties to make submissions on these matters for consideration by the Panel.

3. Views of the Union

6) In an email dated 12 September 2022 the Union advised that:

• It was not aware that there was an existing recognition agreement covering any of the workers within the new bargaining unit or a competing application from another union;

• That there had been no previous application made in relation to the new bargaining unit;

• In relation to the 10% membership and the likelihood of support the Union said that for the purposes of the last membership check the Employer had supplied a list of 110 workers out of which 62 were Union members. The Union stated that the new total of workers in the agreed bargaining unit stood at around 88. It went on to say that a further membership check would provide a figure of around 56%. Furthermore, it stated that even if the Union was wrong by a margin of five (5) employees, the membership would still provide a figure of 50% which would satisfy both the 10% membership density test and the likelihood of support.

4. Views of the Employer

7) In a letter dated 12 September 2022 the Employer advised that the new proposed bargaining unit differed significantly to that in the Union’s original application as it now excluded three (3) workers in the HR team, Heads of Team community, which at the time of writing comprised 22 staff, and included casual staff (staff employed through zero hours contracts and paid via the RSA payroll) which at the time of writing comprised five (5) people. The Employer went on to state that it strongly advocated for a further membership check of workers within the agreed bargaining unit as given the modest size of its staff team, the additions and exclusions were significant and likely to affect membership levels. The Employer estimated that the agreed bargaining unit comprised of around 86 workers as compared to the previous bargaining unit proposed by the Union, which comprised of 110 workers. Furthermore, the Employer stated that since the Union’s application to the CAC on 9 June 2022, it had seen significant staff turnover. The Employer added that the current staff body was made up of different people to those employed at the time of the initial application, therefore, it was likely that membership levels would have changed. Finally, the Employer stated that “the Union’s petition dated April 2022 which they used as evidence to suggest majority support was now markedly out-of-date given levels of staff churn. We believe signatures for this petition may have been obtained without the signatories being in full possession of the facts. This together with the demonstrable time-lag highlights that further checks of union support are required.” ^{[footnote 1]}

5. Membership and support check

8) To assist the determination of two of the validity tests specified in the Schedule, namely whether 10% of the workers in the agreed bargaining unit are members of the Union (paragraph 45(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 45(b)), the Panel proposed an independent check of the level of union membership within the agreed bargaining unit and of a petition compiled by 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 agreed bargaining unit, and that the Union would supply to the Case Manager a list of its paid up members within that unit (including their dates of birth) and a copy of the petition signed by workers in favour of recognition. It was explicitly agreed with both the 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 September 2022 from the Case Manager to both parties.

9) The information from the Union was received by the CAC on 15 September 2022 and from the Employer on 22 September 2022. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

10) The list supplied by the Employer indicated that there were 90 workers in the agreed bargaining unit. The list of members supplied by the Union contained 47 names. According to the Case Manager’s report, the number of Union members in the agreed bargaining unit was 43, a membership level of 47.78%.

11) The Union also provided a petition. which consisted of five sheets of A4 paper. The first sheet contained a header with the RSA and Union banners, was dated 14 June 2022, and was set out as follows:

“Dear Andy,

We are writing this letter to reiterate our call for you to recognise our workplace union, made up of a majority of staff members from across the RSA, by responding positively to the formal request for recognition made by the Independent Workers Union of Great Britain on 10 March 2022.

The RSA is committed to a future where all can participate in its creation. We promote democratic participation and celebrate the crucial role of unions in securing good work for all. By recognising our union, we believe that together we can strengthen the RSA’s internal democracy, its charitable mission and our commitment to one RSA.

We have been openly and transparently exploring a union within the RSA over the last two years, sharing in many staff spaces. We are proud that, as of today, 65 members of RSA staff are members of IWGB – and these IWGB members are joined by other staff members in supporting this request for voluntary recognition. Voluntary recognition is in our own best interests as staff, it is in the best interests of the organisation and it is fundamental to the RSA’s vision and values, enabling us to build positive internal relationships based on trust and accountability.

We politely request that you respond to this letter within two weeks of receiving it and hope we can start the process for formal trade union recognition, on a voluntary basis, shortly thereafter.

Signed (listed alphabetically).”

This was followed by two columns on each sheet of A4. The first column contained a printed name and the second a signed signature. The date on which the individual name / signature was added was not provided.

12) In an e mail to the Case Manager dated 15 September the Union explained how the names and signatures had been added stating: “The petition has not been electronically signed and it has been signed manually by the members. The difference in format is that there were various copies used and all the signatures were then put into one document”. The Union went on to add “one version was used to collect all the signatures in the office and individual copies were sent to those working remotely and then all of them were put into the version provided.”

13) The check of the Union’s petition showed that 56.67% of the workers in the agreed bargaining unit (51 out of 90 workers) had signed the petition in support of recognition of the Union. Of those who had signed the petition, 38 were Union members (42.22% of the agreed bargaining unit) and 13 were non-members (14.44% of the agreed bargaining unit).

14) A report of the result of the membership and support check was circulated to the Panel and the parties on 23 September 2022 and the parties were invited to comment on the results of that check by noon on 28 September 2022.

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

15) In an email to the Case Manager dated 26 September 2022 the Union stated that there had been a high turnover of staff since the petition in June and the bargaining unit was now different to the one originally proposed. The Union added that it did not have any evidence or information to suggest that names were added to the petition after June and concluded by saying that it did not have any further comments on the new validity check report.

16) In a letter to the Case Manager dated 28 September 2022 the Employer did not seek to challenge the fact that the test in Paragraph 45(a) of the Schedule had been met. In relation to Paragraph 45(b) of the Schedule the Employer stated that there was less than 50% membership in the agreed bargaining unit, evidenced by the most recent report by the CAC that membership was 47.78%. It added that due to ongoing recruitment for positions within the agreed bargaining unit it would have the effect of bringing down the proportion of those within the agreed bargaining unit who were Union members. It went on to say that those workers who had so far expressed support for recognition had not done so on a properly informed basis, and in its view had been misled.

17) In relation to the petition the Employer stated that it believed that staff had signed the petition under various misunderstandings about the role of the Union and the benefits of Union recognition. It added that in any event, the petition was now significantly out-of-date, given the time-lapse between the petition and the present day, the staff turnover and the changing perception of IWGB’s professionalism and competence. The Employer concluded by saying that it believed that IWGB had failed to demonstrate that a majority of the workers in the agreed bargaining unit would be likely to favour recognition of IWGB as entitled to conduct collective bargaining on their behalf. Furthermore, the Employer believed that if asked to express their preference (1) on a fully and properly informed basis and (2) in a secret ballot, a clear majority of workers in the agreed bargaining unit would not vote in favour of the statutory recognition of IWGB.

7. Considerations

18) The Panel must decide whether the Union’s application is valid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision the Panel has considered the parties’ submissions and the other evidence before it. The following matters are not disputed:

• there is no existing recognition agreement covering any of the workers within the agreed bargaining unit;

• there is no competing application from another union; and

• there has been no previous application in respect of the agreed bargaining unit.

19) The remaining issues for the Panel to decide are whether the validity criteria contained in paragraphs 45(a) and (b) are met.

8. Paragraph 45(a)

20) Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the Union constitute at least 10 per cent of the workers in the agreed bargaining unit. The membership check conducted by the Case Manager (described in paragraphs 8 to 14 above) showed that 47.78% of the workers in the agreed bargaining unit were members of the Union. As stated in paragraph 9 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 agreed bargaining unit as required by paragraph 45(a) of the Schedule.

9. Paragraph 45(b)

21) Paragraph 45(b) provides that the application in question is invalid unless the CAC decides that a majority of the workers constituting the bargaining unit agreed by the parties would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit. The Panel notes that the support check conducted by the Case Manager showed that 56.67% of the workers in the agreed bargaining unit (51 out of 90 workers) had signed the petition in support of recognition of the Union (see paragraph 13 above). Of those who had signed the petition, 38 were Union members (42.22% of the agreed bargaining unit) and 13 were non-members (14.44% of the agreed bargaining unit). The Panel has seen no evidence to support the Employer’s assertion that petition signatures were obtained without the signatories being in full possession of the facts. The Panel considers that, in the absence of evidence to the contrary, the support check provides sufficient evidence of the views of workers in the agreed bargaining unit as to whether they would be likely to favour recognition of the Union, as required by paragraph 45(b) of the Schedule.

10. Decision

22) For the reasons given in paragraphs 18 - 21 above, the Panel’s decision is that the application is valid for the purposes of paragraph 20 of the Schedule and the CAC must proceed with the application.

Panel

Mr Tariq Sadiq, Panel Chair

Mr Martin Kirke

Mr David Coats

3 October 2022

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1. In the original application the Union referred to a petition. The Union did not seek to rely on the petition for the purposes of the first membership and support check dated 23 June 2022.The report prepared by the Case Manager was based solely on a direct comparison of the list of workers in the proposed bargaining unit provided by the Employer, and the list of Union members who fell within the proposed bargaining unit. ↩