Decision

Recognition Decision

Updated 11 December 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1338(2023)

11 December 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

NUJ

and

Business Insider Europe Limited

1. Introduction

1)         The NUJ (the Union) submitted an application to the CAC on 15 June 2023 that it should be recognised for collective bargaining by Business Insider Europe Limited (the Employer) for a bargaining unit comprising the “Editorial, Social and Video staff”. The location of the proposed bargaining unit was 10 East Road, London, N1 6AD. The CAC gave both parties notice of receipt of the application on 15 June 2023.  The Employer submitted a response to the CAC dated 22 June 2023 which was copied to the Union.

2)         In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case.  The Panel consisted of Mr Rohan Pirani, Panel Chair, and, as Members, Mr Martin Kirke and Ms Anna Berry.  The Case Manager appointed to support the Panel was Kaniza Bibi.

3)         By a decision dated 6 July 2023 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. As no agreement was reached, the parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit.

4)         By a decision dated 24 July 2023 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. As no agreement was reached, the parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit. A hearing was held on 11 October 2023 in London and, in a decision promulgated on 31 October 2023, the Panel found that the appropriate bargaining unit was the Editorial, Social and Video staff but excluding the positions of: Deputy Editor, Deputy Executive Editor Senior Managing Producer, Deputy Executive Producer, Senior Managing Producer, Fellows, Supervising Producer, Managing Producer, Editor and Senior Editor.

5)         As the bargaining unit determined by the Panel differed from the Union’s proposed bargaining unit by the exclusion of senior roles, the Panel was required by paragraph 20 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application was valid in accordance with the tests stipulated in paragraphs 43 to 50.

6)        In its covering email that was sent at the time it submitted its list of names for the purpose of the check of membership and support for recognition pursuant to paragraph 45 of the Schedule, the Employer questioned whether the roles of Executive Editor, Copy Chief and Content Strategy Director, which were omitted in error from the correspondence submitted by both the Employer and the Union and which was considered by the CAC at the hearing on 11 October 2023, should also be excluded from the bargaining unit on the basis that they were also senior roles within the business.

7)         The Union, having had sight of the Employer’s email dated 12 November 2023 requested the CAC, pursuant to its power under section 264 of the Act, to interpret its decision as to whether the roles of Executive Editor, Copy Chief and Content Strategy Director, which were not referred to during the course of the bargaining unit hearing, should also be specially excluded from the determined bargaining unit in the same way that the determined bargaining unit specifically excluded the other senior roles that were identified during the course of the hearing.

8)         Under section 264(2) the CAC can decide a question of interpretation after hearing the parties, or if the parties’ consent, without a hearing.   By emails dated 23 November 2023 both parties confirmed that they were content for the Panel to deal with the matter without a hearing and the Panel proceeded accordingly.

9)         As a question had arisen as to the interpretation of the Panel’s decision dated 31 October 2023 on the bargaining unit, pursuant to section 264(2) of the Act, the Panel, in a decision dated 28 November 2023, decided that the following roles should be also specifically excluded: Executive Editor, Copy Chief and Content Strategy Director Editorial.  The appropriate bargaining unit was therefore the Editorial, Social and Video staff but excluding the positions of: Executive Editor, Copy Chief, Content Strategy Director, Deputy Editor, Deputy Executive Editor Senior Managing Producer, Deputy Executive Producer, Senior Managing Producer, Fellows, Supervising Producer, Managing Producer, Editor and Senior Editor.

10)       In a letter dated 28 November 2023 that accompanied the decision under section 264 the parties were informed that the Panel would continue in its assessment as to whether the application was valid in accordance with the tests set out in paragraphs 43 to 50 of the Schedule. 

11)       In a decision dated 5 December 2023 the Panel found that the application was valid for the purposes of paragraph 20 of the Schedule, and that the CAC must proceed with the application.  

2. Issues

12)       Paragraph 22 of the Schedule provides that, if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies.  Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled.  The three qualifying conditions are:

(i) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(ii) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

(iii) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf.

Paragraph 22(5) provides that “membership evidence” for these purposes is:

(a) evidence about the circumstances in which union members became members, or

(b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

3. The Union’s claim to majority membership and submission that it should be recognised without a ballot.

13)       In a letter dated 5 December 2023 the Union was asked by the CAC whether it claimed majority membership within the bargaining unit and, if so, whether it submitted that it should be granted recognition without a ballot. The Union, in an email dated 5 December 2023, stated that “I can confirm it is our understanding that more than 70% of those within the Bargaining Unit are members of the NUJ”.

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

14)       On 5 December 2023 the CAC copied the Union’s email of 5 December 2023 to the Employer and invited the Employer to make submissions in relation to the Union’s claim that it had majority membership within the bargaining unit and in relation to the three qualifying conditions specified in paragraph 22(4) of the Schedule.

15)       In response the Employer sent an email dated 7 December stating “We submit that Insider does not contest the NUJ’s claim to majority membership and in this context, we do not request that the CAC holds a ballot”. The Employer’s comments were cross copied on 7 December 2023.

5. Considerations

16)       The Schedule requires the Panel to consider whether it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union.  If the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Union, it must declare the Union to be recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit unless it decides that any of the three qualifying conditions set out in paragraph 22(4) is fulfilled.  If the Panel considers that any of those specific conditions is fulfilled, it must give notice to the parties that it intends to arrange for the holding of a secret ballot. 

17)       The membership and support check conducted on 9 November 2023 at the time the Panel had to determine whether the Union’s application was valid in accordance with the tests stipulated in paragraphs 43 to 50, had shown a membership level of 73.17%.  Since that date neither party has claimed that there have been any changes that could affect the density of membership within the determined bargaining unit. Accordingly, the Panel accepts that the majority of workers in the bargaining unit are members of the Union.

18)       The Panel has carefully considered the submissions of both parties and all the evidence in reaching its decision as to whether any of the qualifying conditions laid down in paragraph 22(4) of the Schedule is fulfilled.

Paragraph 22(4) (a)

19)       The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. In this case neither party has submitted evidence that holding a secret ballot would be in the interests of good industrial relations.  The Panel is therefore satisfied that this condition does not apply.

Paragraph 22(4) (b)

20)       The second condition is that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union to conduct collective bargaining on their behalf. The CAC has no such evidence, therefore this condition does not apply.

Paragraph 22(4) (c)

21)       The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union to conduct collective bargaining on their behalf.  No such evidence has been produced; therefore, this condition does not apply.

6. Declaration of recognition

22)       The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that a majority of the workers constituting the bargaining unit are members of the Union. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule is met. Pursuant to paragraph 22(2) of the Schedule, the CAC must therefore issue a declaration that the Union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising “the Editorial, Social and Video staff but excluding the positions of: Executive Editor, Copy Chief, Content Strategy Director, Deputy Editor, Deputy Executive Editor Senior Managing Producer, Deputy Executive Producer, Senior Managing Producer, Fellows, Supervising Producer, Managing Producer, Editor and Senior Editor”. 

Panel

Mr Rohan Pirani, Panel Chair

Mr Martin Kirke

Ms Anna Berry

11 December 2023