Decision

Acceptance Decision

Updated 23 December 2020

Case Number: TUR1/1143(2019)

3 January 2020

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:

NUJ

and

Cogora Limited

1. Introduction

1) NUJ (the Union) submitted an application, dated 8 November 2019 and received by the CAC on 11 November 2019, that it should be recognised for collective bargaining by Cogora Limited (the Employer) in respect of a bargaining unit comprising the “Editorial Department workers working on the Cogora Media brands, namely: Pulse, Nursing in Practice, Hospital Pharmacy Europe, Hospital Healthcare Europe, Healthcare Leader, Management in Practice, and The Pharmacist”. The CAC gave both parties notice of receipt of the application on 12 November 2019. The Employer submitted a response to the CAC dated 18 November 2019 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 Chairman established a Panel to deal with the case. The Panel consisted of Mr Charles Wynn-Evans, Chairman of the Panel, and, as Members, Mr Simon Faiers and Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Miss Sharmin Khan.

2. Issues

3) 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. The Union’s application

4) In its application the Union stated that it had made an informal written request for recognition on 4 July 2019 and a formal written request for recognition under the Schedule on 19 September 2019, to which the Employer responded with a refusal to enter voluntary recognition talks. A copy of this correspondence was enclosed with the Union’s application.

5) According to the Union, a total of 72 workers were employed by the Employer, 17 of whom fell within the proposed bargaining unit. The Union stated that, of the 17 workers in the proposed bargaining unit, 10 were Union members. When asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated that it would present this information for checking by an independent third party, and subject to strictest confidentiality.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated as follows: “This group of workers carry out similar work on similar products in the division of Cogora’s business which produces magazines (and related products). Their work is unique within the business. They are paid according to a common system of monthly salary and have no entitlement to commission payments. They all qualify for membership of the NUJ under our admissibility criteria. The definition of the bargaining unit is compatible with effective management, as all members of the bargaining unit are subject to a linear reporting structure and are controlled by the same senior managers. There are no existing local bargaining arrangements at the company. As a group of 17 workers in a single business unit within an overall company structure of around 72, the bargaining unit could not reasonably be called small or fragmented. There has, to our knowledge, been no attempt to gain union recognition for workers outside our bargaining unit, so the development of further bargaining units seems unlikely. All members of the bargaining unit are based in Cogora’s office on London Wall.” The Union confirmed that the bargaining unit had not been agreed with the Employer.

7) The Union also stated there had been no previous application in respect of this or a similar bargaining unit and there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

4. The Employer’s response to the Union’s application

8) The Employer confirmed that it had received the Union’s formal request for recognition on 19 September 2019. When asked how it had responded, the Employer stated that it had spoken to staff but had not provided a response in writing to the Union. When asked whether, following receipt of the Union’s request, the Employer had proposed that Acas be requested to assist, the Employer answered “No”. The Employer also confirmed that it had received a copy of the application form directly from the Union on 11 November 2019.

9) The Employer answered “No” when asked if it and the Union had agreed the proposed bargaining unit before it had received a copy of the Union’s application. When asked if it agreed with the Union’s proposed bargaining unit, the Employer also answered “No” stating that “The proposed bargaining unit should include nine colleagues from the Design and Digital teams and four employees referred to as Medical Writers who all undertake work in the same way as the Editorial Team proposed by the NUJ”.

10) The Employer stated that it employed 77 workers. The Employer stated that it did not agree with the Union’s figure as to the number of workers in the proposed bargaining unit defined in the Union’s application, explaining that there were currently 18 workers as there was a new starter that week.

11) When asked if it agreed with the Union’s estimate of membership within the proposed bargaining unit, the Employer answered that it did not have any comment as it did not know who was and who was not a Union member. When also asked to give reasons if it did not consider that a majority of the workers in the proposed bargaining unit were likely to support recognition, the Employer again answered that it could not comment.

12) The Employer also confirmed that there was no recognition agreement in place covering any of the workers in the proposed bargaining unit and that it was not aware of any previous application under the Schedule by the Union in respect of this or similar bargaining unit.

5. Case Manager’s membership check

13) 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 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, addresses and dates of birth. 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 November 2019 from the Case Manager to both parties. The information from the Union was received on 25 November 2019 and from the Employer on 21 November 2019.

14) The Employer provided a list of the agreed details for 17 workers in the proposed bargaining unit. The job titles appearing on the list were: “Group Editor”, Editor, Pulse”, “Editor-in-Chief, Pharmacy”, “Deputy News Editor”, “Deputy Editor Pulse”, “News Editor Pulse”, “Art Director”, “Features Assistant”, “Digital Executive”, “Content Director”, “Clinical Features Editor”, 2 x “Editors” and 4 x “Reporters”. The Union provided a list with the agreed details of 11 of its fully paid up members.

15) The Case Manager’s checks established that all 11 Union members were in the proposed bargaining unit of 17 workers, a membership level of 65%. The Case Manager’s report of the membership check was circulated to the Panel and to the parties for their comments on 27 November 2019. The Panel was satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

6. Parties’ comments on the membership check report

16) In response to the report of the Case Manager’s checks, by letter to the CAC dated 29 November 2019 the Employer confirmed that the number of workers in the proposed bargaining unit was 17. The Employer also confirmed that, if the Union was willing, it would be willing for Acas to assist the parties to reach a voluntary recognition agreement. The Employer also confirmed that at this stage its main issue was that it believed that the Union’s proposed bargaining unit was not appropriate.

17) In response to the report of the Case Manager’s checks by letter to the CAC dated 2 December 2019, the Union informed the Panel that it had noted the job titles included by the Employer in its list of workers in the proposed bargaining unit but that it disputed the Employer’s categorisation of job titles. The Union stated that it reserved the right to refer to this categorisation at a later stage in the application process, conscious that the information the Employer provided to the Union and the CAC must be as accurate as is reasonably practicable considering the information in the Employer’s possession at the time. The Union also requested that the Employer provide it and the CAC with coloured diagrams reflecting the purported job titles and how this was reflected in the Employer’s corporate structure.

18) The parties’ comments on the report were cross copied between the parties. In reply to the Union’s comments of 2 December 2019, by e-mail to the CAC dated 5 December 2019, the Employer stated that it had verified the job titles supplied to the CAC for the check and confirmed that they were correct, but it was interested to learn on what basis the Union was disputing them.

19) In its letter to the CAC dated 17 December 2019, the Union confirmed that it was willing to approach Acas whether in relation to the relevant bargaining unit or exploring a voluntary recognition agreement. However, it wished to reserve its position on which job titles the Employer had listed were within the proposed bargaining unit in light of the proposed Acas talks and pending clarification of the Employer’s corporate structure as requested by it in its letter to the CAC dated 2 December 2019. The Union’s position was that the production by the Employer of an organisational chart which reflected the purported job titles in the Cogora corporate structure, which could be an elaboration of the coloured diagram evident on the Employer’s webpage, would assist. In summary the Union was prepared to enter talks with Acas but required the Employer to provide it with the appropriate factual information to make it a worthwhile exercise. The Union was happy to engage in talks with Acas to move matters forward and the provision of the information from the Employer would assist the parties in doing so. The Union also confirmed in an e-mail to the CAC dated 18 December 2019 that the job title of “Digital Executive” was not relevant to its proposed bargaining unit.

7. Considerations

20) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

21) The Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 and that it was made in accordance with paragraph 11(2) of the Schedule in that, before the end of the first period of 10 working-days following the Employer’s receipt of the request for recognition, the Employer did not respond to the request. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

8. Paragraph 36(1)(a)

22) In accordance with paragraph 36(1)(a) of the Schedule, the Panel must determine whether members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit. The membership check conducted by the Case Manager established that 65% of the workers in the proposed bargaining unit were members of the Union. As stated above in paragraph 15, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. It is therefore clear to the Panel 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 and that this admissibility criterion is satisfied.

9. Paragraph 36(1)(b)

23) The test in paragraph 36(1)(b) is whether 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 proposed bargaining unit. The Employer did not oppose this assertion by the Union in its application, neither did it provide any evidence to the contrary. Though there was exchange between the parties regarding the understanding of how job roles in the Employer’s corporate structure mapped on to the roles the Union included in its proposed bargaining unit, the number of Union members was not disputed by the Employer.

24) In view of the above and in the absence of any evidence to the contrary, the Panel considers that the level of Union membership within the proposed bargaining unit provides a legitimate indicator as to the degree of likely support for recognition of the Union for collective bargaining. As the level of Union membership within the proposed bargaining unit stands at 65%, as verified by the Case Manager’s membership checks, the Panel is satisfied that, on balance, a majority of the workers in the bargaining unit would be likely to support recognition of the Union and the test set out in paragraph 36(1)(b) is therefore met.

10. Decision

25) For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Charles Wynn-Evans, Chairman of the Panel

Mr Simon Faiers

Mr Paul Noon OBE

03 January 2020