Decision

Ballot Decision

Updated 23 December 2020

Case Number: TUR1/1143(2019)

07 October 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER TO ARRANGE FOR THE HOLDING OF A SECRET BALLOT

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, as Panel Chair, and, as Members, Mr Simon Faiers, who was later replaced with Mr Derek Devereux, and Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Miss Sharmin Khan.

3) By a decision dated 3 January 2020 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, initially due to end on 31 January 2020 which was extended to 28 February 2020 to allow more time for negotiations between the parties.

4) On 24 February 2020 the Union notified the CAC by e-mail that its negotiations with the Employer had broken down and the parties would not reach agreement. The Union requested the Panel determined the matter of the appropriate bargaining unit. In order to assist the Panel with its determination, the CAC arranged a hearing to be held with the parties in London on 8 April 2020 and 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 in advance of the hearing date. This hearing could not proceed due to the COVID-19 pandemic.

5) After careful consideration of the parties’ written submissions regarding the appropriate bargaining unit and responding comments, the Panel concluded that it could go no further on the matter of determining the appropriate bargaining unit until a hearing had been held and the CAC informed the parties that a formal hearing would take place by video conference on 15 September 2020.

6) On 9 September 2020 the CAC received an e-mail from the Union in which it informed the CAC that the parties had reached an agreement. The Union stated that the agreed bargaining unit was that proposed by the Union but with the addition of the Digital Executive role. The Union also stated that it would waive its objection to a ballot and its argument that the CAC must issue a declaration that the Union should be recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit under para 22(2) of the Schedule by conceding that a ballot would be in the interests of good industrial relations pursuant to para 22(3) and para 22(4)(a) of Schedule A1 of the Act (the Schedule). The parties had also agreed that the revised and now agreed bargaining unit was subject to the CAC’s decision as to whether the Union’s application was still valid pursuant to paragraphs 45(1)(a) and 45(1)(b) of the Schedule. The Union stated that, if the Union’s application was deemed to still be valid by the CAC, the parties were in agreement that they should proceed to a ballot under paragraph 22 of the Schedule in the interests of good industrial relations. The Union had copied in the Employer who replied to the CAC on the same date confirming that it was in agreement with the Union’s application to vacate the hearing on the basis of the parties’ agreement as detailed in the Union’s e-mail.

7) As the agreed bargaining unit differed from that originally proposed by the Union in its application, the Panel was then required by paragraph 20 of the Schedule to determine whether the Union’s application is invalid within the terms of paragraph 43 to 50 of the Schedule.

8) By letter to the parties dated 9 September 2020 the parties were invited to submit their comments in respect of the validity tests set out in paragraph 43 to 50 of the Schedule.

9) The Employer responded by letter to the CAC dated 15 September 2020 which was prepared on behalf of both parties. The parties’ letter confirmed for the Panel that there was no existing recognition agreement covering any of the workers in the new bargaining unit; that there was no competing application from another union with respect to the workers in the new bargaining unit; and that there had been no previous application in respect of the new bargaining unit. The letter also stated that the Union confirmed there was 10% union membership within the new bargaining unit. However, it was not known whether the majority of the workers in the new bargaining unit were likely to favour recognition and this was one of the grounds on which the parties had requested a ballot. The letter also stated that the Union believed that there was a majority but the Employer did not believe this to be the case and both parties wanted the position to be tested.

10) Subsequently, by direction of the Panel and with agreement of both parties, an independent and confidential check of the level of membership in the new bargaining unit was conducted by the Case Manager. According to the Case Manager’s report (dated 22 September 2020), the number of Union members in the new bargaining unit was 11, a membership level of 69%. The Case Managers report of the check was issued to the parties and their comments invited on 22 September 2020.

11) The Union replied to the Case Manager by e-mail on the same date confirming that it had no further comments for the Panel. The Employer also replied by e-mail on the same date and confirmed that it did not wish to comment on the report of the check or the validity tests, noting that it had commented in the past that some Union members did not support recognition. The Employer also reiterated that it had agreed with the Union that recognition should be subject to a ballot of the workers in the proposed bargaining unit and it was on this basis that the Employer had agreed to the new bargaining unit. The parties had agreed to make that recommendation to CAC at the next stage.

12) By a decision made on 28 September 2020, the Panel’s decision was that the application was not invalid and that the CAC would proceed with the application.

13) By letter dated 29 September 2020, the Panel confirmed to the parties that according to the parties’ joint submissions to the Panel on 9 and 15 September 2020, the Panel’s understanding was that the parties had agreed that a ballot should be held in the interests of good industrial relations in accordance with paragraph 22(4)(a) of the Schedule and requested that, if the Panel’s understanding was not correct at this time, they should inform the CAC immediately. On 29 September 2020 both parties acknowledged receipt of the CAC’s letter to the Case Manager. Neither party informed the CAC that the Panel’s understanding was incorrect.

2. Issues for the Panel

14) 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:

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

• 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;

• 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.

15) Paragraph 22(5) states that “membership evidence” 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.

16) In reaching its decision on whether a secret ballot should be ordered in accordance with paragraph 22 of the Schedule, the Panel does not consider that it is automatically bound as such by the parties’ agreement between themselves, reached in connection with their agreement as to the applicable bargaining unit, to conclude that there should be a secret ballot in relation to this application. The Panel nonetheless acknowledges that it must of course take the parties’ representations into account. Notwithstanding the Union’s membership density of 69% in the bargaining unit, in light of the parties’ representations that there should be a secret ballot in the interest of good industrial relations, the Panel’s decision is that a secret ballot should take place as it is satisfied that it would be in the interests of good industrial relations for support for recognition to be tested in this way.

3. Decision

17) For the reasons provided above, the Panel’s decision is that a secret ballot should take place as it is satisfied that it would be in the interests of good industrial relations to do so. The Panel now gives notice pursuant to paragraph 22(3) of the Schedule, namely that it intends to arrange for the holding of a secret ballot in which the workers constituting the bargaining unit will be asked whether they want the Union to conduct collective bargaining on their behalf.

Panel

Mr Charles Wynn-Evans, Panel Chair

Mr Derek Devereux

Mr Paul Noon OBE

07 October 2020