Decision

Validity Decision

Updated 23 December 2020

Case Number: TUR1/1143(2019)

28 SEPTEMBER 2020

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 ON THE BARGAINING UNIT

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 03 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 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) ^{[footnote 1]}. 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.

2. Issues

7) As the agreed bargaining unit differed from that originally proposed by the Union in its application, the Panel is 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. The tests set out in paragraph 43 to 50 that the Panel must consider are:

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

• is there 10% union membership within the new bargaining unit?

• are the majority of the workers in the new bargaining unit likely to favour recognition?

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

• has there been a previous application in respect of the new bargaining unit?

3. Summary of the parties’ submissions

(2) The CAC must issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit.

(3) But if any of the three qualifying conditions is fulfilled, instead of issuing a declaration under sub-paragraph (2) the CAC must give notice to the parties that it intends to arrange for the holding of a secret ballot in which the workers constituting the bargaining unit are asked whether they want the union (or unions) to conduct collective bargaining on their behalf.

(4) These are the three qualifying conditions- (a) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;…”

8) In the CAC’s letter of 9 September 2020 the parties were asked if the Panel’s understanding of the agreed bargaining unit was correct. The parties were also invited to submit their comments in respect of the validity tests set out in paragraph 43 to 50 of the Schedule.

9) The Employer submitted a letter dated 15 September 2020 to the CAC which was prepared on behalf of both parties. The letter confirmed that the Panel’s understanding of the agreed bargaining unit was correct namely:

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 – including the following job roles:

• Deputy Editor

• Group Editor

• Digital Executive

• Editor, Pulse

• Reporter, Nursing in Practice

• News Editor, Pulse

• Deputy Editor, Pulse

• Reporter, Healthcare Leader and Management in Practice

• Reporter, Pulse

• Features Assistant, Pulse

• Content Director, Secondary Care

• Editor, Pulse Intelligence

• Editor-in-Chief, Nursing in Practice, The Pharmacist, Healthcare Leader, Management in Practice, Hospital Pharmacy Europe, Hospital Healthcare Europe, Pulse Learning

• Reporter, Management in Practice and The Pharmacist

• Editor, Nursing in Practice

• Art Director

10) In response to the Panel’s questions regarding the validity of the new agreed bargaining unit, the both parties submitted 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.

11) 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.

4. The membership check

12) To assist the determination of two of the admissibility 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. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, addresses, 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 names, addresses and dates of birth (where possible). It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 17 September 2020 from the Case Manager to both parties. The information was received from the Union on 17 September 2020 and from the Employer on 18 September 2020. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

13) The list supplied by the Employer indicated that there were 16 workers in the agreed bargaining unit. The list of members supplied by the Union contained 11 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 11, a membership level of 69%.

14) A report of the result of the membership check was circulated to the Panel and the parties on 22 September 2020 and the parties were invited to comment on the results of the check.

15) The Union replied to the Case Manager by e-mail on the same date confirming that it had no further comments for the Panel.

16) The Employer also replied by e-mail on the same date and confirmed that it did not wish to comment on the check or the validity tests report, 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 bargaining unit. The parties had agreed to make that recommendation to CAC at the next stage.

5. Considerations

17) The Panel is required to decide whether the Union’s application is invalid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision the Panel has considered carefully the submissions of the parties and all the other evidence before it. On the evidence before it the Panel is satisfied that there is no competing application from another union; that there has been no previous application in respect of the agreed bargaining unit; and that there is no existing recognition agreement covering any of the workers within the agreed bargaining unit. The remaining issue for the Panel to decide is whether the application is invalid under paragraph 45 of the Schedule.

6. Paragraph 45(a)

18) Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the union constitute at least 10% of the workers in the agreed bargaining unit. The membership check conducted by the Case Manager (described in paragraphs 13 and 14 above) showed that 69% of the workers in the agreed bargaining unit were members of the Union. As stated in paragraph 13 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. The Panel therefore considers that the 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.

7. Paragraph 45(b)

19) Under paragraph 45(b) of the Schedule, an application is invalid unless the Panel decides that a majority of the workers constituting 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. Following the results of the Case Manager’s membership check, the Panel has notes that the level of Union membership within the agreed bargaining unit is 69%. In its industrial relations experience, the Panel considers that the level of trade union membership within a bargaining unit provides a legitimate indicator of the views of the workers in the agreed bargaining unit as to whether they would be likely to favour recognition of the Union. The Panel has not received any evidence to the contrary in this case indicating that a majority of the workers constituting the agreed bargaining unit would be likely not to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit. It is also the experience of the Panel that there will be workers who are not members of the Union who would be likely to favour recognition of the Union. The Panel has therefore decided that with the evidence it has before it, on the balance of probabilities, 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, as required by paragraph 45(b) of the Schedule.

8. Decision

20) For the reasons given in paragraphs 18 to 20 above, the Panel’s decision is that the application is not invalid and that the CAC will proceed with the application.

Panel

Mr Charles Wynn-Evans, Panel Chair

Mr Derek Devereux

Mr Paul Noon OBE

28 September 2020

1. Par. 22(1)(b) of the Schedule states that if “…the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union (or unions). ↩