Decision

Acceptance Decision

Updated 9 December 2020

Case Number: TUR1/1186/2020

08 December 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

Iran International (owned by Volant Media UK Ltd)

1. Introduction

1) NUJ (the Union) submitted an application to the CAC dated 22 July 2020 that it should be recognised for collective bargaining purposes by Iran International (owned by Volant Media UK Ltd (the Employer)) for a bargaining unit described as “All editorial staff currently working at Iran International, owned by Volant Media UK Ltd”. The application was received by the CAC on 22 July 2020 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted a response to the CAC dated 29 July 2020 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 Ms Naeema Choudry, Panel Chair, and, as Members, Mrs Susan Jordan and Mr David Coats. The Case Manager appointed to support the Panel was Kate Norgate.

3) The Panel extended the period for it to decide if the Union’s application was admissible on a number of occasions to allow time for the Panel to consider its decision on a point raised under paragraph 35 of Schedule A1 to the Act (the Schedule), for the Panel to address the remaining admissibility tests, and for an informal meeting to be held on the composition of the Union’s proposed bargaining unit.

2. Issues

4) 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. Summary of the Union’s application

5) In its application to the CAC the Union stated that it had made its request for recognition to the Employer on 9 June 2020, a copy of which was attached to its application. The Union stated that the Employer responded on 22 June 2020 stating that whilst it did not agree to the Union’s request, it was willing to negotiate, and in order to consider its request further it asked that the Union confirm which workers it considered fell under the category “editorial”. The Employer also stated that it had begun negotiation with the BAJ with a view to reaching a collective agreement, but it was willing to seek help from ACAS to continue negotiations with the Union. The Union said that it responded to the Employer on 29 June 2020 expressing its unease that the Employer had begun negotiations with the BAJ given that the NUJ had majority membership in the bargaining unit for which it was seeking recognition but clarified that it wished to continue negotiations in good faith. In further correspondence that same date, the Union said that for the avoidance of doubt, it had clarified that it was happy for ACAS’ services to be used and it had asked that the company make contact so that this could be facilitated. The Union said that it had heard nothing further from the Employer. On 3 July 2020 Iran International announced that it was entering into a voluntary agreement with BAJ covering all staff “engaged in any activity in the clerical workflow process relating to journalism, including staff in the newsroom, programme makers, reporters, content writers, directors, producers and technicians”. The Union believed that this arrangement was effectively sought to block its application. The Union said that the BAJ had however terminated this agreement on 16 July 2020, with immediate effect.

6) When asked whether the Union had made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Union answered ‘No’. The Union stated that, following receipt of the request for recognition, the Employer had proposed that ACAS should be requested to assist the parties. The Union reiterated its point in paragraph 5 above in which it had expressed its willingness to involve ACAS in its negotiations in its correspondence of 29 June 2020. The Union further stated that it was unsure as to whether the Employer had made any contact with ACAS.

7) The Union said that the total number of workers employed by the Employer was 350. There were 144 workers in the bargaining unit, of whom 97 were members of the Union. When asked to provide evidence that the majority of the workers in the bargaining unit were likely to support recognition for collective bargaining, the Union stated that the majority of staff in this area want collective bargaining rights and that they had joined the Union with the specific aim of achieving this. The NUJ chapel held regular meetings which were well attended, and during those meetings union officials had clearly explained what recognition would mean in the workplace.

8) The Union stated that the reason for selecting the proposed bargaining unit was because the NUJ was a trade union representing journalists and media workers in the UK and Ireland. The selected bargaining unit consisted of all editorial workers working for the international broadcaster Iran International. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. When asked whether there was any existing recognition agreement of which it was aware that covered any workers in the bargaining unit, the Union said “No” and reiterated the points it had made in paragraph 5 above.

9) The Union confirmed that it held a current certificate of independence and enclosed a copy of the certificate. The Union stated that it had copied its application and supporting documents to the Employer on 22 July 2020.

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

10) In its response to the Union’s application the Employer stated that it had received the Union’s most recent written request for recognition on 9 June 2020, and that this was said to supersede an earlier written request on 11 December 2019. The Employer said that it rejected the Union’s request, but it had advised the Union that it was willing to negotiate.

11) The Employer confirmed that it had received a copy of the Union’s application form by email on 22 July 2020. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit, nor did it agree with the proposed bargaining unit. The Employer stated that in its response to the Union of 22 June 2020, it had asked for a definition of the roles that the Union considered fell within the category of ‘editorial’. The Employer said that it did not have any designated grouping called ‘editorial’. The Employer explained that it offered a variety of editorial products across multiple platforms including radio, TV and digital. These products were made through different workflows with editorial contributions from various roles. It was not only the journalists who made editorial contributions; a variety of other roles also provide editorial contributions. The Employer stated that based on the current membership composition of the NUJ’s chapel at Volant, it seemed that the Union’s definition of ‘editorial’ was still based on the traditional concepts of journalism, which the Employer stated, did not match the changes and reality of current media practices. The Employer believed a clear definition of the proposed bargaining unit was therefore required.

12) The Employer stated that following receipt of the Union’s request “We had a call with ACAS on 7 July 2020. We informed ACAS that we could not accept the NUJ’s request as we had, by that time, already accepted a voluntary recognition request from the BAJ.” The Employer further stated that the BAJ’s proposed bargaining unit covered the NUJ’s proposed, “albeit vague” bargaining unit.

13) In answer to the question of whether it agreed with the number of workers in the proposed bargaining unit as set out in the Union’s application, the Employer stated that the Union’s proposed bargaining unit was not clearly defined and therefore it was unable to confirm numbers.

14) When asked whether there was an existing agreement for recognition in force covering workers in the proposed bargaining unit, the Employer answered “Yes”. The Employer explained that a formal request for recognition was made by the BAJ on 16 July 2020, which was accepted in writing on 21 July 2020. The agreement was oral but the BAJ had been provided with a draft written agreement for consideration. A copy could be provided to the CAC in confidence, if required. The Employer confirmed that the BAJ had a certificate of independence.

15) When asked whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, and inviting its reasons for disagreeing with any available evidence, the Employer stated that it was unable to do so as the Union’s proposed bargaining unit was not clearly defined. The Employer stated that it believed the Union had some members who were not active in the chapel and/or did not support the recognition request.

16) When asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit the Employer stated “N/A”. When asked if it had received any other applications in respect of workers in the proposed bargaining the Employer stated that the BAJ had made an application on 16 July 2020, which was accepted on 21 July 2020. The Employer attached to its response the BAJ’s letter of 16 July 2020 and the Employer’s e-mail of 21 July 2020.

5. The Union’s comments on the Employer’s response

17) On 30 July 2020 the Employer’s response to the application was copied to the Union and its comments invited. In a letter to the CAC dated 4 August 2020 the Union stated that “your letter revealed that having terminated the recognition agreement between the Employer and BAJ on 16 July 2020, the same day BAJ sought recognition for the second time by the Employer which was orally granted, it seems, on 21 July 2020 – clearly in an attempt to preclude the NUJ pursuing the recognition it is seeking and which the Employer had agreed to negotiate through ACAS.” The Union stated that although it was conscious of the terms of paragraph 35 of Schedule A1 it was also aware of the importance to this application of the reasoning in R (on the application of Boots Management Services Ltd) v Central Arbitration Committee [2017] EWCA Civ 66, [2017] I.R.L.R. 355 CA particularly at [54]-[55]. The Union stated that in case a breach of Article 11 was avoided because the pre-emptor union was not independent and therefore members of the applicant union were able to (and subsequently did) seek derecognition under part VI of the Schedule in order to clear the path to a recognition application to the CAC. The Court of Appeal held at [62] that ‘if derecognition under Part VI were not available there would in my view be a breach of article 11’. The Union said that in this case, the BAJ was certified as independent and therefore there is no route to derecognition under the Schedule. The Union maintained that this meant that paragraph 35, by barring the application of the NUJ, would breach the Article 11 rights of it and its relevant members, unless, in accordance with s.3 Human Rights Act 1998, the paragraph was read, so far as is possible, so as to give effect to those rights. The Union asked that the CAC convene a virtual hearing to consider the next steps.

18) In a further letter to the Union dated 6 August 2020, the CAC asked the Union to comment on the Employer’s answer to question 5 of the Employer’s Response Questionnaire, concerning the description of the Union’s proposed bargaining unit.

19) In a letter to the CAC dated 7 August 2020 the Union said that it had noted the Employer’s comment that “A clear definition of the proposed bargaining unit is required.” The Panel was asked to note that the Employer had previously agreed a bargaining unit in its voluntary sole recognition agreement with the BAJ. The Union explained that in its application it had stated that “The NUJ seeks recognition for collective bargaining purposes for a bargaining unit comprising of all editorial staff currently working at Iran International, owned by Volant Media UK Ltd. Our proposed bargaining unit is broadly coterminous with and falls within the bargaining unit agreed by the employer with BAJ namely: ‘Everyone who is engaged in any activity in the editorial workflow process relating to journalism, including staff in the newsroom, programme makers, reporters, content writers, directors, producers and technicians. It excludes accountants, HR, admin support and senior managing roles’.”

20) The Union maintained that the Employer’s comments did not make sense, as the Employer had already stated that it had agreed a bargaining unit with the BAJ, and the NUJ’s proposed bargaining unit “falls within it.” The Union said that by reference to the BAJ’s bargaining unit, it believed it had already outlined the roles that it considered fell within the category of ‘editorial’ in its application. The Union believed that that the Employer had contracted its criticism of its proposed bargaining unit by its response to the application, where it had stated that “The BAJ’s proposed bargaining unit covers the NUJ’s proposed (albeit vague) bargaining unit.”

21) The Union stated that it also wished to draw the Panel’s attention to the revised proposed bargaining unit by the BAJ in its Schedule A1 letter dated 16 July 2020 in which the Union said BAJ had stated “We write to make a formal request for trade union recognition for collective bargaining purposes under Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 in respect of staff working at Iran International who are employed by Volant and who are engaged in any activity in the editorial workflow process relating to journalism”.

22) The Union said that it rejected repeated references by the Employer that its proposed bargaining unit was ‘vague’ or ‘unclear’, and in particular the Employer’s comment that, “Based on the current membership composition of the NUJ’s chapel at Volant, it seems the NUJ’s definition of ‘editorial’ is still based on the traditional concepts of journalism which does not match the changes and reality of current media practices.” The Union stated that the Employer would not be aware of the membership composition of the NUJ’s chapel at Volant. The Union further stated that its members were at the forefront of current media practices and that it was therefore well placed to outline the ‘concepts’ and ‘reality’ of journalism generally and how it intersected with current media practices.

6. Additional comments from the Employer

23) On 11 August 2020 the Union’s letters of 4 and 7 August 2020 were copied to the Employer and its comments invited. The CAC also asked the Employer to provide any documentary evidence that it wished to rely upon with regard to its assertion that the workers in the proposed bargaining unit were covered by an existing agreement for collective bargaining.

24) The Employer responded by letter to the CAC dated 12 August 2020, in which it stated that by letter dated 16 July 2020 the BAJ had requested recognition in respect of ‘staff working at Iran International who are in the editorial workflow process relating to journalism.’ The BAJ’s request was accepted by e-mail dated 21 July 2020, and the BAJ was now recognised. The Employer said that copies of the BAJ’s letter of 16 July 2020 and its responding e-mail of 21 July 2020 had already been provided to the CAC. The Panel notes that in its Response dated 29 July 2020 the Employer indicated that its agreement with the BAJ was an oral one but that the BAJ had been provided with a draft written agreement for consideration and that a copy of this could be provided to the CAC in confidence. However, no copy of the draft written agreement was ever provided to the CAC.

25) The Employer further stated the Union’s proposed bargaining unit, as set out in its letter of 9 June 2020 and its application to the CAC, was ‘all editorial staff currently working at Iran International which is owned by Volant Media UK Ltd.’ The Employer said that it believed this was the same bargaining unit as that in respect of which the BAJ was recognised and that the Union did not appear to be arguing against this. Even if the Union could argue that its proposed bargaining unit was different, there would be a significant crossover, such that the majority of staff in its proposed bargaining unit would be those in respect of which the BAJ was already entitled to conduct collective bargaining.

7. The Membership Check

26) To assist in the application of the admissibility tests 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 name and date of birth). 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 August 2020 from the Case Manager to both parties. The information requested from both parties was received by the CAC on 19 August 2020. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

27) The list supplied by the Employer indicated that there were 202 workers in the proposed bargaining unit. The list of members supplied by the Union contained 105 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 94, a membership level of 46.53%.

28) A report of the result of the membership check was circulated to the Panel and the parties on 21 August 2020 and the parties were invited to comment on the result.

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

29) In a letter to the CAC dated 25 August 2020 the Employer stated that the CAC should note that the data provided was in respect of the bargaining unit for which the BAJ has existing collective bargaining rights, and that this data was provided because the NUJ’s proposed bargaining unit was unclear.

30) The Employer reiterated its assertion that there was an existing recognition agreement with the BAJ since 21 July 2020 under which the BAJ was entitled to conduct collective bargaining in respect of pay, hours and holidays, on behalf of ‘all staff … who are engaged in any activity in the editorial workflow process relating to journalism’ (expressly excluding administrative, HR staff and top level executives). The Employer said that it was not clear as to whether the CAC had considered this existing agreement when addressing the Union’s application. The Employer said that whilst the scope of the Union’s proposed bargaining unit was far from clear, it appeared to overlap significantly with the BAJ’s existing bargaining unit.

31) In an e-mail to the CAC dated 26 August 2020 the Union stated it believed the number of workers on the list provided by the Employer was incorrect. The following roles were non-editorial and therefore should be excluded from the bargaining unit as per the Union’s letter of 9 June 2020 and its application to the CAC. The Union believed that this was justified in light of the nature and characteristics of the roles, as they were staff who could not actually join the Union and play a role in its democratic processes, namely: Hair & Makeup Artist, Hair & Makeup Supervisor, Ingest Operator, Lead Tech Supervisor & Lighting Director, Lead Programme Director, Director, Programme Director, Marketing Manager, Network Services Supervisor, Sound Supervisor, Technical Assistant, Technical Media Manager, Technical Supervisor, Transmission Operator, Operations Supervisor, Camera Operator, Camera Supervisor, Newsroom Training Coordinator, Creative Head of Promotions, Newsroom Operations Manager, Video Editing Manager, Resource Manager, Rights Manager.

32) The Union further explained the roles that it considered should be excluded from the bargaining unit because of their seniority. The following roles were not editorial staff due to their senior management positions: Director of Creative, Director of Network Services, Director of News, Director of News, US Director of Production, Director of Programming, Director of Technical Operations, Director of Technology.

33) The Union said that there were also 11 members of the Union who were not listed on the Employer’s list, two of whom were known by different names and one had now left the Employer. A further 8 members were freelance workers, who were deployed in Editorial. The Union had adopted the position that those individuals should be included in the bargaining unit as they were either UK freelancers who worked exclusively and regularly for Iran International, or non-UK freelancers who operated on a UK contract and who also worked exclusively and regularly for Iran International. The Union was however prepared to be pragmatic if the Employer did not consider freelancers to be appropriate and did not include them in its bargaining unit.

34) With regard to the test at paragraph 36(1)(a), the Union said that the Panel would note that members of the Union constituted at least 10 per cent of the workers in its proposed bargaining unit, and assuming the Panel accepted its assertions about its defined bargaining unit, the proportion of Union members would exceed 46.53%.

35) The Union said that in light of its comments it believed a majority of the workers constituting the relevant bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit. The Union maintained that it had the support of all of its membership in the recognition application following many years of consulting with its Iran International chapel. The Union referred to paragraph 1191 of Harvey, “If it transpires that the union already enjoys a majority or near-majority membership within the relevant bargaining unit, then the CAC will usually (but not inevitably) infer that a majority of the workers in the unit would be likely to favour recognition of the union as their bargaining agent, on the not unreasonable assumption that union members usually favour collective bargaining and that some non-members will also favour it (see especially CATU and Industrial Agricultural Engineers (TUR1/358/04, 10 June 2004), CAC, at para 19, and Amicus and Paddock Fabrications Ltd (TUR1/378/04, 13 July 2004), CAC, at para 15.” The Union believed that its application was also admissible on this point.

36) The Union said that, even in the event that there was some dispute maintained by the Employer regarding the points it had raised in paragraphs 31-33 above, it believed there would be a ‘bandwagon effect’ which meant that the CAC should be satisfied by the evidence of likely majority support as the Union can currently show support by over 40 per cent of the workers in the proposed bargaining unit. The Union again referred to Harvey [paragraph 1174.01] which, the Union stated, elucidates this point insofar as likely support is not actual support: “The sufficiency of a near-majority level of support stems from the well-known fact that there is a ‘bandwagon’ effect in these cases: the recognition, or imminent recognition, of the union will of itself generate additional support for the union. Some workers may want collective bargaining but prefer not to join a union; others may want collective bargaining but be unwilling to join the union (and pay union dues) unless and until the union actually gains recognition; employees of a hostile employer may consider it imprudent openly to express their support for the union. The members of the CAC, drawing on their industrial experience, will take cognisance of that ‘bandwagon’ effect.” The Union said that the bandwagon was already rolling insofar as at the time of its application in July, it had 97 members and it now has 107 members in the proposed bargaining unit. This included 2 new joiners since the names were submitted for the check.

37) The Union further added that from discussions with the BAJ, it believed that that they no longer had a recognition agreement in place with the Employer.

38) Finally, the Union said that in light of the difference of approach between the parties regarding the size of the bargaining unit and the nature and seniority of the roles, it believed the CAC would benefit from the Employer providing a current organisational chart to justify its position.

9. Additional comments from the parties

39) In a further e-mail to the CAC dated 4 September 2020 the Union explained that in light of the continued assertion of a recognition agreement with the BAJ, it had approached the BAJ for some clarity. The Union said that on two occasions it had been informed by BAJ Deputy General Secretary/Solicitor Annette Raitz that “Our agreement with Volant has ended …” (email of 20 August 2020); and “As I have stated, we do not have a recognition agreement with Volant. We ended the agreement as you were notified. Termination was with immediate effect.” (email of 3 September 2020). The Union attached to its comments a copy of the BAJ’s e-mails to the Union of 20 August 2020 and 3 September 2020.

40) The Union submitted that in light of the unequivocal position taken by the BAJ as recently as the day before its email to the CAC, it could not see any reason as to why the Employer should continue to maintain its position that there was an existing recognition agreement in place, and it asked for this to be taken into consideration by the Panel.

41) On 7 September 2020 the Union’s e-mail of 4 September 2020 and attachment were copied to the Employer. The CAC also informed the Employer that it was seeking clarification as to the status of the workers on the list provided by the Employer for the purposes of the recent check of membership in the proposed bargaining unit. The Employer was asked to confirm whether or not it agreed with the Union that the posts listed were either non-editorial or senior management positions and therefore fell outside of the Union’s definition of its proposed bargaining unit.

42) The Employer was also asked to comment on the contents of the Union’s email of 4 September 2020 and attachment in which the BAJ confirmed its view that there was no existing recognition agreement in place with the Employer.

43) The Employer responded by letter to the CAC dated 14 September 2020, in which it said that it wished to reiterate that the list of staff provided comprised those who fell within the BAJ’s existing bargaining unit and it was not intended to be a list of those it considered fell within the NUJ’s proposed bargaining unit, which, the Employer maintained, was unclear.

44) The Employer explained that Volant Media did not have a distinct class of employees that were considered to be editorial. As a modern media broadcaster, it considered nearly all of its non-admin colleagues had an editorial contribution to its overall editorial workflow. This was also in-line with the definition of the bargaining unit agreed with the BAJ. On the exclusion of senior managers, it believed all of them had major editorial contribution, but emphasised that only top level executives were excluded from the BAJ’s bargaining unit.

45) In respect of the Union’s comments in its email of 4 September 2020, the Employer stated that it was the case that there is an existing agreement in place with the BAJ. The Employer accepted that the first written recognition agreement was terminated with immediate effect by the BAJ in its e-mail to the Employer dated 16 July 2020. This was an entirely voluntary agreement. However, after the BAJ made a formal request for recognition in their letter of 16 July 2020, the Employer’s acceptance of this was in writing on 22 July 2020 and therefore the BAJ are legally recognised in respect of ‘staff employed by Volant and who are engaged in any activity in the editorial workflow process relating to journalism’. The Employer stated that there was no record of the BAJ seeking to terminate recognition and therefore it remained effective. The Employer stated that the relevant email exchanges with the BAJ had already been disclosed and evidenced the position. The Employer said that it could not comment on the BAJ’s understanding of the legal position.

46) Finally, the Employer stated that it is right to point out that it had been contacted by a number of its staff who are NUJ members. They have communicated that while they are members of NUJ (as an advocacy organisation) and would like to remain so, they are no longer members of the Iran International chapel. The Employer requested that the NUJ be asked to clarify the total number of members for its Iran International chapel.

10. Informal meeting

47) In view of the parties’ comments, in order to clarify the definition of the Union’s proposed bargaining unit the Panel called the parties to an informal meeting with the Chair of the Panel, Ms Naeema Choudry, and the Case Manager attending on behalf of the CAC. The parties were informed that in light of the current Covid-19 Government restrictions, the meeting would be held by video conference via the ‘Zoom’ online platform. The meeting took place on 26 October 2020 however during the meeting the parties’ positions remained the same, and the Employer maintained that the parameters of the Union’s proposed bargaining unit remained unclear.

11. Considerations

48) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 above are satisfied. The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision.

49) The Panel is satisfied that the Union made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that its application was made in accordance with paragraph 12. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33, 34 and 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the application is inadmissible under paragraph 35 and whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

12. Paragraph 35

50) In accordance with paragraph 35, an application to the CAC under paragraph 11 or 12 is not admissible if the CAC is satisfied that there is already in force a collective agreement under which an independent trade union is recognised as entitled to conduct collective bargaining on behalf of any workers falling within the bargaining unit proposed by the union.

51) The one exception to this rule can be found in paragraph 35(2), which allows for the union that is already recognised by an employer for matters other than pay, hours or holidays to make an application for recognition in respect of these matters, but this exception is not applicable in this case before us.

52) The Employer argues that the workers in the proposed bargaining unit are covered by an existing agreement for collective bargaining with the BAJ. It relies on the BAJ’s letter of 16 July 2020 and the Employer’s e-mail of 21 July 2020 in which it had accepted the BAJ’s request for recognition

53) The Union submits that the BAJ had terminated its agreement on 16 July 2020 with immediate effect, and it has provided documentary evidence by way of an e-mail chain between the General Secretary NUJ, and Assistant General Secretary BAJ, in which the BAJ confirms its view that “we do not have a recognition agreement with Volant. We ended the agreement as you were notified. Termination was with immediate effect”.

54) The Case Manager, by letter dated 11 August 2020 to the Employer requested any documentary evidence that the Employer wished to rely upon with regard to its assertion that the workers in the proposed bargaining unit were covered by an existing agreement for collective bargaining. The Panel considers that no such evidence has been received, and that the BAJ’s e-mails 20 August 2020 and 3 September 2020 confirm that there is no existing collective agreement in force covering the workers in the Union’s proposed bargaining unit.

55) The Panel is not satisfied, therefore, that there is already in force a collective agreement under which the BAJ is recognised as entitled to conduct collective bargaining on behalf of workers in the NUJ’s proposed bargaining unit.

13. Paragraph 36(1)(a)

56) Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the union constitute at least 10% of the workers in the proposed bargaining unit.

57) The membership check conducted by the Case Manager showed that 46.53% of the workers were members of the Union. As stated in paragraph 26 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 has therefore decided 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.

58) Under paragraph 36(1)(b) of the Schedule an application is not admissible unless the Panel decides that 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 bargaining unit. The Panel is tasked therefore to determine likely, not actual, majority support for Union recognition.

59) The Union relied on its density of union membership as evidence that there was majority support for collective bargaining. The Panel is of the view that the level of membership within the proposed bargaining unit can be taken as a legitimate indicator of the strength of support for the Union and it is in the Panel’s experience of industrial relations that leads it to conclude that support is likely to increase as the application progresses. Therefore, with an apparent density of membership of 46.53% in its proposed bargaining unit, the Panel has reached the conclusion that, on the balance of probabilities and in the absence of any evidence to the contrary, 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, as required by paragraph 36(1)(b) of the Schedule.

60) Finally, the Panel notes the Union’s concerns, set out in paragraphs 31 - 33 above, that the figure of 202 given by the Employer includes workers who do not fall within the description of its proposed bargaining unit. The Panel Chair has also sought to clarify the composition of the Union’s proposed bargaining unit. However, in view of the Panel’s decision that the admissibility criteria set out in paragraphs 56 - 59 have been met, the Panel has not found it necessary to investigate the Union’s concerns for the purposes of this decision. However this does not preclude the Panel from undertaking further investigations at a later stage of the process should it consider this to be appropriate.

14. Decision

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

Panel

Ms Naeema Choudry

Mrs Susan Jordan

Mr David Coats

08 December 2020