Decision

Acceptance Decision

Updated 16 February 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1205/2021

05 February 2021

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:

National Union of Journalists

and

JPI Media Publishing Limited

1. Introduction

1) The National Union of Journalists (NUJ) (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 23 December 2020 that it should be recognised for collective bargaining by JPI Media Publishing Limited (the Employer) for a bargaining unit comprising “All Local Democracy Reporters currently working for JPI Media Publishing Limited under the BBC-funded Local Democracy Reporting Service”. The application was received by the CAC on 23 December 2020. The CAC gave both parties notice of receipt of the application on 24 December 2020. The Employer submitted a response to the CAC dated 22 January 2021 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. Stuart Robertson, Panel Chair, and, as Members, Miss Mary Canavan and Mr. Paul Noon OBE. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 4 January 2021. The acceptance period was extended to 13 January 2021 and subsequently to 5 February 2021, to allow time for the Employer to submit its response to the application, for the CAC to conduct a membership check, for the parties to comment on the results of the membership check and for the Panel to consider those comments before arriving at a decision.

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. The Union’s application

5) The Union stated that its initial request for recognition, a copy of which was attached to the application, was made in writing and sent to the Employer on 23 October 2019. The Union stated that this was followed by a conference call on 14 January 2020 after which, on 23 January 2020, the Employer provided a note, also attached to the application, setting out its position. The Employer stated in the note that members of the proposed bargaining unit were all managed locally and there was no national co-ordination of those undertaking that role. The Union contended that whilst the Employer contended in the note that employees in the role should join local collective bargaining structures, there could be no collective bargaining on pay locally for those individuals as pay was solely set by terms dictated by the BBC.

6) The Union responded on 12 February 2020 to make clear the Employer’s proposal was not acceptable. The Union stressed to the Employer that none of its members could be part of a local recognition agreement that did not cover collective bargaining on pay and that the members’ employing entity, (which was distinct from the companies who held agreements locally) could still bargain on pay notwithstanding the fact the BBC set some minimum standards.

7) The Employer responded on 9 March 2020 inviting consideration of incorporating the relevant employees into existing local bargaining units, but with the caveat that such employees would not share the same pay review date as members of those local units.

8) The Union responded on 15 May 2020 and asked for more detail on how the Employer saw its proposal working in practice. The Union also asked whether the Employer would consider involving ACAS.

9) The Union stated that several requests for a response were made during regular meetings with the Employer, which eventually offered a meeting on 30 November 2020.

10) The Union stated that during the meeting on 30 November 2020, the Employer outlined its overall position that incorporating the relevant employees within the Local Democracy Reporting function into existing local bargaining units was its preferred option. The Employer’s position was that the relevant employees could have their pay negotiated by a local bargaining unit because of the way they were employed and the terms of the company’s contracts with the BBC. The Union said that the Employer also raised concerns about the relevant employees sharing any holiday terms negotiated by a local bargaining unit which seemed to underline the fact that they should not be dealt with locally.

11) The Union stated that they agreed to report back to their members seeking recognition to establish whether the Employer’s proposal was acceptable as an alternative to the bargaining unit originally sought in the letter of 23 October 2019. The Union stated that their members asked that an application be submitted to the CAC.

12) The Union stated that it had not made a previous application under the Schedule for workers in the proposed bargaining unit or a similar unit. The Union stated that, following receipt of the request for recognition, the Employer had indicated a willingness to involve ACAS, but given the request for recognition was originally made on 23 October 2019, they were entitled to proceed with their application, although they did not rule out obtaining further assistance from ACAS as the process ensued.

13) The Union stated that there were 659 workers employed by the Employer, of whom 33 were in the proposed bargaining unit. The Union stated that more than 50% of the 33 workers in the proposed bargaining unit were members of the Union. When asked for evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated that they believed union membership among a majority of workers in the proposed bargaining unit was sufficient evidence of support for trade union recognition. The Union stated that it was happy to have an independent confidential check to confirm membership density.

14) The Union stated that the proposed bargaining unit represented a distinct group of workers within the Employer and the bargaining unit was compatible with effective management. The Union stated that the Local Democracy Reporting roles were funded through contracts secured by the Employer with the BBC Local Democracy Reporting Service. The Union said that those contracts with the BBC included stipulations on the nature of the roles, specific requirements about how work was undertaken and minimum pay rates which did not apply to any other workers within the Employer or its subsidiaries. The Union stated that the Employer had the right to enhance the minimum standards imposed by the BBC.

15) The Union said that although based in local newsrooms and managed locally on a day-to-day basis, the relevant employees had a much greater level of autonomy and independence compared to other employees of the Employer and the requirements of their role were separate and distinct. They filed their copy via LDRS Create, a bespoke content management system for the role, copyright for the work they created did not belong to the Employer and that work was made available to all publishers registered with the Local Democracy Reporting Service.

16) The Union stated that the bargaining unit had not been agreed with the Employer. The Union confirmed that it held a current certificate of independence. The Union stated that it had copied the application, and supporting documents, to the Employer on 23 December 2020.

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

17) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 23 October 2020. The Employer stated that it responded on 23 January 2020 refusing the request and a copy of its response was attached. It confirmed that it had received a copy of the application from the Union on 24 December 2020.

18) The Employer stated that it had not, before receiving a copy of the application from the Union, agreed the bargaining unit with the Union but indicated in its response that it did agree it.

19) The Employer stated that it gave permission to copy case details to ACAS.

20) The Employer stated that it currently employed about 1500 workers. It stated that it agreed the number of workers in the proposed bargaining unit as set out in the Union’s application.

21) The Employer stated that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

22) The Employer stated that the Union had made an application for recognition by another publisher, Newsquest, and recognition had been awarded.

5. The Membership Check

23) 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 name and date of birth). It was agreed that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 25 January 2021 from the Case Manager to the parties. The information from the Union and the Employer was received by the CAC on 27 January 2021. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

24) The list supplied by the Employer indicated that there were 33 workers in the proposed bargaining unit. The list of members supplied by the Union contained 24 names, but two of these did not appear on the Employer’s list. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 22, a membership level of 66.67%.

25) A report of the result of the membership check was circulated to the Panel and the parties on 27 January 2021 and the parties were invited to comment on the result.

6. The parties’ comments on the result of the membership check

26) The Union stated in an email dated 1 February 2021 that the membership report established that it had more than 10% membership density within the bargaining unit and therefore the test under paragraph 36 (1) (a) was met.

27) The Union stated that the test under paragraph 36 (1) (b) was also met. According to the check, the Union had 66.67% membership density within the proposed bargaining unit, and it was aware from regular dialogue with representatives within the group that the chapel favoured recognition. The Union stated that it had organised and recruited on the basis of recognition. The Union contended that there would be support for recognition among employees who were not members, given the efforts the Union would make to engage with the Employer to improve communications and terms and conditions across the bargaining unit.

28) No comment on the result of the membership check was received from the Employer.

7. Considerations

29.) 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.

30) 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 to 35 and paragraphs 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

8. Paragraph 36(1)(a)

31) 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.

32) The membership check conducted by the Case Manager (described in paragraphs 23 and 24 above) showed that 66.67% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 23 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 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.

9. Paragraph 36(1)(b)

33) 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. For the reasons given in the previous paragraph the level of union membership is 66.67%. The Union did not provide any additional evidence of support for recognition, such as a petition, but the Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union. No evidence to the contrary was provided in this case. On the evidence before it, the Panel has decided that, on the balance of probabilities, 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.

10. Decision

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

Panel

Mr. Stuart Robertson, Panel Chair

Ms Mary Canavan

Mr. Paul Noon OBE

05 February 2021