Decision

Acceptance Decision

Updated 3 July 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1409(2024)

03 July 2024

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

Wilmington Healthcare Limited

1. Introduction

1)         NUJ (the Union) submitted an application to the CAC on 30 May 2024 that it should be recognised for collective bargaining by Wilmington Healthcare Limited (the Employer) for a bargaining unit comprising “Those holding editorial posts on the Health Service Journal, with the exception of the post of Editor and Deputy Editor, which would be excluded from the bargaining unit” and who were based at Wilmington Healthcare Limited, 5th Floor, The Whitechapel Building, 10 Whitechapel High Street, London E1 8QS.  The CAC gave both parties notice of receipt of the application on 30 May 2024.  The Employer submitted a response to the CAC dated 6 June 2024 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 Chair established a Panel to deal with the case.  The Panel consisted of Ms Laura Prince K.C., Panel Chair, and, as Members, Mr Mustafa Faruqi and Mr Michael Clancy.  The Case Manager appointed to support the Panel was Kaniza Bibi.

3)         The CAC Panel has extended the acceptance period in this case.  The initial period expired on 13 June 2024.  The acceptance period was extended on two further occasions to allow time for a membership and support check to take place, for the parties to comment on the subsequent report, and for the Panel to consider those comments before arriving at a decision. The final extension ends the acceptance period on 11 July 2024.

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 made its formal request for recognition on 4 October 2023 by way of an email requesting that the Employer recognise the Union to conduct collective bargaining. The Employer, by way of email received by the Union on 19 October 2023, rejected the Union’s request for voluntary recognition.

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 not proposed that Acas should be requested to assist the parties.

7)         The Union stated that the total number of workers employed by the Employer was 797. The Union confirmed that there were 14 workers in the proposed bargaining unit, of whom “10 out of 17^{[footnote 1]} editorial staff on HSJ (with the Editor excluded from the bargaining unit)” were members of the Union.

8)         When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated, “The NUJ contends that all of its members to be covered by the proposed bargaining unit, are in favour of the NUJ gaining recognition. There are now 10 members of the NUJ out of 17 in the proposed bargaining unit”.

9)         The Union stated that the reason for selecting the proposed bargaining unit was that “The Posts to be included are all integrally involved in the editorial tasks in the production of the Health Service Journal. We have sought to exclude two posts, whereby the seniority of position and managerial responsibilities may possibly serve to present a unmanageable conflict of interest” (sic).  The Union said that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the proposed bargaining unit the Union answered “No”.

10)       Finally, the Union confirmed that it held a current certificate of independence and it confirmed that it had copied the application and supporting documents to the Employer on 29 May 2024.  

4. Summary of the Employer’s request

11)       In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 3 May 2024. The Employer stated it responded to the Union by way of an email dated 21 May 2024 in which it had refused the request^{[footnote 2]}.

12)       The Employer said that it had received a copy of the application form from the Union on 30 May 2024. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union. Asked if it agreed the bargaining unit as set out by the Union the Employer answered “No”.

13)       The Employer stated its objections to the proposed bargaining unit by saying that the “Proposed unit is unclear due to the conflicting information within the application form. In the application form, the NUJ gives variable numbers for the workers said to be within the proposed bargaining unit. In question 9, it is said to be 14 and in questions 11 and 12 it is said to be 17. Likewise, question 11 refers to the Editor being excluded from the bargaining unit but question 14 refers to the exclusion of both the Editor and Deputy Editor. As such, the specific parameters of the proposed bargaining unit remain unclear. Pending clarifications of the bargaining unit, for current purposes we set out further objections based on our best guess as to what the NUJ may have intended the bargaining unit to be. We reserve the right to add to this depending on the clarifications made by the NUJ. Our other objections are: (1) The proposed bargaining unit is incompatible with effective management, specifically, it risks creating division and discord with others undertaking comparable roles who are outside of the proposed bargaining unit. (2) The proposed bargaining unit will create a fragmented bargaining unit which we wish to avoid. Depending on the actual numbers of those within the NUJ’s proposed bargaining unit, this would consist of under 2 or 3% of our workforce.”.

14)       The Employer confirmed that following receipt of the Union’s request, it had not proposed that Acas should be requested to assist. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

15)       The Employer stated that it employed a total of 170 workers and that it did not agree with the number of workers in the bargaining unit as defined in the Union’s application. When asked the reasons for any difference, the Employer stated “We consider there to be 15 workers within the proposed bargaining unit. This reflects the number of individuals in journalistic roles within the Employer but excluding the Editor and Deputy Editor”.

16)       Asked whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated, “The NUJ has either not supplied the Employer with any evidence in support of the bare statement that there are 10 workers who are members, all of which are claimed to support recognition”.

17)       Finally, when asked on whether it had received any other applications under the Schedule for recognition in respect of any of the workers in the proposed bargaining unit the Employer confirmed “On 23 November 2023, the NUJ attempted seek recognition in respect of a similar bargaining unit but applied to Wilmington Plc. This application was withdrawn by the NUJ on 5 April 2024, before the CAC determined whether to accept it”.

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

18)       The Employer’s response was copied to the Union and its comments invited.  In an email to the CAC dated 13 June 2024 the Union stated that “just by way of clarification in relation to the proposed bargaining units – regarding specifically the points raised in Question 5 by the employer, at the beginning of the process of seeking voluntary recognition, there had been 17 in the NUJ’s proposed bargaining unit. I then later put the number at 14, as I am told that two of the colleagues holding posts in the bargaining unit have left the company already and one is about to leave in July. However, for the sake of a lack of further complexity, I concur with the company’s answer to Question 10, that there are: “15 workers within the proposed bargaining unit. This reflects the number of individuals in journalistic roles within the Employer but excluding the Editor and Deputy Editor.” Although this number should be reassessed if/when a further individual was to leave in July. Within that framework the NUJ now currently has 8 members”.

6. The membership and support check

19)       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 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 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 the workers in the bargaining unit which had been proposed by the Union in its application form, and that the Union would supply to the Case Manager a list of its paid-up members within that unit including their full names, dates of birth and job titles (where available). 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 17 June 2024 from the Case Manager to both parties. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

20)       The list supplied by the Employer indicated that there were 15 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 8 names. According to the Case Manager’s report the number of members in the proposed bargaining unit was 44, a membership level of 53.33%.

21)       A report of the result of the membership check was circulated to the Panel and the parties on 19 June 2024 and the parties’ comments invited.

7. Summary of the parties’ comments following the membership check

22)       In an email to the Case Manager dated 20 June 2024 the Union stated, “I am in accord with the membership check report and the description of the proposal for the bargaining unit – therefore I have no substantive comment at this stage”.

23)       In an email to the Case Manager dated 25 June 2024 the Employer noted that the report confirmed the membership within the bargaining unit but not the proportion that would be likely to favour recognition of the Union. Other than that, the Employer had no further comments on the report.

8. Considerations

24)       In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 of this decision are satisfied.  The Panel has considered all the evidence submitted by the parties in reaching its decision.

25)       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 11 in that the Employer failed to respond to the formal request for recognition within the period of 10 working days following receipt.  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.

Paragraph 36(1)(a)

26)       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.  In this case the membership check conducted by the Case Manager (described in paragraphs 19-21 above) showed that 53.33% of the workers in the proposed bargaining unit were members of the Union.  As stated in paragraph 19 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.

Paragraph 36(1)(b)

27)       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.

28)       The Panel notes from the membership check that a majority of the workers in the proposed bargaining unit (53.33%) are members of the Union.  The Employer, in its comments on the report submitted that the report simply confirmed the density of membership within the bargaining unit but not the proportion that would be likely to favour recognition of the Union.  However, in the absence of clear and cogent evidence to the contrary, the Panel is entitled to assume that members of the Union would be likely to favour recognition of the Union to conduct collective bargaining with the Employer on their behalf.  On the evidence before it, the Panel has decided that 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 and accordingly, this test is also met.

9. Decision

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

Panel

Ms Laura Prince K.C., Panel Chair

Mr Mustafa Faruqi

Mr Michael Clancy

03 July 2024

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1. The Union explains later as to why it gave conflicting figures for the number of workers in the proposed bargaining unit before accepting the figure given by the Employer in its response, which was 15.   ↩

2. The Employer’s email of 21 May 2024 fell outside of the first period of 10 working days as set out in paragraph 10(6) of the Schedule.  It should be noted that there is no provision for this period to be extended. ↩