Decision

Acceptance Decision

Updated 26 March 2020

Case Number: TUR1/1162(2020)

25 March 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:

PCS

and

Atos

1. Introduction

1) PCS (the Union) submitted an application to the CAC dated 27 February 2020 that it should be recognised for collective bargaining purposes by Atos (the Employer) in respect of a bargaining unit comprising “Staff working on the Tax Free Child Care account in Preston.” The location of the bargaining unit was given as “Tax Free Child Care account, Atos, West Strand, Preston, PRI 8UY”. The application was received by the CAC on 27 February 2020 and the CAC gave both parties notice of receipt of the application on 28 February 2020. The Employer submitted a response to the CAC dated 5 March 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 Professor Kenneth Miller, Panel Chair, and, as Members, Mr Tom Keeney and Mr Matt Smith. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 12 March 2020. The acceptance period was extended to 24 March 2020 in order to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the 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. Summary of the Union’s application

5) In its application to the CAC the Union stated that it had sent a request letter, by e-mail, to the Employer on 7 February 2020. The Union stated that it re-sent its request letter to the Employer on 11 February 2020, to which the Employer acknowledged receipt by e-mail dated 11 February 2020. In this e-mail the Employer had also informed the Union that it would “get back to you in due course.” The Union said that it had not received a formal response from the Employer concerning recognition. A copy of the Union’s request, its subsequent e-mail, and the Employer’s response to the Union’s request were attached to the Union’s application.

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 Employer had not responded. 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 8485. The Union stated that there were 71 workers in the proposed bargaining unit, of whom 56 were members of the Union. 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 said that all members had recently joined PCS. Those members had stated that “they want the union to negotiate for them on Pay and Terms & Conditions.” The Union referred to a “Membership total report”, a copy of which was attached to its application. The Union said that the report showed 53 members, and in addition to this, three applications were currently being processed.

8) The Union stated that the reason for selecting its proposed bargaining unit was because of an “Influx of members requesting PCS collectively negotiate on their behalf on Pay, T&C’s etc.” In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said, “No Response”. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit.

9) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application and supporting documents to the Employer on 7 February 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 written request for recognition on 7 February 2020. The Employer said that it had responded by e-mail on 11 February 2020, to acknowledge the request, “only whilst next steps to discuss voluntary recognition were discussed with the business.” A copy of the Employer’s e-mail to the Union was attached to the Employer’s response.

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 27 February 2020. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union. When asked whether it does now agree the bargaining unit, the Employer answered. “The number of employees of Atos delivering TFC services in Preston totals 68 – so marginally lower than the 71 proposed.”

12) The Employer said that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

13) The Employer stated the number of workers in the proposed bargaining unit was 68. When asked whether there was existing agreement for recognition in force covering workers in the proposed bargaining unit, the Employer answered “N/A.”

14) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated that as the location and business area included employees from several different organisations, all working together, it requested either confirmation from the CAC, or evidence, that all union members were Atos employees. The Employer stated that a list of the workers within the bargaining unit could be provided on request.

15) When invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition the Employer answered “N/A”.

16) The Employer also stated “N/A” 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, and whether it had received any other applications in respect of workers in the proposed bargaining unit.

5. The membership and support check

17) 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 names and dates 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 9 March 2020 from the Case Manager to both parties.

18) The information requested from both parties was received by the CAC on 10 March 2020. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

19) The list supplied by the Employer indicated that there were 65 workers in the Union’s proposed bargaining unit. The following job titles were listed:

• CCS Technical Support
• Controls Assurance Analyst
• Customer Service Representative
• Flex Operator
• Front Line Manager
• Superflex CSR
• Team Coach
• Technical Support
• TFC Flex Operator
• TFC Team Coach

20) The list of members supplied by the Union contained 54 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 46, a membership level of 70.77%. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

21) A report of the result of the membership and support check was circulated to the Panel and the parties on 11 March 2020 and the parties were invited to comment on the results of that check by the close of business on 16 March 2020.

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

22) The Union, by telephone call to the Case Manager on 17 March 2020, confirmed that it did not wish to make any comments on the result of the check.

23) No comments were received from the Employer.

7. Considerations

24) 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.

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. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 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)

26) 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.

27) The membership check conducted by the Case Manager (described in paragraphs 17 - 20 above) showed that 70.77% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 20 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached 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.

9. Paragraph 36(1)(b)

28) 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.

29) The Union relied on its density of union membership as evidence that there was majority support for collective bargaining, which the Employer did not dispute. 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. With an apparent density of membership of 70.77% in its proposed bargaining unit, the Panel has therefore 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.

10. Decision

30) For the reasons given in paragraphs 25 - 29 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Kenneth Miller, Panel Chair

Mr Tom Keeney

Mr Matt Smith

25 March 2020