Decision

Acceptance Decision

Updated 8 October 2018

Case Number: TUR1/1047(2018)

4 June 2018

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

BPDTS

1. Introduction

1) PCS (the Union) submitted an application to the CAC on 25 April 2018 that it should be recognised for collective bargaining by BPDTS (the Employer) for a bargaining unit comprising “All staff directly employed by BPDTS”. The locations of the bargaining unit were given as Benton Park View, Newcastle, Peel Park, Fylde, Great Wilson Street, Leeds, St Peter’s Square, Manchester, Hanover Way, Sheffield and Tothill Street, London. The CAC gave both parties notice of receipt of the application on 26 April 2018. The Employer submitted a response to the CAC dated 2 May 2018 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 James Tayler, Chairman of the Panel, and, as Members, Mr Robert Lummis and Ms Virginia Branney. The Case Manager appointed to support the Panel was Nigel Cookson.

2. Issues

3) 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

4) In its application the Union said that it had first approached the Employer to discuss recognition in June 2016. This was followed by a formal request for recognition on 19 January 2018 which was withdrawn. A further formal request, upon which the Union now relies, was made on 16 March 2018. A copy of the Union’s letter of 16 March 2018 was enclosed with the application.

5) According to the Union, there was a total of approximately 440 workers employed by the Employer with approximately 418 of these falling within the proposed bargaining unit. The Union stated that it had 123 members within the proposed bargaining unit. Asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union said that 250 staff had signed a petition calling for trade union recognition for the Union. This was 59.80% of the bargaining unit. The Union stated that it continued to collect signatures.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that the proposed bargaining unit comprised staff directly employed by the Employer. Members of the extended management team were excluded as they were civil servants and were covered by existing agreements under which the Union bargained over their pay and conditions. Contractors were likewise excluded as they were employed by the agency providing them. The Union confirmed that the bargaining unit had not been agreed with the Employer.

7) When asked whether there was an existing recognition agreement which the Union was aware of the Union stated that an agreement had been in place previously but that the Employer, which was a government owned GovCo, had refused recognition following a TUPE Transfer. The Union confirmed that the Employer had not proposed that Acas be requested to assist following its receipt of the Union’s formal request for recognition and it also confirmed that it had served a copy of the application form and supporting documents on the Employer on 25 April 2018. Finally, when asked if it had made a previous application for statutory recognition for workers in the same or similar bargaining unit the Union answered “Yes, on 1/3/18. Application withdrawn on Acas advice to clarify bargaining unit and workplaces”.

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

8) The Employer stated that it had received the Union’s previous formal request for recognition under the Schedule on 22 January 2018. When asked what its response was, the Employer stated that a response to the request was sent to the Union on 2 February 2018 rejecting the request. A copy of the letter was attached which confirmed the decision and outlined the reasons for it.

9) The current request under the Schedule was received on 16 March 2018. A response was sent to the Union on 22 March 2018, again rejecting the request.

10) The Employer, when asked if it agreed the bargaining unit, answered “No.”. Asked to set out its objections the Employer stated that the proposed bargaining unit of “All staff directly employed by BPDTS” would, include members of the Extended Leadership Team that formed part of the decision making body within business. The Employer was concerned that this could lead to a conflict of interest in any negotiations with the Union. In its application, the Union had stated that members of the extended leadership team were civil servants, which was incorrect as the vast majority were in fact employed by the Employer. The Employer was also concerned that it would have different groups of employees on different terms and conditions of employment as a significant proportion of its employees had TUPE transferred into the organisation on legacy terms and conditions. The Employer was therefore concerned about how the proposed bargaining unit would allow for effective collective bargaining.

11) The Employer did not agree with the Union’s figure as to the number of workers in the bargaining unit. As it was proposing that all employees were included in the bargaining unit this would mean a bargaining unit of 451 employees rather than the 418 as stated in the Union’s application. The Employer also mentioned that it had 12 new hires currently on-boarding and it was expecting to significantly increase its workforce in the coming months.

12) When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer stated that it had not been provided with any evidence by the Union to verify its assertions.

13) The Employer enclosed correspondence between the parties which highlighted its concerns about the nature of approaches to its employees.

14) When asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, the Employer again stated that it did not have any evidence to support the Union’s assertion.

15) The Employer added that it already had an employee forum in place through which it engaged with its workforce. Given this structure was already in place the Employer could not assume that the majority of those working in the proposed bargaining unit were likely to support recognition and contended that evidence of this support was required.

16) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the proposed bargaining unit. When asked whether, following receipt of the Union’s request, the Employer had proposed that Acas be requested to assist, the Employer answered “No”.

17) Finally, 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 that it had received a previous written request from the Union under the Schedule on 22 January 2018.

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

18) The Employer’s response was copied to the Union and its comments invited; both in general; and specifically on the Employer’s contention that most of the Extended Leadership Team were direct employees rather than civil servants. In a letter dated 8 May 2018 the Union stated that it had enclosed a copy of the Employer’s Annual Report which, at page 16 onwards, made it clear that all of the Employer’s directors were senior civil servants and that their pay was set by the prime minister. The Union understood these managers were known as the extended management team and it did not seek recognition in respect of them. Rather, it sought recognition for all staff directly employed by the Employer. If, when expressing concern about a conflict of interest, the Employer was referring to managers whom it directly employed, then the Union would argue there was no conflict. It was common for managers to negotiate with unions for a group of workers including themselves.

19) In response to the Employer’s concern about different groups of employees being employed on different terms and conditions of employment, the Union said it was vastly experienced at negotiating on behalf of, and taking account of, the different needs of different groups. This was routine in collective bargaining.

20) The Union stated that it did not have access to the Employer’s headcount figures and that its figure of 418 was based on all available information about the number of employees and then excluding civil servants and staff employed by contractors.

21) In terms of the question of access to the workers and the collection of signatures on the petition, the Union stated it had relatively good access to workers at Longbenton until late 2017 when it was asked by the Employer not to enter that area of the site. Since then the Union had continued to collect signatures and recruit in a common area at the foot of the stairs near the work area. At Peel Park the Employer’s workers were generally mixed in with DWP staff and the Union regularly recruited at that site and talked to the workers as a part of the recruitment work.

6. Membership and Support Check

22) To assist in the application of the admissibility tests, the Panel proposed independent checks of the level of union membership in the proposed bargaining unit and the number of workers in the unit who had signed a petition supporting recognition of the Union. The information from the Union was received by the CAC on 14 May 2018 and from the Employer on 18 May 2018. The information from the Union was received by the CAC on 14 May 2018 and from the Employer on 15 May 2018 and 17 May 2018. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and the petition would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to both parties dated 14 May 2018.

23) The Employer initially provided a spreadsheet with 560 names but when this number was queried it explained that it had inadvertently deleted a column from the original spreadsheet which set out the employment status of those listed. 109 of these named individuals on the list of 560 were either contractors or secondees and in removing these 109 non-permanent staff, the number of staff was 451 as stated in its response. It was against this list of 451 workers that the comparison was undertaken. A list of the job titles provided by the Employer for the 451 workers in the proposed bargaining unit was annexed to the Case Manager’s report.

24) The Union provided a print-out bearing the details of 121 members as well as a 21 page petition. Each page of the petition carried the following proposition: PETITION IN SUPPORT OF TRADE UNION RECOGNITIONN (sic) AT BPDTS The Public and Commercial Services union (PCS) is asking your employer to recognise it for collective bargaining. We have to show the Central Arbitration Committee that a majority of workers favour our application. If you want your employer to recognise PCS for collective bargaining please sign the petition. I support recognition of The Public and Commercial Services union (PCS) as entitled to conduct collective bargaining on pay, hours and holidays: Each signatory was asked to print their name and job title and to then sign and date the petition. The dates on the petition ranged between 22 November 2017 and 22 February 2018.

25) According to the Case Manager’s report the total number of workers in the bargaining unit was 451 and the number of Union members in the bargaining unit was 116, a membership level of 25.72%. The check of the petition showed that it had been signed by 236 workers in the bargaining unit, a figure which represents 52.33% of the bargaining unit. Of those 236 signatories, 104 were members of the Union (23.06% of the bargaining unit) and 132 were non-members (29.27% of the bargaining unit). A report of the result of the membership check was circulated to the Panel and the parties on 18 May 2018 and the parties’ comments invited.

7. Parties’ comments on the Case Manager’s report

26) In a letter dated 18 May 2018 the Union once again stated its concern that the Employer was expanding the bargaining unit by including people whom it did not directly employ but were seconded from the civil service from the DWP.

27) The union stated that 25.72% of the workforce were members. This easily met the criteria of 10%.

28) According to the Case Manager’s check of the petition, 52.33% of the workforce supported recognition of the Union. The Union stated that this was a majority of the workforce.

29) In a letter received on 25 May 2018 the Employer set out its observations on the tests set out in paragraph 36 of the Schedule. First, in relation to paragraph 36(1)(a), if the CAC were content that the evidence provided, showed that there were 121 members of the Union, the Employer would not contest this finding. The Employer stated that from reading the report, it would appear that the evidence provided by the Union was clear, the source reliable and the margin of error low, at 4%.

30) In considering paragraph 36(1)(b), whilst the Employer accepted that the evidence provided showed that 52.33% of the staff (comprising 23.06% Union members and 29.27% non-members) had signed the Union’s petition to say that they supported recognition of the Union in respect of pay, holiday and hours. The Employer still had some concerns about the way in which this information was collected and individuals’ understanding of what signing the petition could mean.

31) The employer stated that it had been advised that representatives of the Union made some staff feel uncomfortable in the way the Union approached them; directly at their desks, and asking for their support in front of other members of staff. This left the Employer concerned that some may have signed this petition under some duress. The Employer suggested this might explain the 13% of names that had to be discounted as part of the count. The Employer contested that it was hearing that there was some confusion as to what this application was looking to achieve as people were not fully aware that the Union application was to cover ‘all BPDTS employees’. The Employer had heard that some had a perception, that they were being asked if they were supportive of the Union representation for those staff that want to be represented. This differed from the bargaining unit being requested by the Union. Without clear communications setting out what the Union was seeking by way of a bargaining unit and individuals being given an opportunity proactively to voice their preferences, by way of a private ballot, the Employer still had reservations around accepting the evidence on face value. The Employer suggested a ballot would be conducive to good industrial relations.

8. Considerations

32) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision. The Panel is satisfied that the Union made a valid request to the Employer within the terms specified in paragraphs 5 to 9 of the Schedule to recognise it for collective bargaining in respect of the bargaining unit as described in paragraph 1 of this decision in its letter of 16 March 2018. The request was made in writing, identified the Union, the proposed bargaining unit, and stated that it (the request) was made under the Schedule.

33) The Panel is also satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 and that it was made in accordance with paragraph 11(2) of the Schedule in that before the end of the first period of 10 working-days following the Employer’s receipt of the request for recognition, the Employer informed the Union that it did not accept the request without indicating a willingness to negotiate. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

9. Paragraph 36(1)(a)

34) 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 established that membership stood at 25.72%, a figure which the Employer did not dispute. Accordingly, it is clear to the Panel that members of the Union constitute at least 10% of the workers in the bargaining unit.

10. Paragraph 36(1)(b)

35) The test in paragraph 36(1)(b) is whether 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. In support of its claim that a majority would be likely to support recognition the Union put forward a petition which had been signed by 52.33% of the workers in the proposed bargaining unit of which 23.06% were Union members and 29.27% were non-members. The Union submits that the figures speak for themselves. The Employer, on the other hand, has questioned both the understanding of those that signed the petition and the way in which it was conducted. It argued that some workers were not clear as to the scope of the recognition that the Union sought with some believing that it would only extend to those that wished to be represented rather than the entirety of the workforce as encompassed by the Union’s definition. It also argued that some workers may have signed the petition under duress on the basis that they were approached by the Union at their desks in front of colleagues.

36) The Panel emphasise that, at this stage in the statutory process, we have to decide likely, not actual, majority support for recognition, and to do so within a reasonably short timeframe. Having considered the submissions made by the parties and having taken into account the findings set out in the Case Manager’s report we decide that a majority of the workers in the bargaining unit would be likely to support recognition of the Union and the test set out in paragraph 36(1)(b) is met. The petition was signed by a majority of the workers in the proposed bargaining unit. The proposition on the petition was clear and unambiguous and in our view, would have left the workers in no doubt as to what they were being asked to support. We believe that the results of the petition can be taken as a legitimate indictor of the views of the workers. We are not persuaded that, as suggested by the Employer, some employees felt coerced into signing without direct evidence from those concerned. We cannot judge whether, if there was any “coercion”, this would have significantly affected the numbers who signed the petition.

37) This is the first stage in the statutory process. The next will be to see whether the parties are able to agree the appropriate bargaining unit. If not, then the Panel will determine the matter. Once the appropriate bargaining unit has been agreed, or decided, the Panel will determine whether there should be a secret ballot taking into account the submissions of the Employer and Union.

11. Decision

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

Panel

Mr James Tayler, Chairman of the Panel

Mr Robert Lummis

Ms Virginia Branney

4 June 2018