Decision

Form of Ballot Decision

Updated 8 October 2018

Case Number: TUR1/1047(2018)

08 August 2018

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992 SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECISION ON FORM OF BALLOT

The Parties:

The Public and Commercial Services Union (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 Chair established a Panel to deal with the case. The Panel consisted of Mr James Tayler, Panel Chair, and, as Members, Mr Robert Lummis and Ms Virginia Branney. The Case Manager appointed to support the Panel was Nigel Cookson.

3) By a decision dated 4 June 2018 the Panel accepted the Union’s application. The parties then entered a period of negotiation, which was extended at the request of the Employer, in an attempt to reach agreement on the appropriate bargaining unit.

4) The Union, in an email to the CAC dated 11 July 2018, stated that the parties met with Acas on 6 July 2018 and reached an agreement as to the appropriate bargaining unit. The agreed bargaining unit, which differed very slightly from that originally proposed by the Union, was “all staff directly employed by BPDTS below the level of Digital Service Practice Leads (DSPLs)”. The parties had issued a joint statement to this effect and a copy of the statement was attached to the Union’s email. The agreed bargaining unit differed from that as originally proposed by the Union by the exclusion of the role of Head of Digital Ops. The agreed bargaining unit also excluded the role of Digital Service Practice Leads, a role created since the Union originally defined its proposed bargaining unit.

5) As the agreed bargaining unit differed from that proposed by the Union the Panel was required by paragraph 20 of the Schedule to determine whether the Union’s application was valid or invalid within the terms of paragraphs 43 to 50. To this end both parties were invited to supply the Panel with written submissions relating to the validity tests.

6) By a decision dated 24 July 2018 the Panel determined that the application was valid for the purposes of paragraph 20 and that the CAC would therefore proceed with the application.

2. Issues

7) On 24 July 2018, the Panel, satisfied that a majority of the workers constituting the new bargaining unit were not members of the Union, gave notice in accordance with paragraph 23(2) that a secret ballot would be held. The Panel also advised the parties that it would wait until the end of the notification period of ten working days, as specified in paragraph 24(5), before arranging a secret ballot. The parties were also asked for their views on the form the ballot should take.

8) The notification period under paragraph 24(5) of the Schedule ended on 7 August 2018. The CAC was not notified by the Union or by both parties jointly that they did not want the ballot to be held, as per paragraph 24(2).

3. Union’s submissions on the form of ballot

9) In an email dated 30 July 2018 the Union submitted that in order to maximise participation it would formally request a workplace ballot. Its experience in running all types of ballots showed that a postal ballot invariably resulted in the lowest level of participation and a workplace ballot would always achieve the highest level of participation.

10) The Union had exchanged emails with the Employer about this and the Employer’s preference was for a postal ballot rather than a traditional workplace ballot. The Union stated that the Employer said it had received complaints about the Union approaching staff in the past and, understandably, wanted to be seen to respond to the concerns expressed by its employees. The Union believed that there had only ever been one or two complaints and had expressed concerns about the tail wagging the dog. The Union would try to allay the Employer’s concerns by minimising any face to face contact with staff once the ballot had started.

11) The union noted that the Employer had expressed provisional support for an electronic workplace ballot using the intranet to register vote. The Union would support this type of ballot method if it was allowable.

4. Employer’s submissions on the form of ballot

12) In an email dated 27 July 2018 the Employer expressed its preference for a postal vote. It explained that its aim had always been to ensure that as many people as possible were able to share their view and shape the outcome of any decision for union recognition. The Employer wanted to ensure that, as a company, where it could make decisions in a democratic way, it would. The Employer therefore welcomed a ballot to ensure that the vast majority of its people were able to cast a vote and have their say.

13) The Employer wanted to ensure that everyone had the ability to hear from the Union and it proposed that it worked closely with the Union to offer access to the staff to inform them about union recognition and its benefits, however, the Employer would like to give people the chance to vote in private. The Employer had thought long and hard, and in reaching its preference for a postal ballot, had considered the following;

• The Employers premises were shared with other government departments therefore it did not want to cause disruption in shared communal areas.

• The Employer needed to ensure that colleagues had the opportunity to cast a vote but were not pressurised to do so. The Employer knew that some colleagues were upset by the desk-to-desk canvassing that took place earlier in the year and, as such, it did not want to be in a position where people feel pressured to go and cast a vote, even when not in favour of recognition, as it was entirely their choice if they wished to take part in the vote at all. The Employer was concerned that if people were not seen to vote this could ostracise them amongst their peers and whilst this was nothing the Union could control, the Employer would want to protect the privacy of its people.

• Postal votes were used by the Union to canvass the votes of its members as part of public sector decision making therefore the consistency of the approach seemed sensible to the Employer and it therefore did not believe there to be a detriment for those who wished to vote as the postal system was quick and easy to use.

14) If there was an option for electronic voting the Employer would be keen to explore this method as a quick and unobtrusive way of people sharing their views.

5. Considerations

15) When determining the form of the ballot the Panel is restricted by those forms that are listed in the Schedule namely a workplace ballot, a postal ballot or a combination of the two methods. The Panel is not able to look beyond these options currently.

In determining - the type of ballot provided for in the Schedule the CAC must take into account the following considerations specified in paragraphs 25(5) and (6) of the Schedule:

(a) the likelihood of the ballot being affected by unfairness or malpractice if it were conducted at a workplace;

(b) costs and practicality;

(c) such other matters as the CAC considers appropriate

16) The Panel, having carefully considered the parties’ submissions, has decided that, on the grounds of practicality and cost, the appropriate form of ballot is a postal ballot. The six sites that form the agreed bargaining unit are distributed throughout the country in Newcastle, Fylde, Leeds, Manchester, Sheffield and London. In our view, it would be significantly more expensive to hold a workplace ballot than a fully postal ballot given the geographical spread of the workers. It would also be a logistical challenge for any of the approved balloting organisations on the Secretary of State’s list. It would be more practical to conduct a postal ballot than a workplace ballot given that the Employer shares its premises with other government departments and there may be difficulties in the ballot box being located in an area that would be suitable for the conduct of the ballot. A workplace ballot may cause disruption to the Employer’s operations and/or to those of the relevant Government departments. The Panel is not persuaded that there is a significant risk of unfairness or election malpractice if the ballot was held at the workplace and accepts that a postal ballot may result in a rather lower turnout but, nonetheless, consider the factors mentioned above are of such significance that they make a postal ballot more suitable.

6. Decision

17) The decision of the Panel is that the ballot be a postal ballot.

18) The name of the Qualified Independent Person appointed to conduct the ballot will be notified to the parties shortly as will the period within which the ballot is to be held.

Panel

Mr James Tayler, Panel Chair

Mr Robert Lummis

Ms Virginia Branney

08 August 2018