Decision

Acceptance Decision

Updated 24 November 2020

Applies to England, Scotland and Wales

Case Number: TUR1/1201 (2020)

24 November 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:

The Public and Commercial Services Union

and

Interserve Group Ltd

1. Introduction

1) The Public and Commercial Services Union (the Union) submitted an application to the CAC dated 3 November 2020 that it should be recognised for collective bargaining by Interserve Group Ltd (the Employer) for a bargaining unit described in the following terms:

Facilities management and catering workers with operational ‘frontline’ duties working for Interserve on the Foreign and Commonwealth Office contract in the UK at: • King Charles Street, London

• Lancaster House, London

• Northgate House, Milton Keynes

• Hanslope Park, Milton Keynes

For the purposes of this definition ‘frontline’ duties covers the following job roles (or similar titles in these areas of work):

• Cleaners/housekeeping/cleaning team leader

• Maintenance workers/engineers

• Porters/head Porter

• Catering general assistants

• Catering chefs

• Catering kitchen porters

This is specifically excluding staff in office-based, ‘support’, finance or ‘space planning’ roles, any staff without a frontline/operational role, senior management, and management grades with HR responsibilities, ie hearing grievances, conducting redundancy consultation meetings.

The location of the bargaining unit was given as the Foreign and Commonwealth Office (FCO) at King Charles Street London, Lancaster House London, Northgate House Milton Keynes, and Hanslope Park Milton Keynes. The CAC gave both parties notice of receipt of the application on 4 November 2020. The Employer submitted a response to the CAC dated 11 November 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 Gillian Morris, Chair of the Panel, and, as Members, Mr David Coats and Mr Richard Fulham. 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 18 November 2020. The acceptance period was extended to 30 November 2020 to enable the Panel to consider all the evidence.

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. In this case the Panel decided to treat as a preliminary issue the question of whether the application is made in accordance with paragraphs 11 or 12 (“the preliminary issue”). That being so, the summaries of the Union’s application and the Employer’s response to the Union’s application set out below are confined to those matters relevant to the preliminary issue. The Panel has not considered any other aspects of the parties’ submissions and they have played no part in the Panel’s decision.

3. Summary of matters contained in the Union’s application relevant to the preliminary issue

5) In its application to the CAC the Union, when asked to provide the date of its formal request for recognition to the Employer and a brief summary of the Employer’s response, stated that it had made a formal request on 1 October 2019 and 7 January 2020. The Union attached to its application the request dated 7 January 2020. The Union set out in some detail the history of industrial relations between the parties and gave an account of their negotiations relating to recognition, which had taken place with the assistance of Acas. The Union said that a final meeting between the parties with Acas conciliating had taken place on 19 October 2020. The Union stated that the Employer had said that it would not consider voluntary recognition before 31 March 2021, with a bargaining unit which excluded members in Milton Keynes, which the Union said was a variation on the Employer’s previous positions. The Union said that Acas had ended the talks as no progress had been made. The Union said that there had been two different rounds of Acas negotiations, and that as the Employer had changed its position on the bargaining unit twice and would not set a date for voluntary recognition, the Union did not see how negotiations could continue.

4. Summary of matters contained in the Employer’s response relevant to the preliminary issue

6) In its response to the Union’s application the Employer said that it had received the Union’s request for recognition on 19 October 2020. The Employer said that it had responded in writing to the Union’s request on 29 October 2020 and that it had agreed to further negotiations. The Employer said that at its most recent meeting held with the Union and Acas on 19 October 2020 it had offered a roadmap to recognition by 31 March 2021. The Employer said that the Union had demanded that recognition be agreed immediately and for it to be in place by 1 December 2020. The Employer said that, given the Covid-19 pandemic, it was continuing to operate in an immensely challenging environment and that, given the work that was required, it did not consider that the 1 December 2020 timeline was achievable. The Employer said that as the scope, terms of reference and governance of the relationship with the Union had not yet been agreed, it believed that March 2021 was a realistic timeframe for the parties to come to an agreement. The Employer said that it remained prepared and willing to continue discussions to reach agreement on a voluntary basis and that it was disappointing that the Union had not considered offering the Employer’s proposals to its members. The Employer attached to its response to the Union’s application a copy of the Union’s request dated 19 October 2020 and the Employer’s response to that request dated 29 October 2020 ^{[footnote 1]}. The response to the request concluded by stating that the Employer did not agree to the request or the bargaining unit defined by the Union but that it was prepared to continue to negotiate to reach agreement.

5. Further correspondence relating to the preliminary issue

7) On 11 November 2020 the Case Manager copied the Employer’s response to the Union and wrote to the Union, as far as is material, in the following terms:

The Panel Chair has noted that in your application to the CAC you attached a request for recognition made to the Employer dated 7 January 2020.

The Panel Chair has also noted that there is attached to the Employer’s response to your application a fresh request for recognition to the Employer dated 19 October 2020.

The Employer’s response to your application also includes a letter from the Employer to the Union dated 29 October 2020 responding to the Union’s request of 19 October 2020.

Paragraph 10 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (the Schedule) reads, so far as material, as follows,:

(2) If before the end of the first period the employer informs the union … that the employer does not accept the request but is willing to negotiate, sub-paragraph (3) applies.

(3) The parties may conduct negotiations with a view to agreeing a bargaining unit and that the union is ….to be recognised as entitled to conduct collective bargaining on behalf of the unit.

(6) The first period is the period of 10 working days starting with the day after that on which the employer receives the request for recognition.

(7) The second period is -

(a) the period of 20 working days starting with the day after that on which the first period ends, or

(b) such longer period (so starting) as the parties may from time to time agree.

Paragraph 12 of the Schedule reads, so as material, as follows:

(1) Sub-paragraph (2) applies if -

(a) the employer informs the union … under paragraph 10(2), and

(b) no agreement is made before the end of the second period.

(2) The union … may apply to the CAC to decide both these questions -

(a) whether the proposed bargaining unit is appropriate;

(b) whether the union has … the support of a majority of the workers constituting the appropriate bargaining unit.

The Panel Chair has asked that you comment in the first instance specifically on the timing of your application to the CAC in the light of these provisions of the Schedule.

8) In a letter to the Case Manager dated 18 November 2020 the Union said that it had submitted a formal request for recognition to the Employer on 7 January 2020 and the Employer had responded on 20 January 2020. The Union said that as the Employer had indicated a willingness to negotiate, the Union had invited Acas to conciliate the talks which took place on 11 March 2020 and 19 October 2020. The Union said that Acas had ended negotiations on 19 October 2020 with agreement from all parties due to failure to agree the bargaining unit and proposed timeframes for recognition. The Union said that after this meeting it had made a further formal request for recognition due to the time elapsed since the correspondence in January, stating in the covering email the following:

Following the ACAS meeting today, please find a refreshed statutory request for recognition. As discussed today, I would be grateful if you could respond quickly. And as we discussed, it would appear that we have exhausted talks so it would be preferable if you do not indicate that Interserve want further negotiations over recognition.

The Union said that, even though the Employer had been unwilling to change its position on the proposed bargaining unit during dispute resolution talks with Acas, its response on 29 October 2020 indicated that it was prepared to negotiate. The Union said that after a telephone conversation with a CAC official the Union had decided to base its application on the letter of 7 January 2020 as there were no significant differences in the proposed bargaining unit ^{[footnote 2]} and as such there was no need to ‘renew’ the request and there was no basis for further negotiations as already agreed during Acas talks on 19 October 2020.

6. Considerations

9) 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. As stated in paragraph 4, in this case the Panel’s decision is confined to the preliminary issue of whether the application was made in accordance with paragraphs 11 or 12.

10) As stated in paragraphs 5 and 8 above the Union’s application to the CAC was based on its request to the Employer dated 7 January 2020. However the Union acknowledged in its letter to the CAC dated 18 November 2020 that it had made a further request dated 19 October 2020 and that the Employer’s response to that request, as well as to its request of 7 January 2020, indicated a willingness to negotiate. The Panel endorses that view. In response to both requests the Employer informed the Union of its willingness to negotiate before the end of the “first period” of 10 working days starting with that on which the Employer received the request for recognition. It is apparent, therefore, that the application has not been made under paragraph 11 of the Schedule ^{[footnote 3]}. The Panel is required therefore to determine whether it has been made in accordance with paragraph 12.

11) Paragraph 12 of the Schedule reads, so as material, as follows:

(1) Sub-paragraph (2) applies if -

(a) the employer informs the union … under paragraph 10(2), and

(b) no agreement is made before the end of the second period.

(2) The union … may apply to the CAC to decide both these questions -

(a) whether the proposed bargaining unit is appropriate;

(b) whether the union has … the support of a majority of the workers constituting the appropriate bargaining unit.

The “first period” is defined in paragraph 10(6) as the period of 10 working days starting with the day after that on which the employer receives the request for recognition. The “second period” is defined in paragraph 10(7) of the Schedule as (a) the period of 20 working days starting with the day after that on which the first period ends, or (b) such longer period (so starting) as the parties may from time to time agree.

12) The Union’s application to the CAC was dated 3 November 2020. It is clear, therefore, that if the Union is able to rely on its request dated 7 January 2020 for the purposes of this application, the application will comply with the time limit specified in paragraph 12; the second period will have ended without an agreement being made. However if the Union, having made a later request dated 19 October 2020, can no longer rely on the earlier request of 7 January 2020 the Panel will be required to consider whether the conditions specified in paragraph 12 have been met in relation to that later request. The first question for the Panel to consider, therefore, is whether it is open to the Union to rely upon its earlier request.

13) Having considered the matter carefully the Panel has concluded that where a union has made more than one request to an employer before it makes an application to the CAC it is the final request which should be taken as the “request” for the purposes of paragraphs 10, 11 and 12 of the Schedule. The Panel notes that this issue is not addressed expressly in the Schedule but considers it to be implicit in the structure of these provisions. The Schedule is predicated on a union making a request to an employer; the employer having a time-limited opportunity in the “first period” to respond to that request and, if it wishes, to express a willingness to negotiate in relation to it. If the employer expresses a willingness to negotiate, the Schedule then affords a time-limited “second period” to allow negotiations to take place. If no agreement is made before the end of the “second period” the union can then apply to the CAC. The Panel does not consider that it is open to a union to circumvent these time limits by relying on a previous request which an Employer could, with reason, consider to have been superseded by a subsequent one.

14) The Panel would have been of the view expressed in paragraph 13 above even if the requests of 7 January 2020 and 19 October 2020 had identified identical bargaining units; the Employer should still be afforded the opportunity to respond to the later request according to the provisions of the Schedule. In this case, however, the bargaining units identified in the two requests are not the same. The request dated 19 October 2020, unlike that of 7 January 2020, includes carpenters and electricians, as well as maintenance workers and engineers, in its description of the job roles covered by the term ‘frontline’ duties: see further paragraph 8, note 2 above. To allow a union the option of relying on an earlier and different request for the purposes of an application to the CAC would have the potential of depriving an employer of the chance to consider whether it wished to negotiate on the bargaining unit identified in the later request. The Panel does not consider it appropriate for either party to have the option of choosing, where more than one request has been made, which request it wishes to rely upon for the purposes of the Schedule when making or responding to an application to the CAC.

15) The Panel notes the contents of the Union’s email to the Employer which the Union said had accompanied its request of 19 October 2020 in which the Union refers to a “refreshed” statutory request and states that “it would appear that we have exhausted talks so it would be preferable if you do not indicate that Interserve want further negotiations over recognition” (see paragraph 8 above). The Panel appreciates that the Union may subsequently have concluded that there had been no need to “renew” the request made on 7 January 2020 and that the Employer’s response to its request of 19 October 2020, which indicated a willingness to negotiate, may not have been the response which the Union had sought. However this does not change the Panel’s view that, the Union having made a later request on 19 October 2020, it is to that later request that the provisions of paragraph 12 should apply.

16) Having decided that it is the Union’s request dated 19 October 2020 which is material for the purposes of paragraph 12 the Panel is then required to consider whether the Union’s application has been made in accordance with paragraph 12. The Union’s application was dated 3 November 2020. The Employer stated in its response to the Union’s application that it received the Union’s request on 19 October 2020. The “first period” of 10 working days therefore ended on 2 November 2020. Paragraph 12 allows the Union to apply to the CAC if no agreement is made before the end of the “second period” of 20 working days starting with the day after that on which the first period ends. It thus requires the second period to have expired before it can be determined whether an agreement has been made. In this case the Union’s application to the CAC was made prior to the expiry of the “second period.” That being so, it has not been made in accordance with paragraph 12.

7. Concluding observation

17) Paragraph 12(2) of the Schedule states that a union, where no agreement is made before the end of the second period, may apply to the CAC to decide two questions: (a) whether the proposed bargaining unit is appropriate; and (b) whether the union has the support of a majority of the workers constituting the appropriate bargaining unit. Paragraph 2(3) states that references to the “proposed bargaining unit” are to “the bargaining unit proposed in the request for recognition”. Thus paragraph 12(2) permits a union to apply to the CAC to decide whether the bargaining unit proposed in the request for recognition is appropriate. In this case the bargaining unit proposed in the request for recognition dated 19 October 2020 included carpenters and electricians in the list of workers covered by the term “frontline” duties. This is the bargaining unit in respect of which paragraph 12 of the Schedule would permit an application to be made to the CAC following the 19 October 2020 request.

8. Decision

18) For the reasons given in paragraphs 10-16 above, the Panel has decided that the application is not made in accordance with paragraphs 11 or 12 of the Schedule and is not accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mr David Coats

Mr Richard Fulham

24 November 2020

1. The Employer also attached to its response to the Union’s application copies of requests made by the Union dated 1 October 2019 and 7 January 2020 and the Employer’s response to each of those requests. ↩

2. The bargaining unit identified in the Union’s request dated 7 January 2020 was the same as that described in the Union’s application to the CAC: see paragraph 1 above. The bargaining unit identified in the Union’s request dated 19 October 2020 differed from that identified in the Union’s application to the CAC in that carpenters and electricians, as well as maintenance workers and engineers, were included in the list of specified “frontline” duties (second bullet point). ↩

3. Paragraph 11 applies if – (a) before the end of the first period the employer fails to respond to the request, or (b) before the end of the first period the employer informs the union that the employer does not accept the request (without indicating a willingness to negotiate). ↩