Decision

Acceptance Decision

Updated 21 September 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1343(2023)

13 July 2023

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 (PCS) Union

and

Mitie Limited

1. Introduction

1) The Public and Commercial Services (PCS) Union (the Union) submitted an application to the CAC dated 23 June 2023 that it should be recognised for collective bargaining purposes by Mitie Group Limited ^{[footnote 1]} (the Employer) in respect of a bargaining unit comprising “Security personnel for Mitie at 22 Whitehall, London, SW1A 2EG. For the purposes of this definition ‘staff’ covers the following job roles (or similar titles in these areas of work): Guarding Manager, Assistant Guarding Manager, Deputy Manager, Assistant Deputy Manager and Security Officer/Guard.” The location of the bargaining unit was given as “22 Whitehall, London, SW1A 2EG.” The application was received by the CAC on 23 June 2023 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 30 June 2023 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 Ms Laura Prince, Panel Chair, and, as Members, Mr Mustafa Faruqi, and Mr Nicholas Childs. The Case Manager appointed to support the Panel was Joanne Curtis.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 7 July 2023. The acceptance period was extended to 31 July 2023 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 made a request for recognition to the Employer on 7 June 2023. The Union stated that the Employer responded on 15 June 2023 stating:

“As you may be aware we have been in communication with PCS’s Sharon Leslie regarding the same request and have previously advised that 22 Whitehall is currently being extensively refurbished and following collectively and individual consultation last year with employee representatives, employees were successfully redeployed within Mitie, leaving a small skeleton crew on the site. To date we are not advised, by the client, when this building will re-open OR what the Security service requirements post refurbishment will be. You are also aware that the 22 Whitehall contract is due to transfer to G4S on the 1st of October 2023 therefore given the uncertainty as to what services will ultimately be required once the building re-opens and a date for re-opening, we are not in a position to agree voluntary recognition at this time. Should that situation change in the coming weeks we will revisit your request.”

A copy of the Union’s letter of 7 June 2023, together with the response from the Employer dated 15 June 2023 was attached to the 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 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 77,500. The Union stated that there were 17 workers in the proposed bargaining unit, of whom 12 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 “PCS can provide a membership list of 12 members to the CAC which demonstrates the growth in membership in 2022 – 2023 the majority of the employees who joined the union in support of union recognition. The list is not attached to this form for confidentiality purposes.”

8) The Union stated that the reason for selecting its proposed bargaining unit was because those working within 22 Whitehall were only employed at that workplace and were not required to work on other sites covered by the Employer. The Union said that 22 Whitehall was a government office formerly occupied by the Foreign, Commonwealth and Development Office (FCDO) until around 2022 when the building was closed for refurbishment. The Union said it would be re-occupied by another government department in the near future, however there was a small team of Mitie security staff who had been retained in the building for approximately 12 months. The Union went on to say that there was already some Department/site specific recognition agreements in place covering separate government departments within Mitie’s central government and defence areas. Specifically, two sites of the FCDO, Ministry of Defence, the Cabinet Office, and the Department for Work and Pensions. The Union said that workers within the proposed bargaining unit all worked within the same sector, security and this was a single site bargaining unit, so there would be no fragmentation. The Union said that the Employer had recently recognised the Union for security personnel at a FCDO site in Scotland.

9) In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit. 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 23 June 2023.

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 June 2022 and responded by email. The Employer attached a copy of the email to its response. The Employer stated that it had received a copy of the Union’s application form from the Union on 23 June 2023.

11) The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union. The Employer said that it did not agree the proposed bargaining unit because the 22 Whitehall building had closed for refurbishment on 31 March 2022 and since then had operated with skeleton staff on site consisting of approximately 19 security and 3 Facilities Management staff. The Employer said that the contract it had with the client for security services was due to end on 1 October 2023. The Employer said that it had been advised part of the building was scheduled to re-open from 30 November 2023, and the remainder scheduled to open on 24 February 2024. The Employer said it had no details on what services would be required to be delivered from 30 November 2023 onwards. Furthermore, the Employer said that its security services workforce would be transferred to G4S on 1 October 2023 and in light of the uncertainty, the statutory application for recognition be deferred until the transfer had taken place.

12) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist the parties. The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application adding that as of 30 June 2023, there were a total of 19 full time security staff that remained working at 22 Whitehall. The roles currently deployed were: Security Site Manager; Assistant Security Site Manager; 3 x Duty Shift Managers; 12 x Security Officers and 2 x CORE Relief Security Officers. The Employer did not consider that the Security Site Manager should be included in the bargaining unit. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) When asked whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, and 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”.

14) 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 when asked if it had received any other applications in respect of workers in the proposed bargaining unit the Employer answered “n/a”.

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

15) The Union said that there was no provision in Schedule A1 for the CAC to defer a recognition application and submitted that it would not be appropriate for the CAC to do so. The Union said that the correct approach would be for the CAC to determine the application on the basis of the circumstances as they existed at the time when the decision falls to be made. The Union said that the anticipated change referred to by the Employer was not due to take place for at least 3 months and there was important bargaining issues which needed to be addressed before then.

16) The Union said that the proposed bargaining unit would still be appropriate and compatible with effective management after 23 October 2023. The Union stated that the proposed bargaining unit consisted of security personnel working at 22 Whitehall and that regardless of which government department occupied 22 Whitehall after 23 October 2023, there would still be security personnel employed, by a contractor providing security services, at 22 Whitehall after that date. The Union went on to say that the impending TUPE transfer of the staff in the proposed bargaining unit to G4S was not a barrier to the CAC determining the Union’s application for recognition by the Employer. The Union said “Regulation 6 of the TUPE Regulations provides that where a union was recognised by the transferor in respect of a category of employees, and maintains an identity distinct from the transferor’s undertaking, then the union will be deemed to have been recognised by the transferee to the same extent as it was recognised by the transferor.”

17) The Union said that although the Employer had stated that there was currently 19, as opposed to 17, workers in the proposed bargaining unit. The Union understood that the two “CORE Relief Security Officers” may be agency staff and, therefore, not employed by the Employer. The Union said that it had 15 Union members in the proposed bargaining unit, so the requirement for at least 10% of the workers in the proposed bargaining unit to be members of the union and the requirement for a majority of workers in the proposed bargaining unit to be likely to favour recognition had both clearly been met. The Union said that its position was that the Security Manager should be included in the bargaining unit because it was a front-line manager role with no significant responsibility for bargaining or decision making in relation to pay or other terms and conditions. The Union concluded by saying that “In a case involving similar facts, the Employer has previously conceded that the role of Site Security Manager at a government site, the FCDO office in East Kilbride, should be included in the bargaining unit [case number TUR1/1272(2022 – paragraph 6 of decision dated 14 February 2023)].”

6. The membership and support check

18) 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, dates of birth and job roles (where available). 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 6 July 2023 from the Case Manager to both parties.

19) The information requested from the Employer was received by the CAC on 11 July 2023 and from the Union on 6 July 2023. 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 19 workers in the Union’s proposed bargaining unit.

21) The list of members supplied by the Union contained 15 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 15, a membership level of 78.95%.

22) A report of the result of the membership and support check was circulated to the Panel and the parties on 11 July 2023 and the parties were invited to comment on the results of that check by noon on 13 July 2023.

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

23) In a letter dated 12 July 2023 the Union said that the membership check demonstrated that the majority of the workers in the bargaining unit were members of the union at nearly 80%. The Union said that it also provided the joining date for each member, which dated from 2021 to 2023 indicating that members joined with the purpose of the Union gaining collective bargaining rights.

24) The Employer stated that it had no comments to make on the membership check.

8. Considerations

25) 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.

26) 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.

Paragraph 36(1)(a)

27) 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.

28) The membership check conducted by the Case Manager (described in paragraphs 18 - 22 above) showed that 78.95% 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 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.

Paragraph 36(1)(b)

29) 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.

30) For the reasons given in paragraph 28 above, the Panel has concluded that the level of union membership within the proposed bargaining unit stands at 78.95%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union.

31) 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.

9. Decision

32) For the reasons given in paragraphs 25 - 31 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Ms Laura Prince, Panel Chair

Mr Mustafa Faruqi

Mr Nicholas Childs.

13 July 2023

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1. In a letter dated 6 July 2023 the Union requested that the name of the Employer be corrected from Mitie Group Limited (which is not a legal entity) to Mitie Limited, which the Employer had previously accepted [in case number TUR1/1272(2022) – paragraph 9 of Decision dated 16 March 2023] is the employing entity. ↩