Decision

Acceptance Decision

Updated 21 September 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1349(2023)

23 August 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 27 July 2023 that it should be recognised for collective bargaining purposes by Mitie Limited (the Employer) in respect of a bargaining unit comprising “the staff groups listed below, who are all employed by Mitie Ltd and work on the Cabinet Office contract at the following sites: 70 Whitehall, London, SW1A 2AS Admiralty House & Ripley Barrier, Whitehall, London SW1A 2AY 35 Great Smith Street, London SW1P 3BQ Dover House, Whitehall, London SW1A 2AU Building 5, 10 Downing Street, London SW1A 2AA 10 Victoria Street (COBRA reception), London SW1H 0NN. For the purposes of this definition ‘staff’ covers the following job roles (or similar titles in these areas of work): First-line managers, supervisors/team leaders and all staff they manage across the security, soft FM services and hard FM services lines of business, including: Security administrator, supervisors/team leaders and first-line managers Security guards/operatives (including Relief Team and CORE Operatives) Security receptionists and other support and administrative roles All facilities management roles in soft and hard services All other receptionists/front of house roles Workplace assistants and facilities assistants Logistics: Messengers (floor, ministerial and driver), distribution clerk, and porters, mail/post room operatives/staff and all Logistics staff Reprographics: manager and operatives Cleaners: housekeeping operatives and workplace assistants/cleaning supervisor and cleaning manager Catering: Kitchen chefs and under-chefs, and porter/general assistants, Coffee shop, PMO and hospitality supervisors, catering and hospitality assistants, and baristas Hard FM services Manager, M&E supervisor, technical supervisor, workplace supervisor Skilled technicians, multi-skilled maintenance technicians Handymen Plumbers Electrical apprentices/electricians Facilities co-ordinators, facilities assistants Maintenance workers and other hard FM services staff M&E operatives.” The location of the bargaining unit was given as “70 Whitehall, London, SW1A 2AS, Admiralty House & Ripley Barrier, Whitehall, London SW1A 2AY, 35 Great Smith Street, London SW1P 3BQ, Dover House, Whitehall, London SW1A 2AU, Building 5, 10 Downing Street, London SW1A 2AA and 10 Victoria Street (COBRA reception), London SW1H 0NN.” The application was received by the CAC on 27 July 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 3 August 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 Mr Rohan Pirani, Panel Chair, and, as Members, Mr Mustafa Faruqi, and Ms Joanna Brown. 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 10 August 2023. The acceptance period was extended to 31 August 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 11 July 2023. The Union said that the Employer did not respond. A copy of the Union’s letter of 11 July 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 64,000. The Union stated that there were 171 workers in the proposed bargaining unit, of whom 92 were members of the Union. The Union said that it could provide a membership list to the CAC to show that a majority of workers in the proposed bargaining unit were Union members.

8) 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: “Membership - The membership list that PCS provides to the CAC will show not only that a majority of staff in the proposed bargaining unit have chosen to join the union, but also that a number have joined PCS since we announced we would be applying for statutory recognition. As stated above, the list is not attached to this form for confidentiality purposes but will be supplied to the CAC in confidence to enable you to carry out statistical checks/verification. Petition - PCS can also provide signed copies of a petition, supporting PCS being recognised for collective bargaining. This petition has been signed by a majority of staff in the proposed bargaining unit since first being circulated on 14 July 2023. Copies are not attached to this form for confidentiality purposes but will be supplied to the CAC in confidence to enable you to carry out statistical checks/verification.”

9) The Union stated that the reason for selecting the proposed bargaining unit was that it comprised all categories of staff working on the Employer’s Cabinet Office contract across the specified sites from first line managers on down, across all lines of business “security, soft FM (including catering) and hard FM services.” The Union said that the proposed bargaining unit was compatible with effective management, as it was based on the existing line management structures.

10) 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 27 July 2023. The Union confirmed that it consented to its contact details being forwarded to Acas.

4. Summary of the Employer’s response to the Union’s application

11) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 6 June 2023 and responded by email on 15 June 2023. In the email the Employer referred to a draft voluntary recognition agreement that it had previously sent to the Union in January 2023. A copy of the email and past correspondence between the Parties was attached to the response document.

12) 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 Cabinet Office contract would be transferred to several different outsourcing companies on 1 October 2023. The Employer said that it had previously agreed to voluntarily recognise the Union for 21 Security Guards with ex-civil service terms and conditions employed on the Cabinet Office contract due to evidence relating to historical recognition. The Employer said that it did not agree with the scope of the bargaining unit stated by the Union as there was “no evidence suggesting other service lines, beyond the 21 ex-civil service security guards who transferred to Interserve (pre-Mitie), were in fact part of the bargaining unit historically recognised by Interserve.” The Employer said that it was willing to meet with Acas to discuss the scope of the bargaining unit adding “PCS have not suggested ACAS conciliation however we believe, given the complexities of the impending TUPE transfer, conciliation would benefit all parties involved.”

13) The Employer said that it did not agree with the number of workers in the bargaining unit as defined in the Union’s application and stated “159 employees across the sites listed by the PCS and 11 Managers making a total of 170 workers following an up-to-date head count check.” The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

14) 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 said, “Mitie are not aware of the current membership numbers on the contract.”

15) 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 replied “N/A.” The Employer said that it consented to its details being shared with Acas.

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

16) The Union said that the Employer was incorrect in stating that the written request for voluntary recognition was made on 6 June 2023. The Union clarified that the date of the written request was 11 July 2023 and the Union had received no response to the written request. The Union said that the proposed bargaining unit was appropriate and compatible with effective management within the Cabinet Office contract. The Union added that both the Employer and the Union were aware that both “soft and hard FM contracts” had their commencement dates put back from 1 October 2023 until at least 1 November 2023. The Union went on to say that the impending TUPE transfer of the staff in the bargaining unit 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. The anticipated change which the employer relies on is not due to take place for soft and hard FM for almost 3 months and almost 2 months for security staff, at the point of application, and there are important bargaining issues which need to be addressed before then.” The Union concluded by saying that it did not believe that there was a significant difference between the numbers the Union provided and the numbers the Employer provided. In the application the Union gave the number of workers in the proposed bargaining unit as 171 and that included first line managers. The Employer’s response stated 170 workers including 11 managers across the Cabinet Office sites.

6. 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 and of the Union’s petition. 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) and a copy of the petition. 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 10 August 2023 from the Case Manager to both parties.

18) The information requested from the Employer and Union was received by the CAC on 14 August 2023. 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 170 workers in the Union’s proposed bargaining unit.

20) The list of members supplied by the Union contained 97 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 96, a membership level of 56.47%.

21)The petition supplied by the Union contained 106 names, of which 102 were in the proposed bargaining unit, a figure that represents 60.00% of the proposed bargaining unit. Of those 102 names, 73 were members of the Union (42.94% of the proposed bargaining unit) and 29 were non-members (17.06% of the proposed bargaining unit).

22) A report of the result of the membership and support check was circulated to the Panel and the parties on 16 August 2023 and the parties were invited to comment on the results of that check by noon on 21 August 2023.

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

23) In a letter dated 21 August 2023 the Union stated that the results of the membership and support check showed that the Union had fully met the acceptance tests:

“1) 10% union membership

We are required to demonstrate that at least 10 per cent of workers in the proposed bargaining unit are union members. Your check confirms that at least 56.47% of these workers are PCS members.

2) support for collective bargaining

We are required to demonstrate that a majority of workers in the proposed bargaining unit support recognition of PCS in order for the union to undertake collective bargaining on their behalf.

We note that, in the absence of evidence to the contrary, the CAC is generally content to accept union membership as proof of such support. PCS members make up at least 56.47% of the bargaining unit. Of these, 11 members have joined since we notified members we were submitting a recognition claim to the CAC in June this year. In addition, we asked members to sign a recognition petition, and your check confirms that at least 60.00% of these workers, including at least 76.04% of PCS members, have signed our recognition petition.

The text of this petition clearly and unambiguously explains what recognition and collective bargaining would mean. Each signatory has signed the petition directly under the (bolded) statement: ‘I AGREE I want PCS to collectively bargain on my behalf’.”

24) The Union said that whilst it did not make a difference to the level of support for recognition, it noted that one member did not appear on the Employer’s list. The Union said that having carried out further checks it was clear that this worker did fall within the scope of the proposed bargaining unit. The Union said that the individual had confirmed to the Union that they worked for the Employer on the Cabinet Office contract at 70 Whitehall, in a role listed in the proposed bargaining unit.

25) The Employer chose not to comment on the membership and support check undertaken.

8. Considerations

26) 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.

27) 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. The Panel is also satisfied, on the balance of probabilities, that the application was made in accordance with paragraph 11(2) of the Schedule. Paragraph 11(2) 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).

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 Union sent an email to the Employer dated 11 July 2023 attaching the Union’s request for recognition. Although the Panel has had sight of the various emails exchanged between the Employer and the Union prior to 11 July 2023, the Employer has not provided the Panel with a copy of its response to the request dated 11 July 2023. The Union stated in its application that the Employer did not respond to the request of 11 July 2023. In the absence of any response by the Employer the Panel considers that paragraph 11 applies.

Paragraph 36(1)(a)

28) 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.

29) The membership check conducted by the Case Manager (described in paragraphs 17 - 22 above) showed that 56.47% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 18 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)

30) 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.

31) For the reasons given in paragraph 29 above, the Panel has concluded that the level of union membership within the proposed bargaining unit stands at 56.47%. 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.

32) The Panel have considered the petition and what implications any non-union member support could have on a Union’s chances of success. 29 non-union members signing a petition in a bargaining unit of 170 equates to 17.06% support. This supports the Panel’s general experience that there will be workers who are not members of the Union who would be likely to favour recognition of the Union.

33) The Panel, at this stage, is testing the likelihood of majority support and the information as presented by the Union would be sufficient to support the position that the Union have established a likelihood of majority support for collective bargaining within the bargaining unit.

34) 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

35) For the reasons given in paragraphs 26 - 34 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Rohan Pirani, Panel Chair

Mr Mustafa Faruqi

Ms Joanna Brown.

23 August 2023