Decision

Acceptance Decision

Updated 16 March 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1272(2022)

05 August 2022

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 (PCS)

and

Mitie Group PLC

1. Introduction

1) The Public and Commercial Services Union (PCS) (the Union) submitted an application to the CAC dated 30 May 2022 that it should be recognised for collective bargaining purposes by Mitie Group PLC (the Employer) in respect of a bargaining unit comprising:

“Security personnel, facilities management staff (cleaning and maintenance), catering/kitchen staff and mail room staff working for Mitie at Abercrombie House, Foreign Commonwealth and Development Office (FCDO), Eaglesham, East Kilbride G75 8EA. For the purposes of this definition ‘staff’ covers the following job roles (or similar titles in these areas of work); Cleaners/housekeeping/cleaning team leader, Security guards/ operatives, Security supervisors/line managers, Maintenance workers, Mail/post room operative/staff, Catering/kitchen general assistants, Catering/Kitchen general supervisors.”

2) The application was received by the CAC on 30 May 2022 and the CAC gave both parties notice of receipt of the application by letter of the same date. The Employer submitted a response to the CAC dated 8 June 2022 which was copied to the Union.

3) 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 Stuart Robertson, Panel Chair, and, as Members, Mr Alistair Paton and Mr Paul Morley. The Case Manager appointed to support the Panel was Kate Norgate.

4) The CAC Panel has extended the acceptance period in this case on three occasions. The initial period expired on 15 June 2022. In an e-mail to the Case Manager dated 18 June 2022 the Union requested a stay of the process to allow talks to take place with the Employer regarding voluntary recognition. The Panel Chair agreed to stay the proceedings until 18 July 2022 and the parties were notified of the stay in a letter from the Case Manager dated 1 July 2022. On 14 July 2022 the Union informed the Case Manager that the parties had been unable to agree the bargaining unit and would therefore continue with the statutory process. In a letter to the parties dated 14 July 2022 the Case Manager informed them that the stay had been lifted and that the statutory process would resume. The parties were also informed that the acceptance period would be extended until 2 August 2022 in order to allow time for the parties to comment on the report of the membership and support check and for the Panel to consider those comments before arriving at a decision. The final extension ends the acceptance period on 5 August 2022.

2. Issues

5) 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

6) In its application to the CAC the Union stated that it wrote to the Employer on 20 April 2022. The Employer had responded to the request on 29 April 2022. In this letter the Employer had informed the Union that the bargaining unit it had defined was now split between different business units in Mitie and that it was therefore not possible to agree to recognition. The Employer said that it was however prepared to continue discussions on the matter. The Union explained that having recognised the Employer’s agreement to negotiate, it responded to the Employer’s letter, by e-mail on 29 April 2022, and asked it to” elaborate slightly” as to whether it was stating that it agreed to negotiate over recognition, and, if so, whether it was open to Acas involvement. The Union also sought clarification from the Employer as to how the bargaining unit was now split between different business units within Mitie, and whether the employees were no longer employees of the ‘affiliates’ cluster/contract. The Union said that the Employer did not respond to its e-mail of 29 April 2022 and it therefore wrote again to the Employer on 20 May 2022 in which it forwarded its e-mail of 29 April 2022 and informed the Employer that if it had not received a response by 25 May 2022 it would proceed with the statutory process. The Union said that the Employer did not respond, and it consequently submitted its application to the CAC. A copy of the Union’s request, the Employer’s letter of 29 April 2022, and the Union’s e-mails of 29 April 2022 and 20 May 2022 were attached to the Union’s application.

7) 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.

8) The Union stated that the total number of workers employed by the Employer was 77,500. The Union stated that there were 29 workers in the proposed bargaining unit, of whom 20 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 stated that it could provide a petition signed by 28 of the 29 workers in its proposed bargaining unit who had signed a petition, “supporting PCS trade union recognition and pay bargaining.” The Union said that it could provide a membership list, with names redacted due to fear of reprisal, that consisted of 28 members. The Union believed that this demonstrated its growth in membership in 2021 – 2022.

9) The Union stated that the reason for selecting its proposed bargaining unit was because those employees who worked within Abercrombie House were all employed solely at this workplace under the FCDO, and they were not required to work on other sites covered by the Employer. The Union further explained that there were already some department /site specific recognition agreements in place that covered separate government departments within Mitie’s central government and defence areas, specifically, in the Ministry of Defence, Cabinet Office and the Department for Work and Pensions. The employees within the proposed bargaining unit were all ‘front line’ jobs roles with similar levels of pay. It was a single site bargaining unit under the same management, which the Union believed would not lead to fragmentation. The Union said that the Employer recognised the PCS at its London FCDO site for a mixture of similar jobs.

10) In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. When asked whether there were any existing agreements of which it was aware which covered any workers in the bargaining unit, the Union had left this blank.

11) 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 30 May 2022.

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

12) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 20 April 2022. In a letter dated 29 April 2022 the Employer had acknowledged receipt of the request and informed the Union that its proposed bargaining unit was now split between two business units within Mitie and that it was therefore not possible for it to agree to recognition. A copy of the Employer’s letter to the Union was attached to the Employer’s response.

13) The Employer stated that it had received a copy of the Union’s application form from the Union on 30 May 2022. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union, nor did it now agree with the proposed bargaining unit. The Employer further re-iterated its earlier comments, that the Union’s proposed bargaining unit was now split between two different business units within Mitie. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

14) 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 and gave the following breakdown for each role; Security = 17, Cleaning = 6, Catering = 4, Other = 3. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

15) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer said that whilst the Union had provided a redacted list of its membership, it was unable to agree or disagree to the Union’s estimate. The Employer stated that as the proposed bargaining unit was split between two separate sites in Mitie, each business unit was managed independently and therefore separate negotiations would be needed, as opposed to one separate bargaining arrangement.

16) 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 that, based on its response in paragraph 15 above, it did not believe that the required membership numbers would be met. The Employer further added that within the scope of the Union’s proposed bargaining unit the numbers differed due to the different business units.

17) The Employer answered “N/A” when asked both whether it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, and whether had it received any other applications in respect of workers in the proposed bargaining unit.

5. 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 and of a petition compiled by the Union. 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 and dates of birth) and a copy of its petition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and petition would not be copied to the other party and that agreement was confirmed in a letter dated 15 June 2022 from the Case Manager to both parties.

19) The information requested from both parties was received by the CAC on 20 June 2022. 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 32 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 20 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 19, a membership level of 59.38%.

21) The Union supplied a copy of the petition. However, as the Panel has not relied on the petition in respect of its admissibility decision, the Panel says no more about it.

22) A report of the result of the membership and support check was circulated to the Panel and the parties on 23 June 2022 and the parties were invited to comment on the results of that check by noon on 29 June 2022. In view of the stay of proceedings as set out in paragraph 3 above, this period was subsequently extended and the new deadline for comments was noon on 25 July 2022.

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

23) In a letter to the CAC dated 25 July 2022 the Union stated that, with the level of union membership in the proposed bargaining unit at nearly 60%, along with the majority of the workers in the proposed bargaining unit who had also signed a petition indicating their support for recognition, this indicated that it had met the tests set out in paragraph 36 of the Schedule,

24) No comments were received from the Employer.

7. Considerations

25) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 5 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. The membership check conducted by the Case Manager (described in paragraphs 18 - 20 above) showed that 59.38% 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)

28) 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. For the reasons given in paragraph 27 above the Panel has concluded that the level of union membership within the bargaining unit stands at 59.38%. 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. No such evidence to the contrary was received in this case. On the basis of the evidence before it the Panel has decided, on the balance of probabilities, that 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.

8. Decision

29) For the reasons given in paragraphs 26 - 28 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Stuart Robertson, Panel Chair

Mr Alistair Paton

Mr Paul Morley

05 August 2022