Decision

Acceptance Decision

Updated 22 April 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1250/2022

18 February 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:

Prospect

and

AirTanker

1. Introduction

1) Prospect (the Union) submitted an application to the CAC dated 28 January 2022 that it should be recognised for collective bargaining purposes by AirTanker (the Employer) for a bargaining unit comprising “[t]hose permanent employees employed on the Line at RAF Brize Norton. For clarity this is for all employees below that of Senior Shift Supervisor”. The location of the bargaining unit was given as AirTanker RAF Brize Norton. The application was received by the CAC on 31 January 2022 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 7 February 2022 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 Professor Gillian Morris, Panel Chair, and, as Members, Mr David Cadger and Ms Hannah Reed. Ms Reed was subsequently replaced by Mr Steve Gillan. 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 14 February 2022. The acceptance period was extended to 23 February 2022 to allow the parties to comment on the results of a membership check and for the Panel to consider these 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 sent a request for recognition to the Employer on 8 November 2021. The Union said that the Employer had acknowledged the request on 8 November 2021 and had formally responded on 25 November 2021 seeking further information which was provided on 9 December 2021. The Employer replied on 13 December 2021 requesting a meeting in the New Year. The Union stated that this meeting took place on 11 January 2022, and the Employer declined recognition at that meeting. The Union said that the Employer’s reasoning was as follows:

• that another trade union (UNITE) is recognised;

• that base and line are integrated; and

• that the employer did not want to deal with two trade unions.

The Union said that following the refusal of voluntary recognition the Employer was informed on 21 January 2022 that the Union would submit an application to the CAC. A copy of the Union’s request letter of 8 November 2021 was attached to the application. The Union also attached a copy of the voluntary recognition agreement between the Employer and Unite the Union together with email correspondence between the Union and Unite the Union in which Unite the Union confirmed that its recognition agreement with the Employer was for “Base Maintenance only.”

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 c1000. The Union stated that there were 123 workers in the proposed bargaining unit, of whom c83 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 its members at the Employer had taken part in a survey on 13 October 2021 in which there were a series of questions relating to the workplace. In relation to recognition members were asked “[D]o you wish Prospect to seek recognition to represent employees collectively?” The Union said that 92%, had responded ‘“Yes” and 8% had responded “No”. The Union said that, in addition, a briefing had been provided to members in July 2021 on recognition and members had been consulted via Teams and individually about recognition.

8) The Union stated that the reason for selecting the proposed bargaining unit was that it was a logical bargaining unit covering employees with the Line Maintenance department. The Union said that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the proposed bargaining unit the Union answered “No”.

9) The Union confirmed that it held a current certificate of independence. The Union did not state on the application form the date that it had copied its application and supporting documents to the Employer.

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 31 January 2022. When asked what its response was, the Employer said “[W]e are responding through yourselves.”

11) The Employer confirmed that it had received a copy of the application form from the Union on 31 January 2022. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union and that it did not agree the proposed bargaining unit. The Employer stated that:

[t]here is already a Trade Union recognition (sic) within our Engineering department, (UNITE), with a collective bargaining agreement in place for those engineers that predominantly work within base maintenance at Airtanker, that representation is available to all Engineers should they wish to explore.

We have also never stated that we would not recognise Prospect as a Trade Union, we had informal talks with Prospect on Tuesday 11th January 2022 where we expressed a range of views and Prospect went away to consider their position following those discussions, we then had notification of their intention to seek formal recognition.

The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas be requested to assist.

12) The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as defined in the Union’s application and said that this number should be 114. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated that “114 is the combined total of line engineers and line technicians.” 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 left this section blank.

14) In answer to the question “If the application is made by more than one Union, and you wish to put forward a case that the Unions will not co-operate with each other, please give reasons” the Employer stated “[w]e already have Trade Union recognition for our engineers (UNITE).” ^{[footnote 1]} The Employer answered “None” 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.

5. The membership and support check

15) To assist in 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 their paid up members within that unit including their full names, date of birth and branch details/code membership number. It was explicitly agreed with both parties that to preserve confidentiality the respective lists would not be copied to the other party and that agreement was confirmed in a letter dated 8 February 2022 from the Case Manager to both parties.

16) The information requested from the Union was received by the CAC on 8 February 2022 and from the Employer on 10 February 2022. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

17) The list supplied by the Employer indicated that there were 114 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 83 names. According to the Case Manager’s report the number of members of the Union in the proposed bargaining unit was 61, a membership level of 53.5%.

18) A report of the result of the membership and support check was circulated to the Panel and the parties on 10 February 2022 and the parties were invited to comment on the results by noon on 15 February 2022.

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

19) In an email to the Case Manager dated 11 February 2022 the Union said that it believed that the figures were a fair reflection of the density of membership and so it had no further comments to make.

20) In an email to the Case Manager dated 15 February 2022 the Employer stated that it had no further comments and that it was comfortable with the accuracy of the list it had provided.

7. Considerations

21) 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.

22) 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 the period of 10 working days starting with the day after that on which the employer receives the request for recognition. ^{[footnote 2]} The Panel notes that the Employer stated in its response to the Union’s application that it received the Union’s request for recognition on 31 January 2022, the same day that the Employer stated that it had received a copy of the Union’s application to the CAC. The Union attached a copy of its letter of 8 November 2021 requesting recognition to its application and the Employer did not dispute the chronology of correspondence between the parties set out by the Union in which the Union stated that the Employer had acknowledged the request on 8 November 2021. The Panel is therefore satisfied, on the balance of probabilities, that the Union’s request was received by the Employer on 8 November 2021. On that basis the first period ended at midnight on 22 November 2021. According to the Union, and not disputed by the Employer, the Employer did not formally respond to the request until 25 November 2021. This means that, regardless of whether the Employer’s response indicated a willingness to negotiate, the Union would not have been informed of this before the first period had expired. The application thus fell within the terms of paragraph 11(2). ^{[footnote 3]}

23) The Panel is also satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42. Paragraph 35 provides that

An application under paragraph 11 or 12 is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit.

The Panel notes the Employer’s statement in its response to the Union’s application that there was already a recognition agreement with Unite the Union in place within its engineering department for those engineers who “predominantly work within base maintenance”. The Panel has examined carefully the recognition agreement between the Employer and Unite the Union and is satisfied that this agreement is clear in referring specifically and exclusively to employees employed within Base Maintenance and Unite the Union confirmed this in an email to the Union. In addition the Employer stated on the response form to the CAC that there is no existing recognition agreement in force covering workers in the proposed bargaining unit.

24) The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

8. Paragraph 36(1)(a)

25) 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 15-17 above) showed that 53.5% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 16 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.

9. Paragraph 36(1)(b)

26) 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 25 above the Panel has concluded that the level of union membership within the bargaining unit stands at 53.5%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union. The Panel has received no such evidence to the contrary in this case.

27) On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, 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.

10. Decision

28) For the reasons given in paragraphs 22-27 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mr David Cadger

Mr Steve Gillan

18 February 2022

1. This question was irrelevant in this case as the application was not made by more than one union. ↩

2. Paragraph 10(6) of the Schedule. ↩

3. The Panel notes that had the Employer had indicated a willingness to negotiate within the first period the application would have been made in accordance with paragraph 12(2) as the “second period” of 20 working days starting with the day after that on which the first period ends (defined in paragraph 10(7) of the Schedule) would have expired by the time the Union made its application to the CAC. ↩