Decision

Acceptance Decision

Updated 12 September 2018

Case Number: TUR1/1049(2018)

29 May 2018

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

Babcock Mission Critical Services Onshore Ltd

1. Introduction

1) PROSPECT (the Union) submitted an application to the CAC on 27 April 2018 that it should be recognised for collective bargaining by Babcock Mission Critical Services Onshore Ltd (the Employer) for a bargaining unit comprising “Those permanent employees in Maintenance engineering below that of Supervisors and for Pilots below that of Head of Flight Operations. For the avoidance of doubt this covers, licenced maintenance engineers and unlicenced maintenance engineers and all Pilots”. Asked to give the location of the bargaining unit the Union stated that the main location was at Staverton in Gloucestershire but the Employer operated a number of smaller bases across the country, however all were managed from Staverton. The CAC gave both parties notice of receipt of the application on 30 April 2018. The Employer submitted a response to the CAC dated 4 May 2018 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 Barry Clarke, Chairman of the Panel, and, as Members, Mr Derek Devereux and Mr Paul Talbot. The Case Manager appointed to support the Panel was Nigel Cookson.

2. Issues

3) 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. The Union’s application

4) In its application the Union said that it had written to the Employer with a formal request for recognition on 13 April 2018 but the Employer declined to recognise the Union. A copy of the Union’s letter and the Employer’s reply thereto was enclosed with the application.

5) According to the Union, there was a total of about 217 workers employed by the Employer with about 124 of these falling within the proposed bargaining unit. The Union stated that it had 62 members within the proposed bargaining unit. Asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union said that it had discussed the issue of recognition with many of the workers face to face, via email and by telephone and they had all requested that the application for recognition be made. The Union attached to its application an anonymised spreadsheet showing its membership numbers.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that it was a logical bargaining unit covering all engineering and pilot employees. The Union confirmed that the bargaining unit had not been agreed with the Employer.

7) The Union confirmed that it had a current certificate of independence and the Employer had not proposed that Acas be asked to assist following its receipt of the Union’s request for recognition.

8) The Union said there had not been a previous application in respect of this or a similar bargaining unit and there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit. Finally, the Union confirmed that it had copied the application and supporting documents to the Employer on 27 April 2018.

4. The Employer’s response to the Union’s application

9) The Employer stated that it had received the Union’s formal request for recognition on 13 April 2018 and, when asked what its response was, the Employer stated that it had responded confirming its view that the established methods used to consult and communicate with employees had proven to be effective. A copy of its letter in reply to the Union was attached to its response.

10) The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form and this remained the case. When asked to briefly indicate its objections to the proposed unit the Employer stated that it did not consider that it would be workable to negotiate with the proposed bargaining unit as a single unit as engineers and pilots were distinct groups with different concerns and were currently represented separately on the Employee Consultation Forum (“ECF”). In addition, the ‘pilots’ group would include a layer of management who still held a pilot licence but who would not wish to be included in the bargaining unit. The ECF was an effective mechanism for dealing with collective consultation and the Employer had brought in significant change within the business by using this approach. The ECF was made up of representatives which were split into functional areas.

11) The Employer stated that it employed 206 workers and it did not agree with the Union’s figure as to the number of workers in the bargaining unit explaining that it believed that the proposed bargaining unit contained 144 workers rather than the circa 124 stated by the Union. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer answered that the Union had not provided a list of the members within the bargaining unit that it had contacted that was capable of verification against the Employer’s records. The Employer could not therefore confirm whether those contacted by the Union fell into the categories of workers in the proposed bargaining unit and could not verify the Union’s estimate of membership. When asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, the Employer stated that first, the Union had stated that it had discussed the issues of recognition with many of the workers in the proposed bargaining unit but had not provided any supporting evidence to show that the majority of workers were likely to support recognition of the Union. Second, the Union had not completed a survey or provided a list of members within the bargaining unit that it had contacted to discuss recognition and the Employer was unable to verify how many workers had been contacted or whether the workers were part of the bargaining unit.

12) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the agreed bargaining unit. When asked whether, following receipt of the Union’s request, the Employer had proposed that Acas be requested to assist, the Employer answered “No”.

13) Finally, 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 the Employer answered “N/A”.

5. Membership and Support Check

14) To assist in the application of the admissibility tests, the Panel proposed independent checks of the level of union membership in the agreed bargaining unit and the number of workers in the unit who had signed a petition supporting recognition of the Union. It was agreed with the parties that the Employer would supply to the Case Manager a list of the full names, dates of birth and job titles of workers within the bargaining unit, and that the Union would supply to the Case Manager a list of the full names and dates of birth of the paid up union members within that unit. The information from the Union was received by the CAC on 14 May 2018 and from the Employer on 18 May 2018. 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 from the Case Manager to both parties dated 15 May 2018.

15) The Union provided a list with the details of 63 members and the Employer provided a spreadsheet with the details of 128 workers. The job titles given were Avionics Engineer, Co-Pilot, Co-Pilot – Dafen, Co-Pilot Cambridge, Co-Pilot Norwich, Engineer – Thruxton, Engineer Murrayfield, Floating Pilot BAS, Installation Engineer, Licensed Engineer Air Crewman Lowestoft, Licensed Engineer/Sheet Metal Worker, Line Engineer Berkshire, Line Engineer Cambridge, Line Engineer Cheshire BAS, Line Engineer Cosford BAS, Line Engineer East Midlands BAS, Line Engineer Glasgow, Line Engineer Inverness BAS, Line Engineer North Wales BAS, Line Engineer Staverton BAS, Line Engineer Swansea BAS, Line Engineer Welshpool, Mechanical Installation Engineer, Pilot, Pilot – Cardiff, Pilot – Dafen, Pilot Berkshire, Pilot Blackpool, Pilot Cambridge, Pilot Cheshire, Pilot Cosford, Pilot East Midlands BAS, Pilot Filton, Pilot Glasgow, Pilot Hampshire, Pilot Inverness, Pilot North Wales, Pilot Norwich, Pilot Perth, Pilot Strensham, Pilot Swansea, Pilot Welshpool, Semi Skilled Engineer, Senior Pilot Inverness, Touring HHO Pilot, Touring Pilot and Touring TRE.

16) According to the Case Manager’s report the total number of workers in the bargaining unit was 128 and the number of Union members in the bargaining unit was 55, a membership level of 42.97%. A report of the result of the membership check was circulated to the Panel and the parties on 18 May 2018 and the parties’ comments invited.

6. Parties’ comments on the Case Manager’s report

17) In a letter dated 18 May 2018 the Union stated that it was evident from the membership check that members of the Union constituted ten percent of the bargaining unit. As for the test of likely support, the Union was confident that, given the density of members at this point of the procedure, a majority of workers would vote in favour of recognition. Experience demonstrated that workers would vote in favour of recognition but not necessarily elect to join a trade union. In addition, the Union had not had access to all workers given the geography and locations, to state the case for recognition. Outside of the main location of Staverton, membership had primarily grown by word of mouth.

18) In an email dated 24 May 2018 the Employer stated that it had no comments to make on the report.

7. Considerations

19) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

20) The Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 and that it was made in accordance with paragraph 11(2) of the Schedule in that before the end of the first period of 10 working-days following the Employer’s receipt of the request for recognition, the Employer informed the Union that it did not accept the request without indicating a willingness to negotiate. 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)

21) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit. In this case the Case Manager’s report of 18 May 2018 established that there were 55 members in the 128 strong proposed bargaining unit giving a membership density of 42.97%. It is clear to the Panel that members of the Union constitute at least 10% of the workers in the bargaining unit and this test is therefore satisfied.

9. Paragraph 36(1)(b)

22) The test in paragraph 36(1)(b) is whether a majority of the workers constituting the agreed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit. The Panel would remind the parties that under this test it does not need to be satisfied that a majority of workers in the proposed bargaining unit actually support recognition of the Union, only that a majority of workers would be likely to do so.

23) Looking at the evidence, the Panel can safely assume for present purposes that all Union members would be likely to support recognition. In becoming members and paying their subscriptions they have thus signalled a commitment to the Union and, without evidence to the contrary, we believe that this can be taken as a legitimate indicator of support for recognition. As stated above, the check of Union membership in the proposed bargaining unit established a density of 42.97%.

24) Whilst as we have stated, this is a test of likely support rather than a strict arithmetical test of support, but if it were then for the Union to nudge past the threshold of majority support it would only need to get a fraction over 7% more of the individuals within the proposed bargaining unit to support recognition. On the basis that there are 128 workers in the proposed bargaining unit, 55 of whom are members of the Union would leave a pool of 73 non-members whose views on recognition have yet to be established. If the Union had the support of nine of these 73 workers it would get to 50% and if it had the support of ten, it would have a majority.

25) Experience would tend to suggest a likely bandwagon effect: support for Union recognition would be likely to increase as a result of Union campaigning and the possibility of recognition drawing closer, especially as the next stage of the statutory process will afford the Union greater access to the workers. That access may have been somewhat restricted to date because of the spatial distribution of the workers as can be ascertained from the job titles set out in paragraph 15 above. Although the main location is in Staverton Gloucestershire, the workers are based at all points of the compass around the country ranging from Inverness in the north to Hampshire in the south; Cardiff in the west to Lowestoft in the east and several other locations in-between.

26) Finally, we have taken into account that the Employer, although given the opportunity to do so, has put forward no comment or submissions as to why it would be difficult for the Union to achieve majority support.

27) For the reasons given, the Panel is satisfied that, on balance, a majority of the workers in the bargaining unit would be likely to support recognition of the Union and the test set out in paragraph 36(1)(b) is therefore met. Decision

28) For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Barry Clarke, Chairman of the Panel

Mr Derek Devereux

Mr Paul Talbot

29 May 2018