Decision

Acceptance Decision

Updated 1 July 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1410(2024)

28 June 2024

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

Bubble Chamber Ltd, The Prince Charles Cinema                                                                          

1. Introduction

1)         Prospect (the Union) submitted an application to the CAC on 3 June 2024 that it should be recognised for collective bargaining by Bubble Chamber Ltd, The Prince Charles Cinema (the Employer) for a bargaining unit comprising “All Front of House (FOH) staff, including Stage Managers and Duty Managers, employed by Bubble Chamber Ltd, The Prince Charles Cinema, 7 Leicester Place, London WC2H 7BY”.  The location of the bargaining unit was given as “The Prince Charles Cinema (London).”  The CAC gave both parties notice of receipt of the application on 3 June 2024.  The Employer submitted a response to the CAC dated 11 June 2024 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 K.C., Panel Chair, and, as Members, Mr Derek Devereux and Mrs Anna Berry.  The Case Manager appointed to support the Panel was Kate Norgate.

3)         The CAC Panel has extended the acceptance period in this case.  The initial period expired on 17 June 2024.  The acceptance period was extended on two further occasions to allow time for a membership and support check to take place, for the parties to comment on the subsequent report, and for the Panel to consider those comments before arriving at a decision. The final extension ends the acceptance period on 28 June 2024.  

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 the Union said that it had written to the Employer with a formal request for recognition on 5 April 2024.  The Employer responded on 10 April 2024 in which it had declined the Union’s request.  A copy of the Union’s letter of 5 April 2024 and the Employer’s e-mail dated 10 April 2024 were enclosed with the application.

6)         According to the Union, there were a total of 40 workers employed by the Employer with 28 of these falling within the proposed bargaining unit.  The Union stated that it had 22 members within the proposed bargaining unit, and it was happy to provide evidence to the CAC or via the services of Acas, on a confidential basis. 

7)         When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that the Front of House (FOH) staff form the majority of staff at the Prince Charles Cinema, and that “this is where desire for union recognition has come from.”  The Union stated that the bargaining unit had been agreed with the Employer.

8)         The Union confirmed that it held a certificate of independence.  The Union said that, following receipt of the request for recognition, the Employer had proposed that Acas should be requested to assist the parties.^{[footnote 1]}  The Union further explained that Acas had assisted the parties in trying to reach a voluntary agreement, and that following two weeks of negotiations, the Employer rejected a voluntary agreement.

9)         The Union answered “N/A” when asked whether there had been a previous application in respect of this or a similar bargaining unit.^{[footnote 2]} Finally, the Union confirmed that there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

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 5 April 2024.  The Employer responded on 10 April 2024, and stated that it did not wish to enter into a voluntary agreement.  A copy of the Employer’s e-mail of 10 April 2024 was enclosed with its response.

11)       When asked to give the date it received a copy of the application form directly from the Union, the Employer stated that this was 3 June 2024.   The Employer also confirmed that it did now agree with the Union’s proposed bargaining unit.

12)       The Employer stated that it agreed with the Union’s figure as to the number of workers in the bargaining unit.  When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer answered, “N/A”.  When asked to give reasons if it did not consider that a majority of the workers in the proposed bargaining unit were likely to support recognition, the Employer said that other than one employee, no employee had ever expressed any desire for union recognition, and it therefore had no basis to determine whether a majority of workers in the proposed bargaining unit were likely to support recognition.

13)       The Employer confirmed that there was no recognition agreement in place covering any of the workers in the proposed bargaining unit. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas be requested to assist.  The Employer further added that its legal representative had taken part in discussions facilitated by Acas on 10 May 2024, followed by a “follow up discussion”.

14)       Finally, the Employer answered “N/A” 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 whether it had received any other applications in respect of workers in the proposed bargaining unit.

5. The membership check

15)       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 and dates of birth.  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 12 June 2024. 

16)       The information requested from the Employer was received by the CAC on 12 June 2024, and from the Union on 14 June 2024.  The list supplied by the Employer contained the names of 28 workers and the list of members supplied by the Union contained 20 names. The Panel was satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.   

17)       According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 20, a membership level of 71.43%.  A report of the result of the membership check was circulated to the Panel and the parties on 14 June 2024 and the parties’ comments were invited.

6. Parties’ comments on the membership check

18)       In an e-mail to the CAC dated 14 June 2024 the Union stated that, based on the membership check, it believed that it had met both tests under paragraph 36 of the Schedule.

19)       No comments were received from the Employer.

7. Considerations

20)       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 Union’s application, the Employer’s Response, comments provided by both parties and all the evidence in reaching its decision.

21)       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)

22)       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 comparison undertaken by the Case Manager as outlined above established a membership density of 71.43%.  It is therefore clear to the Panel that members of the Union constitute at least 10% of the workers in the bargaining unit.

Paragraph 36(1)(b)

23)       The test in paragraph 36(1)(b) is whether a majority of the workers constituting the bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit.  In this case the Union solely relies upon its membership as evidence that this test is satisfied. In the absence of any evidence to the contrary, the Panel is of the view that the level of Union membership within the proposed bargaining unit does provide a legitimate indicator as to the degree of likely support for recognition of the Union for collective bargaining.  At this stage of the statutory process the test is of hypothetical support and that the Panel must arrive at a decision on the evidence placed before it.    

24)       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.

8. Decision

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

Panel

Ms Laura Prince K.C.

Derek Devereux

Mrs Anna Berry

28 June 2024

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1. See, however, paragraph 13 below.     ↩

2. The Union’s previous application, TUR1/1399(2024), was subsequently withdrawn prior to a decision on whether to accept the application. ↩