Decision

Validity Decision

Updated 4 November 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1384(2024)

9 July 2024

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

DETERMINATION OF THE BARGAINING UNIT

The Parties:

Prospect

and

ECEBS

1. Introduction

1)         Prospect (the Union) submitted an application to the CAC dated 17 January 2024 that it should be recognised for collective bargaining purposes by ECEBS (the Employer) in respect of a bargaining unit comprising “all staff in grades of Manager and below (excluding senior management i.e., heads of departments and above) and in the following departments within, ECEBS. Admin, Technical (including Development and Engineering Operations), Sales Support, Product management, Risk management.” The location of the bargaining unit was given as “The Torus Building, Rankine Avenue, Scottish Enterprise Technology Park, East Kilbride, Glasgow, G75 0QF.” The application was received by the CAC on 17 January 2024 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 24 January 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 Chair established a Panel to deal with the case. The Panel consisted of Mrs Sarah Havlin, Panel Chair, and, as Members, Mr Alistair Paton and Mr Matt Smith OBE. The Case Manager appointed to support the Panel was Joanne Curtis.

3)         By a decision dated 12 February 2024 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. As no agreement was reached a hearing took place over zoom on 2 May 2024. In a decision dated 3 June 2024 the Panel determined that the appropriate bargaining unit was ‘all staff in grades of General Manager and below (excluding senior management i.e., heads of departments and above).’

2. Issues

4)         As the determined bargaining unit differs from that proposed by the Union, the Panel is required by paragraph 20 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application is valid or invalid within the terms of paragraphs 43 to 50 of the Schedule.

3. Membership and support check

5)         To assist the determination of two of the validity tests specified in the Schedule,  namely whether 10% of the workers in the agreed bargaining unit are members of the union (paragraph 45(a)) and whether a majority of the workers in the determined bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 45(b)), the Panel proposed an independent check of the level of union membership within the agreed 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 determined bargaining unit, and that the Union would supply to the Case Manager a list of its paid-up members within that unit (including their dates of birth). It was explicitly agreed with both the 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 19 June 2024 from the Case Manager to both parties.

6)         The information from the Employer was received by the CAC on 25 June 2024 and from the Union on 20 June 2024. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

7)         The list supplied by the Employer indicated that there were 12 workers in the determined 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 determined bargaining unit was 7, a membership level of 58.33%.

8)         A report of the result of the membership check was circulated to the Panel and the parties on 25 June 2024 and the parties were invited to comment on the result of the check. In a previous letter dated 3 June 2024 the parties had also been invited to make their submissions on the validity tests for consideration by the Panel.

4. Union’s comments on the validity tests

9)         In an e mail to the Case Manager dated 25 June 2024 the Union said “all names on the list are members, and I will email all members to ask them to update their records. My comments are that holding a ballot at this stage would not be required as we can demonstrate that we have over 50% within the new proposed BU who are in favour of recognition. Therefore, we meet the requirement of support needed for recognition.”

5. Employer’s comments on the validity tests

10)       In an e-mail to the Case Manager dated 26 June 2024 the Employer made the following comments on the validity tests:

• “Given that Prospect’s figures are based on 20 employees being employed by ECEBS, which is no longer the case, we are concerned that they may be relying on outdated information that predates the business’ restructure. If the information is outdated, then there is a real possibility that it is not accurate.

• As such we are not confident of the validity of the BU at this stage.

• ECEBS therefore requests that the CAC carry out a validity check of the information about membership provided by Prospect.

• We observe that the figures do not account for what ECEBS is hearing on the ground regarding lack of support for recognition. We don’t believe that a majority of workers in the BU would be in favour of recognition (whether they are Union members or not).

• If the CAC is not minded to agree to a validity check, then we seek the opportunity to make submissions on whether a ballot should be held under para 22(2)(4) of Sched A1 to TULRCA.”

6. Considerations

11)       The Panel is required to decide whether the Union’s application is valid or invalid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision the Panel has carefully considered the submissions of the parties and all the other evidence before it.

12)       The Panel is satisfied that the application is not rendered invalid by any of the provisions in paragraphs 44 and 46 to 50 of the Schedule. The remaining issue for the Panel to decide is whether the application is invalid under paragraph 45 of the Schedule.

Paragraph 45(a)

13)       Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the Union constitute at least 10 per cent of the workers in the determined bargaining unit. The membership check conducted by the Case Manager (see paragraphs 5 to 8 above) showed that 58.33% of the workers in the determined bargaining unit were members of the Union. As stated in paragraph 6 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 determined bargaining unit as required by paragraph 45(a) of the Schedule.

Paragraph 45(b)

14)       Paragraph 45(b) provides that the application in question is invalid unless the CAC decides that a majority of the workers constituting the determined 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 notes that the membership check conducted by the Case Manager (see paragraphs 5 to 8 above) showed that 7 out of the 12 workers in the determined bargaining unit (58.33% of the workers) were Union members. The Panel also notes the Employer’s comments that there is a lack of support for recognition amongst the workers in the determined bargaining unit. The Employer has not put forward any further information to support this comment other than a statement that this is what “ECEBS is hearing on the ground.”

15)       The Panel, at this stage, is testing the likelihood of majority support and the evidence to support the position that the Union has established a likelihood of majority support for collective bargaining within the bargaining unit. On the basis of the evidence before it, and in the absence of any evidence to the contrary, the level of union membership constitutes sufficient evidence for the Panel to conclude 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 45(b) of the Schedule.

7. Decision 

16)       For the reasons given in paragraphs 11 - 15 above, the Panel’s decision is that the application is not invalid, and that the CAC is proceeding with the application.

Panel

Mrs Sarah Havlin, Panel Chair

Mr Alistair Paton

Mr Matt Smith OBE

9 July 2024