Decision

Acceptance Decision

Updated 22 March 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1374(2023)

27 November 2023

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

Gloucestershire Airport Ltd

1. Introduction

1)         Prospect (the Union) submitted an application to the CAC dated 27 October 2023 that it should be recognised for collective bargaining purposes by Gloucestershire Airport Ltd (the Employer) in respect of a bargaining unit comprising “Employees in the airport’s Air Traffic Control (ATC) unit.” The location of the bargaining unit was given as “Gloucestershire Airport.” The application was received by the CAC on 27 October 2023 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 2 November 2023 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 Stuart Robertson, Panel Chair, and, as Members, Mr Mustafa Faruqi and 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 10 November 2023. The acceptance period was extended to 30 November 2023 in order to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the 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 made a request for recognition to the Employer on 19 September 2023.  A copy of the Union’s letter of 19 September 2023 was attached to the application.

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 45 and that it had sourced this figure from the Employer’s accounts for 2022. The Union stated that there were 14 workers in the proposed bargaining unit and that 7 of those were members of the Union. The Union did not specify whether the Employer agreed the number of workers in the proposed bargaining unit. The Union went on to say, “membership has grown from two to the current figure since discussions among the workers in the bargaining unit started in spring 2023”.

8)         The Union stated that the reason for selecting its proposed bargaining unit was that it was a discrete unit comprising Air Traffic Control Officers (ATCOs), Air Traffic Services Assistants (ATSAs) and Air Traffic Engineers (ATE) - all specialised occupations, with bespoke working practices and pay arrangements. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “NO”. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit.

9)         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 27 October 2023.

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 formal written request for recognition on 27 October 2023 and had not responded ^{[footnote 1]}.The Employer stated that it had received a copy of the Union’s application form from the Union on 27 October 2023. The Employer said that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union. In answer to the question on whether the Employer agreed the proposed bargaining unit the Employer said “No. The company does not recognise collective bargaining and sees no value in a Trade Union getting involved in staffing matters. I would also want to see solid evidence that supports the 50% TU membership claim of the ATC Department.”

11)       The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist the parties. 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 said that it had seen no evidence from the Union of its claim to have 50% “staff membership.” The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

12)       In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated, “I have not been presented with any solid evidence that supports the TU’s statement that 50% of the ATC Department are TU members.” 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, “see above.”

13)       The employer replied “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 when asked if it had received any other applications in respect of workers in the proposed bargaining unit. The Employer also stated that it consented to its contact details being provided to Acas.

5. The Union’s comments on the Employer’s response

14)       In a letter dated 6 November 2023 the Union said that it was not clear from the Employer’s response why the bargaining unit was not agreed and whether the Employer agreed there were 14 workers in the Union’s bargaining unit as this had not been contested by the Employer in the response document. The Union said that it currently had 7 members in the proposed bargaining unit and that this was more than 10%. The Union went on to say “we note that the Employer provides no evidence on the question of employee support for recognition. The Employer’s response concentrates on the number of union members. Prospect would be happy to submit to a membership check, but we suggest that the Employer be required to state its position on the definition of the bargaining unit before this takes place. We have members at the airport outside of the proposed bargaining unit and would wish to ensure that only relevant data is submitted.”

6. The membership and support 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, dates of birth and job roles (where available). It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 8 November 2023 from the Case Manager to both parties.

16)       The information requested by the CAC was received from the Employer on 10 November 2023 and from the Union on 13 November 2023. The Panel is satisfied that the checks were 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 13 workers in the Union’s proposed bargaining unit.

18)       The list of members supplied by the Union contained 9 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 9, a membership level of 69.23%.

19)       A report of the result of the membership and support check was circulated to the Panel and the parties on 13 November 2023 and the parties were invited to comment on the results of that check by noon on 16 November 2023.

7. Summary of the Employer’s comments following the membership and support check

20)       In an e mail dated 16 November 2023 the Employer said “we accept the percentage of workers that are Union members, we do not accept the recognition by Prospect. We hold a policy which states Gloucestershire Airport will not be in recognition of any union. We have not had any staff approach us to say they do not want the Union to carry out collective bargaining on their behalf. I am not sure if they are aware”.

8. Summary of the Union’s comments following the membership and support check

21)       In an e mail dated 13 November 2023 the Union said “I would like to make a comment on the proposed bargaining unit - Employees in the airport’s Air Traffic Control (ATC) unit. In the application, we put this at 14. The Employer has provided 13 names. We suggest that this difference is explained by the fact that the proposed bargaining unit includes the Manager Air Traffic Services and that post is currently vacant”.

9. Considerations

22)       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. 

23)       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 paragraphs 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraphs 36(1)(a) and paragraph 36(1)(b) are met

Paragraph 36(1)(a)

24)       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. 

25)       The membership check conducted by the Case Manager (described in paragraphs 15 to 19 above) showed that 69.23% 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.

26)       For the reasons set out in paragraph 25 above the Panel has 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)

27)       Under paragraph 36(1) 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.

28)       For the reasons given in paragraph 25 above, the Panel has concluded that the level of union membership within the bargaining unit stands at 69.23%. 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.

29)    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

30)       For the reasons given in paragraphs 22-29 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Stuart Robertson, Panel Chair.

Mr Mustafa Faruqi

Mr Steve Gillan.

27 November 2023

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1. The Employer clarified on 9 November 2023 that the formal written request for recognition was received on 19 September, and that the Employer had not responded to that written request. ↩