Decision

Acceptance Decision

Updated 16 March 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1249/2022

15 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

Guard Archaeology Limited

1. Introduction

1) Prospect (the Union) submitted an application to the CAC dated 28 January 2022 that they should be recognised for collective bargaining purposes by Guard Archaeology Limited (the Employer) for a bargaining unit described as: “all staff employed by the company with exception to the Directors”. The location of the bargaining unit was given as: “all company workplaces. Two office sites, 52 Elderpark Workspace, G51 3TR and EH20 Business Centre, EH20 9LZ. Project sites across the country where staff are allocated. Any other locations that exist.” The application was received by the CAC on 28 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 on 2 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 Kenny Miller, Panel Chair, and, as Members, Mr Alistair Paton and Mr Paul Morley. 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 11 February 2022. The acceptance period was extended to 25 February 2022 to allow for a membership and support check to take place, for the parties to comment on the results of the membership and support 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 Unions’ application

5) In their application to the CAC the Union stated that they had sent a request for recognition to the Employer on 13 December 2021. The Union said that the Employer had responded on 21 December 2021 stating “as previously discussed, I did take your approach forward to a meeting of the Board of Directors, who felt it would also be appropriate for the GUARD Archaeology Employee Ownership Trust to comment on your suggested agreement. A meeting of the Trustees of the EOT was held and I am now in a position to provide feedback. As the company is wholly-owned by all those members of permanent staff that qualify as members of the EOT (>12 months continuous service), the decision on whether the company would agree to any voluntary agreement rests with the trustees who represent the staff and management of the company. The trustees present at the meeting felt this would be inappropriate, given the nature of the company, and not in keeping with the ethos of employee ownership. Both the Board and Trustees did however ask me to indicate that we do support the rights of all staff to union membership and representation and are happy to discuss any individual cases as and when they arise.”

6) A copy of the request and the Employer’s response was attached to the Unions’ application. After receiving the response the Union made an application to the CAC on 28 January 2022.

7) 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 stated that Acas should be requested to assist the parties.

8) The Union stated that the total number of workers employed by the Employer was 64, of whom 60 were in the proposed bargaining unit. The Union said that 29 workers in the proposed bargaining unit were members of the Union “with 6 new joiners in Q4 of 2021”. When 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 stated that they had carried out a survey on 25 January 2022 with members only and that out of the responses received all favoured recognition. They also stated that there had been an increase in membership in the proposed bargaining unit over the last 12 months.

9) The Union stated that the reason for selecting the proposed bargaining unit was that it covered all staff within the company with the exception of the Directors which should assist with collective bargaining. The Union stated 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”.

10) The Union confirmed it held a current certificate of independence. The Union stated that they had copied their application and supporting documents to the Employer on 28 January 2022.

4. Summary of the Employer’s response to the Unions’ application

11) In its response dated 1 February 2022 to the Unions’ application the Employer stated that it had received the Unions’ request for recognition on 13 December 2021. When asked for its response, the Employer stated it responded by way of an email on 21 December 2021 (a copy of the email was attached to the response). Thereafter the Union submitted an application to the CAC on 28 January 2022.

12) The Employer confirmed that it had received a copy of the application form from the Union on 28 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 it objected to the bargaining unit on four grounds firstly that Staff numbers had been grossly exaggerated (51 instead of 64), secondly more than 50% of the staff were either Directors or Owners of the company, thirdly that Union membership had been exaggerated and did not take account of turnover of temporary contract staff and fourthly that the majority of the Union members were on temporary contracts due to conclude at the beginning of April 2022. The Employer stated that, following receipt of the Unions’ request on 28 January 2022 it had not yet proposed that Acas be requested to assist.

13) The Employer stated that it did not agree with the number of workers in the bargaining unit as defined in the Unions’ application, stating that “according to Prospect the number is 60, when the actual staff employed by GUARD Archaeology is 47 plus 4 Directors. We would also point out that 26 of those staff are owners of the company and should therefore also be excluded from any bargaining unit.” When asked if there was an existing agreement for recognition in force covering workers in the proposed bargaining unit the Employer answered “No”.

14) In answer to the question whether it disagreed with the Unions’ estimate of membership in the proposed bargaining unit the Employer stated that given the wide discrepancy in terms of staff numbers suggested by the Union and the high turnover of temporary staff, it considered that current numbers of Guard Archaeology staff who were union members was significantly less than suggested by the Union. It went on to say that the member information provided by the Union may include union members who were no longer Guard Archaeology employees. 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 stated that it was currently disputing the composition and size of the bargaining unit as presented by the Union.

15) The Employer confirmed it was not aware of any previous applications under the Schedule by the Union.

5. Points arising as a result of the Employers response

16) On 2 February 2022 a letter was issued to the Parties acknowledging the Employers response to the application and cross copying it to the Union. The Panel invited further comments from the Union and clarification from the Employer relating to the issue of ownership of the company and temporary workers. The Union responded by e mail on 3 February attaching a letter stating that when the provision for Employee Operated Trusts, (EOT’s) was introduced Trade Unions already operated in many companies where employee ownership existed. They went on to say that EOTs and Trade Union recognition can work together for the benefit of the business. They did not believe that an EOT should be a precursor for exclusion of Trade Union recognition. With the number of Union members within the company and the stated number of employees by the company, they believed that some of the employee owners under the EOT were likely to be Union members who supported recognition. They clarified that the proposed bargaining unit included all staff at Guard Archaeology with the exception of the Directors, and that the bargaining unit did therefore include both permanent and temporary staff the use of which was common across the Archaeological Sector. They added that the Union already supports many members on temporary contracts. They stated that they did not agree that staff who are classed as owners of the company with exception to the Directors should be excluded from the bargaining unit and were happy to share confidential information to assist in an assessment.

17) The Employer responded on 4 February it clarified that The GUARD Archaeology Limited Employee Ownership Trust was established in December 2019. It enabled the transfer of 100% of the existing shares of the company from 11 shareholders (3 Directors and 8 Staff) to the new Trust created to hold the share capital on behalf of the company’s employees. The creation of the Trust enabled existing reserves to be disbursed amongst the former shareholders and for the Trust documentation to define the mechanism for future payments to former shareholders from future reserves. It went on to say that there are currently 51 staff (including 4 Directors 3 of whom did not qualify as Trust members); The newly appointed Director qualified as a Trust member. A further 25 permanent staff qualified as Trust members, giving a total of 26 current Trust members. A further 7 permanent staff had less than 12 months continuous service and therefore didn’t qualify as Trust members yet. The number of temporary contract staff stood at 15. It said that the Unions claim regarding the current number of staff who were Union members was unlikely and they would like to seek independent verification of this number.

6. The membership and support check

18) 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 Unions (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Unions 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 membership of the Union within the proposed bargaining unit and of a survey compiled by the Union. 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 proposed bargaining unit including their full names and date of birth and a copy of the report generated as a result of a survey of members on 25 January 2022 providing the full names of the respondents together with their responses. It was explicitly agreed with both parties that to preserve confidentiality the respective lists and survey report would not be copied to the other party. These arrangements were confirmed in a letter dated 8 February 2022 from the Case Manager to both parties.

19) The information from the Union was received by the CAC on 9 February 2022 and from the Employer on 9 February 2022. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

20) The list supplied by the Employer indicated that there were 47 workers in the Unions’ proposed bargaining unit. The list of members supplied by the Union contained 28 names. According to the Case Manager’s report the number of members of the Union in the proposed bargaining unit was 27, a membership level of 57.4%.

21) The Unions also provided a copy of a survey sent out by e mail on 25 January 2022 bearing the names, of 27 individuals A report was generated as a result of the survey in which the full names of the respondents were provided together with their responses. A copy of this report was provided to the Case Manager. The question asked was set out as follows:

‘Do you want Trade Union recognition with Guard Archaeology through Prospect?’

22) The comparison of the Union’s survey of members, with the Employer’s list of workers revealed that it had been completed by a total of 26 workers in the proposed bargaining unit, a figure which represents 55.3% of the proposed bargaining unit.

23) A report of the result of the membership and support check was circulated to the Panel and the parties on 9 February 2022 and the parties were invited to comment on the results by 16 February 2022.

7. Summary of the Parties comments on the membership check

24) In an email to the Case Manager dated 9 February 2022 the Union said that the report of the check clearly demonstrated that although the numbers already met the requirements under Section 36 of Schedule A1 for admissibility, there may be wider Employees within the bargaining unit at Guard Archaeology who may also support recognition to which they are currently unaware due to them not having been approached.

25) In an email to the Case Manager dated 14 February 2022 the Employer said that although it accepted the numbers as presented, it did feel that there were still a number of contentious areas in relation to the proposed bargaining unit that required further consideration. It said that ‘the results of the union poll do not fully meet the terms of paragraph 36-1 (b) of the schedule – as the poll merely reflects the results of non-specific question asked of the union members, not the entire workforce. We believe any poll should reflect the views of union and non-union staff and be based on a question that sets out the goals of the union (e.g. collective bargaining on terms and conditions etc.). We would also contend the results of the union poll is currently skewed by inclusion of staff on short-term temporary contracts. Although we appreciate their views as trade unionists, in this case their contracts are due for completion in early April with no guarantees we will be able to offer contract extensions beyond that point. Using the union’s poll as evidence of a majority may therefore be a short-lived result and not reflective of the views of the majority of permanent employees.’

26) In addition to the points made above it re-stressed that the company is owned by its qualifying permanent staff (26/32 staff) and managed by an experienced board who are very familiar with the Scottish commercial archaeology market and what is possible in terms of salaries and conditions within the market place. It added ‘having a third party organisation with no Scottish commercial archaeology experience representing the entire staff is likely to lead to increased costs, reduced profitability and will ultimately impact on the financial benefits available to EOT members. From the GUARD Archaeology Board and Trust’s perspectives this outcome would not be to the benefit of the company or its owner employees.’

8. Considerations

27) 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. 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 the Employer informed the Union that the Employer 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.

9. Paragraph 36(1)(a)

28) 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.

29) The membership check conducted by the Case Manager (described in paragraphs 18-23 above) showed that 57.4% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 19 above the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed 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.

10. Paragraph 36(1)(b)

30) 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 20 above the level of membership of the Union is 57.4%. 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. The Employer did not seek to challenge the level of Union membership within the proposed bargaining unit. As outlined in paragraphs 21 and 22 the Union has also presented a survey in support of recognition completed by Union members within the aforesaid bargaining unit. The Panel does not believe this adds anything as it replicates almost exactly the number of Union members within the proposed bargaining unit. The Union has not attempted to elicit the views of non Union members within the proposed bargaining unit. So our decision is based entirely on the level of union membership within the proposed bargaining unit.

31) Based on the evidence before it the Panel is satisfied, on the balance of probabilities, that 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.

11. Decision

32) For the reasons given in paragraphs 27-31 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Kenny Miller, Panel Chair

Mr Alistair Paton

Mr Paul Morley

15 February 2022