Decision

Acceptance Decision

Updated 11 January 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1353(2023)

24 August 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

London Ashford Airport Ltd

1. Introduction

1) Prospect (the Union) submitted an application to the CAC dated 3 August 2023 that it should be recognised for collective bargaining purposes by London Ashford Airport Limited (the Employer) in respect of a bargaining unit comprising “employees in the airport’s Air Traffic Control unit.” The location of the bargaining unit was given as “Lydd Airport.” The application was received by the CAC on 3 August 2023 and the CAC gave both parties notice of receipt of the application by a letter dated 4 August 2023. The Employer submitted a response to the CAC dated 10 August 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 Mrs Sarah Havlin, Panel Chair, and, as Members, Mr Martin Kirke and Ms Joanna Brown. 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 17 August 2023. The acceptance period was extended to 31 August 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 July 2023 which the Employer responded to on 2 August 2023. A copy of the Union’s request and the Employer’s response 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, “TUR1/1024 (2017) submitted 23 October 2017. This was withdrawn following a business transfer in November 2017 and a further application TUR1/1025 (2017) made for the new Employer SafeSkys Ltd on 8 November 2017. That was accepted by the CAC and subsequently withdrawn in June 2018 following agreement on voluntary recognition with SafeSkys Ltd. The bargaining unit subsequently transferred back to London Ashford Airport Ltd on 31 October 2020 and the employer terminated the recognition agreement on 18 July 2023.” 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 32. The Union stated that there were 9 (nine) workers in the proposed bargaining unit, of whom all nine were members of the Union. When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union said “Membership density. The union was originally recognised as a result of consistent pressure from employees in the bargaining unit and good industrial relations were established under the recognition agreement derecognition has come as a shock to them.”

8) The Union stated that the reason for selecting its proposed bargaining unit was that It was a discrete unit comprising personnel in a specialised occupation - over half of them licenced Air Traffic Controller Officers - and with bespoke terms and conditions of employment. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “Yes”. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit however the agreement that was terminated by the Employer was for the same bargaining unit as in the current application.

9) The Union confirmed that it held a current certificate of independence. The Union did not provide a date upon which it had copied its application and supporting documents to the Employer. The Union said that it was happy for its details to be forwarded to Acas.

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 19 July 2023. The Employer stated that it responded on 2 August 2023 indicating that it was not willing to engage in voluntary recognition.

11) The Employer stated that it had received a copy of the Union’s application form from the Union by e mail on 3 August 2023. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union, but it did agree with the proposed bargaining unit. The Employer said “subject to termination of the Recognition and Procedural Agreement dated 31 May 2023 (Appendix 2) and prior to receipt of a copy of the application form from the Union, a bargaining unit was not agreed between the Union and the Employer.”

12) 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 agree with the number of workers in the proposed bargaining unit as set out in the Union’s application. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated that it was unable to agree that the Union’s estimate of membership within the bargaining unit was correct as the workers had not provided confirmation (as was their right) as to whether they were Union members, and the Union had not provided any information in support of its assertion.

14) 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 that the Union had provided no evidence within its application to support the position that the majority of workers in the bargaining unit would be likely to support recognition of the Union for collective bargaining. The Employer said that it had not experienced either verbally or by correspondence any feedback or reaction of shock that the Recognition and Procedural Agreement had been terminated on 18 July 2023. The Employer said that the Union had made reference to the fact that it had been recognised as a result of consistent pressure from employees in the bargaining unit however this was the position of the members of the bargaining unit in November 2017 when under the employment of SafeSkys Ltd.

15) 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 said “N/A, the previous agreement was a voluntary agreement.” The Employer stated that it was happy for its contact details to be forwarded to Acas.

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

16) The Union in a letter dated 11 August 2023 stated that the date of the recognition agreement was 31 May 2018, not 2023 but that this was a simple error. The Union said that it welcomed the Employer’s agreement to the proposed bargaining unit, which was the same as that in the 31 May 2018 recognition agreement. The Union said that it would be happy to provide evidence of membership to the CAC for an independent check, as required. However, all nine employees in the proposed bargaining unit submitted claims to the Employment Tribunal on 19 July 2023 with the Union on the record as their representative. The Union said that it was incorrect for the Employer to say that the absence of feedback concerning the termination of the voluntary recognition agreement demonstrated that there was no evidence of workers support for union recognition. The Union added “we suggest that it is relevant that the Employment Tribunal claims submitted on 19 July 2023 concern potential breaches of S.145B of the Trade Union and Labour Relations (Consolidation) Act 1992 during the six-month notice period leading to the voluntary agreement’s termination. For the avoidance of doubt, In TUR1/1024(2017), the employer was London Ashford Airport Ltd. That application was withdrawn when the airport’s ATC service provision transferred to SafeSkys Ltd on 1 November 2017, before the CAC had reached a decision on its acceptance. It was withdrawn at the suggestion of the CAC because it was not clear whether the application would, in law, transfer under the TUPE Regulations. Hence the fresh application TUR1/1025(2017) against SafeSkys Ltd, submitted a few days after the transfer. The employer claims to be unaware of pressure from employees in late 2017 – arguing that it concerns pressure while in the employment of SafeSkys Ltd. Prospect takes this opportunity to remind the employer that a majority of the employees currently in the bargaining unit succeeded in Tribunal claims against London Ashford Airport Ltd for breaches of the information and consultation provisions of the TUPE Regulations.”

6. The membership and support check

17) 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 16 August 2023 from the Case Manager to both parties.

18) The information requested from the Employer was received by the CAC on 21 August 2023 and from the Union on 17 August 2023. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

19) The list supplied by the Employer indicated that there were 9 workers in the Union’s proposed bargaining unit.

20) 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 100%.

21) A report of the result of the membership and support check was circulated to the Panel and the parties on 21 August 2023 and the parties were invited to comment on the results of that check by noon on 23 August 2023.

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

22) In an e-mail to the CAC, dated 21 August 2023, the Union stated, it had no substantive comments on the membership check, as it clearly demonstrated that the Union met the 10% threshold. In relation to the test in 36(1)(b), the Union said that it had been recognised for the proposed bargaining unit until 18 July 2023, when the agreement was terminated by the Employer. The Union added that there was no evidence that the workers in the bargaining unit were content to no longer be covered by collective bargaining.

23) In a letter to the CAC dated 23 August 2023 the Employer said that the results of the check showed that the numbers provided by the Employer and the Union corresponded with each other. The Employer accepted that the proportion of Union members in the bargaining unit equated to 100% and therefore that members of the Union constituted at least 10% of the workers in the proposed bargaining unit. In relation to Paragraph 36(1)(b) the Employer said that the Union had not provided any information to support the position that a majority of workers in the proposed bargaining unit would be likely to favour recognition of the Union for the purposes of collective bargaining. The Employer was also not aware of whether this would be the case. The Employer concluded by saying that it did not believe the Union had satisfied the requirements of Paragraph 36(1)(b).

8. Considerations

24) 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.

25) 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)

26) 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.

27) The membership check conducted by the Case Manager (described in paragraphs 17 - 21 above) showed that 100% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 18 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 proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

Paragraph 36(1)(b)

28) 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.

29) For the reasons given in paragraph 27 above, the Panel has concluded that the level of union membership within the proposed bargaining unit stands at 100%. 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.

30) The Panel notes the Employer’s view as to the veracity of the claimed support for recognition of the Union based on the density of Union membership within the proposed bargaining unit. However, in the absence of evidence to the contrary, it is reasonable for the Panel to view Union membership as being an indicator of support for recognition. There is currently no contrary evidence available which persuades the panel that Union members are not likely to support recognition of their Union.

31) The Panel has therefore reached the conclusion that, on the balance of probabilities and in the absence of any evidence to the contrary, 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.

9. Decision

32) For the reasons given in paragraphs 24 - 31 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mrs Sarah Havlin, Panel Chair

Mr Martin Kirke

Ms Joanna Brown.

24 August 2023