Decision

Recognition Decision

Updated 11 January 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1353(2023)

21 September 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

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) By its written decision dated 24 August 2023 the Panel accepted the Union’s application. The Employer in its response dated 10 August 2023 stated that it agreed the bargaining unit as proposed by the Union in its application dated 3 August 2023, namely “employees in the airport’s Air Traffic Control unit.” The location of the bargaining was “Lydd Airport.”

2. Issues

4) Paragraph 22 of the Schedule A1 to the Act (the Schedule) provides that, if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the Union, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies. Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled. The three qualifying conditions are:

(i) the CAC is satisfied that a ballot should be held in the interests of good industrial relations.

(ii) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf.

(iii) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf.

Paragraph 22(5) provides that “membership evidence” for these purposes is:

(a) evidence about the circumstances in which union members became members, or

(b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

3. The Union’s claim to majority membership and submission that it should be recognised without a ballot

5) In a letter dated 24 August 2023 the Union was asked by the CAC whether it claimed majority membership within the bargaining unit and, if so, whether it submitted that it should be granted recognition without a ballot. The Union, in an e-mail dated 24 August 2023, stated “I can confirm that Prospect claims that it has majority membership within the bargaining unit and should, therefore be granted recognition without a ballot. Given that our membership density is, in fact, 100% - as confirmed by the CAC’s membership check – and, given the approach described in paragraphs 29-31 of the acceptance decision, I do not feel it necessary to make submissions on the potential conditions that could suggest a ballot be held. However, I would of course be happy to comment on any evidence provided by the Employer, or to respond to any questions the CAC might have to assist in reaching its decision.”

4. Summary of the Employer’s response to the Union’s claim that it should be recognised without a ballot

6) On 29 August 2023 the CAC copied the Union’s e-mail of 24 August 2023 to the Employer and invited the Employer to make submissions in relation to the Union’s claim that it had majority membership within the bargaining unit and in relation to the three qualifying conditions specified in paragraph 22(4) of the Schedule.

7) In its response dated 4 September 2023 the Employer stated “Whilst we accept that membership density is at 100% pursuant to the respective parties membership checks, we are firmly of the opinion that in light of the breakdown in industrial relations that ultimately resulted in the previous voluntary recognition agreement being terminated on notice, that in order to improve and/or in the interests of good industrial relations, that the panel would be best served holding a ballot.”

8) When invited to comment the Union submitted a letter dated 6 September 2023 stating that the Employer was relying on the first qualifying condition: that a ballot should be held in the interests of good industrial relations. The Union said that the Employer had submitted that the Employer’s decision to terminate the previous voluntary agreement was the result of a “breakdown in industrial relations.” The Union said that the breakdown and its cause was not described. The Union went on to summarise the sequence of events in the period before notice was served on the agreement stating “the annual pay review date in the previous agreement was 1 September. There were no pay reviews in 2020 or 2021 as a consequence of the COVID-19 Pandemic. At the union’s request, there was a meeting on 22 September 2022, where the Employer said it would be in a position to pursue the September 2022 pay review in November, following discussion with the owner. On 14 November, Prospect emailed to request a meeting. The Employer replied on 21 November saying that business performance for 2022 and projections for 2023 would be assessed and this would take place in the first quarter of 2023; therefore, the Employer ‘would be prepared to discuss the matter further in the second quarter of next year’. On 5 December Prospect emailed seeking an urgent meeting and, on 14 December, the Employer responded - simply referring us to its previous position. Prospect wrote again on 13 January 2023, referring expressly to the pay bargaining clauses in the Recognition and Procedural Agreement and the facility to seek the assistance of ACAS in an effort to avoid going into dispute. Although it did not respond directly to the union’s 13 January email, the Employer wrote to serve notice of termination of the Agreement on 16 January.” The Union went on to say that it was difficult to see what the alleged “breakdown in industrial relations” was that led to the Employer terminating the Agreement. The Union said that it was reasonable to infer from this sequence of events that the Agreement was, in fact, terminated because the Employer wished to avoid collective bargaining on pay. The Union went on to say “it is relevant to note that, although it took place after notice of termination of the Agreement, the Employer announced a pay award to all staff (including ATC employees) on 21 February 2023. All nine union members in ATC have submitted claims to the Employment Tribunal asserting that this amounted to a breach of S.145B of the Trade Union and Labour Relations (Consolidation) Act 1992. It is submitted that this is further evidence that the employees wish to see union recognition restored.”

5. Considerations

9) The Schedule requires the Panel to consider whether it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Union, it must declare the Union to be recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit unless it decides that any of the three qualifying conditions set out in paragraph 22(4) is fulfilled. If the Panel considers that any of those specific conditions is fulfilled, it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

10) The membership and support check conducted on 21 August 2023 had shown the Employer listing a total of 9 workers. As stated in the acceptance decision dated 24 August 2023, the Union had provided a spreadsheet listing 9 Union members. The number of Union members in the proposed bargaining unit was 9, a membership level of 100%. It is also noted that the Employer stated, as set out at paragraph 7 above, ‘…we accept that membership density is at 100%’ Accordingly, the Panel accepts that the majority of workers in the bargaining unit are members of the Union.

11) The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision as to whether any of the qualifying conditions laid down in paragraph 22(4) of the Schedule is fulfilled.

Paragraph 22(4) (a)

12) The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Employer mentioned good industrial relations in its comments referring to the previous voluntary agreement being terminated on notice in light of the breakdown in industrial relations but did not expand on this. The Union said that it was difficult to see what the alleged “breakdown in industrial relations” was that led to the Employer terminating the Agreement. The Union said that it had made attempts to set up meetings for the purposes of pay negotiations and had made reference in correspondence to the Employer of the pay bargaining clauses in the Recognition and Procedural Agreement and the facility to seek the assistance of ACAS in an effort to avoid going into dispute. The Panel is not therefore satisfied that a ballot should be held in the interests of good industrial relations. There is no evidence put forward by the Employer to suggest that there has been a breakdown in industrial relations previously and the level of membership of the Union at 100% within the bargaining unit can reasonably be taken as evidence of a significant majority of workers who support recognition of the Union. The Panel therefore sees no evidence of a divided opinion on union recognition within the bargaining unit or any other evidence which would suggest that it would be in the interests of good industrial relations to further test support for Union recognition by way of a ballot.

Paragraph 22(4) (b)

13) The second condition is that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the Union to conduct collective bargaining on their behalf. The CAC has no such evidence, and this condition does not apply.

Paragraph 22(4) (c)

14) The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the Union to conduct collective bargaining on their behalf. No such evidence has been produced, and this condition does not apply.

6. Declaration of recognition

15) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that a majority of the workers constituting the bargaining unit are members of the Union. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule is met. Pursuant to paragraph 22(2) of the Schedule, the CAC must therefore issue a declaration that the Union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising “employees in the airport’s Air Traffic Control unit.” The location of the bargaining unit being “Lydd Airport.”

Panel

Mrs Sarah Havlin, Panel Chair

Mr Martin Kirke

Ms Joanna Brown.

21 September 2023