Decision

Acceptance Decision

Updated 1 February 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1376(2023)

7 December 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 on 15 November 2023 that it should be recognised for collective bargaining by London Ashford Airport Ltd (the Employer) for a bargaining unit comprising the “Employees in the airport’s Fire & Rescue Department” which was located at Lydd Airport, Romney Marsh, Kent, TN29 9QL. The CAC gave both parties notice of receipt of the application on 15 November 2023.  The Employer submitted a response to the CAC dated 23 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 Chair established a Panel to deal with the case.  The Panel consisted of Mr Rohan Pirani, Panel Chair, and, as Members, Mr Sean McIlveen and Ms Claire Sullivan.  The Case Manager appointed to support the Panel was Kaniza Bibi.

3)         The CAC Panel has extended the acceptance period in this case. The initial period expired on 29 November 2023.  The acceptance period was then extended to 13 December 2023 to allow time to conduct a membership check and for the parties to comment on the results before the Panel arrived 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 made its formal request for recognition on 19 July 2023. This had followed an earlier request on 29 March 2023 to which the Employer had agreed to discuss a voluntary agreement, but then failed to pursue this substantively. The Union also stated it had submitted heads of agreement in May 2023 at the Employer’s request, but there was no response. The Employer responded to the 19 July 2023 request on 2 August 2023 and the Union replied on 3 August 2023, but there has been no further engagement on this issue.

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, “N/A”.  The Union stated that, following receipt of the request for recognition, the Employer had proposed that Acas should be requested to assist the parties. The Union had also proposed using ACAS to address the range of issues and, as a result, it submitted heads of agreement for this bargaining unit.

7)         The Union stated that the total number of workers employed by the Employer was 32 (source: company accounts, 2021) and that approximately 8 of these workers were in the proposed bargaining unit, of whom 6 were Union members.

8)         Asked whether the Employer agreed on the number of workers in the proposed bargaining unit the Union did not state an answer to this question.  When called upon to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated it had, membership density of 75% and staff approached the Union in pursuit of recognition.

9)         The Union stated it had selected the proposed bargaining unit because “It’s a discrete unit comprising uniformed personnel in a specialised occupation and with bespoke terms and conditions of employment”. The Union also confirmed that the proposed bargaining unit had not been agreed with the Employer.

10)       Finally, the Union stated that there was no existing recognition agreement which covered any of the workers in the bargaining unit, it confirmed that it held a current certificate of independence and it confirmed that it had copied the application and supporting documents to the Employer on ^{[footnote 1]} 13 November 2023.   

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

11)       In its response to the Union’s application the Employer stated that it was “TBC” when it had received the Union’s written request for recognition. The Employer stated that in response to the request it replied confirming that “… we are willing to engage in discussions with Prospect Union in respect of the potential for entering into a Voluntary Recognition and Procedural Agreement, relating only to the Fire and Rescue department”.

12)       When asked the date that the Employer had received a copy of the application form from the Union, the Employer responded by once again stating “TBC”. The Employer when also asked whether it agreed the bargaining unit before it received a copy of the application form from the Union, stated “NO”.

13)       The Employer stated “TBC” when asked if it agreed with the proposed bargaining unit. When asked if, following receipt of the Union’s request, it had proposed that Acas should be requested to assist, the Employer stated that it had agreed for assistance from Acas.

14)       The Employer stated that it employed a total of 8 employees in the Fire & Rescue Services Aviation department. Asked whether it agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application the Employer answered, “The number of employees is 8”.

15)       The Employer gave no answer when asked to state the number of workers in the Union’s proposed bargaining unit. The Employer said there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

16)       When asked if it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated, “The number of employees is 8”.

17)       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 “Unknown”.

18)       Finally, the Employer stated it was unknown to them of any previous application under the Schedule for statutory recognition by the Union in respect of this or a similar bargaining unit.   Asked whether it had received any other applications under the Schedule for recognition in respect of any of the workers in the proposed bargaining unit the Employer answered, “Not in respect to Fire & Rescue”.

5. The check of membership and support

19)       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 and dates of birth. It was explicitly agreed with both 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 24 November 2023 from the Case Manager to both parties.  

20)       The information requested from the Employer was received on 4 December 2023 and Union was received on 27 November 2023.  The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.   

21)       The list supplied by the Employer showed that there were 8 workers in the proposed bargaining unit.  The list of members supplied by the Union contained 6 names.  According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 6, a membership level of 75.00%.  A report of the result of the membership check was circulated to the Panel and the parties on 4 December 2023 and the parties’ comments invited.

6. Parties’ comments on the membership check

22)       In its response dated 5 December 2023 the Union stated, “It confirms what I believed to be the position. As it is clear that Prospect has 75% membership in the proposed bargaining unit, I look forward to confirmation that our application has been accepted by the CAC”.

23)       The Employer in its response dated 4 December 2023 stated, “We have previously confirmed to Prospect Union that we are willing to engage in discussions with them, in respect of the potential for entering into a Voluntary Recognition and Procedural Agreement, relating only to the Fire and Rescue department. We have no further comments to make”.

7. 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 carefully considered 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 12. 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 Union’s proposed bargaining unit.  The membership check conducted by the Case Manager described in paragraph 21 above showed that 75.00% of the workers in the proposed bargaining unit were members of the Union. 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.

Paragraph 36(1)(b)

27)       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.

28)       As stated above, the Panel notes from the membership check that a majority of the workers in the proposed bargaining unit (75.00%) are members of the Union.  In the absence of clear and cogent evidence to the contrary, the Panel is entitled to assume that members of the Union would be likely to favour recognition of the Union to conduct collective bargaining with the Employer on their behalf.  On the evidence before it, the Panel has decided 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 and accordingly, this test is also met.

8. Decision

29)       For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Rohan Pirani, Panel Chair

Mr Sean McIlveen

Ms Claire Sullivan

7 December 2023

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1. The Union tried to submit its application to the CAC by email on 13 November 2023 and had copied the Employer into this email however the Union had not used the correct email address for the CAC. It resent the application to the correct email address on 15 November 2023.  The Union did not provide an answer when asked in the application to give the date that it had copied the application and supporting documents to employer. ↩