Decision

Acceptance Decision

Updated 27 July 2020

Case Number: TUR1/1146(2019)

20 December 2019

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

Oxford Aviation Services Ltd

1. Introduction

1) Prospect (the Union) submitted an application to the CAC dated 25 November 2019 that it should be recognised for collective bargaining by Oxford Aviation Services Ltd (the Employer) for a bargaining unit comprising “Air Traffic Control (ATC) employees”. The location of the bargaining unit was given as Oxford Airport, Kidlington, Oxford OX5 1RA. The CAC gave both parties notice of receipt of the application on 25 November 2019. The Employer submitted a response to the CAC on 2 December 2019 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 Professor Gillian Morris, Panel Chair, and, as Members, Miss Mary Canavan and Ms Fiona Wilson. The Case Manager appointed to support the Panel was Sharmin Khan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 9 December 2019. The acceptance period was extended to 20 December 2019 in order to allow time for a membership check to take place; for the parties to comment on the results of the check should they choose to do so; and for the Panel to consider any such 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 voluntary recognition to the Employer on 4 November 2019. A copy of the letter requesting recognition was attached to the Union’s application. The Union said that it had not received a response to this letter from the Employer.

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 approximately 70. The Union stated that there were 22 workers in the proposed bargaining unit, of whom 12 were members of the Union. 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 said that an informal approach had been made to the Employer following discussions with workers on 5 September 2019. The Union said that since that time membership had grown from nine to 12. The Union said that Employer communications with workers on 12 November 2019 had addressed an “FAQ” from workers on the issue of union recognition.

8) The Union stated that the reason for selecting the proposed bargaining unit was because ATC employees were generally engaged on distinctive terms and conditions, including pay scales, and that this was the case at Oxford. The Union said that it was already recognised for ATC at an associated employer, the London Heliport Ltd. The Union did not indicate whether the bargaining unit had been agreed with the Employer. 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 the application made to the CAC, and supporting documents, to the Employer on 25 November 2019.

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 under the Schedule on 4 November 2019. The Employer said that it had not given a response, believing that the CAC would contact it next. The Employer said that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 25 November 2019. 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 now agree it. The Employer said that the Board of Directors and New Senior Management had worked tirelessly once they had been made aware of pay issues within ATC at Oxford Airport and had negotiated with the team to ensure a new pay structure was fair and consistent within the industry. The Employer said that there was a small team of individuals within ATC and negotiations were able to be conducted without the involvement of a union. The Employer said that it believed that working relationships and understanding had improved within the workforce at the Airport and continued to do so. The Employer said that, as there were only74 individuals throughout the whole Airport, it liked to talk freely and openly with its teams without the requirement of a third party intervention. The Employer said that its Operations Director had held a meeting with the ATC team to give them the opportunity to have an open forum which proved to be very successful and was well received by the team so those meetings would continue. The Employer said that it also had an open door policy and individuals could come and discuss their concerns any time. The Employer said that it was currently concentrating on pay structures within all the departments at the Airport and not just ATC but that once pay structures had been completed it could then look holistically at terms and conditions as they applied to everyone. The Employer said that the main concern had been with an individual within the ATC team who was bullying and harassing other individuals to join the Union and that one individual in particular had felt so threatened that she could not leave the building until she knew that he had already gone home. The Employer said that if individuals were confident with the progress that the Employer was making then they should not be coerced to join a union if they did not want to do so.

12) The Employer stated that there were 12 workers in the proposed bargaining unit. The Employer stated 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 said “Our payroll data base indicates the number of individuals paying into the union each month”. When invited to give its reasons if it did not consider that a majority of the workers in the proposed bargaining unit would be likely to support recognition, the Employer replied “No evidence”.

14) In answer to the questions whether it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, or whether it had received any other applications in respect of workers in the proposed bargaining unit, the Employer answered “No”.

5. The Membership Check

15) To assist the determination of two of the admissibility tests 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, addresses, 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 names, addresses and dates of birth (where possible). 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 10 December 2019 from the Case Manager to both parties. The information from the Union was received by the CAC on 11 December 2019 and from the Employer on 19 December 2019. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

16) In a covering email to the provision of its information to the CAC the Union wrote as follows:

For the avoidance of doubt, please note that this is a list mapped against the proposed bargaining unit (Air Traffic Control employees). It is a mixture of Air Traffic Control Officers (ATCOs) and Assistants.

I note that paragraph 8 of the Employer’s Response suggests that our assessment of the number of workers in the bargaining unit (22) is wrong and there are, in fact, 12. I believe this is the result of a misunderstanding, as 12 is probably the number of Air Traffic Control Officers alone. It is important that the employer provides the CAC with a list of all the employees working in the proposed bargaining unit, ie all Air Traffic Control Officers and Assistants (and, indeed, anyone else employed in ATC – although I believe everyone of that description is either an ATCO or an Assistant).

The job titles appearing in the Employer’s list were as follows:

• ATCO - Level 9

• ATC Admin

• ATCO - Level 11

• ATCA

• ATCO - Level 7

• ATCA Level 6

• ATCO - tbc paid level 11 actually level 6

• ATCO - Level 6

• ATCO - Level 2

• Air traffic Services Manager

• ATCO - Level 10 (but not tri valid)

17) The list supplied by the Employer indicated that there were 23 workers in the proposed bargaining unit. The list of members supplied by the Union contained 12 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 11, a membership level of 48%.

18) A report of the result of the membership check was circulated to the Panel and the parties on 19 December 2019. Both parties confirmed to the Case Manager the same day that they did not wish to comment on the result.

6. Considerations

19) 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.

20) 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 paragraph 36(1)(a) and paragraph 36(1)(b) are met.

7. Paragraph 36(1)(a)

21) 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. The membership check conducted by the Case Manager (described in paragraphs 15 to 17 above) showed that 48% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 15 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.

8. Paragraph 36(1)(b)

22) 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 21 above the Panel has concluded that the level of union membership within the bargaining unit stands at 48%. 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. No such evidence was provided in this case. It is also the experience of the Panel that there will be workers who are not members of the Union who would be likely to favour recognition of the Union. 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.

9. Decision

23) For the reasons given in paragraphs 20 to 22 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Miss Mary Canavan

Ms Fiona Wilson

20 December 2019