Recognition Decision
Updated 27 July 2020
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Case Number: TUR1/1146(2019)
01 May 2020
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
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 Miss Sharmin Khan.
3) By a decision dated 20 December 2019 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. The appropriate period was initially due to end on 22 January 2020 but this period was extended until 24 January 2020 to allow more time for negotiations between the parties. In separate letters dated 24 January 2020 both parties wrote to the Case Manager confirming that they had agreed the bargaining unit, which was described as “Staff employed in the ATC unit at Oxford Airport; specifically: Head, Air Traffic Services; ATS Manager; Air Traffic Control Officer (ATCO); Air Traffic Control Assistant (ATCA); ATC Admin Assistant”. Both parties requested a stay in proceedings to enable them to explore a voluntary recognition agreement and the Panel Chair granted a stay until 28 February 2020. The parties were unable to negotiate a voluntary agreement and as a consequence the proceedings were resumed.
4) The Union contended that the agreed bargaining unit described in paragraph 3 above constituted a clarification of, rather than a change to, the bargaining unit proposed in the Union’s request to the Employer and application to the CAC. The Employer argued that it constituted a change to the bargaining unit. Following consideration of submissions by the parties on this matter the Panel decided that the bargaining unit agreed between the parties differed from that proposed in the Union’s request for recognition. The Panel therefore proceeded to consider whether the Union’s application met the validity tests set out in paragraphs 43 to 50 of the Schedule. In a decision dated 8 April 2020 the Panel decided that the Union’s application was not invalid and that the CAC would proceed with the application. The Panel’s decision on the tests set out in paragraph 45 of the Schedule was informed by the result of a membership check contained in a report issued by the Case Manager on 26 March 2020. For the purposes of this check the Employer supplied a list of 23 names under the job titles Management, ATCOs and ATCAs. The Case Manager’s report showed that 15 of the 23 workers were members of the Union, representing a membership level of 65%. [footnote 1] For the reason set out in paragraph 11 of that decision the ATC Admin Assistant was not included in the membership check. [footnote 2]
2. Issues
5) Paragraph 22 of 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 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 to conduct collective bargaining on their behalf. Paragraph 22(5) states that “membership evidence” 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.
6) In a letter from the Case Manager to the parties dated 8 April 2020 the parties were informed that the Panel was satisfied that a majority of the workers constituting the bargaining unit were members of the Union for the purposes of paragraph 22(1) of the Schedule (see paragraph 4 above). The Employer was invited to make submissions on the qualifying conditions set out in paragraph 5 above.
3. Summary of the Employer’s submissions on the qualifying conditions
7) In an e-mail to the Case Manager dated 20 April 2020 the Employer stated that the ATC Admin Assistant had not been included in the membership check because the Panel had instructed that role should be omitted although both parties had “previously agreed to same”. The Employer said that three individuals, whose names were redacted, had left employment with the Employer. One of these individuals was an ACTO, another was an ATCA; the role of the third was unspecified. The Employer submitted that, despite union membership, there was heavy resistance in the bargaining unit to collective bargaining and it may be that a majority of the unit were opposed to recognition despite being members. The Employer said that it therefore insisted on a ballot, in the absence of which it would not be prepared to work with the Union even if instructed to do so. The Employer said that the entire process had been chaotic and time consuming during a difficult period for businesses such as those of the Employer and that it would have been reasonable and sensible to put the process on hold until things returned to normal. [footnote 3]
4. Summary of the Union’s comments on the Employer’s submissions
8) In an e-mail to the Case Manager dated 27 April 2020 the Union said that so far as it was aware all 16 members on its records were still employed in the bargaining unit. The Union referred to a letter to the Case Manager dated 30 March 2020, commenting on the membership check of 26 March 2020, in which it had expressed concern that the Employer had removed one of its members from the bargaining unit.
5. Considerations
9) The Act 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 then decide if any of the three conditions in paragraph 22(4) is fulfilled. If the Panel considers that any of them is fulfilled it must give notice to the parties that it intends to arrange for the holding of a secret ballot.
10) The membership check issued by the Case Manager on 26 March 2020, described in paragraph 4 above, showed that 65% of the workers in the 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 notes the Employer’s comment, recorded in paragraph 7 above, about the omission of the ATC Admin Assistant from the check.[footnote 4] As explained in the decision of 8 April 2020 the Panel Chair decided that the ATC Admin Assistant should be omitted from the check. This followed a request by the Union in letters dated 5 and 10 March 2020 for the Employer to clarify whether the ATC Admin Assistant was still intended to be included in the check, a request which was reiterated in a letter from the Case Manager to the Employer dated 12 March 2020. The Employer responded to this request in a letter dated 16 March 2020 listing the categories of worker it understood to fall within the agreed bargaining unit. This list did not include the ATC Admin Assistant. The Employer did not contend, in its e-mail of 20 April 2020, that including this role in the check would have resulted in the Union not having majority membership in the bargaining unit and the Panel has no evidence to this effect. The Panel also notes the Employer’s comment that three individuals have left the Employer’s employment, although the date(s) of their departure were not specified. Again the Employer did not contend that this meant that the Union no longer had majority membership in the bargaining unit. On the basis of the figures before it the Panel is satisfied that even if all three had been Union members who had been included in the check of 26 March 2020 (of which there is no evidence, and the Union’s e-mail of 27 April 2020 indicates to the contrary) it would still be the case that a majority of the workers in the bargaining unit are members of the Union. In the absence of evidence to the contrary, the Panel is therefore satisfied that a majority of the workers in the bargaining unit are members of the Union.
11) The Panel notes the Union’s concern that one of its members had been omitted from the list of names supplied by the Employer for the purposes of the membership check of 26 March 2020 (see paragraph 8 above). In the light of its conclusion that a majority of the workers in the bargaining unit are members of the Union the Panel has not found it necessary to investigate this matter further and it has played no part in the Panel’s decision.
12) 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.
13) The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Panel has considered the arguments put forward by both parties and has come to the view that it is not satisfied that a ballot should be held in the interests of good industrial relations. The Panel notes the submission made by the Employer, set out in paragraph 7 of this decision, that there is heavy resistance in the bargaining unit to collective bargaining and that it may be that a majority of the unit are opposed to recognition despite being members. However the Panel is not persuaded by this submission, which was not supported by any evidence before the Panel. The Panel also notes the Employer’s statement that it insisted on a ballot and that in the absence of a ballot it would not be prepared to work with the Union even if instructed to do so. The Panel considers that the Employer’s insistence on a ballot is based on a misreading of the Schedule which does not state that a ballot must be held merely because it is demanded by one of the parties. The Panel also considers that the Employer’s threat not to work with the Union in the absence of a ballot even if instructed to do so does not constitute a reason for concluding that a ballot should be held in the interests of good industrial relations. The Panel is therefore satisfied that this condition does not apply.
14) 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 Panel has no such evidence and the Panel has therefore concluded that this condition does not apply.
15) 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 the Panel has therefore concluded that this condition does not apply.
6. Concluding observation
16) The Panel notes that the Schedule states that recognition should be declared where a majority of workers in the bargaining unit are members of the Union unless one of the three qualifying conditions applies. The Panel notes the Employer’s statement that it would not be prepared to work with the Union in the absence of a ballot even if instructed to do so. The Panel does not consider it appropriate for either party to attempt to frustrate the operation of the Schedule and hopes that the Employer may be minded to take a different view having reflected further on the matter.
7. Declaration of recognition
17) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that a majority of the workers in the bargaining unit are members of the Union. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule are met. Pursuant to paragraph 22(2) of the Schedule, the CAC must 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 “Staff employed in the ATC unit at Oxford Airport; specifically: Head, Air Traffic Services; ATS Manager; Air Traffic Control Officer (ATCO); Air Traffic Control Assistant (ATCA); ATC Admin Assistant”.
Panel
Professor Gillian Morris, Panel Chair
Miss Mary Canavan
Ms Fiona Wilson
01 May 2020