Decision

Validity Decision

Updated 27 July 2020

Case Number: TUR1/1146(2019)

08 April 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

AGREEMENT ON THE BARGAINING UNIT

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) 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”. The parties stated that there were a number of posts that were not currently filled but would have new staff starting in the next few weeks and that once fully established the unit would comprise 26 employees. Both parties requested a stay in proceedings to enable them to explore a voluntary recognition agreement. In a letter to the parties dated 29 January 2020 the Case Manager informed them that the Panel Chair had granted a stay in proceedings until 28 February 2020. In a letter to the Case Manager dated 28 February 2020 the Union said that the parties had been unable to reach a voluntary recognition agreement and this was reiterated by the Employer in a letter to the Case Manager dated 2 March 2020.

4) In a letter to the parties dated 5 March 2020 the Case Manager asked each party to confirm whether the agreed bargaining unit constituted a clarification (not a change) in the bargaining unit proposed in the Union’s request and application for recognition of “Air Traffic Control (ATC) employees” located at Oxford airport. In a letter to the Case Manager dated 5 March 2020 the Union stated that the agreed bargaining unit was a clarification of, rather than a change to, the Union’s proposed bargaining unit, being an expanded description of that unit. The Union said that the roles particularised in the agreed bargaining unit constituted the Employer’s definition of the generic description which the Union was happy to accept. In a letter to the Case Manager dated 6 March 2020 the Employer stated that there had been a fundamental change in the “make-up” of the bargaining unit that had originally been proposed due to “the inclusion of ATCAs and Admin plus Managers”.

5) In a letter to the Case Manager dated 10 March 2020 the Union provided additional information which, it submitted, supported its position that the agreed bargaining unit was a clarification of that originally proposed. The Union said that it had envisaged that its original bargaining unit would include, as a minimum, ATCOs and ATCAs as these roles were commonly engaged in operational activities and had distinctive terms and conditions. The Union provided a history of the negotiations between the parties about the bargaining unit and said that the changes – the addition of two management positions and one administrative role – had been at the Employer’s request and did not constitute a “fundamental change” as the Employer had contended. The Union said that it would be happy to exclude those positions if the Employer wished to amend the parties’ agreement. Finally the Union asked for clarification about whether the ATC Admin Assistant role was included in the currently agreed bargaining unit in the event that it was decided to continue with that unit. The Employer responded in a letter to the Case Manager also dated 10 March 2020. The Employer reiterated its view that from its perspective there had been a fundamental change in the constitution of the bargaining unit. The Employer also made allegations about the Union’s approach to the recognition process and the tactics it had employed. These allegations were not relevant to the question which the Panel was required to determine. The Panel did not, therefore, investigate these allegations; makes no findings on them; and does not consider it helpful or material to record them in this decision.

6) The Panel considered carefully the documentation before it and decided that the bargaining unit agreed between the parties differed from that proposed in the Union’s request for recognition. This was communicated to the parties in a letter from the Case Manager dated 12 March 2020.

2. Issues

7) As the agreed bargaining unit differed from that originally proposed by the Union in its application, the Panel is required by paragraph 20 of Schedule A1 to the Act (the Schedule) to determine whether the Union’s application is invalid within the terms of paragraph 43 to 50 of the Schedule.

3. Summary of the parties’ submissions

8) In a letter to the parties dated 12 March 2020 the Case Manager invited them to make submissions on the application of the tests contained in paragraph 43 to 50 of the Schedule to the agreed bargaining unit. The Employer was also asked to clarify whether the ATC Administrative Assistant role was or was not included in the agreed bargaining unit.

9) In a letter to the Case Manager dated 16 March 2020 the Union stated that there was no existing recognition agreement; it was not aware of any competing application; and there had been no previous application in respect of the bargaining unit. The Union stated that there were 17 Union members within the agreed bargaining unit and that this level of membership, and the fact that it had increased from 12 when the initial check was conducted in December 2019, demonstrated support for recognition. The Union also commented on the Employer’s allegations about the Union’s conduct contained in the Employer’s letter of 10 March 2020 (see paragraph 5 above). On the basis of the evidence before it the Panel did not consider it necessary to investigate these allegations in order to decide whether the Union’s application was invalid. The Panel did not, therefore, investigate these allegations; makes no findings on them; and does not consider it helpful or material to record them or any other allegations about the conduct of either party in this decision.

10) In a letter to the Case Manager dated 16 March 2020 the Employer stated that the proposed bargaining unit should include Air Traffic Control Managers; Air Traffic Control Officers; Air Traffic Control Assistants; and Air Traffic Control Assistants (sic). The Employer stated that a ballot should be held to establish whether or not there was majority support for union recognition.

4. The scope of the agreed bargaining unit

11) The Panel noted that the Employer did not, in its letter of 16 March 2020, indicate whether the ATC Administrative Assistant role was or was not included in the agreed bargaining unit as requested in the Case Manager’s letter of 12 March 2020; rather the Employer had listed Air Traffic Control Assistants twice. The Panel Chair decided that the membership check described below should be conducted on the basis that the ATC Administrative Assistant role was not included.

5. The membership check

12) To assist the determination of two of the admissibility tests specified in the Schedule, namely, whether 10% of the workers in the agreed bargaining unit are members of the union (paragraph 45(a)) and whether a majority of the workers in the agreed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 45(b)), the Panel proposed an independent check of the level of union membership within the agreed 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 agreed 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 20 March 2020 from the Case Manager to both parties. The information from both parties was received by the CAC on 25 March 2020. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

13) The Employer listed each worker’s full name under the following job titles: Management, ATCOs and ATCAs. The list supplied by the Employer indicated that there were 23 workers in the agreed bargaining unit. The list of members supplied by the Union contained 17 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 15, a membership level of 65%.

14) A report of the result of the membership check was circulated to the Panel and the parties on 26 March 2020 and the parties were invited to comment on the results of the check by 1 April 2020.

15) In a letter to the Case Manager dated 30 March 2020 the Union said that it was concerned that the bargaining unit consisted of 23 workers rather than the 26 it had understood would be included as of 24 January 2020. The Union noted that the ATC Admin Assistant role had been excluded, which had previously been added at the Employer’s suggestion, a deletion which would make the bargaining unit 25 employees. The Union said that one of its members had been dismissed the previous week, which would account for a reduction to 24. The Union said that it had not been able to establish why the number had fallen further to 23 workers, however, and suggested that, on the face of it, the Employer had removed one of its members from the bargaining unit for the purposes of the check. The Union requested the CAC to ask the Employer to clarify the position.

16) No comments on the membership check were received from the Employer.

6. Considerations

17) The Panel is required to decide whether the Union’s application is invalid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision the Panel has considered carefully the submissions of the parties and all the other evidence before it. On the evidence before it the Panel is satisfied that there is no competing application from another union; that there has been no previous application in respect of the agreed bargaining unit; and that there is no existing recognition agreement covering any of the workers within the agreed bargaining unit. The remaining issues for the Panel to decide are whether the application is invalid under paragraph 45 of the Schedule.

7. Paragraph 45(a)

18) Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the union constitute at least 10% of the workers in the agreed bargaining unit. The membership check conducted by the Case Manager (described in paragraphs 12 and 13 above) showed that 65% of the workers in the agreed bargaining unit were members of the Union. As stated in paragraph 12 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 agreed bargaining unit as required by paragraph 45(a) of the Schedule.

8. Paragraph 45(b)

19) Under paragraph 45(b) of the Schedule, an application is invalid unless the Panel decides that a majority of the workers constituting the agreed 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 18 above the Panel has concluded that the level of union membership within the bargaining unit stands at 65%. 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 agreed 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 agreed 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 45(b) of the Schedule.

20) The Panel notes the contents of the Union’s letter of 30 March 2020 set out in paragraph 15 above. In view of the level of union membership established by the check the Panel did not find it necessary to investigate further the list of workers supplied by the Employer for the purposes of this decision.

9. Decision

21) For the reasons given in paragraphs 17 to 20 above, the Panel’s decision is that the application is not invalid and that the CAC is proceeding with the application.

Panel

Professor Gillian Morris, Panel Chair

Miss Mary Canavan

Ms Fiona Wilson

08 April 2020