Decision

Acceptance Decision

Updated 24 January 2022

Case Number: TUR1/1169(2020)

29 May 2020

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

Prestwick Aircraft Maintenance Limited

1. Introduction

1) Prospect (the Union) submitted an application to the CAC dated 23 April 2020 that it should be recognised for collective bargaining purposes by Prestwick Aircraft Maintenance Limited (the Employer) in respect of a bargaining unit comprising “All staff in Prestwick Aircraft Maintenance Limited below the level of Director.” The location of the bargaining unit was given as “Building 620, Orangefield, Prestwick Airport, Ayrshire, KA9.” The application was received by the CAC on 24 April 2020 and the CAC gave both parties notice of receipt of the application on the same day. The Employer submitted a response to the CAC on 7 May 2020 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 Kenny Miller, Panel Chair, and, as Members, Mr Alistair Paton and Mr Matt Smith OBE. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 1 May 2020. The acceptance period was extended to 26 May 2020 and subsequently to 1 June 2020 in order to provide more time for the Panel to consider all the evidence.

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.

Summary of the Union’s application

5) In its application to the CAC the Union stated that it had sent a formal request to the Employer by email on 2 April 2020. A copy of this request was attached to the application. The Union stated that no response was received either electronically or in writing 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 560. The Union stated that there were 560 workers in the proposed bargaining unit, of whom 242 were members of the Union. When asked 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 that it had conducted a survey of employees which had ran from the 8 April 2020 to 22 April 2020. The Union also stated that 180 valid responses to the survey had been received out of 195 of which 178 supported recognition. The Union stated that the invalid responses included double respondents, anonymous respondents and staff who had left the business and all of those responses had been removed. The Union stated that they believed that the survey clearly demonstrated that the workforce supported recognition and the survey data was available on request to the CAC to scrutinise. The Union stated that Prospect membership had risen steadily over the last two years with a sharp increase in recent weeks in which more than 100 members had joined in March.

8) The Union stated that the reason for selecting its proposed bargaining unit was because it believed it to be the most logical and practical bargaining unit and was conducive to good employee relations. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union stated “no”. The Union said that it was not aware of any existing recognition agreement which covered any workers in the proposed bargaining unit.

9) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application and supporting documents to the Employer on 23 April 2020.

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

10) In its response to the Union’s application the Employer stated that the Union’s written request for recognition had been received by email dated 3 April 2020. The Employer confirmed that no response was made to the application.

11) The Employer confirmed that it had received a copy of the Union’s application form by email dated 23 April 2020. 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 but answered ‘YES’ when asked if it did agree. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

12) The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application. The Employer said that there were 547 workers in the proposed bargaining unit and that the number provided by the Union was inaccurate. The Employer stated that there 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 stated that over the years when dealing with its employees there had been very little mention from them of a trade union. The Employer said that the Union had had very little involvement when it came to disciplinaries and grievances of staff. The Employer stated that in recent weeks a number of individuals had contacted management confidentially to advise that they had tried to be included in the Unions numbers but had felt uncomfortable with that. The Employer stated that a number of individuals had advised management that they had joined the Union due to promises made but had subsequently withdrawn their union membership application. 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 that a number of individuals had since contacted management and advised them that they did not want any association with the position that was being adopted by the Union The Employer stated that there had been very limited interaction with the trade union and there had never appeared to be a desire for any recognition of a trade union by the employees. The Employer advised that the company had previously had an Engineering Representative Committee that allowed staff to raise concerns with Management which ran for several years but had since wound down with limited requirement for it. The Employer stated that disputes had been resolved on a one to one basis without the need for formal representation.

14) The Employer stated that it was not aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit.

4. The membership and support check

15) 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 and of a survey compiled by the Union. 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) and a copy of its survey. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and survey would not be copied to the other party and that agreement was confirmed in a letter dated 11 May 2020 from the Case Manager to both parties.

16) The information for the membership and support check was received from the Union on 15 May 2020 and from the Employer on 14 May 2020. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

17) The list supplied by the Employer indicated that there were 528 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 235 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 232, a membership level of 43.94%.

18) The Union supplied two further documents the survey data and summary. The Union explained that the survey had been conducted on line using SnapSurvey and was started on 8 April 2020 and closed on 24 April 2020. The Union said that the survey was set out as follows:

PAM Recognition Survey

Prospect is seeking support from staff at PAM for union recognition. Recognition will allow employees, as union members, to negotiate on issues such as pay, terms and conditions. At the moment staff have no way of negotiating with PAM and are having terms and conditions imposed.

Please can you answer this survey - we need as many employees as possible to answer the questions, it doesn’t matter if you are a Prospect member, or member of another union or not a member. Everyone’s opinion is important so once you have completed the survey ask around and see if you can encourage a colleague to do so.

Please be assured that the information you provide will not be shared with the employer and will only be used for the purposes of gaining statutory recognition.

Please tell us some more about yourself. You must give us your name and email address.

(Other information is optional but collecting it is important to ensure we have good data. Please be assured that this information will be kept confidential and Prospect will not release your name or details to your employer)

Do you want Prospect to be recognised for the purposes of collective bargaining on your behalf?

o Yes

o No

What is your employment status at PAM?

o Employed - Engineering (Annualised Hours)

o Employed - Non-Engineering Staff (Standard hours)

o Contractor

o Other

Please tell us some more about yourself and provide a contact email or telephone number. (This information is optional but collecting it is important to ensure we have good data. Please be assured that this information will be kept confidential and Prospect will not release your name or details to your employer)

Name:

Department:

Job Title:

Contact telephone number:

Are you a union member?

o Yes, I am a Prospect member

o Yes, I am a member of another union

o No, I am not a union member

The survey data document was produced by the Union having been pulled from SnapSurvey and the check was conducted against this document.

19) The survey supplied by the Union contained 180 names a figure that represented 34.09% of the proposed bargaining unit. Of those 180 names, 147 were members of the Union (27.84% of the proposed bargaining unit) and 33 were non-members (6.25% of the proposed bargaining unit). Of the 147 Union members 145 (27.46% of the proposed bargaining unit) voted ‘YES’ to the question ‘Do you want Prospect to be recognised for the purposes of …….’ and 2 (0.38% of the proposed bargaining unit) voted ‘NO’. Of the 33 non-members (6.25% of the proposed bargaining unit) all voted ‘YES’ to the question ‘Do you want Prospect to be recognised for the purposes of …….’

20) A report of the result of the membership and support check was circulated to the Panel and the parties on 19 May 2020 and the parties were invited to comment.

Summary of the parties’ comments following the membership and support check

21) In an e-mail to the CAC 19 May 2020 the Employer stated that based on the information provided it was not disputed that paragraph 36(1)(a) was satisfied and that the Company wished to make no further comment in respect of that part of Paragraph 36(1).

22) The Employer stated that there was insufficient trade union membership within the bargaining unit to have a majority and not all members were supportive of recognition. The Employer stated that it noted that 2 of the 147 members opted not to support recognition and felt that number was likely to increase further if all members were asked, rather than just the 147 questioned. The Employer stated that would in turn bring down the percentage of workers in favour of recognition.

23) The Employer said that without having majority of union members, there must be a consideration as to whether non-union members would be supportive of recognition. The Employer said that the SnapSurvey provided by the trade union suggested that all 33 non- members would be supportive of recognition. This, the Employer felt was a surprising value considering that it was higher than the members support which was less than 100%. The Employer pointed out that the value of the non-members was also only a fraction of the workforce at 6.25%. and the Company did not believe that to be reflective of the whole workforce.

24) The Employer said that considering that the trade union (despite extensive recruitment drives) had been unable to obtain a majority of the collective bargaining group as members, the Company suggested that there was a lack of desire to have the required majority for recognition. The Employer stated that in addition and perhaps most telling, was that not all members wished for there to be recognition.

25) The Employer stated that it remained the Company’s position that recognition of the trade union Prospect should not be granted.

26) In an e-mail to the CAC dated 21 May 2020 the Union stated that their membership level clearly exceeded the 10% threshold and was approaching 50% of all staff on site. The Union stated that it continued to recruit members despite disparaging claims from the Employer about the Union sent to all staff. The Union stated that they comfortably met the requirements of Section 36(1) (a).

27) As to section 36(1) (b) the Union stated that they understood that the test was that there is likely to be majority support and they were not required, at this stage, to show that there definitely was a majority. The Union stated that they appreciated that they did not have absolute evidence of majority support but asked that the CAC, when considering if the admissibility test was met or not, to acknowledge that the percentage of members was already very considerably over the 10% hurdle. The Union stated that on their understanding of the bargaining unit, they believed they had over 43.94% membership based on the CAC assessment. The Union said that whilst they appreciated that it was not the same as demonstrating that they all favoured recognition, they understood that the CAC often accepted membership as being evidence of likely support for recognition, unless there was significant evidence to the contrary which they said there was not in this case.

28) The Union stated that the number of non-members who had voiced their support for recognition (through their survey) was a further 6.25% which would bring the percentage of those likely to favour recognition to 50.19%. The Union said that considering the small number of members who responded negatively to their survey (0.3% of proposed BU) and possibly rounding errors that would evidence approximately 50% of the workforce showing support.

29) The Union stated that the survey submitted was conducted online due to the current restrictions on movement in Scotland and those restrictions had been in place for the whole period of the application and during the time immediately prior to the application when they were collecting evidence to support it. The Union said that it was open to all staff members, not just union members; however, their ability to contact non-members had been limited due to the outbreak.

30) The Union stated that the survey had also run for a comparatively short period of time for a survey of that type and that was reflected in the response rate, a longer survey period would likely have gathered further support but believed that what they had summited was sufficient and representative. The Union felt it would have been extremely difficult and possibly unsafe to have run a traditional paper survey due to the current restrictions.

31) The Union said that it currently had considerable difficulty reaching non-members, both to ask them to join the union and particularly for the purposes of asking them if they would be likely to support recognition. The Union said that they did not have contact details for non-members so the survey was only sent to union members who were asked to pass it on to any non-members they were aware of. The Union said that several existing members had voiced concern about being too openly committed to the union at this stage, so believed that partly explained the fairly low response. The Union said that the workers were based at secure airport sites and they did not have access to the physical workplace. The Union stated that they had not been able to ‘stand at the gates’ to identify and approach workers going in or out of the workplace due to the lockdown restrictions.

32) The Union stated that in previous correspondence the Employer had claimed that union members did not want them to be recognised but no hard evidence to support that had been provided only anecdotal stories. The Union stated that, in the absence of any contrary evidence, they believed that, despite the difficulties, they could show considerable support for recognition within the proposed bargaining unit, largely through their existing membership. The Union stated that in their experience the right of access to the workplace and facilities through the recognition process once the union passed the admissibility stage, lead to a growing level of support and membership, like a ‘bandwagon effect’. The Union stated that with co-operation in terms of proper access to the workers they believed they would be able to achieve a majority vote in favour of recognition.

33) Finally, the Union stated that they believed they had met the requirements of section 36(1) (b) and urged the Panel to accept their application.

5. Considerations

34) 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.

35) 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 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.

6. Paragraph 36(1)(a)

36) 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.

37) The membership check conducted by the Case Manager showed that 43.94% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 16 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. The Panel notes that the Employer in their letter of 19 May 2020 stated that it was not disputed that Paragraph 36(1)(a) was satisfied and that the Company wished to make no further comment in respect of that part of Paragraph 36(1). 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.

7. Paragraph 36(1)(b)

38) 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.

39) The Panel observes that the support check conducted by the Case Manager showed that the percentage of union members in the proposed bargaining unit was 43.94% In addition, 34.09% of the workers in the proposed bargaining unit (180 out of 528 workers) had signed up to a survey with 178 being in favour of recognition of the Union. Of those who had signed up to the survey being in favour of recognition 145 were Union members (27.46% of the proposed bargaining unit) and 33 were non-members (6.25% of the proposed bargaining unit). The Panel notes the Employer’s comment that 2 of the 147 trade union members who had signed up to the online survey had opted not to support recognition and felt that number was likely to increase further if all members were asked rather than just the 147.

40) However, the Panel has not received, from either the Employer or any workers within the proposed bargaining unit, any documentary evidence that employees in the bargaining unit would not support recognition of the Union apart from the two who had signed up to the survey saying they did not want the Union to be recognised. The Panel considers that unless there is evidence to the contrary (which there is for only two members) membership of a trade union implies a willing ness to have terms and conditions established through collective bargaining. We would take the view that the other members of the Union would be likely to favour recognition of the Union for collective bargaining (44.13%), as would non-union members who signed up to the survey (6.25%); giving a total of 50.38%.

41) On the basis of the evidence before it, the Panel has decided, on the balance of probabilities, 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.

8. Decision

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

Panel

Professor Kenny Miller, Panel Chair

Mr Alistair Paton

Mr Matt Smith OBE

29 May 2020