Decision

Acceptance Decision

Updated 13 July 2020

Case Number: TUR1/1178/2020

30 June 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

SGS Baseefa Ltd

1. Introduction

1) Prospect (the Union) submitted an application to the CAC on 29 May 2020 that it should be recognised for collective bargaining purposes by SGS Baseefa Ltd (the Employer) for a bargaining unit described as: “SGS Baseefa”. The CAC gave both parties notice of receipt of the application on 29 May 2020. The Employer submitted a response to the CAC dated 12 June 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 Mr James Tayler, Panel Chair, and, as Members, Mrs Susan Jordan and Mr Gerry Veart. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case on two occasions. The initial period expired on 12 June 2020. The acceptance period was extended to 30 June 2020 to allow time for a membership and support check to be carried out, for the parties to comment on the subsequent report, and for the Panel to consider these 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 recognition to the Employer on 8 April 2020^{[footnote 1]} and that the Employer had declined the request. A copy of the Union’s letter and the Employer’s response dated 27 April 2020 was attached to the application.

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 27. The Union stated that there were 27 workers in the proposed bargaining unit, of whom 17 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 stated that it had discussed recognition with many of the employees via email and telephone conversations and all conversations were favourable to seeking recognition. The union stated that it had conducted an all member survey via email on 1 May 2020 closing on 15 May 2020. The Union said that 17 ballots were issued, 14 ballots cast and all 14 votes were in favour of recognition. The Union also attached an excel spreadsheet showing anonymised membership data.

8) The Union stated that the reason for selecting the proposed bargaining unit was because it was a logical bargaining unit covering all staff within the business. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the bargaining unit the Union answered ‘No existing recognition agreement’.

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 22 May 2020.

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 on 20 April 2020. The Employer stated that a copy of their written response dated 17 April 2020^{[footnote 2]} was attached but it was not attached.

11) The Employer confirmed that a copy of the application was received on 1 June 21020 via the CAC.

12) 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 bargaining unit. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

13) 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 the union had stated that there were 27 workers in the proposed bargaining unit and that they believed there was 26. The Employer said that they were unaware of the reason for the difference.

14) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated that the terms and conditions of employment they offered at the Buxton site were highly competitive compared to their competitors and did not believe that the majority of employees would have an appetite for union membership.

15) 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 explained that in March 2020 they had appointed a Business Manager to oversee the Buxton site and believed that, since his involvement, employee relations had continued to improve. The Employer said the Business Manager was introducing improved communication methods between management, team leaders and employees which would allow greater involvement and engagement of the team at the Buxton site. The Employer said that the long-term aim was to change the culture at the site, leading to greater levels of trust and progressive working relationships. The Employer said that the journey had already begun and that they had witnessed an immediate impact as a result of measures already taken. The Employer said however, due to the inability to visit the site and the volume of home working due to the current coronavirus crisis, progress had inevitably slowed down and they would appreciate additional time to implement future plans.

16) 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, nor had it received any other applications in respect of workers in the proposed bargaining unit.

5. Union’s comments on the Employer’s response

17) In an email to the CAC dated 16 June 2020 the Union confirmed that it had sent notification of their application for recognition to SGS Baseefa along with the supporting evidence to the Employer and that the Case Manager had been copied into that email. The email sent to the Employer that was copied to the Case Manager was dated 16 June 2020. The Panel is satisfied, therefore, that a copy of the notice of application was provided to the Employer by the Union. While this is a requirement pursuant to paragraph 34 of Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 there is no specified time when it must be done prior to a decision being taken on whether the application should be accepted. The Employer had, in any event, received a copy of the application via the CAC at the outset, which while not complying with paragraph 34 meant that they were not disadvantaged by not knowing the details of the complaint until it was sent to them directly by the Union.

6. The Membership Check

18) To assist in the application 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, 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 name and date of birth). 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 17 June 2020 from the Case Manager to both parties. The information from the Union was received by the CAC on 19 June 2020 and from the Employer on 22 June 2020. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

19) The list supplied by the Employer indicated that there were 25 workers in the proposed 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 17, a membership level of 68%.

20) A report of the result of the membership check was circulated to the Panel and the parties on 22 June 2020 and the parties were invited to comment on the result.

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

21) No comments were received form either party.

8. Considerations

22) 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.

23) 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 and that it was made in accordance with paragraph 11 of the Schedule.

24) 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. It does not at this stage decide whether the proposed bargaining unit is appropriate.

9. Paragraph 36(1)(a)

25) 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.

26) The membership check conducted by the Case Manager showed that 68% of the workers were members of the Union. As stated in paragraph 18 above the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. It is clear to the Panel on this basis that members of the Union constitute at least 10% of the workers in the bargaining unit and the test under this paragraph is satisfied.

10. 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) The level of union membership is 68%. The Union did not provide any specific additional evidence of support for recognition, such as a petition, but the Panel considers that, in the absence of any significant evidence to the contrary other than assertion from the Employer, 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 as entitled to conduct collective bargaining on behalf of the proposed bargaining unit. At this stage in an application for recognition we are required to make a decision on whether the majority of employees in the bargaining unit are likely to support recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit. In the absence of evidence to dispute the information provided by the Union we accept the Union’s figures for the purposes of determining whether to accept the application. Union membership is considerably over 50% which provides strong evidence of the likelihood of support for collective bargaining on behalf of the proposed bargaining unit.

29) 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.

11. Decision

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

Panel

Mr James Tayler, Panel Chair

Mrs Susan Jordan

Mr Gerry Veart

30 June 2020

1. The Union’s letter was actually dated 8 February 2020. ↩

2. A copy of this letter was attached to the Union’s application and was actually dated 27 April 2020 ↩