Decision

Acceptance Decision

Updated 2 October 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1420(2024)

2 October 2024

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:

University and College Union (UCU)

and

BIMM University

1. Introduction

1)         The University and College Union (UCU) (the Union) submitted an application to the CAC dated 12 August 2024 that it should be recognised for collective bargaining purposes by BIMM University (the Employer) for a bargaining unit comprising “All salaried staff at pay scale 5 and below at the above Brighton campus.” The location of the bargaining unit was given as “BIMM Music Institute, 38-42 Brunswick Street West, Hove, BN3 1EL. Screen and Film School, 48A Old Steine, Brighton and Hove, Brighton BN1 1NH. IC Theatre, 55 North St, Portslade, Brighton, BN41 1DH. All of which comprise the Brighton campus of BIMM Institute.” The application was received by the CAC on 12 August 2024 and the CAC gave both parties notice of receipt of the application on 12 August 2024.  The Employer submitted a response to the CAC dated 16 August 2024 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 Chair established a Panel to deal with the case.  The Panel consisted of Ms Naeema Choudry, Panel Chair, and, as Members, Mr Martin Kirke and Mrs Anna Berry.  Mrs Anna Berry was replaced by Mr Paul Noon on 30 September 2024. The Case Manager appointed to support the Panel was Joanne Curtis.

3)          The CAC Panel has extended the acceptance period in this case.  The initial period expired on 27 August 2024.  The acceptance period was extended to 2 October 2024 in order to allow time for the parties to comment on the results of a membership check and for the Panel to consider said 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 17 May 2024 by email. Thereafter emails were exchanged between the parties resulting in one online meeting on 1 July 2024. The Union stated that on 30 July it received a formal response from the Employer turning down the request for voluntary recognition. A copy of the Union’s e mail of 17 May 2024 and the Employer’s written response dated 30 July 2024 were 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 approximately 800. The Union stated that there were approximately 90 workers in the proposed bargaining unit. When asked to state the number of union members in the proposed bargaining unit and to provide evidence to support this figure the union answered “10, will supply evidence on request which is not to be shared with the employer.” 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 said “petition in favour of recognition signed by 73% of the bargaining unit. Will supply evidence on request which is not to be shared with the employer.”

8)         The Union stated that the reason for selecting the proposed bargaining unit was because “the bargaining unit is both geographically and organisationally logical as all workers are directly employed in non-management grades in the Brighton campus. The Brighton campus has a discrete management structure, and workers work across the schools of the campus.” The Union said that the bargaining unit had not been agreed with the Employer. 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.”

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 12 August 2024.

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

10)       The Employer said that it had received the Union’s written request for recognition on 17 May 2024. The Employer said that it had initially responded on 28 May 2024 asking for clarification around the proposed bargaining unit and the location of workers proposed to be included within the bargaining unit. The Employer said that the Union responded on 3 June 2024 and a meeting took place between the parties on 1 July 2024 to discuss whether “recognition was viable.” Following the meeting the Employer said that it sent a comprehensive response to the Union dated 30 July 2024 in which it confirmed that the application for recognition was not accepted by the Employer. The Employer attached a copy of the correspondence to its response document.

11)       The Employer confirmed that it had received a copy of the Union’s application form from the Union on 12 August 2024.  The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit and that it did not agree the proposed bargaining unit. The Employer said that it did not consider that the proposed bargaining unit “all salaried staff at pay scale 5 and below at the BIMM Music Institute, Screen and Film School and IC Theatre Brighton campus of BIMM Institute” to be an appropriate bargaining unit. The Employer went on to say “we will address the reasons for this in due course and propose a more appropriate bargaining unit. However, the Employer does not consider first and foremost that UCU has the required 10% membership within the currently proposed bargaining unit. As such the employer considers that it would be more appropriate to deal with this first.”

12)       The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as defined in the Union’s application and said “there are c.120 (not 90) salaried staff at pay scale 5 and below at the BIMM Music Institute, Screen and Film School and IC Theatre Brighton campus of BIMM University. The Union has indicated that they have 10 members within the proposed bargaining unit. The Employer is therefore not satisfied that they have the required 10% membership within the proposed bargaining unit. As noted above, the Employer reserves the right to make submissions with regards to the suitability of the proposed bargaining unit.” The Employer said 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 “we have no way of validating the suggested union membership in the proposed bargaining unit. We understand UCU have confirmed it is 10. We would request that the membership number is validated as part of the application process particularly given, we do not consider that UCU have the required membership levels based on current numbers.”

14)       When asked 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 “we have no way of validating whether a majority of the workers in the bargaining unit are likely to support recognition. UCU have indicated that there was a petition conducted in which 73% of the bargaining unit were in favour of recognition. However, the Employer has not been provided with an opportunity to validate that petition or those who were petitioned. The Employer is therefore concerned that there is no satisfactory evidence of majority support within the bargaining unit. In the event that UCU are able to provide evidence of at least 10% membership within the bargaining unit proposed, majority in favour of support would need to be validated. The Employer also enjoys a positive relationship with our workforce and there has been no pressure internally for union recognition or other collective bargaining apparatus, although we have initiated various measures for communication and consultation on our own initiative. The workforce has functioned well without a recognised union and BIMM has well developed HR policies and practices to allow employees to raise concerns and ensure they are addressed.”

15)       The Employer answered “N/A” when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit and when asked if it had received any other applications in respect of workers in the proposed bargaining unit. The Employer said that it consented to its contact details being forwarded to Acas.

5. The membership and support check

16)       To assist in 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. An initial check was carried out on 3 September 2024 and then again on 23 September 2024 after the Union had been provided with a list of the roles the Employer had included for the purposes of the check. 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 dates of birth).  It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party however the roles included in the check would be detailed in the membership and support check report.

17)       The information requested from the Employer was received by the CAC on 11 September 2024 and from the Union on 6 September 2024. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.   

18)       The list supplied by the Employer indicated that there were 118 workers in the Union’s proposed bargaining unit.  The list of members supplied by the Union contained 33 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 12 a membership level of 10.17%.

19)       The e-petition supplied by the Union contained 66 names, of which 54 were in the proposed bargaining unit, a figure that represented 45.76% of the proposed bargaining unit. Of those 54 names, 9 were members of the Union (7.63% of the proposed bargaining unit) and 45 were non-members (38.14% of the proposed bargaining unit). The Union explained that the e-petition was carried out using Google forms.  Members were e-mailed a link to the petition and the results were presented in a spreadsheet. The spreadsheet consisted of 7 columns headed, “Timestamp”, “Personal E mail Address”, “I consent to being contacted”, “I support recognition of UCU for collective bargaining on behalf of salaried staff of pay scale 5 and below at BIMM’s Brighton campus”, “Your name”, “Job Title” and “Which Brighton site do you work at?” All of the typed entries had a “Yes” beneath the heading “I support recognition of UCU”. 

20)       A report of the result of the membership and support check was circulated to the Panel and the parties on 23 September 2024 and the parties were invited to comment on the results of that check by close of business on 25 September 2024.

6. Summary of the Union’s comments following the membership and support check

21)       The Union stated “notwithstanding our disagreement with the employer on the number of individuals within the bargaining unit membership of UCU constitutes 10.1% of the 118 workers the employer identifies, thus passing this test. It should be noted that since the test UCU membership has grown and, we believe, any bargaining unit the panel arrives at will be, more than 10%. 45.76% of workers within the employers bargaining unit signed the petition. 38.14% of workers who are not UCU members within the employer’s bargaining unit signed the petition. As we originally proposed a bargaining unit of 90 workers, and we asked 75 of those workers to sign the petition we believe we would comfortably exceed 50% of a bargaining unit comprised of 118 workers.”

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

22)       The Employer said that the CAC should not accept the application as the Union had only established a membership level of 10.17% in the proposed bargaining unit. The Employer went on to say, “we respectfully request that the CAC conduct a validity check on these members in order to ensure that the named individuals are genuinely on the Union’s register of membership.” The Employer said that the 10% threshold had only just been met and it had concerns that the number of Union members was borderline and may not actually meet the 10% threshold requirement. The Employer said “in the original data provided, the Union were only able to demonstrate that 7.44% of the proportion of the workers constituting the proposed bargaining unit were Union members. This fell significantly short of the statutory requirement. It is slightly unclear as to how the Union is now able to provide a list of 32 members and the basis on which these numbers appear to have grown since the first report (including who they would define as within the Bargaining Unit). It is particularly concerning that the Union have provided a list of 32 members, but that only 12 members appeared on the Employer’s list. We would therefore be grateful if the CAC could conduct a validity check given how close the numbers are.”

23)       The Employer went on to say “in any event, the Union has not satisfied the second limb of the test for the claim to be accepted in that they have not shown that a majority of the workers constituting the relevant bargaining unit would be likely to favour recognition of the union (or unions) as entitled to conduct collective bargaining on behalf of the bargaining unit. This is on the basis that:

a) Potentially no Majority of Union Members / Close numbers. As above, the union’s direct membership in the bargaining unit only represents 10.17% of the workforce. This demonstrates that there does not appear to be any demand for union recognition from the workforce generally. We also request the validity check as per the above submissions.

b) Significant proportion of the Union’s proposed bargaining unit have not signed. The Union indicated in their application for recognition that they considered that the proposed bargaining unit constituted around 90 employees. Whilst this is not accepted by the Employer and it is unclear how they have reached this number, only 66 individuals have signed the petition which indicates a significant proportion of the bargaining unit by the Union’s own figures have not signed the petition, further indicating that there does not appear to be any demand for union recognition from the workforce generally.

c) Significant Proportion of Union Members have not signed. Of the 54 union members which were common to both the Union and Employer’s lists of names within the proposed bargaining unit, only 45.76% of Union members appear to have signed the Union’s petition (which was apparently open for signature for a substantial period of almost 3 months at the least). The Employer was unaware of this petition and therefore there was no barrier and no opposition or resistance from the Employer that would have prevented people signing. Despite that it is clear a significant number of the Union’s own members have failed to sign the petition.

d) No Overall Majority. Of the 54 signatories common to both the petition and membership lists, only 9 were members of the Union (7.63% of the bargaining unit) and 45 were non-members (38.14% of the bargaining unit). We submit that this falls significantly short of demonstrating a majority are in favour of recognition.

e) Lack Of Accuracy in Petition. All of the above assumes (which we do not accept) that the petition was accurate and conducted in a way to make sure that the results were accurate and/or the accuracy of any publicity material. The Employer has not been able to test that. We have concerns relating to the veracity of the Union’s information. For instance, there are 12 names which appear on the Union’s list which do not appear on the Employer’s list and the Employer has no way of understanding who these purported 12 individuals actually are or in what circumstances they were induced to sign. There were also the names of 20 people on the Union’s list of members who did not appear on the Employer’s list of members for the purposes of the 10% membership check. Even with that potential for inaccuracy and the length of time the petition was open the Union have failed to demonstrate a majority of the proposed bargaining unit in favour of recognition. We would therefore submit that the panel cannot determine on the balance of probabilities that the majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union to conduct collective bargaining on their behalf as required by paragraph 36 (1).”

8. Considerations

24)       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. 

25)       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 paragraphs 36(1)(a) and paragraph 36(1)(b) are met.

Paragraph 36(1)(a)

26)       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. 

27)       The membership check conducted by the Case Manager (described in paragraphs 16 to 20 above) showed that 10.17% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 17 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

28)       For the reasons set out in paragraph 27 above the Panel has 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.

Paragraph 36(1)(b)

29)       Under paragraph 36(1) 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.

30)       For the reasons given in paragraph 27 above, the Panel has concluded that the level of union membership within the bargaining unit stands at 10.17%. 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.

31)       The Union carried out a petition of those workers in the proposed bargaining unit. As described in paragraph 19 above, 45.76% of the proposed bargaining unit signed the petition. The Panel has not received any statements from those workers in the proposed bargaining unit who had signed the petition stating that they wished to withdraw their support.

32)       On the basis of the evidence before it, the Panel has decided that Union membership of 10.17% when taken with the percentage of non-members signing the petition (38.14%) shows 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

33)       For the reasons given in paragraphs 24-32 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Ms Naeema Choudry, Panel Chair

Mr Martin Kirke

Mr Paul Noon

2 October 2024