Decision

Acceptance Decision

Updated 14 September 2020

Case Number: TUR1/1144(2019)

28 January 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:

UNISON

and

Addaction

1. Introduction

1) UNISON (the Union) submitted an application to the CAC on 13 November 2019 that it should be recognised for collective bargaining by Addaction (the Employer) for a bargaining unit comprising “all Addaction staff engaged on the Wigan Council-commissioned drug and alcohol rehabilitation service for adults and young people contract”. The location of the proposed bargaining unit was given as Wigan and Leigh with the Union adding “Staff work from two offices in the Borough: Coops Building in Wigan and Kennedy House in Leigh”. The CAC gave both parties notice of receipt of the application on 13 November 2019. The Employer submitted a response to the CAC dated 19 November 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 Mr Barry Clarke, Panel Chair, and, as Members, Mr Nicholas Caton and Ms Fiona Wilson. The Case Manager appointed to support the Panel was Nigel Cookson.

2. Issues

3) 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. The Union’s application

4) In its application the Union said that it had written to the Employer with a formal request for recognition on 24 October 2019 to which no response was received. A copy of the Union’s letter was enclosed with the application. Prior to the formal request for recognition the Union had written to the Employer on 27 August 2019 seeking voluntary recognition which was rejected by the Employer.

5) According to the Union, there was a total of 1,444 workers employed by the Employer with 64 of these falling within the proposed bargaining unit. The Union stated that it had 48 members within the proposed bargaining unit. 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 said that it currently had over half of the bargaining unit in membership and the Union was willing to provide a list of its members for verification by the CAC on a confidential basis. A fundamental expectation of trade union membership is that workers were covered by collective bargaining. The Union had also circulated a petition amongst staff calling for the Union to be recognised by the Employer. The Union would be willing to provide the petition on a confidential basis for verification by the CAC. The Union explained that it had taken the figure for the total number of workers from the Employer’s Annual Report for 2018/2019 and that its figure for the number of workers in the bargaining unit was its best estimate based on information from members. The Union stated that the number fluctuated and the Employer may well have a different figure.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that the staff providing the drug and alcohol rehabilitation service were a unionised workforce. The bargaining unit was compatible with effective management. All the staff worked wholly in Wigan and Leigh in a service commissioned by Wigan Borough Council and their places of work were within the Borough of Wigan. The Union confirmed that the bargaining unit had not been agreed with the Employer.

7) Asked whether, following receipt of the request for recognition, the Employer proposed that Acas be requested to assist the Union answered “no”.

8) Finally, the Union said there had not been a previous application in respect of this or a similar bargaining unit and there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

4. The Employer’s response to the Union’s application

9) The Employer stated that it had received the Union’s formal request for recognition on 13 November 2019 by email from the CAC and that no request in accordance with the Schedule had been received directly from the Union. The Employer had received a request for voluntary recognition on 24 September 2019 as the Union’s letter was sent to the wrong address. The Employer formally responded to this letter on 14 October 2019. When asked what its response was, the Employer repeated that no formal request had been received and it included an extract from the letter it had sent the Union on 14 October 2019 in response to the informal request and in which it had informed the Union that it believed it was impractical to agree voluntary recognition.

10) When asked to give the date it received a copy of the application form directly from the Union, the Employer referred to its previous comment that no formal request had been received directly from the Union.

11) The Employer stated that it employed 1531 workers with 71 employees and 2 workers in the Union’s proposed bargaining unit. No reason was given as to why the Employer’s figure disagreed with that given by the Union in its application. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the proposed bargaining unit, the Employer stated that it could neither agree nor disagree as not all union members paid their subscription via its payroll. The Union had previously stated that it would not provide the Employer with a list of names of its members.

12) The Employer stated that it did not agree the provisional bargaining unit before the application was made and that this remained the case.

13) When asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, the Employer stated that it could not be sure without knowing the names of the Union’s members. The Union had confirmed to the Employer in August 2019 that it had balloted 31 members for industrial action.

14) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the agreed bargaining unit. When asked whether, following receipt of the Union’s request, the Employer had proposed that Acas be requested to assist, the Employer again referred to its previous answer and that it had not received a copy of the formal request for recognition but added that since the application had been lodged an officer from Acas had made contact.

15) Finally, 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, the Employer stated that no previous application has been made.

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

16) On 20 November 2019 the Employer’s response was cross copied to the Union and it was asked for its comments on the response, both in general and specifically on the Employer’s assertion that it had not received the formal request for recognition nor had it received a copy of the completed application form directly from the Union. The Union was informed that if it was in possession of any evidence that it had served the formal request for recognition and a copy of the application form and supporting documentation on the Employer, it should be included along with its comments.

17) In an email dated 28 November 2019 the Union stated that a copy of the application for recognition had been sent by the Union and received by the Employer on 22 November 2019. Asked whether it had any evidence of service of the initial formal request for recognition the Union stated that according to the Employer it had been initially sent to wrong address adding that it was hand delivered at an Acas meeting on 21 September 2019. The Union included an extract from the Employer’s response to the request dated 14 October 2019.

18) On 29 November 2019 the Panel Chair directed that the Case Manager write to the Union informing it that if it contended that the original request sent on 27 August 2019 was a valid Schedule A1 request sent to the right address, then it should provide a copy and accompanying evidence of service. If, however, the Union contended that the version hand-delivered to the Employer on 21 September was a valid Schedule A1 request, it should provide a copy and accompanying evidence of service (e.g. verification of who handed it to whom). In any event, the Union was asked to provide evidence of service of the letter dated 24 October 2019 as the email sent by the Employer on 14 October 2019 could not be evidence that a letter dated 24 October 2019 was received by the Employer.

19) In an email dated 4 December 2019 the Union stated that its Schedule A1 request was the letter dated 24 October 2019 that was sent by both post and by email (providing a copy). The Union believed that the content of the letter met the requirements of paragraph 8 of the Schedule. The letter was not sent by recorded delivery but the Union did request a ‘read receipt’ to the email and had obtained confirmation that the delivery was completed (again, providing a copy). This read receipt took the form of a Microsoft Exchange delivery message which repeated an accurate email address for the Employer and stated: “Delivery to these recipients or groups is complete, but no delivery notification was sent by the destination server”.

20) On 5 December 2019 the Panel Chair directed that the Case Manager write to both parties setting out the course of events in respect of the request for recognition concluding that his provisional view was that the Union had complied with paragraph 5 of the Schedule. The parties were informed that, unless any objection was received from the Employer, supported by reasons as to why the Panel Chair’s conclusion was wrong, the CAC would proceed on that assumption and instigate a membership check.

21) On 9 December 2019 the Employer emailed confirming that it accepted receipt of the request for voluntary recognition as per its acknowledgement email and also confirming receipt of the statutory request.

6. The membership and support check

22) 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. 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 a petition in support of recognition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party and that agreement was confirmed in a letter dated 19 December 2019 from the Case Manager to both parties. The information requested from the Union was received by the CAC on 19 December 2019 and from the Employer on 27 December 2019.

23) The list supplied by the Employer contained the names of 75 workers and the list of members supplied by the Union contained 50 names. One of the names on the Union’s list with the same date of birth was listed twice and it was assumed both entries related to the same individual so for the purposes of the check the number of members was deemed to be 49.

24) The Union also provided a four page petition bearing the names and signatures of 37 individuals which were undated. Each petition sheet was headed:

UNISON North West

Addaction in Wigan and Leigh

We, the undersigned, support recognition of UNISON for collective bargaining on pay, hours and holidays and other terms and conditions of employment.

There then followed a table with columns headed Name, Signature, Job Title, Workplace and Mobile No.

At the foot of each page it stated:

This data is being collected and held by UNISON for the purposes of promoting union recognition and membership. It may be used to support an application to the CAC (Central Arbitration Committee) for statutory recognition. Signatory names and data will not be shared with your employer. Contact detail information will only be used to update our membership records and to contact you about this campaign.

25) According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 47, a membership level of 62.67%. The check of the petition showed that it had been signed by 31 workers in the proposed bargaining unit, a figure which represents 41.33% of the proposed bargaining unit. All of the 31 signatories were members of the Union. A report of the result of the membership check was circulated to the Panel and the parties on 31 December 2019 and the parties’ comments invited. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

7. Parties’ comments on the membership check

26) In an email dated 10 January 2020 the Union submitted that, in relation to the tests set out in the Schedule:

(a) the membership check confirmed that the Union had a membership level of 62.67% which far exceeded the required figure of 10% of the bargaining unit.

(b) the check on the petition showed that 41.33% of workers had signed it to date. The signatures were mainly obtained at member meetings held outside of working hours, and the Union believed that obtaining over 40% of staff signatures through this method showed a strong level of support for recognition and indicated that a majority of all staff were likely to be in favour. Since the information was submitted the Union had been advised by local reps that more signatures had been obtained that increase the proportion of staff explicitly supporting union recognition above 50%. The Union would provide this additional information to the CAC on the basis that the individual information was not shared with the Employer.

27) In an email dated 13 January 2020 the Employer stated that it could not specifically comment on the petition numbers or members’ details provided by the Union as it was not privy to the details. On the numbers shared it appeared that there was no evidence that a majority of employees at the service in Wigan & Leigh would favour a statutory recognition agreement between the Employer and the Union. In the event that the application continued, the Employer confirmed that it had not agreed the Wigan & Leigh service was a discreet bargaining unit as this would unreasonably fragment the whole workforce and would not be compatible with effective management.

8. Considerations

28) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

29) 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(2) of the Schedule in that, before the end of the first period of 10 working-days following the Employer’s receipt of the request for recognition, the Employer failed to respond to the request. The Panel is satisfied from correspondence with both parties that the Employer did receive the Union’s formal request for recognition and that it did likewise receive a copy of the application direct from the Union, belatedly or not. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

9. Paragraph 36(1)(a)

30) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit. In this case the check of membership undertaken by the Case Manager established that the Union’s level of membership stood at 62.67% of the workers in the proposed bargaining unit. No evidence was received from the Employer to challenge this
figure. It is clear therefore to the Panel that members of the Union constitute at least 10% of the workers in the bargaining unit.

10. Paragraph 36(1)(b)

31) The test in paragraph 36(1)(b) is whether 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. As evidence that this test was satisfied the Union relied on its membership and a petition. As stated above, the level of Union membership in the proposed bargaining unit stood at 62.67% and, furthermore, 41.33% (that is, about two-thirds of these members) had signed the Union’s petition in favour of it being recognised by the Employer.

32) The Employer, given the opportunity of challenging the Union’s assertion that a majority of the workers in the bargaining unit would favour recognition of the Union, argued that the number of workers signing the petition did not indicate that the Union enjoyed the support of the majority of the workers in the proposed bargaining unit given that the number was numerically lower than 50%.

33) However, the Panel would make the following points. First, this test is of hypothetical rather than actual support. The question is whether or not it is likely than the Union would be supported by the majority of the workers in the proposed bargaining unit. It is not an actual measure of support but one that is empirical by nature. The test is in place to ensure only those cases with a reasonable prospect of success are allowed forward for further consideration. Second, the Panel is of the view that a major reason why workers join a trade union is to enjoy the advantages of collective bargaining. The Panel therefore considers that the level of union membership provides a legitimate indicator as to the degree of likely support for recognition of the Union for collective bargaining.

34) For the reasons given, the Panel is satisfied that, on balance, a majority of the workers in the bargaining unit would be likely to support recognition of the Union and the test set out in paragraph 36(1)(b) is therefore met.

35) The question as to the appropriateness of the Union’s proposed bargaining unit, raised by the Employer in its comments on the membership and support check, is not one that the Panel is required to address at the acceptance stage.

11. Decision

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

Panel

Mr Barry Clarke, Panel Chair

Mr Nicholas Caton

Ms Fiona Wilson

28 January 2020