Decision

Recognition Decision

Updated 14 September 2020

Case Number: TUR1/1144(2019)

14 September 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992 SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

UNISON

and

We Are With You (formerly known as Addaction)^{[footnote 1]}

1. Introduction

1) UNISON (the Union) submitted an application to the CAC dated 13 November 2019 that it should be recognised for collective bargaining purposes 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 Chair 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. Mr Clarke was replaced as Panel Chair on 5 August 2020 by Professor Gillian Morris. The Case Manager appointed to support the Panel was Nigel Cookson.

3) By a decision dated 28 January 2020 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. As no agreement was reached the Panel was required to reach a decision on the matter. In a decision dated 21 August 2020 the Panel determined that the appropriate bargaining unit was that proposed by the Union, namely “all We Are With You (formerly known as Addaction) staff engaged on the Wigan Council-commissioned drug and alcohol rehabilitation service for adults and young people contract”.

2. Issues

4) Paragraph 22 of Schedule A1 to the Act (the Schedule) provides that if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies. Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled. The three qualifying conditions are:

i. the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

ii. the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

iii. membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf. Paragraph 22(5) states that “membership evidence” is (a) evidence about the circumstances in which union members became members, or (b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

5) The Panel decided that in this case it would be appropriate to decide whether it was satisfied that a majority of the workers constituting the bargaining unit were members of the Union as a preliminary issue before giving the parties the opportunity to make submissions on the application of the qualifying conditions.

3. The membership check

6) To assist in deciding whether it was satisfied that a majority of the workers constituting the bargaining unit were members of the Union the Panel proposed a second independent check of the level of union membership within the bargaining unit ^{[footnote 2]}. 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 from the Case Manager to the parties dated 24 August 2020. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

7) The information from both the Union and the Employer was received by the CAC on 25 August 2020. The result of the check showed that there were 70 workers in the bargaining unit of whom 40 were members of the Union, a membership level of 57.14%. The Case Manager’s report on the membership check was sent to the Panel and the parties on 26 August 2020. The Employer was invited to comment on the report and to make submissions on the three qualifying conditions specified in paragraph 22(4) of the Schedule by close of business on 2 September 2020.

4. Summary of the Employer’s submissions on the qualifying conditions

8) In a letter to the Case Manager dated 2 September 2020 the Employer stated that it believed that a ballot was imperative in the interests of good industrial relations and set out its rationale for such a conclusion. The Employer stated that acting without a ballot would fuel division and negative behaviours amongst its staff, of whom 43% were not members of the Union. The Employer said that this significant proportion deserved the chance to have a say on whether or not they were represented by the Union.

9) The Employer contended that the behaviour of the Union’s members throughout the long-running and ongoing dispute (including industrial action) had at times caused significant tension and disruption, with both members and non-members reporting concerns about some pressuring behaviours. As examples, the Employer said that it knew of a member being called a ‘scab’ for not supporting the industrial action; others had removed themselves from a WhatsApp group which had been set up to support the industrial action because of the behaviours and opinions of some Union members. The Employer said that this had caused negative responses in many of the staff group who felt negatively towards the Union. The Employer said that the ongoing industrial action had exacerbated tensions between those on better terms and conditions - predominantly the Union’s members - and those on less generous terms. The Employer said that it had worked hard in the service to manage this challenging dynamic and to make sure everyone felt valued and able to carry on focusing on service users. The Employer said that it believed a ballot was essential to allow people to express their true views confidentially without intimidation, fear of reprisals or unwelcome behaviour from their colleagues. The Employer submitted that a majority decision reached through a ballot in which everyone had an equal say would reduce the divisiveness of the current situation.

10) The Employer submitted that the level of appetite for union recognition was unclear. The Employer said that the Union’s request for recognition was first made in November 2019 in the context of its failure to overturn the Employer’s legally valid decision which was announced in October 2018 ^{[footnote 3]}. The Employer said that prior to this there had been no mention of any desire for union recognition from any of the staff, many of whom had been employed in the Wigan and Leigh service since 2013. The Employer said that it was by no means certain, therefore, that there was a majority appetite for union recognition. The Employer said that alongside this, six Union members had settled individually with the Employer to end their involvement in the Union’s industrial dispute and others had informed management that they were also considering doing so. The Employer said that this raised significant doubts about whether they would want the Union to conduct collective bargaining on their behalf and they deserved the chance to express their view through a ballot.

5. Summary of the Union’s submissions on the qualifying conditions

11) In a letter dated 3 September 2020 the Case Manager copied the Employer’s submissions to the Union and invited the Union to comment on the points made by the Employer by noon on 9 September 2020.

12) In an email to the Case Manager dated 9 September 2020 the Union stated that the Employer had made several allegations and assertions and that some of the points it had made related to its view that recognition was undesirable in any event; others addressed the question of whether there should be a recognition ballot. The Union said that it would address the latter group of points more thoroughly as these related to the matter currently before the Panel. The Union said that, in summary, its view was that none of the qualifying conditions for the CAC to require a ballot had been met, and that it would be appropriate for the Union to be recognised without further delay.

13) The Union said that the Employer had accepted that the majority of staff were Union members. The Union denied that recognition would “fuel division” amongst staff as alleged by the Employer. The Union said that the inequity between staff working alongside each other was a consequence of the Employer’s business model, which involved bidding to take over public sector-operated services and paying their directly-recruited staff significantly less than transferred staff. The Union said that this division existed prior to recognition. The Union said that it represented workers who had been recruited by the Employer and staff who had been transferred into its employ from the public sector. The Union said that its concern was to represent the whole workforce and, as such, it was a unifying force.

14) The Union said that recognition would not fuel “negative behaviours” amongst staff as the Employer had alleged. The Union said that it did not accept the allegation that a Union member had called another member a ‘scab; no Union official or activist had witnessed any such incident, nor had the Union had any such concern brought to it. The Union noted that the Employer did not provide any date or detail about its allegation. The Union said that during 16 days of industrial action, no formal complaints had been raised about the conduct of members and that any informal requests from local managers had been adhered to, such as ensuring enough space for service users to access buildings. The Union said that the WhatsApp group referred to by the Employer had been set up to share information amongst members; membership of the group was not fixed and staff had chosen to join and leave the group at various times – overall the numbers had grown over time. The Union said that someone leaving a WhatsApp group hardly amounted to evidence of “many” staff feeling negatively towards the Union as alleged and was unconnected to the question of whether individuals would wish to be represented by the Union in collective bargaining.

15) The Union denied that a ballot was “essential to allow people to express their true views” as the Employer had contended. The Union said that the Employer had made a made a vague and unsubstantiated reference to “intimidation, fear of reprisals or unwelcome behaviour”. Again, the Union rejected the allegation of any such behaviour taking place.

16) The Union cited its membership figures as evidence that the majority of staff were supportive of collective bargaining. The Union said that there was no suggestion from the Employer that staff had joined the Union due to “fear of intimidation, reprisals or unwelcome behaviour” and that staff had made the individual choice to join the Union without any pressure. The Union said that staff joining the Union was an accurate expression of their “true views”. The Union said that recognising a Union on the basis of 50%+ membership could in no way be seen to have denied non-union members an “equal say” to union members. The Union said that each member of staff was free to choose whether to join a union or not and that giving an equal say was consistent with respecting the majority view.

17) The Union said that the level of appetite for union recognition was not “unclear” as the Employer had contended. In relation to the timing of the application for recognition, the Union stated that it was true that the Employer’s failure to pay staff a promised pay rise might have contributed to members’ perception of the need for their Union to be formally recognised. The Union said that this did not constitute evidence that recognition was not supported by staff. In relation to the acceptance by six Union members of individual offers to settle the ongoing dispute, the Union said that it had been campaigning for the Employer to act on its promise to ex-NHS staff to pay them the NHS cost- of- living pay rises. The Union said that the Employer had made offers to settle the dispute, but these had been rejected by the members collectively. The Union said that the Employer had attempted to circumvent union representation and present individual offers to staff of significant amounts of money – several thousand pounds. The Union said that it was aware of members opting to accept the offer when they had been due to leave the Employer in the near future, but otherwise members had overwhelmingly decided to reject the individual offers. The Union said that the Employer’s approach - in seeking to circumvent collective negotiations to achieve a resolution to the dispute – could itself be seen as a divisive tactic that was not good for industrial relations. The Union submitted that there was no indication that accepting an individual offer in these circumstances amounted to evidence that the member would be opposed to collective bargaining.

18) The Union said that membership levels had been strong throughout the industrial dispute and that there had been no resignations from the Union; members had left only due to leaving the Employer’s employ. The Union said that a petition had previously been shared with the CAC as part of the recognition process that showed staff support explicitly for union recognition. The Union said that the Employer had produced no comparably credible evidence to suggest that members did not want the Union to be recognised.

19) The Union denied that a ballot would promote good industrial relations; rather it would cause needless delay before the Union was finally recognised. The Union said that the recognition process had already taken longer than usual due to the coronavirus pandemic. The Union said that the Employer had not produced credible evidence to suggest that staff would vote against recognition in a ballot and submitted that conducting a ballot in these circumstances would be an unnecessary delay and would not help to promote good industrial relations. The Union said that a ballot based on a binary choice did not always resolve an issue and could entrench any division. The Union said that there was every indication in the Employer’s submissions throughout the process that it remained opposed to recognising the Union and it was likely to pursue an aggressive anti-union campaign were there to be a ballot which would only make industrial relations more difficult in the aftermath. The Union submitted that this was not a complex case. The Union said that the bargaining unit was small and clearly defined and there was a single union which had sustained majority membership within the bargaining unit for a number of years, including throughout the current protracted dispute. The Union said that Union membership and support for collective bargaining extended beyond the current dispute and into the wider bargaining unit and that none of the qualifying conditions for a ballot had been met. The Union said that it hoped now to proceed now to recognition and improved industrial relations with the Employer.

6. Considerations

20) As set out in paragraph 4 above, the Act requires the Panel to consider whether it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Union, it must then decide if any of the three conditions in paragraph 22(4) is fulfilled. If the Panel considers that any of them is fulfilled it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

21) The membership check conducted by the Case Manager established that 40 of the 70 workers in the bargaining unit are members of the Union, a membership density of 57.14% (see paragraph 7 above). As stated in paragraph 6 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 is satisfied, therefore, that a majority of the workers in the bargaining unit are members of the Union. The Panel understands the strong desire of the Employer that a ballot should be held and notes the Employer’s submission that the 43% of staff who are not members of the Union deserve the chance to have a say on whether or not they are represented by the Union. However paragraph 22(2) of the Schedule requires the CAC to issue a declaration that the Union is recognised where it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union unless any of the three qualifying conditions in paragraph 22(4) is fulfilled. The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision as to whether any of the qualifying conditions is fulfilled.

22) The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Panel has considered the arguments put forward by both parties and has come to the view that it is not satisfied that a ballot should be held in the interests of good industrial relations. The Panel is therefore satisfied that this condition does not apply.

23) The second condition is that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union to conduct collective bargaining on their behalf. The Panel has no such evidence before it. The Panel notes the Employer’s evidence that six Union members have settled individually with the Employer to end their involvement in the Union’s industrial dispute and that others had informed management that they are considering doing so. However the Panel did not receive any documentary evidence from these or any other Union members that they do not want the Union to conduct collective bargaining on their behalf and the Panel does not consider that any such conclusion can be inferred from the evidence before it. The Panel is satisfied that this condition does not apply.

24) The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union to conduct collective bargaining on their behalf. The Panel does not consider that such membership evidence has been produced. The Panel is therefore satisfied that this condition does not apply.

25) The Panel notes the Employer’s evidence that both Union and non-Union members had reported concerns about some pressurising behaviours by Union members. These allegations were disputed by the Union. No documentary evidence was provided by the Employer to substantiate these reported concerns nor was the Panel presented with any evidence that managers had dealt with or noted any such concerns at the time they were said to have been reported to the Employer.

7. Declaration of recognition

26) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that a majority of the workers constituting the bargaining unit are members of the Union. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule is met. Pursuant to paragraph 22(2) of the Schedule, the CAC must issue a declaration that the Union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising “all We Are With You (formerly known as Addaction) staff engaged on the Wigan Council-commissioned drug and alcohol rehabilitation service for adults and young people contract”.

Panel

Professor Gillian Morris, Panel Chair

Mr Nicholas Caton

Ms Fiona Wilson

14 September 2020

1. On 26 February 2020 the Employer informed the CAC that it was changing its name to “We Are With You” and the CAC records were amended accordingly. ↩

2. The report of an initial check conducted by the Case Manager to assist the Panel to determine whether the application should be accepted was circulated to the Panel and the parties on 31 December 2019. ↩

3. The Employer did not explain the nature of this decision. ↩