Decision

Bargaining Unit Decision

Updated 14 January 2020

Case Number: TUR1/1092(2019)

23 October 2019

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DETERMINATION OF THE BARGAINING UNIT

The Parties:

UNISON

and

Cornerstone Community Care

1. Introduction

1) UNISON (the Union) submitted an application to the CAC dated 5 March 2019 that it should be recognised for collective bargaining by Cornerstone Community Care (the Employer) for a bargaining unit comprising “All employees with the exception of Relief Staff ^{[footnote 1]}, Seasonal Staff, Foster Carers, Shared Live Carers, Fixed Term Contract Staff, Senior Leadership Team (CEO, Leader of Quality, Leader of Cornerstone Foundation, Leader of Strategy Implementation, Leader of Cornerstone Central). For clarity the request for recognition does not include the Cornerstone Foundation”. The location of the bargaining unit was stated as “Various locations across Scotland”. The application was received by the CAC on 5 March 2019 and the CAC gave both parties notice of receipt of the application on 6 March 2019. The Employer submitted a response to the CAC dated 12 March 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 Chairman of the CAC established a Panel to deal with the case. The Panel consisted of Professor Kenny Miller as Chair of the Panel and, as Members Mr Alistair Paton and Mr Gerry Veart. The Case Manager appointed to support the Panel was Miss Sharmin Khan but for the purposes of this decision was Miss Maverlie Tavares.

3) By a decision dated 18 July 2019 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 parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit. A hearing was held on 9 October 2019 and the names of those who attended the hearing are appended to this decision. To accommodate the hearing the Panel extended the period within which it was required to determine the bargaining unit until 23 October 2019.

4) The Panel is required, by paragraph 19(2) of the Schedule to the Act, to decide whether the proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. Paragraph 19B(1) and (2) state that, in making those decisions, the Panel must take into account the need for the unit to be compatible with effective management and the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need. The matters listed in paragraph 19B(3) are: the views of the Employer and the Union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the Employer whom the CAC considers relevant; and the location of workers. Paragraph 19B(4) states that in taking an Employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the Employer has about any other bargaining unit that it considers would be appropriate.

2. Request to submit late evidence

5) In the letter to the parties dated 22 August 2019, informing them of the Panel’s decision to hold a hearing, they were asked to send their written submissions to the Case Manager by noon on 30 September 2019. The letter also stated that “on no account should a party cross-copy new evidence to another party once submissions have been lodged; rather, the material should be brought to the hearing and the Panel will decide whether it should be admitted”. At the beginning of the hearing, the Union sought to submit additional evidence. This was a CAC decision, two Employer Strategic Plans, a diagram which it stated provided information on how the Relief Workers were different to those in its proposed bargaining unit and there was a witness. The witness was a former employee who had been a Relief Worker, then became a permanent member of staff as a Team Leader but had parted from the Employer in December 2018. The Employer was invited to comment on this proposal. It objected to the late notice for the appearance of the witness and the diagram. The Panel adjourned the hearing to consider the Union’s request. The Panel decided to allow the Union to submit its additional evidence except for the diagram and evidence from the witness.

3. Preliminary issue clarified at the beginning of the hearing

6) Also at the beginning of the hearing the Panel noted that there was a difference between the parties as to who was covered by the previous Voluntary Recognition Agreement. The Panel sought clarification on this.

4. Summary from the Union on who was covered in the Voluntary Recognition Agreement

7) The Union explained that the agreement said it was for “all employees” not workers and argued that the Employer had said on occasions that it could not negotiate for Relief Workers. The Union continued that it had negotiated for the Relief Workers inadvertently but any agreements reached between it and the Employer applied solely to the employees. The Union was of the opinion that relief workers should not be used in social care and that they should have permanent contracts. They went on to say that it was an urban myth that people wanted to be employed as a relief worker. Many took on this role in order to gain experience in social care and then hopefully move on to a permanent contract. The Union admitted that it did have union members who were in this category but if any ballot papers had been sent to them on pay offers, this was in error as it would not apply to them.

5. Summary from the Employer on who was covered the Voluntary Recognition Agreement

8) The Employer submitted that the term “employee” in the Voluntary Recognition Agreement covered all staff and this was never disputed by the Union. It continued that since 2008, it had stopped using the term Relief Workers. As far as it was concerned all of them were part of one team and they were referred to by their job role, not their contract status. It added that Relief Workers could apply to be on a permanent contract if they worked regular hours. The Employer said when negotiations took place on the Joint Negotiation and Consultation Committee (JNCC) it had clarified with the Union that these negotiations applied to the whole workforce which included Relief Workers and the Fundraising Team (Cornerstone Foundation). It disputed that it had said to the Union it could not negotiate on behalf of the Relief Workers and said the Union, when asked, had said it consulted with Relief Workers. The only employees excluded were the Senior Management Team. The Employer said at no point did the Union ask them to exclude these other groups. It admitted that it may have been naïve to not have understood legally, there was a difference between the term “employees” and “workers”. The Employer said it had never taken legal advice on this.

6. Summary of the submissions made by the Union

9) The Union began by explaining to the Panel that it should find its proposed bargaining unit was appropriate and that it was consistent with effective management. It gave further background information on the Voluntary Recognition Agreement it previously had with the Employer. This was established on 1 December 1994 and collective bargaining took place in respect of pay and conditions for the workers within the agreed bargaining unit which consisted of “all Cornerstone employees”. To allow it to exchange matters outside of this remit with its employees, the Employer created an Employee Forum for information and consultation purposes. This was formed in 2014.

10) There was a dispute between the Union and the Employer over pay for the employees. The Union explained that it was for this reason that the Employer ended the Voluntary Recognition Agreement, by a letter dated 28 November 2018, with effect from this date. Attempts were made to resolve this matter but to no success. It was at this point that the Union made a formal written request for recognition to the Employer, by a letter dated 25 January 2019. The Employer rejected this request, which led the Union to submit an application to the CAC. After its application was accepted by the CAC, the Union said it met with the Employer on 9 August 2019, with the intention of reaching an agreement on the appropriate bargaining unit. The parties were unable to come to an agreement. The Union commented that for 24 years the parties had collectively bargained for the employees and it had excluded the categories of workers as stated in its description of the proposed bargaining unit.

11) The Union said that it understood that the Employer mainly disputed the following categories: Relief Worker and Seasonal staff. It argued that these workers were not employed by the Employer and the Employer wanted to include them in the appropriate bargaining unit solely to dilute the bargaining unit. Its aim was to stop the Union from obtaining statutory recognition. It reiterated that these category of workers were not included in the Voluntary Recognition Agreement. The Union submitted that they were casual workers and the Employer did not seek to include them when the Voluntary Recognition Agreement was in force.

12) In the Union’s proposed bargaining unit there were 1600 employees. The Union explained that this bargaining unit included all of the Employer’s core employees in relation to providing care to individuals. It did not include Senior Managers but its composition was for the majority of the workforce.

13) As its proposed bargaining unit was not small, the Union believed that it would not lead to fragmentation. It argued that there would be no other bargaining units which the Employer would need to deal with separately. The Union was of the opinion that their bargaining unit had a clear and identifiable boundary and it was evident which workers were within it, which was consistent with effective management ^{[footnote 2]}.

14) In respect of the workers in the bargaining unit, the Union explained that they had the same characteristics as they were employees who were employed on common terms and conditions, to enable them to provide the care services for the Employer. The Union then explained that the other employees belonged to the Senior Management Team. It said the Employer had agreed with them that they should not be included in the bargaining unit

15) The Union argued that the employees of the Cornerstone Foundation should not be in the appropriate bargaining unit. The Union rationalised that the Cornerstone Foundation ^{[footnote 3]} was separate to Cornerstone Community Care and was engaged with fundraising activities. It said this was evidenced in the Employer’s Strategic Plan for 2017-2020 where they were put under a separate umbrella. This was significantly different to the care services and therefore excluding it made sense as it was not consistent with effective management.

16) The Union then described the characteristics of the workers in their excluded categories. It said they were not employees and made particular reference to the Relief Workers. It said there was no mutuality of obligations between them and Employer. As casual workers, they did not have the same employment rights as opposed to those included in its proposed bargaining unit. Also their contractual terms differed to the employees in the bargaining unit.

17) The Union went on to highlight the differences between the Relief Workers and the permanent employees. It said the Relief Worker did not have set hours and were not obligated to do shifts whereas permanent employees had to. It referred to the Relief Worker contract it had provided as evidence. The Union said within this it showed that the Employer did not have a probation period for these workers and they could be terminated immediately. Also their disciplinary procedures were different. The Relief Workers holiday entitlement was different to permanent employees. It said permanent employees were entitled to 30 days pro rata whereas Relief Workers were entitled to 28 days pro rata, even though in the Employer’s submission it purports they were both same. In the HR policies provided by the Employer by category of workers, the Union pointed out that there was a difference in the sick pay received. Relief Workers were only entitled to statutory sick pay whereas the permanent employees received more. The Union continued that the Relief Worker did not receive the same pay as the permanent employees. It said if they worked for the Employer for 10 years they would remain on the first point of the pay scale whereas permanent employees would progress up the scale. It also added that they were not team members; they did not participate in team meetings; they were not given roles where they were in control of a client’s budget; they could work for other organisations and have part-time jobs elsewhere.

18) The Union then referred to the following CAC decision on the determination of the bargaining unit. This was case: TUR1/644(2008) – Unite the Union and National Car Parks Limited. It referred to a segment in paragraph 22 which reads:

“The Panel notes that the parking staff has different rates of pay and overtime arrangements to the drivers. Within the bussing function, the Panel considers the absence of mutuality of obligation in relation to the ‘as required’ drivers to be a key distinction between them and the permanent drivers. …. . although the permanent and ‘as required’ drivers have the same basic hourly rate of pay, there are differences in their holiday and sick pay arrangements and fundamental differences in hours of work”.

The Union said the Panel on this occasion had made a distinction between grouping workers who had few interests between them and it felt this was the same between permanent employees and Relief Workers. It said the Relief Workers could use the Employee Forum to raise any concerns.

19) The Union then referred to the Strategic Plan 2017-2020 Local Cornerstone FAQs. It pointed out that in this document the Employer referred to the Relief Worker as a “pool of relief staff”. It said even the Employer was moving away from relying on them for over time. The Union concluded that any collective bargaining arrangements agreed with the Employer in relation to the employees in their proposed bargaining unit would have no effect in changing the Relief Workers terms and conditions.

20) Clarification was given by the Union on the Fixed Term Contract Staff. The Employer did in fact employ permanent employees who were seconded into temporary posts and they had kept their terms and conditions, as well as those who were on a temporary contact. The Union said for this category of worker, it would only include those in its proposed bargaining unit the Fixed Term Contract Staff who were on substantive contracts.

21) The Union reiterated that the Employer’s proposed bargaining unit was solely to end any prospects of the Union receiving statutory recognition. It did not contend that it was for effective management.

22) As its conclusion the Union said that their proposed bargaining unit had been suitable for both parties in the previous 24 years and was considered by all to be consistent with effective management. It submitted that its bargaining unit would help to encourage and promote efficient practices and arrangements in the workplace. It asked the Panel to confirm that its proposed bargaining unit was the appropriate one.

7. Summary of the submissions made by the Employer

23) The Employer began by explaining its background. It was established in 1980 as a charitable company for the purpose of providing services, particularly housing and care for adults with a learning disability. Since then it had diversified and now worked with over 3,000 children, adults and families. It said that it was one of Scotland’s largest providers for social care services and that as of 19 August 2019, its workforce consisted of 2,086 workers operating out of a number of branches and locations across Scotland. The Employer said that it was one of the first employers in their sector to pay its staff the Scottish Living Wage. It said it did this before it became government policy.

24) Regarding the Voluntary Recognition Agreement it said it had been signed with the Union in 1994. This was discontinued 24 years later in November 2018. This was due to the relationship breaking down following a change in the union officials who they had been negotiating with. The Employer felt they were uncooperative and unprofessional and despite their best efforts these issues could not be resolved. To add to this, the agreement was not functioning appropriately with their staff nor their clients and their families who the Employer supported.

25) The Employer referred to the Union’s proposed bargaining unit and continued to argue that it excluded various roles and contract types which had previously been included in the Voluntary Recognition Agreement. It quoted in this agreement a definition of terms which stated “Staff refers to ALL employees of the organisation”. No discussion was had to clarify if this meant just workers or employees. It is the Employer’s understanding from custom and practice, that the term covered all of their workers. The Employer continued that when the Union balloted their members on any annual pay claim, the ballot papers were sent to all staff including the Fixed Term Contract Staff and Relief Workers. The Employer also confirmed that it does not employ Seasonal Staff. As an aside, the Employer also explained that when an internal survey was conducted, over 300 surveys were returned. 91% of those who responded, strongly supported all workers to be included in the bargaining unit if the Union was going to be recognised by it again.

26) During discussions in August 2019, the Employer proposed to the Union that the appropriate bargaining unit should be as it was in the Voluntary Recognition Agreement. The Union rejected this. The Employer submitted that the Union’s proposed bargaining unit should not be accepted as being the appropriate one with the Panel. This was because it segregated workers on different contracts despite them fulfilling the same roles. It gave the example that Team Members, Support Assistants and Support Workers were included in the Union’s bargaining unit but it had excluded Team Members, Support Assistants and Support Workers on a Fixed Term Contract and Relief Workers. The Employer argued that the latter (Fixed Term Contract Staff and Relief Workers) carried out the same tasks as their co-workers, whether they were full-time or part-time, if they were in the same role. It said contract types were immaterial when determining the appropriate bargaining unit.

27) The Employer then explained that they were introducing a new concept in “Local Cornerstone”. This consisted of a network of self-managed teams known as Local Care and Support Teams (LCAST) and in their opinion they were all better paid and upskilled. By doing this it enabled all of them to be professionals within social care and this provided their clients with a more personalised service. These teams were kept small and were located across Scotland. The Employer said that the majority of the Relief Workers worked in Operations (primarily front line service delivery) for it and through LCAST their clients could not differentiate between the permanent employees and the Relief Workers.

28) The Employer has 433 Relief Workers and said it did not use the term casual workers and though this term was used in the contract provided by the Union for Relief Workers, this contract had in fact never been implemented nor was it agreed by them and the Union. It said these workers were treated the same as the others and received awards just as their permanent colleagues did. The Employer continued that Relief Workers usually worked 12 hours a week and were not paid any differently to their colleagues. On average they remained with them for four years and two months. It did however accept that there was no mutuality of obligation with them. The Employer said that the Relief Workers did have the same or similar terms and conditions to the permanent employees. It gave as examples that their holiday entitlement was the same, they had a probation period just as the permanent employees and disciplinary procedures would be applied, even though legally this was not required, but this was custom and practice. The Employer admitted that even though the Relief Workers were considered as Team Members, they do not have to attend team meetings unlike permanent employees. It rebutted the Union’s allegation that the Relief Workers did not have financial responsibilities for their Service Users budgets. The Employer said it was based on the role the Relief Worker was doing. It said the Relief Worker was not employed as a Support Worker on one day then as a Team Member on the next day. In respect of pay it did acknowledge that no matter the length of service the Relief Worker had, they would remain on the first point on the pay scale unlike the permanent employees. To this it added that they would be given the same pay awards as the permanent employees.

29) To further quantify why it believed the Relief Workers should be in the bargaining unit, the Employer referred to two CAC determination of the bargaining unit decisions, the first being: TUR1/570(2007) – CWU & Cable & Wireless. It asked the Panel to look at its approach in this decision and referred to paragraph 9, which reads:

“The Union stated the workers in the proposed bargaining unit shared a commonality and were distinct from other groups of workers as Field Engineers or in support functions for the Field Engineers.”

30) The second CAC decision was: TUR1/482(2005) – CWU & MCI and the Employer referred the Panel to paragraph 20 within this decision, where it considered the importance of commonality of terms. It said it agreed with the principle of commonality and argued that the Union’s proposed bargaining unit did not reflect the bargaining unit from the Voluntary Recognition Agreement as it claimed. The Employer said that Relief Workers had the same terms and conditions as their co-workers in relation to pay, hours and holidays. The paragraph in the aforementioned decision reads:

“We think it is not appropriate in this case, where the Company has invested effort in producing harmonised terms and conditions and a ‘team culture’, to include some workers doing a particular type of job within collective bargaining arrangements whilst leaving other workers in the same category outside it. The evidence also supported the proposition that there were workers with similar functions (even if without the same job title) both inside and outside the Union’s proposed bargaining unit…. For the sake of completeness we should add that we have reached this view not because we think the Union’s proposal is for a ‘small, fragmented bargaining unit’ (para. 19B(3)(c)) but rather because its proposal risks undermining the commonality of approach to persons with the same job title or function which the Company has established within UK Operations and Technology and so is incompatible with effective management of that larger group.”

31) The Employer attested that it used Relief Workers as it needed to remain agile and this afforded them with this flexibility. It said that being a Relief Worker was a choice and you would find that they moved to become permanent employees. This transition also applied in reverse. To support this the Employer said they had a Relief Worker who had been with them for 25 years and they had been recognised along with the permanent colleagues for the same length of service. The Employer added that the terms and conditions were the same across the different category of workers and that the benefits across the different contracts was mostly the same.

32) The Employer moved on to explain the role of the Cornerstone Foundation. Its contention was that these workers should not be excluded from the bargaining unit as they were employed by the same legal entity (Cornerstone Community Care) and it isolated the team. These workers were the only central support functions team to be excluded by the Union. It said they were rebranded to this name for marketing purposes. The Employer continued that these workers were employed on full and part time contracts and qualified for the same pay and other employment benefits as all of the other employees who worked in non-operational roles. There should be 12 individuals in this team but at present there were nine workers employed there. This in the Employer’s opinion led to fragmentation and it concluded that the Union’s bargaining unit created small units of workers outside of the bargaining unit. It would also predominately exclude female workers which the Employer considered to be divisive and discriminatory.

33) It continued that the workers in the Cornerstone Foundation were also previously covered by the Voluntary Recognition Agreement. In the Union’s original letter dated 25 January 2019, to the Employer, where it sought voluntary recognition, the Union did not exclude the Cornerstone Foundation. The Employer said the Union only excluded these workers when it submitted its application to the CAC. This it contends makes the Union’s proposed bargaining unit different to the agreed bargaining unit for the Voluntary Recognition Agreement. It also led it to be ambiguous as to what the definition of the Union’s proposed bargaining unit was.

34) The Employer then moved onto the Fixed Term Contract Staff. It was of the opinion that this category of worker should be included in the bargaining unit as they were employees for the length of time they were in contract. They were also included in the Voluntary Recognition Agreement and in an email to the Employer received on 12 August 2019, the Union acknowledged that these workers fell within its definition of the bargaining unit. The Employer clarified that when providing the figures for the admissibility tests at the acceptance stage in the statutory process, it had excluded 31 of these workers as they were not on substantive contracts. There are 67 Fixed Term Contract workers in total but said there would always be some who were not on substantive contracts due to the nature of the work.

35) To further explain its rationale the Employer referred the Panel to another CAC determined bargaining unit decision. This was: TUR1/840(2013) – GMB & Honeywell Turbo Technologies. It said the Employer in this decision argued that by the Union excluding these workers in its proposed bargaining unit, it would lead to fragmentation and be incompatible with effective management. This was because these workers were employed on “identical or largely similar employment terms as those included in its bargaining unit”. The Employer in this case had also argued that if these workers were excluded it would not encourage fair and efficient working practices and arrangements in the workplace. It also said this conflicted with the legislation protecting this category of worker. In this decision the Panel agreed with this and the Employer highlighted paragraphs 32 and 35 which are shown below:

“The Panel can see no reason to exclude fixed term workers who work alongside permanent colleagues and are on the same terms and conditions including a redundancy package and, as stipulated by the Employer, are transferable across the two sites. The Panel is therefore of the view that the bargaining unit proposed by the Union is not one that is compatible with effective management”. (Paragraph 32)

“The Panel finds the Employer’s arguments more persuasive and accepts the point that if the fixed term workers are doing the same type of work it would be incompatible to have this group of workers working alongside employees on the same terms and conditions, but outside the bargaining unit”. (Paragraph 35)

36) The Employer continued its argument by explaining that the Union’s proposed bargaining split workers in the same team because they were on different contract types. It then added that it led to workers who provided the same support and care to be both inside and outside of the bargaining unit. In relation to location, it had also excluded workers based on this. The Employer submitted that the same or very similar workers’ terms (categorised by pay, hours and holidays) applied to them in operational and business support functions. This was across all branches and contract types.

37) The Employer then submitted that it was their belief that the Union was only concerned with its union membership numbers. It thought the Union had specifically chosen which workers to include in its bargaining unit to meets the CAC’s statutory requirements to attain recognition. It argued that this should not be considered when determining the appropriate bargaining unit.

38) It was highlighted by the Employer that the Union’s proposed bargaining unit only included employees whereas the CAC’s legislation referred to “workers”. The Employer explained that the 1992 Act defined a worker as:

“an individual who works or normally works or seeks to work either: Under a contract of employment or Under any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client (Section 296(1) of the 1992 Act)”.

39) The Employer further referred to the CAC acceptance decision for: TUR1/985(2016) – IWGB and RooFoods Limited t/a Deliveroo. It argued that in this instance the CAC had found that the Deliveroo riders were not “workers” within the terms of the 1992 Act. It continued that the IWGB challenged this decision but it was dismissed by the High Court. The Employer said it was referring to this decision as it was clear from the High Court’s judgement that the 1992 Act applied to a wider scope of individuals and that it covered both workers and employees.

40) The Employer submitted its proposed bargaining unit as: “All workers engaged by Cornerstone Community Care in all job roles, including front line (operations) at all branch locations and in all business support functions, whether they are engaged as employees (full-time and part-time), on fixed term contracts or as “relief workers”. The bargaining unit should only exclude the Senior Leadership Team and foster carers and shared lives carers, who are self-employed”. It said its reason for this was that it was compatible with effective management and avoided small fragmented units. It said it employed a geographically dispersed workforce, which responded to the needs of its clients 24 hours a day for every day of the year. It continued that it was the same as the Voluntary Recognition Agreement which included all workers and that the bargaining unit should include all staff, irrespective of their contract type. To add to this it reflected the synergy between all of the ten branches and the Employer’s culture for “One Cornerstone” and the Scottish Government’s Fair Work Agenda. It also supported flexible working, contract types and the ability to overlap tasks, which enabled the workers to support their clients and their families irrespective of whether they were frontline or business support workers.

41) The Employer agreed with the Union that Foster Carers, Shared Lives Carers and Agency/Seasonal Workers should be excluded from the bargaining unit. This was because Foster Carers and Shared Lives Carers were self-employed and were not in the Voluntary Recognition Agreement. It said Agency Workers had a different employer and it did not employ Seasonal Workers.

42) To conclude the Employer brought to the Panel’s attention the matters listed in Paragraph 19B(3) of the Schedule and said that it should take into account the views of the Employer when reaching its decision. It continued that it must test the appropriateness of the Union’s bargaining unit. The Employer explained that the object for the bargaining unit was to encourage and promote fair and efficient practices and arrangements in the workplace. It said by having regard to this object was consistent with applying other provisions of Schedule A1.

43) The Employer explained that the appropriate bargaining unit should be compatible with effective management. It argued that the Union’s bargaining unit was not as there was no likeness to how it operated under the Voluntary Recognition Agreement. The Employer contended that it segregated workers who were on different contract types, despite them doing the same job roles. It reiterated that Relief Workers were team members and they and the Fixed Term Contract Staff were identical. The Employer continued that what the Union was proposing would exclude workers based at the same location and these individuals had identical or very similar HR practices such as pay, hours and holidays. The Employer said these applied to all of the workers in their operational and business support functions across all of their branches and the differing contracts.

44) The Employer believed that the 500 or so disputed workers between it and the Union not being included in the bargaining unit, would lead to fragmentation. They completed overlapping tasks with the jobs in the bargaining unit, across the organisation. It articulated that “overlapping tasks” was part of its culture and practice for flexible working, to deliver its care services. The Employer repeated that the Union’s bargaining unit only included “employees” whereas the legislation governing the CAC referred to “workers”.

45) The Employer submitted that its bargaining unit was the appropriate as it was compatible with the effective management. It also recognised that as mentioned previously the workers terms and conditions were consistent for those in identical roles and across locations. It reflected the Employer’s commonality approach across the locations and would ensure all of the workers opinions would be reflected within collective bargaining as it was under the Voluntary Recognition Agreement. They also shared the same characteristics and carried out identical work functions. This inclusivity would not lead to fragmentation. It concluded that its proposed bargaining unit was in accordance with the spirit and letter of the law and for this reason the Panel should find their proposed bargaining unit as the appropriate one.

8. Additional evidence submitted after the hearing

46) The Panel instructed that as the Union had not seen the current appointment letter for the Relief Worker, the Employer should provide this. The Employer provided this on 11 October 2019. In the covering email it explained that the term “relief pool” contained within the letter, referred to “pool” as being a generic term like “team”, “group”, “function”, “branch” or “division. The Employer said it was not a divisive or exclusive term, as the Relief Workers were are not a self-contained group or centrally-managed resource. The Union was asked to comment on this.

47) The Union gave it comments on the Relief Worker appointment letter and the Employer’s covering email. In its response received on 16 October 2019, the Union confirmed that it had not seen this before. It was of the opinion that this was a recent creation following the Union’s application to the CAC. The Union continued that the appointment letter did not confirm which, or if any terms and conditions applied to the Relief Workers. It argued that if these workers had the same terms and conditions as permanent employees for example holiday entitlement, this would be included in the letter.

48) The Union then gave its insights into the Employer’s use of the term “relief pool”. It maintained that as the Employer was referring to Relief Workers using this description, it demonstrated that it saw them differently to the permanent employees. The Union explained that meaning of the word “pool” was at odds to the Employer’s explanation for this. It inferred that the Relief Workers were a resource to be used to fill the gaps when there was not sufficient permanent employees. The Union reasserted that the letter confirmed that the Relief Workers had no mutuality of obligation with the Employer and it had already provided evidence to support its argument that Relief Workers were different from the employees in its bargaining unit.

49) To conclude, the Union submitted that the evidence the Employer had provided on the Relief Workers, demonstrated their usage was no different to that of Agency Staff. This category of worker was also used by the Employer when there was a shortage of staff. The Union did not accept the Employer’s argument that the Relief Workers did the same job as the permanent employees and determined that it had not provided any evidence to support this.

9. Considerations

50) The Panel is required, by paragraph 19(2) of the Schedule to the Act, to decide whether the proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. Paragraph 19B(1) and (2) state that, in making those decisions, the Panel must take into account the need for the unit to be compatible with effective management and the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need. The matters listed in paragraph 19B(3) are: the views of the Employer and the Union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the Employer whom the CAC considers relevant; and the location of workers. Paragraph 19B(4) states that in taking an Employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the Employer has about any other bargaining unit that it considers would be appropriate. The Panel must also have regard to paragraph 171 of the Schedule which provides that “[i]n exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned.” The Panel’s decision has been taken after a full and detailed consideration of the views of both parties as expressed in their written submissions and amplified at the hearing.

51) The first question for the Panel is to decide whether or not the bargaining unit proposed by the Union is an appropriate one. It is an unusual feature of this case that the Union has proposed a bargaining unit which incorporates both operational staff and those undertaking central support functions. It also includes both full-time and part-time workers. Having said that, whilst the Union’s proposed bargaining unit covers workers who perform a wide range of functions the Union has proposed a unit which primarily excludes three categories of staff viz workers employed on Fixed Term Contracts, staff working in the Cornerstone Foundation and Relief Workers. In an attempt to clarify the position regarding fixed term staff the Union indicated at the hearing that fixed term workers who held substantive posts should be included in the proposed bargaining unit but all other fixed term workers should be excluded.

52) The Panel has had some difficulty in understanding the rationale for the exclusion of Fixed Term Workers (other than those holding substantive posts) and staff working on fundraising activities in the Cornerstone Foundation from the Union’s proposed bargaining unit. In the case of Fixed Term Workers, as far as we could determine, they were employed on the same terms and conditions (save for their period of employment) and did exactly the same jobs as permanent staff. The Panel believes that there is sufficient commonality and shared interest amongst both permanent staff and Fixed Term Workers that it is appropriate for all workers on fixed term contracts to be part of the bargaining unit.

53) The Panel also believes that the workers involved in fundraising activities as part of the Cornerstone Foundation should also be part of the bargaining unit. It was confirmed by the Employer at the hearing that fundraising staff although part of the Foundation were employed by Cornerstone Community Care. They also appear to enjoy the same terms and conditions of employment as other staff in non-operational roles who are in the bargaining unit. Given that the Union’s proposed bargaining unit applied to all other support staff (including finance and HR) it does seem to the Panel to be an oversight not to include fundraising staff as well. It would also leave a small group of workers outside the bargaining unit leading to the potential for a small fragmented unit. We would therefore hold that fundraising staff should be members of an appropriate bargaining unit.

54) It follows from what has been said above that the Panel does not regard the Union’s proposed bargaining unit as an appropriate one. Staff who share the same characteristics and share the same interests have been excluded and the Panel believes that requires a re-shaping of the Union’s proposed bargaining unit.

55) However, the Panel had much more difficulty in determining whether or not Relief Workers should be part of an appropriate bargaining unit. It has been a feature of this case that on almost every issue the parties’ perspectives and interpretation of events diverge to a significant degree. Indeed, it became clear at the hearing that the parties could not even agree on who was included in the previous Voluntary Recognition Agreement which was terminated in 2018 and had operated for 24 years. This fundamental disagreement undoubtedly coloured the parties’ positions when it came to identifying an appropriate bargaining unit. It is against this background that the Panel has had to wrestle with the question as to whether or not Relief Workers should be part of an appropriate bargaining unit.

56) On the one hand, the Union has argued that its proposed bargaining unit with regard to Relief Workers reflected the position during the period of the Voluntary Recognition Agreement where the agreement referred to “employees”. The Union has also argued that there are major differences in the terms and conditions of Relief Workers in comparison with other staff, that they are a separate and identifiable group of workers employed in a relief pool and that they are only employed to fill in when permanent staff are not available. On the other hand, the Employer argues that it was the consistent practice of the parties to include Relief Workers in any negotiations under the voluntary agreement, that the difference in terms and conditions is minimal and that Relief Workers are valued colleagues who work in teams where differences are blurred to such an extent that it is impossible to distinguish relief staff from permanent employees.

57) One point that the parties did not dispute was that Relief Workers under their contracts are only required to work as and there is no mutuality of obligation between these workers and the Employer. The absence of mutuality of obligation is undoubtedly an important distinction between them and permanent staff. (See Unite the Union and National Car Parks Ltd, CAC decision noted earlier). Although, it might be the case that the impact can be tempered if it is clear that all the impact can be tempered if all the workers work regular hours. (See BECTU and Royal Shakespeare Company Ltd TUR1/540(2006). We appreciate the comments from the employer as to how the relief pool is managed but we continue to have concerns about the issue of mutuality of obligation. This is an issue to which the Panel will return.

58) The statutory scheme places a primary duty on the Panel when making its decision to take into account the need for the unit to be compatible with effective management. But we are also required to take into five other matters in so far as they do not conflict with this need.

These are:

The Views of the Employer and the Union: In our view what has already been said should make it clear that the Panel has been very cognisant of the views of the parties.

Existing national and local bargaining arrangements: There are no current local or national arrangements in this case.

The desirability of avoiding small fragmented bargaining units within the undertaking: The headcount information provided by the Employer indicates that Relief Workers number 433 out of total workforce of 2,086 (20.76% of the workforce). The Panel does not believe that this number constitutes a small fragmented group were Relief Workers to be excluded from the appropriate bargaining unit. They can also be identified through their membership of the relief pool.

The characteristics of workers falling within the bargaining unit under consideration: The Panel accepts that, when working, permanent staff and Relief Workers perform the same jobs and share the same tasks so have similar job characteristics. However, there are differences in benefits and protections between those on employment contracts and those on worker contracts. They do not have certain statutory employment rights. Relief workers do not enjoy certain leave benefits and their sick pay arrangements are different. More importantly, there are differences in hours of work. Permanent staff are required to work the hours agreed under their contracts whereas Relief Workers under their contracts expressly have no set hours of work and their hours are likely to be determined by individual arrangement and convenience. They are also appointed to a “relief pool” which provides them with an hourly pay rate that does not allow for incremental progression.

Location of Workers: Since both the Union’s proposed bargaining unit and that put forward by the Employer cover all the locations in Scotland where Cornerstone operates the Panel believes that this matter has been addressed.

59) This leaves the final and most important consideration which requires that for a bargaining unit to be appropriate it has to be compatible with effective management. The Employer has proposed a bargaining unit which includes Relief Workers because it is argued this accords with the reality of how the undertaking is managed. Colleagues work in teams where there is no distinction based on contract type. Yet the Panel notes that the letter offered to Relief Workers places them in a separate pool of workers from other staff. Moreover, there is no escaping the fact that contract type does make a difference in two important respects. First, workers’ contracts are based on an “as required” arrangement with no set hours of work and, second mutuality of obligation means that there is no requirement on the Employer to offer work nor on the worker to perform that work. These are two major and inescapable differences between employees and workers. In the view of the Panel these amount to significant differences in characteristic between permanent staff who are undoubtedly part of an appropriate bargaining unit and Relief Workers.

60) After considerable discussion, the Panel has formed the following views about the impact of mutuality of obligation in this case. Mutuality of obligation means that workers can legitimately refuse work that is offered to them. The Employer acknowledges this but argues that work is usually taken up and has indicated that Relief Workers work on average 12 hours per week and have an average length of service of 4 years and 2 months. Whilst not disputing this, the Panel has insufficient evidence to discount the possibility that the right that Relief Workers have to refuse work will have a negative impact on how the undertaking is managed. This means that consistency and quality of service could suffer and there is no doubt that the Employer has less control of Relief Workers than is the case with permanent staff. It is also the case that Relief Workers can seek a permanent contract but only if they work regular hours. So it is likely to be the case that a number of workers in the relief pool are there specifically because they do not wish to work on a regular basis This both distinguishes them from other staff but also reinforces the point that there will be workers who turn down work when it is offered. The only way that the Employer can avoid these risks is by ensuring that there is sufficient staff in the relief pool to cover. This could be seen to reinforce the differences between Relief Workers and their permanent colleagues.

61) For the above reasons the Panel is not persuaded that it is compatible with effective management to include Relief Workers in an appropriate bargaining. We consider that the bargaining unit that we have determined is appropriate and fulfils the object of encouraging and promoting fair and efficient practices on the workplace

10. Decision

62) The Panel’s decision is that the appropriate bargaining unit is “All employees which in includes Fixed Term Contract staff (whether on substantive contacts or not) and the Cornerstone Foundation, with the exception of Relief Staff, Seasonal Staff, Foster Carers, Shared Live Carers and the Senior Leadership Team (CEO, Leader of Quality, Leader of Cornerstone Foundation, Leader of Strategy Implementation, Leader of Cornerstone Central)”.

63) As the appropriate bargaining unit differs from the proposed bargaining unit, the Panel will proceed under paragraph 20(2) of the Schedule to decide if the application is invalid within the terms of paragraphs 43 to 50 of the Schedule.

Panel

Professor Kenneth Miller, Chairman of the Panel

Mr Alistair Paton

Mr Gerry Veart

23 October 2019

11. Appendix

Names of those who attended the hearing:

For the Union

Darshan Patel - Counsel

Mike Kirby - UNISON Scottish Secretary

Ian Fitzpatrick - UNISON Organiser

For the Employer

David Morgan - Solicitor, Burness, Paull LLP

Edel Harris - CEO, Cornerstone

Mairi Martin - Leader, Cornerstone Central

1. Referred to in the remainder of this decision as Relief Worker(s) ↩

2. To support this reference was made to the decision R(Cable and Wireless Services UK Ltd) v CAC and CWU [2008] EWHC 115 (Admin) ↩

3. The Fundraising Team is referred to as the Cornerstone Foundation ↩