Decision

Acceptance Decision

Updated 5 July 2019

Case Number: TUR1/1108/2019

03 July 2019

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

BAWSO

1. Introduction

1) UNISON (the Union) submitted an application to the CAC dated 17 May 2019 that it should be recognised for collective bargaining by BAWSO (the Employer) for a bargaining unit described as “All Bawso workers under senior management level”. The proposed bargaining unit was stated as being located at “Wrexham, Merthyr Tydfil, Swansea and Cardiff.” The application was received by the CAC on 20 May 2019 and the CAC gave both parties notice of receipt of the application on the same day. The Employer submitted a response to the CAC dated 29 May 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 James Tayler, Chair of the Panel, and, as Members, Mr Nicholas Caton and Ms Fiona Wilson. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel extended the acceptance period in this case. The initial period expired on 4 June 2019. The acceptance period was extended on two further occasions to allow time for a membership and support check to be carried out, for the parties to comment on the subsequent report, and for the Panel to consider these comments before arriving at a decision. The final extension ends the acceptance period on 3 July 2019.

2. Issues

4) The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 9; is made in accordance with paragraphs 11 or 12; is admissible within the terms of paragraphs 33 to 42; and therefore should be accepted.

3. The Union’s application

5) The Union stated that it had sent its formal request for recognition to the Employer on 16 April 2019 but it had received “no response to date”. The Union further stated that the Employer had however, previously indicated that it would not recognise the Union. A copy of the Union’s request, sent by e-mail, was attached to the application.

6) When asked whether the Union had made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit, the Union stated “No”. The Union stated that, following receipt of the request for recognition, the Employer had not proposed that Acas should be requested to assist the parties.

7) The Union stated that the total number of workers employed by the Employer was 100. The Union stated that there were 75-80 workers in the proposed bargaining unit, of whom 40 were members of the Union. When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated that it had 40 union members within the proposed bargaining unit and that 10 non-members had also indicated their support for union recognition.

8) The Union said that the reason for selecting the proposed bargaining unit was because it was the most appropriate grouping to ensure effective negotiation. The Union stated that the bargaining unit had not been agreed with the Employer.

9) The Union stated that it was not aware of any other existing recognition agreement which covered any of the workers in the bargaining unit. .

10) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application and supporting documents to the Employer on 17 May 2019.

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

11) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 17 December 2018 and 17 January 2019. The Employer stated that by e-mail dated 25 January 2019 it had declined the Union’s request. The Employer attached a copy of that e-mail, along with copies of the Union’s earlier requests, to its response. Although the employer did not specifically refer to the union’s request by email dated 16 April 2019 (to which the Union states it did not receive a reply) the employer has not denied receiving that request at any stage of the consideration of the Union’s current application. We accept that the application was sent and received by the Employer.

12) The Employer confirmed that it had received a copy of the Union’s application form on 20 May 2019. In answer to the question on whether it had agreed the bargaining unit with the Union before receiving a copy of its application, the Employer stated “No – Not asked”. The Employer further indicated its objections to the proposed bargaining unit. The Union stated that there were 100 employees minus 6 Senior Management, which totalled 94 workers and not 75-80 as quoted by the Union in its application. The Employer queried the Union’s assertion that 10 non-members had indicated their support for union recognition. Finally, the Union stated that Newport had not been included within the stated locations of the bargaining unit.

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

14) The Employer reiterated that the total number of workers it employed was 100. When asked whether it agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application, the Employer stated “No” and referred to its earlier comments concerning the number of workers within the proposed bargaining unit as stated in paragraph 12 above.

15) The Employer stated that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

16) The Employer had not answered the question on whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, nor had it responded when invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition.

17) 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 referred to an earlier application that had been withdrawn.

5. Further comment from the parties

18) On 30 May 2019 the CAC copied the Employer’s response to the Union and its comments invited. No comments were received from the Union.

6. The Membership Check

19) 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 it’s paid up members within that unit (including their full name and address). It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 6 June 2019 from the Case Manager to both parties. The information from the Union was received by the CAC on 6 June 2019 and the information from the Employer was received by the CAC on 10 June 2019. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

20) The list supplied by the Employer indicated that there were 92 workers in the proposed bargaining unit. The list of members supplied by the Union contained 38 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 36, a membership level of 39.13%.

21) A report of the result of the membership check was circulated to the Panel and the parties on 13 June 2019 and the parties were invited to comment on the result.

7. The parties’ comments on the result of the membership check

22) By e-mails dated 19 June 2019 the Employer stated that that it noted the outcome of the check, but it was surprised that two members had not appeared on its list. The Employer stated that it had provided the most up to date list of workers, who fall within the proposed bargaining unit.

23) The Union, by e-mail dated 20 June 2019, stated that it was not in a position to dispute the size of the bargaining unit that the Employer had provided for the check, further stating that it was “unable to agree this with BAWSO prior to application which meant that my estimation of the size of the bargaining unit - as discussed with members employed by BAWSO - was smaller.”

24) The Union said that since receiving the Case Manager’s report last week, which detailed the size of the bargaining unit, it became aware that its membership density was “slightly smaller” than its initial estimation. The Union stated that had it known the exact size of the bargaining unit it would have petitioned its non-members to demonstrate their support for union recognition. The Union said that there were however, only four working days between the date of the report, which confirmed of the size of the bargaining unit, and the date on which its comments were due and therefore there was not enough time to submit such a petition. Finally, the Union said that “on the back of one e-mail asking people to join over the weekend”, the Union had gained three new recruits. The Union considered that this provided “real confidence” that the CAC should allow the application to proceed, as it would secure the votes required to demonstrate that a majority were in favour of union recognition.

8. Considerations

25) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 above are satisfied. The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision.

26) The Panel is satisfied that the Union made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that its application was made in accordance with paragraph 11. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

9. Paragraph 36(1)(a)

27) Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the union constitute at least 10% of the workers in the proposed bargaining unit.

28) The membership check conducted by the Case Manager showed that 39.13% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 19 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. The Panel has therefore decided that members of the union constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

10. Paragraph 36(1)(b)

29) Under paragraph 36(1)(b) of the Schedule, an application is not admissible unless the Panel decides that a majority of the workers constituting the proposed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

30) To support its position the Union relied on its level of membership, which, as stated in paragraph 28 above, stood at 39.13%. Prior to the membership and support check the Union did not provide any further evidence of likely support for recognition, such as a petition. It did not provide any evidence to support its statement in the application form that 10 non-members had indicated support for recognition. Although Union membership is relatively high, without a petition or other evidence we do not consider that there is sufficient evidence to support the contention that support is likely to be substantially greater than the membership figure suggest and/or will grow so significantly by operation of the “bandwagon effect” (increasing support that often occurs during the statutory recognition process) that we can, at this stage, determine that it is likely that more than 50% would support recognition were a ballot held.

31) In deciding whether to accept an application we consider that we should focus on the evidence provided prior to the membership and support check; rather than allowing the parties further opportunities after the report to bolster their evidence. The parties have the opportunity to provide all relevant evidence before the membership and support check is carried out. Allowing them to add to that evidence could result in lengthy delays as fairness would require that the other party have the opportunity to comment and potentially provide evidence in response. Alternatively, if it is appropriate to take into account the evidence provided by the union after the check was conducted it would not alter our conclusion. The Union states that three members have joined the Union following a recruitment drive after the result of the check was issued to the parties. This would take the current level of membership to 42%. However, the Panel is not satisfied that even taking account of the “bandwagon effect”, that this further evidence is sufficient to conclude that it is likely that the majority would support recognition, given the lack of any other evidence such as a petition.

32) Therefore, the Panel has concluded that the evidence before it is not sufficient to support a decision that a majority of the workers constituting the proposed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the proposed bargaining unit as required by paragraph 36(1)(b).

11. Decision

1. For the reasons given above, the Panel’s decision is that the application cannot be accepted by the CAC.

Panel

Mr James Tayler, Chair of the Panel

Mr Nicholas Caton

Ms Fiona Wilson

03 July 2019