Decision

Acceptance Decision

Updated 5 August 2019

Case Number: TUR1/1125(2019)

05 August 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

Care West Country Limited

1. Introduction

1) UNISON (the Union) submitted an application to the CAC dated 9 July 2019 that it should be recognised for collective bargaining purposes by Care West Country Limited (the Employer) in respect of a bargaining unit comprising “All staff working for Care West Country Limited, 251 Staplegrove Road, Taunton, TA2 6AQ.” The application was received by the CAC on 12 July 2019 and the CAC gave both parties notice of receipt of the application on 12 July 2019. The Employer submitted a response to the CAC dated 19 July 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 Professor Gillian Morris, Panel Chair, and, as Members, Ms Gail Cartmail and Mr Nicholas Caton. The Case Manager appointed to support the Panel was Kate Norgate. Ms Cartmail was subsequently replaced by Mr Gerry Veart.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 26 July 2019. The acceptance period was extended to 9 August 2019 in order to allow time for the parties to comment on the results of a membership check and for the Panel to consider those comments before arriving at a decision.

2. Issues

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

3. Summary of the Union’s application

5) In its application to the CAC the Union stated that it had sent its first recognition request to the Employer on 10 May 2019. The Union stated that in a letter dated 22 May 2019 the Employer had said that it did not accept the request as the Union had not provided any information regarding the bargaining unit or the number of staff the Union represented. The Employer stated that if it were provided with adequate figures in the future, it would reconsider its position. The Union said that it had replied to the Employer by e-mail on 23 May 2019 stating that it had the majority of staff within the bargaining unit in membership and that it would be happy to have this verified by an independent third party such as an HR Representative from Somerset County Council. The Union stated that “for clarity” it had resubmitted its request in a letter dated 29 May 2019, sent to the Employer by e-mail on 30 May 2019, along with a “collective letter” with 45/52 members of staff requesting recognition. The Union stated that it had met with the Employer on 6 June 2019 and that at that meeting the Employer had declined its request and did not wish to discuss the bargaining unit. The Union stated that it had not received any further response from the Employer. A copy of the correspondence referred to above was attached to the Union’s application.

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

7) The Union stated that the total number of workers employed by the Employer was 52. The Union stated that there were 52 workers in the proposed bargaining unit, of whom 43 were members of the Union. The Union attached to its application a document headed “Membership Count – Stewards” dated 13 June 2019. When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining the Union said that 45 staff had signed a petition supporting recognition. A copy of the petition was attached to the application. The Union said that between 1 May 2019 and 11 June 2019, 33 members had joined because of its recognition campaign. The Union attached to its application a copy of a “Recruitment Report” dated 11 June 2019.

8) The Union stated that the reason for selecting its proposed bargaining unit was because pay and conditions were determined independently at a local level. The Union attached payslips from two different care assistants in the bargaining unit which it claimed provided evidence of this. Other reasons given by the Union for selecting its proposed bargaining unit were, in outline, that it operated as a separate business unit; that policies and procedures were unique to the workplace in question; the management structure of the Employer was decentralised; final decisions on discipline and dismissal were taken locally; there was a single set of terms and conditions set out in the Employer’s handbook; and there was no mobility clause requiring staff to work outside the bargaining unit. The Union attached documents to its application which, it submitted, supported these contentions. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit.

9) The Union confirmed that it held a current certificate of independence. The Union did not state on its application form the date on which it had copied its application and supporting documents to the Employer.^{[footnote 1]}

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

10) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 10 May 2019. The Employer said that it had responded to the initial letter by e-mail on 13 May 2019, asking the Union to confirm how many of its staff were currently signed up with the Union. The Employer asked the Union to include names so it could confirm that they were involved “in the proposed changes.”

11) In answering the question when it had received a copy of the application form and supporting documents from the Union, the Employer said that it had received a copy by e-mail on 12 July 2019, followed by a “physical pack” by post on 15 July 2019. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union, and that it did not agree with the proposed bargaining unit. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist as this was not previously discussed or suggested by the Union.

12) The Employer said that there were 59 staff currently employed. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) The Employer stated that it disagreed with the Union’s estimate of membership in the proposed bargaining unit. The Employer said that many staff did not want recognition.

14) The Employer said that it did not believe the Union had enough staff support for recognition. The Employer said that some staff who had wanted recognition had now left and some had now decided that they no longer wanted recognition. The Employer said that it did not consider that all staff who had originally signed up for recognition were aware of what they were signing up to, and after speaking to staff a lot had mentioned that they only signed up to support other staff as they required ‘numbers’ to go through. The Employer submitted that this was not acceptable grounds for recognition and believed it had been miss-sold to staff.

15) The Employer said that it did not agree with “the amount of employees that originally signed up” for recognition. The Employer stated that “due to meeting with staff and hearing their opinions, many staff have said on record that they wish to withdraw from recognition as they feel that it is no longer required within the home.” The Employer stated that out of 46 staff who originally signed up for recognition, six had left, 12 had opted out of recognition, three were unsure, four wanted recognition, and 21 had not been asked for their thoughts due to tight timescales. The Employer said that it could provide evidence of this if required by the CAC. The Employer said that it was the “overall feeling” from staff that several of them no longer wanted or required the Union to be recognised as “the home is not in the same place it was a couple of months ago.” The Employer said that the reason staff had wanted recognition was due to a proposed change of hours in order to comply with a statutory requirement to have an 11 hour break between shifts. The Employer said that pay slips that were attached to the Union’s application contained incorrect information; that the Employer had accepted this; and that totals had been corrected in subsequent pay slips. The Employer said that individual reviews were being held with each member of staff and that staff were being given the option of signing up to a flat rate of pay.

16) The Employer said that it could provide the following information to the CAC on request: staff reviews outlining choice of recognition; staff reviews for flat rates of pay; a letter to staff outlining new shift patterns to incorporate long days, and split shifts that were being discussed with staff individually to ascertain their limitations and requirements whilst incorporating business needs; and a letter to each member of staff who had not elected to go onto the flat rate, detailing their pay slips, minimum wage premium and what their wages would be if they went onto the flat rate.

17) The Employer did not respond 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, nor did it answer whether it had received any other applications in respect of workers in the proposed bargaining unit.

5. The membership and support check

18) 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 and of a petition compiled by the Union. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, dates of birth and job titles of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of its paid up members within that unit (including their dates of birth) and a copy of a petition signed by workers in favour 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 23 July 2019 from the Case Manager to both parties.

19) The information requested from the Union was received by the CAC on 25 July 2019 and from the Employer on 26 July 2018. The Panel is satisfied that this 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 61 workers in the Union’s proposed bargaining unit. The following job titles were listed:

• Activities - 1

• Activities Co-ordinator - 1

• Admin - 1

• Care Assistant - 28

• Chef - 1

• Cleaner - 3

• Cook - 1

• Gardener - 1

• Handyman - 2

• Head of Care - 1

• House Keeper - 1

• Kitchen Assistant - 5

• Laundry - 2

• Lead Nurse - 1

• Nursing Assistant - 1

• Registered Manager - 1

• RGN - 6

• Senior Carer – 4

21) The list of members supplied by the Union contained 42 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 35, a membership level of 57.38%%.

22) The petition supplied by the Union contained 46 names and signatures, of which 40 were in the proposed bargaining unit, a figure that represents 65.57% of the proposed bargaining unit. Of those 40 signatories, 33 were members of the Union (54.10% of the proposed bargaining unit) and seven were non-members (11.47% of the proposed bargaining unit). The petition consisted of four A4 sheets, which were set out as follows:

“UNISON

We the undersigned inform Care West Country Limited

• We do not accept proposed variations to our contracts outlined in the letter dated 14th May 2019

• We do not accept proposed changes to shift patterns

• We support recognition of UNISON for collective bargaining on pay, hours and holidays on all current and future proposals”

Name	Signature	Job Title

23) A report of the result of the membership and support check was circulated to the Panel and the parties on 26 July 2019 and the parties were invited to comment on the results of that check, including any evidence to support those comments, by close of business on 31 July 2019.

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

24) In a letter to the CAC dated 31 July 2019, the Union stated that managers at the Employer had “sought to undertake 121’s with all staff to explore whether they want … [the Union] … to be recognised and advised staff that they have recorded the content of these discussions.” The Union said that a number of staff had advised the Union that they found this intimidating and felt that they could not respond openly and honestly in those meetings due to fear of repercussions. The Union stated that staff were aware that the Employer had been hostile to Union stewards for requesting recognition and that its members had contacted the Union after they were invited to those meetings to express their concern and seek advice. The Union said that it would welcome the evidence collected by the Employer to substantiate its position that some staff had now decided that they no longer wanted union recognition. The Union stated that its members and other staff were willing to sign a further petition to state their desire for Union recognition and to provide statements about their experience of those meetings.

25) The Union said that staff were very clear that in signing the petition they were requesting recognition of the Union; that there had been no “miss-selling” of recognition; and that staff had signed the petition and joined the Union on an informed basis. The Union contested the Employer’s view that staff no longer wanted recognition as the Employer had resolved the issues that were concerning them. The Union said that its members did not believe that this was the case and considered that the Employer had ceased seeking to impose changes to hours due to the Union’s intervention. The Union stated that the way in which the Employer had applied new staffing rotas had created upset and resulted in staff leaving the organisation so that they could meet their caring responsibilities. The Union said that all this had re-enforced to staff the benefit of union recognition. The Union stated that it believed union recognition would enable it to support the Employer to ensure that the Employer correctly complied with employment law, including areas such as the Minimum Wage Regulations and the Equalities Act.

26) The Union contended that there were fewer than 61 staff in the bargaining unit and that the Employer had double-counted staff with multiple contracts; included staff that had not yet started working at the Employer; and double-counted staff with different roles. The Union named individuals whom it contested fell within the first two categories and gave further details on the third category. The Union also attached the week’s staff rota in support of its contention that staff had been included in the bargaining unit who had not yet started their employment. The Union said that it believed that the Employer had also included staff who had resigned since its request for recognition had been lodged. The Union asked the Panel to review the information provided by the Employer to determine whether the Union’s concerns were valid and to establish the actual number of workers in the bargaining unit. The Union contended that both the tests contained in paragraph 36 of the Schedule had been met.

27) The Employer did not provide any comments on the check.

7. Considerations

28) 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.

29) 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 37 to 42 of the Schedule. The Panel notes that the Union did not state on its application form the date on which it had given a copy of the application and supporting documents to the Employer but the information given in the Employer’s response (see paragraph 11 above) indicates that it had given the Employer a copy and therefore satisfied the requirement in paragraph 34. 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.

8. Paragraph 36(1)(a)

30) 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. The membership check conducted by the Case Manager (described in paragraphs 18 - 21 above) showed that 57.38% 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 agreement reached 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.

9. Paragraph 36(1)(b)

31) 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. For the reasons given in paragraph 30 above the Panel has concluded that the level of union membership within the bargaining unit stands at 57.38%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union. No such evidence to the contrary was received in this case.

32) On the basis of the level of union membership alone the Panel would have been prepared to conclude, for the reasons set out in paragraph 31 above that, on the balance of probabilities, a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union. In this case the Panel also notes that the support check conducted by the Case Manager showed that 65.57% of workers in the proposed bargaining unit (40 out of 61 workers) had signed a petition in favour of recognition (see paragraphs 18-22 above). Of those who had signed the petition 33 were Union members (54.10% of the proposed bargaining unit) and seven were non-members (11.47% of the proposed bargaining unit). The Panel notes that the Union’s petition did not indicate the precise date on which each individual signed the petition. The petition itself, however, referred to proposed changes in contracts outlined in a letter of 14 May 2019 and the Panel is therefore content to assume that signatures were obtained on or after that date and are therefore relatively recent.

33) On the basis of the evidence before it the Panel has decided, on the balance of probabilities, that a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 36(1)(b) of the Schedule.

10. Concluding observations

34) The Panel notes the Union’s concerns, set out in paragraph 26 above, that the list of 61 workers in the proposed bargaining unit may have included workers who had not yet joined the proposed bargaining unit or who had left the Employer’s employment. In view of its decision that the admissibility criteria set out in paragraph 36 of the Schedule have been met on the basis of the figures contained in the Case Manager’s report the Panel has not found it necessary to investigate the Union’s concerns for the purposes of this decision. The Panel has also noted the Union’s statements, set out in paragraph 24 above, that staff had felt intimidated in meetings with managers relating to recognition. The Panel has not investigated these allegations and they have played no part in its decision.

35) The Panel considers that it is helpful if parties follow the advice in the CAC Guide to the Parties on Statutory Recognition and make clear the period within which signatures to a petition were obtained, for example by the inclusion of a column indicating the date of signature. ^{[footnote 2]}

11. Decision

36) For the reasons given in paragraphs 29 - 33 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mr Nick Caton

Mr Gerry Veart

05 August 2019

1. See, however, paragraph 11 below. ↩

2. Statutory Recognition: Guide for the Parties version 6, April 2017, paragraph 4.4 ↩