Decision

Acceptance Decision

Updated 17 December 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1236(2021)

17 December 2021

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 & GMB

and

ERS Transition Ltd Trading as ERS Medical

1. Introduction

1) UNISON & GMB (the Unions) submitted an application to the CAC on 19 October 2021 that they should be recognised for collective bargaining by ERS Transition Ltd Trading as ERS Medical (the Employer) for a bargaining unit comprising “all employees employed on the Nottinghamshire non-emergency patient transport contract”. The CAC gave both parties notice of receipt of the application on 19 October 2021. The Employer submitted a response to the CAC dated 2 November 2021 which was copied to the Unions.

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 Tariq Sadiq, Panel Chair, and, as Members, Mr Robert Lummis and Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Bola Olayinka.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 2 November 2021. The acceptance period was extended to 20 December 2021 in order to allow time for the parties to comment on the results of a membership check and for the Panel to consider these 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 Unions’ 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 Unions’ application

5) In their application, the Unions said that that they had written to the Employer with a formal request for recognition on 8 April 2020 and this was read by the Employer on 8 April 2020. A copy of the Unions’ letter dated 8 April 2020 was enclosed with the application.

6) According to the Unions, there was an estimated 179 workers employed by the Employer with 127 of these falling within the proposed bargaining unit. The Unions stated that they had 72 members within the proposed bargaining unit.

7) The Unions explained the reason for selecting the proposed bargaining unit was that it covered those who were employed by the Employer since the service was outsourced in 2012. It included all of the employees transferred to the current Employer under TUPE and any new and future employees were also included.

8) Finally, the Unions stated that they had not made any previous application in respect of the same or similar bargaining unit. Asked to provide evidence that the Unions would cooperate with each other and enter into single table bargaining arrangements the Unions said that they were already working closely together in relation to this application and gave examples of joint communications to members within the proposed bargaining unit. They could also provide other examples of joint working where both unions were recognised setting out how they worked together in various forums. Finally, the Unions stated there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

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

9) The Employer stated it had received the Unions’ formal requests for recognition on 8 April 2020, 9 November 2020 and 15 September 2021. The Employer confirmed that it had not agreed to the bargaining unit prior to having received a copy of the completed application form and this remained the case. It also stated that it had not received the completed application forms from the Unions, on 19 October 2021. However, when signposted by the CAC it was able to access the application form and its attachments.

10) When asked how it responded to the requests for recognition, the Employer stated that it did not agree with the Unions’ bargaining unit because it believed that the Unions had a maximum of 53 members out of 195 employees in membership. The Employer further stated that the 53 employees cited by the Unions were former NHS employees on the Agenda for Change terms and conditions. The remaining 144 employees were believed not to be union members and were on three separate and distinct set of terms and conditions due to TUPE transfers. The Employer believed the bargaining unit proposed by the Unions would lead to fragmentation and therefore would not be compatible with effective management. The Employer further explained that the Unions had members on the Agenda for Change terms and conditions and on the less favourable terms and conditions which would place the Unions in an invidious position which will set union members against each other in the terms of collective bargaining.

11) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the bargaining unit. When asked whether, following receipt of the Unions’ request, the Employer had proposed that Acas be requested to assist, the Employer answered, “No but we have supported the ACAS process”.

12) Finally, when asked if it was aware of any previous application under the Schedule by the Unions in respect of this or a similar bargaining unit the Employer stated that it was not aware of any previous application.

5. The membership check

13) 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 unions (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the unions 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 Unions would supply to the Case Manager a list of their paid-up members within that unit including their full names and dates of birth. 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 17 November 2021 from the Case Manager to both parties. The information requested from the Unions was received by the CAC on 19 and 26 November 2021 and from the Employer on 17 November 2021

14) The list supplied by the Employer contained the names of 196 workers and the list of members supplied by the Unions contained 127 names.

15) According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 57 a membership level of 29.08%. A report of the result of the membership check was circulated to the Panel and the parties on 30 November 2021 and the parties’ comments invited. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

6. Parties’ comments on the membership check

16) In a letter dated 3 December 2021 the Employer stated that union membership in the bargaining unit was at 29% and fell short of a likely majority and it pointed to the 10% discrepancy between the CAC report figure and 40% that was asserted by the Unions in their application The Employer therefore considered that the application should not be allowed.

17) In an email dated 7 December 2021 the Unions stated that they had met the required percentage and stated that some of their members worked within a reasonable commuter distance from the main site. They explained that they were unable to differentiate as to the locations of their members which could account for the high numbers of anomalies in the membership check. They believed that there was an appetite for trade union recognition within the bargaining unit and looked forward to demonstrating this in due course.

7. Considerations

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

19) The Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 and that it was made in accordance with paragraph 11(2) of the Schedule. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

8. Paragraph 36(1)(a)

20) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Unions constitute at least 10% of the workers in the Unions’ proposed bargaining unit. In this case the check of union membership conducted by the Case Manager established that 29.08% of the workers in the proposed bargaining unit were members of the Unions. As stated in paragraph 15 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. It is clear to the Panel that members of the Unions constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule and so this test is met.

9. Paragraph 36(1)(b)

21) The test in paragraph 36(1)(b) is whether a majority of the workers constituting the proposed bargaining unit would be likely to favour recognition of the Unions as entitled to conduct collective bargaining on behalf of the bargaining unit. The membership check conducted by the Case Manager showed that 29.08% of the workers in the proposed bargaining unit were members of the Unions. The Unions did not provide any further evidence, for example, a petition, to demonstrate any further likely support for recognition. The Panel has concluded therefore 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 Unions as entitled to conduct collective bargaining on behalf of the bargaining unit as required by paragraph 36(1)(b).

10. Decision

22) For the reasons given above, the Panel’s decision is that the application is not accepted by the CAC.

Panel

Mr Tariq Sadiq, Panel Chair

Mr Robert Lummis

Mr Paul Noon OBE

17 December 2021