Decision

Acceptance Decision

Updated 17 September 2018

Case Number: TUR1/1066(2018)

14 September 2018

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

Hillcroft Nursing Homes Limited

1. Introduction

1) UNISON (the Union) submitted an application to the CAC on 29 August 2018 that it should be recognised for collective bargaining by Hillcroft Nursing Homes Limited (the Employer) for a bargaining unit comprising “This includes, but is not limited to: Senior Care Assistants, Senior Carers, Care Assistants, Health Care Assistants, Carers, Night Care Assistants, Support Workers, Head Chefs, Chefs, Chef Assistants, Kitchen Assistants, Kitchen Workers, Cooks, Assistant Cooks, Laundry Assistants, Handymen, Domestics, Senior Ancillary Workers, Ancillary Workers, Housekeeping Staff. Management Grade Staff, matrons, Registered Nurses and Administrational Staff will be excluded”. Asked to give the location of the bargaining unit the Union stated: “The bargaining unit will consist of members of staff located across all six sites of Hillcroft Nursing Homes Limited which are as follows: Carnforth North Road, Carnforth, Lancaster, LA5 9LX; CATON, Caton Green Road, Lancaster, LA2 9JH; Morecambe, Woodlands Drive, Morecambe, LA3 1LZ; Lancaster, Westbourne Road, Lancaster, LA1 5DX; Slyne, Throstle Grove, Slyne-with-Hest, Lancaster, LA2 6AX; Galgate, Hillcroft House, Chapel Lane, Galgate, Lancaster, LA2 0PR”.

The CAC gave both parties notice of receipt of the application on 29 August 2018. The Employer submitted a response to the CAC dated 3 September 2018 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 Kenny Miller, Chairman of the Panel, and, as Members, Mr Alistair Paton and Ms Fiona Wilson. The Case Manager appointed to support the Panel was Nigel Cookson.

2. Issues

3) 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

4) In its application the Union said that it sent the Employer a letter requesting voluntary recognition on 10 August 2018. This letter was sent by recorded delivery and was followed by a further request which was sent by email on 15 August 2018. A response was received from the Employer on 22 August 2018 rejecting the request. A copy of the Union’s letter of 10 August 2018 and the Employer’s letter of 22 August 2018 were enclosed with the application.

5) According to the Union, there was a total of 358 workers employed by the Employer with 260 of these falling within the proposed bargaining unit. The Union stated that it had 86 members within the proposed bargaining unit. Asked if the Employer agreed with the Union’s estimate as to the number of workers in the proposed bargaining unit the Union stated “Employer rejected recognition request”. Asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union said that it had recently undertaken a comprehensive recognition petition where it had clearly and respectfully asked staff working for the Employer if they would support trade union recognition. Out of the 358 staff the Union had received 192 staff signatures on this petition, equating to 54% of the entire workforce and equating to 74% of the proposed bargaining unit. Over the past three months Union membership had increased from 34 to 86 members showing a significant increase in support for trade union recognition. The Union stated that it had taken its staffing numbers from the Employer’s financial report. Whilst it was happy to provide its information to the CAC for verification it was highly confidential and it would not be appropriate to share with the Employer.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that the proposed unit consisted of staff providing care to residents as well as those that provided ancillary support to the provision of care and were non-office based staff on Grades 1-4. It explained that it had been approached by staff who raised concerns about Health & Safety and personal injury issues associated with their roles. Staff also had concerns, for example, in relation to the grievance and whistleblowing processes and these staff had also raised concerns about pay policies and procedures including, in particular, the approach to disciplinary sanctions. The Union believed that the proposed bargaining unit was compatible with effective management as the workers appeared to be on different contracts of employment and pay structures to the excluded workers. This would enable clear distinguishable collective bargaining frameworks to be established. When asked if the bargaining unit had been agreed with the Employer the Union stated that no discussion had yet taken place.

7) 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 29 August 2018. The Union answered “No” when asked, following receipt of the Union’s request for recognition, did the Employer propose that Acas be requested to assist.

8) Finally, the Union said there had not been a previous application in respect of this or a similar bargaining unit and there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

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

9) The Employer stated that it had received the Union’s formal request for recognition on 14 August 2018. When asked what its response was, the Employer stated that it rejected the request by way of a letter dated 21 August 2018, a copy of which was attached to the response.

10) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated this was 28 August 2018 with a revised version being received on 29 August 2018. The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form and asked did it agree the bargaining unit, it answered “No”. Its reasoning for not agreeing the proposed bargaining unit was that the categories listed by the Union did not represent the Employer’s particular range of categories of staff. These were: Senior Care Assistants, Care Assistants, Hospitality Assistants, Head Cook, Cook, Catering/Kitchen Assistants, Laundry Assistants, Handymen, Domestic, Senior Ancillary and Ancillary Assistant. The ranges excluded were: Management Grade Staff, Matrons, Registered Nurses, Assistant Practitioners and Administrative Staff.

11) The Employer stated that it employed 386 workers across the six sites. The Employer did not agree with the Union’s figure as to the number of workers in the bargaining unit, explaining that there were currently 313 workers within the bargaining unit on current staff numbers. It gave no reason for the difference in figures. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer stated that it had no basis to agree or disagree. It was totally unaware of the Union seeking out all staff with an organised petition. When asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, the Employer stated that in context to its comments above on Union membership, it had not had the opportunity to canvass opinion as at no stage had there been direct, clear and respectful engagement about the matter with the management team by the Union. Further, the Employer was very concerned that such significant matters as Health & Safety were raised of which it was not aware.

12) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the agreed bargaining unit. The Employer also confirmed that following receipt of the Union’s request for recognition it did not propose that Acas be requested to assist.

13) Finally, 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 answered “N/A”.

5. Membership and Support Check

14) To assist in the application of the admissibility tests, the Panel proposed independent checks of the level of union membership in the proposed bargaining unit and the number of workers in the unit who had signed a petition supporting recognition of the Union. The information from the Union was received by the CAC on 5 September 2018 and from the Employer on 6 September 2018. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and the petition would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to both parties dated 5 September 2018.

15) The Employer provided a spreadsheet with 311 names. The information provided for each individual was title, forename, surname, position and date of birth.

16) The Union provided a spreadsheet with 87 names. The information provided was the first name, surname and date of birth for each individual. The Union also provided a petition which ran to forty A4 pages although in its covering email the Union explained that there were a number of intentionally blank pages due to the petition being scanned back to back and some of the pages being single-sided. There were 199 names on the petition and the dates on the petition ranged between 26 July 2018 and 22 August 2018. The petition, on Union headed paper, was, in the main, set out as follows:

Hillcroft Nursing Homes Ltd Petition

We the undersigned work very hard in Hillcroft Nursing Homes supporting the elderly and vulnerable and need our concerns listened to and our union recognised.

We, the undersigned, support recognition of UNISON for collective bargaining on pay, hours, holidays and other terms and conditions of employment.

DATE	NAME	JOB TITLE	WORKPLACE	MOBILE NO.

17) One of the completed pages of the petition differed to the rest both in layout and wording. The page, also on Union headed paper, was orientated in portrait rather than landscape and carried a shorter proposition namely:

We, the undersigned, support recognition of UNISON for collective bargaining on pay, hours and holidays.

It only had columns for Name, Job Title and Workplace although dates had been written against each name.

18) According to the Case Manager’s report the total number of workers in the bargaining unit was 311 and the number of Union members in the bargaining unit was 74, a membership level of 23.79%. The check of the petition showed that it had been signed by 175 workers in the bargaining unit, a figure which represents 56.27% of the bargaining unit. Of those 175 signatories, 63 were members of the Union (20.26% of the bargaining unit) and 112 were non-members (36.01% of the bargaining unit). A report of the result of the membership check was circulated to the Panel and the parties on 7 September 2018 and the parties’ comments invited.

6. Parties’ comments on the Case Manager’s report

19) In an email dated 10 September 2018 the Union stated that it believed that the membership information and related petition fully demonstrated that its application complied with the tests set out in paragraph 36 of the Schedule. The Union was unsure of the accuracy of the Employer’s stated number of workers in the bargaining unit as discussions with employees suggested that the number was lower than the figure given. The Employer’s Response stated an overall workforce of 386 however the most recent Annual Report

identified only 358 salaried staff. The Union would trust that agency staff had not been included in the Employer’s figures.

20) The Employer’s Response stated that the categories of staff referenced in the proposed bargaining unit did not represent the Employer’s particular range of categories of staff. The information provided by the Union with regards to the proposed bargaining unit description was generated from information provided within the Employer’s Annual Report, as well as from information provided by employees and membership data held on the Union’s system regarding job titles. The Union did not have access to any organisational information to provide a more factual description however, it believed that the description it originally gave accurately reflected the roles undertaken by its members.

21) In a letter dated 10 September 2018 the Employer stated that it had considered the report on the membership and support check and acknowledged the outcome. The Employer then requested that there was an independent ballot undertaken due to the circumstances as set out in the Employer’s Response under section 111 ^{[footnote 1]}.

7. Considerations

22) 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.

23) 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 in that before the end of the first period of 10 working- days following the Employer’s receipt of the request for recognition, the Employer informed the Union that the Employer did not accept the request for recognition without indicating a willingness to negotiate. 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)

24) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit. In this case the membership and support check conducted by the Case Manger established that the density of membership within the proposed bargaining unit stands at density of 23.79%. This is above the threshold required by the Schedule and the Panel is satisfied that this test is met.

9. Paragraph 36(1)(b)

25) 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 Union as entitled to conduct collective bargaining on behalf of the bargaining unit. As evidence that this test is satisfied the Union relied upon its petition which, so the Case Manager’s report established, was supported by 56.27% of the workers in the proposed bargaining unit. The Employer, although given the opportunity to do so, did not challenge the findings of the report.

26) Having considered the matter the Panel is of the view that the evidence provided by the petition is a legitimate indicator that a majority of the workers in the proposed bargaining unit would be likely to support recognition of the Union and on that basis, the test set out in paragraph 36(1)(b) is therefore met.

10. Decision

27) For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Kenny Miller, Chairman of the Panel

Mr Alistair Paton

Ms Fiona Wilson

14 September 2018

1. Question 11 asks an employer to give reasons if it does not consider that a majority of the workers in the bargaining unit are likely to support recognition. In this case the Employer claimed that it had not had the opportunity to canvas opinion as the Union had not engaged it on the question of recognition. ↩