Decision

Recognition Decision

Updated 1 October 2019

Case Number: TUR1/1132 (2019)

01 October 2019

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

UNISON

and

PossAbilities C.I.C.

1. Introduction

1) UNISON (the Union) submitted an application to the CAC dated 12 August 2019 that it should be recognised for collective bargaining by PossAbilities C.I.C. (the Employer) in respect of a bargaining unit comprising “All staff working for PossAbilities on the Stockport Council-commissioned learning disabilities contract”. The application was received by the CAC on 12 August 2019 and the CAC gave both parties notice of receipt of the application on that day. The Employer submitted a response to the CAC on 19 August 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, Chair of the Panel, and, as Members, Mr Tom Keeney and Ms Fiona Wilson. The Case Manager appointed to support the Panel was Linda Lehan but for the purpose of this decision was Kate Norgate.

3) By a decision dated 9 September 2018 the Panel accepted the Union’s application. In its response to the Union’s application the Employer confirmed that it agreed the Union’s proposed bargaining unit.

2. Issues

4) Paragraph 22 of Schedule A1 to the Act (the Schedule) provides that if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies. Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled. The three qualifying conditions are:

(a) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(b) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

(c) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf. Paragraph 22(5) states that “membership evidence” is (a) evidence about the circumstances in which union members became members, or (b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

5) A check conducted by the Case Manager of the level of Union membership in the agreed bargaining unit prior to the application being accepted, the result of which was reported to the Panel and parties on 28 August 2019, showed that 60 of the 91 workers in that unit were Union members, a membership level of 65.93%.^{[footnote 1]} In a letter to the parties dated 9 September 2019 the Case Manager informed them that the Panel was satisfied that a majority of workers in the agreed bargaining unit were members of the Union and invited the Employer to make submissions on the qualifying conditions set out in paragraph 4 above by 13 September 2019.

3. Summary of the Employer’s submissions on the qualifying conditions

6) In an email to the Case Manager dated 13 September 2019 the Employer stated that it had been out to staff to ask them if they would like the opportunity to consider being represented by the Staff Advisory Group as an alternative to collective representation from the Union. The Employer stated that of the 85 staff it had only had the opportunity to contact those it could who were in work on shift and that there were a reasonable number of staff who were on holiday, sick, or not on shift who it had not been able to contact. The Employer said that from those spoken to, 20 people had signed to say they would like the opportunity to understand more about being represented by a Staff Advisory Group as an alternative to the Union and would therefore like time to learn more and then have a ballot. The Employer said that it was concerned that without a ballot more staff were not going to have the opportunity to ask questions about a form of representation that they had not known before and that they may wish to be represented in this alternative way.

7) The Employer said that it was also concerned that, without permission, unknown Union representatives had been visiting vulnerable adults’ homes requesting to speak to staff and instructing them to not sign anything. The Employer said that this was totally unacceptable; an extremely serious breach of data protection; and a possible safeguarding issue, which it had raised with the local authority to investigate.

8) The Employer said that all it was requesting was that a ballot was granted so that all staff could have their say. The Employer said that some staff had admitted that the Union had had a push on recruitment over the last few weeks, stating that the Employer would be changing terms and conditions, when it had never changed anyone’s terms and conditions in the five years it had been in existence; it had TUPE’d in many different contracts with all number of terms and conditions and had not changed any.. The Employer said that it went to lengths to reassure staff and the Union that it had no such intention. The Employer said that it worked hard to look after its staff in a very challenging Social Care environment, hence having an Outstanding CQC rating with an outstanding in well led, which only 1% of Social Care organisations achieved.

4. Summary of the Union’s submissions on the qualifying conditions

9) In a letter dated 17 September 2019 the Case Manager copied the Employer’s response to the Union and invited the Union to comment on the points made by the Employer by 19 September 2019.

10) In an email to the Case Manager dated 18 September 2019 the Union stated that it did not believe that a ballot of staff was necessary. The Union stated that the CAC had already established that the majority of staff within the bargaining unit were members of the Union and that a fundamental expectation of trade union membership was that workers were covered by collective bargaining. The Union said that an Open Letter supporting trade union recognition had also been signed by the majority of employees in the bargaining unit. Referring to the Employer’s submission that 20 people had signed to say that they would like the opportunity to understand more about being represented by a Staff Advisory Group as an alternative to the Union, the Union said that this number was less than 25% of the bargaining unit and therefore did not satisfy the test under paragraph 22(4) of the Schedule that a “significant number of the Union members within the bargaining unit … do not want the Union to conduct collective bargaining on their behalf”. The Union also said that paragraph 22(4) did not include non-members employed within the bargaining unit and that it was not clear from the information provided by the Employer whether the 20 staff were Union members or not. The Union submitted that copies of signatures had seemingly not been provided to allow support to be verified or to check whether they were Union members and that the failure to substantiate this claim seriously undermined the credibility of the Employer’s submission. The Union also submitted that a willingness to know more about a Staff Advisory Group did not imply that these workers would actually oppose trade union recognition and therefore should not be taken as evidence to demonstrate this.

11) The Union disputed the Employer’s statement that it had not changed workers’ terms and conditions and said that this had not been the Union’s experience. The Union said that on the Stockport learning disabilities contract the Employer had already taken steps to remove an Attendance Bonus worth up to £600 per annum to staff and that elsewhere in the North West it had also taken steps to cut sleep-in payments. The Union said that these attacks on terms and conditions had been successfully defended by the Union and its members so far. The Union said that the Employer’s actions and the Union’s concerted response further highlighted the need for a formal recognition agreement and suitable bargaining arrangements so disputes such as those could be resolved by following an agreed bargaining process. The Union submitted that such a formalised approach was in its view the one that best served the interests of good industrial relations.

12) Referring to the Employer’s claim that its representatives had been visiting vulnerable adults’ homes requesting to speak to staff instructing them to not sign anything, the Union stated that it conducted visits to its members’ workplaces. The Union said that it had been conducting legitimate visits to its members but, in the spirit of wanting to build a constructive relationship with the Employer, the Union stopped these visits as soon as the Employer raised concerns with the Union’s Regional Organiser. The Union said that it wished to place on record that it did not instruct staff not to sign anything.

13) The Union submitted that for the reasons outlined above it believed that a ballot was unnecessary because it had already been evidenced that a majority of the bargaining unit and a majority of Union members wished the union to be recognised for collective bargaining purposes. The Union said that it believed that holding a ballot in the face of overwhelming evidence in support of collective bargaining would be divisive and contrary to good industrial relations. The Union said that it considered that in light of the overwhelming support it had, a more appropriate and proportionate course of action would be for the Panel to now declare the Union to be recognised and, if necessary, for the CAC to then provide assistance to the parties in agreeing suitable arrangements for collective bargaining for the future.

5. Considerations

14) As set out in paragraph 4 above, the Act requires the Panel to consider whether it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Union, it must then decide if any of the three conditions in paragraph 22(4) is fulfilled. If the Panel considers that any of them is fulfilled it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

15) As set out in paragraph 5 above, the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Union. The Panel understands the strong desire of the Employer that a ballot should be held but paragraph 22(2) of the Schedule requires the CAC to issue a declaration that the Union is recognised where it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union unless any of the three qualifying conditions set out in paragraph 22(4) is fulfilled. The Panel has considered carefully the submission of both parties and all the evidence in reaching its decision as to whether any of the qualifying conditions is fulfilled.

16) The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Panel has considered the arguments put forward by both parties and has come to the view that it is not satisfied that a ballot should be held in the interests of good industrial relations. The Panel is therefore satisfied that this condition does not apply.

17) The second condition is that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union to conduct collective bargaining on their behalf. The Panel has no such evidence before it. The Panel notes the Employer’s evidence that 20 individuals had signed to indicate that they would like the opportunity to understand more about being represented by a Staff Advisory Group as an alternative to the Union. The Panel did not receive any documentary evidence, either directly from the individuals concerned or from the Employer, to substantiate this claim; moreover, there is no evidence before the Panel that any of the individuals referred to by the Employer are Union members. In the absence of any such evidence the Panel has not been required to decide whether, in any event, a statement of this nature necessarily means that the individuals concerned do not want the Union to conduct collective bargaining on their behalf. The Panel is satisfied that this condition does not apply.

18) The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union to conduct collective bargaining on their behalf. The Panel does not consider that such membership evidence has been produced. The Panel is therefore satisfied that this condition does not apply.

19) The Panel notes the dispute between the parties about whether the Employer had attempted to change terms and conditions of employment in the bargaining unit in question or in other workplaces. The Panel has not sought any further evidence in this regard; does not regard it as relevant to the issues it is required to decide; has made no finding on this matter; and it has played no part in its decision.

6. Declaration of recognition

20) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that a majority of the workers constituting the bargaining unit are members of the Union. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule are met. Pursuant to paragraph 22(2) of the Schedule, the CAC must issue a declaration that the Union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising “All staff working for PossAbilities on the Stockport Council-commissioned learning disabilities contract”.

Panel

Professor Gillian Morris, Chair of the Panel

Mr Tom Keeney

Ms Fiona Wilson

01 October 2019

1. See decision dated 9 September 2019, paragraphs 17-18. ↩