Decision

Recognition Decision

Updated 28 October 2020

Case Number: TUR1/1187 (2020)

28 October 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

Unite the Union

and

Charity Projects (acting as Comic Relief)

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 30 July 2020 that it should be recognised for collective bargaining by Charity Projects (acting as Comic Relief) (the Employer) for a bargaining unit comprising “Employees within the below pay grades: Director/Head of, Head of, Senior Manager/Manager, Manager/Senior Associate, Associate, Admin & Support/Entry Level. The application was received by the CAC on 31 July 2020. The CAC gave both parties notice of receipt of the application on 31 July 2020. The Employer submitted a response to the CAC dated 8 August 2020, 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 Mrs Lisa Gettins, Panel Chair, and, as Members, Miss Mary Canavan and Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Linda Lehan.

3) By a decision dated 21 August 2020, the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. In emails dated 14 and 15 October 2020 parties confirmed that the bargaining unit had been agreed as that proposed by the Union in their application. As the bargaining unit was agreed by the parties, the Panel instructed the Case Manager to ascertain whether the Union claimed that it had a majority of the workers in the bargaining unit as its members and should therefore be granted recognition without a ballot and, if it did so claim, to seek submissions from the Employer on whether or not a ballot should be held.

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 b bargaining unit are members of the union if any of these qualifying conditions is fulfilled. The three qualifying conditions are:

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

(ii) 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;

(iii) 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.

3. The Union’s claim to majority membership

5) In a letter dated 18 September 2020 the Union was asked by the CAC if it claimed majority membership within the bargaining unit, and if so, whether it submitted that it should be recognised without a ballot. By an email dated 18 September 2020 the Union confirmed that it was claiming that it had majority membership within the bargaining unit and this letter was copied to the Employer asking for their comments on the qualify conditions.

6) In a letter dated 23rd September 2020 the Employer stated that they wished to make a submission on the Union’s claim that they had over 50% membership and request a current membership count in the hope that in so doing the CAC would require a staff ballot to be held. The Employer stated that some of the staff body engaged with Unite during a period of high unrest owing to a restructure which was to see the loss of 60 posts from the organisation. The Employer said that although they had a fully functioning staff representative group in place for collective consultation, a high proportion of staff joined Unite. The Employer stated that during this period it became aware that the Union was to ballot its members on the issuing of a press release on the matter of the restructure which the Employer claimed was factually inaccurate and defamatory and the Employer said that it was aware that, in order to influence a ‘no’ vote, several staff had joined the Union purely to participate in the vote and had since left the Union.

7) The Employer stated that it was concerned that Unite no longer had the 50% membership required for automatic recognition and would be grateful if the CAC would consider a revised membership check and hold a staff ballot. The Employer stated that the first membership check took place prior to 31 August 2020 which was when 43 staff left the organisation and believed most to be Union members. The Employer stated that it wanted to ensure that the union they recognised was one that the majority of staff were comfortable with, particularly as they were aware how worried many people were about the tactics and approach of Unite that they had recently seen.

8) In a letter dated 29 September the Union was asked for their comments on the specific point made by the Employer that a further membership and support check should be conducted in view of claimed workforce changes. In an email dated 1 October 2020 the Union stated that the Employer had suggested that most of the 43 staff members that left the organisation were union members but failed to provide any evidence to support that claim. The Union stated that membership at the charity remained over 50% and more staff members were joining on a weekly basis, facts that they said they had confirmed to Comic Relief Management.

9) The Union stated that the Employer had claimed that several staff joined Unite to effect a ‘no’ vote regarding a press release who had since left the union and again the Employer had not produced any evidence of this.

10) The Union stated that the Employer had had the opportunity to challenge the recognition process previously and no evidence was provided to support a view that the majority of staff members would be against recognition. The Union said that the Employer was now claiming that it was aware how worried many people were about the tactics and approach of Unite that they had recently seen but the SRG group, who act as a staff committee group within Comic Relief, had confirmed in writing that no concerns had been raised with them in relation to Unite recognition.

11) The Union stated that it had over 50% membership across the bargaining unit and proven support from staff members, some of them not union members, and would like to request that the recognition process goes ahead and automatic recognition be granted without the need for a further membership check and/or ballot to take place.

12) The Panel decided that in this case, as it was not disputed that people had left since the last membership check was conducted it would be appropriate to decide whether it was satisfied that a majority of the workers constituting the bargaining unit were members of the Union.

4. The Membership Check

13) To assist in deciding whether it was satisfied that a majority of the workers constituting the bargaining unit were members of the Union the Panel proposed an independent check of the level of union membership in the bargaining unit. The information required for the purposes of the check was received by the CAC from the Union on 6 October 2020 and from the Employer on 6 October 2020. 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 from the Case Manager to both parties dated 5 October 2020. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

14) The list supplied by the Employer indicated that there were 176 workers in the bargaining unit. The list of members supplied by the Unions contained 94 names. According to the Case Manager’s report the number of members of the Union in the bargaining unit was 91, a membership level of 51.70%.

15) A report of the result of the membership check was circulated to the Panel and the parties on 7 October 2020 and the Employer was invited to make submissions on the three qualifying conditions specified in paragraph 22(4) of the Schedule by noon on 12 October 2020 should it wish to make any such submissions. No submissions on the qualifying conditions were received from the Employer by that time.

5. Considerations

16) The Act requires the Panel to consider whether it is satisfied that the majority of the workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that the 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.

17) The membership check conducted by the Case Manager, described in paragraphs 13 and 14 above, showed that 91 (51.70%) of the 176 workers in the bargaining unit were members of the Union. As stated in paragraph 13 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. Accordingly the Panel is satisfied that the majority of the workers in the bargaining unit are members of the Union.

18) The Panel has considered carefully whether any of the qualifying conditions set out in paragraph 22(4) of the Schedule is fulfilled.

19) 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 not received any evidence that a ballot should be held in the interests of good industrial relations and is not satisfied that this condition is fulfilled.

20) 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 and the Panel has therefore concluded that this condition does not apply.

21) 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. No such evidence has been produced, and the Panel has therefore concluded that this condition does not apply.

6. Declaration of recognition

22) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that the 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 is fulfilled. Pursuant to paragraph 22(2) of the Schedule, the CAC must therefore 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 members employed directly by Comic Relief and based in 89 Albert Embankment. London, SE1 7TP belonging to the below Comic Relief Levels:

• Director/Head of

• Head of

• Senior Manager/ Manager

• Manager/ Senior Associate

• Associate

• Admin & Support/ Entry Level.”.

Panel

Mrs Lisa Gettins, Panel Chair

Miss Mary Canavan

Mr Paul Noon OBE

28 October 2020