Decision

Acceptance Decision

Updated 10 July 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1304/2023

22 March 2023

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:

Unite the Union

and

Comic Enterprises Limited

1. Introduction

1) Union the Union (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 13 February 2023 that it should be recognised for collective bargaining purposes by Comic Enterprises Limited (the Employer) in respect of a bargaining unit comprising “All of the workers employed by Comic Enterprises Ltd at The Glee Club Cardiff excluding the Venue Manager”. The location of the bargaining unit was given as “The Glee Club, Mermaid Quay, Cardiff, CF10 5BZ.” The application was received by the CAC on 13 February 2023 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 20 February 2023 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, Mr David Cadger and Mr Paul Moloney. The Case Manager appointed to support the Panel was Kaniza Bibi, but for the purposes of this decision the Case Manager was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 27 February 2023. The acceptance period was extended on three further occasions in order to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the comments before arriving at a decision. The final extension ends the acceptance period on 24 March 2023.

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 a formal request letter to the Employer on 18 January 2023. The Employer responded by letter dated 31 January 2023, in which it declined the Union’s request. A copy of the Union’s request letter and the Employer’s response to that request were 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 left this blank. 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 130, and there were 29 workers in the proposed bargaining unit, of whom 21 were members of the Union. The Union did not comment when asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining.

8) When asked for its reasons for selecting its proposed bargaining unit, the Union said “We want to have recognition in Cardiff Glee as that’s where our members are.” In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. The Union also 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 stated that it had copied its application and supporting documents to the Employer on 13 February 2023.

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 18 January 2023. The Employer explained that by letter dated 31 January 2023 it had refused the Union’s request. A copy of the Employer’s letter dated 31 January 2023 was attached to its response.

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 18 January 2023. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union, nor did it now agree with the proposed bargaining unit.

12) The Employer stated that, following receipt of the Union’s request it had not proposed that Acas be requested to assist.

13) The Employer said that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application, and that it believed the figure was 41. When asked whether there was an existing agreement for recognition in force covering workers in the proposed bargaining unit, the Employer said “No”.

14) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated it did not have any information on the level of Union membership, other than the number provided within the Union’s application. The Employer therefore believed that a membership check was required to verify the Union’s claims.

15) When invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition the Employer said that this was a matter for the Union to prove, with evidence that a majority of the workers support recognition. The Employer maintained that the Union had failed to respond to this question within its application and that this further demonstrated the Union’s lack of such evidence. The Employer said that it considered the Union’s application was therefore inadmissible. The Employer said that a number of staff who it believed were union members, had stated that they would not support recognition. Furthermore, it was made clear by staff that they did not understand what collective bargaining was, or what recognition meant, and therefore it was not possible to evidence genuine support for trade union recognition and the consequences.

16) Finally, the Employer answered “N/A” when asked both whether a previous application had been made by the Union under the Schedule in respect of this or a similar bargaining unit, and whether it received any other applications in respect of workers in the proposed bargaining unit.

5. The membership and support check

17) To assist in 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 February 2023 from the Case Manager to both parties.

18) The information requested from the Union was received on 27 February 2023 and from the Employer on 1 March 2023. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

19) The list supplied by the Employer indicated that there were 42 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 22 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 20, a membership level of 47.62%.

20) The petition supplied by the Union contained 22 names and signatures, of which 21 were in the proposed bargaining unit, a figure that represents 50% of the proposed bargaining unit. Of those signatories, 17 were members of the Union (40.48% of the proposed bargaining unit) and 4 were non-members (9.52% of the proposed bargaining unit). The petition consisted of 2 A4 sheets, although only the first page contained signatures and the proposition. The first page of the petition was headed:

“Glee Club Cardiff

Unite the Union is asking your employer to recognise it for collective bargaining. We have to show the Central Arbitration Committee that a majority of workers favour our application. If you want your employer to recognise Unite for collective bargaining, please sign the petition. This petition and your personal details will be kept confidential by Unite the Union and will be shared with the Central Arbitration Committee only, who will use these to confidentially verify the level of support for our collective bargaining application. Your employer will not receive your details or a copy of this petition. The petition will be retained by Unite for the duration of the recognition campaign and any associated issues.

Unite the Union’s full up-to-date privacy policy can be found at www.unitetheunion.org/privacypolicy

I support recognition of Unite as entitled to conduct collective bargaining on pay, hours and holidays:”

Each signatory to the petition was asked for their name, job title, signature, and date. The signatures on the petition were dated between the 17 January 2023 and 25 January 2023.

21) A report of the result of the membership and support check was circulated to the Panel and the parties on 6 March 2023 and the parties were invited to comment on the results of that check by close of business on 10 March 2023.

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

22) In an e-mail to the CAC, dated 9 March 2023, the Union stated that it was concerned that the figures provided by the Employer may not be accurate, and that the number of workers that the Union had claimed to be in the bargaining unit had been inflated in an effort to undermine the Union’s position in relation to its application for recognition.

23) The Union said that it did not believe that there were 42 workers in its proposed bargaining unit. The Union said that its members were clear that the Employer did not engage that number of workers to run the venue. The Union believed that the Employer had included up to 4 workers who had recently been engaged on trial shifts and not returned, as well as workers who had left employment (up to 5 or 6), and 4 workers from Head Office, who had recently worked to cover for the venue manager. The Union explained that depending on how busy they were, the venue ran with approximately 4 to 20 workers on a shift. The Union said that in the Employer’s initial response to the CAC, it had stated that were 41 workers in the bargaining unit, but then subsequently provided the CAC with a list of 42 names. The Union said that it was not aware of any explanation for this discrepancy. The Union offered to provide to the CAC, on a confidential basis, a list of the workers who had left, or who were actually engaged to work in the Head Office.

24) The Union explained further that on 6 March 2023 it had recently checked the probable maximum number of workers in the bargaining unit and found that it was likely that there were no more than 35 workers, or 39 if those on trial shifts were included. It was the Union’s view that even it was considered that there were 39, or even 41 workers in the bargaining unit, then a clear majority were in favour of recognition. The Union maintained that it did however believe that the actual number of workers in the bargaining unit was significantly lower than the Employer was claiming.

25) In an e-mail to the CAC dated 10 March 2023 the Employer stated that it did not wish to comment on the report.

7. Considerations

26) 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.

27) 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.

8. Paragraph 36(1)(a)

28). 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 17 - 19 above) showed that 47.62% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 18 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)

29) 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 20 above, the level of union membership within the bargaining unit stands at 47.62%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition. No such evidence to the contrary was received in this case.

30) The Panel would have been prepared to decide, on the balance of probabilities, that a majority of the workers in the proposed bargaining unit would be likely to support recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit on the basis of the level of union membership alone. The Panel also notes that the support check conducted by the Case Manager showed that 50% of workers in the proposed bargaining unit (22 out of 42 workers) had signed a petition in favour of recognition (see paragraph 20 above). Of those who had signed the petition 17 were Union members (40.48% of the proposed bargaining unit) and 4 were non-members (9.52% of the proposed bargaining unit). As stated above, the Panel takes the view that members of the Union would more than likely favour recognition of the Union and, if the number of non-members that had signed the Union’s petition were added to this number, it would result in a total of 57.14% in the Union’s favour.

31) It is for this reason that 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.

32) Finally, the Panel notes the Union’s concerns, set out in paragraphs 22 - 24 above, that the figure of 42 given by the Employer included workers who do not fall within the description of its proposed bargaining unit. However, in view of the Panel’s decision that the admissibility criteria have been met, the Panel has not found it necessary to investigate the Union’s concerns for the purposes of this decision. However, this does not preclude the Panel from undertaking further investigations at a later stage of the process should it consider this to be appropriate.

10. Decision

33) For the reasons given in paragraphs 27 - 32 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mrs Lisa Gettins, Panel Chair

Mr David Cadger

Mr Paul Moloney

22 March 2023