Decision

Acceptance Decision

Updated 12 October 2018

Case Number: TUR1/1071/2018

12 October 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:

Unite the Union

and

dnata

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 17 September 2018 that it should be recognised for collective bargaining purposes by dnata (the Employer) for a bargaining unit described as: “Ground Handling (Ramp, Bag Hall and Front of House) and all other employees who carry out the same role but with different job titles employed at Manchester Airport”. The application was received by the CAC on 18 September 2018 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted a response to the CAC dated 24 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 Gillian Morris, Panel Chair, and, as Members, Mr Simon Faiers and Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 2 October 2018. The acceptance period was extended to 17 October 2018 to allow time for a membership and support check to be carried out, for the parties to comment on the subsequent report, 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 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 made a request for recognition to the Employer on 31 July 2018. The Union said that the Employer had rejected its request, believing that the Union’s application would be inadmissible and that its request was not in line with the will of the workforce based on a survey the Employer had carried out in 2017. A copy of the Union’s request letter was 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 answered “NO”. 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 approximately 1800 UK. The Union stated that there were approximately 280 workers in the proposed bargaining unit, of whom 70 were members of the Union. When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining the Union stated that it had more than 10% of the workforce in membership and a supportive petition which had been signed by a majority of the workforce, both Union members and non-members.

8) The Union stated that the reason for selecting the proposed bargaining unit was because Union members in the proposed bargaining unit had approached it regarding recognition as the Union was recognised for their colleagues who carried out the same roles elsewhere in the Employer. The Union stated that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the bargaining unit the Union answered “NO”.

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 17 September 2018.

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 31 July 2018. The Employer stated that it had declined the request in a letter to the Union dated 13 August 2018 and attached a copy of that letter to its response.

11) The Employer confirmed that it had received a copy of the Union’s application form on 18 September 2018. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union and that it did not agree the proposed bargaining unit. The Employer stated that the proposed bargaining unit lacked the necessary definition and clarity of job roles and sub departments within its Ground Handling organisation at Manchester. The Employer gave as an example of this lack of clarity the term, “front of house” which it said could cover differing roles depending on the organisation. The Employer stated that for the benefit of this exercise it would assume the term to mean “Customer Service”. The Employer also stated that the current proposed bargaining unit did not define the job level, but it assumed it to be up to and inclusive of Team Supervisors (non-management) roles. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

12) The Employer stated that there were 2331 workers across all its UK stations. The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as defined in the Union’s application and said that there were 190 workers in the proposed bargaining unit based on the assumptions set out in paragraph 11 above.

13) The Employer stated that there was an existing agreement for recognition in force covering workers in the proposed bargaining unit. The Employer stated that further investigation had shown that an existing agreement was in place dated 1 January 2009 as a result of a TUPE transfer of employees, including Customer Service Agents, to the Employer from Swissport on 1 November 2017. The Employer attached a copy of the collective agreement on which it relied to its response. The agreement was headed:

Recognition and Rights to Collective

Bargaining/Consultation and Information

Agreement

The agreement stated that it was made between Servisair (described by the Employer as the “originating point” of the agreement) and the GMB Commercial Services Section.

14) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated that it could not comment as it had “limited/minimal visibility of TU contributions”. 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 cited an independent survey undertaken in May 2017 and provided as feedback to the Union pursuant to a previous Union request for voluntary recognition for all the Employer’s business areas at Manchester Airport (Ground Handling & Cargo). The Employer enclosed a copy of a letter to the Union dated 13 September 2017 summarising the survey together with a copy of the survey results.

15) The Employer answered “No” 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. When asked if it had received any other applications in respect of workers in the proposed bargaining unit the Employer replied “N/A”

5. Summary of the Union’s comments on the Employer’s response

16) On 25 September 2018 the Case Manager wrote to the Union inviting it to comment on the Employer’s response, in particular on the Employer’s statement that there was an existing agreement for recognition in force and the Employer’s assumptions about the roles included within the proposed bargaining unit. In a letter to the Case Manager dated 1 October 2018 the Union stated that it could confirm that it was in agreement with the assumptions made by the Employer in relation to “front of house” in that it meant “Customer Services” including and going up to Team Supervisors.

17) The Union said that it did not agree with the Employer’s contention that there was an existing agreement for recognition in force. The Union attached to its letter a copy of an e-mail from the Employer to the Union dated 9 December 2016 in which the Employer (referring to Manchester Airport) said that it was a “non-unionised site”. The Union said that the first time it had known about the alleged existing agreement which the Employer stated it had now discovered “upon further investigation” was when it received the letter from the CAC. The Union stated that clearly the Employer itself did not know of the agreement’s existence until recently. The Union said that paragraph 35 of the Schedule required a recognition agreement to be “in force” at the relevant time and submitted that it was established law that a recognition agreement, once made, remained in force until it was terminated, suspended, repudiated, abandoned or otherwise became defunct : R (on the application of NUJ) v CAC [2005] EWCA Civ 1309. The Union stated that the GMB agreement which the Employer had provided failed to specify which categories of employees the agreement was proposed to cover or that it applied to its Manchester site and that the Employer’s response to the Union’s application had not clarified such matters. The Union submitted that the fact that this agreement had now seemingly been discovered, following the Union’s application to the CAC, demonstrated that the Employer had not in reality been involved in any actual negotiations with the GMB in accordance with that agreement and that the Employer did not suggest anything to the contrary in its response. The Union stated that it seemed to it that the provision of the agreement was either a sham (BECTU and City Screen Ltd TUR1/309/03, 10 December 2003, CAC) or that, even if it was once in use by the Employer, it had since withered on the vine and was no longer in force.

18) The Union stated that its petition of the Employer’s workforce was conducted earlier this year and was therefore much more contemporary than the Employer’s survey of May 2017.

6. The membership and support check

19) 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 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 the names and dates of birth of paid up members within that unit 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 and petition would not be copied to the other party. These arrangements were confirmed in a letter dated 2 October 2018 from the Case Manager to both parties.

20) The information from the Union was received by the CAC on 2 October 2018 and from the Employer on 3 October 2018. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

21) The list supplied by the Employer indicated that there were 190 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 59 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 53, a membership level of 27.89%.

22) The petition supplied by the Union contained 173 names and signatures, of which 60 were in the proposed bargaining unit, a figure that represents 31.58% of the proposed bargaining unit. Of those 60 signatories, 34 were members of the Union (17.89% of the proposed bargaining unit) and 26 were non-members (13.68% of the proposed bargaining unit).

23) The petition was set out as follows:

PETITION IN SUPPORT OF UNION RECOGNITION

(DNATA)

Unite the Union is asking your employer to recognise it for collective bargaining. We have to show the Central Arbitration Committee (CAC) that a majority of workers favour our application. If you want your employer to recognise Unite for collective bargaining, please sign the petition below.

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

PRINT NAME	JOB TITLE	SIGNATURE	DATE

In the column headed “date” the dates ranged from 7 February 2018 – 31 March 2018.

24) A report of the result of the membership and support check was circulated to the Panel and the parties on 3 October 2018 and the parties were invited to comment on the results and on any other aspect of the admissibility criteria by noon on 8 October 2018.

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

25) In a letter to the CAC dated 8 October 2018 the Employer stated that, based on the figures provided in the report, the proportion of union members in respect of the proposed bargaining unit appeared to be in excess of 10%.

26) The Employer stated that the report clearly demonstrated that the number of workers in the proposed bargaining unit who were likely to favour recognition of the Union fell far short of the majority that was required. The Employer noted that there were 113 individuals who had signed the Union’s petition who did not appear on the Employer’s list of 190 employees whom the Employer considered formed the proposed bargaining unit. The Employer stated that it considered that the reason for the discrepancy was that the Union had included employees from within the Cargo Team at Manchester Airport in its petition. The Employer said that this supposition was supported by the fact that the Union had stated in its application to the CAC that the number of workers in the bargaining unit was approximately 280. The Employer stated that, as the Union would have been fully aware, it was already recognised for collective bargaining within the Cargo Team and it was highly likely, therefore, that the majority of employees within that particular team would sign the petition in favour of extending the scope of recognition. The Employer stated that it was clear in such circumstances that the Union was seeking to demonstrate majority support for recognition by petitioning employees within a group where it was already recognised and had collective bargaining rights. The Employer stated that in such circumstances it did not consider that this was representative of the workers in the proposed bargaining unit. The Employer stated that if the cargo employees were excluded from the results of the petition, as provided for in the Case Manager’s report, the proportion of employees in support of recognition fell well short of a majority, an outcome which accorded with its own survey. The Employer said that this had been an independent survey undertaken across all employees (including cargo) the results of which showed that only 26% of the whole of the workforce were in favour of recognition. The Employer said that when the Cargo Team was extracted from this figure, support for recognition was even lower at under 17%.

27) The Employer responded to the Union’s submissions contained in its letter of 1 October 2018 to the CAC that there was no existing agreement for recognition in force (see paragraph 17 above). The Employer stated that the collective agreement between Servisair and the GMB dated 1 January 2009 transferred (together with the recognition of the GMB) under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) on 1 November 2017. The Employer stated that it had a legal obligation under TUPE to honour the terms of the collective agreement and to continue recognition of the GMB for the group of employees who transferred to it on 1 November 2017. The Employer said that the group transferred included Customer Service Agents who were within the proposed bargaining unit. The Employer said that the e-mail dated 9 December 2016 cited by the Union, which referred to Manchester Airport as a “non-unionised site”, was correct at the time it was written but that the TUPE transfer post-dated that e-mail and rendered it irrelevant. The Employer submitted that the collective agreement with the GMB was comprehensive and extensive and very much “in force”. The Employer said that there had been no agreement with the GMB to rescind or withdraw from the agreement, nor had there been any notice served to terminate the agreement by either the Employer or the GMB. The Employer also submitted that there was no requirement under paragraph 35 for the parties to a collective agreement to be actively engaged in collective bargaining. The Employer stated that it was clear from the evidence presented to the CAC that there was a collective agreement in force and the Employer considered that the GMB had a right under that collective agreement to engage in collective bargaining on behalf of the group of employees it represented. The Employer stated that it was clear that the collective agreement was not a sham arrangement but one which the Employer was obliged to honour under TUPE.

28) No comments on the report of the membership and support check or any other aspect of the admissibility criteria were received from the Union by the due deadline.

8. Considerations

29) 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.

30) 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, 34 and 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the application is inadmissible under paragraph 35 and whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

9. Paragraph 35

31) Under paragraph 35 of the Schedule an application is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any workers falling within the bargaining unit. The Panel notes the Employer’s submissions that there is such an agreement in force and those of the Union that there is not. In view of the Panel’s conclusions in relation to the admissibility criterion contained in paragraph 36(1)(b) (see paragraphs 35 and 36 below) the Panel has not found it necessary to consider whether or not the application is inadmissible under paragraph 35 and makes no findings in relation to this matter.

10. Paragraph 36(1)(a)

32) 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.

33) The membership check conducted by the Case Manager (described in paragraphs 19-21 above) showed that 27.89% of the workers were members of the Union. As stated in paragraph 20 above the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed 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.

11. Paragraph 36(1)(b)

34) 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.

35) The Panel notes that the support check conducted by the Case Manager showed that 31.58% of the workers in the proposed bargaining unit (60 out of 190 workers) had signed a petition in favour of recognition of the Union (see paragraphs 19-23 above). Of those who had signed the petition 34 were Union members (17.89% of the proposed bargaining unit) and 26 were non-members (13.68% of the proposed bargaining unit). The Panel also notes that the level of union membership in the proposed bargaining unit is 27.89% (see paragraph 33 above). 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 of the Union. No such evidence to the contrary was put forward in this case and the Panel is therefore content to assume for the purposes of this decision that members of the Union in the proposed bargaining unit favour recognition even though only 34 of those 60 members signed the Union’s petition. The Panel further notes that 26 non-members, 13.68% of the proposed bargaining unit, signed the Union’s petition. On this basis the Panel has evidence which indicates, on the balance of probabilities, that 41.57% of workers in the proposed bargaining unit are likely to favour recognition of the Union.

36) The Union did not respond to the invitation to comment on the results of the Case Manager’s membership and support check and the Panel has received no additional evidence, beyond the figures contained in the Case Manager’s report, from any other source. The Panel does not consider that the evidence before it is sufficient to enable it to conclude, on the balance of probabilities, 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 as required by paragraph 36(1)b) of the Schedule.

12. Decision

37) For the reasons given in paragraphs 35 and 36 above the Panel’s decision is that the application is not accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mr Simon Faiers

Mr Paul Noon OBE

12 October 2018