Decision

Acceptance Decision

Updated 13 March 2025

Applies to England, Scotland and Wales

Case Number: TUR1/1451(2025)

13 March 2025

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

EMCOR UK

1. Introduction

1)         Unite (the Union) submitted an application to the CAC dated 7 February 2025 that it should be recognised for collective bargaining purposes by EMCOR UK (the Employer) for a bargaining unit comprising “all staff at the Headington Site working for EMCOR UK.” The location of the bargaining unit was given as “EMCOR Employees, Roosevelt Drive, Headington, Oxford, OX3 7FZ.” The application was received by the CAC on 7 February 2025 and the CAC gave both parties notice of receipt of the application on 10 February 2025.  The Employer submitted a response to the CAC dated 14 February 2025 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 Chair established a Panel to deal with the case.  The Panel consisted of  Mr Rohan Pirani, Panel Chair, and, as Members, Mr David Cadger and Mr Steve Gillan. The Case Manager appointed to support the Panel was Joanne Curtis.

3)          The CAC Panel has extended the acceptance period in this case.  The initial period expired on 21 February 2025.  The acceptance period was extended to 13 March 2025 in order to allow time for the parties to comment on the results of a membership check and for the Panel to consider said 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 10 September 2024 and 18 August 2023. The Union said that the Employer declined the request for voluntary recognition on 8 August 2023, “explaining that the number of union members at the site did not meet the statutory criteria and offering to engage in further discussions. EMCOR UK considered the union’s application premature, as negotiations were still within the protected period under TULRCA.”^{[footnote 1]} The Union attached a copy of its request dated 10 September 2024 together with correspondence thereafter between the parties and Acas.

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, “yes, withdrawn as both parties agreed to negotiate with ACAS.” The Union stated that, following receipt of the request for recognition, the Employer proposed that Acas should be requested to assist the parties, and the Union had agreed to this. The Union gave the details of the Acas contact.

7)         The Union stated that the total number of workers employed by the Employer was 3000. The Union stated that there were “20 +” workers in the proposed bargaining unit and that the Employer did not agree with this figure. When asked to state the number of union members in the proposed bargaining unit and to provide evidence to support this figure the union answered, “supplied to ACAS confidentially.”

8)         The Union stated that the reason for selecting the proposed bargaining unit was because the Union had members in all areas. The Union said 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 did not state the date on which it had copied its application and supporting documents to the Employer.

4. Summary of the Employer’s response to the Union’s application

10)       The Employer said that it had received the Union’s written request for recognition on 10 September 2024. The Employer said that negotiations had taken place with the Union facilitated by Acas and that those negotiations had not yet concluded. The Employer said that it was open to continuing these discussions and attached emails dated 20 September 2024 and 30 September 2024 between the Employer and Acas. The Employer confirmed that it had received a copy of the Union’s application form from the Union on 7 February 2025. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit and that it did not agree the proposed bargaining unit. The Employer said that the letter from the Union dated 10 September 2024 identified the proposed bargaining unit as “all staff at the Headington site, Oxford.” The application dated 7 February 2025 identified the bargaining unit as “all staff at the Headington site working for EMCOR UK.” The Employer said that the bargaining unit identified in the application form dated 7 February 2025 was not identical to that in the letter dated 10 September 2024 and therefore should be rejected. The Employer went on to say that it did not believe the Union had properly excluded the management team from the proposed bargaining unit and it was not clear as to what the bargaining unit was or the numbers within the bargaining unit.

11)       The Employer said that there were presently 23 employees “engaged by EMCOR UK at the Oxford University site inclusive of management staff.” 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 “entry 9 of the Union’s application dated 7 February 2025 identifies the number of workers in the bargaining unit as 20+. We remain unclear as to whom the Union intend to form part of the bargaining unit. The Union having failed to provide an accurate number as to the proposed bargaining unit. The application should be rejected on that basis.” The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit. In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer said that the Union had provided no indication of the number of Union members in the proposed bargaining unit nor had it provided any evidence in support.

12)       When asked 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 answered “although the bargaining unit has not yet been properly defined in accordance with the statutory process, we remain of the view that the majority of workers in the proposed bargaining unit are unlikely to favour recognition.” The Employer continued by saying that its workers had the ability to feedback and make requests to their managers and that there had been no request made by any worker for trade union recognition. The Employer explained “the company carries out an annual Voice Survey, in which members of staff are able to raise any concerns or grievances there has been no mention or request for union recognition as part of that survey. In addition, Employees are actively engaged with by members of the management team and HR support. Even as recent as a site visit on Thursday 30 January 2025, no request nor any mention of union recognition was made by any of the Employees of EMCOR based at the Oxford University site. We have no evidence of any support for trade union recognition at the Oxford University site. We have not been given or been made aware of any evidence in support of trade union recognition by either the Union or any employee of EMCOR.”

13)       The Employer answered “yes” 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 said “applications have been made dated 18 August 2023 (withdrawn 5 September 2023) and 5 June 2024 (withdrawn 18 June 2024). The identity of the proposed bargaining unit varied in each application made.” The Employer answered “N/A” when asked if it had received any other applications in respect of workers in the proposed bargaining unit. The Employer said that it consented to its contact details being forwarded to Acas and that Acas had already been involved.

5. The Union’s comments on the Employer’s response

14)       In an email dated 20 February 2025 the Union said that membership of the bargaining unit covered all employees at the Headington site. The Union said that the Employer wished to exclude Union members as it claimed they were managers; “this was not true as they were supervisors and clerical staff who wished to be part of the bargaining unit.  Senior managers are not employed at the Headington Site.” The Union said it had been informed by Acas that the last communication from the Employer was on 29 November 2024. The Union said it wrote to the Employer on 24 January 2025 requesting an update by 31 January 2025 and despite the letter being acknowledged no response was received. The Union explained that previous applications had been made to the CAC and later withdrawn as the Employer had agreed to negotiate with both the Union and Acas to reach a voluntary recognition agreement. The Union said that it submitted two draft recognition agreements to the Employer but did not receive any feedback on them. The Union said that due to the lack of communication it was once again compelled to initiate the statutory recognition process.

15)       The Union said “we have informed the employer on several occasions that the members at the Headington Site wish for Unite to represent them in matters related to pay and terms and conditions. To support this, we conducted a petition, among the members and employees at the site, which we shared with ACAS as well as the up-to-date membership list. We have identified that there are more than 20 employees at the Headington site, the employer confirmed that there is 23, the Unite petition shown there were 19 employees that wished for Unite to negotiate their PAY and Terms and conditions. All supporting documentation has been provided to ACAS confidentially including the membership list and the 2 petitions which were carried out.”

16)       The Union continued by saying “both members and non-members at the Headington site have consistently maintained regular communication with Unite over the past year, expressing their concerns and seeking recognition. For more than 12 months, employees have requested recognition to enable them to negotiate their terms and conditions, including pay, which has become increasingly important with the recent introduction of the Oxford weighting to address the area’s high cost of living. However, these requests have not been addressed by the employer, leading members to feel that the only way forward is to secure recognition through formal support.” The Union re iterated that it had repeatedly “reached out to the employer to negotiate a recognition agreement through ACAS, but the employer has failed to engage with both ACAS and Unite. Throughout this process, EMCOR representatives have expressed their willingness to enter into a voluntary recognition agreement with Unite, negotiated with ACAS. However, on each occasion, EMCOR has either delayed or neglected to move forward with the process.”

6. 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 a petition supplied 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) as well as a copy of its petition. 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 20 February 2025 from the Case Manager to both parties.

18)       The information requested from the Employer and the Union was received by the CAC on 26 February 2025. 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 23 workers in the Union’s proposed bargaining unit.  The list of members supplied by the Union contained 10 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 10 a membership level of 43.48%.

20)       The petition supplied by the Union contained 16 names. Of the 16 names 12 were in the proposed bargaining unit, a figure that represented 52.17% of the proposed bargaining unit. Of those 12 names, 8 were members of the Union (34.78% of the proposed bargaining unit) and 4 were non-members (17.39% of the proposed bargaining unit). The petition consisted of an excel spreadsheet. The Union explained that a QR code and link to the petition was sent out to “all staff at the EMCOR Headington site.” The statement was as follows:

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.

The responses were collated into a spreadsheet by the Union. The spreadsheet had 10 columns with the following headings: “First Name,” “Last Name,” “Mobile Phone,” “Email,” “Job Title,” “Workplace,” “Are you a member of Unite the Union? (if you are not a member you can join online at join.unitetheunion.org),” “Workplace Code,” “Job Code” and “Employer Code.” For all the 16 entries “Workplace Code”, “Job Code” and “Employer Code” were left blank. All other fields were completed.

21)       A report of the result of the membership and support check was circulated to the Panel and the parties on 26 February 2025 and the parties were invited to comment on the results of that check by noon on 5 March 2025.

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

22)       No comments were received from the parties following the membership and support check.

8. Considerations

23)       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. 

24)       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 12. Furthermore, 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 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraphs 36(1)(a) and paragraph 36(1)(b) are met.

Paragraph 36(1)(a)

25)       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. 

26)       The membership check conducted by the Case Manager (described in paragraphs 17 to 21 above) showed that 43.48% 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.

27)       For the reasons set out in paragraph 26 above the Panel has 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.

Paragraph 36(1)(b)

28)       Under paragraph 36(1) 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.

29)       The Union carried out a petition of those workers in the proposed bargaining unit. As described in paragraph 20 above, 52.17% of the proposed bargaining unit added their names to the petition. The Panel has not received any statements from those workers in the proposed bargaining unit who had added their names to the petition stating that they wished to withdraw their support.

30)       On the basis of the evidence before it, the Panel has decided that Union membership of 43.48% when taken with the percentage of non-members signing the petition (17.39%) shows that, on the balance of probabilities, 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.

9. Decision

31)       For the reasons given in paragraphs 23-30 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Rohan Pirani, Panel Chair

Mr David Cadger

Mr Steve Gillan

13 March 2025

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1. The reference to August 2023 relates to a previous application made to the CAC on 18 August 2023 by the Union which was subsequently withdrawn. A request for voluntary recognition was made by the Union on 1 August 2023. The Employer responded on 8 August declining the request but stated “in the spirit of co-operation EMCOR UK are willing to engage in further discussions with yourselves regarding your request for recognition to better understand the rationale behind your request and I look forward to further communication with you in regard to this.” ↩