Decision

Recognition Decision

Updated 21 May 2019

Case Number: TUR1/1100/2019

21 May 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:

Unite the Union

and

Emirates

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 3 April 2019 that it should be recognised for collective bargaining purposes by Emirates (the Employer) in respect of a bargaining unit comprising “Operational services staff employed at Gatwick Airport specifically including Duty Officers, Supervisors, Ticket Desk Agents, Senior Airport Agents, Airport Agents and specifically excluding Airport Services Manager.” The location of the bargaining unit was given as “Gatwick Airport, Horley, Gatwick RH6 0NP”. The application was received by the CAC on 9 April 2019 and the CAC gave both parties notice of receipt of the application on 9 April 2019. The Employer submitted a response to the CAC dated 15 April 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, Panel Chair, and, as Members, Mr Mike Cann and Mr David Coats. The Case Manager appointed to support the Panel was Kate Norgate.

3) By a decision dated 7 May 2019 the Panel accepted the Union’s application. In its response to the Union’s application the Employer agreed that the Union’s proposed bargaining unit was an appropriate 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:

(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) provides that “membership evidence” for these purposes 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) In a letter to the parties dated 7 May 2019 the parties were informed by the CAC that the Panel was satisfied that a majority of the workers constituting the bargaining unit were members of the Union for the purposes of paragraph 22(1) of the Schedule.^{[footnote 1]} The Employer was invited to make submissions on the qualifying conditions set out in paragraph 4 above.

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

6) In a letter to the Case Manager dated 10 May 2019 the Employer stated that it believed the first qualifying condition applied and that a ballot should be held in the interests of good industrial relations. The Employer said that it had noted that a petition had apparently been signed by a significant number of staff in the bargaining unit but that it had not had sight of that petition and had no certainty about the characteristics of the process under which the Union had obtained signatures to it. The Employer said that, in furtherance of its duty of care towards its employees, it believed that it was of the upmost importance that a process entirely free from any form of peer pressure was conducted. The Employer said that, as far as it could determine, the petition was circulated as a single document upon which its employees’ signatures were sought and that, due to the public nature of the petition, any employee who declined to sign would immediately be identified by the Union and fellow employees. The Employer submitted that, by contrast, a ballot would be conducted in secret with employees able to reach a private and independent decision without any form of peer pressure influencing the outcome.

7) The Employer stated that it remained committed to establishing an effective staff forum with a wider remit than compulsory recognition, which was limited to pay, hours and holidays. The Employer said that the proposed forum would also cover topics such as business updates, manpower planning, day-to-day operational issues, company policies and procedures, non-contractual benefits, and other matters not covered by compulsory recognition. The Employer said that it intended, if a ballot were ordered, to draw these factors to the attention of staff and to assure them that the staff forum would be a responsive, dynamic and effective body attended by senior management on a quarterly basis. The Employer said that it genuinely believed that a staff forum would be of greater benefit to its employees than union recognition. The Employer submitted that a secret ballot would enable staff to make a choice between the two alternatives free from any peer pressure.

4. Summary of the Union’s comments on the Employer’s submissions

8) The Union was invited to comment on the Employer’s submissions summarised in paragraphs 6 and 7 above. In a letter to the Case Manager dated 14 May 2019 the Union said that it disagreed with the Employer’s submissions that a ballot should be held in the interests of good industrial relations. The Union gave four reasons for this. First, the Union stated that the vast majority of the workforce had recently joined the Union for the purpose of winning. collective bargaining. Second, the Union stated that the workforce had demonstrated its desire for collective bargaining through a collective petition, which the Union believed was standard practice in the CAC process. Third, the Union stated that within the last 24 hours it had been provided with e-mail evidence that there had been no peer pressure. The Union stated that, since sharing the Employer’s views with its members, it had received 18 e-mails from individuals within the bargaining unit using either their work or private e-mail addresses, which included their full names, and that 100% of them had stated their preference for collective bargaining and not a staff forum. The Union stated that it believed that the e-mails addressed the Employer’s concerns about peer pressure; the characteristics of the process; individuals being identified; and a private and independent decision, and that those e-mails could be provided to the CAC on a confidential basis. Fourth the Union said that it had new evidence to suggest that the Employer’s stance was damaging employee relations. The Union stated that a significant number of the e-mails referred to above expressed disappointment in the Employer. The Union said that it was now in receipt of an e-mail sent to the Employer on 21 March 2019 from the workforce collectively (signed “Emirates LGW Team”) in which they placed on record that they did not agree to a staff forum and that their preferred option was collective discussion through the Union. The Union also referred to a further e-mail sent on 4 April 2019 in which the “London Gatwick Team” had again informed the Employer that it did not wish to pursue the avenue of a staff forum and would continue with its request for collective recognition.

9) The Union concluded by stating that, taking all of the above into account, it hoped that the Panel would conclude that the workforce had clearly and repeatedly expressed their wishes to be represented by the Union for the purposes of collective bargaining rather than the formation of a staff council. The Union stated that it believed that a ballot would be damaging to employment relations.

5. Considerations

10) 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.

11) The membership check issued by the Case Manager on 25 April 2019, described in paragraphs 16-19 of the acceptance decision dated 7 May 2019, showed that 95.45% of the workers in the bargaining unit were members of the Union. The Panel is satisfied that this check was conducted properly and impartially and is satisfied that a majority of the workers in the bargaining unit are members of the Union.

12) The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision as to whether any of the qualifying conditions laid down in paragraph 22(4) of the Schedule is fulfilled.

13) 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 submissions put forward by both parties and is not satisfied that a ballot should be held in the interests of good industrial relations. The Panel notes the Employer’s submission that workers could have been subject to peer pressure in relation to the Union’s petition in support of recognition. ^{[footnote 2]} However the Employer did not submit any evidence to substantiate this assertion nor is there any evidence to this effect before the Panel from any other source. The Panel also notes that 21 of the 22 workers in the bargaining unit (95.45%) are members of the Union, a factor which, in the absence of evidence to the contrary, does not suggest that a ballot would be in the interests of good industrial relations. The Panel notes the Employer’s submission that workers in the bargaining unit should have the opportunity to choose between the options of recognition and a staff forum with a remit beyond that of pay, hours and holidays. The Panel observes that recognition under the Schedule does not preclude an employer from voluntarily recognising a union for a wider range of matters than pay, hours and holidays nor does it preclude the operation of a staff forum covering matters outside the scope of recognition if the parties wish to participate in such a body.

14) 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. No such evidence has been produced and the Panel is satisfied that this condition does not apply.

15) 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 is satisfied that this condition does not apply.

6. Declaration of recognition

16) 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 “Operational services staff employed at Gatwick Airport specifically including Duty Officers, Supervisors, Ticket Desk Agents, Senior Airport Agents, Airport Agents and specifically excluding Airport Services Manager”.

Panel

Professor Gillian Morris, Panel Chair

Mr Mike Cann

Mr David Coats

21 May 2019

1. The Panel’s conclusion was based on a membership check contained in a report by the Case Manager dated 25 April 2019 which showed that 21 of the 22 workers in the bargaining unit, representing a membership level of 95.45%, were members of the Union: see acceptance decision of 7 May 2019 paragraphs 16-19. ↩

2. The Case Manager’s report of 25 April 2019 had been signed by 21 of the 22 workers in the bargaining unit (95.45%) of whom 20 were members of the Union and one was a non-member: acceptance decision of 7 May 2019 paragraph 20. ↩