Decision

Acceptance Decision

Updated 12 July 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1406(2024)

11 July 2024

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

GIPSIL Ltd

1. Introduction

1)         Unite the Union (the Union) submitted an application to the CAC on 21 May 2024 that it should be recognised for collective bargaining by GIPSIL Ltd (the Employer) for a bargaining unit comprising “All Engage Leeds workers at GIPSIL (i.e. those with worker in their job title, meaning MG1 on the pay scale).”  The location of the bargaining unit was given as “1 Woodfield Court, Leeds, LS8 2NT.”  The CAC gave both parties notice of receipt of the application on 22 May 2024.  The Employer submitted a response to the CAC dated 29 May 2024 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 Mrs Sarah Havlin, Panel Chair, and, as Members, Mr Richard Fulham and Ms Janice Beards.  The Case Manager appointed to support the Panel was Kate Norgate.

3)         The CAC Panel has extended the acceptance period in this case.  The initial period expired on 5 May 2024.  The acceptance period was extended on two further occasions to allow time for a membership and support check to take place, for the parties to comment on the subsequent report, and for the Panel to consider those comments before arriving at a decision. The final extension ends the acceptance period on 11 July 2024.

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)         The Union had sent its formal request for recognition to the Employer on 12 April 2024.  By e-mail dated 17 April 2024 the Employer declined the Union’s request.  A copy of the Union’s letter and the Employer’s e-mail of 17 April 2024 were enclosed with the application.

6)         According to the Union, there was a total of 140 workers employed by the Employer with 10 of these falling within the proposed bargaining unit.  The Union stated that it had 5 members within the proposed bargaining unit.  Asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union said that it had a 50% unite membership, as well as one Unison and one GMB member, who were happy with the recognition agreement being formed with Unite and supportive of the principle of union recognition as per their union membership.  The Union said that 7 staff within the bargaining unit had signed a petition in support of trade union recognition, demonstrating at least 70% support for union recognition. 

7)         When asked to give its reasons for selecting the proposed bargaining unit, the Union explained that Engage was a discreet service within GIPSIL, which functioned independently of its other services (such as Our Way Leeds and Community Health and Prevention). Though broad terms and conditions were set centrally, service delivery, management and policies were autonomous and particular to Engage, with a client base and Commission funding distinct from other services entailing different working practises and conditions to other sections of GIPSIL.  This was the case, even across similar job roles, such as OWL and Engage advice and employment workers who operated within different metrics and target frameworks according to their funding criteria and commission specifications as well as from different base work sites such that there was a broader shared working within e.g. the overall GIPSIL advice team.   The Union believed that its proposed bargaining unit would align with existing bargaining arrangements in the wider service.  It was the Union’s view that the Employer agreed with its proposed bargaining unit, but that the Employer had proposed an agreement that did not contain rights on ongoing pay or the annual pay award for Engage Leeds GIPSIL workers, and only permitted consultation on these items.

8)         The Union confirmed that it held a certificate of independence.  The Union stated that it had copied its application and supporting documents to the Employer on 21 May 2024.  

9)         The Union said there had not been a previous application in respect of this or a similar bargaining unit.  Finally, the Union confirmed that there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

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 10 August 2023[1].  When asked what its response was, the Employer said that it was to enter into negotiations with the Union and staff representatives from the proposed bargaining unit, to reach a voluntary recognition agreement. The Employer enclosed with its response a copy of the Union’s e-mail of 10 August 2024, and the Employer’s response dated 15 September 2023.

 11)      When asked to give the date it received a copy of the application form directly from the Union, the Employer stated that this was 21 May 2024.   In answer to the question on whether it had agreed the bargaining unit before it received a copy of the application form from the Union, the Employer explained that an agreement had been reached, which GIPSIL board members would have accepted if it was able to reach a voluntary agreement. However, an agreement on the bargaining unit had not been discussed in relation to a CAC application should the voluntary agreement fail. 

12)       The Employer did not agree with the Union’s figure as to the number of workers in the bargaining unit, further stating that, “Whilst we are unaware of the specific people referenced in Unites collective bargaining unit, we believe it may include management grade employees and exclude a worker covering for maternity leave.”

13)       When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer said that it was unable to comment on the Union’s estimate of membership as it did not collect data on union membership across the organisation.

14)       When asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, the Employer said that it was unable to comment on the likely support for union recognition as it had not sought to clarify this whilst attempting to agree a voluntary agreement.  The Employer explained that it would have adopted the Acas check off process as an independent means by which it could have ensured sufficient support prior to signing off a voluntary agreement, should one have been reached.  The Employer requested a that a similar process is undertaken as part of this process.

15)       In answer to the question on whether there was an existing agreement for recognition in force covering workers in the proposed bargaining unit, the Employer answered “Yes”, and had enclosed a copy of the “GIPSIL Staff Representative Group Terms of Reference”.  When asked for the date on which the agreement came into effect, the Employer said, December 2019 (Latest version), and that it was effective since April 2016.  The Employer said that the parties to the agreement were representatives from each area of the organisation and the CEO, and that “none of which is a union recognised by the agreement.”

16)       When asked whether, following receipt of the Union’s request, it had proposed that Acas be requested to assist, the Employer said that throughout its negotiation process in attempting to reach a voluntary agreement it was not made aware that Acas could assist in its attempts to reach that agreement.  The Employer said that it had, however, always stated that any agreement would be subject to the Acas check off process.

17)      Finally, the Employer answered “Not Applicable” 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 and when asked if it had received any other applications in respect of workers in the proposed bargaining unit.

5. Additional comments from the parties

18)       On 3 June 2024 the CAC copied the Employer’s response to the application to the Union and its comments were invited.  On 4 June 2024 the Union explained that the employees in question were MG1 Senior Advice Workers (whom the employer classed as management). MG1 senior advice workers were case workers like most of the rest of the bargaining unit. They just happened to have some supervisory responsibilities as well. They worked in the same office and worked closely with the caseworkers. The annual pay rise was applied to them like the rest of the bargaining unit, and that they had the same T&Cs, etc., although the post attracted a slightly higher salary. The Union maintained that the Employer had agreed to include them in the voluntary recognition agreement.  The Union said that it therefore included those workers in the bargaining unit, and that they had also signed the petition for Unite to be recognised.

19)       The Union said that it was important to note that the copy of the Agreement attached to the Employer’s response document was not a recognition agreement with an independent trade union. Rather, it was a document that outlined the terms of reference for a staff consultation group.  The Union maintained that this distinction was crucial to avoid any potential misunderstandings.  The Union maintained that for this reason, it should not be considered that there is an existing recognition agreement, and that it should therefore be discounted.

6. The membership and support check

20)       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 the Union’s petition.  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 its petition.  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 7 June 2024 from the Case Manager to both parties. 

21)       The information requested from Union was received by the CAC on 7 June 2024, and from the Employer on 12 June 2024.  The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.   

22)       The list supplied by the Employer indicated that there were 13 workers in the Union’s proposed bargaining unit.  The list of members supplied by the Union contained 5 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 5, a membership level of 38.46%

23)       The Union’s petition was in electronic format on Google Forms.   The petition was set out as follows;

Petition to GIPSIL

We the undersigned support trade union recognition at GIPSIL.

The areas we seek to negotiate around include but are not limited to:

1) A progressive pay rise at least matching inflation, benefiting lowest paid staff most and including those staff who are currently on a pay freeze. 2) An improvement to health and safety around lone working, particularly for staff in supported accommodation. 3) An organisational strategy for retention of staff, including reduction of workloads and increased job security minimising reliance on agency staff. 4) An increase to mileage rates. 5) More generous paid time off policies, such as for caring and well-being.

GIPSIL supports some of the most vulnerable communities across Leeds, preventing eviction and homelessness, maximising benefit entitlement and employment opportunities, and offering counselling and well-being support to young people. 

But as we tackle the impacts of deep-seated social inequalities, many staff are feeling the same squeeze in our own lives, struggling to pay rent/mortgages, afford petrol, and keep the heating on for our families. The cost-of-living crisis is intensifying pressure on our workforce and communities, resulting in stress and hardship. Inflation in the UK has risen aggressively and peaked as high as 10.4% in February 2023. 

We know the chronic problems in our sector all too well: understaffing, insecurity, poor wages, unmanageable workloads, and high turnover. But these issues are not natural or inevitable. In unionised workplaces it is widely recognised pay is better, terms and conditions are stronger and workplaces are safer and morale higher, enhancing retention and recruitment. 

The working conditions of our staff determine the quality of the support we can provide to our communities. We must invest in workers on the frontline, valuing and respecting this work as the bedrock of the organisation. GIPSIL must focus on sustainable growth, prioritising staff without whom its services and properties cannot run. Many charities such as Citizen’s Advice and Shelter granted much higher pay awards and cost-of-living bonuses than GIPSIL following negotiation with trade unions.

It has been the case that our pay is modelled on the National Joint Council (NJC) pay scale, bargained by recognised trade unions representing local authority workers. GIPSIL delayed matching the NJC pay award for 2022 - 23, stating initially they could only afford a 3% pay offer. When the £1,925 NJC uplift was eventually matched in April 2023, this was not backdated to April 2022, meaning staff effectively lost out on this pay over those 12 months. In 23-24, GIPSIL failed to match the NJC award of £1925 again, increasing pay by only £550. Leeds City Council employees tend to have better wages and conditions than workers in our organisation, even across similar job roles, despite the funding we receive from them in various areas. 

Good industrial relations foster constructive dialogue and the collective development of solutions to the problems facing GIPSIL. Union recognition means we have a statutory right to consultation and negotiation on our pay, terms and conditions, representation from elected shop stewards during grievance and disciplinary processes, and the election of Health and Safety Reps to ensure the well-being of staff. These are protections the Staff Rep Group (SRG) cannot offer.

GIPSIL can set an example to the rest of the sector by working with us to recognise our union and negotiate around the concerns of its workforce. Our commitment to social justice must be mirrored in how we treat our workers as well as our service users. 

Just as we have supported our communities through the adversities of austerity, the pandemic and now the cost-of-living crisis, so too must GIPSIL support us.

• Indicates required question

Your name*

Your answer

I agree with the above and support trade union recognition at GIPSIL*.

YES

Are you happy to be contacted further about this campaign e.g. upcoming meetings*?

Yes, you can contact me by phone or email

Yes, I prefer to be contacted by email

Yes, I prefer to be contacted by phone/text

No

Your personal phone number

Your answer

Your email address

Your answer

24)       The results of the Union’s electronic petition took the form of a spreadsheet with columns headed “Timestamp”, “I agree with the above and support trade union recognition at GIPSIL”, “Your Name”, Your personal phone number”, “Are you happy to be contacted further about this campaign e.g. upcoming meetings?”, “Your e-mail address”, and “Additional notes”. All of the information was provided for the 47 individuals named within the spreadsheet. Beneath the heading “Additional Notes”, for 7 individuals, highlighted in red it stated, “Engage Leeds”.   Beneath the heading “I agree with the above and support trade union recognition at GIPSIL”, for each individual it stated “YES”.  The dates submitted within the Timestamps ranged between 28 November 2022 and 5 May 2024. 

25)       The check of the Union’s petition showed that it had been signed by 7 workers in the proposed bargaining unit, a figure which represents 53.84% of the proposed bargaining unit.  Of the 7 signatories, 5 were members of the Union (38.46% of the bargaining unit) and 2 were non-members (15.38% of the bargaining unit). 

26)       A report of the result of the membership and support check was circulated to the Panel and the parties on 14 June 2024 and the parties were invited to comment on the results of that check, by the close of business on 18 June 2024.

7. Parties’ comments on the membership check

27)       In an e-mail to the CAC dated 19 July 2024 the Employer said that it believed that the petition for checking support for recognition was “neither safe nor valid.” The petition had been running for a very long period of time and it believed that it was possible that those members who were in support at the time of signing were no longer in support, but conversely the opposite may also be true.  The Employer said that the information presented in the petition was misleading and out of date for the following reasons;

• There were currently no staff in the organisation on a pay freeze.
• Since the petition was raised (March 2023) salaries had been uplifted 3 times; each time benefiting the lowest paid staff most and equivalent to an 11% uplift over the period to date since the petition was raised. This was higher than inflation over the same period.
• A one-off ‘Cost-of-Living’ contribution was also paid to staff in the same period, a flat rate of £350, again benefiting those on the lowest salaries most (when calculated as a percentage of salary). This was not included in the 11% stated above.
• It did not believe that improvement to health and safety would be within the remit of the collective bargaining unit and it was therefore a miss-statement.

Nor did the Employer believe an organisational strategy for the retention of staff would be within the remit of a collective bargaining unit and it was therefore a miss-statement.

• GIPSIL currently paid the maximum tax-free allowance for mileage rates. Since the petition was raised GIPSIL had stated through the Staff Representative Group that should the tax-free allowance be increased GIPSIL would match that subject to affordability.
• Since the petition was raised all staff at GIPSIL had been placed on equal terms and conditions which meant for the vast majority of staff holiday allowances were increased overnight and all staff, through length of service, were able to earn up to an additional 4 days annual leave.
• Additional organisational sick pay was also introduced for staff members within the first 6 months of service since the petition commenced.

28)       In addition to the points mentioned above the Employer also made the following observations;

• The timestamps on the petition were dated between 28 November 2022 and 5 May 2024. Despite the petition only being made common knowledge across the organisation via petition posters, week commencing 20 March 2023.  The Employer questioned whether this raised concern as to the validity of those who signed the petition prior to it being made common knowledge.
• Senior Management within the organisation were made aware that some staff had reported that they felt pressured into signing the petition. The Employer believed that this raised concerns as to the methods used to gain the signatures on the petition.

29)       The Employer said that it therefore believed that support for union recognition would have changed from the point of its inception and should not be relied upon as a current support check for the Union’s proposed bargaining.

30)       The Employer said that it was of the opinion that despite the ‘sales pitch’ and lengthy period of time that the petition had been running (17 months), there was quite clearly insufficient Unite membership (5 out of 117 – 4.27%) and insufficient support (47 out of 117 – 40.17%) for a collective bargaining unit to exist that represented the whole organisation, and which the Employer believed was an appropriate bargaining unit.

31)       Finally, the Employer said that it wished to re-iterate that it did not agree with the Union’s proposed bargaining unit, and that it wished to clarify that while it was trying to negotiate a voluntary agreement it had agreed to include those staff on the MG1 paygrade (a management paygrade), and that this was only for the purposes of the voluntary agreement, and part of the ‘give and take’ negotiation process it was pursuing at the time in its attempt to reach a voluntary agreement.   The Employer adding that as the parties were unable to reach a voluntary agreement, it no longer agreed for management positions to be included for any non-negotiated agreement, the inclusion of those on the MG1 pay grade, supervisory responsibilities by their very nature, dictated that they were a management grade employee, hence the appropriate salary grade. There was a salary grade between both those that they supervised and themselves (Scale 6) that was not considered a management grade by GIPSIL. The Employer added that had GIPSIL not determined that the roles were of a management grade, then they would have been included in the scale 6 pay grade rather than MG1.

32)       No comments were received from the Union.

8. Considerations

33)       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.

34)       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.     

35)       The Panel notes that in its response to the application the Employer stated that there was an existing recognition agreement in force covering workers in the bargaining unit in the form of the internal Staff Representative Group, which was documented in the GIPSIL Staff Representative Group Terms of Reference.  However, this is not an agreement with an independent union. The Panel has therefore concluded that, on the basis of the evidence before it, the Panel is not satisfied that there is already in force a collective agreement under which a union is recognised as entitled to conduct collective bargaining on behalf of any workers falling within the proposed bargaining unit. The application is not, therefore, rendered inadmissible by the provision in paragraph 35 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

9. Paragraph 36(1)(a)

36)       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 20 - 22 above) showed that 38.46% of the workers in the proposed bargaining unit were members of the Union.  As stated in paragraph 21 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 is therefore satisfied that in the absence of any evidence to the contrary, the 10% threshold has been satisfied.

10. Paragraph 36(1)(b)

37)       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 proposed bargaining unit. The support check conducted by the Case Manager, described in paragraphs 23 - 25 above, showed that 53.84% of workers in the proposed bargaining unit (7 out of 13 workers) had signed a petition in favour of recognition. Of those who had signed the petition 5 were Union members (38.46% of the proposed bargaining unit) and 2 were non-members (15.38% of the proposed bargaining unit).   The Panel, in considering the issue of the level of likely support of the Union within the proposed bargaining unit, may or may not give weight to a petition from the Union claiming that the signatories support recognition of the Union.   In this case the Panel notes that the level of Union membership is 38.46%. The CAC works under the established principle that, in absence of evidence to the contrary, Union membership is a sufficient indicator of likelihood of support for recognition. Accordingly, the Panel is looking for sufficient additional evidence of support which would persuade the Panel that there is a likelihood of majority support in the bargaining unit which has been proposed by the Union. The Panel does not require evidence which demonstrates certainty, but merely that which demonstrates there is the likelihood of support for recognition of the Union on the part of a sufficient number of workers in the bargaining unit that could reasonably be said to indicate a likelihood of majority support. 

38)       The Panel notes the points made by the Employer as to the credibility of the petition as being evidence of support for recognition of the Union. However, the Panel has received no evidence to suggest that signatories to the petition have changed their minds about union recognition since signing the petition.  The Panel also notes that the questions in the petition are clear, and it requires the signatory to consider the precise issue of recognition of the Union for the purpose of collective bargaining on pay.  The relevant information for the Panel within the petition is therefore the number of names/signatories in the proposed bargaining unit who are not Union members. According to the Case Manager’s cross check of the lists of names, this is 2 workers. The relevant consideration is the total proportion of workers in the proposed bargaining unit who are currently members and the workers in the proposed unit who have signed the petition and are not members of the Union (38.46% plus 15.38%). The Panel concludes that current Union members together with non-members in the bargaining unit who have signed the petition (53.84%) can be taken as evidence of likelihood of majority support for Union recognition. The reality of whether all of these workers do in fact support recognition of the Union can be tested further at later stages of the process, for example if the determination of granting recognition goes to a ballot. At the moment, the Panel is looking for evidence of likelihood of support and the Panel is therefore satisfied that both limbs of the acceptance test have been met.

39)       For the reasons given above the Panel is satisfied that, on the balance of probabilities, a majority of the workers in the proposed bargaining unit would be likely to support recognition of the Union and that the test set out in paragraph 36(1)(b) is therefore met.

11. Concluding Observations

40)       The Panel notes that the Employer does not consider that the Union’s proposed bargaining unit is appropriate. In the event that the parties are unable to reach an agreement as to what the appropriate bargaining unit is, the Panel will be required to decide whether the Union’s proposed bargaining unit is appropriate and, if it decides that it is not appropriate, to decide a bargaining unit which is appropriate. The parties will have the opportunity to make detailed submissions to the CAC on this matter should it fall to the CAC to determine the issue.  

12. Decision

41)       For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mrs Sarah Havlin, Chair of the Panel

Mr Richard Fulham

Ms Janice Beards

11 July 2024

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[1] See, however, paragraph 5 above.  The Union’s e-mail of 10 August 2023 related to voluntary negotiations between the parties.