Decision

Acceptance Decision

Updated 20 April 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1227(2021)

17 August 2021

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

&

Kingdom Services Group Ltd

1. Introduction

1) Unite the Union (the Union) submitted an application dated 22 July 2021 to the CAC that it should be recognised for collective bargaining by Kingdom Services Group Ltd (the Employer) for a bargaining unit described as “All Security Officers and Security Supervisors employed by Kingdom Services Group Limited based at Royal Berkshire NHS Foundation Trust, London Road, Reading, RG1 5AN”. The CAC gave both parties notice of receipt of the application on 22 July 2021. The Employer did not submit a response.

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 David Cadger and Mr Ian Hansen. The Case Manager appointed to support the Panel was Kate Norgate but for the purpose of this decision was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 5 August 2021. The period was extended until 27 August 2021 in order to allow time for the Employer to respond to the Union’s application and to enable the Panel to consider all the evidence and reach 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. 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 dated 26 May 2021 and a response from the Employer was received on 9 June 2021. A copy of the Union’s request letter and the Employer’s response was attached to the application. The Employer in their response stated that the request for recognition had been considered by them but not accepted.

6) 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 6000+ (according to their website). The Union stated that there were 24 workers in the proposed bargaining unit, which the Employer agreed, of whom 20 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 the majority of workers in the bargaining unit were members and they had circulated a petition regarding recognition which had been well supported. The Union stated that they were unable to provide evidence of their membership and petition at that present time due to confidentiality reasons.

8) The Union stated that the reason for selecting the proposed bargaining unit was because those employees were previously employed directly by the NHS Trust and a decision was made to outsource the security service a number of years ago. The Union said they were a clear and distinct group all providing the same service to the same NHS Trust, based at the same location and all supervised by the same management structure.

9) The Union stated that the bargaining unit had not been agreed with the Employer although there had not been a formal rejection of the proposed bargaining unit. The Union stated that the Employer’s reason for refusing their request for recognition did not appear to be because they disagreed with the proposed bargaining unit, however, they had also not formally accepted the description of the bargaining unit.

10) When asked whether there was any existing recognition agreement which it was aware of which covered any workers in the bargaining unit the Union answered, “not that they were aware of”. The Union said that they did however believe that the members came under a national recognition agreement with the NHS Trust prior to being TUPE transferred in the 1990’s and that they could not find any record of the Employer or any previous contractors terminating the recognition which would have transferred across with the employees.

11) 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 22 July 2021.

4. The Employer’s response

12) On 22nd July the CAC sent to the Employer a copy of the Union’s application and an Employer’s Response document which they were asked to complete and return to the Case Manager by no later than close of business on 29 July 2021. On 28 July 2021 the CAC Case Manager received an email from the Employer stating that they were aware that the Employer’s Response document was required to be completed and returned it to the CAC by 29th July 2021 but, as the person who was required to complete the document was on annual leave, they were requesting an extension to the deadline. The Employer said that it was important that that person had an input in the information added to the document and asked for an extension until close of business on Wednesday 4th August 2021. In a letter dated 29th July 2021 the CAC informed the Employer that the Panel Chair, having had the opportunity of considering their email, had, in that instance, granted their application and had extended the time for the Employer to lodge its response to the Union’s application to the close of business on 4 August 2021.

13) The Employer failed to return the completed Response document by their requested extension date of 4 August 2021. The CAC Case Manager(s) tried to make contact with the Employer on 4 August, 5 August and 9 August either by leaving a voicemail message or speaking to one of their colleagues offering assistance with the procedure and inviting a call back.

14) The CAC wrote to the Employer on 10 August 2021 noting that its response had not been received and enclosing a further copy of the Union’s application and the Employer’s response form. The letter stated that if no response was received by noon on 11 August 2021, the Panel would proceed with its determination on the information before it. No response was received from the Employer by that date.

5. Considerations

15) In deciding whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 of this decision are satisfied. In the absence of any information or arguments from the Employer, the Panel had to apply the tests on the basis of the information and evidence from the Union.

16) The Panel is satisfied that, in absence of any evidence to the contrary, the Union made a valid request to the Employer within the terms specified in paragraphs 5 to 9 of the Schedule. It is also satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 37 to 42 and was made in accordance with paragraph 11 of the Schedule.

17) 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.

6. Paragraph 36(1)(a)

18) 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.

19) In its application to the CAC, the Union stated that there were 20 Union members in its proposed bargaining unit of 24 workers. The Panel was satisfied that, on the basis of the evidence available, the Union had 20 members out of 24 workers in the proposed bargaining unit giving it a membership of 83.33% of the proposed bargaining unit. The Panel is therefore satisfied that the level of Union membership in the bargaining unit does constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

7. Paragraph 36(1)(b)

20) 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.

21) The Union stated that it had circulated a petition regarding Union recognition which had been well supported. In this case the Panel, on the basis of the level of union membership alone, would have been prepared to decide 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.

22) The Panel considers that, in the absence of evidence to the contrary, the level of union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit. On the basis of the evidence before it the Panel is satisfied, on the balance of probabilities, that a majority of 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.

8. Decision

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

Panel

Mrs Sarah Havlin, Panel Chair

Mr David Cadger

Mr Ian Hanson

17 August 2021