Decision

Acceptance Decision

Updated 29 June 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1327(2023)

29 June 2023

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

Leonardo UK Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 25 May 2023 that it should be recognised for collective bargaining purposes by Leonardo UK Limited (the Employer) in respect of a bargaining unit comprising “All Employees within the Graduate Development Framework employed in the Electronic and Cyber Divisions of Leonardo UK Limited.” The location of the bargaining unit was given as “All 5 workplaces at which Employees in the Graduate Development Framework employed in the Electronic and Cyber Divisions of Leonardo UK Ltd work: Basildon, Edinburgh, Luton and Southampton.” The application was received by the CAC on 25 May 2023 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 2 June 2023 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 Mrs Sarah Havlin, Panel Chair, and, as Members, Mr Martin Kirke and Mr Paul Noon OBE. 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 9 June 2023. The acceptance period was extended to 30 June 2023 in order to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the 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 5 May 2023 which the Employer had not responded to. A copy of the Union’s letter of 5 May 2023 was attached to the 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 4835. The Union stated that there were 167 workers in the proposed bargaining unit, of whom 93 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 said that a majority of workers within the proposed bargaining unit were members of the Union. The Union went on to say “members within our proposed bargaining unit have been made aware of our plans to be recognised for collective bargaining purposes on their behalf, and the number of union members has increased during this time.”

8) The Union stated that the reason for selecting its proposed bargaining unit was that it represented a discreet section of the Employer’s workforce namely “all graduate roles which share similarities in scope, share a single Graduate Development Framework reporting structure, have in common the same or similar terms and conditions of employment, represents a group of employees that are currently excluded from collective bargaining arrangements with this employer.” In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit.

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 25 May 2023. The Union said that it was happy for its details to be forwarded to Acas.

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 5 May 2023 by e mail. The Employer stated that it acknowledged the letter by e mail on 9 May 2023 stating that the Employer would respond formally in due course, and that a copy of this e mail could be provided. ^{[footnote 1]}

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 25 May 2023. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union, nor did it agree with the proposed bargaining unit. The Employer said The Graduate programme was for a specific two- year period after which time the graduates exited the programme. At this time, they would move into job levels covered by collective bargaining with the Employer’s recognised Trade Union. The Employer went on to say that “this is a professional entry point to the company and the time spent on the programme is aimed at Company induction and personal development for our early careers new joiners. All headline employment terms and conditions such as hours of work and holiday entitlement/pay is standard with the majority of our employment contracts. The entry salary to the programme is reviewed each year and adjusted by market conditions as necessary. The current Graduates on the programme receive a salary increment each 6 months, the final increment is aligned to the job level in the Salary and Career Progression Framework at a salary point in scale – recently this has been the median for the job level. The Company has successfully operated a Graduate Development Programme for decades without the need for the programme to be covered by our collective bargaining arrangements.” The Employer went on to say that in 2023, it would be taking a different approach, reducing the programme duration from 24 months to 12 months and that this was the general direction of the industry where there was a very competitive market for highly skilled and qualified individuals looking to enter the employment market from universities. The Employer said that the main objection to the application was that it did not believe that it was reasonable that a Trade Union could interfere with the operation and running of the Graduate Development Programme and those graduates in development whilst on the programme. The Employer added that once the graduates exit the development programme they are automatically covered by the collective agreements that exist between the Employer and Unite the Union.

12) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist the parties and that it did not believe from local discussions with Trade Union representatives that any compromise would be forthcoming. The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application and said “there are 36 Graduates from the 2021 cohort due to exit the programme in August 2023. There are 125 Graduates in the 2022 cohort due to exit the programme in August 2024. New Graduates joiners for the 2023 cohort is currently planned at circa 166. They will not start the programme until September 2023 and would exit the programme in August 2024 (12-month programme). Our total is 161 Graduates on the programme but cannot confirm the union membership within this number nor the number of Trade Union members per cohort. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated it had no knowledge and no way of estimating membership numbers within the bargaining unit.

14) 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 said “as previously stated the Company has operated a Graduate Development Programme for decades without the need of Trade Union collective influence. The current cohorts (2021/2022) may have been encouraged/influenced to join the Trade Union due to the volatile financial and economic shocks that came about in 2022 and high inflation that has challenged almost all of the employment sectors. We do not see this as a factor that would bring about this change of individuals attitude among future cohorts of Graduates. The current Trade Union membership for the Graduate Programme will change significantly as cohorts exit the scheme and new joiners enter the scheme.”

15) 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. The Employer answered “None.” The Employer stated that it was happy for its contact details to be forwarded to Acas.

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

16) The Union stated that the only comment it wished to make was that it had advised the Employer on 23 March 2023 that it had over 50% of the Graduates in Trade Union Membership.

6. The membership and support check

17) 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. 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 full names, dates of birth and job roles (where available). It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 12 June 2023 from the Case Manager to both parties.

18) The information requested from the Employer was received by the CAC on 16 June 2023 and from the Union on 13 June 2023. 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 161 workers in the Union’s proposed bargaining unit.

20) The list of members supplied by the Union contained 90 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 90, a membership level of 55.90%.

21) A report of the result of the membership and support check was circulated to the Panel and the parties on 21 June 2023 and the parties were invited to comment on the results of that check by noon on 22 June 2023.

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

22) Neither the Union nor the Employer had any further comments to make.

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 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. 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.

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 - 24 above) showed that 55.90% 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. 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.

Paragraph 36(1)(b)

27) 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.

28) For the reasons given in paragraph 26 above, the Panel has concluded that the level of union membership within the proposed bargaining unit stands at 55.90%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union.

29) The Employer has argued that a proportion of Union members joined the Union for purposes other than collective bargaining. However, at acceptance stage the Panel is assessing the likelihood of a majority of workers in the proposed bargaining unit being supportive of recognition of the Union for collective bargaining. The Panel is of the view that Union membership is an indicator of likely support for recognition of the Union. The issue of actual support for recognition of the Union therefore remains open to question and arguments on the level of support for recognition will be considered fully by the Panel at the later stages of the recognition process. This will include an opportunity for the Employer to submit any supporting evidence which may support its argument that some Union members are not supportive of recognition. Accordingly for the purposes of the test for acceptance, the Panel has reached the conclusion that, on the balance of probabilities and in the absence of any evidence to the contrary, 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

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

Panel

Mrs Sarah Havlin, Panel Chair

Mr Martin Kirke

Mr Paul Noon OBE.

29 June 2023

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1. A copy of the e mail dated 9 May 2023 was provided by the Employer to the Case Manager on 6 June 2023. The Employer confirmed on 7 June 2023 that the Employer did not respond further after the e mail to the Union on 9 May 2023. ↩