Decision

Recognition Decision

Updated 6 July 2020

Case Number: TUR1/1166 (2020)

06 July 2020

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

Loganair Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 13 March 2020 that it should be recognised for collective bargaining purposes by Loganair Limited (the Employer) for a bargaining unit described as: “Cabin Crew within Loganair Limited”. The application was received by the CAC on 16 March 2020 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted a response to the CAC dated 23 March 2020 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 Kenny Miller, Panel Chair, and, as Members, Mr Alistair Paton and Mr Gerry Veart. The Case Manager appointed to support the Panel was Linda Lehan.

3) By its written decision dated 13 May 2020 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit.

4) In an email dated 16 June 2020 the Employer confirmed that the bargaining unit was not contested per se. It was all members of cabin crew employed by Loganair excluding Cabin Crew managerial roles. Following this the Panel instructed the Case Manager to ascertain whether the Union claimed that it had a majority of the workers in the bargaining unit as its members and should therefore be granted recognition without a ballot and, if it did so claim, to seek submissions from the Employer on whether or not a ballot should be held.

2. Issues

5) 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:

(a) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(b) 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;

(c) 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) states that “membership evidence” 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.

3. The Union’s claim of majority membership

6) By a letter dated 17 June 2020 the Union was asked by the CAC whether it claimed majority membership within the bargaining unit and, if so, whether it submitted that it should be recognised without a ballot. In their reply dated 22 June 2018 the Union stated that it held majority membership and therefore should be granted recognition without a ballot.

7) The Union stated that it noted the Employer, in their letter of 20th May 2020 to the CAC, had reduced the size of the bargaining unit to 134 from the previously stated figure of 138 to the CAC and 136 to ACAS. The Union stated that the latest confirmed numbers to the CAC (20th May 2020) within the bargaining unit of 134 increased Unite the Union’s density further from the stated density in the CAC membership audit confirmed as per the CAC’s letter dated 29th April 2020. The Union stated that this was without further examination of their letter dated 4th May 2020 and anomalies around the Employer’s list that they felt would increase Unite the Union’s density within the bargaining unit further still.

8) The Union went into detail about an online petition that they were able to pass over to the CAC to demonstrate the support they had but this is not relevant now as at this stage of the process as we only require to know whether the Union has majority membership.

9) On 23 June 2020 the Union’s letter was copied to the Employer and it was invited to make submissions on the Union’s claim to majority membership and the three qualifying conditions specified in paragraph 22(4) of the Schedule.

4. The views of the Employer

10) The Employer in a letter dated 23 June 2020 stated that there were a few points it wished to make as set out below:

(1) The letter sent from Loganair on 2nd April 2020, notes at the last paragraph that there is a request to stay proceedings to allow all parties to stabilise and take stock, consequent to the COVID-19 pandemic. It has had and continues to have a massive negative effect on Loganair and the aviation sector. Without the Government’s Coronavirus Job Retention Scheme, the company would certainly have failed to survive this episode. That request to stay proceedings continues to be made.

(2) Loganair has instructed a legal advocate to initiate proceedings for a judicial review of the decision of the Panel to accept Unite’s application for statutory recognition, despite the fact that there was already a collective bargaining agreement in place with the GMB; and which would have remained in place but for the coercive interference of Unite when they made contact with the GMB.

(3) The fact that Unite has over 10% of cabin crew membership in no way evinces that the majority of the cabin crew wish Unite to represent them in a collective bargaining mechanism. As has been cited previously, there have been reports of members of cabin crew who do not wish to have involvement with Unite being alienated by Unite supporting colleagues. There may well be a petition, but that is an overt device and it is argued that what someone supports with a signature when asked to sign by a colleague(s) and what the same person actually thinks and would vote for in the confines of a secret ballot, are two very different things. A petition is not necessarily a democratic or representative document.

Taking the above into account, it is the firm view of the company that: (1) the application from the union for statutory recognition should not have been accepted in the first place, hence the forthcoming appeal for a judicial review of the decision; and (2) the level of union membership and the level of support for collective representation by the trade union are two very different things. The company would not be agreeable to statutory recognition being awarded and certainly not without there being a full ballot of the staff in the debated collective bargaining unit.

11) The Employer was given a further opportunity to provide evidence directly linked to any of the three qualifying conditions but failed to respond to the Case Manager’s request. Considerations

12) As set out in paragraph 4 above, the Act requires the Panel to consider whether it is satisfied that the majority of the workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that the 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.

13) A membership check carried out by the Case Manager for the purposes of the Panel’s decision on acceptance, the result of which was reported to the Panel and the parties on 29 April 2020, showed that 74 of the 138 workers in the bargaining unit were members of the Union, a membership level of 53.62%. In the absence of any evidence to the contrary, the Panel is satisfied that the majority of the workers in the bargaining unit are members of the Union.

5. Paragraph 22(4) (a)

14) The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. In this case neither party has submitted evidence that holding a secret ballot would be in the interests of good industrial relations. In particular, the employer when specifically asked to provide evidence relating to this and the other two qualifying conditions did not respond directly to this request. In these circumstances the Panel has no option but to conclude given the lack of any direct evidence that none of the three conditions are applicable. The Panel is therefore satisfied that this first condition does not apply.

6. Paragraph 22(4) (b)

15) 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. The CAC has no such evidence and this condition does not apply.

7. Paragraph 22(4) (c)

16) 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 this condition does not apply.

8. Declaration of recognition

17) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that the 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 “Cabin Crew within Loganair Limited”.

Panel

Professor Kenny Miller, Chair of the Panel

Mr Alistair Paton

Mr Gerry Veart

06 July 2020