Decision

Acceptance Decision

Updated 28 March 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1298(2023)

15 February 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

Mitie Technical Facilities Management Limited

1. Introduction

1) Union the Union (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 11 January 2023 that it should be recognised for collective bargaining purposes by Mitie Technical Facilities Management Limited (the Employer) in respect of a bargaining unit comprising “All Hourly Paid Employees below the level of supervisor working at GE Aviation (Wales) on the Mitie Maintenance Contract”. The location of the bargaining unit was given as “GE Aviation Wales, Caerphilly Road, Nantgaw, Cardiff, CF15 7YJ.” The application was received by the CAC on 11 January 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 19 January 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 Mr Rohan Pirani, Panel Chair, and, as Members, Mr Richard Fulham and Mrs Anna Berry. 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 25 January 2023. The acceptance period was extended on two further occasions 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. The final extension ends the acceptance period on 15 February 2023.

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 sent a request letter to the Employer on 8 December 2022. The Employer responded by e-mail dated 16 December 2022, in which it rejected the Union’s request on the basis that it did not believe that there were “sufficient membership numbers to warrant voluntary recognition”. A copy of the Union’s request letter and the Employer’s response to that request were submitted to the CAC on 12 January 2023.

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 75,000, and there were 33 workers in the proposed bargaining unit, of whom 17 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 explained that the majority of the workers in its proposed bargaining unit were members of the Union. Furthermore, the group had doubled in number from 10 to 21 since the recognition campaign had started in September 2022.

8) When asked for its reasons for selecting its proposed bargaining unit, the Union stated that the maintenance contract was a defined business contract at the GE Aviation site that was currently held by Mitie. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. The Union also 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 11 January 2023.

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 8 December 2022. The Employer referred to its e-mail of 16 December 2022 in which it had rejected the Union’s request. A copy of the Union’s e-mail of 8 December 2022 and the Employer’s e-mail of 16 December 2022 were attached to its response.

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 11 January 2023. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union, but it did now agree with a proposed bargaining unit that consisted of “Hourly paid employees only”.

12) The Employer stated that, following receipt of the Union’s request it had not proposed that Acas be requested to assist.

13) The Employer said that it agreed with the number of workers in the proposed bargaining unit as set out in the Union’s application. When asked whether there was an existing agreement for recognition in force covering workers in the proposed bargaining unit, the Employer said “No”.

14) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated it did not agree with the number claimed by the Union. 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 that a number of workers had advised that they did not wish to be party to union recognition.

15) Finally, the Employer answered “N/A” when asked both whether a previous application had been made by the Union under the Schedule in respect of this or a similar bargaining unit, and whether it received any other applications in respect of workers in the proposed bargaining unit.

5. The membership and support check

16) 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 a petition compiled by the Union. 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 a petition signed by workers in favour of recognition. 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 25 January 2023 from the Case Manager to both parties.

17) The information requested from the Union was received on 29 January 2023 and from the Employer on 30 January 2023. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

18) The list supplied by the Employer indicated that there were 36 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 26 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 26, a membership level of 72.22%.

19) The petition supplied by the Union contained 35 names and signatures, of which 31 were in the proposed bargaining unit, a figure that represents 86.11% of the proposed bargaining unit. Of those signatories, 24 were members of the Union (66.67% of the proposed bargaining unit) and 7 were non-members (19.44% of the proposed bargaining unit). The petition consisted of 2 A4 sheets, which were set out as follows:

“PETITION IN SUPPORT OF UNION RECOGNITION

Mitie Maintenance Contract at GE Aviation (Wales)

Unite the Union is asking your employer to recognise it for collective bargaining. We have to show the Central Arbitration Committee that a majority of our workers favour our application. If you want your employer to recognise Unite for collective bargaining, please sign the petition.

This petition and your personal details will be kept confidential by Unite the Union and will be shared with the Central Arbitration Committee only, who will use these to confidentially verify the level of support for our collective bargaining application. Your employer will not receive your details or a copy of this petition. The petition will be retained by Unite for the duration of the recognition campaign and any associated issues. Unite the Union’s full up-to-date privacy policy can be found at www.unitetheunion.org/privacypolicy.

I support the recognition of Unite as entitled to conduct collective bargaining on pay, hours and holidays.”

Each signatory to the petition was asked to provide their name, job title, signature, and date. The dates on the petition ranged between 25 and 28 January 2023.

20) A report of the result of the membership and support check was circulated to the Panel and the parties on 3 February 2023 and the parties were invited to comment on the results of that check by close of business on 7 February 2023.

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

21) In an e-mail to the CAC, dated 6 February 2023, the Union stated it believed it had met both tests under paragraph 36 of the Schedule and therefore its application should be accepted by the CAC.

22) No comments were received from the Employer.

7. 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.

8. 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. The membership check conducted by the Case Manager (described in paragraphs 16 - 18 above) showed that 72.22 % of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 17 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.

9. Paragraph 36(1)(b)

26) 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. For the reasons given in paragraph 24 above, the level of union membership within the bargaining unit stands at 72.22%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition. No such evidence to the contrary was received in this case.

27) The Panel would have been prepared to decide, on the balance of probabilities, that a majority of the workers in the proposed bargaining unit would be likely to support recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit on the basis of the level of union membership alone. In this case the Union provided further evidence of support for recognition in the form of the petition (see paragraph 19 above) which showed that 66.67% of the workers in the proposed bargaining unit supported recognition.

28) On the basis of the evidence before it the Panel has decided, on the balance of probabilities, that 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.

10. Decision

29) For the reasons given in paragraphs 23 - 27 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Rohan Pirani, Panel Chair

Mr Richard Fulham

Mrs Anna Berry

15 February 2023