Decision

Recognition Decision

Updated 28 March 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1298(2023)

28 March 2023

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

Mitie Technical Facilities Management Limited

1. Introduction

1) Unite 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 CAC gave both parties notice of receipt of the application on 11 January 2023. The Employer submitted a response to the CAC on 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, but for the purposes of this decision the Case Manager was Kaniza Bibi.

3) By its written decision dated 15 February 2023 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. On 22 February 2023 the parties notified the CAC that they had reached an agreement as to the appropriate bargaining unit and this was the same bargaining unit as that originally proposed by the Union in its application

2. Issues

4) Paragraph 22 of the 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:

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

(ii) 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.

(iii) 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) provides that “membership evidence” for these purposes 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 to majority membership and submission that it should be recognised without a ballot

5) In a letter dated 2 March 2023 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 granted recognition without a ballot. The Union, in an e-mail dated 2 March 2023, stated that “Unite claims majority membership within the bargaining unit and therefore submits that it should be granted recognition without a ballot.”

4. Summary of the Employer’s response to the Union’s claim that it should be recognised without a ballot

6) The CAC copied the Union’s e-mail of 2 March 2023 to the Employer and invited the Employer to make submissions in relation to the Union’s claim that it had majority membership within the bargaining unit and in relation to the three qualifying conditions specified in paragraph 22(4) of the Schedule.

7) In its response email dated 8 March 2023 the Employer stated that “Mitie does not agree with the assertion that Unite have the requisite membership numbers to consider granting recognition without a ballot. We would respectfully request that a ballot be undertaken to ascertain the membership in support if recognition given the employee feedback we have received in recent weeks/months leading us to believe that there is not the support asserted by Unite.”

8) The Panel chair, having seen the Employer’s response instructed the Case Manager to write to the Employer on 13 March 2023, to ask on what basis it asserted that the Union no longer had majority membership within the bargaining unit as the check of membership and support for recognition conducted on 3 February 2023 ^{[footnote 1]} established that the Union had 26 members in the 36-worker bargaining unit giving a membership density of 72.22%. In its response dated 17 March 2023, the Employer stated, “I can confirm that Mitie no longer requests a ballot of membership numbers to be undertaken and apologise for any inconvenience or confusion caused.”

9) On the 17 March 2023 the Employer was asked to confirm that it no longer was challenging the Union’s claim that it had majority membership within the bargaining unit. It was also asked to confirm whether it was submitting that one or more of the qualifying conditions, was met. The Employer was reminded, that if the Panel was satisfied that the majority of the workers in the bargaining unit were members of the Union, then it must declare the Union to be recognised without a ballot unless one of the three qualifying conditions, as specified in paragraph 22(4) of the Schedule, was fulfilled.

10) The Employer did not respond to the communication sent on 17 March 2023; therefore, a final reminder was sent on 22 March 2023. The Employer was once again asked whether it wished to make submissions on the three qualifying conditions, as specified in paragraph 22(4) of the Schedule. The Employer was informed that if there was no response by the close of business, the CAC would proceed on the basis that it did not wish to make any submissions on the matter and that the Panel will be informed accordingly.

11) The Employer was given until the close of business on 22 March 2023 for its submissions. No submissions were received from the Employer by the deadline imposed.

5. Considerations

12) The Schedule requires the Panel to consider whether it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Union, it must declare the Union to be recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit unless it decides that any of the three qualifying conditions set out in paragraph 22(4) is fulfilled. If the Panel considers that any of those specific conditions is fulfilled, it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

13) The membership and support check conducted on 3 February 2023 had shown the Employer listing a total of 36 workers. As stated in the acceptance decision dated 15 February 2023, the Union had provided a spreadsheet listing 26 union members. The number of union members in the proposed bargaining unit was 26, a membership level of 72.22%. Accordingly, the Panel accepts that the majority of workers in the bargaining unit are members of the Union.

14) The Panel has considered the correspondence received from both parties and all the evidence in reaching its decision as to whether any of the qualifying conditions laid down in paragraph 22(4) of the Schedule is fulfilled.

Paragraph 22(4) (a)

15) 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. The Panel is therefore satisfied that this condition does not apply.

Paragraph 22(4) (b)

16) 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.

Paragraph 22(4) (c)

17) 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.

6. Declaration of recognition

18) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that a 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 is met. Pursuant to paragraph 22(2) of the Schedule, the CAC must therefore 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 “All Hourly Paid Employees below the level of supervisor working at GE Aviation (Wales) on the Mitie Maintenance Contract”.

Panel

Mr Rohan Pirani, Panel Chair

Mr Richard Fulham

Mrs Anna Berry

28 March 2023

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1. See paragraph 18 of the Panel’s decision of 15 February 2023 in which the application was accepted. ↩