Decision

Form of Ballot Decision

Updated 15 November 2019

Case Number: TUR1/1117(2019)

4 September 2019

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON FORM OF BALLOT

The Parties:

Unite the Union

and

Seal Security UK Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 12 June 2019 that it should be recognised for collective bargaining by Seal Security UK Limited (the Employer) for a bargaining unit comprising “All Seal Security Guards employed to work at Bloomberg London sites”. The location of the bargaining unit was given as “All Bloomberg sites supported by (the Employer) primarily but not exclusive to Bloomberg, 3 Queen Victoria Street, London EC4N 4TQ”. The CAC gave both parties notice of receipt of the application on 12 June 2019. The Employer submitted a response to the CAC dated 19 June 2019 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 Charles Wynn-Evans, Panel Chair, and, as Members, Mr David Crowe and Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Nigel Cookson.

3) By a decision dated 12 July 2019 the Panel accepted the Union’s application and the parties entered a period of 20 working days, the ‘appropriate period’ in accordance with paragraph 18(2)(a) of Schedule A1 to the Act (the Schedule), within which to negotiate and try to reach agreement as to the appropriate bargaining unit.

4) In an email dated 6 August 2019 the Union confirmed that it accepted the Employer’s proposal that the appropriate bargaining unit be defined as: “All SEAL Security Officers employed to work at Bloomberg London sites, excluding managers and supervisors” and further confirmed that this was the same bargaining unit as originally proposed by the Union albeit set out in different terms. On 7 August 2019 the Employer confirmed its agreement to the bargaining unit as set out above.

5) On 7 August 2019, the Panel, satisfied that a majority of the workers constituting the agreed bargaining unit were not members of the Union, gave notice in accordance with paragraph 23(2) of the Schedule that a secret ballot would be held. The Panel also advised the parties that it would wait until the end of the notification period of ten working days, as specified in paragraph 24(5), before arranging a secret ballot. The parties were also asked for their views on the form the ballot should take.

6) The notification period under paragraph 24(5) and 24(6) of the Schedule ended on 20 August 2019. The CAC was not notified by the Union or by both parties jointly that they did not want the ballot to be held, as per paragraph 24(2).

2. Union’s submissions on the form of ballot

7) In a letter dated 14 August 2019 the Union stated that, in considering the approach to balloting the workers within the agreed bargaining unit, it would require the opportunity to have ‘Face to Face’ meetings with workers in the voting constituency to explain the benefits of the recognition agreement. Further, the situation did appear to lend itself to a postal ballot and the Union believed this method would give the wider workforce the greater opportunity to vote freely for their preferred option giving a true and dependable outcome. Employer’s submissions on the form of ballot

8) In an email dated 15 August 2019 the Employer stated that it believed that a workplace ballot would be the most appropriate form of ballot. First, the Employer’s primary concern was to ensure that all of the workers within the bargaining unit could have their say on whether or not the Union should be recognised and to this end, a workplace ballot would encourage worker participation in the balloting process. The Employer contended that the reduced administrative requirements for a workplace ballot (i.e. the lack of a need for workers to post their votes ahead of time) would provide the maximum period possible to both parties to engage with the affected workers, provide them with information and ensure that all of their question were answered and also that the ease of voting in a workplace ballot would increase the likelihood that all affected workers exercised their right to vote. These factors would ensure that the outcome of the ballot was as representative as possible of the wishes of the bargaining unit.

9) Second, the Employer considered there to be no risk of unfairness and/or malpractice taking place in a ballot staged at the workplace. The Employer understood its obligations and duties under the Schedule and the relevant Code of Practice and intended to ensure that a fair process was followed during both the campaigning and balloting stages. To this end, the Employer would be liaising with the Union to agree mutually acceptable access arrangements for its representatives and would ensure that the affected members of staff get adequate time during their shifts to vote independently.

10) Conversely, the Employer was concerned that there would be a real risk of unfairness and/or malpractice if a postal vote was carried out. In previous correspondence and submissions to the Panel the Employer had raised its concerns regarding pressure being exerted on its workers by union members and/or individuals affiliated with the Union, for example relating to the communal nature of the open petition that was circulated by the Union in late 2018. If a postal ballot method was ordered, the Employer was concerned that a similar approach might be taken and that workers might be pressurised into completing their ballot in a public forum and so feel that they had no choice but to vote in favour of recognition.

11) The Employer understood that some concerns may be raised regarding the practicalities of holding a workplace ballot in the particular circumstances of the proposed bargaining unit. The Employer had examined how such a ballot might take place in practice and believed that it would be easy to achieve the ballot taking place over a small number of days (organised to be the smallest period of time possible) to ensure that workers on each shift and at each of the relevant locations were given the opportunity to vote. The Employer believed that the complexity, cost and administration involved in this form of ballot would be reasonably low, and in any event would be borne by the parties rather than passed to the workers (which a postal ballot would have the effect of doing). If any workers were identified as being on holiday during the balloting period then the Employer would co-ordinate with the Panel and the Union to make suitable alternative arrangements.

3. Union’s further observations

12) On 20 August 2019 the parties were invited to comment on the conflicting views submitted and also as to how the geographical spread of the bargaining unit should be taken into account by the Panel in reaching its decision on the appropriate form of ballot.

13) In emails dated 23 August 2019 the Union stated that, as outlined in its earlier note, its preferred balloting method was a postal ballot. The Union noted from the Employer’s comments that it had similar concerns with regards to the Union’s preferred option although the Union could not see how it could influence a postal ballot as the Employer suggested. However, having reviewed the Employer’s position, the Union indicated\ that it could accept an internal workplace ballot supported by an additional postal ballot if it was necessary. The acceptance of this method of ballot was subject to the Union having full access to all workers in the bargaining unit as stated in earlier communications, including personal face to face meetings. The Union believed that workers could only make an informed decision if given every opportunity to receive the information needed to formulate an unhindered decision.

14) In an email received shortly after receipt of that above, the Union stated that, on further reflection, it considered that the ballot should be based on a maximum possible voting period rather than the “smallest periods of time possible” proposed by the Employer which ran contrary to the Employer’s stated aim of maximising turnout. The Union believed that an extended voting period was necessary if a decision was taken to have a workplace or combined workplace/postal ballot due to the number of sites involved in this application.

4. Employer’s further observations

15) In a letter dated 23 August 2019 the Employer commented on the Union’s preference for a postal ballot. First, it noted that the Union had failed to substantiate any of its points or provide any explanation behind why it believed a postal ballot would have the effects it claimed. The Employer fundamentally disagreed with the Union’s assertion that a postal ballot would give workers the “greater opportunity to freely vote…” On the Employer’s case, as the Panel would know, postal ballots typically have a lower turnout among the bargaining unit than workplace ballots due to the extra steps required on the part of the individual. This meant that a postal ballot would mean that it was very likely that fewer individuals in the bargaining unit would vote in the ballot and so any outcome would not truly representative of the wishes of the bargaining unit (and the Union had failed to substantiate why the opposite was the case). Conversely, a workplace ballot that was organised to ensure that all workers over all shifts had a clear opportunity to vote would make it easier for the individuals and so ensure that all had a greater opportunity to ensure that their voice was heard in the outcome of the ballot.

16) Further, the Union had failed to establish how a postal ballot would lead to the individuals in the bargaining unit being freer in their voting. As set out before, the Employer believed the converse to be true and had significant concerns given previous behaviour and practices regarding potential pressure being exerted on its workers during the balloting period and directly on their vote if a postal ballot was ordered. A workplace ballot would have the effect of minimising the risk of such pressure directly influencing an individual’s vote and the logistics of a postal ballot would necessarily mean that both parties had a reduced period of time in which to communicate with the workers and address all of the issues relating to potential union recognition.

17) The Employer was clear that, given the combination of the above factors, a postal ballot would not give ‘a true and dependable outcome’ of the wishes of the bargaining unit. Instead it was concerned that such a methodology could lead to an unrepresentative and influenced conclusion of the true views of the bargaining unit.

18) As previously stated, the Employer was confident that, despite the superficial challenges that the circumstances may present, a fair and efficient workplace ballot could be carried out. In order for the balloting period to cover all workers, it would need to be held over a two day period (Monday and Tuesday or Thursday and Friday) with the ballot either open constantly or during key periods for the changeover of shifts. Although the individuals in the bargaining unit worked primarily at the Employer’s client’s buildings, the Employer had negotiated with that client that a ballot could take place in their buildings, making it easy for the individuals to be able to vote at the beginning or end of their shift. An appropriate place for voting could be made available in each of the three client locations so that all individuals were able to vote. Alternatively, the Employer was happy to make its own central offices available for the ballot to occur there, although it considered that this would reduce the opportunity for the individuals to vote as easily.

5. Considerations

19) When determining the form of the ballot (workplace, postal or a combination of the two methods), the CAC must take into account the following considerations specified in paragraphs 25(5) and (6) of the Schedule:

(a) the likelihood of the ballot being affected by unfairness or malpractice if it were conducted at a workplace;

(b) costs and practicality;

(c) such other matters as the CAC considers appropriate.

20) The parties initially put forward conflicting types of ballot for the Panel to consider. The Employer favoured a workplace ballot and the Union a postal one. The Union’s stance seemed to change after it had had the opportunity of considering the Employer’s comments when it then stated that it could accept a workplace ballot supported by an additional postal ballot if it was necessary but only on the proviso that the ballot box was open for what it called “a maximum possible voting period” so as to maximise turnout.

21) However, having carefully considered the views put forward by the parties and having set these against the matters that it must take into account, the Panel has decided that, on the grounds of practicality and cost, the appropriate form of ballot in this matter would be a postal ballot. First, the Panel is of the view that it is not necessarily appropriate to conduct a workplace ballot at the sites of third parties such as, in this case, the Employer’s client to whom it provides its services. Here, we have a bargaining unit spread over four locations none of which are premises under the control of the Employer. Indeed, at the time of this decision the Employer has declined to identify the precise location one of its client’s sites in London Docklands as it claims that the exact address of this site is confidential and sensitive information and so cannot be disclosed.

22) Further, in accordance with the terms of the Schedule, an employer is placed under a number of statutory duties when a ballot is triggered. These duties are set out in paragraph 26. A failure on the part of an employer to comply with these duties could result in the CAC issuing a remedial Order calling for the employer to take such steps to remedy the failure as the CAC considers reasonable. Failure to abide by the terms of an Order could result in the CAC issuing a declaration that a union is recognised as entitled to conduct collective bargaining on behalf of the bargaining unit. However, the CAC would have no such control over the Employer’s client upon whose sites the ballot is being conducted nor control over the behaviour of the client. The Employer’s client would be under no statutory duty to co-operate with the Union and the person appointed to conduct the ballot and the CAC would not be able to issue a remedial order in respect of the client to correct any of its failings. The same reasoning applies to the Employer’s duties under paragraph 27A which provides that the parties must refrain from using any unfair practice.

23) The Employer suggested that an alternative to the ballot taking place at its client’s sites was to have the workplace ballot conducted at its central offices. In putting this alternative plan forward the Employer considered that to do so would reduce the opportunity for the workers to cast their votes as easily. The Panel agrees that this option could indeed limit worker participation and for that reason is not persuaded that for the ballot to be held at the Employer’s central offices is an appropriate way forward by reference to cost and practicality.

24) The Panel is of the view that the appropriate form of ballot in the specific circumstances of the workers in this bargaining unit, spread as they are cross a number of sites, is a postal ballot. The Panel has considered carefully the arguments put by the Employer as to why a postal ballot is not appropriate but is not persuaded by them. A postal ballot will allow each worker to cast his or her vote in the privacy of their own homes away from the workplace and any possible interference, which was a major concern on the Employer’s part. There is no evidence to suggest that postal ballots conducted by the CAC have been open to abuse in the way envisaged by the Employer and, if any abuse were brought to the attention of the CAC, the Panel would be in a position to deal with it having the necessary jurisdiction over the parties at this point in time in contrast to the position relating to a workplace ballot conducted at the premises of a third party not subject to the provisions of the Schedule. With regard to the Employer’s point about a postal ballot limiting the time available for the parties to engage with the workers before votes are cast, the Panel believes that a period of 10 working days at the start of the balloting period is sufficient for meetings with the workers so that they can be informed as to the consequences of union recognition and to arrive at a view in order to take part in the ballot. The Panel would therefore expect the parties to agree an access timetable that factored in such meetings during the first half of the balloting period.

25) The Panel has also taken into account the relative cost of a workplace and a postal ballot. In reaching the conclusion that a postal ballot should be ordered, the Panel has borne in mind its experience that a postal ballot is in general less expensive than a workplace ballot which is a further factor in favour of ordering a postal ballot.

6. Decision

26) For the reasons set out above, the decision of the Panel is that the ballot should be a postal ballot.

27) The name of the Qualified Independent Person appointed to conduct the ballot will be notified to the parties shortly as will the period within which the ballot is to be held.

7. Panel

Mr Charles Wynn-Evans, Panel Chair

Mr David Crowe

Mr Paul Noon OBE

4 September 2019