Decision

Acceptance Decision

Updated 22 April 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1380(2023)

6 February 2024

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

Tersus Consultancy Limited

1. Introduction

1)         Unite the Union (the Union) submitted an application to the CAC dated 8 December 2023 that it should be recognised for collective bargaining purposes by Tersus Consultancy Limited (the Employer) in respect of a bargaining unit comprising “all Tersus Consultancy Ltd employees who have sole responsibility for Magnox within the Operations Function covering the job roles of Operations Manager, Deputy Operations Manager, Auditor, Senior Consultant, Consultant, Surveyor, Project Manager, Site Analyst, Business Administrator, Administrator and Lab Manager.” The location of the bargaining unit was given as “Harewell: Harwell Campus, OX11 0DF, England. Winfrith: Winfrith Newburgh, Dorchester, DT2 8WG. Oldbury: Oldbury, Naite, Thornbury, Bristol, BS35 1RQ. Berkeley: Berkeley Site, Berkeley, Gloucestershire, GL13 9PA. Hinkley point A: Magnox (Hinkley A Power St British Nuclear Group), Bridgewater, TA5 1YA. Dungeness: Dungeness Power Stations, Romney Marsh, Kent.”  The application was received by the CAC on 18 December 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 12 January 2024 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 Ms Laura Prince, K.C., Panel Chair, and, as Members, Ms Joanna Brown and Mr Kieran Grimshaw. 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 4 January 2024. The acceptance period was extended to 7 February 2024 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 sent a “formal request for statutory recognition” to the Employer via recorded delivery and e mail on 17 November 2023, but the Employer had not responded.  A copy of the Union’s letter of 17 November 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 400. The Union stated that there were 47 workers in the proposed bargaining unit and that the number of Union members in the proposed bargaining unit was 30. The Union said that this equated to a membership level of 64% in the proposed bargaining unit. The Union said that it would be happy to provide evidence of this to the CAC on a confidential basis. The Union went on to say, it held evidence that the majority of workers in the proposed bargaining unit were likely to support recognition in the form of union membership levels, a petition and rapid membership growth.

8)         The Union stated that the reason for selecting its proposed bargaining unit was that it represented all Tersus Consultancy Limited employees solely engaged on the Magnox contract excluding senior management and directors, therefore representing a bargaining unit compatible with effective management. 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 said it had copied its application and supporting documents to the Employer on 6 December 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 formal written request for recognition on 17 November 2023 and had not responded. The Employer stated that it had received a copy of the Union’s application form from the Union on 18 December 2023. The Employer said that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union. In answer to the question on whether the Employer agreed the proposed bargaining unit the Employer said “No”. The Employer went on to say “Tersus Consultancy Ltd supplies compliance services across the UK to various businesses/clients of which Magnox is 1 contract/client of 144. Our service is delivered by 344 employees working out of 35 contractual locations. Across Tersus many employees are employed as mobile workers with no fixed location and may be (and have, in the past, been) reassigned to any other sites or clients in accordance with their contract of employment. Therefore, employees currently assigned to work on the ‘Magnox contract’ do not have a viable stable bargaining unit. It would be exceptionally difficult to manage a bargaining unit of 30 employees over 6 sites (2 of these sites consist of only 5 employees). The Magnox contract is due for renewal in October 2024 after which, if the contract is not renewed, employees would be reassigned to other client sites and would therefore not form any part of a bargaining unit. Further, the proposed bargaining unit represents just 13% of the total workforce size, with members making up only 8.7%. The Company holds numerous other contracts/clients where similar employees are engaged, and it would not be compatible with the principle of effective management to recognise such a small proportion of the workforce for collective bargaining purposes. The Company has a legitimate desire to avoid small, fragmented bargaining units within its undertaking.”

11)       The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist the parties. 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. The Employer explained that there were 46 workers in the proposed bargaining unit as of 4 January 2024 with a further reduction of two in January/February 2024. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

12)       In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated, that the “Union description of the bargaining unit ‘all Tersus Consultancy Ltd employees who have sole responsibility for Magnox within the Operation Function covering job roles of…..’(Question 14). Many of the listed employee roles are classed as mobile (field based) workers and therefore do not have sole responsibility for Magnox function (21 workers). Contracts of employment can be provided to support this position if required.” 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 provided no answer.

13)       The Employer made no reply 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 stated that it consented to its contact details being provided to Acas.

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

14)       In a letter dated 17 January 2024 the Union said that it had consulted with members who worked on the sites proposed for the bargaining unit. The Union said that members had all re iterated that they had a specific place of work, and that was one of the proposed Magnox sites in the bargaining unit. The Union said, “circumstances may arise which dictated changing sites but the change was historically to one of the other Magnox sites specified in the bargaining unit.” The Union went on to say “the contract which Tersus has with Magnox requires a number of Tersus employees to work on the proposed sites within the bargaining unit, all proposed employees who work on the Magnox sites do not work on any other contracts other than the Magnox contract. However, if by chance that a Tersus employee who sits within the bargaining unit does move or get moved onto another contract, then that employee would come out of the BU and therefore not be part of the recognition agreement, so we do not consider this a stumbling block.”

15)       When commenting on managing the bargaining unit the Union said that all Tersus employees working on a Magnox site were managed by a Tersus Manager. Magnox was not responsible for managing any of the Tersus employees. The Union said it could provide evidence of the management structure in the proposed bargaining unit if requested. The Union went on to say that should the Employer be unsuccessful in retaining the Magnox contract those workers who worked at the Magnox sites would be TUPE’D across to whoever was successful in the bidding for the Magnox contract. The Union added “a recognition agreement would not affect Tersus Consultancy Ltd should they not retain the Magnox contract.” The Union said that the fact the proposed bargain unit was only 13% of the Employer’s workforce was irrelevant as the Union was not seeking recognition for the entire workforce. The Union said that the application and proposed bargaining unit was only directed at those workers who worked on the Magnox contract.

16)       The Union said that its members had said that they did have sole responsibility for Magnox sites and only worked on a Magnox site due to the contract between the Employer Tersus Consultancy Ltd and Magnox.

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 18 January 2024 from the Case Manager to both parties.

18)       The information requested by the CAC was received from the Employer on 24 January 2024 and from the Employer on 21 January 2024. The Panel is satisfied that the checks were 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 42 workers in the Union’s proposed bargaining unit.

20)       The list of members supplied by the Union contained 27 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 25, a membership level of 59.52%.

21)       A report of the result of the membership and support check was circulated to the Panel and the parties on 24 January 2024 and the parties were invited to comment on the results of that check by noon on 30 January 2024.

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

22)       In a letter dated 30 January 2024 the Employer said “We would question the favour of recognition as set out in the application. Whilst members may be content to remain in the union, there are questions over whether those employees favour collective bargaining. Tersus Consultancy Ltd continues to express serious concern over the stability of this bargaining unit and that this has potential to instigate fragmentation throughout the Tersus business.”

8. Summary of the Union’s comments following the membership and support check

23)       In an e mail dated 30 January 2024 the Union said it agreed that the bargaining unit consisted of 42 workers and the number of Union members in the proposed bargaining unit had reduced to 26 based on one member exiting the business and another member moving out of the bargaining unit. The Union added that although not subject to the membership and support check the Union had carried out a survey which suggested that workers in the bargaining unit were overwhelmingly in favour of the Union being recognised.

9. Considerations

24)       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. 

25)       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 paragraphs 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraphs 36(1)(a) and paragraph 36(1)(b) are met.

Paragraph 36(1)(a)

26)       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. 

27)       The membership check conducted by the Case Manager (described in paragraphs 17 to 21 above) showed that 59.52% 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.

28)       For the reasons set out in paragraph 27 above the Panel has 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)

29)       Under paragraph 36(1) 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.

30)       For the reasons given in paragraph 27 above, the Panel has concluded that the level of union membership within the bargaining unit stands at 59.52%. 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.

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

32)       For the reasons given in paragraphs 24-31 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Ms Laura Prince, K.C., Panel Chair.

Ms Joanna Brown

Mr Kieran Grimshaw

6 February 2024