Decision

Bargaining Unit Decision

Updated 22 April 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1380(2023)

25 March 2024

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DETERMINATION OF THE BARGAINING UNIT

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. For the purposes of the bargaining unit hearing and subsequent decision Mr Sean McIlveen replaced Mr Kieran Grimshaw. The Case Manager appointed to support the Panel was Joanne Curtis.

3)         By a decision dated 6 February 2024 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. As no agreement was reached, the parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit.

2. Hearing

4)         A hearing was held via zoom and the names of those who attended the hearing are appended to this decision. Both parties provided written submissions prior to the hearing together with supporting documentation. The Panel would like to thank the parties for answering the questions raised by the Panel prior to and during the hearing. The information they provided was very helpful to the Panel.

3. Points of clarification prior to hearing

5)         The Panel asked whether the workers were employed at five or six locations. The Union responded by stating “there are in fact six nuclear power stations/sites in the proposed bargaining unit, however both Tersus consultancy Limited and Unite the Union refer to Harwell & Winfrith as a co-joined site, hence the reference to five stations proposed. This is reinforced within the Tersus Consultancy Limited operational chart which was provided with the submission and shows the co-joined site of Harwell & Winfrith. The joint reference to these two sites as one entity is also reflected in other collective bargaining agreements that Unite have across the exact same sites with other employers. These collective bargaining agreements mirror the proposed bargaining unit for Tersus Consultancy in terms of location and Harwell & Winfrith are jointly referenced in those. It is effectively six actual locations, but organisationally it is five sites.”

6)         The Panel asked for confirmation on how many workers in the proposed bargaining unit were employed at each of the listed sites. The Union said that the numbers in the proposed bargaining unit had decreased and that as of 1 January 2024 this number to the best of the Union’s knowledge was 42. The Employer was able to clarify that the workers at each site were as follows:

Harwell - 3 employees

Winfrith - 2 employees

Oldbury - 12 employees

Berkeley - 5 employees

Hinkley - 12 employees

Dungeness - 5 employees

7)         The Union said that its understanding was that all of the Employer’s workers at the sites were included in the proposed bargaining unit. The Union said that this decision was taken when formulating the proposed bargaining unit to avoid arguments of fragmentation. The Employer responded by saying “there will be 2 Tersus employees not associated with the NRS contract commencing work in Harwell in April 2024.  The number of Tersus employees will see further increases over time in Harwell. This is a separate contract to NRS, and employees may have different terms and conditions, and, in our opinion, this could lead to a fragmented management situation.”

8)         When asked about the TUPE transfers the Employer confirmed “01/10/2021– TUPE Element/Exova employees to Santia. 01/10/2022 – TUPE Santia employees to Tersus Consultancy Ltd.”

9)         The Panel asked whether the TUPE transfers meant that the workers within the proposed bargaining unit had different terms and conditions to other workers who were not within the proposed bargaining unit. In response the Union said “all employees have been included in the BU across the NRS sites. The union would further understand that the terms and conditions of employment are consistent for those that joined pre-TUPE and post TUPE. Furthermore, it is understood that some terms and conditions within the proposed BU are distinct to the proposed BU and are in part funded by the client, that is to say Magnox/NRS including the recent pay increase.” The Employer responded by saying “due to the previous TUPE there are currently employees within the proposed BU on Element, Santia and Tersus terms.  There are variations in each contract.  These terms are also different from those employed outside of the proposed BU.” The Employer provided sample employment contracts for the Panel in advance of the hearing. The Employer explained that the contracts were for new workers and had different elements to those who had TUPE’d across to the Employer.

10)       The Employer mentions in their letter that the current contracts on which these workers are deployed enters a period of re-tendering during the summer of 2024. Is this limited to the contracts of the workers within the proposed bargaining unit or are there other workers (outside of the proposed bargaining unit) who are also impacted by the re-tendering? The Employer explained that at the moment this was unclear.

4. Summary of the submissions made by the Union

11)       The Union started by explaining that Magnox had changed its brand since the Union had submitted its application and was now known as Nuclear Restoration Services (NRS). The Union confirmed that the proposed bargaining unit consisted of all workers who had sole responsibility for Magnox (NRS) 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 employed by Tersus Consultancy Ltd at the following sites: -

• Harewell: Harwell Campus, OX11 0DF

• 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 Station), Bridgewater, TA5 1YA

• Dungeness: Dungeness Power Stations, Romney Marsh, Kent

12)       The Union went on to say that the “Operations Function” had sole responsibility for Magnox/NRS and was separate from the Employer’s other functions and was well defined as having the sole responsibility for the six nuclear sites as detailed in the proposed bargaining unit. The Union went on to say that workers in the proposed bargaining unit were originally employed by Santia Asbestos Management Limited and then TUPE transferred to Tersus Consultancy Limited in around 2021/22. The Union said, “an example pre-TUPE employment offer states ‘I am delighted to make you a formal offer of employment for the position of Asbestos Consultant on a permanent basis working for the Magnox team at Santia Asbestos Management Limited’. The employment offer therefore sets out their designation to Magnox/NRS rather than generic employment across multiple Tersus Consultancy Limited contracts/functions.”

13)       In avoiding fragmentation of the bargaining unit, the Union said that its application had deliberately sought recognition for all workers across the Operations Function in the nuclear sites which was distinct from the other functions and contracts of the Employer. The Union added that any transferability would be between the Magnox/NRS sites rather than other Employer contracts. The Union said that the Operations Function had responsibility for the management and removal of asbestos at the nuclear sites and therefore remained distinct from other areas of the Employer. The Union went on to say that the Operations Function operated similar working patterns across the Magnox/NRS sites with consistent rates of overtime paid across the proposed bargaining unit. The Union said that due to the contained nature of the proposed bargaining unit pay bargaining for the Operations Function would not have a bargaining impact across other roles.

14)        The Union said that it remained of the view that the proposed bargaining unit was appropriate and that the Employer’s main arguments centred around a reluctance to recognise the Union as opposed to the bargaining unit. The Union said that to the best of its knowledge there were no existing bargaining arrangements in place for workers in the proposed bargaining unit or within the Employer’s wider workforce. The Union said that the proposed bargaining unit was compatible with effective management and the desirability of avoiding small, fragmented bargaining units (Paragraphs 19B(2)(a) and (3)(c)). The Union explained that the workers within the proposed bargaining unit fulfilled specific roles, on the Magnox/NRS sites, and therefore formed a coherent and discrete group. On the point of fragmentation, the Union said that the proposed bargaining unit consisted of the “Operations Function” across the nuclear sites and therefore the size of the proposed bargaining unit was dictated by that operation. The Union said that it had deliberately included all Operations Functions to ensure an avoidance of fragmentation and to present a proposed bargaining unit that was coherent and cohesive. To continue the point on fragmentation, the Union said that there would not be workers for the Employer working alongside workers in the proposed bargaining unit who would be excluded from the collective bargaining arrangements, given the discrete nature of the proposed bargaining unit. The Union continued by saying that across the nuclear sites there already existed, similar sized workforces that enjoyed union recognition and collective bargaining including Equans, Altrad, Nuvia and the client Magnox/NRS. The Union said that these bargaining units operated efficiently and without fragmentation, and that the nature of the contracts on these nuclear sites meant that the workforces would be more modest in size which would mean smaller bargaining units, but not without the ability to operate effective collective bargaining and management.

15)       In relation to the characteristics and location of workers (Paragraphs 19B(3)(d) & (e)) the Union said “the following seven points are relevant factors of characteristics and location: - a. Location: All workers in the proposed bargaining unit work at the same locations, namely the nuclear sites with flexibility only existing between the sites and work not being undertaken at other Tersus Consultancy Limited sites/functions. b. Similar roles: The roles in the proposed bargaining unit are all within the Operations Function so whilst different job roles exist within the proposed bargaining unit these all fall under the Operations Function banner. The roles are well defined, and represent a cohesive and discrete group of workers with similar characteristics; c. Staff handbook and policies: The same staff handbook and policies apply to all workers within the proposed bargaining unit; d. Hours of Work: The workers are all engaged on similar working patterns and hours of work; e. Terms and conditions of employment: The standard terms and conditions of employment within the proposed BU are the same.”

5. Summary of the submissions made by the Employer

16)        The Employer started by challenging the request for recognition by the Union. The Employer said that it believed that the bargaining unit was not “an accurate representation of the total payroll workforce within the business and therefore does not have a requirement to recognise on the basis of ratios of representation.” The Employer said that it currently had 343 employees on its payroll, the majority of who worked in remote and client specific locations across the country. The Employer continued by saying “our field and client facing employees are on the whole carrying out similar work and have similar skill sets. Our employees are paid on a consistent and harmonised set of terms and conditions and therefore, we believe every employee is in effect equal in their job positions and roles. The most significant difference is normally the client with whom they are working and their Geographic location. By definition of the work we do, we have a significant management challenge when working with our field-based and client-facing staff teams, By design and by default of the environment in which we work, we have a fragmented and low density representation across a multitude of geographic locations, in context, in the proposed unit only two employees are located at the Winfrith Newburgh site the largest single number of employees is 12 at Hinkley Point. We believe the collective group of employees who may be seeking recognition of a union represent a very small percentage of our total workforce and we would challenge the notion that they are a stand-alone bargaining unit proportionate to our total payroll.”

17)       The Employer said it had between two to twelve employees at six locations which were geographically widespread and collective bargaining would prove difficult to manage. The Employer went on to say that another material fact in its objection to the request was its commercial and contractual position with the client. The Employer said that the current contracts on which the workers concerned were deployed would enter a period of re-tendering throughout the summer period of 2024, and as a business, the Employer had no confirmation or knowledge as to whether the contract would continue. The Employer said “under those circumstances, we also believe this would lead to difficulty in managing ongoing union engagement and particularly presents problems in collective bargaining should we dissipate each individual to a new place of work. We are aware that in the event of the contract novating to a new supplier there is a possibility of the current workers being attracted to the new supplier and a potential TUPE. However, it remains a particularly unclear possibility and therefore not a material factor in our decision making as there are no guarantees of a TUPE.”

18)       The Employer went on to address the characteristics of the workers stating that 343 workers were spread across the United Kingdom and currently “serviced 144 different clients” of which the Nuclear Restoration Services (NRS) contract (formally Magnox) was only one. The Employer said that at the time of the Union’s initial application there was 47 workers, with the Union reporting a 30 strong membership and that today, “the contract was serviced by 39 and a confirmed number of supporting members reduced to 25 (January 2024), with a planned reduction of 2 more in the coming weeks, likely to increase to 5 by end May 2024, thus indicating the fluctuating nature of the unit workers and it’s instability.” The Employer concluded by saying “when taken in the context of the Tersus payroll, the percentage membership is 7.28%. To help the panel understand the wider context of our employee profile we have over 1000 similar employees in the field within our Marlowe Compliance Services group (of which Tersus is one entity). Recognising this wider context, our belief of an unworkable and fragmented management requirement, may be better understood by the panel.”

19)       Prior to the hearing, the employer had helpfully provided copies of two contracts of employment. One was titled ‘Magnox contract’ and the other was titled ‘Tersus fee earner contract’. At the hearing the Employer stated that there were a number of different contracts at Tersus both within and outside of the proposed bargaining unit (due to TUPE transfers into Tersus) but stated that new employees into the proposed bargaining unit would be employed on the Magnox contract and new recruits into Tersus (outside of the bargaining unit) would be employed on the ‘Tersus fee earner contract’.  There were differences between these two contracts. Of particular importance was the fact that the hours differed. Magnox employees worked a four-day week with different hours to Tersus employees.  The Employer explained that this was due to the nuclear plants within which they worked.  The Employer stated that there was ‘on site uniqueness’.

20)       Prior to the hearing, the Union had helpfully provided a Structure Diagram setting out the structure of Tersus, including Magnox/the NRS.  From this chart it appeared that the NRS was a separate and distinct part of Tersus.  The Employer stated that this chart was out of date as it had some names on it of people who had since moved roles.  The Employer did, however, accept that it was accurate, save for points concerning individual employees. The Employer had not provided a structure chart or stated that they disagreed with the chart provided by the Union ahead of the hearing.  The Employer stated that they intended to produce a more regional structure due to the diverse locations at which their employees worked. The Employer said that it would like employees to report into regional managers. At present, this was an aspiration. No documentary evidence was provided about the plan, and it appears that nothing has been done, at this stage, in order to bring the plan into fruition.  The structure diagram provided by the Union therefore provided the best evidence of the current structure at Tersus.

21)       When asked about the likelihood of employees moving between the NRS part of Tersus and other parts (for example sick cover) the Employer stated that it was a theoretical possibility but that there would need to be an induction in respect of working on nuclear sites. The Employer pointed to one individual who had moved from the NRS part of Tersus to another part.  In reality the Employer accepted that movement into the NRS by other Tersus employees would be rare.

22)       At the hearing the Employer was asked how the proposed bargaining unit was inconsistent with effective management. The Employer stated that it would not stop them doing what they were doing but that it would be an ‘odd outlier’.  The Employer was also asked what proposed bargaining unit they considered would be appropriate given their current structure (and not their future intended structure). The Employer did not propose any alternative bargaining unit.

6. Considerations

23)       The Panel begins with the statutory framework. The Panel is required, by paragraph 19(2) of the Schedule to the Act, to decide whether the proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. Paragraph 19B (1) and (2) state that, in making those decisions, the Panel must take into account the need for the unit to be compatible with effective management and the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need. The matters listed in paragraph 19B (3) are:

(1) the views of the employer and the union;

(2) existing national and local bargaining arrangements;

(3) the desirability of avoiding small, fragmented bargaining units within an undertaking;

(4)   the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and

(5)   the location of workers.

Paragraph 19B(4) states that in taking an Employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must consider any view the Employer has about any other bargaining unit that it considers would be appropriate.  The Panel must also have regard to paragraph 171 of the Schedule which provides that “In exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned.”

24)       In reaching its decision the Panel has taken account of the views of the Union and the Employer as expressed in their written submissions, responses to questions and oral submissions during the hearing.

25)         The Panel’s first responsibility is to decide, in accordance with paragraph 19(2) of the Schedule, whether the Union’s proposed bargaining unit is appropriate. That does not require the Panel to determine whether it is the most appropriate bargaining unit; only whether it is appropriate. This is the overriding requirement under 19B(2) and relates principally to the matters to be collectively bargained for under the statutory regime, namely pay, hours and holidays. The requirement is that the proposed bargaining unit would be compatible with effective management, not that it be compatible with the most effective management. Against the background of that overall responsibility the Panel has to consider the matters listed in paragraph 19B(3) of the Schedule, reminding itself that these matters must not conflict with the need for the unit to be compatible with effective management.

26)         The Panel finds that the bargaining unit proposed by the Union is compatible with effective management and is therefore appropriate. The Panel’s reasons are that:-

•  first, the proposed bargaining unit consists of a discrete “Operations Function” in respect of which bargaining can appropriately take place. This was clear from the structure diagram provided in which the employees within the proposed bargaining unit appear as a distinct unit and from the evidence which the Panel heard;

• second, there are no other national or local bargaining arrangements in existence;

• third, as no arrangements exist elsewhere within the Employer’s business, no question of fragmentation arises;

• fourth, the workers in the proposed bargaining unit were employed on different terms, particularly in respect of hours (i.e., the four-day week), than other Tersus employees. Tersus described the NRS employees, during the hearing as ‘unique and eclectic’.

• fifth, whilst the workers in the proposed bargaining unit were employed at 6 different locations, they were currently, the only Tersus employees at those locations, and the only employees employed at nuclear sites, and they had TUPE’d together into Tersus in 2021 and they all report to the same manager (directly or indirectly);

• sixth, the Employer was unable to point to an alternative bargaining unit which would be appropriate.

Finally, the Panel recognises the uncertainty about the future of contracts, but the bargaining unit remains in existence as at the date of this hearing which is when the Panel determines its appropriateness. The Panel’s only function at this stage is to decide the appropriateness of the proposed bargaining unit, which it has done based on the circumstances which currently exist. Any later changes in the relevant circumstances can be considered, as appropriate, during the CAC’s process.

7. Decision

27)       The Panel’s decision is that the appropriate bargaining unit is that proposed by the Union, namely: “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. Based at the following sites 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 and Dungeness: Dungeness Power Stations, Romney Marsh, Kent.”

Panel

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

Ms Joanna Brown

Mr Sean McIlveen

25 March 2024

APPENDIX

Names of those who attended the hearing.

On behalf of the Trade Union

Tony Hulbert, Regional Officer

On behalf of the Employer

Cristian Applegarth, Tersus People Business Partner

Bill Tolmie, Marlowe Compliance Services Chief Operating Officer