Decision

Recognition Decision

Updated 22 April 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1380(2023)

 22 April 2024

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

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)         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. A hearing took place on 19 March 2024 and in a decision dated 25 March 2024 the Panel decided that the bargaining unit proposed by the Union was compatible with effective management and was therefore appropriate.

2. Issues

4)         Paragraph 22 of 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 unions, 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.

5)         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

6)         In a letter dated 25 March 2024 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 email dated 27 March 2024, stated “Unite claims that they have a majority of Union member within the bargaining unit.”

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

7)         On 2 April 2024 the CAC copied the Union’s email of 27 March 2024 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.

8)         In its response dated 4 April 2024 the Employer stated, “The company does not have any confidence that the majority of workers in the bargaining unit are supportive of collective bargaining on their behalf.   In January 2024 Unite declared 25 members to the Panel.  Since this date 3 members of the business unit have been declared as home workers and therefore not included in the unit under the terms of the application.  Additionally, 1 has been moved back into Tersus field worker and 3 have resigned from the business.  Therefore, if all those moved/resigned were calculated under the supporting 25, there is potential that the union no longer holds a majority support.  It is suggested that under the qualifying conditions, as specified in paragraph 22(4) of the schedule, that evidence exists which can lead the CAC to concluded that there are doubts whether a significant number of union members within the BU want the union to conduct collective bargaining on their behalf. We would request the CAC to hold a ballot to confirm that majority support exists.”

5. Membership and support check

9)         In light of the comments made by the Employer in paragraph 8 the Panel requested that a further membership check be undertaken to ascertain whether the Union had a majority of members in the bargaining unit. The Employer provided a list with a total of 35 workers in the bargaining unit. The Union provided a list of 25 union members. The number of union members in the bargaining unit was 20, a membership level of 57.14%.  A report was issued to the parties on 10 April 2024 and comments invited on whether a majority of the workers in the bargaining unit were members of the Union and the three qualifying conditions, as specified in paragraph 22(4) of the Schedule.

6. Comments on the membership and support check

10)       In an e mail dated 15 April 2024 the Union said “I can confirm that having spoken to members, of the 5 identified 3 of them do in fact work on one of the nuclear power sites within the BU. I do concede that 2 members fall outside of the BU.”

11)       In an e mail dated 16 April 2024 the Employer said that the results of the check on the level of Union membership in the bargaining unit should lead the CAC to conclude that there were doubts as to whether a significant number of Union members within the bargaining unit wanted the Union to conduct collective bargaining on their behalf.  The Employer said that the check had determined that five workers appeared on the Union list “who support the union but are not on the employer list. If they are not in the employer list, they cannot be in the BU.”  The Employer went on to say that it had evidence from two workers in the bargaining unit who had received correspondence from the Union but were not members or supportive of the Union. The Employer said that the two workers had “made a compliant to their senior manager as to why correspondence has been received and how the union obtained their contact details as this is a breach in GDPR! Tony Hulbert (Unite Regional Office) stated that Unite were not actively pursuing membership as workers had approached them.   The point above casts doubts over the integrity of the data disclosed by Unite.”

7. 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 most recent membership and support check conducted on 10 April 2024 had shown the Employer listing a total of 35 workers in the bargaining unit. The Union had provided a list of 25 union members. The number of union members in the proposed bargaining unit was 20, a membership level of 57.14%.  Accordingly, the Panel accepts that the majority of workers in the bargaining unit are members of the Union.

14)       The Panel has carefully considered the submissions of 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, other than a statement made by the Employer that two workers in the bargaining unit had said that they were not Union members and did not support the Union. This condition does not therefore 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.

8. 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 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.”

Panel

Ms Laura Prince, K.C.

Ms Joanna Brown

Mr Kieran Grimshaw

22 April 2024