Decision

Acceptance Decision

Updated 18 January 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1202(2020)

11 January 2021

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

Wates Property Services Ltd

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 17 November 2020 that it should be recognised for collective bargaining by Wates Living Space ^{[footnote 1]} (the Employer) for a bargaining unit comprising “All employees on the Barnsley Contract at Wates”. The location of the bargaining unit was given as The Old Gatehouse, Rockingham Business Park, Birdwell, Barnsley S70 5TW. The CAC gave both parties notice of receipt of the application on 18 November 2020. The Employer submitted a response to the CAC dated 24 November 2020 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 Chair established a Panel to deal with the case. The Panel consisted of Professor Gillian Morris, Panel Chair, and, as Members, Mrs Maureen Chambers and Mr Paul Morley. The Case Manager appointed to support the Panel was Nigel Cookson.

3) The CAC Panel has extended the acceptance period in this case on two occasions. The initial period expired on 1 December 2020. The acceptance period was extended until 6 January 2021 to enable the CAC to hold a hearing to determine whether the application was inadmissible under paragraph 35 of Schedule A1 to the Act (the Schedule) and for the Panel to finalise its decision. The acceptance period was further extended until 15 January 2021 to allow time for the parties to comment on the results of a membership check and for the Panel to consider said comments before arriving at a decision.

2. Issues

4) The Panel is required by paragraph 15 of 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. In its response to the Union’s application to the CAC the Employer submitted that the Union’s application was inadmissible under paragraph 35 of the Schedule. The Panel decided to treat the question of whether the application was inadmissible under paragraph 35 as a preliminary issue (“the preliminary issue”). In a decision dated 22 December 2020 the Panel decided that the Union’s application was not inadmissible under paragraph 35. The parties’ submissions relating to the preliminary issue were set out in full in that decision and those submissions are not repeated here. The summaries of the Union’s application and the Employer’s response to the Union’s application below are confined, therefore, to those matters which do not relate to the preliminary issue.

3. Summary of the Union’s application

5) In its application to the CAC the Union stated that it had made a request for recognition to the Employer on 28 September 2020 and attached a copy of this request to its application. Asked to summarise the Employer’s response to the request, the Union stated that the Employer had responded by email on 6 November 2020, following a meeting, in the terms set out below:

Following on from our meeting last week, unfortunately nothing has been presented during negotiations which has changed the company’s position as set out in my letter to you on 09 October.

Therefore Wates are not able to agree to your request. We are however, happy to work with Unite moving forward in the interest of good employee relations.

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 110. The Union stated that there were 110 workers in the proposed bargaining unit, of whom 76 were members of the Union. When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated “[i]ndicative ballot held of all members”.

8) The Union stated that the reason for selecting its proposed bargaining unit was “Consultation, Negotiation and Health & Safety”. The Union said that the bargaining unit had not been agreed with the Employer.

9) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application and supporting documents to the Employer on 17 November 2020.

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 written request for recognition on 28 September 2020. The Employer said that it had responded by a letter dated 9 October 2020 which it attached to its response; the Employer noted that the Union had not referred to this letter in its application form. In that letter the Employer had set out its reasons for believing that the Union’s application would be inadmissible under paragraph 35 of the Schedule but had said that it was willing to enter into a period of negotiation with the Union for 20 working days to discuss the matter further.

11) The Employer said that it had received a copy of the application form and supporting documents from the Union on 18 November 2020. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union but when asked whether it did agree the proposed bargaining unit the Employer answered “YES”.

12) When asked whether, following receipt of the Union’s request, it had proposed that Acas should be requested to assist the Employer answered “No”.

13) The Employer stated that it employed 909 workers in total. The Employer said that it did not agree with the number of workers in the bargaining unit as defined in the Union’s application. The Employer said that there were 105 workers in the Union’s proposed bargaining unit, its records showing that this was the headcount of workers on the contract for Barnsley Metropolitan Borough Council.

14) The Employer stated that it disagreed with the Union’s estimate of membership in the proposed bargaining unit. The Employer said that in the monthly payroll it deducted union dues in respect of only 45 union members and that it had no evidence in relation to the membership of the other 31 workers the Union claimed as members.

15) When asked 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 stated that it had not been provided with details of the ‘indicative ballot’ referred to by the Union (see paragraph 7 above).

16) 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 the Employer referred to matters relating to the preliminary issue. When asked whether it had received any other applications under the Schedule in respect of any workers in the proposed bargaining unit the Employer answered “Not applicable”.

5. The membership and support check

17) To assist in 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 and dates of birth. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party and that agreement was confirmed in a letter dated 23 December 2020 from the Case Manager to both parties.

18) The information requested from the Union was received by the CAC on 23 December 2020 and from the Employer on 4 January 2021. The Panel is satisfied that this check was 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 100 workers in the proposed bargaining unit. The list of members supplied by the Union contained 79 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 75, a membership level of 75.00%.

20) A report of the result of the membership and support check was circulated to the Panel and the parties on 5 January 2021 and the parties were invited to comment on the results. The Case Manager’s letter to the parties asked them specifically to address the tests set out in paragraph 36 of the Schedule.

6. Parties’ comments on the membership check

21) In an email to the Case Manager dated 5 January 2021 the Union stated that it was more than happy with the figure produced.

22) In an email to the Case Manager dated 8 January 2021 the Employer stated that, in the light of what was said in the Case Manager’s report, it appeared that the provisions of paragraph 36(1)(a) of the Schedule had been satisfied. The Employer said that it was not in a position to comment on whether the provisions of paragraph 36(1)(b) had also been satisfied and would be interested to see any comments which the Union may have in this regard.

7. Considerations

23) 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.

24) 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 12. Furthermore the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

8. Paragraph 36(1)(a)

25) 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 Union’s proposed bargaining unit. The membership check conducted by the Case Manager (described in paragraphs 17 to 19 above) showed that 75% 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 arrangements agreed with the parties. The Panel has therefore 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.

9. Paragraph 36(1)(b)

26) Under paragraph 36(1)(b) 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. For the reasons given in paragraph 25 above the Panel has concluded that the level of union membership within the bargaining unit stands at 75%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union. No such evidence to the contrary was received in this case.

27) The Panel notes the Employer’s statement, set out in paragraph 22 above, that it was not in a position to comment on whether the provisions of paragraph 36(1)(b) had been satisfied and would be interested to see any comments which the Union may have in this regard. The Panel notes that the Case Manager’s letter to the parties inviting comments on the membership check asked them specifically to address the tests set out in paragraph 36 of the Schedule. The recognition procedure operates in accordance with tight statutory deadlines and it was open to the Employer at that stage, had it so wished, to submit that paragraph 36(1)(b) had not been satisfied, for example by submitting evidence that there were workers who, despite being union members, did not favour recognition. The Panel is satisfied that the Employer was afforded sufficient opportunity to present any evidence which may have been in its possession relating to whether paragraph 36(1)(b) had been satisfied.

28) On the basis of the evidence before it the Panel has decided, on the balance of probabilities, that 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. Concluding observation

29) The Panel notes that in its application to the CAC the Union cited as evidence that the majority of workers in the proposed bargaining unit were likely to support recognition for collective bargaining an “indicative ballot … of all members”. The Union did not provide any evidence to substantiate the outcome of this “indicative ballot” or how it was conducted, nor did the Panel seek such evidence, and it has played no part in the Panel’s decision.

11. Decision

30) For the reasons given in paragraphs 24 to 28 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mrs Maureen Chambers

Mr Paul Morley

11 January 2021

1. In its application to the CAC the Union stated that the name of the Employer was Wates Living Space. In its written submissions provided for the purposes of a hearing to determine whether the application was inadmissible under paragraph 35 of the Schedule, the Employer stated that this name was incorrect. In answer to a question from the Panel Chair at the start of this hearing on 17 December 2020, the Union agreed that Wates Property Services Ltd was the correct name of the Employer and the parties agreed that this name should be substituted for Wates Living Space on the Union’s application: see paragraphs 17 and 29 of the Panel’s decision dated 22 December 2020. ↩