Decision

Acceptance Decision

Updated 20 May 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1207(2021)

19 February 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:

United Voices of the World

and

Ecocleen Services Ltd

1. Introduction

1) United Voices of the World (the Union) submitted an application to the CAC dated 2 February 2021 that it should be recognised for collective bargaining purposes by Ecocleen Services Ltd (the Employer) in respect of a bargaining unit comprising “The cleaners employed by Ecocleen Services Limited to work at La Retraite, Roman Catholic Girls’ School, Atkins Road, Clapham Park, London SW12 OAB.” The location of the bargaining unit was given as “La Retraite, Roman Catholic Girls’ School, Atkins Road, Clapham Park, London SW12 OAB.” The application was received by the CAC on 2 February 2021 and the CAC gave both parties notice of receipt of the application the same day. The Employer submitted a response to the CAC dated 10 February 2021 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 Professor Gillian Morris, Panel Chair, and, as Members, Mr David Cadger and Mr Gerry Veart. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 16 February 2021. The acceptance period was extended to 26 February 2021 in order to allow time for the parties to comment on the results of a membership check and for the Panel to consider those 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 its request for recognition to the Employer on 15 January 2021. The Union stated that in a letter dated 22 January 2021 the Employer had rejected this request. In its letter the Employer had said that it had more than 140 sites and had already recognised another union. The Employer had said that it believed that the advice its employees would receive by collective bargaining with numerous unions would be too fragmented but that it recognised any individual’s right to be represented on an individual basis by the union of their choice. A copy of the Union’s request and the Employer’s letter of 22 January 2021 were attached to the Union’s 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 “n/a”. 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 it did not know the exact number of workers employed by the Employer but that it was at least 26 workers as there were 26 workers in the proposed bargaining unit. The Union said that the Employer stated on its website that it handled contracts of all sizes on behalf of over 600 customers and had mentioned having 140 sites in its response to the Union’s request for recognition. The Union stated that there were 26 workers in the proposed bargaining unit, of whom 14 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 said that the majority of workers in the bargaining unit were members of the Union. The Union said that it was willing to provide further evidence, on a confidential basis, of support over and above its membership numbers should the CAC require this.

8) The Union stated that the reason for selecting its proposed bargaining unit was because it was highly compatible with effective management and the workers in the bargaining unit comprised the same category of worker (cleaners); carried out the same work at the same time in the same place; and received the same pay rates and terms and conditions. The Union said that, with the exception of one supervisor and one manager, the only workers employed by the Employer to work at La Retraite school were members of the proposed bargaining unit and there was, therefore, no other category of worker that could be included in the bargaining unit. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said that the Employer had not contested the bargaining unit in its response to the request for recognition. The Union said that there was no existing recognition agreement of which it was aware that covered any workers in the bargaining unit.

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 2 February 2021.

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 15 January 2021. The Employer said that it had responded by letter dated 22 January 2021 in the terms set out in paragraph 5 above. A copy of the Employer’s letter of 22 January 2021 was attached to the Employer’s response.

11) The Employer said that it had received a copy of the application form and supporting documents from the Union on 2 February 2021. 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, and that it did not agree the proposed bargaining unit. The Employer said that it operated across 531 sites in the UK, of which 202 were in-house sites and 329 were franchisee, and it needed to ensure consistency across all sites and had already recognised other unions. The Employer said that it believed that the proposed bargaining unit could lead to fragmented advice and agreements across sites and that it would not be beneficial to employees or the Employer to have multiple bargaining units at each site. The Employer said that it did not believe that it could have a meaningful and “trustful” relationship with the Union which would benefit its employees. The Employer said that it had evidence that the Union had encouraged the Employer’s employees to breach part of their terms and conditions of employment and had evidence of false information posted onto social media regarding the Employer and its client. The Employer said that a subsequent letter had been issued to the Union in this regard from the client’s solicitor and that this could be provided on request.

12) When asked whether following receipt of the Union’s request it had proposed that Acas should be requested to assist, the Employer said that it had not.

13) The Employer said that it disagreed with the number of workers in the bargaining unit as set out in the Union’s application. The Employer said that the number was 27 not 26.

14) The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

15) The Employer said that it disagreed with the Union’s estimate of membership in the proposed bargaining unit. The Employer said that it had not received any evidence that the Union had 14 members. The Employer said that only ten members were on the Union’s social media post and that the Union may have only ten members.

16) 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 said that, as it had not received evidence that the Union had 14 members it would therefore not know if it had a majority. The Employer reiterated that it could expect that the Union had only ten members as only ten employees were on the Union’s social media post.

17) The Employer answered “Not aware” when asked whether it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, and answered “No” when asked whether had it received any other applications in respect of any workers in the proposed bargaining unit.

5. The membership and support check

18) 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 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 11 February 2021 from the Case Manager to both parties.

19) The information requested from both parties was received by the CAC on 15 February 2021. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

20) The list supplied by the Employer indicated that there were 29 workers in the Union’s proposed bargaining unit. Beneath the heading “Job Title” the titles provided were “Cleaning Operative” and “Supervisor”. The list of members supplied by the Union contained 14 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 14, a membership level of 48.28%.

21) A report of the result of the membership check was circulated to the Panel and the parties on 15 February 2021 and the parties were invited to comment on the results of that check by close of business on 17 February 2021.

6. Summary of the parties’ comments following the membership and support check

22) In an e-mail to the CAC dated 15 February 2021 the Union submitted that there were 27 workers in the proposed bargaining unit, so that its members made up 51.85% of the proposed bargaining unit. The Union said that, in its response to the Union’s application to the CAC, the Employer had confirmed that there were 27 workers in the proposed bargaining unit. The Union said that one of its members had taken a picture, which the Union attached, of the check-in sheet for the shift on 12 February 2021 which listed 27 workers employed by the Employer at La Retraite school. The Union said that the Employer must account for the discrepancy in evidence it had submitted to the CAC. The Union submitted that the Employer was either misrepresenting the number of workers in the proposed bargaining unit or, alternatively, had added two new workers to the bargaining unit in the previous four days to dilute the Union’s membership in the bargaining unit. The Union submitted that, in the light of the picture of the check-in sheet, it was highly likely that the Employer had misrepresented the number of workers in the bargaining unit to the CAC. The Union asked the CAC to carry out an investigation and take appropriate remedial action.

23) In an e-mail to the CAC dated 17 February 2021 the Employer agreed that 10% of the workers in the proposed bargaining unit were members of the Union. The Employer said that it did not agree 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. The Employer said that the majority of employees had attended work and continued to do so and had raised no concerns in respect of any of the claims raised by the Union. The Employer said that the Union’s continued use of social media to disrupt the business and put false claims in the public domain had made other employees, and its client, feel uncomfortable. The Employer said that it felt that the Union demonstrated by its activities that it would be divisive and disruptive within the workplace. The Employer said that the Union’s most recent activity was to have hundreds of emails sent daily to various of the Employer’s management email addresses, disrupting the ordinary course of business.

7. 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 material to the matters it is required to decide 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 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)

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. The membership check conducted by the Case Manager (described in paragraphs 18-20 above) showed that 48.28% of the workers in the proposed bargaining unit (14 out of 29 workers) were members of the Union. As stated in paragraph 19 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached 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)

27) 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. As stated in paragraph 26 above the membership check conducted by the Case Manager showed that 14 out of 29 workers in the bargaining unit were members of the Union, representing a membership level of 48.28%. 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. No such evidence to the contrary was received in this case. Moreover, it is the Panel’s experience that there will be workers who are not members of the Union who would be likely to favour recognition of the Union.

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 observations

29) The Panel notes the Union’s concern that the Employer had either misrepresented the number of workers in the proposed bargaining unit when providing information for the membership check, or had added two workers to the bargaining unit in the preceding four days, in order to dilute the Union’s membership for the purpose of the check. In view of the conclusions set out in paragraphs 26-28 above the Panel has not found it necessary to investigate these allegations further; makes no findings on them; and they have played no part in the Panel’s decision. The Panel will investigate the matter further at a later stage of the process should it find it necessary to do so. The Panel will also seek to establish at a later stage of the process, should it find it necessary to do so, whether the supervisor who was included in the membership check falls within the Union’s proposed bargaining unit (see paragraphs 8 and 20 above).

30) The Panel notes the allegations made by the Employer about the conduct of the Union (see paragraphs 11 and 23 above). The Panel has not investigated these allegations; makes no findings on them; and they have played no part in the Panel’s decision.

31) The Panel notes that the Employer does not consider that the Union’s proposed bargaining unit is appropriate. In the event that the parties are unable to reach an agreement as to what the appropriate bargaining unit is, the Panel will be required to decide whether the Union’s proposed bargaining unit is appropriate and, if it decides that it is not appropriate, to decide a bargaining unit which is appropriate. The parties will have the opportunity to make detailed submissions to the CAC on this matter should it fall to the CAC to determine the issue.

11. Decision

32) For the reasons given in paragraphs 25-28 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mr David Cadger

Mr Gerry Veart

19 February 2021