Decision

Bargaining Unit Decision

Updated 20 May 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1207(2021)

21 April 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DETERMINATION OF THE BARGAINING UNIT

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 Chair 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. Owing to his retirement from the CAC on 31 March 2021 Mr Veart was replaced for the purposes of this decision and subsequent stages of the case by Ms Virginia Branney. The Case Manager appointed to support the Panel was Kate Norgate.

3) By a decision dated 19 February 2021 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.

4) The Panel is required, by paragraph 19(2) of Schedule A1 to the Act (the Schedule), to decide whether the Union’s 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: the views of the employer and the union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; 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 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 take into account any view the employer has about any other bargaining unit that it considers would be appropriate.

2. Summary of the Union’s submissions

5) The Union submitted that its proposed bargaining unit was appropriate, in that it was compatible with effective management and taking into account the matters set out in paragraph 19B of the Schedule. The Union cited R (Kwik-Fit) v CAC ^{[footnote 1]} where Buxton LJ stated:

it should be remembered that the statutory test is set at the comparatively modest level of appropriateness, rather than of the optimum or best possible outcome. Since the CAC has only to find and can only find one bargaining unit; and has only to be satisfied that the unit that it does find is appropriate; I see no escape from the contention that, provided the CAC concludes that the union’s unit is appropriate, its inquiry should stop there.

What, in my view, however, the CAC does not have to do is to conduct a search for the most appropriate unit from amongst those that are proposed to it.

The Union submitted that this was the approach that the CAC should adopt in determining whether the Union’s proposed bargaining unit was appropriate. ^{[footnote 2]} The Union also cited R (Lidl Ltd) v CAC and GMB ^{[footnote 3]} where Underhill LJ stated:

It is in my view clear that that structure, adopting a broad criterion of ‘appropriateness’, subject to specified considerations to be ‘taken into account’, rather than setting hard-edged criteria, reflects an intention on the part of Parliament to allow full range to the expert judgement of the CAC in making decisions about bargaining units.

In addition the Union referred to the following paragraph of the decision of the European Court of Human Rights in Demir and Baykara v Turkey ^{[footnote 4]}:

….the Court considers that, having regard to the developments in labour law, both international and national, and to the practice of Contracting States in such matters, the right to bargain collectively with the employer has, in principle, become one of the essential elements of the “right to form and to join trade unions for the protection of [one’s] interests” set forth in Article 11 of the Convention….

6) The Union attached to its submissions a witness statement by Petros Elia, a member of the Union’s Executive Committee, in which he set out the history of negotiations between the Union and the Employer over the terms and conditions of workers in the proposed bargaining unit. The Union said that on 22 January 2021 the Employer had purported to reject the Union’s application for voluntary recognition but in practice the Employer had already recognised the Union’s entitlement to negotiate on behalf of workers in the proposed bargaining unit. The Union said that the Employer had engaged in collective bargaining with the Union both prior to its rejection of the Union’s application for voluntary recognition and after that rejection. The Union said that in December 2020 the Union and the Employer had held a collective consultation meeting to discuss proposals to change workers’ terms and conditions and that since that date, the Union and the employer had engaged in negotiations over workers’ contracts . The Union said that this period of collective bargaining had resulted in the following agreements: a pay increase from £8.75 to £10.85; improvements to health and safety; parity of sick pay with teachers at La Retraite school; and the payment of wages which was initially withheld following a health and safety walkout under s 44 ERA 1996.

7) The Union attached email correspondence between the Union and the Employer (addressed to and sent from the Employer’s Chief Operating Officer) in support of its submissions and Mr Elia’s witness statement. In an email to the Union dated 9 March 2021 the Employer thanked the Union for meeting earlier that day and confirmed, after discussions with La Retraite School, improved sickness benefits in relation to Covid-19 for workers in the bargaining unit with immediate effect. In an email dated 19 March 2021 the Union confirmed to the Employer that its members were pleased that the matter of sick pay had now been resolved; the Employer responded by stating “We are glad that the issues have been resolved and agreed upon, and we can all focus on providing continued excellent service to our clients”. The Employer also sent a separate email dated 19 March 2021 to the Union offering a package of benefits to workers in the proposed bargaining unit to be reflected in new contracts issued to the cleaners by 31 March 2021. These proposals related to the London Living Wage; sick pay; “Section 44 wages”; and a reduction in annual working weeks. Above the specific proposals were the following paragraphs:

As you will be aware, we have been in consultation with our client, La Retraite School, regarding the terms and conditions applicable …

We want to confirm that the cleaning industry is a highly competitive industry, with the price being a significant factor in determining contract awards. It would be difficult for Ecocleen to provide cleaners with benefits outside of the industry norms and remain competitive without each client agreeing to fund them. The below proposal does include benefits that fall outside those of our industry, but fortunately, La Retraite School wants to provide increased benefits to the cleaning staff at their school.

Please note that the below benefits and the costs associated with the below terms are being covered by the client (La Retraite) on this contract only and should not be construed as indicative of any other Ecocleen contracts.

The Union also exhibited an email dated 19 March 2021 from the Headteacher of La Retraite School to the Employer confirming the School’s belief that the cleaners should be paid the London Living Wage and should have similar sickness entitlement to other staff at La Retraite. The email stated “I understand that this may have implications for you with your other clients, but it is our firm belief ….”

8) The Union submitted that the Employer had by its conduct demonstrated that the proposed bargaining unit was compatible with effective management. The Union said that it had engaged in constructive negotiations with the Employer which had resulted in changes to the terms and conditions of the workers in the proposed bargaining unit. The Union said that, if the Employer were to raise objections that the proposed bargaining unit was incompatible with effective management, those objections were refuted by the history of successful negotiations between the parties.

9) The Union addressed the matters listed in paragraph 19B(3) of the Schedule. In relation to the views of the parties, the Union said that it was unclear whether the Employer proposed an alternative bargaining unit. The Union said that it objected to the appropriateness of any proposed bargaining units which covered sites other than La Retraite school on the grounds that it could not bargain effectively on behalf of workers spread across different sites whose terms and conditions may be different. The Union said that its proposed bargaining unit covered all of Ecocleen’s employees at La Retraite school. The Union said that it had formed close relationships with those workers; it had been engaged in a trade dispute on their behalf throughout the Covid-19 pandemic and had won significant concessions from the Employer in respect of their terms and conditions. The Union said that the fact that Ecocleen had been able to engage with the Union in these complicated negotiations (resulting in a constructive outcome) demonstrated that the proposed bargaining unit was compatible with effective management.

10) In relation to the desirability of avoiding small fragmented bargaining units, the Union said that it lacked information about existing recognition deals. The Union said that in the Employer’s response to the Union’s application for voluntary recognition dated 22 January 2021 the Employer had stated:

We are unable to recognise United Voices of the World union. Ecocleen have more than 140 sites, and Ecocleen has already recognised another union (emphasis added). We believe that the advice our employees would receive by collective bargaining with numerous unions would therefore be too fragmented.

The Union said that in the Employer’s response to its application for statutory recognition dated 10 February 2021 the Employer had stated ‘we…have already recognised other unions’ (emphasis added). The Union said that in the light of the discrepancy between these responses it was unclear whether the Employer had already recognised a single union or multiple unions. The Union said that it also had no information about what unions were recognised; when those unions were recognised; what categories of worker were covered by recognition deals; how many workers were covered by recognition deals; or where geographically there were recognition deals. The Union said that it was therefore unable to make submissions on fragmentation arising from the particularities of existing recognition deals, which put it at a disadvantage relative to the Employer. The Union asked the CAC for either (a) the opportunity to make further written submissions on fragmentation once this information had been received from the Employer or (b) a hearing to amplify its written submissions on fragmentation once this information had been received.

11) The Union said that, following Lidl, the desirability of avoiding small fragmented bargaining units was merely a consideration for the CAC to take into account; paragraph 19B(3) did not set ‘hard-edged criteria’. The Union said that some fragmentation of collective bargaining may be inevitable and it was for the CAC to take into account the particular facts of a given case and make a determination on whether, looking collectively at all of the relevant considerations under paragraph 19B(3), the proposed bargaining unit was appropriate. The Union said that the Employer’s business model made it inevitable that fragmentation of collective bargaining would occur. The Union said that the Employer provided commercial cleaning services to a variety of clients who outsourced their cleaning requirements to private contractors. The Union said that the Employer’s response dated 21 February 2021 had stated that “Ecocleen operates across 532 sites in the UK of which 202 are in-house sites and 329 sites are franchisee [sic]….”. The Union said that the practice of outsourcing cleaning services to private contractors resulted in a fragmented workforce, since large facilities management companies employed thousands of workers who were then deployed across multiple sites. The Union said that the Employer’s employees were atomised into small groups who serviced different client sites, making it difficult for them to organise across client sites spread across the UK and apply for recognition which spanned multiple sites. The Union said that if a group of the Employer’s employees did manage to achieve union density across a number of sites, but not all sites, and applied for statutory recognition, the Employer would presumably maintain its objection that collective bargaining may become fragmented.

12) The Union submitted that the CAC should not approach its task under s19B TULRCA in a way that made it excessively difficult for workers to achieve statutory recognition due to their employer’s business model, which resulted in the Employer’s employees being spread across numerous sites. The Union said that the workers in the proposed bargaining unit had organised themselves to achieve high union density among the Employer’s employees at La Retraite. As it would be impracticable for workers to organise themselves across multiple sites, the workers had done all they could be reasonably expected to do. The Union said that if the CAC’s interpretation of the fragmentation consideration in para 19B(3)(c) TULRCA 1992 rendered it excessively difficult for outsourced workers to achieve statutory recognition, this would arguably be a violation of Article 11, the European Court of Human Rights in Demir having held that collective bargaining is an “essential element” of Article 11. The Union said that whilst this did not mean that the state was under a positive obligation to guarantee collective bargaining in all circumstances, Parliament had enacted a statutory recognition regime in the form of the Schedule. The Union said that when interpreting paragraph 19B(3) of the Schedule, the CAC, as a “public authority” within the meaning of s 6 of the Human Rights Act 1998 was under a duty under s3(1) to give effect to paragraph 19B(3) in a manner which was compatible with workers’ Article 11 rights to “form and join trade unions for the protection of [their] interests”. The Union said that the proposed bargaining unit covered every single employee of the Employer at La Retraite, so there was no risk of fragmentation of collective bargaining at the La Retraite site. The Union said that it would be compatible with effective management for the Employer to be required to engage in collective bargaining with workers in the proposed bargaining unit since there was a management structure in place to administer the contract with La Retraite and the Employer had already engaged in collective bargaining with the Union over terms and conditions which resulted in contractual variations. The Union said that the Employer had not suggested that there were any further statutory recognition applications pending against it or that any were anticipated. The Employer said that any risk of further fragmentation of collective bargaining was therefore speculative and should be afforded negligible weight by the CAC.

13) In relation to the characteristics of workers, the Union said that all the workers in the proposed bargaining unit were cleaners or cleaning supervisors and the unit covered all of the Employer’s employees who worked at the La Retraite site. The Union said that all the workers in the proposed bargaining unit worked at La Retraite, Roman Catholic Girls’ School, Atkins Road, Clapham Park, London.

3. Summary of the Employer’s submissions

14) The Employer submitted that the Union’s proposed bargaining unit was not appropriate. The Employer said that although all the employees were employed as cleaners, their shift patterns and hours of work varied and that as a result each employee’s role varied, as did the management structure. The Employer said that in the light of this, the business would struggle to effectively control and manage the team.

15) The Employer said that it currently operated from over 140 sites nationally, with this number increasing. The Employer said that, in addition to this, it currently recognised and worked alongside another union, which was already a successful arrangement. The Employer said that if the Union were recognised by the CAC, there was a real risk that there would be a fragmented bargaining unit. The Employer said that a further consideration was that its work force was expanding; on 1st April 2021 it acquired 1000 additional cleaners at an additional 115 sites, adding to its already large workforce. The Employer said that, given that it already had one recognised union, if the Union were recognised also there was the strong possibility that other unions would apply for recognition, leaving the Employer to work alongside several different unions. The Employer said that this would not only prohibit its ability to provide effective management, but it would also be logistically difficult to negotiate with various unions.

4. Considerations

16) 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: the views of the employer and the union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; 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 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 take into account 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 “[i]n 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.” The Panel’s decision has been taken after a full and detailed consideration of the views of both parties as expressed in their written submissions and of the evidence provided by the Union. The Panel is satisfied that it has been able to reach a decision fairly without a hearing and on the basis of the documentation before it.

17) 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. The Panel notes that it cannot reject the Union’s proposed bargaining unit because it feels that a different unit would be more appropriate nor, in considering whether it is compatible with effective management, can it consider whether it is the most effective or desirable unit in that context. ^{[footnote 5]}

18) The Panel considers that the Union’s proposed bargaining unit is compatible with effective management. The Employer submitted that, although all the employees were employed as cleaners, their shift patterns and hours of work varied and that as a result each employee’s role varied, as did the management structure. The Employer said that in the light of this, the business would struggle to effectively control and manage the team. The Panel does not consider that variations in shift patterns and hours of work of themselves constitute an obstacle to workers being in the same bargaining unit. The Panel is also satisfied that the Employer’s management structure is compatible with the Union’s proposed bargaining unit. The exchanges of correspondence between the Union and the Employer exhibited by the Union demonstrate that the Employer has been willing and able to treat the cleaners at La Retraite School as a separate bargaining unit. Indeed, the Employer’s Chief Operating Officer emphasised in that correspondence that the terms and conditions of employment negotiated by the parties for those workers applied to the Employer’s contract with La Retraite alone; were based on the willingness of the client to meet the attendant costs; and should not be “construed as indicative of any other Ecocleen contracts”. The Employer submitted that, given that it already had one recognised union, if the Union were recognised in addition there was the strong possibility that other unions would apply for recognition, leaving the Employer to work alongside several different unions which would “prohibit” its “ability to provide effective management”. However the Employer provided no evidence of any demand for recognition elsewhere nor did it seek to argue that an alternative to the proposed bargaining unit would be appropriate. On the basis of the parties’ recent negotiating history, and the distinctive nature of the terms and conditions agreed for the workers in the proposed bargaining unit, the Panel is satisfied that this bargaining unit is compatible with effective management.

19) The Panel has considered the matters listed in paragraph 19B(3) of the Schedule, so far as they do not conflict with the need for the unit to be compatible with effective management. The views of the Employer and the Union, as described earlier in this decision, have been fully considered. In relation to existing national and local bargaining arrangements, the Panel received no evidence that there were any national bargaining arrangements in existence; in particular there was no reference to any such arrangements in the correspondence between the Union and the Employer outlined in paragraph 7 above. The Employer stated that it currently recognised and worked alongside another union although it did not give any information about the scope or extent of any such recognition. The Panel does not consider that, in the circumstances of this case, any arrangements which may be in place would constitute an impediment to recognition of the Union in the proposed bargaining unit nor, conversely, would recognition of the Union in the proposed bargaining unit interfere with any existing arrangements. In relation to the desirability of avoiding small fragmented bargaining units within an undertaking, the Panel recognises that, on the basis of the figures provided by the Employer set out in paragraph 15 above, the proposed bargaining unit covers only one out of its current 255 sites. The Employer submitted that, given that it already recognised one union, there was a strong possibility that other unions would apply for recognition, leaving the Employer to work alongside several different unions. However as noted in paragraph 18 above, the Panel received no evidence of any further demands for recognition elsewhere and as a consequence no evidence of a risk of further fragmentation of collective bargaining beyond that which may already be in existence as a consequence of the Employer having recognised another (unspecified) union for one or more of its additional sites. The Panel further notes in this connection the desire of the Employer itself to ensure that the terms and conditions of employment of cleaners at La Retraite did not apply to cleaners at other sites thus underlining the Employer’s wish to treat those cleaners as a distinctive and self-contained group of workers. As far as the characteristics of workers are concerned, all those within the Union’s proposed bargaining unit are cleaners working at La Retraite School. All the workers in the proposed bargaining unit are based at a single location. The Panel has had regard to the object set out in paragraph 171 of the Schedule in reaching its decision.

5. Decision

20) The Panel’s decision is that the appropriate bargaining unit is that proposed by the Union, namely “The cleaners employed by Ecocleen Services Limited to work at La Retraite, Roman Catholic Girls’ School, Atkins Road, Clapham Park, London SW12 OAB.”.

Panel

Professor Gillian Morris, Panel Chair

Ms Virginia Branney

Mr David Cadger

21 April 2021

1. [2002] IRLR 395 at [7] ↩

2. The Union also referred to the CAC decision in Unison and We Are With You (formerly known as Addaction) TUR1/1144 (2019) at paragraph 40. ↩

3. [2017] EWCA Civ 328 at [16[ ↩

4. Judgment of 12 November 2008, [2009] IRLR 766 at [154]. ↩

5. R (Cable and Wireless Services UK Ltd v Central Arbitration Committee [2008] EWHC 115 (Admin), Collins J at [9]. ↩