Decision

Acceptance Decision

Updated 10 June 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1264/2022

19 May 2022

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 (UVW)

and

Endersham Ltd

1. Introduction

1) United Voices of the World (the Union) submitted an application to the CAC dated 27 April 2022 that it should be recognised for collective bargaining purposes by Endersham Ltd (the Employer) for a bargaining unit comprising “[t]he cleaners employed by Endersham Limited to work at Riverside Quarter, 9 Eastfield Avenue, Wandsworth, London, SW18 1RD”. The location of the bargaining unit was given as Riverside Quarter, 9 Eastfield Avenue, Wandsworth, London, SW18 1RD. The application was received by the CAC on 27 April 2022 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 5 May 2022 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 Mr Tariq Sadiq, Panel Chair, and, as Members, Mr Mustafa Faruqi and Ms Hannah Reed. Ms Hannah Reed was subsequently replaced by Mr Paul Morley on 17 May 2022. The Case Manager appointed to support the Panel was Joanne Curtis.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 12 May 2022. The acceptance period was extended to 20 May 2022 to allow the parties to comment on the results of a membership check and for the Panel to consider these 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 a request for recognition to the Employer on 25 March 2022. The Union said that the Employer had responded on 30 March 2022 rejecting the request and commenting as follows: “[r]egarding the voluntary recognition we thank you for this request. However, at this time we would not be looking for trade union recognition, given the number of different sites that we operate across.” The Union attached a copy of its request letter and the Employer’s response to the 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 “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 it did not know the total number of workers employed by the Employer. The Union added “we can estimate that it is around 400. In their financial statement ‘accounts to a small company made up to 31 March 2020’ on Companies House, it states ‘that the average monthly number of employees including directors, during the year was 366 (2019 -360).’ On their LinkedIn profile they state that ‘the business employs over 400 people including account managers, supervisors and a fully-trained and dedicated team of cleaning operatives.’ In their responses to our request, they also mention that they have a number of different sites that they operate across.” The Union stated that there were five workers in the proposed bargaining unit, all five of whom were Union members. 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 that “as all the workers in the bargaining unit are members of UVW, they do support recognition for collective bargaining. We can provide evidence of support and membership numbers should the CAC require this.”

8) The Union stated that the reason for selecting the proposed bargaining unit was that it was “appropriate and highly compatible with effective management because the bargaining unit comprises the same category of worker (cleaners), carry out the same work, at the same time, in the same place and receive the same pay rates and terms and conditions. Further the only workers employed by Endersham to work at Riverside Quarter permanently are members of the proposed bargaining unit and there is, therefore, no other category of worker that could be included in the bargaining unit.” The Union said that the bargaining unit had not been contested by the Employer in its response to the Union’s request for recognition. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the proposed bargaining unit the Union answered, “there is no existing recognition agreement which we are aware of which covers any of the workers in the bargaining unit”.

9) The Union confirmed that it held a current certificate of independence. The Union stated that the application and supporting documents were copied to the Employer on 27 April 2022.

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 7 April 2022. When asked what its response was, the Employer said “ Jamie Godsave answered call from UVW Union representative Chris Hudson. Viktoriya Shtanko submitted response on 30th March. Copy attached.”

11) The Employer confirmed that it had received a copy of the application form from the Union on 27 April 2022. 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. It added “the Union have only approached us in relation to the Riverside Quarter employees.” The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas be requested to assist, however it would be happy to have the chance to request it.

12) The Employer stated that it agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated, “We are not in disagreement with the Union’s membership in the proposed bargaining unit.” 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 answered “N/A”.

14) In answer to the question “If the application is made by more than one Union, and you wish to put forward a case that the Unions will not co-operate with each other, please give reasons” the Employer stated “N/A”. The Employer answered that it was not aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit and it was not aware of any other applications in respect of workers in the proposed bargaining unit.

5. The membership and support check

15) 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 their paid up members within that unit including their full names and date 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 9 May 2022 from the Case Manager to both parties.

16) The information requested from the Union was received by the CAC on 10 May 2022 and from the Employer on 12 May 2022. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

17) The list supplied by the Employer indicated that there were 6 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 5 names. According to the Case Manager’s report the number of members of the Union in the proposed bargaining unit was 5, a membership level of 83.33%.

18) A report of the result of the membership and support check was circulated to the Panel and the parties on 12 May 2022 and the parties were invited to comment on the results by noon on 17 May 2022.

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

19) In an email to the Case Manager dated 17 May 2022 the Union said that as far as it was aware, there were only 5 workers that fell within the proposed bargaining unit. The Union added that its members were only aware of 5 cleaners employed by Endersham Limited at Riverside Quarter, and that they had no knowledge of an additional cleaner. The Union stated that the information submitted at the time of the check was the most up to date and accurate information held following extensive talks with its members. The Employer did not respond with any comments.

7. Considerations

20) 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.

21) 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. Whilst the Employer states the request was made on 9 April, it is clear from the supporting documents attached to the Union’s application as well as the Employer’s response, that a request was made by the Union on 25 March 2022 and that the Employer responded on 30 March 2022.

Under Paragraph 7 of the Schedule, a request is not valid unless the employer, taken with any associated employer or employers, employs-

(a) at least 21 workers on the day the employer receives the request, or

(b) an average of at least 21 workers in the 13 weeks ending with that day.

In its response to the application the Employer did not state the total number of workers it employed only confirming the number of workers in the proposed bargaining unit. However, in an e-mail to the Case Manager dated 5 May 2022 the Employer confirmed that it employed a total of 340 workers, thereby satisfying the provisions of Paragraph 7. This figure resembled those figures given on the Union’s application form.

22) The Panel is also satisfied, on the balance of probabilities, that the application was made in accordance with paragraph 11(2) of the Schedule. Paragraph 11(2) applies if

(a) before the end of the first period the employer fails to respond to the request, or

(b) before the end of the first period the employer informs the union that the employer does not accept the request (without indicating a willingness to negotiate).

23) The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

Paragraph 36(1)(a)

24) 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 15-17 above) showed that 83.33% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 16 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.

Paragraph 36(1)(b)

25) 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 24 above the Panel has concluded that the level of union membership within the bargaining unit stands at 83.33%. 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. The Panel has received no such evidence to the contrary in this case.

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

8. Decision

27) For the reasons given in paragraphs 21-26 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Tariq Sadiq, Panel Chair

Mr Mustafa Faruqi

Mr Paul Morley

19 May 2022