Decision

Acceptance Decision

Updated 4 November 2020

Case Number: TUR1/1116(2019)

12 July 2019

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

OCS Group UK Limited

1. Introduction

1) United Voices of the World (the Union) submitted an application to the CAC dated 7 June 2019 that it should be recognised for collective bargaining purposes by OCS Group UK Limited (the Employer) in respect of a bargaining unit comprising “The cleaners and security guards employed by OCS Group UK Limited working on the contract at Ministry of Justice, 102 Petty France, London SW1H 9AJ”. The application was received by the CAC on 11 June 2019 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted a response to the CAC dated 17 June 2019 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 Roger Roberts and Mr Paul Talbot. The Case Manager appointed to support the Panel was Sharmin Khan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 25 June 2019. The acceptance period was extended to 12 July 2019 in order to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider all the evidence 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 letter to the Employer on 15 May 2019. The Union stated that the Employer had failed to respond to the request. A copy of the Union’s request was 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 “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 85,000. The Union stated that there were 56 workers in the proposed bargaining unit, of whom 34 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 that it had a full list of its members working at the relevant site, with contact and other identifying information. The Union asked the CAC to require the provision of such information on a confidential basis along with a list from the Employer of workers in the proposed bargaining unit.

8) The Union stated that the reason for selecting its proposed bargaining unit was because it lent itself to effective management and effective collective bargaining. The Union said that the Employer had experience of dealing with these categories of workers as a unit for industrial relations purposes. The Union said that these workers had been involved in a dispute with the Employer for over 15 months and had taken concerted industrial action over a total of six days during a ten month period. The Union said that the site in question was the headquarters of the Ministry of Justice which had the power to determine these workers’ terms and conditions and it made sense for employees who serviced the Ministry of Justice offices to negotiate collectively. The Union said that it had members working for the Employer on other sites but they were widely dispersed and serviced a great many different contracts with different clients. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. The Union said that there was no existing recognition agreement of which it was aware which 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 7 June 2019.

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 May 2019. The Employer said that it did not provide a response to that request.

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 11 June 2019. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union and that it did not agree it. The Employer said that it employed 70 employees at the location of the proposed bargaining unit and that a further ten staff were currently going through the on-boarding process which would take the total number of staff to 80. The Employer said that the workers it employed at the site comprised management, administration, security, receptionist, porters, concierge and cleaning staff. The Employer said that it proposed that the bargaining unit should not exclude any particular work group as this could be detrimental to employees outside the bargaining unit. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

12) The Employer stated that it currently employed 40 security/concierge officers and 19 cleaners (with a further ten going through on-boarding) within the proposed bargaining unit. 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 said that it had no available evidence to verify the Union’s alleged membership number of 34.

14) 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 it currently ensured continuous dialogue with the workers on the site and would continue to do so. The Employer said that it undertook open forums with its workforce to discuss issues and air concerns and had no evidence that recognition was a desired outcome for workers at the Petty France site.

15) The Employer stated that it was not aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, nor had it received any other applications in respect of workers in the proposed bargaining unit via the CAC.

5. The membership and support check

16) To assist 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, addresses, 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 addresses and dates of birth where possible). 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 25 June 2019 from the Case Manager to both parties. It was agreed that the information would be supplied to the Case Manager by close of business on 26 June 2019.

17) On 26 June 2019 the Union wrote to the Case Manager attaching a list of its members. In a covering e-mail the Union stated that it had only received notice from the Employer the previous week that it was on-boarding an additional ten cleaners. The Union said that up to that point it had correctly anticipated that it had more than 50% membership in the proposed bargaining unit and that a petition evidencing support for recognition was unlikely to be necessary. The Union said that as its membership may now fall slightly below 50% within the proposed bargaining unit it was in the process of circulating a petition to bolster the application and would provide this to the Case Manager by 3 July 2019.

18) The Case Manager referred the Union’s e-mail to the Panel, which decided that the process could not be delayed to allow a party to gather new evidence and that the Union should be given the option of having the application decided on the basis of the information already submitted or withdrawing the application and making a fresh application when it had the additional information it wanted to submit. This decision was relayed to the Union by the Case Manager on the morning of 28 June 2019. As the Employer had not yet provided the requisite information for the purposes of the check, however, the Case Manager asked the Employer to provide it by close of business on 28 June 2019 and the Union was also given the opportunity to submit further evidence by that time. In the event the information from both parties was received by the CAC on 1 July 2019. The Panel is satisfied that this check was conducted properly and impartially and (deadlines apart) in accordance with the agreement reached with the parties.

19) The list supplied by the Employer indicated that there were 63 workers in the Union’s proposed bargaining unit. The following job titles were listed:

• Cleaner
• Supervisor
• Concierge
• Controller
• Receptionist
• Guard
• Officer

20) The list of members supplied by the Union contained 35 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 34, a membership level of 54%.

21) The petition supplied by the Union contained 11 names and signatures, of which six were in the proposed bargaining unit, a figure that represents 9.5% of the proposed bargaining unit. Of those six signatories, five were members of the Union (7.9% of the proposed bargaining unit) and one was a non-member (1.6% of the proposed bargaining unit). The petition was two A4 pages in length. The first page had the Union’s official logo in the header, below which was the following statement

“We, the undersigned, confirm that we would like our employer, currently OCS, to recognise the trade union United Voices of the World (UVW) for the purposes of:

• Collective bargaining, consisting of negotiations between our employer and elected representatives to get improvements on pay and other terms and conditions of employment.

• Paid time off for elected trade union representatives to carry out union duties.

• Partnership agreements to encourage a cooperative approach to employment relations.”

Under the statement was a table with 4 columns headed: “name”; “job title”; “date of birth” and “address” for individuals to complete. The second page also had the Union’s official logo in the header under which was a continuation of the table from the first page.

22) A report of the result of the membership and support check was circulated to the Panel and the parties on 3 July 2019 and the parties were invited to comment on the results of that check by close of business on 8 July 2019. The Union said that it did not wish to comment and no comments were received from the Employer.

6. 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 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.

7. 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 proposed bargaining unit. The membership check conducted by the Case Manager (described in paragraphs 16 - 20 above) showed that 54% of the workers in the proposed bargaining unit were members of the Union ^{[footnote 1]}. As stated in paragraph 18 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.

8. 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 54%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of the 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. The Panel notes that only 9.5% of the workers in the proposed bargaining unit signed a petition in favour of recognition (see paragraph 21 above) but the Panel also notes that the time available to the Union to compile this petition was very limited. The Panel does not regard the low support for recognition indicated in the petition as overriding the evidence of support represented by the level of union membership within the proposed bargaining unit. 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.

9. Decision

27) For the reasons given in paragraphs 24-26 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mr Roger Roberts

Mr Paul Talbot

12 July 2019

1. The Panel notes that the list of workers supplied by the Employer for the purposes of the membership and support check included ‘receptionist’, a category of worker which may not have been intended by the Union to fall within its proposed bargaining unit. As stated in paragraph 22 above, the Union did not take the opportunity to comment on the membership and support check and the Panel has proceeded, therefore, for the purposes of this decision on the basis of the percentage of Union members within the proposed bargaining unit shown in the Case Manager’s report. ↩