Decision

Form of Ballot Decision

Updated 4 November 2020

Case Number: TUR1/1116(2019)

10 October 2019

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON FORM OF BALLOT

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), he 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. Mr Talbot was subsequently replaced by Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Sharmin Khan.

3) By a decision dated 12 July 2019 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. No agreement was reached on the appropriate bargaining unit and a hearing to assist the Panel to determine the issue was held on 27 August 2019. During the course of the hearing it was agreed by the parties that the Union’s proposed bargaining unit could be clarified to read “All workers other than management and administrative staff employed by OCS Group UK Limited working on the contract at Ministry of Justice, 102, Petty France, London SW1H 9AJ”. Following the hearing the Panel decided that the appropriate bargaining unit was that proposed by the Union.

4) Paragraph 22(1)-(3) of the Schedule requires the CAC to issue a declaration that a union is recognised as entitled to conduct collective bargaining on behalf of the group of workers constituting the bargaining unit if it is satisfied that a majority of the workers constituting the bargaining unit are members of the applicant union, unless any of the three qualifying conditions set out in Paragraph 22(4) are fulfilled. If any of these conditions are met, or the CAC is not satisfied that a majority of workers in the bargaining unit are members of the union, the CAC must give notice to the parties that it intends to arrange for the holding of a secret ballot in which the workers constituting the bargaining unit are asked whether they want the union to conduct collective bargaining on their behalf. In a decision dated 26 September 2019 the Panel decided that it was not satisfied that a majority of the workers constituting the bargaining unit were members of the Union. In accordance with paragraph 23 of the Schedule the CAC gave notice to the parties that it intended to arrange for the holding of a secret ballot in which the workers constituting the bargaining unit would be asked whether they wanted the Union to conduct collective bargaining on their behalf. In a letter dated 26 September 2019 the Case Manager advised the parties that the Panel would wait until the end of the notification period of ten working days, as specified in paragraph 24 of the Schedule, before arranging a ballot.

5) The notification period ended on 9 October 2019. The CAC was not notified by the Union or by both parties jointly that they did not want the ballot to be held, as envisaged by paragraph 24(2). Accordingly the CAC will proceed with arranging a secret ballot.

2. Issues

6) Paragraph 25(4) of the Schedule provides that the ballot must be conducted –

(a) at a workplace or workplaces decided by the CAC,

(b) by post, or

(c) by a combination of the methods described in sub-paragraphs (a) and (b), depending on the CAC’s preference.

Paragraph 25(5) provides that, in deciding how the ballot is to be conducted, the CAC must take into account –

(a) the likelihood of the ballot being affected by unfairness or malpractice if it were conducted at a workplace or workplaces;

(b) costs and practicality;

(c) such other matters as the CAC considers appropriate.

Paragraph 25(6) provides that the CAC may not decide that the ballot is to be conducted as mentioned in paragraph (25)(4)(c) unless there are special factors making such a decision appropriate; and special factors include –

(a) factors arising from the location of workers or the nature of their employment;

(b) factors put to the CAC by the employer or the union (or unions).

7) The parties were invited, in the Case Manager’s letter of 26 September 2019 (see paragraph 4 above), to make representations to the Panel about the form of ballot in the event that the notification period expired without the Union or the parties jointly informing the CAC that they did not want a ballot to be held .

3. Summary of the Union’s submissions on the form of ballot

8) In an email to the Case Manager sent on October 2 2019 the Union submitted that a postal ballot would be appropriate. The Union said that this would reduce the cost of the ballot and reduce the chance of any undue influence from the Employer.

4. Summary of the Employer’s submissions on the form of ballot

9) In an email to the Case Manager dated 4 October 2019 the Employer requested a workplace ballot. The Employer said that the large majority of the employees within the bargaining unit were Portuguese- speaking migrant workers for whom English was a second language. On that basis the Employer was conscious that if the ballot were postal, workers may not fully understand the contents of the documents which they were required to sign whereas in the case of a workplace ballot employees would have the opportunity to ask clarification questions to a translator which would aid their understanding and the significance of their response. The Employer also said that it believed that a workplace ballot would provide for greater engagement in the process and ensure fairness and transparency.

5. Considerations

10) Paragraph 25(5) provides that in deciding how the ballot is to be conducted the CAC must take into account –

(a) the likelihood of the ballot being affected by unfairness or malpractice if it were conducted at a workplace or workplaces;

(b) costs and practicality;

(c) such other matters as the CAC considers appropriate.

The Panel has considered carefully the views of the parties and the factors specified in paragraphs 25(5) and has concluded that a postal ballot would be the most appropriate form of ballot in this case. The Panel notes the Employer’s submission that the large majority of employees in the bargaining unit are Portuguese-speaking migrant workers and that if the ballot were a workplace ballot employees would have the opportunity to ask clarification questions of a translator. The Panel also notes that if this arrangement were to be put in place steps would need to be taken to ensure that the translator was fully independent of the parties and did not inadvertently influence voting behaviour and that this would significantly increase the cost of the ballot. In the case of a postal ballot documents can be provided in translation if the parties consider this appropriate.

6. Decision

11) The decision of the Panel is that the ballot be a postal ballot.

12) The name of the Qualified Independent Person appointed to conduct the ballot will be notified to the parties shortly as will the period within which the ballot is to be held.

Panel

Professor Gillian Morris, Panel Chair

Mr Paul Noon OBE

Mr Roger Roberts

10 October 2019