Decision

Paragraph 26 Decision

Updated 4 November 2020

Case Number: TUR1/1116(2019)

12 June 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE EMPLOYER HAD COMPLIED WITH PARAGRAPH 26 OF THE SCHEDULE

RELATING TO ITS DUTIES DURING THE BALLOTING PERIOD

The Parties:

United Voices of the World

and

OCS Group UK Ltd

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. Mr Talbot was subsequently replaced by Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Sharmin Khan who was subsequently replaced by Linda Lehan.

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 Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (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). The Panel therefore gave notice that it intended to arrange a ballot. The Parties did not agree on the type of ballot to be conducted. In a decision dated 10 October 2019 the Panel announced that having considered the views of the Parties and the factors specified in paragraphs 25(5) and (6) of the Schedule the ballot would be a postal ballot.

6) The Parties were notified of the name of the Qualified Independent Person appointed to conduct the ballot and the arrangements for the ballot pursuant to paragraph 25(9) of the Schedule on 2 June 2020.

7) On 8 June 2020 the Union submitted complaints to the CAC that the Employer had failed to comply with its statutory duties under paragraph 26 of the Schedule.

2. The statutory framework

8) The Panel must determine whether the Employer was in breach of any of the statutory duties imposed on it by paragraph 26 of the Schedule. That paragraph imposes five duties on an employer. It is the first two of these duties that form the subject of the Union’s complaints. These duties are as follows:

(1) to co-operate generally, in connection with the ballot, with the union and the person appointed to conduct the ballot; and the second and third duties are not to prejudice the generality of this: paragraph 26(2); and

(2) to give to the union such access to the workers constituting the bargaining unit as is reasonable to enable the union to inform the workers of the object of the ballot and to seek their support and their opinions on the issues involved: paragraph 26(3).

In determining these issues the Code of Practice on Access and Unfair Practices during Recognition and Derecognition Ballots (2005) (the Code of Practice) issued by the Secretary of State is admissible in evidence in proceedings before the CAC and any provision which appears to the CAC to be relevant to any question arising in the proceedings shall be taken into account in determining that question: section 207(3) of the Act.

9) If the CAC is satisfied that an employer has not fulfilled any of the duties imposed by paragraph 26, and the ballot has not been held, it may under paragraph 27(1) order the employer (a) to take such steps to remedy the failure as the CAC considers reasonable and specifies in the order and (b) to do so within such period as the CAC considers reasonable and specifies in the order. Paragraph 27(2) provides that if the CAC is satisfied that the employer has failed to comply with an order under paragraph 27(1), and the ballot has not been held, the CAC may issue a declaration that the union is recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.

3. Summary of the Union’s complaints

10) The Union’s complaints fell into two categories. The first concerned the Union’s request to hold joint access meetings with the Employer (the first complaint). The second concerned the Union’s requirement that face masks should be provided by the Employer to everyone attending access meetings (the second complaint).

The first complaint

11) The Union said that from the outset of negotiations it had asked to hold joint meetings with the Employer. The Union stated that it noted that the Code of Practice envisaged the possibility of joint meetings, describing them as an “efficient method of providing information, minimising business disruption and costs” (paragraph 41). The Union also noted that the Code of Practice provides that employers “should not dismiss [the union’s] proposals unless he considers the union’s requirements to be unreasonable in the circumstances” (paragraph 18; emphasis added). The Union said that it had identified four specific advantages of holding joint meetings:

(1) Both parties can put across their views in a constructive manner in a joint forum; (2) There is a reduction in the risk that workers will be discouraged from attending meetings due to fear of reprisals from the Employer; (3) Workers will be more likely to engage as they will have to attend fewer meetings (three instead of six); (4) The cost of translating meetings into different languages will be halved.

12) The Union stated that the Employer’s objection to joint meetings had been set out in an email dated 14 May 2020 as follows:

The business rationale is to preserve service delivery to our client and to release our colleagues in groups for too long would have an impact on this. We are able to support a 30 minute meeting hence separate meetings being required.

The Union said that it had pointed out that three joint meetings were a more efficient way of preserving service delivery, since the total amount of time spent in meetings would be halved, on top of the other advantages it had identified. Following this email, the Union said that the Employer had refused to engage further, with the Employer replying “Please refer to my previous emails. OCS agrees to individual meetings only.” The Union stated that the Employer had failed to give a single good reason for its refusal to hold joint meetings. The Union said that its concern was that the Employer did not want workers to engage fully in access meetings with the Union and did not want to reassure its workers that attendance at the meetings would have no negative consequences.

13) The Union stated that its complaint was that the Employer was refusing to cooperate generally with the Union in connection with the ballot and had failed to give reasonable access to the Employer’s workers. The Union said that it had tried to engage with the Employer in a constructive dialogue about how to hold joint access meetings which enabled workers to engage fully, while benefitting from the efficiency savings of reducing translation costs and preserving the Employer’s service delivery. The Union said that the Employer had not responded to its detailed substantive points, instead choosing to cut off further communication. The Union stated that it wanted to stress the point that the statutory duties should be read in light of the Code of Practice, as recognised by paragraph 8.8 of the CAC Guide for the Parties. The Union said that it believed that its proposal for joint meetings was not “unreasonable in the circumstances” and that, under paragraph 18 of the Code, the Employer should agree to joint meetings. The Union said that it therefore asked the CAC to compel the Employer to co-operate generally with the Union by agreeing to its reasonable request to hold joint meetings.

The second complaint

14) The Union stated that its second complaint related to the health and safety of its members during the access meetings. Given the ongoing Covid-19 pandemic, the Union wanted to ensure that its members could attend access meetings without being exposed to a high risk of viral transmission. The Union said that it had asked the Employer to carry out a Covid-19 risk assessment in advance of the meetings and that the risk assessment did not recommend the use of face masks or coverings. In the light of this, the Union said that it had insisted that the Employer should provide face masks to everyone attending access meetings. The Union stated that in response to its initial request for the provision of face masks, the Employer had replied:

Government guidance confirms it is not deemed a requirement for facemasks to be provided in these circumstances. However, as the wearing of facemasks is a personal choice if people wish to wear them at the access meetings that is of course agreeable.

15) The Union stated that it had responded by pointing out that the Employer’s response was both inconsistent with the government guidance and misunderstood the Employer’s statutory obligations as an employer in respect of its employees’ health. The Union stated that the government guidance as updated on 29 May 2020 stated:

If you can, wear a face covering in enclosed public spaces where social distancing isn’t possible and where you will come into contact with people you do not normally meet. This is most relevant for short periods indoors in crowded areas, for example, on public transport or in some shops (https://www.gov.uk/government/publications/staying-safe-outside-your-home/staying-safe-outside-your-home#face-coverings).

The Union said that on 6 April 2020, The World Health Organisation’s (WHO) had published advice stating that wearing a mask in a non-clinical setting “is one of the prevention measures that can limit the spread of certain respiratory viral diseases, including COVID-19.”

16) The Union stated that employers had a general statutory obligation “to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all … [their] … employees” (Health and Safety at Work Act 1974, s 2(1)). The Union said that the Employer had a statutory duty to take all reasonable steps to eliminate or, where elimination was not possible, to mitigate with any reasonably practicable measures, any risk to the H&S of its employees. The Union stated that at the MoJ alone, two of its members who were contracted to work at the Employer as a cleaner and in the facilities and maintenance team had died due to suspected Covid-19. The Union stated that the provision of masks, in conjunction with other measures such as social distancing and hand hygiene, was a reasonably practicable step that could partially mitigate the risk of transmission of COVID-19, as recognised by the government guidance, Public Health England, the WHO and the world’s scientific community.

17) The Union stated that following its long and detailed email concerning the provision of face masks, the Employer had replied: ‘As per my previous message wearing a facemask is a personal choice and of course is agreeable at the meeting.’ The Union stated that this was a frustrating response, as it failed to engage with any of the substantive health and safety concerns set out by the Union. The Union stated that the Employer had failed to engage further with its health and safety concerns, ignoring further emails on the topic. The Union said that in the light of this it was complaining that the Employer had failed to cooperate generally with the Union by refusing to engage with its health concerns. The Union also contended that, given the unique challenges arising from the current public health crisis, what constitutes “reasonable access” for the purposes of paragraph 26 must take into account health and safety concerns. Specifically, the Union contended that access would only be reasonable where the Employer complied with its obligations under the Health and Safety at Work Act 1974 to ensure the health and safety of its employees by providing face masks during access meetings. The Union again drew attention to paragraph 18 of the Code of Practice, which provides that the employer “should not dismiss [the union’s] proposals unless he considers the union’s requirements to be unreasonable in the circumstances”. The union stated that the Employer had not explained why it considered its requirements that face masks be provided to be unreasonable in the circumstances. The Union stated that the Employer’s failure to engage with its concerns demonstrated a more general failure to co-operate with the Union.

4. Summary of the Employer’s response to the Union’s complaints

18) The Employer responded to the Union’s complaints in an email to the CAC dated 10 June 2020.

The first complaint

19) The Employer referred to the four advantages of holding joint meetings identified by the Union, set out in paragraph 11 above. The Employer said that it refuted the argument that any advantage could be sought by having joint meetings. The Employer said that the Union had requested joint meetings in its belief that both parties could put across their views in a constructive manner whilst in a joint forum. The Employer said that unfortunately previous meetings between itself and the Union had quickly become disruptive, with the Union generating arguments which had not been conducive to having meaningful or professional conversations. The Employer said that it was its intention that the meetings should provide its employees with the opportunity to access information from the business and the Union without forcing unnecessary hostile debate. The Employer said that it believed that a joint meeting would not foster an environment whereby the Employer would have the unfettered opportunity to talk to its staff about the key issues without interruption from Union representatives. The Employer stated that this in itself would result in the Employer not having the required access during the ballot process to engage and speak to its staff. The Employer stated that, in its view, this would be likely to lead to further complaints during the ballot and impact on an already protracted process.

20) The Employer said that holding separate meetings enabled the Employer to deliver a service to its client with less cumulative down-time, therefore reducing any disruption to the daily cleaning routine. The Employer said that the meetings had been agreed in conjunction with its client with the view that it would not cause significant impact to the current operation. The Employer said that by holding separate meetings of a duration of 30 minutes for each meeting would allow both parties to hold a meeting on three separate occasions during key shifts patterns. The Employer said that both the Employer and its client were also very mindful of the health and safety of their staff and visitors to Petty France in particular during the Covid-19 situation, and at all times ensured social distancing measures were in place. The Employer said that having separate meetings was more conducive to adhering to social distancing measures complying with the requirements for a safer working place during the Covid pandemic. The Employer stated that, as it was unable to have a gathering with more than 20 people, separate meetings would reduce the number of employees that could attend each meeting. The Employer said that separate meetings allowed for social distancing to be better planned and adhered to due to lower attendance of visitors; facilitation of visitors to the building to the meeting room; and enhanced social distancing measures within the meeting environment etc, therefore providing a safer meeting environment for staff to attend.

21) The Employer stated that the Union had previously stated that a number of its members had raised concerns about being victimised for trade union activities and would therefore be reluctant to attend meetings with Union representatives only for fear of reprisals from the Employer. The Employer categorically denied that any member of staff had been victimised for trade union activities. The Employer stated that it had arranged the meeting times to coincide with the beginning and end of shift patterns; that all employees were entitled to attend the meetings; and that the Employer welcomed this to allow employees the opportunity to hear from the Union and from itself, although the Employer acknowledged that attendance at the meetings would not be mandatory. The Employer stated that it would not be in attendance at any of the Union’s meetings and there would not be a register of attendees so employees would be safe in the knowledge that the Employer would not be aware of who had attended each meeting. The Employer said that it had received complaints from staff regarding intimidation by the Union and would not wish to antagonise this situation.

22) The Employer said that the Union believed workers would be more likely to engage at a joint meeting as they would have to attend fewer meetings (three instead of six). The Employer said that it was for employees to choose if they wished to attend one or both meetings and the Employer did not believe holding a joint meeting should be used to sway anyone’s choice in that matter. The Employer said that holding a joint meeting could be seen as limiting their options rather than enhancing them; they may wish only to attend the Union’s meeting and not that of the Employer, or vice versa, and could quite possibly decline to attend a joint meeting for this reason. With reference to the reduction in translation costs, the Employer said that the parties had previously agreed to make their own arrangements in that regard so allowing both parties to select translators of their choice without causing further delay on agreeing who should be utilised.

The second complaint

23) The Employer said that it had been clear that the wearing of a face mask was a personal choice and was acceptable during the access meetings if required. The Employer said that it took the health and safety responsibility of employees (sic) extremely seriously and to ensure safety measures were in place, and in accordance with Public Health England and Government Covid:19 advice, a risk assessment for the purpose of the meetings had been completed and shared with the Union. The Employer said that the building was being adapted to accommodate the latest government guidance, such as screening in the reception areas, hygiene measures for visitor passes, the non-contact return of passes, and traffic routing in the building. The Employer said that the rooms booked for the access meetings were a combination of adjoining rooms that opened up to allow social distancing measures and offer a further protection to employees. The Employer stated that joint meetings would increase the number of attendees at any one meeting and reduce the ability to put in place effective social distancing measures. The Employer stated that although it had identified a meeting room which could safely accommodate a group of 20 to attend an access meeting with social distancing measures being in place, to increase this number further placed an unnecessary health and safety risk to its employees and visitors. The Employer said that individual meetings would present less risk from a health and safety point of view and allow access which would accommodate all employees on any given shift.

5. Submissions relevant to both complaints

24) The Employer said that it disputed the claim by the Union that it had failed to co-operate with the Union and to give access to the Union to inform the workers. The Employer said that it had:

Offered the Union three 30-minute meetings at varying times and dates to ensure all shift patterns were covered to ensure its employees were able to attend; Agreed to displaying the Union posters in staff areas; content agreed by the Employer (sic), locations to place agreed by the client;

• Agreed to the translation of the ballot papers in four languages as requested by the Union;
• Both parties agreed to provide their own translators; to translate in languages requested by the Union;
• Provided a Risk Assessment to ensure health & safety is maintained for the access meetings;
• Agreed to the wearing of face masks should individuals choose to do so;
• Provided a range of dates over a series of three weeks and offered the Union the first choice to select their preferred dates and times;
• Provided further dates as above to accommodate the delay in reaching an agreement on the access * arrangements;
• Provided a draft invite letter to such meetings and shared with the Union for its input and comments; this had not been responded to;
• On three occasions sought a response from the Union on the preferred dates and draft letter; no response had been provided;
• Worked closely with the client to ensure safety was in place for all visitors to the Petty France building to attend the access meetings.

The Employer said that it was extremely keen to progress with the campaign and conclude such matters that had been ongoing for some months in anticipation of providing stability and reassurance to its employees and client that an open and transparent process had been completed. The Employer said that it trusted that the Panel would conclude that it had made every endeavour to reach agreement with the Union to accommodate the access meetings and to provide the Union with the opportunity to engage with the Employer’s employees.

6. Considerations

25) As stated in paragraph 8 above, the task of the Panel is to determine whether the Employer was in breach of the following duties imposed on it by paragraph 26 of the Schedule. These duties are as follows:

(1) to co-operate generally, in connection with the ballot, with the union and the person appointed to conduct the ballot; and the second and third duties are not to prejudice the generality of this (paragraph 26(2)); and

(2) to give to the union such access to the workers constituting the bargaining unit as is reasonable to enable the union to inform the workers of the object of the ballot and to seek their support and their opinions on the issues involved (paragraph 26(3)).

The Panel’s decision on the complaints made by the Union has been taken after careful consideration of the statutory provisions; the Code of Practice; the submissions of both parties; and of all the evidence.

26) The Panel notes that its task is not to consider what the most efficient, effective or desirable method of access to workers may be in any given set of circumstances; rather, its role is confined to determining whether it is satisfied that the Employer has breached its duties under paragraph 26.

27) The Union’s first complaint relates to the Union’s request to hold joint access meetings with the Employer. The Union relies in particular on paragraphs 18 and 41 of the Code of Practice. Paragraph 18 reads as follows:

In seeking to reach an agreement, the union should put its proposals for accessing the workers to the employer. The employer should not dismiss the proposals unless he considers the union’s requirements to be unreasonable in the circumstances. If the employer rejects the proposals, he should offer alternative arrangements to the union at the earliest opportunity….

Paragraph 41 of the Code states that

There may be scope for the union and the employer to undertake joint activities where they both put across their respective views about recognition … in a non-confrontational way. Such joint activities can be an efficient method of providing information, minimising business disruption and costs …

28) The Panel notes the Union’s statement that it asked to hold joint meetings with the Employer from the outset of negotiations. This was clearly a proposal which the Union was entitled to make and which the Employer was obliged not to dismiss unless it considered the Union’s requirements to be unreasonable in the circumstances. The evidence shows that the Employer considered the Union’s proposal and did not dismiss it out-of-hand; rather it explained why it did not accept it and proceeded to offer alternative arrangements in the form of separate meetings. The fact that the Union considers that its proposal for joint meetings is not “unreasonable in the circumstances” and/or that the Employer’s explanation for declining the Union’s proposal is not a valid reason does not, without more, mean that the Employer has breached its duties under paragraph 26. The Panel notes that paragraph 41 of the Code of Practice states that there may be scope for joint meetings and that they “can be an efficient method of providing information, minimising business disruption and costs.” However, neither the legislation nor the Code of Practice give a right to demand joint meetings as a form of access (and, indeed, there may well be circumstances where unions themselves may be opposed to meetings in that form). The Panel does not consider that in offering the Union access to employees by means of separate rather than by means of joint meetings the Employer has breached its duties under paragraph 26(2) or paragraph 26(3) of the Schedule. For the avoidance of doubt, the Panel does not accept the Union’s submission that, in declining its proposal for joint meetings and, having done so, failing to discuss it further, the Employer has failed to co-operate generally with the Union in connection with the ballot or failed to give reasonable access to the Employer’s workers.

29) The Panel notes the Union’s concerns, set out in paragraphs 12 and 13 above, that the Employer does not want to reassure its workers that attendance at access meetings with the Union will have no negative consequences for them and that workers may be discouraged from attending meetings due to fear of reprisals from the Employer. The Employer denied that any member of staff had been victimised for union activities and the Panel has not investigated these allegations further; makes no finding on them; and they have played no part in its decision. The Panel hopes, however, that these concerns may have been allayed by the undertakings given by the Employer set out in paragraph 21 above. The Panel also notes the statement by the Employer, set out in paragraph 21 above, that it had received complaints from staff regarding intimidation by the Union. Again, the Panel has not investigated these further; makes no finding on them; and they have played no part in its decision.

30) The Union’s second complaint is that the Employer is acting in breach of its duties under paragraph 26 in failing to provide face masks to everyone attending the access meetings and failing to engage with the Union’s concerns in that respect. The Panel notes that, other than in clinical and other specific settings, wearing a face mask is optional and is not required by law in the workplace nor is there any duty on employers to provide face masks or other face coverings outside those specific settings. The Panel notes that, pursuant to the Code of Practice, the Union was entitled to request the provision of face masks and the Employer was obliged not to dismiss the Union’s proposal unless it considered the Union’s requirements to be “unreasonable in the circumstances”. The Panel notes that the Employer responded to the Union’s proposal in the terms set out in paragraph 14 above. The Panel is satisfied that in furnishing this response the Employer explained why, in the Employer’s view, the Union’s requirement that face masks should be provided by the Employer was unreasonable in the circumstances. As in the case of the first complaint the fact that the Union does not consider this explanation to be valid and/or sufficient does not, without more, mean that the Employer has breached paragraph 26. Having considered all the evidence the Panel is satisfied that the Employer’s failure to agree to provide face masks to those attending access meetings does not constitute a failure to comply with its duties under paragraph 26(2) or paragraph 26(3). For the avoidance of doubt the Panel does not accept the Union’s submission that, in declining its proposal for the provision of face masks and, having done so, failing to change its position and/or to discuss the matter further, constitutes a failure by the Employer to comply with its duty to co-operate with the Union or to give reasonable access to the Employer’s workers.

7. Decision

31) The Panel does not consider that the Employer has failed to fulfil its duties under paragraph 26 of the Schedule in respect of the matters complained of by the Union.

Panel

Professor Gillian Morris – Panel Chair

Mr Roger Roberts

Mr Paul Noon OBE

12 June 2020