Decision

Unfair Practice Decision

Updated 4 November 2020

Case Number: TUR1/1116(2019)

29 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 AND ON COMPLAINTS UNDER PARAGRAPH

27A OF THE SCHEDULE

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 24 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 and that the Employer had used an unfair practice contrary to paragraph 27A(1) and 27A(2)(g) 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).

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.

9) The Panel is also required to determine whether the Employer has used an unfair practice contrary to paragraph 27A(1) of the Schedule. Paragraph 27A(2) states that a party uses an unfair practice if, with a view to influencing the result of the ballot, the party acts in one of the ways specified in paragraph 27A(2)(a)-(g). The Union complains that the Employer has committed an unfair practice under paragraph 27A(2)(g) which states that a party uses an unfair practice if, with a view to influencing the result of the ballot, the party uses or attempts to use undue influence on a worker entitled to vote in the ballot. Under paragraph 27B(4) a complaint is well-founded if the CAC finds that the party complained against used an unfair practice and is satisfied that the use of that practice changed or was likely to change, in the case of a worker entitled to vote in the ballot – (i) his intention to vote or to abstain from voting, (ii) his intention to vote in a particular way, or (iii) how he voted. Paragraph 27C provides that if the CAC decides that a complaint is well-founded it must, as soon as reasonably practicable, issue a declaration to that effect and may make specific orders depending on the circumstances of the case, including ordering the party concerned to take specified action within a specified period.

10) In determining whether the Employer was in breach of any of the statutory duties imposed on it by paragraph 26 of the Schedule, and whether a party has used an unfair practice, 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.

3. Summary of the Union’s complaints

11) The Union’s complaints concern three workers within the bargaining unit who the Union submits were denied access to the first meeting hosted by the Employer for workers entitled to vote in the ballot. These workers are referred to in this decision by their initials: CJ, LEBV, and FD. The Union attached statements from each of these workers to its complaints ^{[footnote 1]}.

12) The Union said that CJ and LEBV had both been high-profile Union members at Petty France during the ongoing trade dispute between the Employer and the Union, taking part in media interviews and undertaking grievances against the Employer with the help of Union representatives. The Union said that the Employer had sent out letters to the workers at Petty France inviting them to the Employer’s meetings on 17 June 2020, well in advance of the meetings, but that CJ and LEBV were only given invitations to the first of the Employer’s meetings, taking place at 10am on 22 June 2020, after the meeting had already taken place. In his statement CJ said that he had received his invitation to the Employer’s access meetings at around 13.45 on 22 June 2020; LEBV said that he had received his invitation at around 2pm. that day. The Union said that paragraph 26(4D) of the Schedule stressed the generality of the duty to give the union such access as is reasonable in the circumstances and that the general duty to allow reasonable access must also include a duty on the employer to allow union members to attend the access meetings held by the employer to put forward their views in front of their colleagues. The Union said that CJ and LEBV were known to be Union members by the Employer given their high-profile activities in connection with the Union. The Union alleged that the Employer had decided on that basis to deny them access to the first meeting held by the Employer to prevent Union members from engaging in the access meetings. The Union contended that this breached the first and/or second of the duties set out in paragraph 26 of the Schedule (see paragraph 8 above).

13) The Union submitted that, in the alternative, the Employer’s action in relation to CJ and LEBV constituted an unfair practice in breach of paragraph 27A(1) and 27A(2)(g) of the Schedule, using or attempting to use undue influence on a worker entitled to vote in the ballot. The Union submitted that paragraph 27A(2)(g) should be read in conjunction with paragraph 56 of the Code of Practice which stresses that undue influence can include subtle forms of behaviour to influence the outcome of the ballot. The Union contended that, by denying the most vocal Union members access to meetings hosted by the Employer, the Employer was precluding Union members from challenging what was said by the Employer during those meetings. The Union said that this was an attempt to unduly influence the outcome of the ballot.

14) The Union complained that FD, another of its members, was not permitted entry to the access meeting held by the Employer on 22 June 2020. The Union said that the meeting room was not specified on the invitation letters sent out by the Employer. The Union said that FD found the meeting room at 10.02 and was denied entry because she had been late after putting on hand sanitiser as requested by the Employer ^{[footnote 2]}. The Union submitted that this constituted another attempt to deny Union members access to meetings hosted by the Employer in order to prevent them from challenging what was said by the Employer during those meetings. The Union contended that this constituted a breach of the first and/or second duty under paragraph 26 of the Schedule and an unfair practice under paragraph 27A(1) and 27A(2)(g).

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

15) The Employer responded to the Union’s complaints in an email to the CAC dated 25 June 2020.

16) The Employer said that the delay in producing the letter inviting CJ and LEBV to the access meetings could be explained by the sequence of events which it set out in its response. These events were as follows:

• 17 June 2020 10.11: letters inviting staff to the access meeting were emailed from the HR & Training Manager to the Area Facilities Manager to hand deliver to staff on site and post to home addresses of staff in case of absence.

• Site management verbally update meeting arrangements confirming meeting room(s).

• 17 June 2020 11.31: The Department for Education [stakeholder for the contract] advised the Employer that the transfer of CJ and LEBV was now confirmed as 23 June 2020

• 17 June 2020 11.39: The Area Facilities Manager was advised the date 23 June was confirmed as a start date and therefore the invite (sic) letters for those two members of staff were withheld.

• 17 June 2020 14.29: Letters confirming the transfer were issued to CJ and LEBV

• 19 June 2020 15.37: The Employer was advised by the Building Manager at the new location that unfortunately the Department for Education had delayed the start date further as the building was not ready and confirmed the new date as 16 July 2020.

• June 22 2020 14.00: The Area Facilities Manager advised CJ and LEBV that unfortunately the start date was delayed because of the client’s building programme. The Employer said that both members of staff were advised of the changed date and were provided with the initial meeting invite letter. The Employer said that as the first meeting had already passed it was confirmed that revised letters would be issued.

17) The Employer said that the Access Meeting invite letter provided three meeting dates and times for employees to attend which accommodated all working shift patterns. The Employer said that although a request was made for workers to attend a meeting identified for their usual working shift it also stated that arrangements could be made to attend an alternative session via a discussion with the supervisor. The Employer said that unfortunately, due to the amended start date of CJ and LEBV on another contract and late notification of such, the opportunity to attend the first access meeting had not been available but that both workers had the opportunity to attend an access meeting on 29 June 2020 or 2 July 2020. The Employer said that, as previously discussed with the Union, the Employer would compensate members of staff who were unable to attend an access meeting during their normal working hours and therefore requested to attend an alternative meeting in order to ensure that all staff had the opportunity to attend an access meeting if they so wished without financial detriment. The Employer included an excerpt from the letter to staff which read as follows:

Arrangements are now in place for you to meet with representatives from OCS. The dates and times of the meetings are listed below and have been planned to accommodate all our colleagues working different shift patterns:

22 June 20 at 10.00am to 10.30am – OCS meeting – Day Cleaning and Security Team 29 June 20 at 21.00pm to 21.30pm – OCS meeting – Night Cleaning and Security Team 2 July 20 16.30pm to 17.00 pm – OCS meeting – Day Cleaning and Security Team

To ensure all our colleagues can attend a meeting in a safe controlled environment you are politely requested to attend the meeting identified for your usual working shift. If you are unable to attend this meeting please speak to your Supervisor to make arrangements if possible to attend an alternative meeting listed above.

The Employer said that staff were invited to attend one access meeting and the Employer therefore refuted the claim that CJ and LEBV had been denied the right to attend as this opportunity still existed. The Employer refuted the claim that it had unduly influenced the ballot in this regard.

18) In response to the complaint regarding FD the Employer acknowledged that that the meeting invite did not identify a meeting room and said that this was to avoid any confusion should a meeting room need to be changed at the request of the client. The Employer said that all staff had been advised verbally where the access meetings were to take place and that this would be reaffirmed prior to all future meetings in the event of an alteration. The Employer said that staff at the meeting on 22 June 2020 had arrived in good time and that no one advised that there was any confusion as to where the meeting was being held. The Employer said that prior to entering the meeting room all staff were asked to use the hand sanitiser placed outside the room and complete the attendance sheet. The Employer said that the meeting held a minute’s silence at 10am for the Reading incident and at 10.01 the meeting room door was closed and the meeting commenced. The Employer said that FD attended the meeting at 10.15 having completed the induction briefing and was advised that the meeting was halfway through and she should therefore attend another meeting. The Employer said that at the point FD had arrived the Employer’s presentation had been completed and had moved to a question and answer slot. The Employer said that it was more beneficial for FD to attend another meeting to ensure all information was provided and that should the meeting she decided to attend fall outside usual working hours she would be compensated for that. The Employer refuted the allegation that Union members had not been permitted to attend an access meeting held by the Employer. The Employer said that it did not have a record of Union membership at Petty France and that FD had an opportunity to attend a meeting on 29 June 2020 or 2 July 2020.

5. Considerations

19) 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 is also required to determine whether the Employer has used an unfair practice contrary to paragraph 27A of the Schedule, the specific complaint being that, with a view to influencing the result of the ballot, the Employer used or attempted to use undue influence on a worker entitled to vote in the ballot (see paragraph 9 above). 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; and the submissions of both parties.

20) The Panel notes that the parties have differing views of the factual background relevant to these complaints and of the conclusions to be drawn from what they contend occurred. For example FD, in her witness statement, states that she arrived at the meeting room between 10.02 and 10.06; the Employer contends that she did not arrive until 10.15. As a second example, the Union contends that CJ and LEBV were denied access to the first of the Employer’s meetings to prevent Union members from engaging in those meetings; the Employer states that notification of CJ and LEBV’s amended start date on another contract came too late for them to attend the first access meeting. The Panel decided that it should first consider whether the Union’s complaints were capable of breaching the relevant statutory provisions if the facts set out by the Union and the Union’s conclusions from those facts were accepted. As explained below, the Panel did not consider that the Union’s complaints were capable of breaching the relevant statutory provisions. That being so, the Panel did not find it necessary to investigate further the facts relevant to these complaints. The Panel makes no findings on those facts and nothing in this decision should be taken to express a view or cast doubt on the credibility of either party or of any individual.

21) The Union submitted that the Employer breached the duties under paragraph 26 of the Schedule set out in paragraph 8 above by denying Union members access to meetings hosted by the Employer. The Union submits that the general duty on the Employer to allow the union such access as is reasonable must also include a duty on the Employer to allow union members to attend the access meetings held by the Employer to put forward their views in front of their colleagues. The Panel does not agree with this submission. Paragraph 26(3) requires the employer 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. As such it requires the employer to give the union itself access to those workers; it does not require the employer to allow union members to put forward their views to colleagues in access meetings organised by the employer. Paragraph 48 of the Code of Practice reflects this in stating that “neither the union nor the employer should seek to disrupt or interfere with meetings held by the other party”. The Panel also rejects the Union’s submission that denial of access by Union members to meetings hosted by the Employer in order to put forward their views to colleagues would breach the Employer’s duty to co-operate generally, in connection with the ballot, with the Union and the person appointed to conduct the ballot.

22) The Union further submitted that the Employer denied access to Union members, including those who were most vocal, to meetings hosted by the Employer to prevent them from challenging what was said by the Employer during those meetings. The Union submitted that in doing this the Employer used an unfair practice in that, with a view to influencing the result of the ballot, the Employer used or attempted to use undue influence on a worker entitled to vote in the ballot. The Union states that paragraph 27A(2)(g) must be read in conjunction with paragraph 56 of the Code of Practice which stresses that undue influence can include subtle forms of behaviour to influence the outcome of the ballot. The Panel does not consider that paragraph 27A(2)(g) has the effect for which the Union contends. The Panel considers that paragraph 27A(2)(g), in referring to undue influence being used or attempted to be used by a party on a worker entitled to vote in the ballot, is aimed at undue influence on that worker as an individual; it does not extend to measures which may reduce the worker’s capacity to influence other workers who are entitled to vote in the ballot. It follows that the Panel does not consider that denial of access by Union members to meetings hosted by the Employer for the purpose of preventing them from challenging what was said by the Employer during those meetings would constitute an unfair practice contrary to paragraph 27A(2).

6. Concluding observations

23) The Panel’s conclusions in paragraphs 21 and 22 above should not be taken to endorse as good industrial relations practice the deliberate exclusion by either party of workers entitled to vote in the ballot from access meetings hosted by that party ^{[footnote 3]}. The value of such meetings is recognised by the last sentence of paragraph 65 of the Code of Practice, the entirety of which reads as follows:

Campaigning is inherently a partisan activity. Each party is therefore unlikely to put across a completely balanced message to the workforce, and some overstatement or exaggeration may well occur. In general, workers will expect such behaviour and can deal with it. Also, by listening to both sides, they will be able to question and evaluate the material presented to them.

The Panel acknowledges that the deliberate exclusion of known union members and/or activists entitled to vote in the ballot from meetings hosted by employers which means that they are thereby denied the opportunity to listen to what the employer has to say may, depending on the circumstances, be capable of constituting undue influence on an individual worker entitled to vote in the ballot by transmitting the message that support for the union may lead him or her to be treated differently from other workers.

7. Decision

24) 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.

25) The Panel has decided Union’s complaint that the Employer has used an unfair practice contrary to paragraph 27A of the Schedule is not well-founded.

Panel

Professor Gillian Morris – Panel Chair

Mr Roger Roberts

Mr Paul Noon OBE

29 June 2020

1. In its submissions the Union referred to these statements as ‘witness statements’. These statements were unsigned and did not meet the formal requirements for a ‘witness statement’ so they are referred to in this decision as ‘statements’. This should not be read as casting doubt on the veracity or credibility of these statements: see further paragraph 20 below. ↩

2. In her statement FD said that she had gone to the meeting on 22 June 2020 at 10am; that the meeting room was not listed on the letter so she went to the room where meetings generally took place at around 9.58 and saw cleaners sitting down; that she asked where the meeting was and Nilton pointed to a room. She said that no one had gone into the meeting room yet so she went to the kitchen to wait and went back between 10.02 and 10.06. She said that Jennifer asked her if she was going into the meeting and told her to put hand sanitiser on but that as she was putting it on Emerson came out and told her she wasn’t allowed into the meeting because she had arrived late and that she had to wait for another meeting. For reasons explained in paragraph 20 below the Panel has not investigated further the minor differences in timing recorded in this statement and the Union’s submissions. ↩

3. Note, however, paragraph 22 of the Code of Practice which states that there may be circumstances where it may be reasonable for a union not to invite supervisors or managers who fall within the bargaining unit not to attend access meetings with other workers. ↩