Decision

Whether to Ballot Decision

Updated 4 November 2020

Case Number: TUR1/1116(2019)

26 September 2019

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER TO ARRANGE FOR THE HOLDING OF A SECRET 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), 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.

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.

2. Issues for the Panel

4) Paragraph 22 of Schedule A1 to the Act (the Schedule) provides that if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies. Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled. The three qualifying conditions are:

(a) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(b) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

(c) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf. Paragraph 22(5) states that “membership evidence” is (a) evidence about the circumstances in which union members became members, or (b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

5) In a letter to the Union dated 2 September 2019 the Case Manager asked the Union whether it claimed that it had majority membership within the bargaining unit and submitted that it should therefore be recognised without a ballot. In a letter to the Case Manager dated 4 September 2019 the Union confirmed that it had 52% membership density within the bargaining unit as of that date. The Union said that this figure had been calculated on the basis of the Employer’s assertions as to the number of porters at Petty France (six) and the Union’s knowledge of the number of receptionists at 102 Petty France (six, including four with security duties).

6) In the light of the clarification of the Union’s proposed bargaining unit described in paragraph 3 above, and information provided by the Employer on the numbers employed within that unit ^{[footnote 1]}, the Panel proposed an independent check of the level of union membership within the bargaining unit. It was explicitly agreed with both parties that, to preserve confidentiality, the lists provided by each party would not be copied to the other party and these arrangements were confirmed in a letter from the Case Manager to both parties dated 10 September 2019. The information from the Employer was received by the CAC on 10 September 2019 and from the Union on 12 September 2019. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

7) The list supplied by the Employer showed that there were 74 workers in the bargaining unit. The following job titles were listed:

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

8) The list of members supplied by the Union contained 37 names. According to the Case Manager’s report the number of Union members in the bargaining unit was 36, a membership level of 49%.

9) A report of the membership check was circulated to the Panel and the parties on 18 September 2019 and the parties were invited to comment on the results of that check by noon on 23 September 2019.

3. Summary of the parties’ comments on the membership check and the consequences of that check

10) In an email to the Case Manager dated 23 September 2019 the Employer noted that 49% of the workers in the bargaining unit were members of the Union and that the Panel could not therefore be satisfied that a majority of the workers constituting the bargaining unit were members of the Union

11) In an email to the Case Manager dated 23 September 2019 the Union contended that the workplace had been artificially stacked/inflated with non-union members. The Union said that the Employer had explicitly stated that it intended to this, adding a number of cleaners to the bargaining unit after the Union’s application for statutory recognition had been made. The Union said that its contention was further supported by the evidence of one of its own members who described being ‘on-boarded’, transitioning from being an agency worker to being an employee. The Union said that if this process had happened to other workers, as seemed likely, that would amount to a clear attempt to unlawfully frustrate the Union’s application.

12) The Union further contended that the Employer had exerted undue pressure on employees/union members. The Union said that its members had reported that a meeting called by the Employer with cleaners on 17 September 2019 had been intimidating for a number of reasons which the Union set out in its email. The Union said that when a member had asked for a copy of the document from which the Employer representative was reading they were told it was confidential and that they could not have a copy. The Union said that some members had wanted to speak out but had been too nervous to do so. The Union also said that the Employer had met security guards individually or in pairs which was of itself intimidating. The Union set out what Union members reported they had been told at such meetings. The Union contended that the CAC was required to take into account whether undue pressure had been exerted upon the employees as the Union contended that it had.

13) The Union submitted that the Schedule, by imposing a non-dynamic requirement of 50% support, failed to take account of the reality of the modern labour market, namely that workplaces with naturally high turnovers wherein a union’s membership fluctuates below and above 50% should not be prevented from collectively bargaining by a membership check taken at one arbitrary moment in time, especially when the number was lower at the last check then when the application was first made. The Union headed its submission on this point “Disproportionate breach of Article 11 ECHR”.

14) The Union contended that the allegations of artificial inflation called for investigation at a hearing of the CAC which might usefully request evidence from the Employer outlining the biographical details of the members of the bargaining unit as well as the dates on which they had each started working there. The Union said that the evidence might also usefully include the breakdown of the hours worked by workers in the bargaining unit because evidence that a larger number of workers performed a lower average of hours would tend to support the Union’s contention that additional employees were added not for operational reasons but for the purpose of artificially stacking the bargaining unit and frustrating the Union’s application. The Union said that the hearing might also confirm that the Employer’s list contained no agency workers.

4. Considerations

15) The Act requires the Panel to consider whether it is satisfied that the majority of workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Union, it must declare the Union recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit unless it decides that any of the qualifying conditions set out in paragraph 22(4) is fulfilled.

16) The membership check conducted by the Case Manager showed that 49% of the workers in the bargaining unit (36 workers out of 74) are members of the Union. As stated in paragraph 6 above, the Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties. The Panel notes the Union’s contention that the workplace had been artificially stacked/inflated with non-union members by the Employer. The Panel notes that in its response to the Union’s application the Employer said that it currently 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 ^{[footnote 2]}. The Schedule does not constrain an employer from employing additional staff once an application for recognition has been made by a union nor does it provide that the statutory tests should be applied on the basis of the number of staff employed at the time an application is made. At the hearing to assist the Panel to determine an appropriate bargaining unit the Employer stated that there were 93 workers within the Union’s proposed bargaining unit and the Union did not contest that figure ^{[footnote 3]}. The figure of 74 workers given by the Employer for the purposes of the membership check is considerably lower than that. The Panel notes that the system of membership checks employed to determine whether the statutory tests in paragraphs 22(1)(b) and 36 of the Schedule have been satisfied rely on the good faith and honesty of both parties in supplying information. The Panel has received no evidence which leads it to suspect that either party has not acted honestly and in good faith in relation to this application and the Panel does not consider it necessary to investigate the Union’s allegations further. The Panel appreciates the Union’s disappointment that the membership check revealed a membership density of 49% but the Panel is required to decide whether a statutory test is satisfied on the basis of the evidence before it at the time of its decision. There is no provision on the Schedule for the kind of dynamic approach to the level of support which the Union contends should be applied in this connection ^{[footnote 4]}. The Panel notes that the Union headed its submission on this point “Disproportionate breach of Article 11 ECHR” but also notes that the Union did not provide any arguments in support of contention.

17) The Panel notes the Union’s submissions that the Employer had exerted undue pressure on employees/union members. Paragraph 27A of the Schedule requires parties to refrain from using any unfair practice, and defines what is meant by that term. However this requirement applies only once a party has been informed by the CAC under paragraph 25(9) that a ballot is required and of the arrangements for the ballot; it does not, therefore, apply when the CAC is considering whether or not a ballot should be held. The Panel has not, therefore, sought to investigate the allegations made by the Union; makes no findings on whether the events described occurred or whether, if they had occurred, they would have constituted an unfair practice; and they have played no part in its decision.

5. Decision

18) The Panel is not satisfied that a majority of the workers constituting the bargaining unit are members of the Union. In accordance with paragraph 23 of the Schedule the CAC gives notice to the parties that it intends to arrange for the holding of a secret ballot in which the workers constituting the bargaining unit will be asked whether they want the Union to conduct collective bargaining on their behalf.

Panel

Professor Gillian Morris, Panel Chair

Mr Paul Noon OBE

Mr Roger Roberts

26 September 2019.

1. Decision of 2 September 2019, paragraphs 6 and 23. ↩

2. See decision of 12 July 2019, paragraph 11. ↩

3. See decision of 2 September 2019, paragraphs 6 and 23. ↩

4. See paragraph 7(1)(b) of the Schedule which provides that a request is not valid unless the employer, taken with any associated employer or employers, employs an average of at least 21 workers in the 13 weeks ending with the day on which the employer receives the request. ↩