Decision

Acceptance Decision

Updated 21 February 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1281/2022

19 July 2022

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

Places for people Leisure Management Ltd

1. Introduction

1) United Voices of the World (the Union) submitted an application to the CAC dated 7 July 2022 that it should be recognised for collective bargaining purposes by Places for people Management Ltd (the Employer) for a bargaining unit comprising “all cleaners employed by Places for People Leisure Management Ltd to work at Latchmere Leisure Centre, Burns Road, SW11 5AD.” The location of the bargaining unit was given as Latchmere Leisure Centre, Burns Road, SW11 5AD. The application was received by the CAC on 7 July 2022 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 14 July 2022 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 Chair established a Panel to deal with the case. The Panel consisted of Mr Tariq Sadiq, Panel Chair, and, as Members, Mr Mustafa Faruqi and Mr Steve Gillan. The Case Manager appointed to support the Panel was Joanne Curtis.

2. Issues

3) 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

4) In its application to the CAC the Union stated that it had sent a request for recognition to the Employer on 8 June 2022. The Union said that the Employer had responded on 16 June 2022 refusing the Union’s request stating “the four cleaners we employ have confirmed to us directly that they have not asked to be represented by yourselves to the extent you have detailed in your letter; via a collective agreement with Places Leisure. They were not aware that you would be requesting this and so we consider this matter closed.” A copy of the Union’s request letter of 8 June 2022, together with the Employers response dated 16 June 2022 was not attached to the application but was instead provided to the Case Manager separately on 8 July 2022.

5) 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.

6) The Union stated that it was unsure on the total number of workers employed by the Employer, but it estimated the figure to be 756 with around 240 vacancies advertised on the Employer’s website. The Union stated that there were four workers in the proposed bargaining unit, of whom three were members of the Union. The Union went on to provide the names and dates of birth of the three members. 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 “three of the four workers in the bargaining unit are members of UVW which comprises 75% of the bargaining unit. Our members support the Employer recognising UVW for the purposes of collective bargaining.”

7) The Union stated that the reason for selecting the proposed bargaining unit was that “Latchmere Leisure Centre has four cleaners who clean it. These cleaners all work in the same workplace and represent a distinct unit amongst the wider workforce who carry out a specific and unique function. They also receive the same terms and conditions of employment as each other and all deal with the same manager. The proposed bargaining unit is appropriate and highly compatible with effective management. There are no other workers who could reasonably be included in this bargaining unit and this bargaining unit would not lead to any fragmentation of the workforce.” The Union said that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the proposed bargaining unit the Union answered “No”.

8) 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 6 July 2022.

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

9) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition via email to a central enquiries inbox on 8 June 2022 This was then received by the General Manager of the centre on 9 June 2022. The Employer added that it then received a separate email from the Union dated 15 June 2022 following up the request for recognition.

10) When asked what its response was, the Employer said “we responded on the 16th June 2022 declining the request to recognise the Union. This reflected our understanding that the employees concerned were not aware and had not agreed with the Union making a request for recognition. The Union’s email dated 8 June was the first time we were made aware that the employees concerned had any particular issues they wished to raise with us and /or that they wished the Union to be recognised on their behalf. The email states that ‘our members have instructed us to write to you regarding their current rate of pay, sick pay and trade union recognition’. The email also included a suggestion of a ballot for industrial action. The email suggested that the Union had the agreement of the employees to write to us in these terms in relation to all of these issues. However, when we contacted the employees it was clear that in fact they were unaware and had not agreed to the Union making a request for recognition. On that basis we declined to recognise the Union. In fact it is our understanding that the employees had only discussed the rate of pay issue with the Union. They had not discussed sick pay, the possibility of statutory recognition or any possibility of industrial action. Accordingly, the Union was not speaking with their authority on those issues. In any event in relation to the substantive issue that had been raised by the Union in their email on pay we were able to resolve the pay issue to the employees’ satisfaction. The sick pay issue raised by the Union appeared to be a misunderstanding. The employees are already entitled to enhanced sick pay and they confirmed to us that this what not a concern and they were not sure why the Union had raised it.”

11) The Employer confirmed that it had received a copy of the application form from the Union on 7 July 2022. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union and that it did not agree the proposed bargaining unit. The Employer stated:

“We believe that the bargaining unit proposed by the Union is not compatible with effective management and risks creating small, fragmented bargaining units. The bargaining unit proposed by the Union consists of 4 cleaners working at a site at Latchmere which is operated by us under a contract we have in place with Wandsworth London Borough Council. We believe that this very small bargaining unit is wholly artificial and does not reflect the operation of the business. Overall the Company employs approximately 6,370 workers. 90.39% are on operational service conditions (including the 4 employees concerned in this application), 3.14% are on management conditions and the remaining are on TUPE conditions since our business involves takeover of contracts at local authority owned leisure facilities. The 4 employees represent just 0.06% of the Company’s overall workforce. At Latchmere, the site where 49 workers are based, 98% (48 individuals including the 4 mentioned above) are on operational service conditions and 2% (1) is on management conditions. The 4 employees represent just 8% of the workforce at the Latchmere centre. In fact, Latchmere is one of 7 sites which we manage under a contract for Wandsworth Borough Council. Cleaning services for those sites are managed across the 7 sites and it would be artificial and contrary to effective management to attempt to treat them separately. There are approximately 18 cleaners (including the 4 employees concerned) directly employed by us across those 7 sites. The 4 employees represent just 22% of the employed cleaners working for us under the Contract with Wandsworth Borough Council. We also have a number of cleaners provided by a third party contractor at some of these sites. Other than for pay the terms and conditions of employment for operational staff are consistent for the majority of front line workers across the company, this would include all operational staff (including the 4 employees) up to General Manager level at all of our 87 leisure centres. Rates of pay are set at a contract level based on job role and impact all employees who are categorised according to the work that they do. Pay increases are set across the company and are decided at Board level. For example, the company recently implemented a 3% pay rise across the company, but approximately 11% was awarded to the cleaners. The proposed bargaining unit would result in a very small number of staff having differently negotiated pay and terms and conditions compared to their colleagues locally, across the contract they work and the site that they are based at. This would not be compatible with effective management and is likely to cause disruption with other staff if the 4 employees pay and terms and conditions were set on a different basis to their colleagues. The bargaining unit proposed by the Union cuts across the operation of the business both in terms of how we are organised nationally, how the contract for the 7 sites is operated and locally at the Latchmere site. It would have the result that these 4 individuals would be on different terms and conditions compared to the vast majority of their colleagues on operational service conditions nationally, under the Wandsworth Borough Council contract and locally at Latchmere. This would create a very small ‘micro’ bargaining unit separate from the vast majority of their colleagues. Such an arrangement would be wholly artificial and would not in any way reflect how the business is operated. It would be incompatible with effective management.”

12) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas be requested to assist.

13) The Employer stated that it was correct that there were currently four (4) cleaners employed at the Latchmere site which it understood was the proposed bargaining unit. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

14) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated, “the membership of their proposed bargaining unit is not disputed.” 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 answered:

“Whilst the Company understands 3 out of the 4 employees in the Union’s proposed bargaining unit are members of the Union, the Company does not accept that the majority of the proposed bargaining unit are likely to support recognition. Given the very small size of the bargaining unit proposed by the Union, whether or not there is a majority in support turns on the views of a very small number of employees. As indicated above following receipt of the email sent by the Union dated 8 June 2022, we contacted the employees concerned. The employees indicated that they were unaware and had not agreed to the Union making a recognition request, contrary to the statement in the Union’s email. This includes those 3 individuals who are members of the Union. Our understanding is therefore they were not supportive of a recognition request (rather thy merely wanted to raise a concern they had in relation to pay). Accordingly, we believe that there is credible evidence from a significant number of union members that they do not want the Union to conduct collective bargaining on their behalf. One of the 3 individuals who is a member of the Union has informed us that they may shortly be leaving our employment. This reduces the Union’s membership to 2. Whilst there are currently only 4 individuals within the bargaining unit, the team structure actually involves 6 posts as there are currently 2 vacant roles due to be filled shortly (together with an additional vacancy if and when the employee mentioned above leaves our employment). It is not possible to say what the views of the new recruits would be when they are in post. The Company has a long standing tradition of engaging with employees in all matters of our operation. This includes routine appraisals, staff meetings and annual survey. The Company is committed to open communication between the employer and employee and we have many different forums for them to feed back. This includes site level, contract level and the wider company. We have different online platforms to communicate, raise concerns and a communication hierarchy for raising concerns. The vast majority of employees report positively of the Company and there is no indication that any category of employee supports recognition.”

15) The Employer answered “No” when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit. When asked if it had received any other applications in respect of workers in the proposed bargaining unit the Employer answered, “N/A”.

5. Considerations

16) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 above are satisfied. The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision.

17) 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. The Panel is also satisfied, on the balance of probabilities, that the application was made in accordance with paragraph 11(2) of the Schedule. Paragraph 11(2) applies if

(a) before the end of the first period the employer fails to respond to the request, or

(b) before the end of the first period the employer informs the union … that the employer does not accept the request (without indicating a willingness to negotiate).

The first period is defined in paragraph 10(6) as “the period of 10 working days starting with the day after that on which the employer receives the request for recognition”. The Panel does not consider that the Employer’s response to the Union’s request, in its letter dated 16 June 2022, indicated a willingness to negotiate on the part of the Employer. The Panel therefore considers that paragraph 11 applies.

18) The Panel is also satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42.

19) The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

Paragraph 36(1)(a)

20) 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 information provided by the parties showed that three out of four workers (75%) in the proposed bargaining unit were members of the Union. The density of Union membership was not disputed by the Employer. 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.

Paragraph 36(1)(b)

21) 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 21 above the Panel has concluded that the level of union membership within the bargaining unit stands at 75%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union. The Panel has received no such evidence to the contrary in this case.

22) The Employer mentioned in its response to the Union’s application dated 14 July 2022 that it did not consider that a majority of workers in the proposed bargaining unit would be likely to favour such recognition. It stated that given the very small size of the proposed bargaining unit it had contacted the employees concerned who had indicated that they were unaware and had not agreed to the Union making a recognition request. It added that this included the 3 individuals who were members of the Union. The Employer went on to say that its understanding was that the workers were not supportive of a recognition request but instead wanted to raise a concern relating to pay. Accordingly, the Employer stated that it believed that there was credible evidence from a significant number of union members that they did not want the Union to conduct collective bargaining on their behalf. The Panel has considered the argument raised by the Employer, however there has been no evidence produced from Union members or non-members within the proposed bargaining unit that they are not supportive of recognition.

23) On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, 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.

6. Decision

24) For the reasons given in paragraphs 16-23 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Tariq Sadiq, Panel Chair

Mr Mustafa Faruqi

Mr Steve Gillan

19 July 2022