Form of Ballot Decision
Updated 18 May 2021
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Case Number: TUR1/1194(2020)
16 February 2021
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
Service to the Aged (Sage)
1. Introduction
1) United Voices of the World (‘the Union’) submitted an application, dated 10 August 2020 and received by the CAC on 11 August 2020, that it should be recognised for collective bargaining by Service to the Aged (Sage) (‘the Employer’) in respect of a bargaining unit comprising the “Domestic staff and care assistants who work at Sage Nursing Home, 208 Golders Green Road, London, NW11 9AL.” The CAC gave both parties notice of receipt of the application on 11 August 2020. The Employer submitted a response to the CAC dated 18 August 2020 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 Ms Laura Prince, Chair of the Panel, and, as Members, Miss Mary Canavan and Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Kate Norgate.
3) By a decision dated 9 October 2020 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 virtual hearing to determine the issue was held on 11 January 2021. The Panel decided that the appropriate bargaining unit was the same as that proposed by the Union in its application
4) As the appropriate bargaining unit determined by the Panel was the same as that proposed by the Union in its application the Panel moved to the next stage in the statutory process and, in a letter dated 29 January 2021, the Union was asked whether it claimed that a majority of workers constituting the bargaining unit were members of the Union. In a letter dated 1 February 2021 the Union confirmed that it was not claiming majority membership.
2. Issues
5) On 2 February 2021, the Panel, not satisfied that a majority of the workers constituting the bargaining unit were members of the Union, gave notice in accordance with paragraph 23(2) of the Schedule that a secret ballot would be held. The Panel also advised the parties that it would wait until the end of the notification period of ten working days, as specified in paragraph 24(5) of the Schedule, before arranging a secret ballot. The parties were also asked for their views on the form the ballot should take.
6) The notification period under paragraph 24(5) ended on 16 February 2021. The CAC was not notified by the Union or by both parties jointly that they did not want the ballot to be held, as per paragraph 24(2) of the Schedule.
3. Unions’ submissions on the form of ballot
7) In a letter dated 9 February 2021 the Union stated its preference for a postal ballot. The Union maintained that the Employer had a track record for trade union victimisation and for exerting undue pressure on employees to bend to the will of the home manager. The Union said that examples and evidence of this included circulating a letter during a strike ballot which strongly discouraged members from voting in favour of strike action and spoke unfavourably about the Union. A copy of this letter was attached to the Union’s submissions. The Union said that three members had left around the time of this letter.
8) The Employer had also circulated a letter ahead of the strike asking staff to sign and return a form to confirm that they would not strike. This letter also contained misleading information regarding an employer’s right to dismiss striking workers. A copy of this letter was also attached to the Union’s submissions.
9) The Union explained that there was also unfavourable treatment of known union members and this included unfair administration of shifts and contracts and initiating vexatious disciplinary proceedings against staff who raised grievances. The Union provided a copy of its grievance on behalf of 15 current and ex-employees, which it stated outlined some of these behaviours.
10) The Union stated that meetings were held exclusively with non-union members to tell them to vote against trade union recognition. In spring-summer 2019 the home manager had pressurised staff to sign in favour of changes to their contracts that were unfavourable, and that many staff did not agree with. There were currently two cases in the ET on behalf of 14 individuals for trade union victimisation in relation to these matters.
11) The Union explained that it had provided numerous past examples when staff had been pressurised to sign under duress of the home manager, and where undue pressure had been exerted during a ballot. The Union had serious concerns regarding the ability to hold a fair ballot regardless of the voting method, but it believed that if the ballot was a workplace ballot, staff would be subjected to undue pressure not to vote in favour of recognition.
12) The Union said that its members at Sage had unanimously voted in favour of a postal ballot. It was the Union’s view that a postal ballot would be “more COVID-safe.” The Union explained that a workplace ballot would require the ballots to be delivered to site and a physical exchange of the ballots. No external person should visit a care home unnecessarily for risk of bringing the virus into the care home and voting within the home would require unnecessary movement and exchange of objects within the home. A postal ballot was more cost effective. A workplace ballot would incur the costs of the delivery of the ballot and require a staff member to administer the ballot on site. These costs are not necessary as the ballot can be conducted via post.
4. Employer’s submissions on the form of ballot
13) In a letter dated 9 February 2021 the Employer stated that as a preliminary point it had noted with disappointment, within the Union’s letter of 1 February 2021, its latest attempt to use allegations to disguise their falling membership and declining support within workers at Sage and that this was once again being used to damage Sage’s reputation with the CAC.
14) Those allegations were not just wrong but also irrelevant to the issues to be decided. The Employer said that it would therefore, for now, simply place on record Sage’s rejection of the Union’s latest set of allegations and it trusted that the CAC would take care to ensure that such allegations did not influence its decision making.
15) The Employer continued, stating its preference for a workplace ballot. The Employer explained that it had always been of the view that it is the workers who should decide who, if anyone, represents them in collective bargaining. It therefore preferred the option that would enable workers to easily and effectively express their views with the least barriers so that it was their overall collective view that was accurately expressed.
16) The Employer did not believe that there was risk of unfairness or malpractice which would render a workplace ballot unreliable. Since it was a nursing home all staff within the bargaining unit attended work to perform their duties. It was therefore more practical for them to vote on site whilst attending the workplace and in doing so, it would also avoid the need for a separate trip to the post office to purchase stamps or post letters at a time when we are all asked to stay at home as much as possible. The Employer stated that it believed at the current time the postal service was being disrupted by the effects of Covid-19 and adverse weather conditions. The Employer wanted to ensure that ballot papers were safely received and recognised by workers for what they were, amongst the large volumes of junk mail. The Employer believed that if voting was carried out by post it would present a barrier and be a practical disincentive to voting. The Employer considered that a workplace ballot would maximise workplace voting and enable each worker to simply and privately mark their preference (or not) and drop it into a secure box to express their wishes on this subject.
17) The Employer explained that as a nursing home it had many areas which were both secure and covered by CCTV and could therefore be used to ensure that it was a fair ballot with no fraudulent handling of the ballot papers/box.
18) Furthermore, and as the CAC had previously been made aware, Sage was under huge financial pressure due to losses of approximately £l0k per month at present. This loss did not impact on profits, share price etc. but on the income available for the provision of its services to its residents. It was therefore keen to minimise costs and on the basis that Sage would be responsible for half the costs of the ballot it would therefore prefer to conduct the ballot on a cost-effective basis. The Employer considered that a workplace ballot should minimise the cost, with a postal vote for those workers in the bargaining unit who were not scheduled to work during the ballot.
5. Considerations
19) When determining the form of the ballot (workplace, postal or a combination of the two methods), the CAC must take into account the following considerations specified in paragraphs 25(5) and (6) of the Schedule:
(a) the likelihood of the ballot being affected by unfairness or malpractice if it were conducted at a workplace;
(b) costs and practicality;
(c) such other matters as the CAC considers appropriate.
20) The parties have put forward two different types of ballot for the Panel to consider. The Union have argued for a postal ballot, whereas the Employer has submitted that the ballot should be a combination ballot, that is a workplace ballot with a postal element for those workers known in advance to be absent from the workplace on the day of the ballot.
21) The Panel, having carefully considered the parties’ submissions, has decided that, taking into account the uncertainty caused by the Covid-19 pandemic, the appropriate form of ballot in the circumstances would be a postal ballot. At the time of this decision the UK is in a national lockdown. The Panel is unable, therefore, to forecast what restrictions will be in place at the time of the ballot should we decide that it be held in the workplace. In the current climate we feel that this is the most appropriate and safest form of ballot. The Panel has also considered Sage’s submissions on costs, however, the Panel does not consider that the costs of holding a postal ballot will be significantly more than the costs of a workplace ballot in this case. In fact the Panel believes the costs of a postal ballot may well be less than those of a workplace ballot.
6. Decision
22) The decision of the Panel is that the ballot be a postal ballot.
23) 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
Ms Laura Prince, Panel Chair
Miss Mary Canavan
Mr Paul Noon OBE
16 February 2021