Decision

Validity Decision

Updated 13 May 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1378(2023)

13 May 2024

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

DETERMINATION OF THE BARGAINING UNIT

The Parties:

National Union of Journalists (NUJ)

and

The Press Association Limited

1. Introduction

1)         National Union of Journalists (the Union) submitted an application to the CAC dated 28 November 2023 that it should be recognised for collective bargaining purposes by The Press Association Limited (the Employer/PA Ltd) in respect of a bargaining unit comprising “editorial roles which ultimately report to the Editor in Chief, barring the senior management roles. For the avoidance of doubt the senior management roles that are excluded are as follows: Editor in Chief, Business Editor, Chief News Editor, Head of Analytics and Insight, Head of Entertainment and Features, Head of Page Production, Head of Pictures, Head of Production, Head of Puzzles, Head of Video, Ireland Editor, Scotland Editor, Social Media and Real Life Editor and Sports Editor.” The location of the bargaining unit was given as “The Point, 37 North Wharf Road, London, W2 1AF and at various satellite offices throughout the nations and regions of the UK, as well as those whose roles classify them as home workers or working from home and those working as UK contracted overseas staff.”  The application was received by the CAC on 28 November 2023 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 5 December 2023 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 Ms Laura Prince, K.C., Panel Chair, and, as Members, Mr Martin Kirke and Mr Nicholas Childs. The Case Manager appointed to support the Panel was Joanne Curtis.

3)         By a decision dated 15 January 2024 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. As no agreement was reached, a hearing took place over zoom on 20 March 2024. In a decision dated 17 April 2024 the Panel determined that the appropriate bargaining unit was “editorial roles which ultimately report to the Editor in Chief, barring the senior management roles and the following positions (the Deputies positions):

Deputy Chief News Editor

Deputy Real Life and Social Media Editor

Lifestyle Editor

Puzzles Deputy

Deputy Editor Entertainment

Deputy Sports Editor

Scotland Deputy Editor

Group Picture Editor

Deputy Head of Video

Deputy Business Editor

Deputy Head of Production

Head of Features

Deputy Picture Editor

Page Production Editor

2. Issues

4)         As the determined bargaining unit differs from that proposed by the Union, the Panel is required by paragraph 20 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application is valid or invalid within the terms of paragraphs 43 to 50 of the Schedule.

3. Membership and support check

5)         To assist the determination of two of the validity tests specified in the Schedule,  namely whether 10% of the workers in the agreed bargaining unit are members of the union (paragraph 45(a)) and whether a majority of the workers in the agreed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 45(b)), the Panel proposed an independent check of the level of union membership within the determined bargaining unit. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, dates of birth and job titles of workers within the determined bargaining unit, and that the Union would supply to the Case Manager a list of its paid-up members within that unit including their full names, dates of birth and job roles (where available). The Union also agreed to supply a copy of its petition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 23 April 2024 from the Case Manager to both parties.

6)        The information from the Employer was received by the CAC on 29 April 2024 and from the Union on 29 April 2024. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

7)         The list supplied by the Employer indicated that there were 274 workers in the determined bargaining unit. The list of members supplied by the Union contained 141 names. According to the Case Manager’s report, the number of Union members in the determined bargaining unit was 141, a membership level of 51.46%.

8)         The petition supplied by the Union contained 251 names, of which 136 were in the determined bargaining unit, a figure that represented 49.64% of the bargaining unit. Of those 136 names, 108 were members of the Union (39.42% of the bargaining unit) and 28 were non-members (10.22% of the bargaining unit). The petition was submitted as an e-petition in the form of a spreadsheet which consisted of 7 columns headed, “ID”, “Start Time”, “Completion Time”, “I support the recognition application by the National Union of Journalists (NUJ) and I would like the NUJ, which is an independent trade union, to collectively bargain (negotiate) with my employer…”, “Are you currently an NUJ member?” “If you are a member, please enter your membership number if you know it” and “Please take a moment to tell us why you’ve signed and why you back fairer pay at PA.”

9)         The Union did not explain how the e-petition was carried out however the start time column contained both the date and time upon which individuals had added their name. The dates of the entries ranged from 15 March 2023 up to and including 29 April 2024.

10)       It is of note that since the bargaining unit was determined by the Panel the Case Manager has received a total of 6 emails from workers in the bargaining unit stating that they are not supportive of Union recognition.

11)       A report of the result of the membership and support check was circulated to the Panel and the parties on 1 May 2024 and the parties were invited to comment on the result of the check. In a previous letter dated 17 April 2024 the parties had also been invited to make their submissions on the validity tests for consideration by the Panel.

4. Union’s comments on the validity tests

12)       In a letter to the Case Manager dated 19 April 2024 and an e mail dated 8 May 2024 the Union made the following comments on the validity tests:

(a) Is there an existing recognition agreement covering any of the workers within the new bargaining unit? “No.”

(b) Is there 10% union membership within the new bargaining unit? “The check shows members of the Union constitute 51.46% of the bargaining unit.”

(c) Are the majority of the workers in the new bargaining unit likely to favour recognition? “The CAC should find that a majority of workers constituting the relevant bargaining unit are likely to favour recognition.”

(d) Is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? “No.”

(e) Has there been a previous application in respect of the new bargaining unit? “No.”

13)       The Union went on to say that members of the union constituted over 50% of the bargaining unit and that membership of the union was a legitimate indication of support for collective bargaining.  The Union said that the CAC should work on the basis that all members of the union would favour recognition (regardless of whether or not they had taken the administrative step of signing the petition). In addition, the Union said that the report demonstrated that 28 individuals who were not members of the union (or 10.22% of the bargaining unit) had signed the petition. The Union said that as union members made up 51.46% of the bargaining unit and non members comprising 10.22% of the bargaining unit had signed the petition this suggested that at least 61.68% of the bargaining unit favoured recognition.

14)       The Union said that the report mentioned that 6 members of the bargaining unit had written directly to the CAC indicating that they were against recognition however this amounted to only 2% of the bargaining unit. The Union said that if there were any other workers in the bargaining unit who did not favour recognition they would also have written to the CAC. The Union referred to correspondence sent by the Employer to workers and that reports had been made to the Union that workers had felt under considerable pressure as a result of this correspondence. The Union said that if there were any further members of the bargaining unit who opposed recognition they would (in the face of this correspondence by the employer) have written to the CAC (as their six colleagues had done). The Union said that it considered it very unlikely that the six workers were members of the union. But even if they were, the evidence still suggested that more than 50% of the bargaining unit was likely to favour recognition.

15)       The Union went on to say that it considered it most unlikely that all or some of these 6 individuals were the same individuals as the non members who had signed the petition. The Union said that there was no evidence that any signatory of the petition had withdrawn support “but even if all or some of these six individuals are non-members who have signed the petition, the evidence still suggests that a majority of members of the bargaining unit are likely to favour recognition. As we have explained above 61.68% of the bargaining unit are either members of the union or non-members who have signed the petition. Even if all of the six individuals are either members or non-members who have signed the petition, this grouping (members and non-members who have signed the petition) still comfortably comprises more than 50% of the bargaining unit.”

16)       The Union noted that the report said that 37 members of the bargaining unit had written to the CAC expressing a preference for a ballot. The Union said it understood that it was not appropriate to make submissions as to whether “a ballot should be called” at this stage and would reserve its submissions on this point. The Union stressed that if a member of the bargaining unit expressed a preference for a ballot this did not mean (and could not be taken to mean) that this member did not support recognition. The Union said that there were all sorts of reasons why a worker might support recognition but also favour this being determined by ballot. The Union said that if those workers who had expressed a preference for a ballot did not favour recognition, then they would have said so in their communications to the CAC “especially given the employer had encouraged them to do so.”

17)       The Union said “that the dates of signing on the petition” ran from 15 March 2023 up until 29 April 2024 and that the lifetime of the petition corresponded to the period over which the Union had been preparing and progressing its application for collective bargaining. The Union said that there had been no material change in circumstance “which would lead anyone over the lifetime of this petition to have changed their mind as to whether they support recognition. The CAC should work on the basis that those who have signed a petition in favour of recognition continue to support recognition unless they have told the CAC otherwise (or there is any other particular evidence that any particular individual has withdrawn support).” The Union explained that 49.64% of the bargaining unit had signed the petition in favour of recognition and that this was an increase from the figure recorded in the acceptance decision dated 15 January 2024. The Union said that at that stage the report recorded that 45.99% of the Union’s proposed bargaining unit had signed the petition. The Union said that the figure of 45.99% was sufficient for the purposes of the acceptance decision and that the increased figure of 49.64% should be sufficient for the purposes of validity. The Union said that Union membership (and the numbers signing the petition) had increased since the last membership check and that this demonstrated that support for union recognition was growing. The Union said it was “not aware of any resignations from the Union. Nobody has spoken out against recognition in any of the union’s meetings or directly to union representatives. As the CAC knows, the PA Photos employees were excluded from the material distributed via the SIP. This may have impacted on whether they have joined the union or signed the petition – and this should be borne in mind by the CAC in considering whether a majority of the bargaining unit are likely to favour recognition.”

5. Employer’s comments on the validity tests

18)       In e-mails to the Case Manager dated 22 April 2024 and 8 May 2024 the Employer made the following comments on the validity tests:

(a) Is there an existing recognition agreement covering any of the workers within the new bargaining unit? “No.”

(b) Is there 10% union membership within the new bargaining unit? “The employer has no visibility of the NUJ’s current union membership for the new bargaining unit and therefore cannot comment on this.”

(c) Are the majority of the workers in the new bargaining unit likely to favour recognition? “The employer has seen no evidence that a majority of the employees constituting the relevant bargaining unit would be likely to favour recognition and does not believe that there is majority support. The employer comments specifically as follows:

(i)        the employer does not believe that a majority of the new BU are union members.

(ii)       since the employer provided its data on the employees in the original BU on 19 December 2023 there has been significant staff turnover in the 4 months since as well as the BU itself changing. Therefore, we do not consider that because the CAC found the NUJ’s application in respect of the original BU to be admissible that any of those same factors/arguments necessarily still apply now. 

(iii)      In particular, we note that the NUJ previously relied upon an e-petition to help satisfy the validity test on the original proposed bargaining unit. The employer submits that the union’s e-petition is now too old and out of date and given that it was not confined to those in the declared BU anyway and there have been plenty of leavers and joiners since, it cannot be safely relied upon as evidence of likely majority support in the new BU. 

(iv)      The NUJ’s campaign for recognition has been going on at least 11 months to the employer’s knowledge and probably longer than that in reality. It is reasonable to assume that the NUJ has taken all possible steps to obtain majority support for recognition and has failed to achieve such levels of support. There is no reason to believe that any greater support would be forthcoming now. 

(v)       The employer does not accept the assumption/proposition that union membership automatically equates to support for union recognition as for this particular BU and this workforce, the feedback that the employer is receiving contradicts this.   

(d) Is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? “No.”

(e) Has there been a previous application in respect of the new bargaining unit? “No.”

19)       The Employer said it had no additional comments to make on the specific issue of the validity/admissibility of the application in light of the membership report. The Employer said “no admissions are made in this regard and clearly the CAC Panel will need to exercise its powers to reach an appropriate decision on validity.” The Employer went on to say that should the CAC decide that the application was “valid and admissible” it reserved the right to refer to the contents of the membership report at the next stage on the issue of whether a ballot should take place. The Employer concluded by saying “we anticipate making various submissions which will rely upon the contents of the membership report including the evidence in relation to the e-petition and who has and has not signed it, which we consider to be relevant to the ballot issue.”

6. Considerations

20)       The Panel is required to decide whether the Union’s application is valid or invalid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision the Panel has carefully considered the submissions of the parties and all the other evidence before it.

21)       The Panel is satisfied that the application is not rendered invalid by any of the provisions in paragraphs 44 and 46 to 50 of the Schedule. The remaining issue for the Panel to decide is whether the application is invalid under paragraph 45 of the Schedule.

Paragraph 45(a)

22)       Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the Union constitute at least 10% of the workers in the agreed bargaining unit. The membership check conducted by the Case Manager (see paragraphs 5 to 11 above) showed that 51.46% of the workers in the determined bargaining unit were members of the Union. As stated in paragraph 6 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. The Panel has therefore decided that members of the Union constitute at least 10% of the workers in the bargaining unit as required by paragraph 45(a) of the Schedule.

Paragraph 45(b)

23)       Paragraph 45(b) provides that the application in question is invalid unless the CAC decides that a majority of the workers constituting the determined bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit. The Panel notes that the membership check conducted by the Case Manager (see paragraphs 5 to 11 above) showed that 51.46% of the workers in the determined bargaining unit were Union members. The Panel notes that the Employer does not accept the assumption/proposition that union membership automatically equates to support for union recognition and that feedback the Employer has received contradicts this. The Employer has not provided any evidence of this feedback, and the Case Manager has only received 6 emails from workers who directly expressed that they did not support union recognition. In referencing the petition, the Employer said that it was now too old and out of date and could not safely be relied upon as evidence of likely majority support. 

24)       The Panel, at this stage, is testing the likelihood of majority support and the evidence to support the position that the Union has established a likelihood of majority support for collective bargaining within the bargaining unit. On the basis of the evidence before it, and in the absence of any evidence to the contrary, the level of union membership constitutes sufficient evidence for the Panel to conclude 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 45(b) of the Schedule.

7. Decision 

25)       For the reasons given in paragraphs 20 - 24 above, the Panel’s decision is that the application is not invalid, and that the CAC is proceeding with the application.

Panel

Ms Laura Prince, K.C., Panel Chair

Mr Martin Kirke

Mr Nicholas Childs

13 May 2024