Decision

Acceptance Decision

Updated 15 May 2024

Applies to England, Scotland and Wales

Case Number: TUR3/004(2024)

15 May 2024

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER TO ACCEPT THE APPLICATION BY THE EMPLOYER UNDER PARAGRAPH 66 OF PART III TO THE SCHEDULE

The Parties: 

Royal Society of Arts (RSA)

and

Independent Workers’ Union of Great Britain (IWGB)

1. Introduction

1)         The Royal Society of Arts (RSA) (the Employer) submitted an application to the CAC dated 15 April 2024 to determine whether the original bargaining unit was no longer appropriate and, if so, what would constitute an appropriate bargaining unit. The original bargaining unit consisted of “all staff, including casual staff (but only those who are engaged by the employer as employees) and excluding Heads of Teams, the HR team (HRBP and HR Coordinator) and Staff at Director level and above.” The application was received by the CAC on the 16 April 2024 and notice of receipt of the application was given to the parties on 17 April 2024. The Union submitted a response to the application on the 25 April 2024 that was copied to the Employer.

2)         In accordance with section 263 of the Act, the CAC Chairman established a Panel to deal with the case. The Panel consisted of Mr Rohan Pirani, Panel Chair, and, as Members, Mr David Coats and Mr Martin Kirke. The Case Manager appointed to support the Panel was Joanne Curtis.

2. Issues

3)         Part III of Schedule A1 to the Act may apply only if the CAC has issued a declaration that a union is recognised as entitled to conduct collective bargaining on behalf of a bargaining unit, and provisions relating to the collective bargaining method apply in relation to the unit: paragraph 64.

4)         Assuming paragraph 64 applies, the Panel is required by paragraph 68 to decide whether the Employer’s application to the CAC is admissible within the terms of paragraphs 67 and 92 and therefore should be accepted.

5)         Paragraph 92(1) states that an application to the CAC under this Part of the Schedule is not admissible unless it is made in such form as the CAC specifies, and it is supported by such documents as the CAC specifies. Paragraph 92(2) states that an application made by an Employer to the CAC under this Part of the Schedule is not admissible unless the Employer gives to the Union notice of the application and a copy of the application and any documents supporting it.

6)         Paragraph 67 provides:

(1) An application under paragraph 66 is not admissible unless the CAC decides that it is likely that the original unit is no longer appropriate by reason of any of the matters specified in sub paragraph (2).

(2) The matters are –

(a) a change in the organisation or structure of the business carried on by the employer;

(b) a change in the activities pursued by the employer in the course of the business carried on by him;

(c) a substantial change in the number of workers (d) employed in the original unit.

3. Summary of the Employer’s views and evidence

7)         The Employer’s views together with such evidence as it provided were set out in its application to the CAC dated 15 April 2024.

8)         The Employer confirmed in its application that the Union was recognised by the Employer as entitled to conduct collective bargaining on behalf of the workers constituting the original bargaining unit (described in paragraph 1 of this decision) as a result of a CAC declaration dated 28 November 2022. It provided a copy of the method of collective bargaining agreement between the parties dated 29 March 2023.

9)         The Employer submitted that it had complied with the requirements of paragraph 92 of the Schedule as the application and supporting documents were copied to the Union on 15 April 2024. It submitted further that one of the conditions set out in paragraph 67 of the Schedule applied to the original bargaining unit rendering it no longer appropriate.

10)       The Employer said that there had been a change in the organisational structure of the business carried on by the employer in the last 18 months to enable it to deliver on its strategy. The Employer explained that it now had a Senior Management Team (SMT) made up of key people managers which included those with ‘Head of Team’ as their job title, and others who were senior specialists managing a group of people directly or as part of a team responsibility, but did not have ‘Head of Team’ in their job title “but acted in the same or a similar capacity and seniority level in terms of their people management responsibilities.” The Employer went on to say that one of the key principles that defined the composition of the bargaining unit in 2022 was that it was incompatible with effective management to have senior managers in the same bargaining unit as those they managed “for the purposes of pay and promotion decisions and making recommendations about them regarding performance management and recruitment.” The Employer said “given the fact that all of our SMT layer fit within the principle outlined above, it is no longer appropriate to rely on a job title rather than a role definition to define bargaining unit parameters. There are a number of positions currently in the Bargaining Unit who sit on the SMT and actively contribute in this space.”

11)       The Employer said that its organisational structure had adapted to reflect changes to programmes and income generation opportunities and requirements; as well as “our environment of developing our people and their roles in line with organisational need and their capabilities.” The Employer said it was not possible to list particular roles as “ring-fenced” within or outside of the SMT on an ongoing basis or define that others would not be included at some point in the future. The Employer said that the definition of those not in the bargaining unit should be the Senior Manager Team (SMT) as a whole rather than those with particular job titles. The Employer continued by saying “to illustrate the principle: SMT members are the team responsible for managing and leading the organisation at a senior level. They must actively participate in and contribute to meetings, planning and decision-making where trade union activity, industrial action, collective bargaining progress and related subjects are discussed, considered, risks mitigated, and action plans developed. Holding parallel positions of ‘trade union rep’ (all of those in the BU could become a staff representative) and ‘senior management team’ is incompatible with effective management of the organisation.”

12)       In addition to the above points, the Employer said that the definition of the ‘HR team’ should be changed to reflect the new naming convention of the ‘People Team’ “to ensure that all roles in the team are covered rather than specific roles as job titles have and may change in the future. To align with the principle described, the descriptor should rather be the People Team in totality - whatever the role.”

13)       The Employer considered that in the light of the above circumstances a new bargaining unit covering “all staff, including casual staff (but only those who are engaged by the employer as employees) below the Senior Manager Team layer and excluding the People Team” would be more appropriate. The Employer explained that the original bargaining unit was defined based on very clear principles, “which are no longer upheld by the current agreed definition of it given changes in organisational operating structure, naming conventions and growth in size of a clearly defined organisational team.”

14)       The Employer said that the proposed new bargaining unit would contain 67 workers. The Employer said that the proposed new bargaining unit had not been agreed with the Union. The Employer explained that it did try to agree the change with the Union, by writing formally to the Union on 5 March 2024 to request the change. The Employer said that the Union had responded on 11 March 2024 rejecting the request and further reinforced the rejection on 28 March 2024.

4. Summary of the Union’s views and evidence

15)       The Union submitted a response to the CAC dated 25 April 2024. The Union confirmed that it had received a copy of the Employer’s application on 16 April 2024. The Union said that it was recognised as a result of a CAC declaration and that a method of collective bargaining had been agreed between the parties. The Union said that the current bargaining unit (known as the ‘original’ bargaining unit) consisted of “all staff, including casual staff (but only those who are engaged by the employer as employees) and excluding Heads of Teams, the HR team (HRBP and HR Coordinator) and Staff at Director level and above.”

16)       The Union said that it did not agree that the original bargaining unit was no longer appropriate and neither did it agree with the Employer’s reasons. The Union went on to say that the parties had agreed the method of collective bargaining just over a year ago, on 29 March 2023, following the Panel’s declaration on 7 December 2022 that the Union was recognised by the Employer to conduct collective bargaining on behalf of the original bargaining unit (“The Recognition Decision”). The Union said that it did not accept that “key principles defining the composition of the bargaining unit at the RSA in 2022 were that it is incompatible with effective management to have senior managers in the same bargaining unit as those they manage for the purposes of pay and promotion decisions and making recommendations about them regarding performance management and recruitment”. The Union said that this was a false statement as the Panel did not determine the composition of the bargaining unit as both parties had reached an agreement within the period of negotiation. The Union went on to say “there was never an agreement on those principles as evidenced by the internal communication between the parties during the negotiation process. The Union eventually decided to agree to the exclusion of Heads of Departments (not senior managers) due to the employer’s resistance to include them and as mandated by its members in order to continue with the application without any further delay.”

17)       The Union said that since the agreement of the collective bargaining method (just over a year ago), there had not been a change in the organisation or the structure of the business, a change in the activities pursued by the employer or a substantial change in the number of workers employed in the original unit. The Union said that the Employer has failed to evidence any of the above and had therefore not satisfied the statutory conditions for the application to be accepted. The Union went on to look at the conditions in turn.

18)       a) Change in the organisation or structure - The Union said that the Employer’s current internal structure was primarily divided between the “Senior leadership Team (which consisted of COO and CEO, directors and one chief of staff)” and the rest of the staff which were divided by teams, with a total of around 18 teams. The Union explained that this was the same structure (with the exception of the relabelling of a few job titles and the HR team to “People Team”) that was in place in March 2023. The Union said that there was currently no mention of a new Senior Management Team (“SMT”) within that structure. The Union said it wished to draw the Panel’s attention to the Employer’s difficulties in defining “this supposed new SMT when they state: it is not possible to list particular roles as ring-fenced within or outside of the SMT on an ongoing basis or define that others will not be included at some point in the future”. The Union said that this exemplified the fact that there had not been any change in the organisation and/or the structure and that the Employer was seeking “carte-blanche to define the bargaining unit as it pleases.”  

19)       The Union said that within the various teams there would exist “various layers of managers and responsibilities” and that it was not uncommon for managers to be included in bargaining units. The Union continued by saying “the type of workers (Senior managers) that we believe the employer is seeking to remove (as it has failed to clarify who these are in detail and has only provided vague examples) would sit below the level of responsibility of Heads of departments. This senior management layer is not new (roles such as Senior Delivery Manager, Senior Business Operations Manager etc. were already within the structure back in March 2023 and even prior to that) and although some individual titles have changed (a common practice in any organisation which does not entail a material change in the structure of the organisation), the substantive duties of this layer of staff have not changed.” The Union explained that senior managers and heads of departments were not currently acting in the same capacity and seniority level and that they had different responsibilities and performed different duties. Furthermore, the Union said that this layer of staff had no input or influence over the Employer’s collective bargaining positions, strategy, tactics, or potential offers made to the trade union with the goal of reaching a collective agreement. The Union added “this layer of staff is not consulted on the employer’s approach to collective bargaining in any way. This layer of staff is not provided with information that in any way elucidates the employer’s approach to collective bargaining nor are they involved in discussions around pay, holidays and hours. It is clear to IWGB members across the organisation, workplace representatives, and national officers, that open discussions about, and decisions pertaining to, the employer’s approach to collective bargaining happens exclusively at the levels of Director and the Chief Executive. All of the above was true of the members of the Bargaining Unit at the time of its creation.” The Union said that the bargaining unit remained appropriate as there had not been a change in the structure and because the bargaining unit remained compatible with effective management which the Union said ought to be understood as achieving workable methods of resolving issues of pay, hours and holidays by means of collective bargaining (GMPU and Ritrama (UK) Ltd (TUR1/178(2002).

20)       b) Change in the activities pursued by the employer in the course of the business carried on by him: - The Union said that the Employer had not changed the activities pursued. The Union said that a year ago, the Employer pursued the following activities: carrying out research and making recommendations on regenerative public policy practices and that these were the same activities being pursued now.

21)       c) A substantial change in the number of workers employed in the original unit: - The Union said that there had not been a substantial change in the number of workers employed in the original bargaining unit. The Union said that a year ago, there was 90 workers within the bargaining unit. The Union said it believed the current headcount was substantially the same although the Union did not have up to date numbers.

22)       The Union said that it did not agree that the Employer’s proposed bargaining unit was appropriate because there had been no material changes in the structure, activities and number of workers within the bargaining unit that justified a change and that the current bargaining unit was compatible with effective management. The Union said “we note the employer’s application suggests those working under ‘Peoples Team’, who are effectively HR, should be removed from the bargaining unit. The union is not opposed to that, but we submit that does not require the acceptance of the application as that exclusion fits within the current definition of the bargaining unit with excludes those working within the HR department (which has now been relabelled as People Team).”

The Union said that the original bargaining unit remained appropriate and that the Union had a current certificate of independence.

5. Considerations

23)       The Panel’s decision has been made after carefully considering the parties’ submissions.

24)       The Panel must be satisfied in the first place that paragraph 64 applies. The CAC issued a declaration of recognition on 28 November 2022 in relation to the original bargaining unit. The parties then made the agreement dated 29 March 2024 applying a method of collective bargaining to the unit. Accordingly, paragraph 64 applies.

25)       The Panel is satisfied that in accordance with paragraph 92 the Employer completed the appropriate CAC application form and provided supporting documentation. The Employer also gave notice of the application to the Union by copying it together with the supporting documentation to the Union on 15 April 2024. The Union subsequently confirmed to the CAC the date of receipt as 16 April 2024. The Panel is therefore satisfied that the admissibility criteria set out in paragraphs 92(1) and 92(2) of the Schedule have been met.

26)       The remaining issue for the Panel to determine is whether the application is admissible within the terms of paragraph 67. The Employer relies upon the matter specified in paragraph 67(2)(a) as an indicator that the original bargaining unit is no longer appropriate. The question for us to determine pursuant to paragraph 67(1) of the Schedule is whether it is likely that the original unit is no longer appropriate by reason of any of the matters specified in sub-paragraph (2).

27)       In respect of paragraph 67(2)(a) (change in the organisation of the business) the Employer contends, as set out above, that the current bargaining unit is no longer compatible with effective management of the organisation. The appropriateness or otherwise of the current bargaining unit was not subject to any scrutiny by the CAC as it was agreed between the parties.  As the bargaining unit agreed by the parties differed from that originally proposed by the Union, paragraph 20 of the Schedule only required the Panel to decide whether the Union’s application was valid within the terms of paragraphs 43 to 50 the Schedule.

The original application was for a bargaining unit comprising “all staff members of the RSA (including permanent, temporary and fixed-term staff and paid interns), apart from the Senior Management Team (consisting at time of writing of the Chief Executive, Chief Operating Officer, incoming Chief Impact Officer and the eight directors).” As set out above, this changed to “all staff, including casual staff (but only those who are engaged by the employer as employees) and excluding Heads of Teams, the HR team (HRBP and HR Coordinator) and Staff at Director level and above.”

28)       The essence of the Employer’s application is that the Senior Management team now includes some employees who do not have Heads of Team in their job title, so the reasons to exclude them originally should now apply to this wider group. It therefore seeks to redefine the cut-off point as “below the Senior Manager Team layer”. In addition, the Employer seeks to change HR, which is already excluded, to the renamed “People Team”. However, we have not been shown any evidence to suggest there was any agreement on the principles, or “key” principles, underlying the composition or definition of the bargaining unit. Heads of Teams were excluded as opposed to just the Senior Management Team. The Union’s version of the negotiations is this change was agreed for reasons of expediency rather than for issues relating to principle.

29)       It is unclear to what extent the said changes in the Employer’s organisation structure are referred to or reflected on the Employer’s website. No team structure or documents relating to the changes were provided to us. Parties are expressly invited to send any relevant attachments when submitting applications to the CAC. In any event, as the Union points out, there does not appear to be any significant difference between the team structure shown on the website and the structure in place on 29 March 2023, which was the date the method of collective bargaining was agreed.

30)       Because all those in the bargaining unit could potentially become trade union representatives it is argued by the Employer that inclusion of those who are effectively Heads of Team without the term in their job title, who are now said to have increased people management responsibility, is incompatible with effective management of the organisation. If the new description were applied, it is said the result would be a reduction in the bargaining unit to 67 workers from 90 when the membership and support check was undertaken in September 2022.

31)       When determining proposed bargaining units pursuant to paragraph 19(2) of the schedule a decision is only required on whether a proposed unit is appropriate and not whether it is the most appropriate bargaining unit. Further, the requirement is that the proposed bargaining unit would be compatible with effective management, not that it be compatible with the most effective management.

32)       Although bargaining units often exclude certain levels of management it is not uncommon for managers to be included. Those suggested by the Employer appear to be below Head of Department level. We have not been provided with specific evidence or documentation to suggest this layer of staff is involved with collective bargaining or involved with discussions about pay, holidays or hours. It is also noteworthy that the method of collective bargaining, agreed by the parties in March 2023, provides that the Employer shall select those individuals who comprise the Employer side of the Joint Negotiating Body (JNB). The same paragraph of the agreement clarifies that such individuals must either be those who take the final decisions within the Employer’s organisation in respect of the pay, hours and holidays of the workers in the bargaining unit or who are expressly authorised by the Employer to make recommendations directly to those who take such final decisions. Further, the agreement expressly says unless it would be unreasonable to do so, the Employer shall select as a representative of the most senior person responsible for employment relations in the bargaining unit. Therefore, concerns the Employer has about potential conflict of interest or the holding of  “parallel positions” can easily be mitigated by the application of the method agreement expressly agreed by the parties.

33)       The Union accepts that those working under the PeopleTeam who are effectively HR should be removed from the bargaining unit. However, we agree that this exclusion fits within the current definition.

34)       Therefore, we do not conclude that it is likely that the original bargaining unit is no longer appropriate by reason of the matters listed in paragraph 67(2). The Panel concludes that the bargaining unit remains appropriate.

6. Decision

35)       The Panel decides: (1) Paragraph 64 applies in the circumstances of this case. (2) The application submitted by the Employer under paragraph 66 of the Schedule is not admissible within the terms of paragraphs 67 and 92 and is not accepted by the CAC.

Panel

Mr Rohan Pirani, Panel Chair

Mr David Coats

Mr Martin Kirke

15 May 2024