Decision

Acceptance Decision

Updated 18 June 2019

Case Number: TUR1/1068(2018)

12 December 2018

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:

BECTU a sector of Prospect

and

The Corporation of the Hall of Arts and Sciences

1. Introduction

1) BECTU, a sector of Prospect (the Union), submitted an application to the CAC on 4 September 2018 that it should be recognised for collective bargaining by The Corporation of the Hall of Arts and Sciences (the Employer) in respect of a proposed bargaining unit comprising the “All staff employed by the Corporation of the Hall of Arts and Sciences (commonly known as the Royal Albert Hall) at the Royal Albert Hall below Heads of Department and senior executive grades in the following areas: Box Office, Facilities and Building Services, Front of House, Security, Show: Technical Planning (excluding Venue and Event Planning) and Tours”. The CAC gave both parties notice of receipt of the application on 5 September 2018. The Employer submitted a response to the CAC dated 25 September 2018 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 application. The Panel consisted of Mr. Charles Wynn-Evans, Chairman of the Panel, and, as Members, Mr. Mike Cann and Mr. Michael Leahy OBE. The Case Manager appointed to support the Panel was Nigel Cookson. 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.

2. The Union’s application

4) In its application the Union said that it had written to the Employer with a formal request for recognition on 18 July 2018 and that the Employer’s response was that it “wanted to go to Acas”. A copy of the Union’s letter of 18 July 2018 and the Employer’s letter of 31 July 2018 were enclosed with the application. In its letter of 31 July 2018 refusing the request but confirming its willingness to negotiate, the Employer proposed that Acas be asked to assist the parties. The Employer further stated that there was a significant difference in the bargaining unit presently proposed by the Union when compared to the one it had proposed in its request dated 6 December 2017 and that the Employer wished to fully explore the implications of these differences.

5) In its application form the Union confirmed that, following receipt of the request for recognition, the Employer had proposed that Acas be requested to assist the parties and that the Union had agreed to this proposal. The Union explained that it had had informal talks with Acas and the Employer prior to the request letter of 18 July 2018 and that, after a few months of negotiating, the Employer had refused the Union’s request for voluntary recognition. Following the Union submitting its formal request for recognition on 18 July 2018 the Employer stated its wish to ask Acas once again to assist the parties. The Union contacted the Acas official handling the matter to discuss dates but no meetings were subsequently arranged.

6) According to the Union, there was a total of 425 workers employed by the Employer with 212 of these falling within the proposed bargaining unit. The Union stated that it had 54 members within the proposed bargaining unit. Asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated that well over 10% of the bargaining unit were members of the Union and over 50% of the staff in the bargaining unit had signed a petition in support of the Union being recognised. Union membership had increased over the course of the recognition campaign and the Union would be happy to provide its membership list to the CAC on a confidential basis at the relevant time.

7) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that the bargaining unit made up about half of the staff at the Royal Albert Hall. They tended to work shifts and/or be on more casual contracts. They worked in the technical and front of house facing/customer support roles whereas the other 50% of the staff at the Hall who were not part of the proposed bargaining unit were engaged in more administrative support roles (i.e. marketing, sales and communications) and tended to work standard Monday to Friday 9 am – 5 pm hours. The Union confirmed that the proposed bargaining unit had not been agreed with the Employer.

8) The Union enclosed a copy of its certificate of independence with its application form.

9) Finally, the Union confirmed there had not been a previous application in respect of its proposed or a similar bargaining unit and there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

3. The Employer’s response to the Union’s application

10) In its response to the Union’s application dated 25 September 2018 the Employer stated that it had received the Union’s formal request for recognition on 18 July 2018. When asked what its response was, the Employer stated that it responded by way of letter dated 31 July 2018 indicating that (i) it did not accept the Union’s request, (ii) it was willing to negotiate with the Union and (iii) proposed that Acas be requested to assist in conducting negotiations. A copy of the Employer’s letter was enclosed with the response.

11) When asked to give the date when it received a copy of the application form directly from the Union, the Employer stated this was on 4 September 2018. The Employer confirmed that it had not agreed the proposed bargaining unit prior to having received a copy of the completed application form and that this remained the case, adding that the Employer did not recognise all of the descriptions used by the Union of classes of employees in respect of which it had made its application for recognition. The Employer accordingly reserved its position, pending the Union’s clarification of its proposed bargaining unit, on whether it was appropriate with reference to the need for it to be compatible with effective management and other relevant matters so far as they did not conflict with that need.

12) The Employer stated that it employed 522 workers at the Royal Albert Hall. The Employer did not agree with the Union’s figure as to the number of workers in the proposed bargaining unit explaining that it did not recognise all of the descriptions used by the Union of classes of employees in respect of which it has made its application. It was accordingly unable accurately to state the number of workers in the Union’s proposed bargaining unit. However, and in an effort to assist the CAC, the Employer estimated from its understanding of the Union’s description of its proposed bargaining unit that the number of workers would be around 411 as at 21 September 2018. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the proposed bargaining unit, the Employer again stated that it did not recognise all of the descriptions used by the Union of classes of employees in respect of which it had made its application. The Employer further noted (i) the discrepancy between the Union’s and the Employer’s estimate of the membership of the proposed bargaining unit; (ii) the high turnover of employees of around 30% over the last year; and (iii) the Union had provided no evidence to support its assertion that “well over” 10% of the employees in the proposed bargaining unit were members of the Union. The Employer accordingly put the Union to strict proof that at least 10% of the members of the proposed bargaining unit were members of the Union and requested that a confidential membership check be undertaken by the Case Manager once the Union had clarified the categories of employees in respect of which it had made its application.

13) When asked to give reasons if it did not consider that a majority of the workers in the proposed bargaining unit were likely to support recognition, the Employer again stated that it did not recognise all of the descriptions used by the Union of classes of employees in respect of which it had made its application. The Employer further noted: (i) the discrepancy between the Union’s and its estimates of the membership of the proposed bargaining unit; (ii) the high turnover of employees at the Hall of around 30% over the last year; (iii) only 13% of members of the bargaining unit being members of the Union on the Union’s own figures; (iv) the Union having provided no evidence to support its assertion that even on its inaccurate understanding of the size of its proposed bargaining unit that over 50% of the members of the proposed bargaining unit had signed a petition in support of its application (v) the Union had not detailed the manner in which petition signatures have been obtained; (vi) the Union having provided no evidence to support its assertion that its membership had increased over the course of its recognition campaign; (vii) the Union having made no reference to the recent significant strengthening of the Employer’s Employee Forum which now served as an increasingly effective method for the proper representation of employees’ interests; and (viii) that it had received comments from members of the proposed bargaining unit indicating their opposition to the Union being recognised. The Employer called on the Union to provide strict proof that a majority of the members of the proposed bargaining unit were likely to support recognition. It also requested a confidential check be undertaken by the Case Manager on the Union’s petition once the Union had clarified the categories of employees in respect of which it had made its application in order to confirm; (i) whether signatories were and remained members of the proposed bargaining unit; and (ii) the date on which they indicated their support given the Employer’s awareness of the historic nature of the petition and the recent significant strengthening of the Employer’s Employee Forum.

14) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the proposed bargaining unit. When asked whether, following receipt of the Union’s request, the Employer had proposed that Acas be requested to assist, the Employer answered “yes”. Asked to give further details the Employer stated that Acas facilitated talks between the parties in early 2018. The proposed bargaining unit discussed during those talks differed from that detailed in the Union’s request of 18 July 2018. The Employer therefore sought Acas’s assistance on 8 August 2018 to obtain an explanation from the Union of its rationale for the bargaining unit proposed in its request of 18 July 2018. Acas indicated on 10 August 2018 that the Union had proposed its chosen proposed bargaining unit in order to be able to rely on a petition of support that used the same formulation. The Employer requested clarification from the Union through Acas on 17 August 2018 about whether the Union would consider revising its proposed bargaining unit to one based on what would establish a future relationship based on compatibility with effective management instead of a historic petition. The Employer to its disappointment never received a response to this request.

15) Finally, when asked if it was aware of any previous application under the Schedule by the Union in respect of this proposed or a similar bargaining unit, the Employer answered “N/A”.

4. Union’s comment’s on the Employer’s response

16) In an email dated 9 October 2018 the Union expressed surprise with the figures stated by the Employer in its response as they were much higher than those discussed when talks involving Acas took place. Having gone back to its members the Union had been able to get hold of what it hoped to be a more accurate breakdown than that adopted in the original application. The Union believed the figures in the proposed bargaining unit to be closer to 346, although this figure might include some senior and admin grades that the Union did not wish to be included. The breakdown was Box Office -58, Tours - 15, BST - 14, Stage Door - 11, Fire Officers - 12, Stewards - 140, Steward Supervisors - 16, Duty Steward Managers - 4, Crew - 56, and Follow spotters - 20. The Union did not want to include any workers outside those areas and grades – so was not currently including the Technical Supervisors, Sound (as these are more managerial posts) or anyone on fixed term contracts (for instance lighting technicians). However, the Union had included crew on casual contracts in its proposed bargaining unit.

17) As some of the department names had changed since the Union began its petition, for the sake of ease, the proposed bargaining unit with the new names (excluding Heads of Department and senior executive grades) was indicated by the Union now to be as follows: Box Office, Facilities and Building Services, Front of House (this now included Tours), Security (this would be the Stage Door keepers as the rest were outsourced) and Production and Technical (excluding Technical Supervisors and any of the roles that formerly fell into the old Event Planning area)

5. Clarification of the Proposed Bargaining Unit

18) In a letter dated 12 October 2018 the Employer stated that it was clear that the Union was defining a new proposed bargaining unit in respect of which it sought recognition. By way of one illustrative example, the Union now states that it did not now wish to include “anyone on fixed term contracts” in the bargaining unit. This the Employer contended was materially different from its letter of 18 July 2018 requesting recognition in which it stated that it sought recognition for “all staff employed” without any such exclusion.

19) It was the Employer’s understanding that paragraph 2(3) of the Schedule provided that, for the purposes of determining admissibility pursuant to paragraphs 14 and 15 of the Schedule, references “to the bargaining unit are to the bargaining unit proposed in the request for recognition”. The proposed bargaining unit that the CAC was required to consider for the purposes of determining this application’s admissibility was therefore the one detailed in the Union’s letter to the Employer requesting recognition of 18 July 2018.

20) If this was correct, then the Employer requested that, if the Union wished to proceed with its application on the basis of what the Employer contended was a significantly different proposed bargaining unit, the CAC should first determine on the papers as a preliminary issue whether the application was inadmissible on the basis that the Union had failed to make a request for recognition for the proposed bargaining unit detailed in the Union’s letter to the Employer requesting recognition of 18 July 2018 contrary to paragraphs 4 and 8(b) of the Schedule.

21) In an email dated 18 October 2018 the Union stated that, after looking over the Employer’s response, it was inclined to agree that it (the Union) did not state on the petition or in the formal request that it did not wish to include fixed term contracts. This was an oversight on the Union’s part. However, the Union still believed it could proceed with the original bargaining unit it had proposed and which the Employer stated was made up of 411 staff. If this number included the Technical Supervisors, the Union was willing to agree to their inclusion. If, however, that number did not include them, then the Union would expect to continue without their inclusion. The Union still believed it could meet what it described as the CAC criteria of having at least 10% membership and being able to show there was a likelihood that the majority of the bargaining unit would support recognition. Therefore, the Union was happy to proceed with its application with the proposed bargaining unit of 411 staff as set out by the Employer in its original response to the CAC.

22) On 24 October 2018 the Case Manager was directed to write to the parties to inform them that the Panel had decided that, before a check of membership and support was undertaken, the matter be set down for an informal meeting in order to clarify the composition of the Union’s proposed bargaining unit. This informal meeting took place on 23 November 2018 and the proposed bargaining unit was clarified by agreement with the parties as follows:

“All staff employed by the Corporation of the Hall of Arts and Sciences (commonly known as the Royal Albert Hall) at the Royal Albert Hall below Heads of Department and senior executive grades in the following areas: Box Office, Facilities and Building Services, Front of House, Security, Tours and Production and Technical (excluding Event Managers and Casual Event Managers).”

6. Membership and Support Check

23) Having clarified the proposed bargaining unit in terms understood by both parties and to assist in the application of the admissibility tests, the Panel directed that the Case Manager conduct an independent check of the level of union membership in the proposed bargaining unit and the number of workers in the proposed bargaining unit who had signed a petition supporting recognition of the Union. The information from the Employer was received by the CAC on 26 November 2018 and the information from the Union was received by the CAC on 28 November 2018. It was explicitly agreed with both parties that, in order to preserve confidentiality, the respective lists and the petition would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to both parties dated 26 November 2018.

24) The Employer provided a spreadsheet with 437 names. Two names were duplicated (identical names and dates of birth) and so were excluded from the count leaving a list of 435. The details provided for each worker were: Title, Surname, Forename, Date of Birth, Department and Job Title.

25) The Union provided a spreadsheet with the details of 60 members. The information provided for each member was: period ID, Surname, Forename, MM Payment Code, Mem Grade code, Mem Branch Code, Employer Name, Title and Date of birth. In an accompanying letter the Union confirmed that the list represented its fully paid up members working at the Royal Albert Hall.

26) The Union also provided a 35 page petition bearing the names and signatures of 264 individuals. The petition took the form of a standard petition over 34 of the 35 pages, although with two variations of proposition, plus a further page which was a print out of an email from an individual worker. All of the pages of the standard petition were on BECTU headed notepaper. Fifteen of the 35 pages carried the following proposition:

PETITION IN SUPPORT OF RECOGNITION

THE CORPORATION OF THE HALL OF ARTS AND SCIENCES (COMMONLY KNOWN AS THE ROYAL ALBERT HALL)

The BECTU Sector of Prospect is asking The Corporation of the Hall of Arts and Sciences (commonly known as the Royal Albert Hall) to recognise it for collective bargaining related to pay, hours and holidays for all Staff employed by The Corporation of the Hall of Arts and Sciences (commonly known as the Royal Albert Hall) at the Royal Albert Hall below Heads of Department and senior executive grades in the following areas: Box Office, Facilities and Building Services, Front Of House, Security, Show: Technical Planning (excluding Venue and Event Planning), and Tours.

We have to show the Central Arbitration Committee that a majority of workers favour our application. If you want The Corporation of the Hall of Arts and Sciences (commonly known as the Royal Albert Hall) to recognise this union for collective bargaining, please sign the petition.

A further 19 pages of the standard petition were set out as above but with an extended second paragraph which read:

We have to show the Central Arbitration Committee that a majority of workers favour our application. If you want The Corporation of the Hall of Arts and Sciences (commonly known as the Royal Albert Hall) to recognise this union for collective bargaining, please sign the petition. Only the CAC and BECTU will see this petition. The data on this petition will be held by BECTU and the CAC until the statutory recognition process is completed or until it is no longer needed for this purpose. By signing this petition, you are giving your consent for your data to be used by BECTU and the CAC for this purpose. If you have a complaint regarding the handing of your data you can report this to the Data Protection Compliance Officer.

Underneath the proposition, irrespective of which version, was a table with columns head “PRINT NAME”, “JOB TITLE”, “WORKPLACE”, SIGNATURE” and “DATE”. The dates on the petition ranged between 29 July 2017 and 15 November 2018.

27) The final page of the petition took the form of an email from an individual worker. The email was dated 15 October 2018 and the subject headed “Re: Ongoing BECTU Recognition campaign”. The email stated:

I, (name of worker moved by CAC), would like the Royal Albert Hall (The Corporation of the Hall of Arts and Sciences) to officially recognise BECTU for the purposes of collective bargaining for the proposed bargaining unit. I work at the Royal Albert Hall as a (job title removed by CAC).

28) According to the Case Manager’s report, the total number of workers in the proposed bargaining unit was 435 and the number of Union members in the proposed bargaining unit was 58, a membership level of 13.33%. The check of the petition showed that it had been signed by 199 workers in the proposed bargaining unit, a figure which represents 45.75% of the proposed bargaining unit. Of those 199 signatories, 54 were members of the Union (12.41% of the proposed bargaining unit) and 145 were non-members (33.33% of the proposed bargaining unit). A report of the result of the membership check was circulated to the Panel and the parties on 29 November 2018 and the parties’ comments invited. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

7. Parties’ comments on the Case Manager’s report

29) In an email dated 4 December 2018 the Union contended that the membership and support check established that there was at least 10% membership of the Union within the proposed bargaining unit. The Union remained surprised at the size of the proposed bargaining unit as it did differ significantly from what was originally discussed at Acas prior to the application being submitted to the CAC, and from the 411 staff figure the Employer gave in its response to the application.

30) The Union had collected a further 15 petition signatures since the membership and petition report. These 15 names as a percentage of the 435 names on the Employer’s list would be 3.45%. When combining that with the 13.33% of staff who were members and the 33.33% of non-members who signed the petition, the Union contended that 50.1% of the proposed bargaining unit supported union recognition.

31) According to the Case Manager’s report, 51 names on the petition were not on the Employer’s list, which the Union considered indicated the level of turnover at the Royal Albert Hall since its recognition petition had started in the summer of 2017. This turnover had made collecting names more challenging and it had taken longer to build up awareness of the petition among the staff, along with a general lack of access as signatures had to be sought out by staff on shift during their breaks, and away from management, as staff did not feel comfortable expressing support for the trade union in front of them. Despite the fact that, as it put it, the Employer kept increasing the staff numbers within the proposed bargaining unit, the Union had still been able to collect more names and rise to that challenge, which it argued again indicated that a majority of the proposed bargaining unit was likely to favour union recognition.

32) According to the Union, since the original CAC application was submitted, 57 more signatures were collected in a relatively short space of time, which also showed a majority of the bargaining unit was likely to favour union recognition. Further, some employees had stated in confidence that they were concerned about signing the petition or joining the Union for fear of less favourable treatment. Many of these employees had, according to the Union, expressed a willingness to vote for recognition in a ballot and if recognition was achieved to also becoming members.

33) The Union also confirmed that its petition was put forward to the Royal Albert Hall Staff Forum as a forum topic of discussion at least twice late in 2017, but it was rejected for discussion by the Employer both times. This reflected the issues with access that the Union contended that it had encountered. Indeed, for a few months the Union was unable to collect signatures on site as the previous management team had stated that the petition was not allowed inside the Royal Albert Hall.

34) The Union believed that the majority of the proposed bargaining unit would be supportive in a secret, democratic ballot and called upon the CAC to test this support in such a ballot. The Panel observes that whether a ballot should be held to test the level of support for recognition amongst the relevant workers is a matter to be addressed at a subsequent stage of the recognition procedure.

35) In a letter dated 4 December 2018, the Employer stated that, as the Case Manager’s report had indicated that 13.33% of the employees in the proposed bargaining unit were members of the Union, the Employer therefore accepted that the application satisfied the statutory test under Paragraph 36(1)(a) of the Schedule. However, with regard to the test in Paragraph 36(1)(b) of the Schedule, the Employer did not believe that the results of the membership and support check indicated that a majority of the employees in the proposed bargaining unit would be likely to favour recognition of the Union. The Employer argued that this was because:

1) Only 13.33% of the employees in the proposed bargaining unit have chosen to join the Union. This level of support was not indicative of a workforce convinced of the benefits that the Union alleged to be able to offer;

2) The petition’s signatures date from as far back as 29 July 2017 and the report failed to indicate when each signature was collected notwithstanding the Employer’s express request for such analysis (in its response to question 11 of the Employer’s Response dated 25 September 2018). Only limited weight should therefore be given to the petition given significant superseding developments at the Royal Albert Hall such as the strengthening of the Employer’s Employee Forum to facilitate effective representation of employees’ interests;

3) The Union had failed to provide any indication of how it collected signatures and the report indicates that many employees signed the petition on more than one occasion. This meant that caution should be exercised when considering the petition as signatories may have signed only in order to placate a colleague after being repeatedly solicited for support; and

4) Most importantly, the Union had simply been unable to secure signatures from a majority of the members of the proposed bargaining unit notwithstanding what the Employer described as 16 months’ efforts and what the Union itself described as its “reps and activists… tirelessly collecting signatures”.

36) The Employer considered that in such circumstances the Union’s application should not be accepted by the CAC. However, if the Panel did not wish to decline to accept this application in light of the above, then the Employer requested that the Panel direct the Case Manager to undertake analysis of when employees’ signatures were collected in order to understand the extent to which the petition’s evidential value was affected by superseding developments and that the Union confirm how its signatures were collected.

8. Considerations

37) In determining whether to accept the application, the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

38) The Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 and that it was made in accordance with paragraph 12(2) of the Schedule in that before the end of the first period of 10 working days following the Employer’s receipt of the request for recognition, the Employer informed the Union that it did not accept the request but was willing to negotiate but no agreement was subsequently reached. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

9. Paragraph 36(1)(a)

39) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit. The membership check undertaken by the Case Manager on 29 November 2018 established a membership density of 13.33% within the proposed bargaining unit. In its letter of 4 December 2018 the Employer accepted that the application satisfied the statutory test under Paragraph 36(1)(a) of the Schedule.

40) It is therefore clear to the Panel that members of the Union constitute at least 10% of the workers in the bargaining unit and that the test under paragraph 36(1)(b) is satisfied.

10. Paragraph 36(1)(b)

41) 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 proposed bargaining unit. In this case, as the parties were not able to reach agreement as to the appropriate bargaining unit in the second period as defined in paragraph 10(7), the relevant bargaining unit is the Union’s proposed bargaining unit as set out in paragraph 1 of this decision and as clarified as set out in paragraph 22 above. The statutory test is also clear in that it requires the Union to demonstrate the likelihood of majority support for recognition and not actual support. This is a somewhat speculative exercise rather than a strict empirical test. This is an oft repeated mantra but nevertheless one that must be borne in mind as the Panel applies the test under this paragraph at this stage of the statutory process.

42) In this case the Union relied upon its membership and a petition as evidence that this test of a likelihood of majority support for recognition was met. The Case Manager’s membership and support check, referred to in paragraphs 23 to 28 above, as well as establishing the density of Union membership, found that the petition had been signed by 199 workers which represented 45.75% of the workers in the proposed bargaining unit. Of these 199 signatories, 54 were members of the Union (12.41% of the proposed bargaining unit) and 145 were non-members (33.33% of the proposed bargaining unit).

43) Giving its observations on the Case Manager’s membership and support check for the purposes of considering whether the test under paragraph 36(1)(b) of the Schedule has been met, the Union highlighted the challenging environment in which it collected the signatures for the petition with limited access to the workers and scant knowledge about the actual number of workers in the roles covered by its proposed bargaining unit. It set out the difficulties it faced in gathering its evidence and called upon the Panel to allow its support to be tested by way of a ballot of the workers.

44) The Employer put forward a number of reasons as to why the Panel should not accept the Union’s evidence on face value or find that the test under paragraph 36(1)(b) of the Schedule was met. First, the Employer argued that the level of Union membership within the proposed bargaining unit at only 13.33% was not “indicative of a workforce convinced of the benefits that the Union alleged to be able to offer”. Second, it argued that it was not clear from the Case Manager’s report as to when the petition signatures, which dated from as far back as 29 July 2017, were collected despite the Employer requesting such analysis at the time of its response to the application on 25 September 2018. The Employer urged the Panel to place limited weight on the evidential strength of the petition especially as it had been superseded by developments at the Employer, giving the example of the strengthening of its Employee Forum to facilitate effective representation of employees’ interests. Thirdly, the Employer stated that the Union had failed to state how it had collected the signatures and the Case Manager’s report had indicated that many workers had signed the petition on more than one occasion and so the Panel should again exercise caution when considering the petition. It set out its concern that signatories may have signed only in order to placate a colleague after being repeatedly solicited for support. Fourth, the Union had not managed to secure signatures from a majority of the members of the bargaining unit notwithstanding that it had been petitioning the workforce for 16 months.

45) Based on the industrial relations experience and expertise for which it is appointed, and its careful consideration of the points put forward by the Employer, the Panel has reached the following conclusions, making the point that in respect of both parties’ contentions the Panel must address the evidence before it and treat with caution assertions for which supporting evidence has not been put forward.

46) In terms of the contention that the low level of Union membership indicates that it is not likely that a majority of workers in the proposed bargaining unit would be likely to support recognition, the Panel has concluded that the Union’s membership density of 13.33% may well be reflective of the fact that, whilst some individuals have been willing to pay membership subscriptions even though the Union does not at this stage have collective bargaining rights, there are likely to be others who would wish the Union to gain recognition before financially committing to membership. The statutory hurdle as far as membership is concerned is set at a modest 10% and there is no argument that the Union does not satisfy this requirement.

47) With regard to the Employer’s second point in respect of the age of the petition and that the views of the signatories may well have changed following changes brought in by the Employer, the Panel has to arrive at its decision as to whether or not a majority of employees within the proposed bargaining unit would be likely to support recognition of the Union based on the evidence before it. The Panel has been provided with no evidence - save for the Employer’s assertion to this effect - that would lead the Panel to believe that any of the petition signatories have changed their minds and no longer wish to support recognition of the Union. It is the Panel’s view that the evidential value of the petition is not weakened by the time it apparently took for the signatures to be collected. It is inevitable that, prior to recognition, a union has limited access to the workforce and thus logistical issues, coupled with scant knowledge of the numbers concerned, may well prevent a speedy sampling of the views of a particular workforce. No positive evidence has been put forward which cogently persuades the Panel that the petition is not a reliable indicator of the level of likely support for recognition of the Union.

48) With regard to the Employer’s third point, the Case Manager’s report highlighted the fact that there were 14 duplicated signatures out of a total of 264. The Panel does not find this figure to be excessive as suggested by the Employer and does not consider that it undermines the legitimacy, reliability and evidential value of the Union’s petition. The Panel does not accept the Employer’s argument that, as the Panel was not told exactly how the Union conducted its petition, the Panel should approach it with caution. The system of membership and support checks employed to determine whether the admissibility tests are satisfied relies on the good faith and honesty of both parties in supplying information and the Panel has not received any evidence from the parties which cogently casts doubt on the information provided by the parties. There is no evidence before the Panel to indicate that the basis on which the petition was compiled undermines its reliability or evidential value. Likewise, the Panel does not accept that the petition’s reliability and evidential value is undermined by peer pressure having been used to coerce workers into signing the Union’s petition as there was no evidence other than assertion to support that submission. The Employer also argued that the Union has not demonstrated an arithmetical majority in support of recognition by way of its petition notwithstanding the length of time that the Union has been circulating its petition and gathering signatures. In the Panel’s view, this not determinative of the issue since, as noted above, the test that the Panel has to apply is of likely, rather than definitive, support for recognition.

49) The Panel has borne in mind the following further considerations in reaching its decision on this issue. In this case 45.75% of the workers now engaged in the proposed bargaining unit signed the Union’s petition at a time that the Union understood that the number of workers in its proposed bargaining unit was materially lower than proved to be the case by the time that the matter came to be tested at this stage of the recognition process. At the time of its application being lodged, the Union stated that there were 212 workers in its proposed bargaining unit whereas there were 435 workers on the list provided by the Employer at the time the Case Manager’s report was conducted. That some 51 employees signed the petition but were not on the Employer’s list at the time of the membership and support check is consistent with the level of staff turnover to which both parties have referred to in their submissions. The Panel has disregarded the Union’s submission that it had collected a further 15 petition signatures since the membership and support check as no specific evidence has been supplied of those signatures other than the Union’s email to that effect. The signatures themselves were not provided to the Panel. Notwithstanding the Employer’s comments, the Panel does not consider it to be unreasonable to expect a campaign for union recognition to last a significant period of months and for a union to spend some time in gauging the level of support before taking the formal steps required by the statutory process. Furthermore, as already noted, the Panel has not received any evidence to suggest that the signatories to the petition were no longer in support of collective bargaining.

50) The Panel notes that the level of support demonstrated by the petition’s 199 signatures – at 45.75% - is some 19 signatures short of an arithmetical majority. The Panel considers that, in the absence of evidence to the contrary, and given this very significant level of support for recognition, it is a distinct possibility that 19 workers out of the remaining 236 workers whose views on trade union recognition have not been expressed, for whatever reason, would support recognition of the Union.

51) The Panel’s conclusion is that, considering all the evidence put forward to it in the round, and on the basis of the industrial relations experience and expertise for which it was appointed, 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 proposed bargaining unit as required by paragraph 36(1)(b) of the Schedule and this test is therefore met. In light of the fact that the parties have addressed these issues at this stage of the process, the Panel would observe that whether or not this bargaining unit is an appropriate bargaining unit under paragraph 18 of the Schedule and whether a ballot should be ordered are matters for the parties to address during the subsequent stages of the statutory process once the application has been accepted.

11. Decision

52) For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr. Charles Wynn-Evans, Chairman of the Panel

Mr. Mike Cann

Mr. Michael Leahy OBE

12 December 2018