Decision

Acceptance Decision

Updated 7 September 2020

Case Number: TUR1/1199 (2020)

04 September 2020

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:

British Medical Association

and

Optima Health

1. Introduction

1) The British Medical Association (the Union) submitted an application to the CAC dated 21 August 2020 that it should be recognised for collective bargaining by Optima Health (the Employer). The bargaining unit was described in the following terms:

The remit of the bargaining unit will encompass all terms and conditions relevant to medical and dental staff where local collective agreements are specifically required by terms and conditions of service, including: –– pay, overall salary structure, terms and conditions of employment – allocation of work, such as job grading, job descriptions, hours of work, job evaluation and flexible working practices –– policies relating to recruitment, redundancy, redeployment and termination of employment –– matters of health and safety including the physical conditions in which staff work –– disciplinary, grievance and other personnel/human resources policies –– facilities and time off for BMA representatives and committee members –– holiday, sickness and pension arrangements –– equality and diversity policies –– training and development of staff –– introduction of new working practices, new technology, new equipment and new techniques –– contracting out or TUPE (transfer of undertakings – protection of employment) –– strategic planning decisions, including the allocation of resources that have workforce implications, reorganisation of staff and relocation of offices –– consequential operational decisions – especially those likely to affect the job prospects or job security of particular branches of practice or grade

The BMA refers to bargaining units as Local Negotiation Committees (LNC). The staff side LNC constitution is attached. The BMA’s proposed recognition agreement is attached. The BMA’s terms of reference for the Joint Local Negotiation Committee (for meetings between staffside and management) with Optima Health is attached. The Recognition Agreement was sent as part of the initial request for voluntary recognition.

The location of the bargaining unit was described as follows:

The bargaining unit will have all medical and dental grades employed by Optima Health spread through the country. The principal location will be Optima Health’s Head Office in Redditch and trade union members can attend meetings online or in person.

The CAC gave both parties notice of receipt of the application on 24 August 2020. The Employer raised a preliminary issue in an undated letter received by the CAC on 25 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 Chairman established a Panel to deal with the case. The Panel consisted of Professor Gillian Morris, Chair of the Panel, and, as Members, Mr Michael Clancy and Mrs Susan Jordan. The Case Manager appointed to support the Panel was Kate Norgate.

2. Issues

3) The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 9; is made in accordance with paragraphs 11 or 12; is admissible within the terms of paragraphs 33 to 42; and therefore should be accepted.

3. Summary of the Union’s application

4) In its application to the CAC the Union stated that it had made its request for recognition to the Employer on 6 August 2020. The Union said that the Employer had declined recognition without consideration for negotiation on 11 August 2020. The Union attached a copy of the request and the Employer’s response to that request to its application. In its request for recognition the Union stated that “The employees represented are all Medical and Dental staff, and of all grades”.

5) When asked whether the Union had made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Union answered “No”. The Union stated that, following receipt of the request for recognition, the Employer had not proposed that Acas should be requested to assist the parties.

6) The Union stated that the total number of workers employed by the Employer was 26. The Union stated that there were 26 workers in the proposed bargaining unit, all of whom were members of the Union. When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining the Union stated that all members of the bargaining unit were members of the Union and were actively petitioning for union recognition. The Union stated that evidence of the doctors’ desire for Union collective bargaining was attached. The Union said that members had requested that they would prove their membership in a confidential method to the CAC.

7) The Union stated that the reason for selecting the proposed bargaining unit was that it was the union for all grades of medical and dental staff, holding negotiation and bargaining rights nationally and locally in the public and private sector. The Union said that medical staff at the Employer who were Union members had expressed a clear desire to have formal negotiations on their employment terms and conditions. The Union said that its recognition agreement was standard and open for negotiation but the Employer did not negotiate at any material time. The Union said that it had no negotiation authority or mandate for other non-medical grade staff employed by the Employer and that the recognition request was exclusively for medical (and where applicable) dental grades only. The Union said that the bargaining unit had not been agreed with the Employer. The Union said that there was no existing recognition agreement of which it was aware which covered any of the workers in the bargaining unit and attached evidence of this.

8) The Union confirmed that it held a current certificate of independence. The Union said that it had copied its application and supporting documents to the Employer on 21 August 2020.

4. Summary of the preliminary issue raised by the Employer

9) In a letter received by the Case Manager on 25 August 2020 the Employer’s Chief Executive Officer (CEO) explained that, although the Employer had been named by the Union in the application to the CAC, this was a trading name of two separate limited companies, and it did not employ any staff. The Employer said that all staff within the Optima Health Group were employed in two entirely separate companies, OH Assist Limited and Working on Wellbeing Limited. The Employer’s CEO said that the Union was aware of this, as it had told him previously that it had reviewed its members’ contracts of employment, each of which names their employer, so it would have known that its members were employed by these companies. The Employer’s CEO said that he was raising this at the earliest opportunity as it seemed to him that it was not possible for an application to proceed against a company which did not employ staff, and that as staff working in the Optima Health Group were employed in two separate companies, the Union should therefore be making separate requests and if necessary separate applications in respect of each employer. The letter asked the CAC to confirm that the application was rejected on these grounds and that if the Union wished to apply for recognition it should start the process again in respect of each employer from which it sought recognition.

5. Letter from the Case Manager

10) In a letter to the Union dated 26 August 2020 the Case Manager asked the Union to comment on the preliminary issue raised by the Employer. The letter also stated that the Panel Chair had raised the issue that the description of the proposed bargaining unit in the Union’s application was not the same as that in the request for recognition.

6. The Union’s response

11) In a letter dated 27 August 2020, received by the CAC on 28 August 2020, the Union addressed the issues of legal identity of the Employer and the description of the bargaining unit.

12) In relation to the issue of legal identity the Union said that the Employer’s CEO could have raised this when the request for voluntary recognition was made on 8 August 2020. The Union said that it was interesting that the CEO had raised this matter at this time and in this fashion, especially with a request to the CAC for a complete rejection of the Union’s application. The Union denied the Employer’s assertion that the Union had knowledge of the legal identities and said that the Union had not had sight of any contracts. The Union said that at no material time prior to this had the Employer raised an issue of company names and/or legal personality. The Union pointed to paragraph 7(1) of the Schedule which states that

The request is not valid unless the employer, taken with any associated employer or employers, employs—

(a) at least 21 workers on the day the employer receives the request…

The Union said that was clear from the wording of the Schedule that the legislation allowed the consideration of “associated employers”. The Union said that should there be contractual disparity, there was sufficient legal proximity between Optima Health t/a OH Assist Limited and Working on Wellbeing Limited to class these as associated employers. The Union said that all parties may find it helpful if Optima Health t/a OH Assist Limited and Working on Wellbeing Limited sent forward all contracts of employment held by medical and dental staff in this regard for clarity.

13) The Union said that the Employer’s CEO had confirmed that the organisation named in its application was the trading name of OH Assist Limited and Working on Wellbeing Limited. As such, it was entirely appropriate to use this as a valid name and terminology when referring to an action of “the employer”. The Union said that the Employer’s CEO had clarified in an email to staff that the Employer did not recognise any unions and that its name had been used as common parlance in any and all exchanges and correspondence so far by all parties when referring to the employer. The Union also asked the Panel to apply the same common sense and jurisprudence as demonstrated in Industrial Workers of the World and XPO Logistics 1 (Case Number: TUR1/1076(2018) 18 December 2018) at para 32:

The Panel notes the Union’s submission that the Recognition and Procedural Agreement is not a valid collective agreement because the name “XPO/Sainsbury’s”, rather than XPO Supply Chain (UK) Limited”, has been used in the heading to the agreement. In response to this submission the Employer contended that there is no requirement for an organisation to identify the legal entity within a collective agreement for the purposes of paragraph 35. The Panel notes that the first sentence of the Recognition and Procedural Agreement reads “This is an agreement between XPO and Usdaw”; the agreement throughout refers to “XPO”; and it is signed on behalf of “XPO”. The Panel is prepared to accept on the facts of this case that the term “XPO” is sufficient to identify the employer party to the agreement in question.

The Union said that there was no merit in re-submitting papers as it would be to the same individual who is the self-same Chief Executive of the self-same entities. The Union submitted that in all premises, and in every regard, the employer had been correctly identified and invited the Panel to conclude that paragraph 5 of the Schedule had been satisfied and that the employer had received a valid request for Union recognition. The Union submitted that the proceedings should continue without delay.

14) In relation to the description of the proposed bargaining unit in the application not being the same as that in the request for recognition the Union said that the recognition agreement was emailed to the Employer’s CEO and contained the Union’s model recognition agreement as an attachment. The Union said that it thoroughly negotiated on recognition agreements with clauses being amended, removed or expanded upon. The Union said that the recognition agreement became a document of its own life and legacy, and it was appropriate that it was attached as a working document. The Union said that paragraph 4 of its recognition agreement was a comprehensive enunciation of the bargaining unit provisions and as such, and for brevity, the Union had cut and pasted these provisions into the box at section 14 of the application along with guidelines to the complete documents to be as helpful to the Panel as possible. The Union said that it had not modified the substance, description or terms of bargaining unit at any material time and invited the Panel to view this as a matter of style rather than substance. The Union said that the recognition agreement detailing the bargaining unit sent as an attachment to the CAC and referred to in section 14 of the CAC application was identical to the recognition agreement detailing the bargaining unit sent as an attachment to the Employer on 8 August 2020. The Union apologised to the Panel if the constraints caused by online forms and attachments had caused any confusion and asked the Panel to agree that all parties had been served identical documents in respect of the bargaining unit, and all the provisions of paragraph 8 of the Schedule had been satisfied.

7. Considerations

15) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 above are satisfied. The Panel has considered carefully the submissions of the Union and all the evidence material to the issues it is required to decide in reaching its decision.

16) The Panel is satisfied that the Union made a valid request to the Employer within the terms of paragraph 5 to 9 of the Schedule. However the Panel does not consider the application to have been made in accordance with paragraph 11 or 12 of the Schedule as required by paragraph 15(2)(b). Paragraph 11 applies if, before the end of the period of 10 working days starting with the day after that on which the employer receives the request for recognition (the “first period”) the employer fails to respond to the union’s request for recognition or informs the union that it does not accept the request. Paragraph 12 applies if, before the end of the first period, the employer informs the union that it does not accept the request but is willing to negotiate. In this case the Employer, in its letter to the Union of 11 August 2020, stated that it did not accept the Union’s request for recognition. The Panel has concluded, therefore, that paragraph 12 does not apply to the application and that it is required to consider whether the application is made in accordance with paragraph 11 of the Schedule.

17) Paragraph 11(2) of the Schedule states that a union, where the employer does not accept the request for recognition, may apply to the CAC to decide two questions: whether the proposed bargaining unit is appropriate and whether the union has the support of a majority of the workers constituting the appropriate bargaining unit. Paragraph 2(2) states that references to the “proposed bargaining unit” are to “the bargaining unit proposed in the request for recognition”. Thus paragraph 11(2) permits a union to apply to the CAC to decide whether the bargaining unit proposed in the request for recognition is appropriate. In the present case the bargaining unit proposed in the request for recognition was described as “The employees represented are all Medical and Dental staff, and of all grades”. This is the bargaining unit in respect of which paragraph 11 would permit an application to be made to the CAC. When asked to describe the bargaining unit in its application to the CAC the Union set out the remit of the bargaining unit which appears in its model recognition agreement (see paragraph 1 above). The Panel considers that this description renders the bargaining unit identified in the Union’s request to the CAC different to that identified in its request for recognition. That being so the Union has not applied to the CAC to decide whether the bargaining unit proposed in the request for recognition is appropriate in accordance with the terms of paragraph 11(2).

18) The Panel’s conclusions set out in paragraphs 16 and 17 above mean that the Panel has not found it necessary to investigate the issue raised by the Employer that it employs no staff; cannot therefore be the subject of an application under the Schedule; and that two separate requests should have been made to two individual companies which constitute the employers of workers in the Union’s proposed bargaining unit. Had the Panel needed to decide this issue it would have required further evidence from the parties including copies of contractual documents. In the course of seeking further evidence the Panel would also have invited the parties to consider an outline argument presented to the CAC by John Bowers QC in 2002. Although not now relevant to this application the Panel thought it would be helpful for the Case Manager to supply the parties with a copy of Mr Bowers’ outline argument in any event. This should not be taken as an indication that the Panel is endorsing the contents of this argument or its application to the facts of this case but rather to inform the parties about some of the matters to which they may wish to have regard in any of their future actions.

19) The Panel notes the Union’s submission that the Employer chose to raise the point about legal identity only after its application had been made to the CAC. The Panel sympathises with this submission. It would have been open to the Employer to clarify its position in its response to the Union’s request, if not earlier, and would have been in accordance in good industrial relations to have done so. The Panel also considers it may be helpful to the parties to make clear that the statutory procedure is limited to negotiations relating to pay, hours and holidays and does not extend to the much wider range of matters listed in the remit of the Union’s model recognition agreement which the Union included in its application to the CAC.

8. Decision

20) For the reason given in paragraph 16 and 17 above the Panel concludes that the application is not made in accordance with paragraphs 11 or 12 of the Schedule and is not accepted by the CAC.

Professor Gillian Morris, Panel Chair

Mr Michael Clancy

Mrs Susan Jordan

04 September 2020.