Decision

Acceptance Decision

Updated 26 January 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1381(2024)

 26 January 2024

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:

Communication Workers’ Union

and

Ashley Anderson Limited

1. Introduction

1)         The Communication Workers’ Union (the Union) submitted an application to the Central Arbitration Committee (the CAC) on 9 January 2024 that it should be recognised for collective bargaining by Ashley Anderson Limited (the Employer) for a bargaining unit comprising the “Telemarketers working for Ashley Anderson Ltd in the Grazebrook office (Ashley Anderson, Unit 1b, Grazebrook Industrial Estate, Dudley, DY2 0XW) and Willowbrook office (Mercury House, Kingswood Road, Hampton Lovett, Droitwich Spa, Worcestershire, WR9 0QH)”.  The CAC gave both parties notice of receipt of the application on 9 January 2024.  The Employer submitted a response to the CAC dated 15 January 2024 which was copied to the Union.

2)         In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case.  The Panel consisted of Mr Stuart Robertson, Panel Chair, and, as Members, Mr Rob Lummis, and Mr Paul Moloney.  The Case Manager appointed to support the Panel was Kaniza Bibi.

3)         The Panel has extended the acceptance period in this case. The initial period expired on 16 January 2024.  The acceptance period was then extended to 6 February 2024 to allow time to conduct a membership check and for the parties to comment on the results before the Panel arrived at a decision.

2. Issues

4)         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

5)         In its application to the CAC the Union stated that it made its formal request for recognition on 8 December 2023 by way of a letter requesting that the Employer recognise the Union to conduct collective bargaining. The Employer in its response letter, received by the Union on 22 December 2023 rejected the Union’s request for voluntary recognition

6)         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.

7)         The Union stated that the total number of workers employed by the Employer was 200 and 21 of the workers were in the proposed bargaining unit, of whom 12 were Union members.

8)         Asked whether the Employer agreed on the number of workers in the proposed bargaining unit the Union answered “No”.  When called upon 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, ““Majority are members; we have met with these members who have told us directly that they want collective bargaining through a recognised union.”.

9)         The Union stated it had selected the proposed bargaining unit because “This is a discreetly managed unit in which a specific grade group carries out a defined role. The union believes that the proposed bargaining unit is clearly compatible with effective management”. The Union also confirmed that the proposed bargaining unit had not been agreed with the Employer.

10)       Finally, the Union stated that there was no existing recognition agreement which covered any of the workers in the bargaining unit, it confirmed that it held a current certificate of independence and it confirmed that it had copied the application and supporting documents to the Employer on 9 January 2024.  

4. Summary of the Employer’s response to the Union’s application

11)       In its response to the Union’s application the Employer stated that it received the Union’s written request for recognition on 8 December 2023. In its response the Employer wrote to the Union on 22 December 2023 stating “At Ashley Anderson, we are committed to putting our employees first. We have therefore discussed the contents of your letter with the employees within the bargaining unit identified within your letter, namely, the Telemarketers working in Grazebrook and Willowbrook offices. Having held discussions with the employees at both offices, a strong majority have informed us that they do not hold an interest in joining the Communication Workers Union (CWU) or having CWU undertake collective bargaining on their behalf. We do not therefore believe that the majority of workers in the proposed bargaining unit support recognition of the CWU. We do, however, propose to engage employee representatives further to allow better ownership within the company, and ensure that we continue to act in our employees best interests. On this basis, we respectfully decline your request to formally recognise the CWU.” A copy of the letter dated 22 December 2023 was enclosed with the Employer’s response.

12)       The Employer confirmed it did not agree with the proposed bargaining unit. The Employer considered that the Union’s proposed bargaining unit was not an appropriate bargaining unit and confirmed its objections to the proposed unit stating, “The unit should be expanded to include the supervisor, manager and sales co-ordinators, all of whom are managed under the same structure”.

13)       When asked if, following receipt of the Union’s request, it had proposed that Acas should be requested to assist, the Employer answered, “No”.

14)       The Employer stated that it employed a total of 164 workers. When asked whether it agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application the Employer answered, “No”.

15)       The Employer, when asked to state the number of workers in the Union’s proposed bargaining unit, confirmed there was 27 workers in the bargaining unit. When asked the reason for any difference the Employer stated, “… Of the 21 employees this only includes the Contact Centre Executives, it excludes the Team Leader, Contact Centre Manager and [the] 4 Sales Co-ordinators. These positions all fit within the same department within our structure and are managed under the same function… It is for the reasons stated above that the additional 6 employees need to be included within the bargaining unit as all roles sit hand in hand to enable the process to be completed”.

16)       The Employer said there was no existing agreement for recognition in force covering workers in the proposed bargaining unit. When asked if it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated, “After speaking with our contact centre executives we are led to believe that there are in the region of four employees who are members of the Communication Workers Union”.

17)       When invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition, the Employer stated, “ Having held discussions with employees at both offices, we advised the Contact Centre Executives that if they wanted us to accept the Communication Workers Union and open negotiations in the spirit of co-operation then we  were happy to do this and would accept and formally recognise the Communication Workers Union. After the group meetings we gave each employee the opportunity to have 1-2-1 meeting. Following these 1-2-1’s a strong majority informed us that they did not hold an interest in joining the Communication Workers Union, nor did they want the Communication Workers Union to undertake collective bargaining on their behalf. In this process, we spoke to 22 out of the 27 employees identified above during the week commencing 18th of December 2023. 16 advised that they were undecided and 4 advised that they wanted to form a bargaining unit. On this basis, our current understanding is that 20 of the 27 employees are not interested in supporting the recognition of the Communication Workers Union”.

18)       Finally, the Employer stated it was not aware of any previous application under the Schedule for statutory recognition by the Union in respect of this or a similar bargaining unit.   Asked whether it had received any other applications under the Schedule for recognition in respect of any of the workers in the proposed bargaining unit the Employer answered, “N/A”.

5. The check of membership and support

19)       To assist the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the proposed bargaining unit are members of the Union (paragraph 36(1)(a)) and whether 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 (paragraph 36(1)(b)), the Panel proposed an independent check of the level of Union membership within the proposed 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 proposed 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 and dates of birth. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party and that agreement was confirmed in a letter dated 16 January 2024 from the Case Manager to both parties.  

20)       The information requested from both the parties was received on 19 January 2024.  The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.   

21)       The list supplied by the Employer showed that there were 21 workers in the proposed bargaining unit.  The list of members supplied by the Union contained 12 names.  According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 12, a membership level of 57.14%.  A report of the result of the membership check was circulated to the Panel and the parties on 19 January 2024 and the parties’ comments invited.

6. Parties’ comments on the membership check

22)       The Employer in its response dated 23 January 2024 stated, “As the letter confirms there are enough members of the union to meet the criteria, can you advise on the next stage of the process”.

23)       In its response dated 24 January 2024, the Union stated “Thank you for providing the report of the membership check in respect of the proposed bargaining unit at Ashley Anderson Ltd, which demonstrates that 12 out of 21 workers (57.14%) in the BU are fully paid-up members of CWU. I trust this will be sufficient for the CAC to accept the CWU’s application, but I will comment briefly on the statement made by the employer in response to question 11 in its reply to the CAC on the union’s claim. The employer stated that it had conducted discussions with the employees, following which a “strong majority had informed us that they did not hold an interest in joining the Communication Workers Union nor did they want the Communication Workers Union to undertake collective bargaining on their behalf”. I won’t comment on the process as described by the employer, except to say that its reported outcome clearly doesn’t correspond with reality, given that a majority of the proposed bargaining unit are already fully paid-up members of the union. The employees contacted CWU specifically because they want wages and other terms and conditions to be determined by collective bargaining and they have strongly reaffirmed this to the union following the company’s discussion process.”.

7. Considerations

24)       In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 above are satisfied.  The Panel has carefully considered the submissions of both parties and all the evidence in reaching its decision. 

25)       The Panel is satisfied that the Union made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that its application was made in accordance with paragraph 11. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met. 

Paragraph 36(1)(a)

26)       Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit.  The membership check conducted by the Case Manager described in paragraph 21 above showed that 57.14% of the workers in the proposed bargaining unit were members of the Union. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. The Panel has therefore decided that members of the Union constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

Paragraph 36(1)(b)

27)       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 bargaining unit.

28)       The Panel notes from the membership check that a majority of the workers in the proposed bargaining unit (57.14%) are members of the Union.  In the absence of clear and cogent evidence to the contrary, the Panel is entitled to assume that members of the Union would be likely to favour recognition of the Union to conduct collective bargaining with the Employer on their behalf.  The Panel notes the Employer’s contention that in discussions with its workers in the proposed bargaining unit, “a strong majority” had said that they had no interest in joining the Union or wanting the Union to undertake collective bargaining on their behalf, but this is contradicted by the results of the membership check showing that a majority of the workers in the bargaining unit are members of the Union. On the evidence before it, the Panel has decided that 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 36(1)(b) of the Schedule and accordingly, this test is also met.

8. Decision

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

Panel

Mr Stuart Robertson, Panel Chair

Mr Rob Lummis

Mr Paul Moloney

26 January 2024