Decision

Acceptance Decision

Updated 30 August 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1331(2023)

6 July 2023

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 (CWU)

and

Cuckoo Internet Limited

1. Introduction

1) Communication Workers Union (CWU) (the Union) submitted an application to the CAC dated 31 May 2023 that it should be recognised for collective bargaining purposes by Cuckoo Internet Limited (the Employer) in respect of a bargaining unit comprising “customer service representatives, onboarding specialist and customer operations team leads working in customer service.” The location of the bargaining unit was given as “no single location as they are all remote workers.” The application was received by the CAC on 31 May 2023 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 12 June 2023 which was copied to the Union.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chairman established a Panel to deal with the case. The Panel consisted of Stuart Robertson, Panel Chair, and, as Members, Mr David Cadger and Mr Michael Clancy. The Case Manager appointed to support the Panel was Joanne Curtis.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 14 June 2023. The acceptance period was extended to 17 July 2023 in order to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the comments before arriving 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 had made a request for recognition to the Employer on 7 April 2023 which the Employer responded to on 24 April 2023. A copy of the Union’s letter of 7 April 2023 and the Employer’s response was attached to the application.

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 85. The Union stated that there were 46 workers in the proposed bargaining unit, of whom 28 were members of the Union. The Union said that it would be happy to provide a list of members to the CAC on a confidential basis. 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 said that a majority of workers within the proposed bargaining unit were members of the Union and therefore it was reasonable to assume such members would support recognition.

8) The Union stated that the reason for selecting its proposed bargaining unit was that it covered the Employer’s entire customer service team. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit.

9) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application and supporting documents to the Employer on 31 May 2023. The Union said that it was happy for its details to be forwarded to Acas.

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

10) In its response to the Union’s application the Employer stated that it had received the

Union’s written request for recognition on 7 April 2023. The Employer stated that it responded on 24 April 2023 stating “Thank you for your email of 7 April. I note you have made a request that Cuckoo Internet Ltd (the “Company”) recognises the CWU for collective bargaining purposes in respect of a bargaining unit you identify as “Customer Service Representatives; Onboarding Specialist; and Customer Operations Team Leads; working in Customer Service”. The Company does not accept your request but is willing to meet with you, as you suggest, to understand more from you. I will be in touch to suggest some dates for a meeting.”

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 24 May 2023 ^{[footnote 1]} The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union, nor did it agree with the proposed bargaining unit. The Employer said “we do not yet understand how the bargaining unit proposed by the union will work in practice and how future recruits might be assessed as to whether they fall inside or outside the proposed bargaining unit.”

12) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist the parties. The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application and said “there have been recent leavers within the proposed bargaining unit and we estimate the current number of workers within it are materially lower than the figure specified in the union’s application.” The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated that it believed that the Union’s membership figures would now be reduced as a result of recent leavers who worked in the proposed bargaining unit.

14) 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 said that the number of Union members within the proposed bargaining unit had not been verified by the Employer and that it did not follow that all Union members would support recognition. The Employer went on to say “we have anecdotal evidence from employees that they are not in favour of union recognition. The employer operates a collective process for engaging with all staff about a range of issues which we believe has the support of a majority of staff as an appropriate mechanism for consultation and discussion.”

15) When asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit and when asked if it had received any other applications in respect of workers in the proposed bargaining unit. The Employer left the box blank. The Employer stated that it was happy for its contact details to be forwarded to Acas.

5. The Union’s comments on the Employer’s response

16) The Union in an e mail dated 19 June 2023 stated that customer service was a discreetly managed unit and that this had been confirmed by the management team. The Union went on to say, “there didn’t appear to be any dispute that the unit and grades listed by CWU working within it constituted a viable collective bargaining unit.” The Union said that a number of workers had left in recent weeks and that this both reduced the number of Union members and also the overall number of workers in the proposed bargaining unit. The Union added that other staff had joined the Union in this period. The Union went on to say that it believed there was majority support for collective bargaining in the proposed bargaining unit which was evidenced by the number of paid-up Union members and continued membership growth. The Union concluded by stating “we are not aware of any collective process for engaging with all staff in the unit although we are aware that Cuckoo is in the process of creating such a body.”

6. The membership and support check

17) 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, dates of birth and job roles (where available). It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 19 June 2023 from the Case Manager to both parties.

18) The information requested from the Employer was received by the CAC on 22 June 2023 and from the Union on 22 June 2023. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

19) The list supplied by the Employer indicated that there were 41 workers in the Union’s proposed bargaining unit.

20) The list of members supplied by the Union contained 30 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 28, a membership level of 68.29%.

21) A report of the result of the membership and support check was circulated to the Panel and the parties on 22 June 2023 and the parties were invited to comment on the results of that check by noon on 28 June 2023.

7. Summary of the parties’ comments following the membership and support check

22) In an e-mail to the CAC, dated 29 June 2023, the Union stated, “our understanding is that both members on the CWU list were in employment at the time of submission – one is leaving the company at the end of the month.”

8. Considerations

23) 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 considered carefully the submissions of both parties and all the evidence in reaching its decision.

24) 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 12. 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)

25) 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 proposed bargaining unit.

26) The membership check conducted by the Case Manager (described in paragraphs 17 - 21 above) showed that 68.29% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 18 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. The Panel has therefore decided that members of the union constitute at least 10% of the workers in the 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) For the reasons given in paragraph 26 above, the Panel has concluded that the level of union membership within the proposed bargaining unit stands at 68.29%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union.

29) The Employer has argued that it has anecdotal evidence from workers that they are not in favour of union recognition. However, we do not have any evidence to back this up.

30) The Panel has therefore reached the conclusion that, on the balance of probabilities and in the absence of any evidence to the contrary, 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.

9. Decision

31) For the reasons given in paragraphs 23 - 30 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Stuart Robertson, Panel Chair

Mr David Cadger

Mr Michael Clancy.

6 July 2023

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1. The Panel have assumed that this should read 31 May 2023 and was a typographical error. ↩