Decision

Acceptance Decision

Updated 23 October 2020

Case Number: TUR1/1157(2020)

30 June 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:

GMB

and

Mears Facilities Management

1. Introduction

1) GMB (the Union) submitted an application to the CAC, dated 5 February 2020, that it should be recognised for collective bargaining purposes by Mears Facilities Management (the Employer) in respect of a bargaining unit comprising “Cleaning staff and FMA’s across the 6 schools.” The location of the bargaining unit was given as “All 6 West Lothian Schools with Mears facilities management.” The application was received by the CAC on 5 February 2020 and the CAC gave both parties notice of receipt of the application on 6 February 2020. The Employer submitted a response to the CAC, dated 10 February 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 Kenneth Miller, Panel Chair, and, as Members, Mr Matt Smith OBE and Mrs Maureen Shaw, who was later replaced by Mr Tom Keeney. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 19 February 2020. In an e-mail to the CAC, dated 20 February 2020, the Union explained that the parties wished to hold talks on voluntary recognition and, in view of this, requested that the statutory procedure be stayed. In line with the CAC policy of helping parties, where possible, reach voluntary agreements outside the statutory process the Panel was happy to accede to the Union’s request and gave notice, by way of a letter, dated 21 February 2020, that proceedings would be stayed until 31 March 2020. Following further requests from the Union the proceedings were extended on two further occasions, ending 29 May 2020. On 28 May 2020 the Union informed the CAC that it wished to return to the statutory process. The stay was therefore lifted, and by letter dated 2 June 2020 the Parties were informed that the statutory process had resumed.

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) The Union had sent its formal request letter to the Employer on 20 December 2019. The Employer responded by e-mail dated 6 January 2020. In this e-mail the Employer had asked the Union for dates on which it could meet for a discussion. By e-mail dated 23 January 2020 the Union responded, proposing dates on which it could meet with the Employer, and attached a copy of a draft recognition agreement for the Employer’s consideration. The Employer responded by e-mail on 29 January 2020. The Employer stated that it was currently reviewing all its processes across all of its contracts as to how it interacts with trade unions. The Employer stated that it was hoping to simplify the number of contracts and different ways in which it interacts with trade unions. The Employer wished to finish its review prior to adding what it believed could potentially be another process. The Employer expected the process to be completed by April and that it would arrange a meeting with the Union to discuss this and a way forward. There was a further exchange of e-mails between the parties, and by e-mail dated 4 February 2020 the Union informed the Employer that it could not wait until the end of April and therefore it would be submitting its application to the CAC. A copy of the Union’s request, and the e-mails that followed between the parties, were attached to the Union’s 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 Employer stated “N/A”. 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 “Unknown” when asked for the total number of workers employed by the Employer. The Union stated that there were 55 workers in the proposed bargaining unit, of whom 41 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 said that the majority of the bargaining unit were GMB members.

8) The Union stated that the reason for selecting its proposed bargaining unit was because it was all directly employed Mears facilities management staff, who were based in schools on this contract. 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 that 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 20 December 2019. However, this date appeared to be a typo as it was the same date as that on which the Union had sent its formal request letter to the Employer.

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 by e-mail on 20 December 2020. The Employer stated that this was later followed by a proposed draft recognition agreement, received from the Union on 23 January 2020. The Employer said that by e-mail dated 6 January 2020 it had responded to the Union, requesting dates to discuss the request as well as other matters raised within the correspondence. The Employer further stated that a series of attempted phone calls to discuss this further with the Union “happened with little success” between 6 January 2020 and 23 January 2020. The Employer stated that it managed to discuss the recognition of GMB on 23 January 2020 and this was followed by a proposed recognition agreement shared by the Union on 23 January 2020, with a request for talks on 11 or 12 February 2020.

11) The Employer stated that it discussed with the Union, via telephone, its intention to enter into a voluntary agreement with GMB, the terms of which would need negotiating. The Employer further stated that after seeking advice it was informed that there was a current Group project for standardising trade union recognition agreements nationally, which was due to be completed by the end of April and would help to ensure consistency across the Group. The Employer stated that on 29 January 2020 it had therefore requested that the Union extend time for negotiations.

12) The Employer stated that unfortunately the Union had rejected the proposed time frame and subsequently confirmed by e-mail of 4 February 2020 that they would be making their application to the CAC. A copy of the Employer’s initial response to the Union’s request, along with the parties’ further exchange of e-mails, was attached to the Employer’s response.

13) The Employer stated that it had not received a copy of the application form from the Union, and it was first received directly from the CAC on 6 February 2020. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union, but it did now agree with the bargaining unit.

14) The Employer said that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist. The Employer stated that it would however welcome Acas’ assistance in reaching a voluntary agreement. The Employer explained that it had indicated to the Union that it would like to extend the negotiating period for a recognition agreement to ensure it was in line with the wider Mears Group Plc, to avoid small fragmented agreements. The Employer stated that if this was not agreeable, it would still welcome a voluntary approach.

15) The Employer stated that there were 66 workers in total for West Lothian Schools with 44 cleaners and 8 FMAs. The Employer stated that it agreed with the number of workers in the bargaining unit as defined in the Union application. When asked whether there was existing agreement for recognition in force covering workers in the proposed bargaining unit, the Employer answered “No.”

16) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated “N/A”.

17) The Employer also answered “N/A” 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.

18) Finally, 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, the Employer stated “N/A”.

5. Additional comments from the parties

19) As stated in paragraph 3 above, by letter dated 2 June 2020 the parties were informed that the statutory process had resumed. In this letter the Union was also invited to make its responding comments on the Employer’s response to the application, a copy of which was sent to the Union on 12 February 2020. The Union was also asked to comment specifically on the Employer’s answer to question 3 of its response, concerning the date on which the Employer had received a copy of the application form from the Union

20) By e-mail to the CAC dated 3 June 2020 the Union stated that it did not believe that a response was necessary to all the points raised in the Employer’s response. It further stated that a paper copy of its application was previously posted to the Employer but for completeness, it had today sent an electronic copy to the Employer. The Union attached a copy of the e-mail dated 2 June 2020 in which it had sent a copy of the application to at Employer.

6. The membership and support check

21) 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. These arrangements were confirmed in a letter from Case Manager sent to both parties on 11 June 2020.

22) The information requested from the Union was received by the CAC on 11 June 2020. The information requested from the Employer was received by the CAC on 15 June 2020. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

23) The list of members supplied by the Union contained 43 names. The list supplied by the Employer indicated that there were 51 workers in the Union’s proposed bargaining unit.

24) According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 40, a membership level of 78.43%. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

25) A report of the result of the membership and support check was circulated to the Panel and the parties on 16 June 2020 and the parties were invited to comment on the results of that check by noon on 19 June 2020.

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

26) In an e-mail to the Case Manager dated 17 June 2020 the Union stated that it had no specific comments to make except that it believed the report showed that it had a clear majority of members within the bargaining unit. The Union also requested from the Case Manager the names of the three members, who did not appear on the list provided by the Employer. The Union stated that it could then check whether those individuals had moved employment to ensure that the Union’s records were as accurate as possible.

27) By e-mail to the Case Manager dated 17 June 2020 the Employer stated that it had noted that the report showed there were three members, who did not appear on the Employer’s list. The Employer stated that the list provided to the Case Manager on 15 June 2020 was the current staff list for West Lothian Schools.

8. Considerations

28) 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.

29) 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.

9. Paragraph 36(1)(a)

30) 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.

31) The Panel is satisfied that the check conducted by the Case Manager (described in paragraphs 21 - 24 above), which showed that 78.43% of the workers in the proposed bargaining unit were members of the Union and which the Employer did not contest, 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.

10. Paragraph 36(1)(b)

32) 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.

33) The Panel views membership of a Union, where there is no evidence to the contrary, as indicative of likely support for collective bargaining by the Union in relation to the member’s employer. The membership check produced by the Case Manager showed that 78.43% of the workers in the proposed bargaining unit are members of the Union. The Panel is satisfied that, on the evidence before it, 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.

11. Decision

34) For the reasons given in paragraphs 29 - 33 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Kenneth Miller, Panel Chair

Mr Matt Smith OBE

Mr Tom Keeney

30 June 2020