Decision

Acceptance Decision

Updated 15 June 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1222/2021

15 June 2021

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 & Unite the Union

and

Mears Limited

1. Introduction

1) GMB & Unite the Union (the Unions) submitted an application to the CAC dated 5 May 2021 that they should be recognised for collective bargaining purposes by Mears Limited (the Employer) for a bargaining unit described as: “relevant employees who are mainly or wholly engaged in the provisions of works for Leeds City Council delivered by Mears Leeds Branch. Relevant employees with the following job titles will be eligible to be included in the bargaining unit: Administrator, Commercial Assistant, Customer & Community Officer, Planner, Site Supervisor, Supervisor, Surveyor and any other ad-hoc roles below Supervisor grade”. The application was received by the CAC on 17 May 2021 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted a response to the CAC on 21 May 2021 which was copied to the Unions.

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 Mrs Sarah Havlin, Panel Chair, and, as Members, Mrs Susan Jordan and Ms Joanna Brown. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 1 June 2021. The acceptance period was extended to 15 June 2021 to allow time for the parties to comment on the results of the membership and support check and for the Panel to consider these 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 Unions’ application

5) In their application to the CAC the Unions stated that a request letter was sent by email on 9 April 2021, acknowledge by the Employer on the same day, and that no further response was received within the prescribed 10 working day period. Copies of all the correspondence was attached to the Unions’ application.

6) When asked to provide evidence that the Unions concerned would cooperate with each other and enter into single table bargaining arrangements the Unions attached copies of emails confirming their co-operation.

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

8) The Unions stated that the total number of workers employed by the Employer was 6,000, of whom 66 were in the proposed bargaining unit. The Unions said that 33 workers in the proposed bargaining unit were members of the Unions. When asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Unions stated that they were willing to send this information to the CAC on a confidential basis.

9) The Unions stated that the reason for selecting the proposed bargaining unit was because their proposed bargaining unit was the white collar/non-trade employees who supported/supervised the trade workforce and already had their own recognition agreement with the company. The Unions said that they were identifiable as a bargaining unit because of the clear identity of the trade unit, they believed it made good industrial relations, and was the right thing to do to allow parity for the employees to have their own bargaining arrangements. The Unions stated that the bargaining unit had not been agreed with the Employer.

10) In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the proposed bargaining unit the Unions answered ‘No’. The Unions confirmed that they held a current certificate of independence. The Unions stated that they had copied their application and supporting documents to the Employer on 5 May 2021.

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

11) In its response to the Unions’ application the Employer stated that it had received a request on 9 April 2021 by way of letter from the joint Trade Unions; GMB and Unite. The Employer stated that it had responded to the Unions’ request by way of email on 9 April 2021 stating the request would be forwarded to its central HR team for guidance on approach . The Employer also said that its Legal team would consider existing contracts with Leeds City Council and establish if there were any clauses which prevented material changes in the period prior to a TUPE transfer. The Employer stated that there may have been something in the Term Service contract on that matter and would endeavour to get a response back to the Unions within the timeframe. The Employer stated that a further email was sent to the Unions on 30 April apologising for an oversight as the Employer was due to have responded to the Unions the previous week. The Employer’s position was stated as a preference to take the matter through an application to the CAC.

12) The Employer confirmed that it had received a copy of the application form from the Unions on 5 May 2021. When asked if the Employer and the Unions agreed the bargaining unit before receiving a copy of the application form from the Unions, the Employer stated that Mears and GMB/Unite had agreed a local framework of who would be included in a proposed bargaining unit in 2019 and enclosed a copy of that document. The Employer explained that negotiations were suspended due to COVID 19 pandemic priorities, with their joint focus turning to furlough and protecting employment. The Employer stated that subsequently they had been informed of the decision to in-source part of the services it was providing in 2019 which impacted the bargaining unit numbers. The Employer explained that it had been involved in 3 separate procurement exercises for work in 2020 where the Employer was the incumbent provider, one of which was ongoing, and until all the tender outcomes were known the Employer would be unable to verify the bargaining unit numbers post tender. When asked if it agreed the proposed bargaining unit the Employer answered ‘yes’. The Employer stated that, following receipt of the Unions’ request, it had not proposed that Acas should be requested to assist.

13) The Employer stated that as a result of the fragmented contract structure in the Mears Leeds branch it did not agree with the Trade Unions assessment of the number of employees as defined in the Unions’ application. The Employer explained that the Leeds branch did not deal with one client, but several different clients and the grouping could change on an annual basis, as contracts were added and lost. To illustrate that point, the Employer said that eighteen of the employees balloted in 2019 were transferring from Mears to Leeds Building Services in July 2021 as part of a TUPE transfer. The Employer believed that there were currently 48 employees who would be included in the proposed bargaining unit and that number may need to be revised downwards once again in September when outcomes of further procurement exercises became known. The Employer stated that it was unclear as to the membership levels of the 48 employees as it was not party to that information.

14) When asked if there was an existing agreement for recognition in force covering workers in the proposed bargaining unit the Employer answered ‘no’.

15) In answer to the question whether it disagreed with the Unions’ estimate of membership in the proposed bargaining unit the Employer stated that it did not have access to the Trade Union membership list and therefore was unaware who were members. 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 it was believed that most of the employees in the proposed bargaining unit would support recognition based on the result of a ballot addressing that question in 2019. Asked if it wanted to put forward a case that the Unions would not co-operate with each other, the Employer stated that they would co-operate to an extent but the Employer had concerns that Unite, who had fewer members within the bargaining unit than the GMB, believed it had the right of veto should its members be outvoted by those of the GMB and that it did not prescribe to the collective unit approach where the majority vote prevailed.

16) The Employer answered ‘n/a’ when asked if it was aware of any previous application under the Schedule by the Unions 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.

5. The membership and support check

17) To assist in 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 Unions (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Unions 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 membership of the Unions 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 Unions would supply to the Case Manager a list of their paid-up members within that proposed bargaining unit including their full names and date 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 dated 26 May 2021 from the Case Manager to both parties.

18) The information from the Unions was received by the CAC on 1 June 2021 and from the Employer on 1 June 2021. 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 64 workers in the Unions’ proposed bargaining unit. The list of members supplied by the Unions contained 34 names. According to the Case Manager’s report the number of members of the Unions in the proposed bargaining unit was 28, a membership level of 43.75%.

20) A report of the result of the membership check was circulated to the Panel and the parties on 1 June 2021 and the parties were invited to comment on the results by 4 June 2021. No comments were received from either party.

6. Considerations

21) 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.

22) The Panel is satisfied that the Unions made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that their 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 paragraphs 37 to 42 of the Schedule. The Panel notes the Employer’s comments regarding the Unions not co-operating with each other but there was no persuasive evidence put forward that they would not co-operate. 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.

7. Paragraph 36(1)(a)

23) Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the Unions constitute at least 10% of the workers in the proposed bargaining unit.

24) The membership check conducted by the Case Manager (described in paragraphs 17-19 above) showed that 43.75% of the workers were members of the Unions. As stated in paragraph 18 above 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 Unions constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

8. Paragraph 36(1)(b)

25) 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 Unions as entitled to conduct collective bargaining on behalf of the bargaining unit. The Panel is tasked therefore to determine likely, not actual, majority support for Union recognition. For the reasons given in paragraph 24 above the level of membership of the Unions is 43.75%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition. No such evidence to the contrary was received in this case. Moreover, it is the Panel’s experience that there will be workers who are not members of the Unions who would be likely to favour recognition of the Unions. The Panel also notes that the Employer in their response stated they believed most of the employees in the proposed bargaining unit would support recognition based on the result of a ballot addressing that question in 2019.

26) On the basis of the evidence before it the Panel is satisfied, on the balance of probabilities, that a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Unions as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 36(1)(b) of the Schedule.

9. Decision

27) For the reasons given in paragraphs 22-26 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mrs Sarah Havlin, Panel Chair

Mrs Susan Jordan

Ms Joanna Brown

15 June 2021