Decision

Acceptance Decision

Updated 29 April 2019

Case Number: TUR1/1091(2019)

29 April 2019

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:

Independent Workers’ Union of Great Britain

(IWGB)

and

CIS Security Limited

1. Introduction

1) The Independent Workers’ Union of Great Britain (the Union) submitted an application to the CAC on 21 February 2019 that it should be recognised for collective bargaining by CIS Security Limited (the Employer) for a bargaining unit comprising the “All CIS Security Limited employees employed on the Goldsmiths, University of London security management contract”. The CAC gave both parties notice of receipt of the application on 22 February 2019. The Employer submitted a response to the CAC dated 28 February 2019 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 Mr. James Tayler, Panel Chair, and, as Members, Mrs. Susan Jordan and Mr. David Coats. The Case Manager appointed to support the Panel was Nigel Cookson.

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. The Union’s application

4) In its application the Union said that it had written to the Employer by email with a formal request for recognition on 15 January 2019. The Employer responded stating that it would not be entering into voluntary trade union recognition with the Union. A copy of the Union’s letter of 15 January 2019 along with the covering email was enclosed with the application.

5) According to the Union, it did not know the total number of workers employed by the Employer but that there was a total of 51 workers employed within the proposed bargaining unit.

6) The Union stated that it had 27 members within the proposed bargaining unit. Asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union said that more than 50% of the workers in the bargaining unit were members of the Union.

7) The Union stated that it had copied the application and supporting documents to the Employer on 21 February 2019 and it annexed to the application a copy of its certificate of independence.

8) Finally, the Union said there had not been a previous application in respect of this or a similar bargaining unit and there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

4. The Employer’s response to the Union’s application

9) In its response to application dated 28 February 2019 the Employer stated that it had received the Union’s formal request for recognition on 15 January 2019. When asked what its response was, the Employer stated that it responded by letter dated 25 January 2019 informing the Union that it would not be entering into a voluntary trade union recognition agreement with the Union. The Employer did not provide a copy of this letter with its response.

10) When asked to give the date it received a copy of the application form directly from the Union, the Employer stated this was on 21 February 2019. The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form but when asked did it agree the bargaining unit, it answered “Yes”.

11) The Employer stated that it employed 1641 workers in total and that it agreed with the Union’s figure as to the number of workers in the bargaining unit. When asked to give reasons for disagreeing with the Union’s estimate of its membership in the bargaining unit, the Employer stated that there had been no evidence provided by the Union to confirm the number of members within the proposed bargaining unit.

12) When asked if there was an existing agreement for recognition in place covering workers in the proposed bargaining unit the Employer stated “Yes we have a sole recognition agreement with Unison for representing those workers within this bargaining unit”. No further details of the agreement were provided.

13) 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 answered “No”.

14) On 4 March 2019 the Panel Chair directed that the Case Manager write to the Employer calling for copies of those documents referred to in the response but not provided; namely, the Employer’s letter of 25 January 2019 refusing the request for recognition and the copy of the existing agreement for recognition.

5. Union’s comments on the existing agreement

15) On 5 March 2019 the Employer provided the documents requested by the Case Manager. The documents were copied to the Union under cover of a letter of the same date. The agreement provided by the Employer was dated 13 February 2019 and was made between Unison and the Employer in respect of “all employees of CIS based at Goldsmiths University”. The Union was asked to confirm whether it accepted that there was in force a collective agreement under which Unison was recognised as entitled to conduct collective bargaining on behalf of all employees of CIS based at Goldsmiths University and that, as a consequence, the provisions of paragraph 35 of the Schedule applied to this application. To assist the Union the terms of paragraph 35 were set out in the letter. Paragraph 35 reads:

35) - (1) An application under paragraph 11 or 12 is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit.

(2) But sub-paragraph (1) does not apply to an application under paragraph 11 or 12 if-

(a) the union (or unions) recognised under the collective agreement and the union (or unions) making the application under paragraph 11 or 12 are the same, and

(b) the matters in respect of which the union is (or unions are) entitled to conduct collective bargaining do not include all of the following: pay, hours and holidays (“the core topics”).

(3) A declaration of recognition which is the subject of a declaration under paragraph 83(2) must for the purposes of sub-paragraph (1) be treated as ceasing to have effect to the extent specified in paragraph 83(2) on the making of the declaration under paragraph 83(2).

(4) In applying sub-paragraph (1) an agreement for recognition (the agreement in question) must be ignored if-

(a) the union does not have (or none of the unions has) a certificate under section 6 that it is independent,

(b) at some time there was an agreement (the old agreement) between the employer and the union under which the union (whether alone or with other unions) was recognised as entitled to conduct collective bargaining on behalf of a group of workers which was the same or substantially the same as the group covered by the agreement in question, and

(c) the old agreement ceased to have effect in the period of three years ending with the date of the agreement in question.

(5) It is for the CAC to decide whether one group of workers is the same or substantially the same as another, but in deciding the CAC may take account of the views of any person it believes has an interest in the matter.

(6) The relevant bargaining unit is-

(a) the proposed bargaining unit, where the application is under paragraph 11(2) or 12(2);

(b) the agreed bargaining unit, where the application is under paragraph 12(4).

16) In a letter dated 11 March 2019 the Union contended that the intention of paragraph 35 of the Schedule was to examine if there was a collective agreement existing at the date of the application, if not paragraph 35 would be an incentive for an employer to recognise a sweet heart union after receiving the application.

17) The Union noted that the agreement was dated before the date of the application, however, the Union did not accept that date was truthful. The Union stated that the Employer failed to submit a copy of the recognition agreement until requested by the CAC and that the Employer had not answered any of the questions about the recognition agreement on the response to the application for recognition. The Union contended that the Employer signed a recognition agreement with Unison after having had notice of the application and backdated it. The Union submitted in these circumstances its counsel should be permitted to cross examine the Employer’s witnesses under oath.

18) In the alternative, the Union submitted that Paragraph 35 of the Schedule was incompatible with Article 11 of the European Convention of Human Rights. The Union argued that in The Pharmacists’ Defence Association Union & Boots Management Services Ltd [2017] EWCA Civ 66 it was held that but for the existing of the de-recognition procedure in the case of voluntary recognition of a non-independent trade union, paragraph 35 of Schedule A1 would breach Article 11. It noted that in the case of a voluntarily recognised independent trade union, such as in this case, there was no de-recognition procedure. The Union argued that the application of paragraph 35 in this case would breach workers’ Article 11 right to collective bargaining with the union of their choice.

19) The Union stated that this argument was currently live in the case of Independent workers union of Great Britain v CAC (CO/1594 & 1604/2018) and that it was awaiting judgment by the High Court. The Union submitted that it would be inappropriate for the CAC to reject the Union’s application and that the proceedings should be stayed pending the judgment from the High Court.

6. Employer’s comments on the Union’s letter

20) The Union’s letter of 11 March 2019 was copied to the Employer and its comments invited. In a letter dated 14 March 2019 the Employer stated that it had been engaging with Unison since December 2018 regarding the recognition agreement and had had previous dealings with Unison over the past three years. The Employer and Unison reached the parameters of this agreement in February and it was formally signed off on 13 February 2019.

21) The Employer then apologised for initially failing to provide the letter of 25 January 2019 responding to the Union’s request for recognition and the signed Trade Union Recognition Agreement with Unison.

7. Further correspondence

22) The Panel directed that the Employer’s letter be copied to the Union and the parties be invited to provide any further submissions on whether the application should be accepted. The Panel directed that the Union be provided with a copy of the CAC decision in TUR1/1083 Unite & Clugston Distribution Services Ltd [CAC 18 February 2019] and be asked to provide any authority it relied upon to support its contention that the date on which to consider whether another union was recognised was the date of the application for recognition rather than the date on which it was determined whether the application should be accepted.

23) In a letter dated 25 March 2019 the Union stated it acceptance that there was no authority, binding upon the CAC, either to sustain its interpretation or to sustain the interpretation previously adopted by two CAC panels. It submitted that its interpretation was supported by paragraph 171 of the Schedule which provides:

“In exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned.”

24) The Union contended that as is the case for the assessment of the number of workers employed in the bargaining unit, the number of employees that are members of a union, or whether 50% of workers are likely to support recognition, the assessment is inevitably a snapshot in time. For both the membership and support of recognition thresholds that snapshot in time should be the date of the submission of the application for recognition by the union, which was why questions were asked about these matters on the application form.

25) The Union argued that the assessment of whether another trade union was recognised must also be considered at a snapshot in time. The Union argued it would be nonsensical for that snapshot to take place several weeks or potentially several months after the admissibility snapshot. The Union contested that the questions of whether there was a recognition agreement and whether the admissibility criteria were met should be assessed at the same time; which should be the date of submission of the application for recognition.

26) The purpose of paragraph 35 was not to allow an employer to evade the consequences of an otherwise valid application for recognition by recognising a different union after receipt of the application.

27) The Union contended that a trade union should not have to jump through the hoops of an application for recognition, only to find out that the exercise had been rendered futile because the employer had responded to the application by entering into a voluntary trade union recognition with another union. This would not be encouraging or promoting “fair and efficient practices”.

28) The Union repeated the point it had made on 11 March 2019 that, in the alternative, paragraph 35 would breach the Union´s Article 11 rights. The Union stated that its written argument was just a brief snapshot of the arguments which would be properly developed orally at a hearing.

29) In a letter to the CAC dated 26 March 2019 the Employer reiterated the point made in its letter of 14 March 2019 in that it had been engaging with Unison since December 2018 regarding the recognition agreement and had had previous dealings with Unison over the past three years resulting in the formal signing of the recognition agreement on 13 February 2019. The Employer argued that even if the agreement had not been in place prior to the Union’s application to the CAC, the decision in TUR1/1083 Unite & Clugston Distribution Services Ltd, required only that it be in place at the time of the decision of the CAC whether to accept the application.

8. The parties’ final submissions

30) In a letter dated 8 April 2019 the parties were informed that Panel would now move to provide a written determination and that they should provide any final written submissions, if any, by no later than noon on 15 April 2019.

31) In a letter dated 12 April 2019 the Employer stated that it did not have any further written submissions to forward to the Panel. It did, however, reiterate that it had a Trade Union Recognition agreement with Unison for the bargaining unit of Goldsmith’s University and this agreement was dated 13 February 2019 after an ongoing relationship with Unison. The Employer did not wish to recognise any other union for this bargaining unit. Despite having suggested that it would wish to elaborate on its submissions orally at a hearing, having been informed that the Panel had decided to determine the matter without a hearing, no final submissions were received from the Union. The Panel did not consider that a hearing was required in this case as the issue for determination was straightforward and the CAC seeks to deal with acceptance decisions reasonably swiftly and without unnecessary formality. A hearing is not offered just because one party requests one but is only provided where the panel considers that a hearing is necessary to fairly determine the issues. Although there is a factual dispute as to when the recognition agreement was signed with Unison for the reasons set out below we did not consider that this would affect our determination.

9. Considerations

32) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel is satisfied that the Union made a valid request to the Employer within the terms specified in paragraphs 5 to 9 of the Schedule to recognise it for collective bargaining in respect of the bargaining unit as described in paragraph 1 of this decision and that the application was made in accordance with paragraph 11 of the Schedule.

33) The Panel must now consider whether it is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 42.

10. Paragraph 35

34) Paragraph 35(1) states that an application to the CAC is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is recognised as entitled to conduct collective bargaining on behalf of any workers falling within the bargaining unit proposed by the union.

35) Here the Employer argues that the application is inadmissible as there is in place a collective agreement with Unison which was made on 13 February 2019. This agreement, it contends, is with an independent trade union and its coverage extends to those workers that fall within the bounds of the Union’s proposed bargaining unit, and so the application must fail.

36) The Union, on the other hand, submits that the Employer’s agreement with Unison was not signed on 13 February 2019 as the agreement purports, but was signed at some time after this date and that the parties to the agreement, Unison and the Employer, colluded in predating the agreement in order to thwart this application. The Union’s allegation is based only on the fact that the agreement was not attached to the Employer’s response and the questions about the agreement were not answered in the response. However, no specific evidence has been provided by the Union which would support such the allegation of collusion. On balance of probabilities the Panel accepts that the agreement was not attached to the Employer’s response on 28 February 2019 by mistake and that the questions about the agreement were not answered as they were apparent from the agreement which the Employer had meant to attach. When the Employer was asked by the CAC on 4 March 2019 to provide a copy of the agreement it did so the following day.

37) In any event, the Panel considers that the date on which to assess whether there is a recognition agreement in place is not the date on which the application is made to the CAC but the date on which it is decided whether the application should be accepted. Even on the Union’s best case the agreement was in force on that date. The Panel agrees with the Union that it would be illogical to set a different date for consideration of whether the admissibility tests are met to the date on which it is assessed whether there is a competing recognition agreement in place. While CAC decisions are not binding on other panels they do set out the thinking of panels chosen for their industrial knowledge and experience. While many CAC decisions turn on their own facts some involve determinations of general principle. Where CAC panels have consistently determined a point of principle in one way that is of significance, particularly because it involves the consideration of the issue by a number of panels all selected for their industrial knowledge including panel members who have many years of experience in the workplace. CAC panels have consistently decided that the date for determination of whether the admissibility requirements are met is the date of the determination of whether the application to the CAC should be accepted or as close to that date as practicable. CAC panels have also considered that this should be the date on which the question of whether there is a competing recognition agreement should be determined.

38) In Clugston the panel stated at paragraphs 38-39:

“38. Addressing the Union’s submission that the agreement was not signed until after the date of its application to the CAC the Panel would point out that there is no provision within the terms of the Schedule that states that the making of a formal request for recognition or even the lodging of an application with the CAC, stops the clock and so prevents the intervention of a third party union. On the question of timing the Panel, whilst acknowledging previous decisions of the CAC are non-binding, nevertheless adopts the maxim of the Panel in the case of TUR1/451(2005) TGWU and Securicor Aviation Ltd [13 June 2005]. In paragraph 19(4) of its decision the Panel, with Professor Roy Lewis as chairman, stated:

“(4) The Panel is entitled and indeed must have regard to the collective agreement of 18 May as it is required to consider the evidence that exists at the time when it makes its decision on acceptance, rather than at the time of the Union’s application to the CAC. In some cases this approach may work to the advantage of a union making an application, and in other cases it may work to the disadvantage of such a union.”

39) In common with the approach of the Panel chaired by Professor Lewis, the Panel in this case considers it appropriate to take account of the evidence available at the time that it makes its decision. This means taking into account the 2018 agreement. In the Panel’s view, to look at the reality of the industrial situation as it pertains at the time of its decision, rather than at a fixed point in the past, best accords with the CAC’s general duty under paragraph 171 to have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace (so far as consistent with applying other provisions of the Schedule in the case concerned).”

39) The same approach was taken by the Panel in case TUR1/307/2003 National Union of Journalists and Sports Division - MGN Limited [8 January 2004] where at paragraph 37 the panel stated:

“37. Relevant date. The provision of the Schedule which is central to this case is paragraph 35, which provides that an application is not admissible ‘if the CAC is satisfied that there is already in force a collective agreement under which a union is . . . recognised as entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit.’ An initial issue relates to the point in time in relation to which the Panel should apply this test. Although Mr Hendy initially submitted that the relevant date was the date of application by the Union to the CAC, we understood him not to persist in that; and Mr Linden submitted that the relevant date was the time (or as near as the facts could be established) the Panel took its decision on paragraph 35. The latter seems to us the more natural interpretation of paragraph 35 which is cast in the present tense. Moreover, this is the approach to timing which Panels have adopted when testing membership and support levels under paragraph 36, and it seems to us that these matters should be treated in the same way as far as timing is concerned. Consequently, we have taken into consideration evidence relating to all the events which have occurred before the hearing.”

40) We note that Hodge J observed in paragraph 11 of National Union of Journalists and MGN Ltd [2004] EWHC 2612 (Admin) that he considered that the CAC panel had taken the right approach:

“11. The CAC Panel then decided that the relevant date for it to “be satisfied”, in the words of para 35 of schedule A1, that a union is recognised, is the date the Panel takes its decision on the application. That is clearly correct and appears to have been accepted by the parties…”

41) We also consider, as a panel, that is the correct approach to adopt.

42) We reject the Union’s claim that application of paragraph 35 in this case results in a breach of the Union´s Article 11 rights. In Independent Workers Union of Great Britain v CAC and others [2019] EWHC 728 (Admin) the High Court has now held that where an independent trade union is recognised and, as a result, another independent union is not permitted to apply for statutory recognition by application of paragraph 35 of the Schedule this does not breach the Union’s rights under Article 11.

11. Decision

43) For the reasons given above, the Panel’s decision is that the application is not accepted by the CAC.

Panel

Mr James Tayler, Panel Chair

Mrs Susan Jordan

Mr David Coats

29 April 2019