Decision

Acceptance Decision

Updated 17 November 2020

Case Number: TUR1/1156(2020)

29 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:

National Union of Journalists

and

Newsquest Media Group Limited

1. Introduction

1) The National Union of Journalists (the Union) submitted an application to the CAC on 4 February 2020 that it should be recognised for collective bargaining by Newsquest Media Group Limited (the Employer) for a bargaining unit comprising “all Local Democracy Reporters currently working for Newsquest Media Group Limited under the BBC-funded Local Democracy Reporting Service”. The location of the bargaining Unit was given as “Multiple locations within the UK”. The CAC gave both parties notice of receipt of the application on 5 February 2020. The Employer submitted a response to the CAC dated 11 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 Chair established a Panel to deal with the case. The Panel consisted Mr Rohan Pirani, Panel Chair, and, as Members, Mr Mike Cann and Mr Paul Noon OBE. Mr Cann was subsequently replaced by Mr Rob Lummis. 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 with a formal request for recognition on 28 November 2019. A copy of the Union’s letter was enclosed with the application. The Union did not specify how the Employer responded to the request.

5) According to the Union, there was a total of 3,000 workers employed by the Employer with 42 of these falling within the proposed bargaining unit. The Union did not confirm whether or not the Employer agreed with the figure given by the Union as to the number of workers in the proposed bargaining unit. The Union stated that it had more than 50% plus one in membership 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 it believed that the fact that it had the majority of the workers in the proposed bargaining unit in membership was sufficient evidence of support for trade union recognition. The Union was happy to have an independent confidential check to confirm membership density.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that it was a distinct group of workers within Newsquest Media Group Limited and the bargaining unit chosen was compatible with effective management. The Union confirmed that the bargaining unit had not been agreed with the Employer.

7) The Union confirmed that it was in possession of a certificate of independence and also confirmed that, following receipt of the Union’s formal request for recognition, the Employer did not propose that Acas be requested to assist.

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) The Employer stated that it had received the Union’s formal request for recognition on 29 November 2019 by way of an email. When asked what its response was, the Employer stated that it replied by email on 3 December 2019 stating that the request for recognition was not accepted. This was because the Employer believed that the proposed bargaining unit was already covered by existing Recognition Agreements within its local businesses. Part of the bargaining unit within those Agreements were reporters which the Employer believed, covered Local Democracy Reporters (LDRs). Whilst these reporters were funded by the BBC, they were employees of Newsquest Media Group and were managed exactly the same way as all other reports. A copy of the Employer’s email was enclosed 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 that the Union never provided the application form or supporting documents and the first time it had visibility of the application form was an email from the CAC on 5 February 2020. The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form and that this remained the case adding that it believed that the workers were already covered by existing agreements. The LDRs made up 1.7% of the Employer’s work force and it believed granting recognition would create small fragmented bargaining units within the organisation. The Employer was part of Gannett in the USA. Each of the businesses within the Newsquest Media Group operated autonomously with the employees being managed by the local management team. A high proportion of its sites had local NUJ Recognition Agreements in place with a bargaining unit which included reporters/journalists. The LDRs were managed locally under the control of the most senior editor like any other reporter. The Employer believed that recognition for the LDRs would not be appropriate as they were managed on a day to day basis by the local management team under a previously agreed Recognition Agreement.

11) The Employer stated that it employed a total of 2,437 workers. The Employer did not agree with the Union’s figure as to the number of workers in the bargaining unit explaining that there were currently 42 LDRs plus one vacancy within 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 it was unaware of how many workers had union membership therefore it could not comment on the estimate number given by the Union. When asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, the Employer answered “as above” referring to its previous answer when addressing the Union’s estimate of its membership.

12) When asked if there was an existing agreement in place covering any of the workers in the proposed bargaining unit the Employer answered “Yes”. It then listed 23 locations which it said were covered by existing agreements and gave the dates that each agreement came into force. The Employer enclosed copies of these agreements with its response. The Employer confirmed that the parties to the agreements were the Employer and the Union. When asked whether, following receipt of the Union’s request, the Employer had proposed that Acas be requested to assist, the Employer answered “No”.

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 “N/A”.

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

14) The Employer’s response and enclosures were copied to the Union and its comments, both in general and specifically on the Employer’s answers to the question as to when the Union served a copy of the application form direct on the Employer and on the question as to whether there were existing agreements in place covering workers in the Union’s proposed bargaining unit, were invited. If the Union was in possession of any evidence that it served a copy of the application form and supporting documentation on the Employer, it was asked to include it along with its comments.

15) In a letter dated 18 February 2020 the Union firstly apologised for the oversight in not copying its application for statutory recognition to the Employer on the day that it was submitted to the CAC. On 14 February 2020 the Union had sent the Employer a copy of the application and the supporting enclosures and evidence of this was provided to the CAC.

16) The Union noted that the Employer contended that there were already recognition arrangements in place that covered workers in the proposed bargaining unit but the Union disagreed with this analysis and had already engaged in correspondence with the Employer setting out its view on this. The Union attached its most recent letter to the Employer on 28 January 2020 which addressed this point and to which no response had been received.

17) Paragraph 35(2) of the Schedule places a qualification on the application of paragraph 35(1), which was that an application for recognition would not be inadmissible in circumstances where the union making the application was the same union which the employer was asserting was already recognised and that union was not recognised in respect of any of the core elements of pay, hours and holidays. In other words, the Union contended that its application for recognition was only inadmissible in circumstances where it was shown that it was already recognised for LDRs in respect of all of pay, holiday and hours within current local arrangements.

18) The Union was obviously aware of the agreements referred to by the Employer however, according to the Union, they did not cover LDRs for whom the Union was seeking recognition and the Union did not have rights to collectively bargain for these workers on pay, hours or holidays under any of these arrangements and had not collectively bargained on pay for these members since the role was created in 2017 at either a regional or national level.

19) The Union referred to a meeting on 16 April 2019 where it was informed a pay rise had already been implemented earlier that year for LDRs to show that a pay increase for this group had been unilaterally imposed without any negotiations with the Union. This was, so the Union claimed, an illustration of the fact that it was not recognised for the purposes of pay bargaining in respect of these individuals.

20) The Union submitted that it did not collectively bargain on pay or hours for LDRs at a regional or national level either and had made this point to the Employer and asked for evidence of any negotiations. However, that there had been no collective bargaining on pay alone in times where a pay award had been imposed was enough to show these workers were not covered by existing arrangements.

21) The LDRs were treated entirely separately by the Employer. They published their work on an entirely different editorial system and were subject to entirely separate principles which dictated their behaviour because the roles had BBC funding attached to them. It was self-evident that they were not covered by existing arrangements as the Employer would not unilaterally impose pay awards without any negotiations at all on existing journalists covered by local arrangements. It was for this very reason that the Union was now seeking recognition in respect of this group as a distinct bargaining unit.

6. The membership and support check

22) 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 across the Union 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 proposed bargaining unit including their full names and dates of birth. It was explicitly agreed with the 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 20 February 2020 from the Case Manager to both parties. The information from the Employer was received by the CAC on 21 February 2020 and from the Union on 24 February 2020.

23) The Union provided a list with the details of 23 members. The information provided was full name and date of birth. The Employer provided a list with the details of 40 workers. The information provided was first name, surname, date of birth, job title and office.

24) According to the Case Manager’s report, the number of union members in the proposed bargaining unit across the Unions was 22, a membership level of 55%. A report of the result of the membership check was circulated to the Panel and the parties on 25 February 2020 and the parties’ comments invited. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

7. Parties’ comments on the membership check

25) In a letter dated 26 February 2020 the Union stated that paragraph 36(1)(a) required the Union to show members of the bargaining unit constituted at least 10% of the workers overall. The membership check showed that the Union had a majority (55%) of membership in the defined bargaining unit and, as such, clearly met the CAC requirement for at least 10% of membership amongst those in the bargaining unit.

26) Paragraph 36(1)(b) further required the Union to show that the majority of the workers constituting the relevant bargaining unit would be likely to favour recognition of the Union. The Union contended that given 55% of the workers in the bargaining unit were already members of the Union, this was of itself indicative of the fact that the majority of the workers would favour recognition for the purposes of collective bargaining on pay, hours and holidays. All the members were aware that the Union was pursuing formal recognition. The Union also believed many non-members would support recognition. The Union had written to all non-members last year advising them of the Union’s recognition request and encouraging them to become members. There were no unfavourable comments received back. The Union was confident many of these non-members would join in the course of the recognition process.

27) In a letter, dated 27 February 2020, the Employer contested the Union’s assertion that members of the union constituted at least 10% of the workers (LDR’s) in the relevant bargaining unit. They represented approximately 6% of the total number of journalists employed across the whole of Newsquest. There were recognition agreements in place across the business which covered all journalists including reporters, photographers, production staff, sport etc. No individual journalist role had their own bargaining unit.

28) The procedural agreements were specific to each location therefore the Employer also contested that the LDR reporters constituted 10% of the workers for each location and each agreement. Of the 40 LDR reporters employed by the Employer, only 22 were members of the Union. This clearly did not represent a majority within each location and each agreement. Furthermore, creating small fragmented groups would require over 25 separate procedural agreements and was neither administratively nor practically good business practice.

29) The LDRs were employed under the Employer’s terms and conditions from an employment law aspect. However, the Employer had a financial arrangement with the BBC which set the pay levels and any future increases. This was the same arrangement the BBC had with all other media businesses who employed LDR reporters.

30) The Employer stated that it was not in a position to assess whether a majority of the workers constituting the relevant bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit but it would emphasise the earlier point that the bargaining units across all of the business were based on individual publishing centres and were not role specific. Further and better particulars of the existing agreements for recognition

31) In a letter dated 28 March 2020 the parties were informed that the Panel noted that various employing entities were named in the series of existing agreements for recognition which the Employer asserted were in force covering workers in the proposed bargaining unit but that it was unclear as to the relationship between the Employer, Newsquest Media Group Limited, whom the Union stated was the employer of the LDRs, and the companies whose names appeared on the agreements. To assist in its determination, the Panel called for confirmation from the parties as to whether or not the Employer was the employer of the LDRs and whether or not it was party to the agreements in question.

32) In a letter dated 25 March 2020 the Employer confirmed that the various employing entities named in the agreements were local company names. The parent company of these groups was Newsquest Media Group Limited. The LDR’s were employed under Newsquest (whatever the location was) Limited.

33) In a letter dated 25 March 2020 the Union said that, over a number of years, Newsquest as a group grew by acquisition and by adding additional businesses, and the Union believed that any existing trade union recognition agreements were also transferred. Lately, the Union was aware that the enlarged group undertook several “hiving up” accounting exercises to simplify its corporate structure and to, in effect, create a single employing company. Employees in the old, local employing companies were TUPE transferred in this technical process. The original companies were made dormant and standardised contracts of employment issued which specified the Employer as the employing company.

34) Therefore, the net effect of this process was that there were a number of functioning local NUJ recognition arrangements but now with only one employing company involved. While the Employer had stated that LDRs “are employed under Newsquest (whatever the location is) Limited”, the Union disputed this. In fact, LDR contracts of employment stated: “Written statement of terms and conditions of employment between Newsquest Media Group Limited, a company number 1676637 with a trading address at . . .” An anonymised sample LDR contract issued by the Employer was attached with the Union’s email.

35) However, the Union would stress that the existing recognition agreements did not cover LDRs who had been treated as an entirely distinct group of workers. This was demonstrated by the fact there had been no collective bargaining in respect of their wages which had been unilaterally imposed, as already made clear in previous correspondence to the CAC. This, the Union claimed, had been underlined as recently as 24 March 2020 where a group-wide communication from the editorial director, informed local editors that LDRs were excluded from pay cuts to be imposed on other journalists (the email exchange was attached) and last week where he gave details of a digital bonus scheme for all Newsquest journalists, but which specifically excluded LDRs. Again, the group-wide email giving this instruction was provided as an attachment.

36) The Union stated that the Panel should note, from the appendices in the LDR contract of employment, that all LDRs had an editorial brief and required terms that had substantial elements no other reporters had.

37) On 16 April 2020 the Panel Chair sought clarification from the Employer as to why the LDRs were specifically excluded from the digital bonus scheme for all Newsquest journalists referenced in the Employer’s email of 17 March 2020 and were singled out for different treatment according to the terms of the email dated 24 March 2020 setting out the actions Newsquest would take in the face of the Covid-19 pandemic. In addition, the Employer was asked to provide evidence to show that the LDRs were subject to collective bargaining over their pay and conditions such as emails or minutes of meetings etc. In the absence of such evidence, the Employer was asked to explain how it was said that the collective agreements submitted by the Employer extended to the LDRs.

38) In a letter dated 20 April 2020 the Employer stated that, on the question of the digital bonus scheme, the LDRs were funded by the BBC and therefore the Employer did not have the authority for the LDRs to be part of the Audience Acceleration initiative as it would be a breach of contract if the LDRs were working specifically to drive up page views on the Employer’s websites through its social media platforms when they were ultimately employed to provide an equal service to the Employer, the BBC and the partners in the local democracy news partnership scheme.

39) The reason that the LDRs were singled out for different treatment in the face of the Covid-19 pandemic was that the LDRs were funded by the BBC and could not be Furloughed as they were contracted to provide a full all year-round service to the BBC and other industry partners as part of the agreement, and therefore it would be a breach of the contract if the Employer did not do so.

40) No such evidence was lodged in response to the Panel’s direction that the Employer provide evidence to show that the LDRs were subject to collective bargaining over their pay and conditions such as emails or minutes of meetings. Asked, in the absence of such evidence, to explain how it was said that the collective agreements extended to the LDRs, the Employer stated that Union representatives had never, until this process commenced, asked for the LDRs’ salaries to be increased as part of the annual wage negotiation meetings. Pay or hours were not controlled by the Employer, it was the host employer receiving funding from the BBC public licences funds therefore any collective bargaining around pay or hours should be negotiated between the Union and the BBC and not the Employer. The Employer still believed with regards to the negotiation of holidays and consultation rights that they were covered under the existing agreements. Creating a separate agreement to cover each LDR reporter’s region and “host employer” would be unnecessary. The scheme was funded by BBC, the pay was controlled by the BBC, hours of work were controlled by the BBC, therefore the Employer believed that the employer in this case should be the BBC and not Newsquest.

41) The Employer’s letter was cross copied to the Union and the parties were informed that the Panel, having read the papers received thus far, proposed that an informal meeting be held to clarify the status of the existing agreements for recognition rather than prolonging the current exchange of correspondence. The parties were asked to note that until travel restrictions currently in place because of the Covid-19 pandemic were lifted, the CAC would no longer conduct informal meetings or formal hearings face to face but would conduct its business by other methods such as video or telephone conferencing. Informal meeting

42) When asked, both parties stated a willingness to participate in an informal meeting which was duly arranged. The meeting, with the Panel Chair and Case Manager in attendance, took place via digital means on 14 May 2020.

43) It was agreed at the meeting that the application would be stayed for a period of 21 days whilst the parties negotiated an addendum to the existing agreements to extend the scope of the agreements so as to clearly encompass the LDRs whilst at the same time acknowledging the distinction between the LDRs and the other workers already covered by these agreements. This was on the basis that it was agreed that Newsquest Media Group Limited was the employer of the LDRs rather than the BBC as stated previously. The parties agreed to draft separate proposals for joint consideration in order to ensure a swift resolution to this matter.

44) Also discussed at the informal meeting were further matters that the Panel would be considering should it be called upon for an adjudication at this stage of the statutory process. This extended to matters under paragraph 36 of the Schedule wherein the Employer did not contest that 10% of the workers in the proposed bargaining unit were members of the Union or that a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union.

45) It was also agreed by both parties that TUPE applied to the collective agreements so there was no question that the agreements were not transferred at the same time that the Employer conducted its exercise to simplify its corporate structure. Regulation 6 of the TUPE Regulations provides that where an independent trade union is recognised to any extent by the transferor in respect of employees of any description who become employees of the transferee after a relevant transfer, then the union is deemed to be recognised by the transferee to the same extent in respect of employees of that description. However, this transfer of recognition applies only where the transferred organised grouping of resources or employees ‘maintains an identity distinct from the remainder of the transferee’s undertaking’ — Reg 6(1). No issue was taken in relation to the maintenance of distinct identity.

46) On 4 June 2020 the parties notified the CAC that they had been unable to reach an agreement and so the matter reverted back to the CAC for a determination.

8. Considerations

47) 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 has considered all the evidence submitted by the parties in reaching its decision.

48) The Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 and paragraphs 37 to 42 and that it was made in accordance with paragraph 11(2) of the Schedule in that before the end of the first period of 10 working-days following the Employer’s receipt of the request for recognition, the Employer informed the Union that it did not accept the request without indicating a willingness to negotiate. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraphs 34, 35 and 36(1) of the Schedule are met.

9. Paragraph 34

49) Paragraph 34 of the Schedule provides as follows:

34: An application under paragraph 11 or 12 is not admissible unless the union gives (or unions give) to the employer- (a) notice of the application, and (b) a copy of the application and any documents supporting it.

50) In this case the Employer has stated that it did not receive a copy of the application form direct from the Union but only the copy that was served on it by way of email from the CAC. The Union was invited to comment on the Employer’s assertion to that effect and to provide any evidence of service that may be in its possession.

51) In its letter of 18 February 2020, the Union, having apologised for the omission, stated that it had now complied with paragraph 34 as it had sent the Employer a copy of the application and the supporting enclosures on the 14 February 2020. The Union included evidence of service of the application form on the Employer which was stated to have been sent by both email and hardcopy by first class special delivery. The Employer, having had sight of the Union’s letter of 18 February 2020, has not informed the Panel that it did not receive the application form and supporting documents sent to it by the Union on 14 February 2020.

52) The Panel is satisfied that this evidence supports the Union’s claim that the Employer was served a copy of the application on 14 February 2020 by email and special delivery and that the application is not therefore rendered inadmissible under paragraph 34.

10. Paragraph 35

53) Paragraph 35(1) provides 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. The question that the Panel must address is whether, in the circumstances of this case, the Union’s application is rendered inadmissible by virtue of paragraph 35.

54) The Employer submits that its existing agreements with the Union are collective agreements that are already in force and cover the workers in the Union’s proposed bargaining unit. In support of its position the Employer provided copies of 16 agreements that it had entered into voluntarily with the Union. The employers that were party to the agreement, as far as could be discerned, are the following: Newsquest (Bradford); Newsquest Cheshire/Merseyside; Newsquest (Wiltshire) Ltd; Newsquest (Oxfordshire) Ltd; Newsquest Media (Southern) Ltd; Greenock Telegraph; Herald & Times Group; Newsquest (Blackburn) Ltd; Newsquest (Bolton) Ltd; Newsquest (Bradford); The Dunfermline Press; Newsquest (Echo Newspapers) Ltd; Furness Newspapers Limited and The Times & Star. As stated earlier, it was agreed by both parties during the course of the informal meeting that when the Employer conducted the exercise to simplify its corporate structure, TUPE applied to the existing collective agreements and there was no suggestion that the agreements were not transferred at the same time that the changes to the Employer’s business were made. It was also agreed during the course of the informal meeting that Newsquest Media Group Limited was the employer of the LDRs, rather than the BBC, as the Employer had sought to argue in its earlier submissions.

55) We note that there is no mention in any of the existing agreements of the role of LDR, either specifically including the role or specifically excluding the role, as the creation of the role post-dated each agreement.

56) The Union submits that the agreements do not extend to the LDRs and this was evident by the absence of any involvement in collective bargaining on their behalf, with the last pay award for this group of workers being imposed unilaterally by the Employer. The Union pointed to the emails sent by the Employer. The first of which was in regard to the digital bonus scheme and which purposely exempted the LDRs whilst it did apply to the other journalists covered by the existing agreements. The second related to the different treatment that applied to the LDRs during the present Covid-19 pandemic. This was relied on as evidence that the LDRs were not treated in the same way as other workers. The Union’s position therefore is that the agreements do not extend to the LDRs and so there is no paragraph 35 impediment to its application being accepted.

57) The Employer, on the other hand, stated that the agreements did extend to the LDRs but could not provide any evidence in support of this assertion when called upon by the Panel to do so neither emails or minutes of any meetings between the parties where any matter relating to the LDRs were discussed. The agreements vary in their wording but appear all to define the “bargaining issues” as pay, hours and holidays. This is the case, for example in the Cheshire/Merseyside agreement. Although this agreement, like all the others, was drafted before LDRs came into existence it is said to cover the Group Sports Editor, Group Commercial Features Editor, Deputy Production Editor et cetera. The bargaining unit in that particular agreement is also said to exclude the Group Editor and the Production Editor among other positions.

58) As set out above, although the Employer seeks to argue that LDRs are covered by this agreement they, nonetheless, seek to say that the pay and hours of LDRs are not subject to collective bargaining. There is nothing in the Cheshire and Merseyside agreement to suggest that a particular category of worker is recognised in respect of holidays only.

59) Recognition for the purposes of collective bargaining by an employer for a particular group of workers may be evidenced in more than one way. The first is that there is a written agreement drawn up between the parties specifically identifying the scope of the agreement and the matters to be negotiated. The second is where the parties cannot produce a written agreement but the course of actions on the parties’ part, as evidenced by documents such as minutes, emails, memos, staff handbooks, contracts of employment, amount to conclusive proof that collective bargaining did take place. In this case there is neither a written agreement confirming that the LDRs were subject to the existing agreements nor is there any other documentary evidence that, in the absence of such an agreement, would persuade us that collective bargaining to any degree did take place. Although the Employer argued that the LDRs were covered by the agreements they seek to say that this is in respect of holidays only. The agreements do not suggest such limited recognition.

60) In the absence of any evidence to the contrary, the Panel is satisfied that there is no collective agreement in force under which a union is recognised as entitled to conduct collective bargaining on behalf of any workers falling within the proposed bargaining unit and so paragraph 35 is not engaged.

61) If, however, the Panel is wrong in that respect, it would still accept the Union’s application under paragraph 35(2) on the grounds that, if a collective agreement was in force, there was no persuasive evidence that the matters in respect of which the Union was entitled to conduct collective bargaining included all of the ‘core topics’ namely, pay, hours or holidays. Even on the Employer’s case, LDRs are recognised in respect of holidays only.

11. Paragraph 36(1)(a)

62) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Union constitute at least 10% of the workers in the Union’s proposed bargaining unit. In this case the check of membership undertaken by the Case Manager established that 55% of the workers in the proposed bargaining unit were members of the Union. In its initial comments on the results of the check the Employer argued that the LDRs only represented in the region of 6% of the total number of journalists employed across the whole of the business and that the LDRs did not constitute 10% of the workers for each of the Employer’s locations and each agreement. However, during the course of the informal meeting on 14 May 2020, the Employer stated that it did not contest the finding in the membership report that 10% of the workers in the proposed bargaining unit were members of the Union. It is therefore clear to the Panel that members of the Union constitute at least 10% of the workers in the bargaining unit and that this test is satisfied.

12. Paragraph 36(1)(b)

63) The test in paragraph 36(1)(b) is whether 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. In this case the Union relied upon its density of membership as evidence that this test was met. It argued that the fact that 55% of the workers in the bargaining unit were in membership was, in itself, evidence that the majority of the workers would favour recognition of the Union. It further asserted that its members within the proposed bargaining unit were aware that it was pursuing statutory recognition and that non-members had also been informed.

64) Whilst the Employer initially challenged the Union’s assertion that a majority of the workers in the proposed bargaining unit would favour recognition of the Union, it confirmed, during the course of the informal meeting, that it did not contest the Union’s claim that a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union.

65) Under this paragraph the question posed to the Panel is whether it is “likely” that a majority would support recognition and, in the absence of any evidence to the contrary and with the Employer not contesting the Union’s assertion, the Panel is of the view that the level of Union membership within the proposed bargaining unit provides a legitimate indicator as to the degree of likely support for recognition of the Union for collective bargaining. It is for this reason that, on balance, the Panel is satisfied that a majority of the workers in the bargaining unit would be likely to support recognition of the Union and the test set out in paragraph 36(1)(b) is therefore met.

13. Decision

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

Panel

Mr Rohan Pirani, Panel Chair

Mr Rob Lummis

Mr Paul Noon OBE

29 June 2020