Decision

Acceptance Decision

Updated 17 April 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1378(2023)

15 January 2024

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 (NUJ)

and

The Press Association Limited

1. Introduction

1)         National Union of Journalists (the Union) submitted an application to the CAC dated 28 November 2023 that it should be recognised for collective bargaining purposes by The Press Association Limited (the Employer) in respect of a bargaining unit comprising “editorial roles which ultimately report to the Editor in Chief, barring the senior management roles. For the avoidance of doubt the senior management roles that are excluded are as follows: Editor in Chief, Business Editor, Chief News Editor, Head of Analytics and Insight, Head of Entertainment and Features, Head of Page Production, Head of Pictures, Head of Production, Head of Puzzles, Head of Video, Ireland Editor, Scotland Editor, Social Media and Real Life Editor and Sports Editor.” The location of the bargaining unit was given as “The Point, 37 North Wharf Road, London, W2 1AF and at various satellite offices throughout the nations and regions of the UK, as well as those whose roles classify them as home workers or working from home and those working as UK contracted overseas staff.”  The application was received by the CAC on 28 November 2023 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 5 December 2023 which was copied to the Union.

2)         In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chairman established a Panel to deal with the case. The Panel consisted of Ms Laura Prince, K.C., Panel Chair, and, as Members, Mr Martin Kirke and Mr Nicholas Childs. The Case Manager appointed to support the Panel was Joanne Curtis.

3)         The CAC Panel has extended the acceptance period in this case. The initial period expired on 12 December 2023. The acceptance period was extended to 31 January 2024 in order to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the comments before arriving at a decision.

2. Issues

4)         The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 9; is made in accordance with paragraphs 11 or 12; is admissible within the terms of paragraphs 33 to 42; and therefore, should be accepted.

3. Summary of the Union’s application

5)         In its application to the CAC the Union stated that it had made a request for recognition to the Employer on 11 May 2023.  The Union said that a reply was received on 25 May 2023 rejecting the Union’s request and highlighting that the correct Employer should be the Press Association Ltd. The Union said that it re submitted a voluntary request with the correct Employer on 29 June 2023 along with a proposal to involve Acas. The Union said that this was rejected on 13 July 2023. A copy of the Union’s letters of 11 May 2023 and 29 June 2023 were attached to the application. Also attached were copies of the Employer’s letters dated 25 May 2023 and 13 July 2023.

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

7)         The Union stated that the total number of workers employed by the Employer was 1000. The Union stated that there were 311 workers in the proposed bargaining unit and that the number of Union members in the proposed bargaining unit exceeded 10%. The Union said that it would be happy to provide evidence of this to the CAC on a confidential basis. The Union said the Employer did not agree with the number of workers in the proposed bargaining unit. The Union went on to say, it “holds evidence that the majority of workers in the proposed bargaining unit are likely to support recognition in the form of union membership levels and a petition.” The Union confirmed that it would be happy for the CAC to check this on an independent and confidential basis through an agreed process.

8)         The Union stated that the reason for selecting its proposed bargaining unit was that “the content division includes all employees who report directly or indirectly to the Editor in Chief. It is managed as a unit by PA Media and is therefore compatible with effective management.” The Union said that there were no existing bargaining arrangements, and the proposed bargaining unit avoided the creation of small, fragmented bargaining units. The Union said that the workers in the proposed bargaining unit carried out editorial work and reported to “the editorial leadership.” In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “NO”. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit.

9)         The Union confirmed that it held a current certificate of independence. The Union did not state when it had copied its application and supporting documents 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 formal written request for recognition on 29 June 2023 and had responded by way of a letter dated 13 July 2023. The Employer attached a copy of the letter dated 13 July 2023 to its response. The Employer stated that it had received a copy of the Union’s application form from the Union on 28 November 2023. The Employer said that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union. In answer to the question on whether the Employer agreed the proposed bargaining unit the Employer said “No”. The Employer went on to say that the proposed bargaining unit was not compatible with effective management as it would leave small, fragmented units within “the undertaking, both the respondent employer and the corporate structure in which it sits (which is the PA Media Group).” The Employer went on to say that workers in the proposed bargaining unit were employed in different locations and different rates of pay applied across these locations. The Employer said that terms could also differ between different roles in the proposed bargaining unit.

11)       The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist the parties. The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application. The Employer explained that HR records showed that 287 workers were employed by The Press Association Ltd in the proposed bargaining unit. The Employer said that it was possible that the Union had included some individuals employed by other group companies. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

12)       In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated, “we do not consider that the Union has given a proper estimate of membership in the proposed bargaining unit, only that they say it exceeds 10%. We have no specific knowledge of the number of Union members in the bargaining unit and have seen no evidence that it exceeds 10%.” When invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition the Employer said that it had no reason to believe that a majority of workers in the bargaining unit would be likely to support recognition. The Employer said that it considered it had a good industrial relationship with its “editorial employees” and had seen no evidence to suggest that a majority of these workers would favour Union recognition particularly in circumstances where the Employer considered that it was unlikely that the majority were Union members.

13)       The employer replied “Not applicable” when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit and when asked if it had received any other applications in respect of workers in the proposed bargaining unit. The Employer also stated that it consented to its contact details being provided to Acas.

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

14)       In a letter dated 12 December 2023 the Union said the Employer appeared to take no issue with the identification of the proposed bargaining unit, only its compatibility with effective management. The Union said that the bargaining unit had been selected on the basis of the company structure, whereby the editorial content division was one of four organisational business divisions with the wider company. The Union went on to say “having adopted the employer’s own management structure we are unsure why it says that it is not compatible with effective management, nor why it is not ‘workable’ within the meaning of the Schedule. We also make the observation that the proposed bargaining unit need not be ‘ideal’, need only be ‘appropriate’. Variable rates of pay across different roles and geographical location are not barriers which would prevent the proposed unit from being compatible with effective management as all staff within the proposed bargaining unit ultimately report to the Editor in Chief who currently reports directly to the CEO. All other divisions within the wide company have separate reporting lines.” The Union said that the fact that wage levels are responsive to local conditions did not necessarily lead to the conclusion that local bargaining would be appropriate.  The Union said “the fact that within a proposed bargaining unit there are workers on different sets of terms and conditions, for example because some are junior managers or because workers have been inherited under TUPE from different sources, does not necessarily mean that the unit is incompatible with effective management. Further, the fact that there is an employee forum is not an adequate objection to an application.”

15)       The Union said it noted the Employer’s comments that there were 287 workers in the proposed bargaining unit which was lower than that indicated by the Union’s records. The Union said that any inaccuracy could be dealt with as part of a membership and support check. The Union went on to say “It appears that the employer is suggesting that because the employees work in various geographical locations this means that the proposed bargaining unit is fragmented. Fragmentation refers to multiple small bargaining units, not large bargaining units spread out geographically. We note the employer’s emphasis on what it describes as ‘open communication’, ‘monthly content meetings’, ‘annual editorial drop-in surgeries’ etc. This not a relevant factor. Consultative bodies commonly coexist with collective bargaining.” In conclusion the Union said that it maintained that the proposed bargaining unit was appropriate, and that the Union had in excess of 10% support for recognition, which it was able to demonstrate by providing information for a membership and support check.

6. The membership and support check

16)       To assist the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the proposed bargaining unit are members of the union (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed an independent check of the level of union membership within the proposed bargaining unit. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, dates of birth and job titles of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of its paid-up members within that unit including their full names, dates of birth and job roles (where available). The Union also agreed to supply a copy of its petition. 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 13 December 2023 from the Case Manager to both parties.

17)       The information requested by the CAC was received from the Employer on 19 December 2023 and from the Union on 20 December 2023. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

18)       The list supplied by the Employer indicated that there were 287 workers in the Union’s proposed bargaining unit.

19)       The list of members supplied by the Union contained 134 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 111, a membership level of 38.68%.

20)       The petition supplied by the Union contained 166 names, of which 132 were in the proposed bargaining unit, a figure that represented 45.99% of the proposed bargaining unit. Of those 132 names, 100 were members of the Union (34.84% of the proposed bargaining unit) and 32 were non-members (11.15% of the proposed bargaining unit). The petition was submitted as an e-petition in the form of a spreadsheet which consisted of 7 columns headed, “ID”, “Start Time”, “Completion Time”, “I support the recognition application by the National Union of Journalists (NUJ) and I would like the NUJ, which is an independent trade union, to collectively bargain (negotiate) with my employer…”, “Are you currently an NUJ member?” “If you are a member, please enter your membership number if you know it” and “Please take a moment to tell us why you’ve signed and why you back fairer pay at PA.”

21)       The Union did not explain how the e-petition was carried out however the start time column contained both the date and time upon which individuals had added their name.

22)       A report of the result of the membership and support check was circulated to the Panel and the parties on 21 December 2023 and the parties were invited to comment on the results of that check by noon on 9 January 2024.

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

23)       In an e mail dated 9 January 2024 the Employer said “Having regard to your specific request for comment, PA will reserve any arguments as to whether the proposed bargaining unit is compatible with effective management and will focus on levels of support for the bargaining unit proposed by the NUJ. This should not of course be taken as any indication of agreement by PA as to that bargaining unit. PA has no specific comments on the issue of members of the NUJ constituting at least 10 per cent of the workers in the proposed bargaining unit. PA has seen no independent evidence, and has had no prior visibility, of membership levels within the proposed bargaining unit.”

24)       The Employer continued by saying “PA’s comments are focussed on the question of whether a majority of the employees constituting the relevant bargaining unit would be likely to favour recognition of the NUJ to conduct collective bargaining on behalf of the bargaining unit. PA’s primary comment is that the application for recognition by the NUJ should be considered inadmissible. The report confirms that there is no evidence that a majority of the employees constituting the relevant bargaining unit would be likely to favour recognition.

We note in particular that:

• A majority of the employees in the proposed bargaining unit are not union members.

• The proportion of employees in the proposed bargaining unit who have signed the NUJ’s petition is 45.99%.

• It would appear that not all union members support union recognition (100 union members have signed the petition but there are said to be 111 union members in the bargaining unit according to PA’s list (and 134 union members on the NUJ’s list)); and

• The proportion of workers in the proposed bargaining unit who have signed the petition and are non-members of the NUJ is only 11.15%.

Therefore, no majority support is evident, not all union members support recognition and outside of union membership there is scant support.”

25)       The Employer said that the Union had not explained how the e-petition was carried out that the Employer had not seen over what period individuals had added their name to the petition. The Employer said that it had also seen no indication of any means by which workers were able to withdraw their names from the petition if they subsequently had a change of mind about their support for it. The Employer continued by saying that the first correspondence between the parties in respect of the Union’s request for recognition took place in May 2023 but the Union’s application to the CAC was not made until 28 November 2023, some six months later.  The Employer said that it was reasonable to assume that in this six-month period the Union had taken all reasonable steps to obtain majority support for recognition amongst “employees of The Press Association Ltd within the proposed bargaining unit and have failed to achieve such levels of support.” The Employer concluded by saying that there was no reason to believe that any greater support than 46% would be forthcoming.”

8. Summary of the Union’s comments following the membership and support check

26)       In an e letter dated 3 January 2024 the Union said “The Committee will note that the figures indicate that the union enjoys in excess of the 10% support for NUJ recognition and therefore meets and exceeds this test. In addition, the figure of 45.99%, combined with the bandwagon effect, means that it is also clear that if the question were put to a secret ballot, a majority of the workers in the bargaining unity would likely to favour recognition of the NUJ as their bargaining agent.”

9. Considerations

27)       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. 

28)       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 paragraphs 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraphs 36(1)(a) and paragraph 36(1)(b) are met

Paragraph 36(1)(a)

29)       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. 

30)       The membership check conducted by the Case Manager (described in paragraphs 16 to 22 above) showed that 38.68% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 17 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

31)       For the reasons set out in paragraph 30 above the Panel has decided that members of the union constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

Paragraph 36(1)(b)

32)       Under paragraph 36(1) 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)       For the reasons given in paragraph 30 above, the Panel has concluded that the level of union membership within the bargaining unit stands at 38.68%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union.

34)       132 of the workers who signed the petition fell within the proposed bargaining unit (45.99% of those in the proposed bargaining unit). Of those signing 100 were Union members and 32 were non-Union members. This indicates that 11 Union members did not sign the petition. It is reasonable to assume that even though those members did not sign the petition as Union members they would be supportive of the Union’s application for recognition. The Panel also have no evidence that any of the workers who completed the e petition have subsequently sought to withdraw their support. The Panel is of the view that the level of membership within the proposed bargaining unit can be taken as a legitimate indicator of the strength of support for the Union and it is in the Panel’s experience of industrial relations that leads it to conclude that support is likely to increase as the application progresses. 

35)    On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, 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.

10. Decision

36)      For the reasons given in paragraphs 27-35 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Ms Laura Prince, K.C., Panel Chair.

Mr Martin Kirke.

Mr Nicholas Childs.

15 January 2024