Decision

Validity Decision

Updated 8 October 2018

Case Number: TUR1/1047(2018)

24 July 2018

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992 SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING AGREEMENT ON THE BARGAINING UNIT

The Parties:

The Public and Commercial Services Union (PCS)

and

BPDTS

1. Introduction

1) PCS (the Union) submitted an application to the CAC on 25 April 2018 that it should be recognised for collective bargaining by BPDTS (the Employer) for a bargaining unit comprising “All staff directly employed by BPDTS”. The locations of the bargaining unit were given as Benton Park View, Newcastle, Peel Park, Fylde, Great Wilson Street, Leeds, St Peter’s Square, Manchester, Hanover Way, Sheffield and Tothill Street, London. The CAC gave both parties notice of receipt of the application on 26 April 2018. The Employer submitted a response to the CAC dated 2 May 2018 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, Chairman of the Panel, and, as Members, Mr Robert Lummis and Ms Virginia Branney. The Case Manager appointed to support the Panel was Nigel Cookson.

3) By a decision dated 4 June 2018 the Panel accepted the Union’s application. The parties then entered a period of negotiation, which was extended at the request of the Employer, in an attempt to reach agreement on the appropriate bargaining unit.

4) The Union, in an email to the CAC dated 11 July 2018, stated that the parties met with Acas on 6 July 2018 and reached an agreement as to the appropriate bargaining unit. The agreed bargaining unit, which differed very slightly from that originally proposed by the Union, was “all staff directly employed by BPDTS below the level of Digital Service Practice Leads (DSPLs)”. The parties had issued a joint statement to this effect and a copy of the statement was attached to the Union’s email. The agreed bargaining unit differed from that as originally proposed by the Union by the exclusion of the role of Head of Digital Ops. The agreed bargaining unit also excluded the role of Digital Service Practice Leads but this was a role created since the Union originally defined its proposed bargaining unit.

2. Issues

5) Since the agreed bargaining unit differed from that proposed by the Union in its application, the Panel is required by paragraph 20 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application is valid or invalid within the terms of paragraphs 43 to 50 of the Schedule. The tests that the Panel must consider under these paragraphs are:-

• is there an existing recognition agreement covering any of the workers within the new bargaining unit? (paragraph 44)

• is there 10% union membership within the new bargaining unit? (paragraph 45(a))

• are the majority of the workers in the new bargaining unit likely to favour recognition? (paragraph 45(b))

• is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? (paragraph 46)

• has there been a previous application in respect of the new bargaining unit? (paragraphs 47 to 49)

In a letter dated 13 July 2018 the Case Manager invited the parties to make submissions on these points for consideration by the Panel.

3. Views of the Union

6) In an email dated 13 July 2018 the Union commented on the tests as follows:

1) Is there an existing recognition agreement covering any of the workers within the new bargaining unit?

No

2) Is there 10% union membership within the new bargaining unit?

Yes PCS has 125 members

3) Are the majority of the workers in the new bargaining unit likely to favour recognition?

Yes your previous check concluded that PCS has collected 236 signatures on a petition from workers in the bargaining unit which is more than 50% of the workforce. It is worth noting that the new agreed bargaining unit is all staff directly employed by BPDTS below the level of Digital Service Practice Leads (DSPLs). The DSPL roles were not included in the list of posts/roles sent to you by BPDTS as they didn’t have any in place at the time. However, an internal candidate was successful in applying for the first DSPL role filled, so whilst the role isn’t reflected in this spreadsheet, the individual will be included in the original headcount of 451. There was also the Head of Ops role included in the spreadsheet of posts/roles sent to you. I think the 451 should therefore be reduced to 449 but you should probably check with BPDTS for a final figure.

4) Is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit?

No

5) Has there been a previous application in respect of the new bargaining unit?

No

4. Views of the Employer

7) In a letter received 17 July 2018 the Employer confirmed that at the meeting with the Union on 6 July 2018, the parties mutually agreed a bargaining unit of ‘everyone directly employed by BPDTS, save those members of the Executive Team and Digital Service Practice Leads’. In doing so the Employer explained to the Union that its desire throughout this process had been to listen to its people and give as many of them as possible, a voice as to whether they would like recognition within the company.

8) In reaching agreement on the bargaining unit, the Employer agreed to exclude only ET members and DSPLs. In doing so, the Employer aimed to ensure that it still had a core group responsible for the highest level of decision making outside of the unit and it took into account that some of its other managers were members of the Union, and as such may wish to cast a vote in any ballot.

9) In responding to the questions raised, the bargaining unit being proposed would see the reduction of the numbers in the bargaining unit from 451 to 449. The Employer believed that this would make little impact and stated that;

• The Employer was not aware of any existing recognition agreement covering any of the workers within the new bargaining unit.

• The Employer agreed that there would still be 10% union membership within the new bargaining unit.

• The Employer believed that the amendments to the unit would not amend significantly the petition provided by the Union by way of supporting evidence.

• The Employer was unaware of any competing applications from any other unions.

• The Employer was unaware of a previous application in respect of the new bargaining unit?

5. Considerations

10) The Panel is required to determine whether the Union’s application is valid or invalid within the terms of paragraphs 43 to 50 of the Schedule. In arriving at its decision the Panel has taken into account the submissions and evidence before it. The Panel is satisfied that there is no existing recognition agreement covering any of the workers in the agreed bargaining unit; that there is no competing application from another union; and that there has been no previous application in respect of the agreed bargaining unit. The remaining issues for the Panel to decide are whether the validity criteria set out in paragraph 45(a) and paragraph 45(b) are met.

6. Paragraph 45(a)

11) Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the union constitute at least 10% of the workers in the agreed bargaining unit.

12) The membership check conducted by the Case Manager described in paragraphs 22 to 25 of our decision to accept the application which was promulgated on 4 June 2018 established that the total number of workers in the bargaining unit was 451 and the number of Union members in the bargaining unit was 116, giving a membership level of 25.72%. The agreed bargaining unit excludes one role held by a worker at the time of the membership check, Head of Digital Ops. We are told that there has been a further reduction in numbers as one individual in the proposed bargaining unit has been advanced to the new role of DSPL, a role that is outwith the agreed bargaining unit. That leaves an agreed bargaining unit currently comprising 449 workers. Asked to comment on this test the Employer made the point that the change in bargaining unit would have little impact on the facts established by the Case Manager through the membership check and it accepted that there would be 10% union membership within the new bargaining unit. We are satisfied that this would be the case even if both of the individuals that are no longer in the bargaining unit are members of the Union; giving Union membership of 25.40%.

13) The Panel has therefore decided that members of the Union constitute at least 10% of the workers in the agreed bargaining unit as required by paragraph 45(a) of the Schedule.

7. Paragraph 45(b)

14) Under paragraph 45(b) of the Schedule, an application is invalid unless the Panel decides that a majority of the workers constituting the agreed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

15) The membership check established that 236 out of 451 workers in the bargaining unit signed the Union’s petition, that represented 52.33% of the bargaining unit. Of the 236 signatories the Case Manager identified 104 of the signatories as being members of the Union (23.06% of the bargaining unit) and 132 as being non-members (29.27% of the bargaining unit). The Employer, in its letter of 17 July 2018 commenting on this test, stated that it believed that the changes in the bargaining unit would not affect in any significant way the petition which had been provided by the Union by way of supporting evidence. If, for the purposes of argument, it is assumed that the two individuals now excluded from the bargaining signed the Union’s petition in support of recognition, this would reduce the number of signatories to 234. On that assumption the petition would have been signed by 52.12% of the workers in the agreed bargaining unit, a slim but clear majority. Alternatively, if one assumes that Union members are likely to favour recognition and add them to the non-members who have signed the Union’s petition (the exact percentages varying slightly on whether the two excluded workers are both Union members, both not members or one of each) this would give a rather higher total (e.g. 54.67% if both were members).

16) In our Acceptance Decision we said that the proposition on the petition was clear and unambiguous and that, in our view, would have left the workers in no doubt as to what they were being asked to support. We stated that the petition was a legitimate indictor of the views of the workers and this remains the case.

17) The Panel has decided that, on balance, a majority of the workers in the agreed 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 45(b) of the Schedule.

8. Decision

18) The decision of the Panel is that the application is valid for the purposes of paragraph 20 of the Schedule and the CAC must proceed with the application.

Panel

Mr James Tayler, Chairman of the Panel

Mr Robert Lummis

Ms Virginia Branney

24 July 2018