Decision

Acceptance Decision

Updated 19 January 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1291/2022

9 December 2022

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:

PCS

and

Old Royal Naval College

1. Introduction

1) PCS (the Union) submitted an application to the CAC dated 10 November 2022 ^{[footnote 1]} that it should be recognised for collective bargaining purposes by Old Royal Naval College (the Employer) for a bargaining unit comprising “Front of House Team, with further clarity provided to the Employer on request of those members with front of house, visitor/customer facing role (Emails on clarity included)”. The location of the bargaining unit was given as Old Royal Naval College, King William Walk, London. The application was received by the CAC on 10 November 2022 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 18 November 2022 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 of Ms Laura Prince, Panel Chair, and, as Members, Mr Rob Lummis and Mr Steve Gillan. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 24 November 2022. The acceptance period was extended to 8 December 2022 to allow the parties to comment on the results of a membership check and for the Panel to consider these comments before arriving at a decision.

2. Issues

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

3. Summary of the Union’s application

5) In its application to the CAC the Union stated that it had sent a request for recognition to the Employer on 25 July 2022. It stated that the Employer responded on 28 July 2022 with a point for clarification which the Union responded to that same day. This was followed by a formal response from the Employer on 5 August 2022 rejecting the initial request but expressing a willingness to negotiate. This was answered by the Union on 8 August 2022. The Employer requested to see a draft copy of the recognition agreement on 11 August 2022 which the Union responded to on 18 August 2022. The Employer responded on 5 September 2022 with a request to amend the draft recognition agreement, which was followed by a response from the Union on 8 September 2022. Further e mails from the Union seeking a response to the e mail dated 8 September 2022 were sent on 3 October 2022 and 13 October 2022, however no response was received. The Union therefore considered that the voluntary negotiations had failed.

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 82. The Union stated that there were 40 workers in the proposed bargaining unit, of whom 24 were members of the Union. The Union stated that proof of membership could be provided to the CAC on a confidential basis upon request. When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated “a majority of members within the proposed bargaining unit are members of the Union, therefore we believe that it is clear that a majority of workers are in support of recognition and collective bargaining. Members have all been approached by an informal members survey, all confirmed they would like Union recognition, as well as 5 non-members who also confirmed they supported the Union’s objectives. Therefore, we are confident significantly in excess of 50% of staff in the bargaining unit are supportive of recognition”.

8) The Union stated that the reason for selecting the proposed bargaining unit was that the issues faced by those in the proposed bargaining unit were not faced by others in the museum. The Union went on to say “the nature of the role includes its own Health and Safety issues; Rostering concerns and staff are hourly paid unlike their colleagues. PCS has significant experience in Front of House roles across museums and galleries.” The Union said that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the proposed bargaining unit the Union answered “No”.

9) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application and supporting documents to the Employer on 24 October 2022. ^{[footnote 2]}

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 written request for recognition on 25 July 2022. When asked what its response was, the Employer said that on 5 August 2022, it had asked for clarification on whether the bargaining unit was solely for front of house team and if so, how many (numbers, not names) were members of the Union. It also requested clarification on how it would add value to the organisation. The Employer then set out the terms on which it would consider a voluntary agreement, which covered negotiations on pay, holidays and hours for the bargaining unit, but that this was rejected by the Union. The Employer stated that the terms were reiterated on 24 October 2022.

11) The Employer said that it had received a copy of the application form from the Union on 24 October 2022. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union but that it did agree the bargaining unit as set out by the Union. The Employer stated that it did agree the number of workers within the proposed bargaining unit.

12) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas be requested to assist. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) When asked If it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated that the Union had not given any indication on numbers of members at “The Foundation” therefore it could not agree or disagree.

14) When asked if it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer said that it had not been given any indication on numbers of members and therefore could not agree or disagree.

15) 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 said that it was not aware of any previous application under Schedule A1. When asked if it had received any other applications in respect of workers in the proposed bargaining unit the Employer stated “No”.

5. 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 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 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 the workers in the bargaining unit which had been proposed by the Union in its application form, 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 titles (where available). It was explicitly agreed with both 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 22 November 2022 from the Case Manager to both parties.

17) The information requested was received by the CAC from the Employer on 24 November 2022 and from the Union on 28 November 2022. The Panel is satisfied that this check was 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 40 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 27 names. According to the Case Manager’s report the number of members of the Union in the proposed bargaining unit was 25, a membership level of 62.50%.

19) A report of the result of the membership and support check was circulated to the Panel and the parties on 28 November 2022 and the parties were invited to comment on the results by noon on 2 December 2022.

6. Summary of the parties’ comments following the membership check

20) In an e mail to the Case Manager dated 29 November 2022 the Employer stated it was happy with the way the check was conducted. The report identified that over 10% of the members within the bargaining unit were members of the PCS Union, which the Employer accepted. The Employer added it had not taken steps to find out about Union membership amongst the bargaining unit, it trusted that the results based on the information the parties had submitted was accurate The Employer stated that it accepted that due to the percentage of members, a majority would be likely to favour recognition of the Union.

21) In an email to the Case Manager dated 2 December 2022 the Union stated it had no further comments to add except that the Union had significantly in excess of 50% membership in the bargaining unit, which represented a clear majority in favour of Trade Union Recognition.

7. Considerations

22) 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.

23) 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. The Panel is also satisfied, on the balance of probabilities, that the application was made in accordance with paragraph 11(2) of the Schedule. Paragraph 11(2) applies if

(a) before the end of the first period the employer fails to respond to the request, or

(b) before the end of the first period the employer informs the union … that the employer does not accept the request (without indicating a willingness to negotiate).

The first period is defined in paragraph 10(6) as “the period of 10 working days starting with the day after that on which the employer receives the request for recognition”. The Panel does not consider that the Employer’s response to the Union’s request, in its letter dated 5 August 2022, indicated a willingness to negotiate on the part of the Employer. The Panel therefore considers that paragraph 11 applies.

24) The Panel is also 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.

25) The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

Paragraph 36(1)(a)

26) 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. The membership check conducted by the Case Manager (described in paragraphs 16 - 19 above) showed that 62.50% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 16 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. The Panel has therefore 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)

27) Under paragraph 36(1)(b) of the Schedule, an application is not admissible unless the Panel decides that a majority of the workers constituting the proposed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit. For the reasons given in paragraph 18 above the Panel has concluded that the level of union membership within the bargaining unit stands at 62.50%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union. The Employer has not submitted any contrary evidence nor has the Panel received any contrary evidence from any other source.

28) 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.

8. Decision

29) For the reasons given in paragraphs 23-28 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Ms Laura Prince, Panel Chair

Mr Rob Lummis

Mr Steve Gillan

9 December 2022

---

1. The CAC received the application from the Union on 10 November 2022. The CAC did not receive the Union’s earlier email dated 24 October 2022 in which the Union stated it had attached a copy of the application. The e mail dated 10 November explained that the Union had already provided a copy of the application to the Employer. ↩

2. See f/n 1. ↩