Decision

Acceptance Decision

Updated 14 July 2020

Case Number: TUR1/1161(2020)

23 March 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:

PCS

and

St James Facilities Services Ltd

1. Introduction

1) PCS (the Union) submitted an application to the CAC on 26 February 2020 that it should be recognised for collective bargaining by St James Facilities Services Ltd (the Employer) for a bargaining unit comprising “St James Facilities employees working on the BEIS CORE Contract (eg. Locations: 151 Buckingham Palace Road, London, SW1W 9SZ).” The CAC gave both parties notice of receipt of the application on 26 February 2020. The Employer submitted a response to the CAC dated 9 March 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 James Tayler, Panel Chair, and, as Members, Mrs Susan Jordan and Mr Gerry Veart. 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 5 February 2002 to which it received no reply. A copy of the Union’s letter was enclosed with the application.

5) The Union stated that it did not know the total number of workers employed by the Employer but confirmed that there were two workers in its proposed bargaining unit. The Union stated that this figure was confirmed by the Employer although when asked whether the Employer agreed on the number of workers in the proposed bargaining unit the Union answered “Unknown”. 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 both of the workers in its propose bargaining were full members of the Union and supported recognition. These workers recently transferred to the Employer from ISS and they wanted the Union to represent them in the TUPE transfer.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that it was seeking recognition for the bargaining unit agreed by ISS, the previous employer, in the recent collective agreement on pay and conditions signed 24 September 2019 between the Department for Business, Energy and Industrial Strategy (BEIS), the Union and ISS. A copy of this agreement was enclosed with the application. The Union stated that it was BEIS that controlled, through the contract it held with the Employer, the pay and terms and conditions of members in the bargaining unit. When asked if the bargaining unit had been agreed with the Employer the Union stated “Partial - BEIS agree”.

7) The Union confirmed that it was in possession of a certificate of independence and it also confirmed that it serve the Employer a copy of the application form and supporting documents on 26 February 2020. When asked whether, following receipt of the request for recognition, the Employer proposed that Acas be requested to assist, the Union stated “No”.

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 5 February 2002 and, when asked what its response was, the Employer stated “we did not respond”.

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 26 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. The Employer went on to add that it did not have any employees working on the BEIS core contract. It had two employees working at 151 Buckingham Palace Road providing reception services for the landlord, Fountain and Colonnade Management Limited under a contract with Metrus dated 31 January 2020.

11) The Employer did not give the figure for the total number of workers it employed but it did confirm that it employed two receptionists at 151 Buckingham Place Road. The Employer did not answer the questions “If you disagree with the Union’s estimate of membership in the proposed bargaining unit, please indicate your reasons for disagreeing, with any available evidence” and “.If you do not consider that a majority of the workers in the bargaining unit are likely to support recognition, please indicate your reasons for taking this view, with any available evidence”.

12) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the agreed bargaining unit. 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, the Employer did not answer 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.

5. Further questions

14) The Panel Chair, having had sight of the Employer’s response, directed that the Case Manager write to the Employer seeking confirmation as to the total number of workers it employed and whether the absence of answers to questions 10 and 11 of the response form was because the Employer did not dispute the Union’s estimate of membership in the proposed bargaining unit and the Union’s contention that a majority of the workers in the bargaining unit were likely to support recognition.

15) In an email dated 16 March 2020 the Employer stated that it employed a total of 85 workers as of the February 2020 payroll and that only two of this number worked at 151 Buckingham Palace Road. As to the answer to question 10 of the response form which called for the Employer to give reasons if it disagreed with the Union’s estimate of membership, the Employer stated that it could confirm that two of its workers were receptionists at 151 Buckingham Palace Road, and that it did not have an alternative bargaining unit to propose.

16) In regards to question 11 of the response form which called upon the Employer to give reasons if it considered that a majority of the workers in the proposed bargaining unit would not be likely to support recognition of the Union the Employer stated that it took no view on whether workers were likely to support recognition and did not have evidence to put in response to this question.

6. Considerations

17) 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.

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

7. Paragraph 36(1)(a)

19) 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 Union, in its application, claimed that both of the workers in its proposed bargaining unit were in membership. The Employer, given the opportunity of challenging this assertion, did not do so. The Panel is satisfied that members of the Union therefore constitute at least 10% of the workers in the proposed bargaining unit.

8. Paragraph 36(1)(b)

20) The test in paragraph 36(1)(b) is whether 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. In its application the Union stated that both of the workers in its proposed bargaining unit were in membership and supported recognition of the Union. The Employer, again given the opportunity of challenging the Union’s assertion that a majority of the workers in the proposed bargaining unit would favour recognition of the Union, elected not to do so. As noted above, the Employer did not dispute the number of union members and in this case, given that there are only two workers in the proposed bargaining unit and both are in membership, then union members constitute 100% of the workers in the proposed bargaining unit.

21) In view of the above and in the absence of any evidence to the contrary, 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.

22) For the reasons given, the Panel is satisfied that, on balance, 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.

9. Decision

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

Panel

Mr James Tayler, Panel Chair

Mrs Susan Jordan

Mr Gerry Veart

23 March 2020