Decision

Acceptance Decision

Updated 19 September 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1356(2023)

18 September 2023

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:

Prospect

and

dock10 Ltd

1. Introduction

1) Prospect (the Union) submitted an application to the CAC dated 14 August 2023 that it should be recognised for collective bargaining purposes by dock10 Ltd (the Employer) in respect of a bargaining unit comprising “permanent staff based in Media City up to, but excluding, Senior Management.” The location of the bargaining unit was given as “dock10 Ltd White Tower Media City Salford M50 2NT.” The application was received by the CAC on 14 August 2023 and the CAC gave both parties notice of receipt of the application by a letter dated 15 August 2023. The Employer submitted a response to the CAC dated 21 August 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 Chair established a Panel to deal with the case. The Panel consisted of Ms Naeema Choudry, Panel Chair, and, as Members, Mr Alastair Kelly and Mr Ian Hanson. 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 29 August 2023. The acceptance period was extended to 12 September 2023 in order to allow time for a membership check to take place and for the parties to comment on the subsequent report, and then further extended to 18 September 2023 to allow time for the Panel to finalise its 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 6 July 2023 which the Employer responded to on 20 July 2023. A copy of the Union’s request and the Employer’s response was attached to the application.

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 it believed that the total number of workers employed by the Employer was 193. The Union stated that there were 178 workers in the proposed bargaining unit, of whom 93 were members of the Union. The Union said that it would be happy to provide the CAC with evidence of this on a confidential basis. 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 said that it had held a “town hall” meeting with its members offsite in March 2023. The Union went on to say “93 members were invited with 70 who were able to make the meeting, our members work in the following areas of the company (Studio, Technology & Post) except in a managerial capacity. There are traditional admin areas of the company that we don’t have members in, and we don’t currently have access to speak to these staff. All 70 members supported the motion of making a voluntary recognition request to the company in April 2023. The Company refused our voluntary request.”

8) The Union stated that the reason for selecting its proposed bargaining unit was that it had members in three main areas of the Company, with clear management structures, along with support services for the three areas “such as admin, finance etc.” 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 provide a date upon which it had copied its application and supporting documents to the Employer. The Union said that it was happy for its details to be forwarded to Acas.

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 initial request for recognition from BECTU (a sector of Prospect) on 11 April 2023 seeking recognition in respect of pay, hours, holidays and redundancies. The Employer stated that it responded by letter on 20 April 2023, stating that it could not agree to the request for voluntary recognition on the basis that 1) effective procedures were in place for the purposes of communication and agreement with employees, and 2) the union did not appear to have the necessary support within the proposed bargaining unit which was all permanent staff excluding senior management to warrant recognition. The Employer said that BECTU wrote again on 23 May 2023, stating that it had enough support to proceed with an application to the CAC and that it was going to do so. The Employer added that it responded by letter on 30 May 2023 to reiterate its belief that BECTU did not have the required support but asking them to reply with 1) their definition of the bargaining unit and 2) evidence of the level of membership. The Employer went on to say that by letter dated 6 July 2023, Prospect requested voluntary recognition in respect of pay, hours, holidays and redundancies, asserting that it had 93 members in (1) Studios, (2) Technology and (3) Post, and stating that its proposed bargaining unit comprised all staff in those areas with the exception of senior management. The Employer said it responded by letter on 20 July 2023, stating “it did not agree with the proposed bargaining unit, and to set out that the union did not have the required support within what would be the appropriate bargaining unit (ABU), to achieve recognition.” By letter dated 2 August 2023, the Employer said that the Union notified them that the Union would be applying to the CAC. The Employer attached copies of all the letters to its response.

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 14 August 2023. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union and that it did not agree the proposed bargaining unit. The Employer said that the proposed bargaining unit had been inappropriately limited to staff in Studios, Technology and Post departments. Further, the Employer said that despite requests for clarification on 30 May 2023, the Union had failed to define what was meant by ‘Senior Management’ and ‘permanent staff’. The Employer referred to its letter of 20 July 2023 which it said provided further details.

12) 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 said “the union are proposing that the bargaining unit comprises 93 staff within the Studios, Technology and Post teams, with the exception of ‘Senior Management’. We maintain that the ABU should not be limited in this way and should instead comprise staff from all areas of the business (Studio, Technology, Post, Commercial, Finance, Central Services, Operations and Risk Management and Human Resources). Excluding the only two members of staff who are considered to be Senior Management (our CEO and COO), this would leave a total number of 238 employees in the ABU.” The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated that the Union had advised the Employer that the Union had 93 members in the proposed bargaining unit but had provided no evidence of this. The Employer went on to say “we are not satisfied that the level of union membership is as suggested by the union. We are aware that in order to recruit members, the union has sent out a series of flyers containing incorrect information to employees. Employees have also made us aware of their disappointment about the way they have been subjected to undue pressure to join the union.”

14) 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 “the union claim to have 93 members (just over 38% within the ABU we contend for). Accordingly, even on the basis of the number of members claimed by the union, we do not believe that the union would achieve a simple majority in any ballot of workers in the ABU (or meet the threshold of 40% of the ABU required for statutory recognition).”

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 “The initial request for voluntary recognition was made by Bectu (which we understand is a sector of Prospect), whereas the latter request was made by Prospect. “When asked if it had received any other applications in respect of workers in the proposed bargaining unit. The Employer said “N/A.” The Employer stated that it was happy for its contact details to be forwarded to Acas.

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

16) The Union in a letter dated 22 August 2023 stated it had not shared evidence of membership with the Employer. The Union said that given the Employer’s response to the Union’s request it did not feel it was appropriate to share the details of who had joined the Union with the Employer. The Union said that it would be happy to share this with the CAC in a way that preserved confidentiality. The Union said that it would be happy to have an informed discussion on the appropriate bargaining unit but in the absence of a demonstrable will to engage on the part of dock10, the Union felt that this was a “moot point.” The Union said that it did not agree that dock10 had 240 staff. The Union clarified that it did not propose that the bargaining unit be comprised of “93 staff within the Studios, Technology and Post teams, with the exception of Senior Management.” The Union said that 93 was the number of members it had according to its membership record system, and that the proposed bargaining unit was as set out in the application. In a further e mail on 22 August 2023 the Union clarified that the proposed bargaining unit was “all permanent staff at media city up to but excluding senior management.” The Union said that it defined senior management as the 14 roles described as the management team on the company website. The Union said that it also wished to alert the CAC to the fact that after the Union had submitted its comments on the Employer’s response document the Employer announced a proposal to make up to, but less than 20 posts redundant. The Union added “we only make this point to flag that this may have the potential to impact on the numbers under discussion.”

6. The membership and support check

17) 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). 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 23 August 2023 from the Case Manager to both parties.

18) The information requested from the Employer was received by the CAC on 24 August 2023 and from the Union on 23 August 2023. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

19) The list supplied by the Employer indicated that there were 237 workers in the Union’s proposed bargaining unit.

20) The list of members supplied by the Union contained 90 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 89, a membership level of 37.55%.

21) A report of the result of the membership and support check was circulated to the Panel and the parties on 29 August 2023 and the parties were invited to comment on the results of that check by close of business on 4 September 2023.

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

22) In an e-mail to the CAC, dated 31 August 2023, the Employer stated, “further to your email and letter of 29 August 2023, we confirm we have no further comments on the membership check report. We do however reiterate comments previously made in section 10 &11 of the Employer Response Form in relation to the test set out in paragraph 36(1) Schedule 1A TULR(C)A 1992.”

23) In a letter to the CAC dated 4 September 2023 the Union said that the Union and Employer both accepted that the correct bargaining should cover all workers except for the senior managers. The Union said that it had proposed that roles defined as falling within the dock10 Management Team should be excluded from the bargaining unit. The Union said that it believed that the number of managers to be excluded would be around 14 and that this figure had been taken from the data published on the Employer’s website. The Union suggested that the following roles should be excluded: Broadcast Technology Operations Manager, Chief Technology Officer, Head of Commercial Management, Head of Marketing, Head of Post, Production Head of Post, Production Operations, two Head of Risk Management, Head of Studios, Head of Technology Operations and Studio Operations Manager.

24) The Union said that it was working on the basis of fairly limited information, however the Employer’s website described the Corporate Affairs Director as a management team role. The Union said that this role did not appear on the list provided. The Union said that if this role was included but described in different terms, then that role should also be excluded. The Union went on to say that it would also wish to exclude the roles of Head of People and Head of Production Innovation and said that those two roles did not appear on the company website, but the job titles suggested decision making at a senior level. The Union stated that the Employer’s website provided that the full team consisted of 126 people, which was significantly less than the Employer’s calculation of 237 workers. The Union added that the Employer’s annual report filed at Companies House, stated the average headcount for 2022 was 189 and for 2021 it was 183. The Union said that it believed that some of this difference could be explained by the use of freelance and or casual staff. The Union said that there was real doubt as to whether the freelance and/or casual staff would actually be workers within the statutory definition and should therefore be included in the bargaining unit for collective bargaining. The Union appreciated that this could be difficult to distinguish and without seeing the terms of the contracts and understanding the practical working arrangements it was difficult for the Union to determine whether the additional numbers were likely to be workers of the Employer.

25) The Union said that it understood that some workers were engaged through their own limited companies, which whilst not conclusive, suggested that they may not be workers. The Union explained that the use of freelancers had an impact on how the Union organised its members into branches. The Union said that some of its members were employed directly by an organisation and placed into employer branches dock10 being an example. The Union went on to say that many more of its members made their living by taking engagements from a number of organisations on a number of types of engagements, such as PAYE, but also through sole trader or limited company arrangements where the engager was invoiced for services. The Union said it was important to confirm that the Employer’s list only contained people who met the statutory definition of worker and to be sure of this there needed to be a consideration of the contractual arrangements. The Union said that in the event that it was decided that all of the people on the list met the definition of worker, it had a reasonable belief that some of those would be members of the Union but in one of the Union’s freelance branches not the dock10 branch, so the Union would not have identified them as members in the application. The Union said that these members may well have worked at dock10 but would also work at ITV, BBC and other independent producers and broadcasters and for organisational reasons would not have appeared on the membership list provided by the Union.

26) The Union said that if the Employer’s website information was close to correct, then at 126 workers, it had over 60% in Union membership. Alternatively, if the figure provided for last year in the annual report was correct at 189, then the Union had 47% in membership. The Union added that if the number of workers employed by the Employer was indeed 237, (or 189), it would still have strong membership numbers, and the majority of workers would be likely to favour recognition. The Union said that there were several factors to support its position:

“• We believe the bargaining unit should exclude the management team, which is around 14 people, rather than the two identified by the company.

• As explained above if the bargaining unit does include a number of regular freelance workers, we expect that a good proportion of these are likely to be Prospect members. The industry has a high proportion of union membership, and we recruit extensively across freelance workers. We have a large and thriving North-West Freelance branch of members, which is likely to include some of those engaged by the company. We believe we therefore would have a significant number of additional members who do some freelance work for the company and are likely to be included in the employer’s numbers. We can provide further names for this to be checked against the company list of workers.

• We clearly well exceed the first part of the admissibility test as considerably more than 10% are members of the union, indeed we have 37.55% membership in the employer stated numbers (and probably more if freelancers are included and management team members are excluded).

• We believe the existing membership numbers indicate strongly that the majority of workers are likely to favour recognition. While we accept that membership alone is not absolute evidence of support, we believe that it is strong evidence that they are likely to support recognition, especially where there is no evidence to the contrary. In support of this we would also refer to the point we made in the application form that at a meeting in March, all members present voted in favour of pursuing the application for recognition.

• Currently the union does not have access to workers in the other areas of the company, with our members being in the Studio, Technology and Post-Production teams. Our representatives in those areas have been reluctant to actively approach other workers, as they do not work together closely and fearing the management will be hostile. We believe that access through the CAC process to those workers would lead to increased membership figures in the company and that the majority would support recognition.”

8. 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 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 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 17 - 21 above) showed that 37.55% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 18 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)

31) 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. As the parties did not agree the appropriate bargaining unit before the Union’s application was submitted to the CAC, the relevant bargaining unit is the Union’s proposed bargaining unit. The statutory test is also clear that it is asking if the Union can demonstrate the likelihood of majority support for recognition and not actual support. The Panel is clear that the admissibility tests are to be applied to the Union’s proposed bargaining unit and it is for the Union to define its proposed bargaining unit. The Schedule requires the Union to specify this in its initial request to the Employer for whom the Union is seeking recognition. In addition, the subsequent Case Manager’s report set out the list of job titles included on the Employer’s list of workers in the proposed bargaining unit allowing the Union to argue that the Employer had included some roles that the Union did not intend to be within its bargaining unit.

32) For the reasons given in paragraph 30 above, the Panel has concluded that the level of union membership within the proposed bargaining unit stands at 37.55%. 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. There is currently no contrary evidence available which persuades the panel that Union members are not likely to support recognition of their Union.  The Panel is also mindful that there are areas of the company that the Union does not have members in, and the Union does not currently have access to speak to these staff and obtain their views. There is also no consensus as to the numbers of workers employed by the Employer.

33) The Panel has therefore reached the conclusion that, on the balance of probabilities and in the absence of any evidence to the contrary, 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.

9. Decision

34) For the reasons given in paragraphs 27 - 33 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Ms Naeema Choudry, Panel Chair

Mr Alastair Kelly

Mr Ian Hanson.

18 September 2023