Decision

Recognition Decision

Updated 16 March 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1249(2022)

16 March 2022

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

Prospect

and

Guard Archaeology Limited

1. Introduction

1) Prospect (the Union) submitted an application to the CAC dated 28 January 2022 that they should be recognised for collective bargaining purposes by Guard Archaeology Limited (the Employer) for a bargaining unit described as: “all staff employed by the company with exception to the Directors”. The location of the bargaining unit was given as: “all company workplaces. Two office sites, 52 Elderpark Workspace, G51 3TR and EH20 Business Centre, EH20 9LZ. Project sites across the country where staff are allocated. Any other locations that exist.” The application was received by the CAC on 28 January 2022 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC on 2 February 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 Professor Kenny Miller, Panel Chair, and, as Members, Mr Alistair Paton and Mr Paul Morley. The Case Manager appointed to support the Panel was Joanne Curtis.

3) By its written decision dated 15 February 2022 the Panel accepted the Union’s application. The parties then entered a period of negotiation in which to try and reach agreement on the appropriate bargaining unit. On 10 March 2022 the Employer confirmed that it agreed the Union’s proposed bargaining unit.

2. Issues

4) Paragraph 22 of Schedule A1 to the Act (the Schedule) provides that if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies. Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled. The three qualifying conditions are:

(a) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(b) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

(c) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf. Paragraph 22(5) states that “membership evidence” is (a) evidence about the circumstances in which union members became members, or (b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

5) A check conducted by the Case Manager of the level of Union membership in the proposed bargaining unit prior to the application being accepted, the result of which was reported to the Panel and parties on 9 February 2022, showed that 27 of the 47 workers in that proposed unit were Union members, a membership level of 57.4%.

3. The Union’s claim to majority membership and submission it should be recognised without a ballot

6) In a letter dated 10 March 2022 the Union was asked by the CAC whether it claimed majority membership within the bargaining unit and, if so, whether it submitted that it should be granted recognition without a ballot. The Union, in an e-mail dated 10 March 2022, stated that it did claim to have majority membership within the bargaining unit and that since the membership report had been produced on 9 February 2022 membership had increased further. The Union believed this was due to the recognition application. The Union went on to submit that given the above it should be granted recognition without the need for a ballot.

4. The Employer’s submissions

7) In a letter dated 11 March 2022, the Employer was invited to make submissions on the three qualifying conditions specified in paragraph 22(4) of the Schedule. In its response dated 14 March 2022 the Employer requested that the Panel give due consideration to maintaining good industrial relations within Guard Archaeology. It stated that it was clear from the feedback from long serving staff that they felt their views had not been sought by the Union and that they were being forced into a situation where they had not been permitted to have their say in the future of the company. The Employer went on to submit that any declaration without a ballot of all staff would be divisive and lead to poor industrial relations.

8) In addition, the Employer asked that the Panel take into consideration the form of company ownership within the organisation. It stated that the move to employee ownership was designed to put control into the hands of the employees. It added ‘a move to accept the result of the current vote without providing all EOT members with recourse to have their say will likely create a rift between union members and non-union members who haven’t been consulted in this process.’

5. Considerations

9) As set out in paragraph 4 above, the Act requires the Panel to consider whether it is satisfied that the majority of the workers constituting the bargaining unit are members of the Union. If the Panel is satisfied that the majority of the workers constituting the bargaining unit are members of the Union, it must then decide if any of the three conditions in paragraph 22(4) is fulfilled. If the Panel considers that any of them is fulfilled it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

10) As a result of the membership check set out in paragraph 5 above, the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Union. Paragraph 22(2) of the Schedule requires the CAC to issue a declaration that the Union is recognised where it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union unless any of the three qualifying conditions set out in paragraph 22(4) is fulfilled.

6. Paragraph 22(4) (a)

11) The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Employer has asked the Panel to consider its comments that Union recognition would affect the employee ownership base, and impact senior colleagues thereby damaging industrial relations, however it is the Panel’s view that such comments do not address the statutory test and that no evidence has been put before the Panel to show how industrial relations would be detrimentally affected if it were to award recognition without holding a ballot. The Panel is therefore satisfied that this condition does not apply.

7. Paragraph 22(4)(b)

12) The second condition is that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union to conduct collective bargaining on their behalf. The Panel has no such evidence and this condition does not apply.

8. Paragraph 22(4)(c)

13) The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union to conduct collective bargaining on their behalf. No such evidence has been produced, and this condition does not apply.

9. Declaration of recognition

14) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that the majority of the workers constituting the bargaining unit are members of the Union. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule are met. Pursuant to paragraph 22(2) of the Schedule, the Panel must issue a declaration that the Union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The Panel accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising “all staff employed by the company with exception to the Directors.”

Panel

Professor Kenny Miller, Panel Chair

Mr Alistair Paton

Mr Paul Morley

16 March 2022