Decision

Access Arrangements for Ballot Decision

Updated 24 January 2022

Case Number: TUR1/1169(2020)

22 November 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION ACCESS ARRANGEMENTS FOR BALLOT

The Parties:

Prospect

and

Prestwick Aircraft Maintenance Limited

1. Introduction

1) Prospect (the Union) submitted an application to the CAC dated 23 April 2020 that it should be recognised for collective bargaining purposes by Prestwick Aircraft Maintenance Limited (the Employer) in respect of a bargaining unit comprising “All staff in Prestwick Aircraft Maintenance Limited below the level of Director.” The location of the bargaining unit was given as “Building 620, Orangefield, Prestwick Airport, Ayrshire, KA9.” The application was received by the CAC on 24 April 2020 and the CAC gave both parties notice of receipt of the application on the same day. The Employer submitted a response to the CAC on 7 May 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 of Professor Kenny Miller, Panel Chair, and, as Members, Mr Alistair Paton (replaced by Mr Roger Roberts for the purpose of this hearing) and Mr Matt Smith OBE. The Case Manager appointed to support the Panel was Linda Lehan but for the purpose of this hearing was Nigel Cookson.

3) By a decision dated 20 May 2020 the Panel accepted the Union’s application. As the Employer, in its response to the Union’s application, stated its agreement to the proposed bargaining unit, the Panel, not being satisfied that a majority of the workers constituting the bargaining unit were members of the Union, gave notice in accordance with paragraph 23(2) of Schedule A1 to the Act (the Schedule) that a secret ballot would be held. The Panel also advised the parties that it would wait until the end of the notification period of ten working days, as specified in paragraph 24(5) of the Schedule, before arranging a secret ballot. The Parties were asked for their views on the form the ballot and were notified that it was important for the parties to agree access arrangements at the earliest possible opportunity as the Panel considered that it should ensure these arrangements are in place before initiating the ballot process.

4) The notification period under paragraph 24(5) of the Schedule ended on 12 June 2020. The CAC was not notified by the Union or by both parties jointly that they did not want the ballot to be held, as envisaged by paragraph 24(2). Both parties requested a postal ballot which the Panel decided would be the form of ballot and this was communicated in a letter to the parties dated 4 November 2020.

5) The Union, by an email dated 2 November 2020, informed the CAC that access could not be agreed between the parties and called upon the CAC to make a determination. The issue in dispute was the Union’s access to the workplace during the ballot period. Paragraph 22 of the Code of Practice on Access to Workers During Recognition and Derecognition Ballots (the “Code of Practice”) envisaged that, where the parties failed to reach an agreement on access, the CAC may be asked to assist.

6) On 3 November 2020 the parties were asked for their comments as to whether they were happy to proceed with the CAC’s preferred method of not to start the ballot period until access arrangements were in place as resolving disputes about access had the potential to disrupt the ballot timetable. The Panel informed the parties that it would be prepared to adjudicate on the issue in dispute between the parties in advance of the ballot period commencing only if both parties confirmed in writing that they consented to such course of action being undertaken and that they would undertake to accept, abide by and implement the Panel’s decision. The CAC informed the parties that the Panel would adjudicate on the matter as if it constituted a complaint under paragraph 26 of the Schedule but the effect of its decision would rest on the consent of the parties as set out above rather than it having statutory force under paragraph 27. Both parties confirmed their agreement to this in writing on 5 November 2020.

7) A hearing was to be held on 1 December 2020 but was then postponed upon request of the Employer until 15 December 2020. However, due to the COVID pandemic, the hearing set for 15 December 2020 was cancelled. The Panel then stayed proceedings following a request from the Union. On 15 April 2021 the Union asked for the stay to be lifted and further attempts were made by the parties to agree access. In an email dated 23 September 2021 the Union stated that it wished to move to a ballot with due haste. In the absence of an agreement between the parties, the Union called upon the Panel to mediate access. The parties again agreed to undertake to accept, abide by and implement the Panel’s decision on access and a hearing took place by virtual means on 9 November 2021. The names of those who attended the hearing are appended to this decision. After the exchange of submissions but before the date of the hearing, the Employer asked if the Access Decision in the matter of TUR1/1211(2021) URTU and Eddie Stobart Limited (12 October 2021) could be placed before the Panel.

2. Submissions of the Union

8) At the outset of the hearing the Panel Chair asked the Union to set out its current position. The Union stated that the main point of contention was that the parties had been unable to reach agreement on the fundamental question of access to the workforce prior to any ballot with the Union simply seeking access in work time and in the place of work. To facilitate such access the Union was prepared to give an undertaking to comply with whatever health and safety measures the Employer put in place as it believed that it was crucial to have on-site, in-person meetings in order to get its message across to the workers in the bargaining unit.

9) The Union stated that throughout discussions with the Employer it had been committed to ensuring that face to face meetings would be conducted in a safe manner which complied with the prevailing public health guidance in Scotland at the time of the meeting. The Union said it had consistently stated that it would amend proposals to accommodate the Employer’s views on health and safety and had asked for the Employer to make a larger space available, such as the canteen, to enable fewer meetings, better ventilation and increased social distancing whilst meetings were being conducted. The Union said it had offered to hold smaller meetings over a longer period of time to ensure better social distancing but, at each stage, the Employer had refused to engage with those points. The Union strongly believed that physical meetings were necessary and it would undertake to conduct them in a safe manner. The Union stated that throughout the current public health crisis, the Employer had continued to hold face to face meetings with its workers, including mass meetings, and believed that it should be afforded the same courtesy.

10) The Union did not deny that it had been conducting online meetings and training during the pandemic which had given it insight into the limitation of the format, particularly when seeking to engage with non-desk based members and, crucially in this case, non-members. The Union had a number of concerns regarding virtual meetings. It was especially concerned about its access to non-members explaining that the fundamental purpose of access to the workforce was to brief both members and non-members alike on the union and the ballot process, to answer questions and to ensure that workers understood the decision they were being asked to make. The Union did not hold the details required to reach non-members digitally and would have to rely on the Employer to distribute joining information and promote the meetings to all staff. The Union did not believe that the use of pre-recorded material would be sufficiently interactive and did not give workers the opportunity to ask questions in order to make an informed decision.

11) The Union’s second concern was the scale, access and suitability of technology explaining that the aim of a digital meeting should be, as far as possible, to recreate the same experience which would be delivered in a physical meeting. Digital meetings, however, did not easily scale and quickly lost the interactivity that would be present in face to face meetings. Platforms which did cater for larger digital meetings did so by seeking to restrict the interactivity between participants. The Employer acknowledged that most of its workers did not have access to a PC or similar device in work hours and it was an unreasonable expectation that all workers would have the hardware, software and technical know-how to join a virtual meeting. They might also not have access to a suitable private space at home to attend the meeting. It was also not possible to guarantee that only workers in the bargaining unit would attend any virtual meeting.

12) The Employer had also raised concerns about data protection and privacy concerns in earlier discussions. For workers to be invited and gain access to a virtual meeting, the Union would need to hold at least some information about the workers, normally an email address. The Union would commit not to collect information on participants but, given the concerns previously raised, doubted whether this would be sufficient reassurance for those concerned about data protection and could perhaps discourage participation.

13) The Union was also concerned with the Employer’s proposal that workers attend in their own time outside work hours. The Union felt that this was unacceptable and that the normal standard for an access meeting would be that workers were given paid time in work to attend. The Union had previously stated that it was happy to provide electronic rather than paper materials if the Employer agreed to distribute them to the workers in the bargaining unit in a fair manner via its internal email system. In the absence of this means of disseminating information, the Union had no way of reaching non-members electronically which was why it had proposed using limited written materials with quarantine measures in place. Whilst some written material could be distributed by the Qualified Independent Person, the Union did not consider this sufficient for the purpose of reaching the workforce in a collective manner.

14) The Union explained how it wished to work with the Employer to ensure any measures put in place for meetings were consistent with those standards being applied across the site. It had offered to undertake smaller meetings to reduce any risk but this proposal had been rejected. The Union was happy to meet with teams in bubbles to ensure as little mixing between teams as possible. It was also prepared to consider any other steps the Employer wished it to take to ensure meetings could be held on-site in a safe manner.

15) To minimise disruption, the Union had offered to organise fewer large scale meetings if such as the canteen or a hanger could be made available. The facility initially offered by the Employer was a training facility on another site located on a separate industrial estate. Workers attending this site would need to take more time out of their day to do so, which, given the Employer’s concern about the impact on its operation, would have been impractical. The Union had conducted recognition ballots over the last few years and, in each case, it had been crucially important to set out to workers what the Union could and could not do, explain the consequences of the ballot and take questions. The Union contended that it would have only been able to do that in a reasonably extended session. The size of the meeting would clearly be linked to the duration of the meeting and if it was able to conduct fewer larger sessions, the Q&A section would likely take longer. The Union suggested looking at a larger number of smaller meetings, which it maintained, could possibly reduce the Q&A time. This was not a workplace where each worker had a PC and spent their day in and out of virtual meetings. In this case, the majority of workers were engaged in operational tasks undertaking maintenance on aircraft. To access a virtual meeting, workers would either have to do it in their own time, which would not be appropriate, or be provided with a PC by the Employer, which was impractical. It would also require the support of the Employer to invite workers to any virtual meetings as the Union did not have contact details for the whole group. The Union proposed to provide physical materials in sealed plastic envelopes which would have been held in quarantine and would ask workers to take them away to avoid risk of transmission. The Union proposed to provide electronic copies as an alternative and ask the Employer to distribute the materials by digital means. In response to questioning by the Panel, the Union said that virtual meetings would not be its preference but if that was what the Panel decided, then any meetings should be in work time and the necessary technology should be provided by the Employer rather than workers being expected to use their own mobile phones. Whilst face to face meetings always remained the Union’s preference, nonetheless it would engage in discussions with the Employer to make virtual meetings happen.

16) In concluding its submissions, the Union stated that it would engage with the Employer if the Panel set out a suitable framework with directions on how the parties should succeed. It acknowledged the Employer’s duty regarding health and safety matters and the Union would undertake to follow any requirements in this respect including conducting smaller face to face meetings over a longer period if the Panel were minded to extend the ballot period. Whilst its preference was for on-site meetings the Union stated that, if virtual meetings were to take place, they should be in the Employer’s time with the Employer providing the facilities. The Union acknowledged that workers were free to decide whether or not to attend its meetings. The Union believed that the meetings should last between 45 minutes and an hour to allow for Q&A sessions. If the Panel was to decide that it was not safe to hold on-site meetings then the Union would not seek to invite workers to attend face to face off-site meetings.

3. Submissions of the Employer

17) Asked to set out its current position, the Employer stated that the most appropriate form of access was virtual with a combination of pre-recorded and live meetings being conducted outside of working hours. It explained that it had recently reviewed and considered the Scottish Government’s Covid-19 guidance and some precautionary measures remained as mandatory legal requirements including a duty on the Employer to manage workplace risks under existing health and safety legislation.

18) Whilst the Scottish Government had removed the majority of mandatory restrictions, the fact remained that there was still a Global pandemic and precautions must remain in place to prioritise staff wellbeing. There had recently been an increase in the number of reported infections in Scotland and the Employer reported 10 new cases of Covid on-site in the last 10 days of October 2021 and, since 5 November 2021, there had been three further cases. The Employer continued to undertake regular risk assessments and had a duty to remain dynamic in its approach to managing risk.

19) The Code of Practice also made clear that consideration should be given to the Employer’s responsibility for health and safety and security issues when granting access and access to the workers in the actual workplace should be granted only where it was practicable in the circumstances. It was the Employer’s submission that in the circumstances of an on-going pandemic that access to the workers in the workplace was not business critical and continued to present unnecessary risks to individual health and wellbeing and the Union should be required to progress the application and organise its access outside of the workplace. The Employer included a statement from its Health and Safety Manager with its submissions.

20) The Employer had always acknowledged the requirement to allow the Union access to the bargaining unit in advance of the ballot and had sought to agree access in a way which prioritised the safety of employees. Despite the Employer’s best efforts, the Union had continued to maintain that it required face to face meetings in the workplace and had refused to consider the possibility of any virtual meetings.

21) The Employer’s position had remained consistent throughout discussions, its strong preference was for access to be utilised using the technology that was currently available such as Zoom or Microsoft Teams, rather than placing the 400+ employees in the bargaining unit at risk of exposure to Covid-19. The Employer had previously indicated that the Union could choose how the virtual sessions were delivered to maximise engagement, but a combination of pre-recorded and scheduled meetings might be appropriate in light of shift patterns.

22) Virtual meetings were not a concept which was new to the Union as it already used digital meetings with its members for a range of reasons in lieu of face to face meetings. This showed that the Union had the means to arrange virtual meetings accessible to large audiences. It was accepted that due to the nature of the Employer’s operations, employees did not regularly have access to mobile devices, a tablet or laptop during working hours. It was paramount to the safety and security of its operation that employees were 100% focused on their task at hand without any distractions. In addition, all employees could access pre-recorded meetings and content outside working hours. If virtual meetings were agreed with the Union, the Employer would make staff aware of the dial-in details so that they could access the virtual meetings.

23) Due to the shift pattern operated within the business, video-conferencing brought additional benefits as it would allow people who were not at work to attend (and potentially to attend multiple meetings). It also had other functionality like the ability to ask questions in writing.

24) The Employer had previously acknowledged that some meetings may be required if some individuals did not have access to electronic means of communication. On 28 October 2021, in an attempt to reach agreement with the Union, the Employer made a proposal for small in-person meetings. The Employer had offered the Union access to the Employer’s training facility based at the Airport to conduct two 30 minute meetings with the bargaining unit during the 20 day ballot period. The capacity for the facility was 15 people taking into consideration social distancing and adequate ventilation in line with Covid-19 guidance. It was a 10-minute walk from the workplace to the training base but employees could have driven the short distance to attend the meeting should they wish. The Employer believed this was a reasonable compromise but it would clearly be very challenging in view of the necessary risk management measures and would be disruptive to the operation. Unfortunately, in any event the Union had refused this proposal on 30 October 2021. In the circumstances, the Employer considered that the CAC should now recognise the difficulties for the business in facilitating any on-site face to face meetings in light of the risk assessment undertaken and require the Union to either organise appropriate alternative virtual meetings which could also be recorded for later viewing by employees or organise its own face to face meetings outside of working hours and identify a larger scale more suitable venue away from the workplace. This would enable employees to weigh up for themselves whether they wished to attend an in-person meeting in their own time recognising the potential health and safety risks. In such circumstances, the Employer should not be held accountable for workers choosing to attend an in-person meeting in their own time. This was an important consideration. If the CAC was to order face to face meetings in the workplace during working hours, even if such meetings were voluntary, employees might feel pressured to attend from the Union or its supporters and were less able to make the free choice whether to attend. The importance of employee free choice in a Global pandemic where employee health could be compromised was an essential requirement of access in these circumstances.

25) The Panel Chair asked the Employer if face to face meetings were still an option on the table for the Union and the Employer said that the Union should access the bargaining unit virtually as any face to face meetings could lead to elevated absence, an increase in hospital admittance and would pose a health and safety risk. The Code of Practice stated that the Union should be granted access to the employees, but the health and safety aspect must be taken into consideration to see whether employees were being put at risk. The Employer itself had no plans for meeting its workers face to face. The Union could have a zoom meeting having pre-recorded its message and the workers could gain access outside of working time.

26) In line with its legal health and safety obligations, the Employer considered that permitting access to large group meetings continued to pose a disproportionate risk to employees and there was no facility available for such a large group meeting. Large meetings were not essential for the Union to gain access to the bargaining unit and the Employer submitted that to permit access in this way would be dangerous and could pose a significant threat to its essential operations if there was a Covid-19 outbreak on site.

27) If the Union sought to gain access to larger group meetings with the bargaining unit, it was the Employer’s position that these meetings should be scheduled off the Employer’s premises outside of working hours with the Union taking responsibility for its own health and safety risk assessment. As set out in the Code of Practice, in exceptional circumstances access may need to be restricted to meetings away from the workplace and the Union would need to consider finding facilities off-site at its own expense. Any off-site meetings would need to take place outside of working hours as there was no walkable off-site facility on base.

28) The Employer remained committed to offering the Union access to the workers in a way which prioritised employee health and safety and ensured the Employer complied with its legal obligations. The Employer submitted that the most appropriate and safe way for the Union to access the workforce was via electronic means. At every opportunity the Employer had offered the Union access to workers using virtual means. Its refusal to properly engage with this option had resulted in this application not moving forward for over 12 months which had created on-going uncertainty for the workforce.

29) The Employer’s Health and Safety representative said he believed it morally wrong at this moment in time to have face to face meetings. It further breached the H&S Executive guidance and it only took one person to get Covid for there to be a domino effect. Asked as to what face to face meetings currently took place on site the H&S Representative replied that there were shift meetings and management meetings. As per Scottish government guidelines, only 12 people were in attendance and there could be between 8-10 meetings per day. Those attending such meetings were from the same work area as it would be a challenge if they were from different areas of the workplace because of the risk of cross contamination. Asked by the Union which training area would be best suited, the H&S Representative stated that the training centre was more suitable as there was plenty of ventilation, it was easier to clean, was quiet and, if necessary, easier to quarantine. There was a projector and wi-fi was also available. However, there were no computers in that room. The ventilation in the training room in the hangar was not good as there were no windows and only an emergency door which could not be left open for security and noise. The Managing Director added that the training room was a security risk if the door was to be left open however, the hardware there was transferrable to the training centre. The training centre would still need to be cleaned and sterilise between meetings. Currently the Employer was only training six people per day in this room whereas pre-Covid twenty people would attend a training course.

30) The Panel Chair questioned how workers would access the virtual meetings if they did not possess suitable technology and asked whether the Employer would be able to assist. The Employer stated it would assist with technology in the workplace but outside of work areas and it would help with virtual access with social distancing measures being put in place. The Panel Chair stated that in the Eddie Stobart case, which the Employer submitted a few days before the hearing, the employer provided all the necessary resources and played a very active role in facilitating the virtual meetings with the workers. The Employer responded that it was also prepared to discuss access during working hours but outside work areas. The Employer stated that the Union had held virtual meetings during Covid. However, the Union commented that there had been times it had encountered connection problems, no support had been provided and workers could not hear, all of which were a clear barrier to communication.

31) If the Panel’s decision was that access was to be by virtual meetings the Employer said that it would look at the resources and practicalities necessary to comply and would discuss with the Union a way forward. The Employer’s position was the same as the employer in Eddie Stobbart in that the matter should be approached with caution to minimise any possible risk to the workers.

4. Parties’ affirmation

32) At the conclusion of the submissions, the Panel Chair once more sought confirmation that the parties would accept, and abide by, the Panel’s determination. Both parties stated that they would abide by the outcome and would work together to ensure the matter could proceed. The Panel Chair explained that the decision would lay out a framework for the access arrangements and that both sides should then meet and have meaningful discussions to finalise them. The Employer and the Union said they would accept the framework and would engage with each other to facilitate and implement the Panel’s decision as both were keen to see this matter brought to a conclusion.

5. Considerations

33) The Panel is conscious that paragraph 7 of the Code of Practice, in setting out the general purpose of the Code, makes clear that it covers two related issues: a union’s access to workers during the period of recognition or derecognition ballots and the avoidance of unfair practices when campaigning during that period. Here, we are concerned with only the first of these issues and the Union’s access to the workers that form the bargaining unit during the balloting period. The Code itself gives practical guidance about the issues which may arise when an employer receives a request by a union to be granted access to their workers at their workplace and/or during their working time. The Code also makes it clear that a union does not need the employer’s consent or assistance to arrange access outside the workplace and outside working hours.

34) This is an important distinction as this is about the Employer giving access to the Union at a time when the Employer has a degree of control over the workers in the bargaining unit. It is not ‘access’ in the sense covered by the Code of Practice for the Union to be able to meet with the workers outside of both the workplace and working time irrespective as to whether the meetings take place face to face or by virtual means.

35) Having set out how access should be considered the Panel would nonetheless state that these are unprecedented times and it is a certainty that no one envisaged a global pandemic when the terms of the Code of Practice were being drawn up. The Panel also acknowledges the increased importance of the health, safety and wellbeing of staff whilst Covid 19 cases continue to persist. We also recognise that there have continued to be Covid cases amongst the workers in the bargaining unit. So, in these unique circumstances, the Panel must be somewhat pragmatic in its approach to the question of the Union’s access during the ballot and seek a middle ground where the Union can, on the one hand, still have access to the workers so that it can convey its message across but, on the other hand, enable the Union to do it in a form that does not put the safety and health of the workers in jeopardy.

36) In this case the Employer had originally offered a limited number of small scale face to face meetings but this proposal was subsequently turned down by the Union. The number of meetings would not have permitted the Union time to meet with all of the workers given the number of meetings being offered and considering the size of the bargaining unit and the maximum number that would be permitted at each meeting. As the Union did not accept this proposal the Employer then took the offer off the table.

37) Simply put, the Union wants face to face meetings on-site during working time and the Employer’s primary position is that the meetings should be off-site in the workers own time. As stated above, the Employer’s initial offer falls short of the sort of access as defined in the Code of Practice as the access referred to in the Code is access in working time, whether or not in the workplace. During the course of the hearing the Employer said that it would assist the Union with suitable technology in the workplace but outside of working areas and that it would help with arranging virtual access with social distancing measures being put in place.

38) So, having considered the parties’ submissions carefully and the various options put forward, the Panel has decided that the Union’s access meetings should be during working hours and by virtual means. This is to ensure the health and safety of the workers, not only those in the bargaining unit but of all of the workers in the Employer’s undertaking.

39) The Panel notes the measures and assurances offered by the Employer to facilitate such meetings to ensure that appropriate access is given to the Union in accordance with the provisions of the Code of Practice.

40) The Panel’s decision that the meetings should be by virtual means has been made on the basis that the Union would have virtual access with the workers during working hours. The workers themselves will attend either the Hanger training room or the training facility, which is a short distance away from the actual workplace. During the hearing the Employer explained the pros and cons of each of these options and the Panel would leave it for the parties to agree which is best suited for the virtual meetings. If it is to be the training facility, and it must be said that the benefits of this option as expressed by the Employer would support this choice over the Hanger classroom, it should be on the basis that the Employer would ensure it is equipped with suitable technology for the workers to be able to access the Union’s online meetings.

41) In order to minimise the risk of infection, the workers should attend the virtual meetings in their workplace bubbles and the meetings themselves should be for a maximum of one hour. If the training facility is to be used for the meetings, the time that workers spend travelling to the training facility and back again should not be counted as part of the one hour allocation. The Employer should compile, with the agreement of the Union, a rota for each workplace bubble to attend meetings over the first ten days of the balloting period, the timetable of which will be notified in due course. Workers will be then free to decide whether to attend the meetings or not.

42) Having arrived at this conclusion, the Panel would emphasise that this decision, following so soon on the heels of Eddie Stobbart, does not set a precedent. When a Panel is called upon to adjudicate on access it will do so on the basis of the particular facts and individual circumstances of the case as presented by the parties.

6. Decision

43) The Panel is of the view that given the safety precautions in the workplace as a result of the Covid pandemic, the Union’s access meetings should be held by virtual means. The parties should now engage and agree the necessary arrangements that will need to be put in place in order to put this decision into effect.

Panel

Professor Kenneth Miller, Panel Chair

Mr Roger Roberts

Mr Matt Smith OBE

22 November 2021

7. Appendix

Attendees for the Union:

David Avery - Negotiation Officer

Jane Copley - Legal Officer

Attendees for the Employer:

Thomas Player - Partner, Eversheds Sutherland

Leonie McQuaide - Associate, Eversheds Sutherland

Andy Holder - PAML Acc Manager

Steve Davies - PAML General Manager

Andy Miller - PAML H & S Manager