Decision

Recognition Decision

Updated 24 January 2022

Case Number: TUR1/1169(2020)

24 January 2022

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECLARATION THAT THE UNION IS NOT ENTITLED TO BE RECOGNISED

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 and Mr Matt Smith OBE. The Case Manager appointed to support the Panel was Linda Lehan and, for the purposes of this decision, 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 informed that the Panel 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.

8) Having considered the parties’ submissions carefully and the various options put forward, the Panel decided that given the safety precautions in the workplace as a result of the Covid pandemic, the Union’s access meetings should be during working hours and by virtual means. The Panel acknowledged that these were unprecedented times and that a somewhat pragmatic approach needed to be taken in relation to the question of the Union’s access during the ballot where the Union could, on the one hand, still have access to the workers so that it could convey its message across but, on the other hand, enable the Union to do it in a form that ensured the safety not only of those in the bargaining unit but of all of the workers in the Employer’s undertaking. The parties were then asked to agree the necessary arrangements in order to put this decision into effect.

9) On 6 December 2021 the Employer confirmed that an access agreement had been reached and provided the CAC with a copy that had been signed by both parties.

2. The Ballot

10) Civica Election Services Limited was appointed as QIP on 13 December 2021 to conduct the ballot and the parties were notified accordingly. The postal ballot papers were despatched on 5 January 2022 to be returned by no later than noon on 18 January 2022, the day that the ballot closed.

11) The QIP reported to the CAC on 18 January 2022 that out of 455 workers eligible to vote, ballot papers had been returned by 304 workers with no ballot papers found to be spoilt. Eighty-six (86) workers, that is 28.3% of those voting, had voted to support the proposal that the Union be recognised for the purposes of collective bargaining with the Employer. Two hundred and eighteen (218) workers, that is 71.7% of those voting, voted to reject the proposal. The number of votes supporting the proposal as a percentage of the bargaining unit was 18.9%.

12) The CAC informed the Employer and the Union on 20 January 2022 of the result of the ballot in accordance with paragraph 29(2) of the Schedule.

3. Declaration that the Union is not entitled to be recognised

13) The ballot establishes that a majority of the workers in the bargaining unit do not support the proposal that the Union should be recognised by the Employer for the purpose of conducting collective bargaining in respect of the bargaining unit. This does not therefore satisfy the conditions under which the CAC must issue a declaration in favour of recognition in accordance with paragraph 29(3) of the Schedule.

14) In accordance with paragraph 29(4) of the Schedule, the CAC declares that the Union is not recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit.

Panel

Professor Kenneth Miller, Panel Chair

Mr Alistair Paton

Mr Matt Smith OBE

24 January 2022