Decision

Acceptance Decision

Updated 1 October 2019

Case Number: TUR1/1132(2019)

9 September 2019

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:

UNISON

and

PossAbilities C.I.C.

1. Introduction

1) UNISON (the Union) submitted an application to the CAC dated 12 August 2019 that it should be recognised for collective bargaining purposes by PossAbilities C.I.C. (the Employer) for a bargaining unit comprising “All staff working for PossAbilities on the Stockport Council-commissioned learning disabilities contract”. The application was received by the CAC on 12 August 2019 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted a response to the CAC dated 19 August 2019 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 Chairman established a Panel to deal with the case. The Panel consisted of Professor Gillian Morris, Chair of the Panel, and, as Members, Mr Tom Keeney and Ms Fiona Wilson. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 27 August 2019. The acceptance period was extended to 9 September 2019 in order to allow time for the parties to comment on the results of a membership check and for the Panel to consider these comments before arriving at a 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 sent its formal request for recognition to the Employer on 24 July 2019 and that no response had been received. A copy of the Union’s request letter was attached to the application.

6) The Union stated that it had made a previous application under the Schedule for workers in the proposed bargaining unit or a similar unit on 12 July 2019 and that it had withdrawn this application on 23 July 2019. 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 the total number of workers employed by the Employer was 551. The Union stated that there were 85 workers in the proposed bargaining unit, of whom 61 were members of the Union. When 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 stated that it currently had more than 60% of staff in the bargaining unit in membership. The Union stated that it would be willing to provide a list of its members for verification by the CAC, but that this information was confidential and it would not be appropriate to share it with the Employer. The Union stated that it also had an Open Letter to Stockport Councillors calling for continued union recognition following the TUPE transfer of staff from Choice Support to the Employer and attached an unsigned copy of this letter to its application. The Union said that the Open Letter had been signed by 53 transferred staff, a figure that represented over 60% of the transferring workforce. The Union stated that it would be willing to provide a list of signatories to the Open Letter for verification by the CAC on a confidential basis.

8) The Union stated that the reason for selecting the proposed bargaining unit was because the staff providing learning disabilities services in Stockport were a unionised workforce. The Union said that prior to the TUPE transfer on 1 July 2019 they were employed by Choice Support which recognised trade unions. The Union stated that on taking on the contract commissioned by Stockport Council, the Employer had indicated that it did not intend voluntarily to recognise unions. The Union said that it had a majority of the transferred in staff in membership and wished to continue to represent its members as a recognised trade union. The Union said that its members were concerned that the Employer may move to worsen their employment conditions and wanted union recognition retained. The Union said that the Employer had already moved to withdraw an Attendance Bonus worth up to £600 a year for staff that was previously paid by Choice Support. The Union stated that the bargaining unit was compatible with effective management and that all the staff worked wholly in Stockport, in services commissioned by Stockport Council, and they were managed by a registered manager based in a local office in Stockport. The Union stated that the bargaining unit had been agreed with the Employer

9) The Union said that there were no other recognition agreements within the bargaining unit of which it was aware. The Union stated that the Employer, in its response to the withdrawn July 2019 CAC application, had stated that there was no existing agreement for recognition.

10) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application to the CAC, and supporting documents, to the Employer on 12 August 2019.

4. Summary of the Employer’s response to the Union’s application

11) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 12 August 2019. The Employer stated that it did not provide a response to that request. The Panel Chair queried whether the date of 12 August 2019 had been given in error given that the Union’s request letter was dated 24 July 2019 and its application to the CAC was dated 12 August 2019 and asked the Case Manager to investigate the matter. The Union provided a copy of a Royal Mail Track and Trace form as evidence that the request had been received by the Employer on 25 July 2019. This was sent to the Employer and the Employer confirmed in an email to the Case Manager dated 30 August 2019 that the request had been received on 25 July 2019 and apologised for the confusion.

12) The Employer confirmed that it had received a copy of the Union’s application form from the Union on 12 August 2019. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union but in answer to the question ‘do you agree the proposed bargaining unit’ the Employer answered ‘yes’. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

13) The Employer said that there were 85 workers in the bargaining unit. When asked if there was an existing agreement for recognition in force covering workers in the proposed bargaining unit the Employer answered ‘no’, explaining that a recognition agreement had been in place prior to it taking on the employees in the bargaining unit on 1 July 2019 under TUPE. The Employer said that following the transfer it had taken the decision not to recognise the Union for the purposes of collective bargaining

14) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer said that it had only limited information regarding the active Union membership of employees in the bargaining unit. The Employer said that it had payroll information which confirmed the deductions to be made for Union subscriptions, and this confirmed that a total of 29 employees were Union members. The Employer said that it may well be the case that a more significant proportion of employees were in the Union and paid their subscriptions directly, but it did not have the total membership numbers in its possession.

15) When invited to give its reasons if it did not consider that a majority of the workers in the proposed bargaining unit would be likely to support recognition, the Employer said that the Open Letter sent to Stockport Council referred to by the Union (see paragraph 7 above) had been sent in advance of the transfer of services to the Employer. The Employer said that, having engaged with employees since the date of the transfer, it had discussed the way in which it consulted with employees and the way in which it constructed benefits which were centred around suggestions from employees themselves. The Employer said that it believed that this approach taken consistently across the Company was much more advantageous to employees than having one compartmentalised group with whom it needed to consult unions separately from the main body of employees. The Employer said that if it were required to negotiate over pay, hours, and holidays this would result in inconsistency with other employees of the Employer and would, it expected, lead to unfavourable terms and conditions of employment being agreed. The Employer said that it took the view that, having engaged with employees in recent weeks, it was quite possible that more workers in the bargaining unit would now be in favour of opting against a recognition agreement and in favour of discussing matters in a consistent forum along with its remaining employees. The Employer said that it had not seen any information to confirm the number of employees who had signed the Open Letter, and would expect to see this as part of the current process

16) The Employer stated that a previous application under the Schedule for statutory recognition for workers in respect of this or a similar bargaining unit was made by the Union on 12 July 2019 and subsequently withdrawn.

5. The Membership and Support Check

17) To assist in the application of the admissibility tests specified in the Schedule, namely, whether 10% of the workers in the agreed bargaining unit are members of the union (paragraph 36(1)(a)) and whether a majority of the workers in 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 (paragraph 36(1)(b)), the Panel proposed an independent check of the level of union membership within the agreed bargaining unit and of the number of workers in the agreed bargaining unit who had signed an Open Letter supporting continued recognition of the Union. 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 agreed 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 name and date of birth) and a copy of the Open Letter signed by workers in the agreed bargaining unit. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and Open Letter would not be copied to the other party. These arrangements were confirmed in a letter dated 20 August 2019 from the Case Manager to both parties. The information from both parties was received by the CAC on 22 August 2019. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

18) The list supplied by the Employer indicated that there were 91 workers in the agreed bargaining unit. The list of members supplied by the Union contained 61 names. According to the Case Manager’s report, the number of Union members in the agreed bargaining unit was 60, a membership level of 65.93%.

19) The Union submitted an Open Letter with typed names, not signatures, on it. In a telephone conversation with the Case Manager the Union confirmed that it did have a copy of the Open Letter with signatures but would not have access to the document until Monday 2 September 2019. The Union said that, so as not to delay the application, it would allow the CAC to proceed with the check without the Open Letter and would rely on its membership numbers to meet the tests in Paragraph 36 of the Schedule

20) A report of the result of the membership check was circulated to the Panel and the parties on 28 August 2019 and the parties were invited to comment on the result.

6. Summary of the Union’s comments on the result of the membership check

21) In a letter to the CAC dated 30 August 2019 the Union stated that the check confirmed that it had 60 members within the bargaining unit which represented a density of 65.93% and that this clearly indicated that the test under paragraph 36(1)(a) of the Schedule had been satisfied.

22) In relation to paragraph 36(1)(b) of the Schedule, the Union stated that a fundamental expectation of trade union membership was that workers were covered by collective bargaining. The Union stated that the independently verified density of 65.93% within the bargaining unit clearly indicated that the majority of workers in the bargaining unit favoured recognition of the union. The Union stated that it believed that the fact that the Open Letter was sent prior to the transfer to the Employer was completely irrelevant. The Union said that, despite the Employer having had opportunities to provide further supporting information, the Employer had been unable to present any evidence or substantiate its assertion that the majority of workers no longer supported recognition.

23) The Union stated that the Employer had held a series of staff briefings prior to the TUPE transfer on 20 June 2019 which were attended by the Union and the majority of the transferring workforce. The Union stated that at the briefings the Employer had given a detailed overview of its current model of staff engagement and at the end of the meeting a number of members of staff had voiced their clear preference for trade union recognition to continue. The Union stated that it had collected a significant proportion of signatures for the Open Letter immediately after those briefings which indicated that staff favoured trade union recognition. Referring to the Employer’s suggestion that trade union recognition would “lead to unfavourable terms and conditions of employment being agreed”, the Union said that in its experience trade union recognition nearly always meant improved terms and conditions for staff.

24) The Union stated that the Employer had been unable to present any evidence to suggest that the majority of the workforce no longer favoured trade union recognition and the Union believed that, on the contrary, the appetite for trade union recognition was increasing. The Union said that it should be noted that membership density prior to the TUPE transfer was less than 50% and that this had now increased to over 65% as a direct result of a campaign explicitly calling for trade union recognition and collective bargaining rights.

25) The Union stated that since the TUPE transfer it had continued to visit and communicate with members and staff across the Employer and members had already raised a number of concerns relating to unfavourable changes to terms and conditions post transfer including removal of an Attendance Bonus and changes to bank holiday pay. The Union stated that as a result of those retrograde changes, it believed it was unlikely that any staff would have changed their mind regarding union recognition.

7. Summary of the Employer’s comments on the result of the membership check

26) In an e-mail to the CAC dated 30 August 2019 the Employer stated that it did not take the view that the majority of the workers in the bargaining unit were likely to support recognition. The Employer reiterated that the Open Letter had been sent to Stockport Council in advance of the transfer of services to the Employer. The Employer also reiterated that, having engaged with employees since the date of the transfer, it had discussed the way in which it consulted with employees and the way in which it constructed benefits which were centred around suggestions from employees themselves. The Employer said that it believed that this approach taken consistently across the Company was much more advantageous to employees than having one compartmentalised group with whom it must consult unions separately from the main body of employees. The Employer stated that if it were required to negotiate over pay, hours, and holidays this would result in inconsistency with other employees of the Employer and would, it expected, lead to unfavourable terms and conditions of employment being agreed. The Employer said it must be appreciated that, outside of this bargaining unit, it engaged directly with all of its other employees and that it received excellent feedback and had very positive engagement levels.

27) The Employer said that, having engaged with employees in the bargaining unit in recent weeks, it was quite possible that more workers in the bargaining unit would now be in favour of opting against a recognition agreement and in favour of discussing matters in a consistent forum along with its remaining employees. The Employer said that since that time it had met further with around 60 staff to seek feedback about the first few weeks and that during these conversations the Employer’s current collective arrangements for engagement were explained, plus the working conditions and benefits this style had introduced. The Employer said that almost all had commented on how they liked that form of engagement; that they would like to be a part of it; and would wish to be treated the same as the rest of the business and enjoy the same conditions and benefits.

28) The Employer said that it had concerns about how signatures were obtained by the Union in the weeks leading up to the Employer taking over the contract. The Employer said that it had arranged collective meetings which it had, as a gesture of goodwill, permitted the Union to attend. The Employer said that it understood that, on conclusion of a collective meeting, the Union had asked staff to sign a document as they were leaving, giving no time for staff to understand what they were signing. The Employer said that it felt that this was a little unfair on those staff, and on the Employer’s generosity in allowing the Union to come to its ‘saying hello’ meeting. The Employer said that this also undermined the suggestion that the majority of the bargaining unit would be in favour of collective bargaining.

8. Considerations

29) 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.

30) 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 paragraphs 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

9. Paragraph 36(1)(a)

31) 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. The membership check conducted by the Case Manager (described in paragraphs 17 and 18 above ) showed that 65.93% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 17 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed 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.

10. Paragraph 36(1)(b)

32) 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. For the reasons given in paragraph 31 above, the Panel has concluded that the level of union membership within the bargaining unit stands at 65.93%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the bargaining unit as to whether they would be likely to favour recognition of the Union. No such evidence to the contrary was received in this case. The Panel notes the Employer’s submission that, having engaged with employees in the bargaining unit in recent weeks, it was quite possible that more workers would now be in favour of opting against a recognition agreement and in favour of discussing matters in a consistent forum along with its remaining employees. The Panel also notes the Employer’s view that the employees it had met since starting the contract liked its form of engagement with employees and would wish to be part of this and treated the same as the rest of the business. However the Panel has not received, from either the Employer or individual workers within the bargaining unit, any form of documentary evidence that substantiates either of these submissions or any other submissions by the Employer that a majority of workers in the bargaining unit would not be likely to favour recognition of the Union. On the basis of the evidence before it, the Panel has decided, on the balance of probabilities, that 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.

33) The Union referred in its application to an Open Letter supporting recognition which the Union said had been signed by 53 transferred staff. For the reason given in paragraph 19 above, the Union decided subsequently that it would rely on its membership level alone to demonstrate support for recognition and the Open Letter has played no part in the Panel’s decision.

11. Decision

34) For the reasons given in paragraphs 30 to 32 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Chairman of the Panel

Mr Tom Keeney

Ms Fiona Wilson

09 September 2019