Decision

Acceptance Decision

Updated 28 October 2020

Case Number: TUR1/1187 (2020)

21 August 2020

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:

Unite the Union

and

Charity Projects (acting as Comic Relief)

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 30 July 2020 that it should be recognised for collective bargaining by Charity Projects (acting as Comic Relief) (the Employer) for a bargaining unit comprising “Employees within the below pay grades: Director/Head of, Head of, Senior Manager/Manager, Manager/Senior Associate, Associate, Admin & Support/Entry Level. The application was received by the CAC on 31 July 2020. The CAC gave both parties notice of receipt of the application on 31 July 2020. The Employer submitted a response to the CAC dated 8 August 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 Chairman established a Panel to deal with the case. The Panel consisted of Mrs Lisa Gettins, Panel Chair, and, as Members, Miss Mary Canavan and Mr Paul Noon OBE. 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 14 August 2020. The acceptance period was extended to 28 August 2020 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 10 July 2020. The Union stated that the Employer in their response dated 22 July 2020 said that they did not feel the need to have a Union because they had recently created a Staff Representative Group. A copy of the Union’s letter and of the Employer’s response was attached to the application.

6) The Union stated that it had not made a previous application under the Schedule for workers in the proposed bargaining unit or a similar unit. 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 253. The Union stated that there were 235 workers in the proposed bargaining unit, of whom 142 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 over 50% of the bargaining unit were union members and that there had been a considerable membership increase since they had started their recognition campaign.

8) The Union stated that the reason for selecting the proposed bargaining unit was because that was the bargaining unit agreed with their membership during a collective meeting. The Union stated that it was agreed that to include top management within the bargaining unit could lead to conflict of interests for the reps and also the managers themselves when discussing and negotiating issues such as pay awards and restructures. The Union stated that the bargaining unit had not been agreed with the Employer.

9) The Union said that there was no existing recognition agreement of which it was aware which covered any of the workers in the bargaining unit. 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 10 July 2020.

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 Union’s written request for recognition on 10 July 2020 at 20:28 via email. The Employer stated that they responded in writing and a copy of their response was attached to the application to the CAC.

11) The Employer stated that they did not receive a copy of the application direct from the Union, that was received from the CAC on 31 July 2020, and under the circumstances the application was not admissible. The Employer stated that the Union in its application stated that a copy of the application was sent to the Employer on 10th July and that this was a misunderstanding of the process.

12) The Employer stated that it did not agree the bargaining unit with the Union before receiving a copy of the application form and that it did not receive the application form from the Union. The Employer stated that at present there was a debate as to whether all staff should be included in the bargaining unit.

13) The Employer stated that it currently employed 258 workers. The Employer stated that it did not agree with the Union’s number of workers in the bargaining unit as defined in the Union’s application. The Employer said that there were 254 workers in the bargaining unit and that the difference was because of the ELT. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

14) The Employer stated that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit. The Employer said that it had not received a previous application under the Schedule for statutory recognition for workers in respect of this or a similar bargaining unit.

5. Unions’ comments on the Employer’s response

15) In an email dated 7 August 2020 the Union stated that it had contacted the Employer with their request for recognition on 10th July. The Union stated that their statutory request for recognition was emailed to CAC on 30th July and it was an oversight not to copy the Employer into the email to the CAC. The Union apologised and confirmed that they had forwarded the email with all attachments to both the Head of HR and CEO. The Union confirmed that the email was sent on 7 August at 16.57hrs and that the Employer had received and acknowledge it.

6. The Membership Check

16) To assist in the application of the admissibility tests 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 name and date of birth). 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 11 August 2020 from the Case Manager to both parties. The information from the Union was received by the CAC on 11 August 2020 and from the Employer on 12 August 2020. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

17) The list supplied by the Employer indicated that there were 226 workers in the proposed bargaining unit. The list of members supplied by the Union contained 139 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 134, a membership level of 59.29%.

18) A report of the result of the membership check was circulated to the Panel and the parties on 14 August 2020 and the parties were invited to comment on the result by no later than close of business on the 17 August 2020.

7. The parties’ comments on the result of the membership check

19) No comments on the result of the membership check were received from the Union or the Employer.

8. Considerations

20) 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.

21) The Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 and 35 and paragraphs 37 to 42 and that it was made in accordance with paragraph 12 of the Schedule.

22) Paragraph 34 reads as follows:

An application under paragraph 11 or 12 is not admissible unless the union gives (or unions give) to the Employer (a) notice of the application, and (b) a copy of the application and any supporting documents to it.

23) The Panel notes that in its response to the application the Employer stated that it had not received from the Union a copy of its application (see paragraph 11 above). The Panel further notes (see paragraph 15 above) that the Union in their email of 7 August 2020 to the CAC stated that it was an oversight on their part not to copy the Employer into their email to the CAC and apologised and stated that they had since forwarded the email with all attachments to both the Head of HR and CEO. The Union stated that the email was sent on 7 August 2020 at 16.57hrs and that the Employer had received and acknowledged it. Accordingly, it was received by the Employer from the Union before the acceptance decision. The Panel is therefore 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. It does not at this stage decide whether the proposed bargaining unit is appropriate.

9. Paragraph 36(1)(a)

24) 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.

25) The membership check conducted by the Case Manager (described in paragraphs 16 and 17 above) showed that 59.29% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 16 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)

26) 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 the previous paragraph the level of union membership is 59.29%. The Union did not provide any additional evidence of support for recognition, such as a petition, but 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. No evidence to the contrary was provided in this case. It is also the Panel’s experience that there will be workers who are not members of the Union who would be likely to favour recognition of the Union. On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, 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.

11. Decision

27) For the reasons given in paragraphs 21 to 26 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mrs Lisa Gettins, Panel Chair

Miss Mary Canavan

Mr Paul Noon OBE

21 August 2020