Decision

Acceptance Decision

Updated 21 May 2019

Case Number: TUR1/1100(2019)

7 May 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:

Unite the Union

and

Emirates

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 3 April 2019 ^{[footnote 1]} that it should be recognised for collective bargaining purposes by Emirates (the Employer) in respect of a bargaining unit comprising “Operational services staff employed at Gatwick Airport specifically including Duty Officers, Supervisors, Ticket Desk Agents, Senior Airport Agents, Airport Agents and specifically excluding Airport Services Manager.” The location of the bargaining unit was given as “Gatwick Airport, Horley, Gatwick RH6 0NP”. The application was received by the CAC on 9 April 2019 and the CAC gave both parties notice of receipt of the application on 9 April 2019. The Employer submitted a response to the CAC dated 15 April 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, Panel Chair, and, as Members, Mr Mike Cann and Mr David Coats. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 23 April 2019. The acceptance period was extended to 10 May 2019 in order to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider said 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 a request letter to the Employer on 21 February 2019. The Union stated that the Employer had responded to the request on 4 March 2019 by asking how many of the 22 non-management staff it employed at Gatwick were members of the Union. The Union said that it had replied to the Employer on 7 March 2019 offering to take part in a confidential membership audit through Acas to establish the support for collective bargaining. The Union said that it had received no response to this offer from the Employer. A copy of the Union’s request, the Employer’s letter of 4 March 2019, and the Union’s letter of 7 March 2019 were attached to the Union’s application.

6) When asked whether the Union had made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Union answered “N/A”. 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 it did not know the total number of workers employed by the Employer. The Union stated that there were 22 workers in the proposed bargaining unit, of whom 21 were members of the Union. When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated that 21 of the 22 workers were members of the Union and that the the majority had signed a petition in support of union recognition.

8) The Union stated that the reason for selecting its proposed bargaining unit was because it was all operational staff and was compatible with how the business was structured and run. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “No”. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit.

9) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application and supporting documents to the Employer on 3 April 2019.

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 21 February 2019. The Employer said that in a letter to the Union dated 4 March 2019 it had acknowledged receipt of the request; enquired how many of the 22 non-management staff were members of the Union; and stated that on receipt of this information it would give the matter due consideration and respond accordingly. A copy of the Employer’s letter to the Union was attached to the Employer’s response.

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 4 April 2019. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union, but that it agreed with the proposed bargaining unit. The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

12) The Employer stated that it agreed with the number of workers in the proposed bargaining unit as set out in the Union’s application. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer answered “N/A”.

14) When invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition the Employer said that, initially, there had been a willingness on the part of the workers in the bargaining unit to consider a staff forum instead of recognition. The Employer stated that, despite subsequent communication from the workers on 4 April 2019 indicating that they wished to continue with their request for recognition, the Employer still wished to explore the option of a staff forum with the workers in the bargaining unit.

15) The Employer stated that it was not aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, nor had it received any other applications in respect of workers in the proposed bargaining unit.

5. The membership and support check

16) To assist the determination of two of the admissibility criteria 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 and of a petition compiled by 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 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 names and dates of birth) and a copy of its petition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and petition would not be copied to the other party and that agreement was confirmed in a letter dated 23 April 2019 from the Case Manager to both parties.

17) The information requested from both parties was received by the CAC on 23 April 2019. The Panel is satisfied that this 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 22 workers in the Union’s proposed bargaining unit. The following job titles were listed:

• Supervisor Airport Services – 3

• Ticket Desk Supervisor – 1

• Airport Services Officer – 3

• Airport Services Agent – 9

• Senior Ticket Desk Agent – 3

• Senior Airport Services Agent – 2

• Lounge Supervisor - 1

19) The list of members supplied by the Union contained 21 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 21, a membership level of 95.45%.

20) The petition supplied by the Union contained 21 names and signatures, of which 21 were in the proposed bargaining unit, a figure that represents 95.45% of the proposed bargaining unit. Of those 21 signatories, 20 were members of the Union (90.91% of the proposed bargaining unit) and one was a non-member (4.55% of the proposed bargaining unit). The petition consisted of one A4 sheet, which was set out as follows:

“PETITION IN SUPPORT OF UNION RECOGNTION

Emirates

Unite the Union is asking your employer to recognise it for collective bargaining. We have to show ACAS or the Central Arbitration Committee that a majority of workers favour our application. If you want your employer to recognise Unite for collective bargaining, please sign the petition.

I support recognition of Unite as entitled to conduct collective bargaining on pay, hours and holidays:

PRINT NAME	JOB TITLE	SIGNATURE	DATE

This petition and your personal details will be kept confidential by Unite the Union and will be shared with ACAS or the Central Arbitration Committee only, who will use these to confidentially verify the level of support for our collective bargaining application. Your employer will not receive your details or a copy of this petition. The petition will be retained by Unite for the duration of the recognition campaign and any associated issues.

Unite the Union’s full up to date privacy policy can be found at www.unitetheunion.org/privacypolicy”

The dates on the petition ranged between 7 March 2019 and 15 March 2019.

21) A report of the result of the membership and support check was circulated to the Panel and the parties on 25 April 2019 and the parties were invited to comment on the results of that check by noon on 29 April 2019.

6. Summary of the parties’ comments following the membership and support check

22) In an e-mail to the CAC dated 25 April 2019 the Union stated that it believed the check carried out by the CAC indicated that it had clearly met the tests set out in paragraph 36 of the Schedule. The Union stated that the check clearly demonstrated that the vast majority of workers in the proposed bargaining unit were members of the Union and supported collective bargaining with the Union. The Union also submitted that there was no need to subject these workers to a ballot.^{[footnote 2]}

23) In an e-mail to the CAC dated 29 April 2019 the Employer said that it had reviewed the contents of the report and did not have any comments on the comparison provided.

7. Considerations

24) 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.

25) 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 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.

8. Paragraph 36(1)(a)

26) 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 16 - 19 above) showed that 95.45% 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 agreement reached 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.

9. Paragraph 36(1)(b)

27) 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 26 above the Panel has concluded that the level of union membership within the bargaining unit stands at 95.45%. 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 such evidence to the contrary was received in this case. The Panel also notes that the support check conducted by the Case Manager showed that 95.45% of workers in the proposed bargaining unit (21 out of 22 workers) had signed a petition in favour of recognition (see paragraph 20 above). Of those who had signed the petition 20 were Union members (90.91% of the proposed bargaining unit) and one was a non-member (4.45% of the proposed bargaining unit).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.

10. Decision

28) For the reasons given in paragraphs 25-27 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mr Mike Cann

Mr David Coats

07 May 2019

1. On the application form itself the date of the application was given as 3 April 2018. However the covering letter was dated 3 April 2019 and the Union stated that the application and supporting documents were copied to the Employer on 3 April 2019. The Panel is content to treat the reference to 3 April 2018 as a typographical error. ↩

2. This last submission is included for the case of completeness but is not relevant to this stage of the application. ↩