Decision

Bargaining Unit Decision

Updated 2 March 2020

Case Number: TUR1/1139(2019)

17 February 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DETERMINATION OF THE BARGAINING UNIT

The Parties:

Unite the Union

and

London City Airport Ltd

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 1 October 2019 that it should be recognised for collective bargaining by London City Airport Ltd (the Employer) for a bargaining unit comprising “Aviation Security Officers [and] Campus Security Officers”. The CAC gave both parties notice of receipt of the application on 3 October 2019. The Employer submitted a response to the CAC dated 10 October 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 Mr Charles Wynn-Evans, Panel Chair, and, as Members, Mr Len Aspell and Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Nigel Cookson.

3) By a decision dated 6 November 2019 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. As no agreement was reached, the parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit. A hearing was held on 14 January 2020 in London and the names of those who attended the hearing are appended to this decision. The Panel is required, by paragraph 19(2) of the Schedule to the Act (the Schedule), to decide whether the Union’s proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate.

2. Clarification as to the bargaining units proposed by the parties

4) Having read both parties’ submissions, the Panel Chair sought clarification from the Union as to what bargaining unit it wished to put forward for the Panel to consider by reference to the various groups of workers and the functions which those teams performed. The Union explained that the bargaining unit it originally proposed consisted of two roles - those of Aviation Security Officers and Campus Security Officers working at London City Airport - but that, since the Union’s application was lodged with the CAC, the Employer had introduced a new security role - that of ‘Night Campus Security Officer’. This role provided campus security overnight which function had previously been provided by Campus Security Officers. The Union understood that not all vacancies for this role had been filled and that the first intake of this new role commenced on 6 January 2020. The Union raised the issue of whether the role of Night Campus Security was seen by the Employer as different to that of Campus Security. If the role was not different, then the Union would not need to change the bargaining unit it advocated, as the introduction of the new role would be merely a difference in nomenclature.

5) The Employer explained the background to the creation of the Night Campus Security role in that essentially it had ramped up the number of contractors working on the Airport overnight and this had led to the Employer establishing a more stable night shift security team. It confirmed that there were still outstanding vacancies within the team and that the Night Campus Security team would have its own reporting lines separate from Campus Security and would be treated as a self-contained unit. As far as the Employer was concerned, Night Campus Security were a distinct group of workers and did not fall within the Campus Security team. The Employer explained that the Night Campus Security workers were on different rates of pay and were rostered differently to the Campus Security workers. It stated that, if it had been made aware that the Union sought inclusion of the Night Campus Security workers in its proposed bargaining unit, the Employer would have amended the bargaining unit it was advocating so as to include its CCTV Security function as these workers were on the same rate of pay as the Night Campus Security workers. The Employer’s written submissions had not been based on the inclusion of the Night Campus Security workers and the Employer’s position would need to be adjusted if the Union was now arguing for their inclusion.

6) In response, the Union stated that the Night Campus Security role had only started on 6 January 2020 and the Union was not sure where the role would sit within the structure of the workforce. Given the characteristics of the workers the Union could see an argument for their inclusion within an appropriate bargaining unit in this context. However, if the Night Campus Security workers were outside the management structure for the Campus Security and Aviation Security workers, the Union could also see an argument for their exclusion from the bargaining unit. If the Panel found it appropriate to include the Night Campus Security team, the Union would not seek to oppose that decision. Further, the Union stated that, whilst there were differences in characteristics that separated the Campus and Aviation Security Officers from the Terminal Front Officers, the Union would not oppose their inclusion either if the Panel found that it was appropriate to do so.

7) The Panel asked the Union to confirm whether it was advocating a specific bargaining unit or was it leaving the matter entirely for the Panel to determine. The Union, having considered the matter, then stated that the proposed bargaining unit for which it now contended as its primary submission comprised Campus Security Officers, Night Campus Security Officers and Aviation Security Officers. The bargaining unit for which it now contended did not include Terminal Front Officers, Customer Service Officers or CCTV Security Officers.

8) The Employer stated that it had predicated its position in relation to the proposed bargaining unit on that originally proposed by the Union in that the Terminal Front Officers and Customer Service Officers were on the same terms and conditions and rates of pay. The Employer had excluded the CCTV Security Officers as they were on a different pay scale. This pay scale was the same that applied to the Night Campus Security Officers. Accordingly, the Employer would add the CCTV Security Officers to its proposed bargaining unit if it was the case that the Union was now seeking the inclusion of the Night Campus Security Officers and the panel thought it appropriate to include them in the determined bargaining unit.

9) The bargaining units now proposed by the parties were therefore confirmed as the following. The Union was proposing a bargaining unit comprising Campus Security Officers, Night Campus Security Officers and Aviation Security Officers whereas the Employer was advocating a bargaining unit comprising Campus Security Officers, Aviation Security Officers, Terminal Front Officers and Customer Service Officers. However, if the Panel saw fit to include Night Campus Security Officers in the appropriate bargaining unit the Employer would wish the CCTV Security Officers also to be included.

3. Admission of new evidence following the lodging of written submissions

10) The Union made an application to admit three pieces of additional evidence upon which it wished to rely on in addressing the Employer’s proposed bargaining unit. The new evidence consisted of:

• An advert for Customer Service Team work experience placements, which the Union believed showed that Customer Service Officers did not primarily play a security role;

• An official London City Airport Youtube video clip of a “Day in the life of a Customer Services Agent”, which the Union also believed showed that Customer Service Officers did not primarily play a security role;

• The employment contract for a Ramp Services Agent which was very similar to that of Security Officers: the Union believed this demonstrated that the terms and conditions of employment for those additional roles which the Employer sought to include in the bargaining unit were not different from those of the wider airport workforce.

11) The Union explained that it had not submitted this evidence with its submissions because it was unaware that the Employer would argue for the inclusion of the Customer Service Officers in its preferred bargaining unit. All three pieces of evidence went to the characteristics of the Customer Service Officer role and were documents and a video created by the Employer. Accordingly the Union submitted that the Employer would not be prejudiced by their consideration by the Panel.

12) The Employer stated that it had no objection to the work experience advert or the video being admitted, emphasising that the point it wished to get across was that all roles at the Airport had a security focus but all were not security focused. It made the point that it did not flag any security role in the advert for the work experience placements as the necessary checks took several weeks to complete. The Union argued that the important point was that the document set out the key functions of a Customer Service Officer and that there was no mention of a security aspect to the role. The Employer responded by stating that it simply set out the requirements for work experience candidates other than the functions of the unit itself and that the actual functions of the role would be more than half a page as here.

4. Summary of the Union’s submissions

13) In defining the bargaining unit in its original request, the Union sought to identify a cohesive, easily distinguishable group that performed the same or a similar role. With the creation by the Employer of the new role of Night Campus Security, the proposed bargaining unit in the Union’s original request was no longer the appropriate unit. The Union submitted that the CAC should find that the appropriate bargaining unit was one which covered all three security roles. The Union acknowledged that this would necessitate revalidation of the bargaining unit on the grounds of admissibility.

14) The Union contended that the appropriate bargaining unit consisted of the workers who were responsible for security at London City Airport - namely the Aviation Security Officers, Campus Security Officers, and Night Campus Security Officers. This was a distinct group of workers with similar characteristics. Aviation Security Officers were responsible for processing and screening passengers and cabin luggage, i.e. the workers who scanned bags and searched passengers at security before passengers boarded the plane. Campus Security Officers provided the remaining, general, security roles on site during the day whilst the new role of Night Campus Security Officers provided this function during night-time hours.

15) Paragraph 19B of the Schedule set out the factors which the CAC must take into account when deciding whether a bargaining unit is appropriate. ‘Appropriate’ for the purposes of paragraph 19(2) is to be determined in the sense of suitability for the purpose of collective bargaining. ‘Compatible’ in paragraph 19B(2) referred to ‘consistent with’ or ‘able to co-exist with’ effective management. Harvey on Industrial Relations at [1254] helpfully paraphrased the question as follows: ‘…taking account of the statutory criteria and of the way in which the undertaking operates and is organised, does the proposed bargaining unit offer a sensible and workable vehicle for settling by collective bargaining the pay, hours and holidays of the workers concerned?’

16) Importantly, the test was not whether the proposed bargaining unit was the most effective or desirable, only whether it was ‘appropriate’. It was only ‘effective management’ which was required, not that it be compatible with the ‘most effective management’.

17) Turning to those matters set out in paragraph 19B(3) of the Schedule, the Union’s view was that the appropriate bargaining unit was one that included the three security roles outlined above. There were no existing bargaining arrangements in place for workers within the proposed bargaining unit or otherwise within the Employer’s workforce. There was a ‘Staff Committee’ in place. However, as noted by the Employer’s Employee Handbook, this was to provide a ‘means of communication and consultation between management and employees on all matters of mutual interest’, not negotiation for the purposes of collective bargaining.

18) The Union contended that the bargaining unit it proposed by the Union was plainly compatible with effective management. The workers within the unit fulfilled security roles and formed a coherent and discrete group undertaking work to achieve the same end.

19) On the question of ‘fragmentation’, the Union submitted, first, that its new bargaining unit represented a sizeable proportion of the overall workforce and could not be described as a ‘small fragmented bargaining unit’. As the commentary in Harvey noted: ‘…if there were to be a likelihood of proliferation of bargaining units but the units themselves were large ones, then that should not be regarded as undesirable’ (at [1263.02]).

20) Secondly, as to fragmentation more generally, it was not the case that the Union sought to, for example, hive off certain security roles where there was a higher proportion of union membership. The proposed bargaining unit would represent all security roles and would not lead to fragmentation.

21) Thirdly, as to existing recognition, this was not a case of an Employer with pre-existing recognition agreements which the proposed bargaining unit would fragment and/or would encourage fragmentation of existing bargaining units into smaller groups. There were no existing bargaining units or recognition agreements in place.

22) The Union submitted that, as for the characteristics of the workers and their location, all workers in the proposed bargaining unit worked at the same location, namely London City Airport. They performed the same or similar roles. These roles were all security roles. The roles were well defined, well identified, and represented a cohesive and discrete group of workers with similar characteristics. The Employer treated the roles as the same or similar; for example, a number of workers recently moved from Aviation Security Officer roles to Campus Security Officer roles and workers in both roles covered overtime in both roles and were not limited to their own role.

23) The Union stated that the same staff handbook and policies applied to all workers within the proposed bargaining unit and the terms and conditions of employment of all workers within the proposed bargaining unit were the same. The workers in its proposed bargaining unit had the same pay structure and had the same holiday entitlements. These were both ‘core topics’ in respect of which the Union would be entitled to conduct collective bargaining should the application be successful.

24) Further, all workers within the Union’s proposed bargaining unit were shift workers; and all workers within that proposed bargaining unit must undergo Level 1 training. This both united the workers within the proposed bargaining unit and differentiated them from other workers employed by the Employer.

25) Addressing the bargaining unit proposed by the Employer, the Union’s understanding was that the duties of the Customer Service Officers in the main were to staff information booths or walk around the airport so as to be visible and answer any questions from members of the public. This was different from the regular security patrols which were constant and logged. The closest that the Customer Service Officers got to a security function was the dispensing of the clear bags for liquids prior to customers going through airport security. Whilst Customer Service Officers might also assist in clearing the trays used to put personal possessions through the scanning machines and establish the rope lines to aid customer throughput, this did not amount to a security function but rather focused on customer service to reduce the time that passengers spent queueing.

26) In closing the Union stated that it was not going to rehearse the definition of ‘appropriate’ for the purposes of the statutory test but would draw the Panel’s attention to the test that the bargaining unit be ‘compatible with effective management’. This was a comparatively modest level and meant that the bargaining unit was able to co-exist and rather than it having to mirror the management structure. Addressing those matters raised by the Employer, the Union submitted that as to the characteristics of the workers in the Union’s proposed bargaining unit, there was a substantial difference between the workers the Union wished to include and those that the Employer sought to include and in particular the Customer Service Officers but also the Terminal Front Officers.

27) The Union urged the Panel to look at the position today rather than some future scenario. There was no attempt to mislead but rather it was the reality of what had to be considered. The Union referred to the Employer’s Welcome Pack which showed the two roles were distinct from the security roles. Also, the Customer Service role did not sit under the Head of Security and Compliance but under the Head of Customer Service.

28) As for being compatible with effective management, the Union’s proposed bargaining unit was an easily identifiable group fulfilling the same function. There was no suggestion that any security function carried out by the Customer Service Officers or Terminal Front Officers would stop because of recognition. The Employer stated that everyone was primarily focused on security. If it was given a broader definition it may well be the case but this would continue after recognition.

29) There were no uniform terms and conditions on core topics across the business. However, having the same or similar terms and conditions was not a bright line as to who should be in the bargaining unit and who should fall outside of it. Questioned as to its position on the CCTV Security Officers, the Union stated that it could see that, in terms of reporting lines, they fell under the Head of Security and Compliance and that the optimum bargaining unit would see their inclusion, but the Panel was simply looking at what was compatible with effective management. There were also a number of differences in the characteristics of the CCTV Security Officers and the workers within the Union’s proposed bargaining unit and for these reasons the Union’s position was that the CCTV Security Officers should be included in the bargaining unit. The same argument applied to the Customer Service Officers and Terminal Front Officers.

30) In all the circumstances, the Union contended that the bargaining unit of the three security roles it identified was appropriate.

5. Summary of the submissions made by the Employer

31) The Employer explained that its written submissions had addressed the bargaining unit as originally proposed by the Union rather than the revised bargaining unit that the Union was proposing in its written submissions and at the hearing. The Employer had argued in its written submissions for the inclusion of the Customer Service Officers and Terminal Front Officers as it had assumed that the Union was not seeking the inclusion of the Night Campus Security Officers. As the Union had now revised its bargaining unit to include this role, the Employer likewise wished to revise its proposed bargaining unit to include the CCTV Security Officers whose terms and conditions were very similar to those of the Night Campus Security Officers. The Employer also submitted that, if the Panel was minded to include the Night Campus Security Officers in the appropriate bargaining unit, it should also include the CCTV Security Officers.

32) The Union had asserted that those workers in its newly proposed bargaining unit shared the same Level 1 Security training which was a differentiator. However, at the time of the application, not all Campus Security Officers and Night Campus Security officers were Level 1 trained and at the time of submitting these submissions, 28 out of 40 were Level 1 trained. Level 1 training was being undertaken by all reports into the Director of Customer Operations subject to trainer availability. This would include the Customer Service Offices and Terminal Front Officers and CCTV Security Officers as well as the workers in the Union’s new bargaining unit. The Employer explained that it had taken the initiative to roll out Level 1 training wider than was needed as there was no requirement that Campus Security be trained to this standard whilst it was a legal requirement that the Aviation Security Officers be level 1 trained. Further, if the Union insisted on using Level 1 training as a determinative factor for its bargaining unit then the Training and Compliance Officers should also be included.

33) The Union had originally stated that the reason for selecting the originally proposed bargaining unit was that there was a high density of union members and a majority of the workforce in support of recognition. However, the Employer made the point that density of membership was not a relevant factor in determining the appropriate bargaining unit.

34) The Employer contended that the bargaining unit now proposed by the Union was not compatible with effective management for several reasons and, in its view, such a unit would create a schism between workers within the Customer Operations Function who performed “security” work, with similar duties and responsibilities and shared work characteristics where the majority of such workers currently worked in the same physical areas and were on the same employment terms and conditions (save for minor differences in working hours reflecting operational needs). The Employer referred the Panel to Appendix 2 of its bundle which set out the contract terms and which it submitted were identical for all employees within the organisation falling under the responsibility of the Director of Customer Operations.

35) The Union made an application for trade union recognition in 2012 in which it proposed a bargaining unit of the “Fire Services, Ramp (Ramp Services Agents managed the loading and unloading of passenger luggage, marshalling of aircraft and Aircraft stand planning), and the Security function at the Airport”. At that time, the Employer’s Security function encompassed all elements of security at the Airport and security roles were not delineated in the way that they are under the current organisational structure reporting into the Director of Customer Operations. However, the bargaining unit proposed by the Union in 2012 would have included Terminal Front Officers and Customer Service Officers within the then Security function and it was the Employer’s view that these roles should be included in the bargaining unit determined by the Panel.

36) The Employer made the point that under paragraph 19B(3) of the Schedule it was incumbent upon the CAC to take into account any view the Employer had about any other bargaining unit that it considered would be appropriate pursuant to paragraph 19B(4) of the Schedule.

37) By way of background the Employer explained that it provided air handling services to individuals and airlines within a defined framework laid out by the Civil Aviation Authority under the Department for Transport. Services included the safe transit of passengers through landside to airside areas of the operation and 5.1 million passengers went through the Airport in 2019. The significant growth in passenger numbers had been driven by the strategy of having a flexible, agile workforce delivering great customer service and speed of transit, in particular through security, which had become a clear differentiator for the Airport where it was singularly unique in the UK for guaranteeing a fast kerbside to aircraft transit of less than 20 minutes and an arrival transit of aircraft to taxi-rank transit of 15 minutes, often being much quicker than this.

38) The structure of all security aspects of the Airport operations fall under the Director of Customer Operations. The security function served to provide safe passage to individuals as well as maintain protection of the asset both during and outside the hours of operation and relies of cooperation of all areas of the Customer Operations function to deliver this remit. The Employer explained that whilst the organisation chart showed the reporting lines, on a daily basis it would be the Airport Duty manager who would be responsible for the running of the Airport.

39) It was a requirement of all of those who worked within the Customer Operation functions to have enhanced security clearance in place in order to receive the specialist information to carry out their role. Refresher training to enable them to carry out their duties was carried out on a yearly basis. Level 1 Security Refresher training was also undertaken by Customer Service Officers. It was not flippant to say that the Customer Service roles focused primarily on security as they would be continually observing passengers assessing possible threats. There were only two functions that could not be carried out by all workers – operating the x-ray machines and scanning.

40) The Employer referred the Panel to the detailed organisational structure document which had been put before the Panel which, it stated, demonstrated that the requested bargaining unit proposed by the Union, and which was coloured red, along with the additional teams of Terminal Front Officers and Customers Service Officers which the Employer believed should also be included within the bargaining unit and which were coloured green.

41) The Union’s proposed bargaining unit now consisted of Aviation Security Officers, Campus Security Officers and Night Campus Security Officers. The Employer’s case was that there was no managerial, administrative or organisational basis for distinguishing between the Union’s proposed bargaining unit and the additional teams of Terminal Front Officers and Customer Service Officers. The workers within all these teams had the same terms and conditions of employment (save for minor differences in working hours reflecting operational needs specific to roles); underwent identical induction and onboarding processes; were paid the same rates of pay; performed roles with a primary focus on characteristics of the protection of the asset and people; security, and shared the task of dissemination of security advice and guidance to customers transiting the airport. They required the same skills (in particular observance of security risks), had to adhere to strict processes and regulations set down by the CAA; and would perform crossover duties across the teams both during peak passenger periods and also when undertaking overtime across Customer Operations. They all fulfilled a role in the Airport’s line of defence and it was important that the Employer retained the flexibility necessary to respond to possible threats. Such a group could be effectively managed as they were all on similar terms and conditions. The major differences between the Campus Security and Aviation Security roles were that Campus Security Officers were responsible for patrolling outside the terminal and being present when workmen were on site. They were also responsible for the management of the Eastern gate which was a separate entrance to the campus, post screening and a presence in the staff carpark. They would also assist with traffic marshalling at the front of the Airport along with the Terminal Front Officers and they would cover for each other on breaks etc. Anyone that was Level 1 trained could work in the tray loading area in the terminal but only Aviation Security Officers could screen hand baggage and conducting baggage searches. However, whilst any worker that was Level 1 trained could place objects in the trays, there was regulatory training in place that limited those that could operate the scanners and perform body searches. The Terminal Front Officers were responsible for looking at traffic flows outside of the Terminal and receiving customers as they arrived. They were the first line of defence for the Airport in identifying any possible threat. They were part of the front of house security profile and involved in tackling crime such as theft including pickpockets and car theft.

42) To exclude the Terminal Front Officers and Customers Service Officers from the bargaining unit would create a division within the teams who primarily performed security focused roles within the Customer Operations Function which would challenge the effective management of the teams; erode goodwill, collaboration and effective team working through the future divergence of terms and conditions of employment relating to pay, hours and holiday; particularly in situations of cross-departmental overtime opportunities and associated payments. It would mean the Employer having to have multiple conversations with different groups and significantly impact on the flexibility of the workforce. It would also complicate inter-departmental secondments and career progression and opportunities to step up.

43) This division risked undermining the agility of the Employer’s Security functions and speed of transit of passengers which had been the foundation of the Airport’s business strategy leading to significant growth in passenger numbers and continued business performance.

44) The Employer acknowledged that, whilst the Union’s description of the core elements of the role of the Customer Service Officers was accurate, it had omitted significant functions of the role. The Employer had strengthened the Customer Services Officer role in light of events in Istanbul and Brussels and that there had been a realignment in the terms and conditions to bring the role more in line with those of the security staff. This included training in threat identity with the Metropolitan police delivering training and refresher training along with other Government Agencies. In the immediate absence of any security personnel the Employer relied upon the skills of the Customer Service Officers and Terminal Front Officers to identify any threats. They would disseminate security information and provide security advice such as what could go in the clear plastic bags. Further, they also received the same training as the security teams on insider threats. It was the Employer’s intention that by the end of the third quarter of 2020 the Customer Service Officers will all be trained to level 1 so that they all know how to manage security on the customer journey.

45) All workers in the Employer’s proposed bargaining unit are on the same rate per hour and benefits package. Benefits included a Defined Contribution pension; death in service - one year life insurance payment (4 years in pension scheme); holidays - 28 days rising to 36 days after 5 years; occupational sick pay; private medical insurance after 5 years’ service; Childcare vouchers and Eyecare vouchers. The Employer also provided a standard copy of the contractual documentation setting out employment terms and which was issued to all Security Officers at the Airport. On the matter of the Welcome Pack the Employer explained that it was designed so that it was easily understood by new starters at the Airport and that it was not updated all the time.

46) The Airport needed to have the highest standard of skills and knowledge for all those operating in security related roles at the airport. To oversee the career progression of Security staff opportunities to step up into management roles or move into other roles within the Airport were provided by an internal recruitment policy. At the time of the hearing there were four security officers in step-up management roles. The career progression policy also outlined the ongoing training and development which was provided by the Airport which included both practical skill-based training and development as well as competency-based development. Promotions were centrally via assessment and selection. The Airport had a Staff Handbook and career progression policy reflecting the circumstances outlined above.

47) The CAC was required to ensure that the bargaining unit was compatible with effective management. It was the Employer’s case that a bargaining unit of Aviation Security Officers, Campus Security Officers and Night Campus Security Officers was not compatible with effective management.

48) The CAC was also charged with taking into account any view the Employer had about any other bargaining unit that it considered would be appropriate. It was the Employer’s position that a bargaining unit comprising of all those employees that had a primary focus of security performing comparable roles within the Customer Operations Function in the Airport, namely Aviation Security Officers, Campus Security Officers, Terminal Front Security Officers and Customer Service Officers, was the sole configuration that would be compatible with effective management. If the Panel were minded to include the Night Campus Security Officers in the bargaining unit, then the Employer believed that the CCTV Security Officers should also be included. Whilst the CCTV Security Officers were based in a different part of the Airport there were times when they would cover the duties of other security officers and their terms and conditions and rates of pay were similar to the Night Campus Security Officers.

49) That would be consistent with the way in which the business is currently managed as detailed above rather than the Union’s newly proposed bargaining unit which was, in the Employer’s view, very narrow and so was not an appropriate bargaining unit. The bargaining unit proposed by the Union would create a fragmented security function with around 51 other workers outside the bargaining unit within the same operational function comprising the Customer Service Officers, Terminal Front Officers and CCTV Security Officers. The Union’s new bargaining unit would be liable to lead to further applications later for recognition for other groups of workers and thus to increasing fragmentation. The Union’s proposed bargaining unit was incompatible with the Employer’s organisational and operational structure and the centralised approach to the Security Function as well as ignoring the commonality of terms and conditions of employment for all Security Officers as evidenced by induction information packs, contracts of employment and career progression for those working in Customer Operations; and it would also lead to inconsistencies in terms and conditions for Security staff carrying out the same role at the Airport. Such divergence would erode goodwill, collaboration and effective team working, in turn undermining the agility of the Employer’s security functions and speed of transit of passengers.

50) In conclusion, the Employer submitted that the organisational chart before the Panel did not tell the full story as the overlap between the roles of the Customer Service Officers and Terminal Front Officers and the roles of those the Union included in its revised proposed bargaining unit was significant. It was unworkable as far as the Employer was concerned to cherry pick parts of the organisational chart to form the appropriate bargaining unit. The workers shared the same rates of pay and all the roles had an emphasis on security. They also performed cross over duties at peak passenger periods and times of Airport distress. The Union’s revised proposed bargaining unit would have a fundamental effect in the way it would erode goodwill and create future divergence in that the recognition would be in place for a minimum of three years. The Employer’s position was that it made sense to have a bargaining unit encompassing those areas of overlap as the risk of not doing so would fundamentally challenge the Employer’s ability to manage. For these reasons it was clear that the Customer Service Officers and Terminal Front Officers should be included in the bargaining unit. It was a very recent change on the Union’s part to include the Night Campus Security Officers but, if the Panel included these workers in the determined bargaining unit, then the Employer’s position was that the CCTV Security officers should also be included in the bargaining unit. These workers were on the same core terms and conditions as the Night Campus Security Officers so it was the Employer’s contention that it would make no sense to exclude them.

51) Finally, the Employer referred the CAC to its general duty in paragraph 171 of the Schedule. The CAC must have regard to the object of encouraging fair and efficient practices and arrangements in the workplace when applying the provisions of the Schedule. The Employer submitted that establishing a collective bargaining unit consisting only of Aviation Security Officers, Campus Security Officers and Night Campus Security Officers would be contrary to the CAC’s general duty and would be inconsistent with the workplace arrangements and processes currently in place.

6. Considerations

52) The Panel’s decision has been taken after a full and detailed consideration of the views of both parties as expressed in their written submissions and as clarified and amplified at the hearing. This was particularly important given the change in both parties’ positions as to the bargaining unit they each believed appropriate and the detailed discussions which took place at the hearing in response to the Panel’s questions to the parties as to their position in relation to the original bargaining unit and their views as to what should constitute the alternative appropriate bargaining unit.

53) The Panel is required, by paragraph 19(2) of the Schedule to the Act, to decide whether the proposed bargaining unit is appropriate and, if found not to be so, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. Paragraph 19B(1) and (2) of the Schedule state that, in making those decisions, the Panel must take into account the need for the unit to be compatible with effective management and the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need. The matters listed in paragraph 19B(3) of the Schedule are: the views of the employer and the union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and the location of workers. Paragraph 19B(4) of the Schedule states that, in taking an employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that it considers would be appropriate.

54) The Panel must also have regard to paragraph 171 of the Schedule which provides that “[i]n exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned.”

55) The Panel’s first responsibility is to decide, in accordance with paragraph 19(2) of the Schedule, whether the Union’s proposed bargaining unit is appropriate. Paragraph 2(3) of the Schedule states that ‘[r]eferences to the proposed bargaining unit are to the bargaining unit proposed in the request for recognition’. In this case the bargaining unit proposed in the request for recognition was described as “Aviation Security Officers [and] Campus Security Officers”. That the Union is no longer supporting this bargaining unit does not alter the fact that under the terms of the Schedule the originally proposed bargaining unit remains the starting point as far as the statutory procedure is concerned. Having said that, the bargaining unit originally proposed by the Union before the introduction of the Night Campus Security Officer role is clearly not appropriate given that these workers are excluded for no reason other than the timing of the creation of that role. If the role had been in place at the time of the Union’s formal request and subsequent application to the CAC, then it is clear to us that the Union would have extended its proposed bargaining unit or definition of the workers comprising the proposed bargaining unit to encompass these workers. The Night Campus Security Officers perform the same role as the Campus Security Officers albeit at night rather than during the day and their terms and conditions are, in the main, identical. Clearly there would be some difference in their terms of employment given the unsocial hours during which these workers are on duty but this is not sufficient, in our view, to justify their exclusion from the proposed bargaining unit. For this reason the Panel finds that the original bargaining unit of Aviation Security Officers and Campus Security Officers is not an appropriate bargaining unit as is in any event consistent with the Union’s own submissions proposing a revised bargaining unit.

56) Having addressed the Union’s original bargaining unit and concluded that it is not appropriate, the Panel must determine how it will proceed. Paragraph 19(3) of the Schedule states that, if the Panel decides that the proposed bargaining unit is not appropriate, then it must also decide a bargaining unit that is appropriate. That the Panel’s task is expressed in these terms indicates to the Panel that its task is not to attempt to find the optimum bargaining unit but one that is appropriate. Having decided that the bargaining unit originally proposed by the Union is not appropriate as it excludes the Night Campus Security Officers the Panel considered to the alternatives put forward by the parties on an equal footing. Our reason for taking this approach is that the Union’s originally bargaining unit was given primacy under the provisions of the Schedule but this primacy no longer applies once the originally proposed bargaining unit is determined not to be appropriate - accordingly, the alternative unit now argued for by the Union receives no priority under the terms of the Schedule. The Panel will therefore treat the bargaining units now argued for by the parties on the same basis in arriving at our determination whilst at the same time conscious that our responsibility is not to identify the most appropriate bargaining unit.

57) The Union’s revised proposed bargaining unit consists of the three roles of Aviation Security Officers, Campus Security Officers and Night Campus Security Officers. The Employer’s proposed bargaining unit consists of Aviation Security Officers, Campus Security Officers, Customer Service Officers and Terminal Front Officers and if the Panel accepts the Union’s submission that it is not appropriate to exclude the Night Campus Security Officers - because of their shared characteristics and commonality of terms with the Campus Security officers - the CCTV Security Officers.

58) The Panel sought assistance from the Union’s application as to the reasons why it had originally selected its proposed bargaining unit to see if this could provide assistance. The Union stated in its application that it had chosen its original bargaining unit because that was where its membership density was strongest and that the workers were easily identifiable as a separate group as they all shared the same level of training, namely Level 1. That the Union’s membership density is strongest in one particular area is not a determinative factor that the Panel can take into account under the terms of the Schedule and we heard during the course of the hearing that Level 1 training was not limited to those workers with the designation ‘Security’ in their job title.

59) The Panel has reminded itself that its task is to determine what constitutes an appropriate bargaining unit and not to adjudicate per se between the parties’ competing contentions. The Panel has also not taken into account in its deliberations the Union’s previous recognition application some years ago which is historic and in our view is of no assistance to the determination of the issue of the appropriate bargaining unit in this case, not least given that it is for the Union to decide for what bargaining unit it seeks recognition. Moreover, the factors of existing national and local bargaining arrangements and the location of workers were not relevant to the Panel’s decision. There are no relevant local bargaining arrangements, the Employer’s current arrangements being no more than consultative. All the relevant workers work at the same location of London City Airport, the only nuances being that the CCTV Security Officers are separately located albeit still on the Airport site and the Terminal Front Officers, as their title suggests, operate in relation to the public entrances to the Airport.

60) In the Panel’s assessment, the question in this case has come down in essence to whether and, if so, how far the net should be cast outside functions that are formally described by the Employer as security functions in order to determine the appropriate bargaining unit in terms of what is compatible with effective management. To an extent this has entailed a separate assessment of each category of workers apt for consideration as part of the bargaining unit as part of the process of the Panel forming an overall view of what bargaining unit is compatible with effective management. The Panel recognises that its analysis is necessarily to an extent iterative and cumulative, reflecting the way in which the parties’ arguments have developed as this matter has proceeded, and has assessed each category of worker in determining whether it is appropriate to include within the bargaining unit as well as standing back by way of an overview to satisfy ourselves with the benefit of our industrial experience that we have determined an appropriate bargaining unit.

61) The Panel accepts that for the Union to seek to expand its originally proposed bargaining unit to include the newly created category of Night Security Officers and therefore to argue in effect that its originally proposed bargaining unit is (no longer) appropriate is entirely legitimate and indeed appropriate in terms of ensuring that the bargaining unit does not become fragmented as between categories of worker performing essentially the same security functions, albeit at different times.

62) The next question to consider is whether the CCTV Security Officers should be included within the appropriate bargaining unit. The CCTV Security Officers are part of the security function at the Airport and their terms and conditions including their rates of pay are in line with the Night Campus Security Officers. In light of their security functions and similarity of terms with the Night Security Officers which we consider should be included in the bargaining unit, the Panel has concluded that the CCTV Security Officers should also be included within the appropriate bargaining unit. For those workers not to be included in the bargaining unit would risk a small fragmented bargaining unit - there only being 12 such workers – and it is in the Panel’s view clearly appropriate and compatible with effective management for the bargaining unit to comprise all those workers clearly associated with the security function.

63) The further question which then needs to be determined is whether or not it is appropriate to include in the bargaining unit those workers that have a degree of a security role to a greater or lesser degree - as contested by the parties, namely the Terminal Front Officers and Customer Service Officers (whose main priorities are argued by the Union to be more customer orientated).

64) The Employer argued that that the Customer Service Officers and Terminal Front Officers should be included in the bargaining unit on the basis that they have to have enhanced security clearance in order to carry out their role. They are workers whose role, according to the Employer, focused primarily on security in that they would be the eyes and ears of the Airport observing passengers around the terminal and assessing any possible threats. The Panel was told that the intention was that all Customer Service Officers and Terminal Front Officers would be trained to Level 1 which was one of the identifiers originally used by the Union to define its bargaining unit. The Employer stated that there was no managerial, administrative or organisational basis for excluding the Terminal Front Officers and Customer Service Officers from the bargaining unit to be determined by the Panel. It submitted that these workers shared the same terms and conditions of employment other than for minor differences in working hours that reflected the Employer’s operational needs. They underwent the same induction process, were paid the same rates of pay as the Aviation and Campus Security Officers and performed roles that focused primarily on the protection of the Airport and passenger. The Employer argued that the Terminal Front Officers and Customer Service Officers required the same skillset as the Campus Security Officers especially the ability to identify possible threats. The Employer also submitted that there would be a degree of interchangeability in roles between the Campus Security teams and the Customer Service Officers and Terminal Front Officers at peak passenger times. The Employer argued that, if the Customer Service Officers were to be excluded from the bargaining unit, this would prevent such flexibility.

65) The Union on the other hand submitted that the role of Customer Service Officer focused on customer service rather than on security and, in reality, the two roles shared very few common characteristics. The same point applied to the Terminal Front Officers and, whilst the Union accepted that those workers had some responsibility for the security of the Airport, it argued that this was no more than would be expected from any member of the public in that they would report any suspicious activity to a member of the Campus or Aviation Security Team for them to take the appropriate action.

66) As for the Employer’s submission that all workers would eventually be Level 1 trained, the Union urged the Panel to look at the current position rather than basing its decision on what may or may not happen in the future. The Employer’s Welcome Pack showed that the two roles were distinct from the security roles and that any degree of similarity in function was so minor that it did not warrant the inclusion of these in the determined bargaining unit. The Union also brought to the Panel’s attention that, whilst the Terminal Front Officers did report to the Head of Security and Compliance, the Customer Service Officers had different reporting lines and came under the Head of Customer Service.

67) Having considered the arguments put forward by the parties, the Panel takes the view that to include the Terminal Front Officers in the determined bargaining unit would be compatible with effective management, not least given that they come under the same reporting structure as the Aviation, Campus, Night Campus and CCTV Security Officers, their role entails a degree of security related work and to exclude them could create a small fragmented bargaining unit given that the Terminal Front Officers are only 7 in number.

68) The further and final question in determining an appropriate bargaining unit is whether or not the Customer Service Officers should be included. In reaching its decision in this regard the Panel has taken into account the competing arguments of the parties as described above. The Employer’s focus on the impact on the performance of security functions at the Airport on the inclusion or otherwise of the Customer Services Officers in the bargaining unit risked overemphasising the relevance of the performance of security and other functions to the Panel’s determination of the applicable statutory test, not least as it was far from clear why the involvement of the Union in negotiating the subject matter of statutory trade union recognition – pay hours and holidays – would necessarily or be likely to impede workers complying with their contractual responsibilities in terms of performing their day to day activities at the Airport.

69) In the Panel’s view, the arguments in favour of including the Customer Services Officers in an appropriate bargaining unit are that they enjoy similar terms of employment to the employees otherwise determined to fall within the bargaining unit, to an extent they do have security aspects to their role, there is clearly a degree of interchangeability in roles in some respects - especially where passengers’ luggage and ingress through security and baggage checks are concerned - the Employer wishes them to be included within the bargaining unit and the Customer Services Officers are relatively small in number – some 31.8 workers – compared with the number of workers otherwise falling within the scope of the bargaining unit –some 325 plus however many Night Security Officers are eventually recruited – thereby presenting the risk of their constituting a (relatively) small fragmented bargaining unit. Also, it is clear that the Employer is, by virtue of its ongoing training programme, increasing interchangeability of functions across Security and Customer Services functions. In the Panel’s view the arguments against including the Customer Services Officers are they have a different reporting line than the reminder of the bargaining unit, the Union wishes them not to be included in the bargaining unit and their focus, at least on the Union’s case, is not principally on security.

70) Taking all the relevant factors into account as well as the parties’ oral and written submissions, the Panel has concluded that the Customer Services Officers should be included in an appropriate bargaining unit on the basis that to do so is compatible with effective management. It has reached this decision on the basis that to include the Customer Service Officers, along with the Terminal Front Officers and CCTV Security Officers, in the bargaining unit ensures a bargaining unit which reflects reasonably common employment terms and overlapping and/or adjacent functions across the various categories of worker, as they currently are and as they are developing and avoids the risk of fragmentation of bargaining units.

71) The Panel is also satisfied that its decision is consistent with the object set out in paragraph 171 of the Schedule as it will involve fair and efficient practices and arrangements in the workplace.

7. Decision

72) We have therefore decided that the appropriate bargaining unit in this case comprises Aviation Security Officers, Campus Security Officers, Night Campus Security Officers, CCTV Security Officers, Terminal Front Offices and Customer Services Officers.

73) As the appropriate bargaining unit differs from the proposed bargaining unit, the Panel will proceed under paragraph 20(2) of the Schedule to decide if the application is invalid by reference to the terms of paragraphs 43 to 50.

Panel

Mr Charles Wynn-Evans, Panel Chair

Mr Len Aspell

Mr Paul Noon OBE

17 February 2020

8. Appendix

Names of those who attended the hearing:

For the Union

Mr Ruaraidh Fitzpatrick - barrister

Mr Adam Lambert - Unite Legal Officer

Mr Aziz - former rep and LCY staff

Ms Mercedes Sanchez - Unite Regional Officer

Ms Zanna Koreskova - Aviation Security Officer

For the Employer

Mr Michael Spiers - Chief People Officer

Ms Alison FitzGerald - Chief Operating Officer

Mr Ian Cowie - Customer Operations Director