Decision

Acceptance Decision

Updated 5 May 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1213 (2021)

26 March 2021

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

Parkingeye Limited

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 3 March 2021 that it should be recognised for collective bargaining by Parkingeye Limited (the Employer) for a bargaining unit comprising “All Parking Attendants employed at the University Hospital of Wales, Heath Park, Cardiff, CF14 4XW”. The application was received by the CAC on 4 March 2021. The CAC gave both parties notice of receipt of the application on 4 March 2021. The Employer submitted a response to the CAC dated 11 March 2021 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 Sarah Havlin, Panel Chair, and, as Members, Mr Derek Devereux and Mr Michael Clancy. 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 18 March 2021. The acceptance period was extended to 31 March 2021 in order to allow time for a membership check to take place, for the Parties to comment on the subsequent report and 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 its request for recognition to the Employer on 22 December 2020. The Union stated that in a letter dated 7 January 2021 the Employer had rejected this request. A copy of the Union’s request and the Employer’s letter of 7 January 2021 were attached to the Union’s application.

6) 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 380. The Union stated that there were 5 workers in the proposed bargaining unit, of whom 5 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 all 5 employees employed in the proposed bargaining unit were in membership and it would disclose membership data requested by the CAC Panel to the Case Manager for any membership check.

8) The Union stated that the reason for selecting the proposed bargaining unit was because it incorporated the whole parking operation at the University Hospital of Wales, Heath Park, Cardiff and was therefore consistent with the effective management of the business.

9) The Union stated that the bargaining unit had not been agreed with the Employer. In answer to the question is there an existing recognition agreement which you are aware of, which covers any of the workers in the bargaining unit the Union answered ‘no’.

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 3 March 2021.

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 6 January 2021, but they were unsure when it was delivered as due to the coronavirus pandemic the office was not staffed. The Employer stated that a response was sent to the Union on 7 January 2021 confirming that they did not wish to negotiate and, as a minor typographical error was noted in the original response, they issued a corrected version on 8 January 2021 a copy of which was attached.

12) The Employer confirmed that it had received a copy of the Union’s application form together with enclosures from the Union on 8 March 2021. Again, due to the office not being staffed the Employer stated that it was unable to ascertain when it was actually delivered.

13) 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 and that it did not agree it. The Employer stated that until the application is ruled admissible, the question as to the appropriateness of the proposed bargaining unit does not arise and Parkingeye reserved its right to set out its position in this regard if the application was accepted and the question arose. The Employer confirmed that following receipt of the Union’s request it did not propose that Acas be requested to assist.

14) The Employer stated that it currently employed 314 workers and agreed that there were 5 employees in the Union’s proposed bargaining unit.

15) 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 did not have any information as to how many of the 5 employees in the proposed bargaining unit were members of the Union. The Employer stated that the Union had not provided any evidence of likely majority support for recognition within the proposed bargaining unit. The Employer stated that it had not received any direct contact from any of the individuals in the proposed bargaining unit seeking collective bargaining and no other evidence appeared to be relied on by the Union. The Employer stated that it had functioned adequately without a recognised union and the Company had well developed HR policies to grant all its employee’s suitable channels to raise concerns. The Employer said this was evidenced by the results of a recent survey across the business conducted in August 2020 which they went on to show results of.

16) The Employer confirmed that there was currently no recognition agreement in place covering any of the workers in the proposed bargaining unit nor was it aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit.

5. The Membership Check

17) 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 17 March 2021 from the Case Manager to both parties. The information from the Union was received by the CAC on 17 March 2021 and from the Employer on 18 March 2021. 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 5 workers in the proposed bargaining unit. The list of members supplied by the Union contained 5 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 5, a membership level of 100%.

19) A report of the result of the membership check was circulated to the Panel and the parties on 19 March 2021 and the parties were invited to comment on the result.

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

20) No comment on the result of the membership check was received from either party.

7. Considerations

21) 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.

22) 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.

8. Paragraph 36(1)(a)

23) 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.

24) The membership check conducted by the Case Manager (described in paragraphs 17 and 18 above) showed that 100% 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.

9. Paragraph 36(1)(b)

25) 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 24 above the level of union membership is 100%. 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 such evidence to the contrary was received in this case. 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.

10. Decision

26) For the reasons given above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mrs Sarah Havlin, Panel Chair

Mr Derek Devereux

Mr Michael Clancy

26 March 2021