Decision

Acceptance Decision

Updated 10 June 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1261/2022

16 May 2022

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

Serco Ltd

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 18 March 2022 that it should be recognised for collective bargaining purposes by Serco Ltd (the Employer) for a bargaining unit comprising “all employees up to and including Supervisors on the London Borough of Hounslow Parking Services contract.” The location of the bargaining unit was given as Chiswick Town Hall, Chiswick, London W4 4JN and Bridge Road Depot, Pears Road, Hounslow, London, TW3 1SQ. The application was received by the CAC on 18 March 2022 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 25 March 2022 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 Chair established a Panel to deal with the case. The Panel consisted of Professor Gillian Morris, Panel Chair, and, as Members, Ms Janice Beards and Mr Robert Lummis. The Case Manager appointed to support the Panel was Joanne Curtis.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 1 April 2022. The application was stayed until 13 April 2022, and the stay subsequently extended until 25 April 2022, and further extended until 29 April 2022, to allow the parties the opportunity to reach a voluntary agreement. No such agreement having been reached by that date, the Union requested that the statutory process be resumed, and the acceptance period was extended until 17 May 2022 to allow 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 a request for recognition to the Employer on 4 March 2022. The Union said that the Employer had responded on 15 March 2022 rejecting the request. The Union added that the Employer had been unwilling to enter into negotiations with it. A copy of the Union’s request letter of 4 March 2022 was attached to the 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 “No”. 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 50,000. The Union stated that there were approximately 30 workers in the proposed bargaining unit, of whom 24 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 “following embarking upon a recognition campaign, Unite membership has significantly increased, by 2300%” (sic).

8) The Union stated that the reason for selecting the proposed bargaining unit was that all employees within the proposed bargaining unit were working under the same contract and undertaking work which was therefore distinct from the rest of the Employer’s workforce. The Union said that all employees within the proposed bargaining unit sat under the same reporting line in terms of management. The Union said that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement of which it was aware which covered any workers in the proposed bargaining unit the Union answered “No”.

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 18 March 2022.

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 4 March 2022. The Employer said that it had responded via email on 15 March 2022 confirming its rejection of the request and asking the Union to confirm if it wished to discuss further but had had no response to the email until 18 March 2022 when the Union said that it would be proceeding with the application to the CAC. The Employer stated that it had attached a copy of its email of 15 March 2022 to its response to the Union’s application, but this was not, in fact, attached. The Case Manager requested a copy of the email and this was supplied by the Employer on 28 March 2022. This email read as follows:

Thank you for your letter dated 4th March 2022 in which you detail a request for Serco to recognise Unite the Union for staff on the London Borough of Hounslow Parking Services contract.

After considering your request, please accept this email as confirmation that we are rejecting this initial request.

Please confirm should you wish to discuss further.

11) The Employer said that it had received a copy of the application form from the Union on 18 March 2022. 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 the proposed bargaining unit. The Employer said that the Union had requested recognition for all staff but that the groups that they had appeared to reference were not all the staff on the contract and 42 staff were employed at the location and levels indicated on the application. The Employer said that, following receipt of the Union’s request, it had not proposed that Acas be requested to assist. The Employer also said that in its email response to the request it had asked the Union if “they wished to discuss the matter further, but they elected not to.”

12) The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as defined 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 stated “Disagree – there have been no requests from the workforce within the unit identified by … the Union for recognition.” 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 “As above if the membership levels were as claimed I would have expected staff to be requesting recognition directly but there have been, to the best of my knowledge, any such requests” (sic).

14) The Employer answered “N/A” when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit and when asked if it had received any other applications in respect of workers in the proposed bargaining unit.

5. The membership and support check

15) To assist in 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. 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 their paid up members within that unit including their full names and dates of birth. It was explicitly agreed with both parties that to preserve confidentiality the respective lists would not be copied to the other party and that agreement was confirmed in a letter dated 4 May 2022 from the Case Manager to both parties.

16) The information requested from the Union was received by the CAC on 4 May 2022 and from the Employer on 9 May 2022. The Panel is satisfied that this 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 43 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 26 names. According to the Case Manager’s report the number of members of the Union in the proposed bargaining unit was 26, a membership level of 60.47%.

18) A report of the result of the membership and support check was circulated to the Panel and the parties on 10 May 2022 and the parties were invited to comment on the results by noon on 13 May 2022.

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

19) In an email to the Case Manager dated 13 May 2022 the Employer stated that it had no further comments to make. In an email to the Case Manager dated 13 May 2022 the Union also confirmed that it had no comments to make.

7. 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 Union made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule. The Panel is also satisfied, on the balance of probabilities, that the application was made in accordance with paragraph 11(2) of the Schedule. Paragraph 11(1) states that paragraph 11 applies if

(a) before the end of the first period the employer fails to respond to the request, or

(b) before the end of the first period the employer informs the union … that the employer does not accept the request (without indicating a willingness to negotiate).

The first period is defined in paragraph 10(6) as “the period of 10 working days starting with the day after that on which the employer receives the request for recognition”. The Panel does not consider that the Employer’s response to the Union’s request, set out in paragraph 10 above, indicated a willingness to negotiate on the part of the Employer. The Panel therefore considers that paragraph 11 applies.

22) The Panel is also satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42.

23) The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

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. The membership check conducted by the Case Manager (described in paragraphs 15-17 above) showed that 60.47% 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 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.

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 Panel has concluded that the level of union membership within the bargaining unit stands at 60.47%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union. The Panel has received no such evidence to the contrary in this case.

26) 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.

8. Decision

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

Panel

Professor Gillian Morris, Panel Chair

Ms Janice Beards

Mr Robert Lummis

16 May 2022