Decision

Bargaining Unit Decision

Updated 4 November 2020

Case Number: TUR1/1116(2019)

09 September 2019

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DETERMINATION OF THE BARGAINING UNIT

The Parties:

United Voices of the World

and

OCS Group UK Limited

1. Introduction

1) United Voices of the World (the Union) submitted an application to the CAC dated 7 June 2019 that it should be recognised for collective bargaining purposes by OCS Group UK Limited (the Employer) in respect of a bargaining unit comprising “The cleaners and security guards employed by OCS Group UK Limited working on the contract at Ministry of Justice, 102 Petty France, London SW1H 9AJ”. The application was received by the CAC on 11 June 2019 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted a response to the CAC dated 17 June 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 Roger Roberts and Mr Paul Talbot. Mr Talbot was subsequently replaced by Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Sharmin Khan but for the purposes of this decision was Linda Lehan.

3) By a decision dated 12 July 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. The hearing was held on 27 August 2019 and the names of those who attended the hearing are appended to this decision.

4) The Panel is required, by paragraph 19(2) of Schedule A1 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. Paragraph 19B(1) and (2) 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) 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) 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.

2. Matter clarified during the hearing

5) The proposed bargaining unit. In answer to a question from the Panel Chair, the Union stated that its proposed bargaining unit included porters and receptionists. The Employer stated that it had not included porters in the list of workers it had supplied for the purposes of the membership and support check at the acceptance stage ^{[footnote 1]} and had included only those receptionists who carried out security duties. After discussion with the parties it was agreed that the Union’s proposed bargaining unit could be clarified to read as “All workers other than management and administrative staff employed by OCS Group UK Limited working on the contract at Ministry of Justice, 102 Petty France, London SW1H 9AJ”. The Employer stated that there were two administrators and three managers at 102 Petty France: a Building Manager; Cleaning Manager; and Security Manager.

6) The Ministry of Justice (‘MOJ”) Estates Directorate (also known as the Facilities Directorate). The Employer explained that prior to January 2018 each government department dealt with facilities management itself. In January 2018 the government formed a central facilities management directorate, the MOJ Estates Directorate, which contracted on behalf of a number of government departments with the Employer to provide facilities management. The contract covered 191 sites, all of which were south of Peterborough. The Employer dealt only with the MOJ Estates Directorate itself although the Directorate consulted the individual government departments, known as “stakeholders” in this context, over matters which had cost implications for those departments. The Employer said that there were approximately 635 staff in total on the 191 sites. The Employer said that the 191 sites were divided into three regions; the “Westminster region”, consisting of nine sites; “Region One”; and “Region Two”. The Employer exhibited a table which indicated that three of the nine sites within the Westminster region fell within the MOJ HQ: 102 Petty France; Clive House; and the Wales Office. The table also indicated that the number of ‘blue collar staff’ ^{[footnote 2]} employed at each of these sites was 97; 31; and four respectively. The previous facilities management supplier for these three sites was Amey. The remaining six sites were Whitehall 3 (Department of International Trade: 49 staff employed); Whitehall 55 and Sanctuary Buildings (Department for Education: total of 120 staff employed); Attorney General (Attorney General’s Office: 19 staff employed); and QEII and Tottenham Court Road (Department for Culture, Media and Sport: total of 43 staff employed) [^3]. The previous facilities management supplier for those sites was Interserve, with the exception of Attorney General, where it was Apleona.

7) Determination of terms and conditions of employment. The Employer said that its contract with the MOJ Estates Directorate, together with a couple of other contracts, were covered by its ‘government division’ which managed terms and conditions of employment across each contract. Staff who had been ‘TUPE’d over’ from previous employers remained on their previous terms and conditions; all those employed since January 2018 other than senior management were employed on the terms and conditions contained in the Statement of Terms of Employment which were set for the whole of the Employer’s UK operation. The Employer exhibited this document at the hearing. The Employer said that all staff covered by the Statement of Terms of Employment had the same holiday entitlement but basic hours, and the distribution of those hours, could vary according to job function. The Employer said that management and administrative staff were employed on a salaried basis; other staff were hourly paid. The Employer said that staff pay levels could vary according to what the stakeholder was willing to pay. The Employer said that it would need to go to the MOJ Estates Directorate over significant changes to pay; whether it would need to do this for changes to holidays or hours would be a question of degree. Contrary to statements in its written submission [^4} the Employer confirmed at the hearing that was no collective bargaining at national level. The Employer said that there were negotiations with UNITE covering eight individuals at seven different sites at the National Probation Service following a TUPE transfer.

3. Summary of the Union’s submissions

8) The Union contended that its proposed bargaining unit was compatible with effective management. The Union said that in reality collective bargaining with the Employer required input from the client, the MOJ Estates Directorate, which in turn consulted the relevant stakeholder department over costs. The Union said that where more than one stakeholder department was involved this would take a considerable amount of time whereas agreeing changes within its proposed bargaining unit, where there was a single department, would be a much less complicated process. The Union said that it would be impossible for it to get statutory recognition across the 191 sites covered by the Employer’s contract with the MOJ Estates Directorate which was the Employer’s preferred bargaining unit. The Union said that, with 635 workers employed by the Employer at these 191 sites, this averaged three workers per site and it was not feasible for the Union to organise across all these sites. The Union said that there were many more staff at 102 Petty France than the average number employed at individual sites across the Employer’s contract and it was the largest site in the Westminster region. Referring to the desirability of avoiding small fragmented bargaining units, the Union said that ‘small’ was a relative term and that following the Employer’s on-boarding process the bargaining unit would consist of 73 workers ^{[footnote 5]}. The Union said that it appreciated that Article 11 of the European Convention on Human Rights did not grant a right to statutory recognition but said that it was important that workers with protected characteristics, which many of these workers had, should have equal recourse to statutory recognition.

9) The Union said that terms and conditions of employment at each of the 191 sites varied and that there were local arrangements with UNITE at some sites. The Union pointed to differing rates of pay on different sites even within the Westminster region; workers on the Deaprtment for Education sites, for example, received the London Living Wage whereas those within its proposed bargaining unit received £9 per hour. The Union said that the workforce at 102 Petty France was stable and drew attention to the Employer’s ability to provide a list of workers for the purposes of the membership and support check referred to in paragraph 5 above.

10) The Union disputed the Employer’s contention that staff at 102 Petty France had never been dealt with separately. The Union exhibited a witness statement by a member of its Executive Committee and copies of documents which the Union said supported its submission that 102 Petty France had been the specific subject of discussions and negotiations between the parties. The Union also drew attention to paragraph 5 of the Employer’s response to the Union’s application which read as follows:

In respect of the site at 102 Petty France, Westminster, London the Company employs 70 employees (a further 10 staff are currently going through the on-boarding process which will take the total number of staff to 80) which comprises of Management, Administration, Security, Receptionist, Porters, Concierge and Cleaning Staff. We propose the bargaining unit should not exclude any particular work group as this could be detrimental to the employees outside of the bargaining unit.

The Union contended that this showed that the Employer considered it manageable to negotiate in respect of Petty France in isolation; that had it thought otherwise it would have said so; and that the Panel should give considerable weight to this.

11) The Union submitted that 102 Petty France had been treated as a distinct unit since 2018. At the hearing the Union drew attention to an email dated 3 January 2018 from an Amey Account Manager at MOJ HQ, 102, Petty France under the heading “Cleaners call for a Living Wage at Ministry of Justice”. The Union contended that the fact that there was a specific Account Manager at this location showed that workers at that site had been dealt with separately. The Union further pointed to an email from Amey to the Union on 22 January 2018 which it contended referred to the Union’s concerns about pay and conditions at 102 Petty France and the commitment from Amey to provide the MOJ with cost information regarding the proposed uplifts. The Union also referred to emails between February-April 2018 regarding meetings between the Union and the Employer’s HR Business Partner and its Operations Director and an email from the HR Business Partner to the Union dated 11 March 2019 where the outcome of a meeting on 6 March 2019 was summarised, including commitments to review workload and the use of agency staff and to consider granting block four-week annual leave on an individual basis. The Union said that there had also been an undertaking to put the costings of a pay uplift to the client and that commitment had clearly been referring to 102 Petty France not the MOJ contract as a whole. The Union said that it had never been suggested by the Employer that it would be impossible, impractical or unfair to reach a settlement regarding terms and conditions in relation to a single category of worker at 102 Petty France or in relation to that site alone. The Union said that the Employer’s agreement to meet the cost of security workers’ Security Industry Authority Licences as previous contractors had done was further evidence of collective bargaining specifically at 102 Petty France. The Union said that the increase in pay for staff at Petty France to £9 per hour had been a response to industrial action at that site and that the Employer had demonstrated that it could negotiate separately for staff at that site and for the categories of staff covered by the Union’s proposed bargaining unit.

12) The Union submitted that the workers in its proposed bargaining unit had a great deal in common, sharing close to statutory minimum terms and conditions and hourly rates of pay and working long and unsocial hours. The Union said that these workers had been joined together in a concerted industrial dispute for better terms, including concerted industrial action, for almost a year. The Union said that management and administrative staff were likely to have different terms and conditions; it was not clear that they shared the characteristic of being first generation migrants with distinct leave requirements; and were not, therefore, within its proposed bargaining unit. The Union said that it had a close relationship and considerable history with workers at 102 Petty France and was well placed to conduct collective bargaining on their behalf.

4. Summary of the Employer’s submissions

13) The Employer submitted that the Union’s proposed bargaining unit was not appropriate, not being compatible with effective management, for four main reasons: the Employer’s management structure; centralised determination of terms and conditions of employment; centralised policies and procedures; and staff site flexibility.

14) The Employer submitted that the Union’s proposed bargaining unit was too fragmented both by location, being confined to 102 Petty France, and by function/job role in excluding administrative staff. The Employer said that there was a risk that if the Union’s proposed bargaining unit were to be regarded as appropriate this would lead to separate bargaining units for administrative staff at 102 Petty France; cleaners at Sanctuary Buildings etc. In answer to a question from the Panel Chair the Employer acknowledged that there was no current demand for recognition at other sites but contended that if there was statutory recognition at 102 Petty France this could have a snowball effect.

15) The Employer said that there was nothing to allow negotiation at site level within its management structure and that local management had no role in relation to levels of pay. The Employer said that one member of its HR staff was allocated to the MOJ Estates Directorate contract and the HR Business Partner dealt with the whole of its government division. The Employer said that the Cleaning Manager and Security Manager at 102 Petty France both reported to the Building Manager. The Employer said that the Cleaning Manager and Security Manager dealt with day-to-day delivery operations including payroll and rostering; they could deal with first level disciplinary matters but were not empowered to dismiss staff. The Employer said that the Cleaning Manager and the Security Manager were responsible for all nine sites within the Westminster region; the Building Manager was responsible for Clive House and the Wales Office in addition to 102 Petty France. The Employer said that regional managers had no fiscal responsibility.

16) The Employer acknowledged that its predecessor, Amey, would have treated 102 Petty France as a discrete unit but said that this preceded the MOJ Estates Directorate and that emails between the Employer and the Union in the early months of its contract with the MOJ Estates Directorate were dealing with issues raised under Amey and were not a negotiation with the Union. The Employer said that it would not make decisions on issues such as holidays or payment for a Security Industry Authority licence across a single site. The Employer said that the Union’s ballots for industrial action had been across three sites: 102 Petty France, Clive House and the Wales Office. The Employer said that it had increased wages to £9 per hour as a result of an ongoing dialogue with staff and to address attrition rates and said that no staff within the Westminster region were paid less than £9 per hour. The Employer said that the reference to a “Local Engagement Agreement” in its email to the Union dated 11 March 2018 was intended to cover operational matters such as where grievances should be raised and was not intended to cover changes to substantive terms. The Employer said that it was establishing staff forums as a form of staff engagement and that staff at 102 Petty France had four representatives covering cleaning, security, portering and reception. The Employer said that staff forum representatives met the regional manager and operations delivery manager informally on a monthly basis and that any concerns about operational matters, such as shift patterns, could be raised there.

17) The Employer submitted that no weight should be placed on the comments about the bargaining unit in paragraph 5 of the Employer’s response to the Union’s application set out in paragraph 10 above. The Employer referred to the statement at the end of the response form which reads as follows:

Please note that the information on this form will be used by a CAC Panel in deciding only whether a union’s application should be accepted. In view of this, question 5 only need (sic) to be answered briefly as both parties will be given an opportunity, at the next stage in the statutory process, to present their detailed comments on the appropriate bargaining unit, should the application be accepted by the CAC.

The Employer said that it had not considered the issue of the appropriate bargaining unit fully at that stage; it had merely been addressing the question of excluded staff.

18) The Employer said that pay increases were determined by its Board at central level and were applied across all divisions. The Employer said that levels of pay for staff covered by the MOJ Estates Directorate contract could vary depending on what the stakeholder was prepared to agree to and it could not disagree with the statement by the Union that there were vast differences in pay across the Westminster region with the Department for Education, for example, paying the London Living Wage. The Employer said that all three of the MOJ HQ sites – 102 Petty France, Clive House and the Wales Office – were bunched together for decisions on pay. In answer to a question from the Panel the Employer said that at 102 Petty France the majority of staff had been ‘TUPE’d over’ with around 20% being new recruits. The Employer maintained that discussions with the Union in 2018 related to all three sites, not just Petty France, and that until 2019 there had been separate discussions for cleaners and for security workers respectively covering all three sites. The Employer said that its employment policies and procedures were determined at a central level by its HR Department. The Employer said that all staff had a mobility clause in their contract although in practice mobility occurred within rather than between regions. The Employer said that mobility did occur in practice for staff within the Union’s proposed bargaining unit, for example to cover shortages or for overtime, and that it wished to increase this practice to avoid the use of agency staff. The Employer said that staff who worked at a site where the rate of pay was higher than their contractual rate would receive the higher rate when doing so but those working at a site where the rate was lower would continue to receive the higher rate of pay,

19) The Employer said that its primary submission was that the appropriate bargaining unit was all workers excluding managers covered by its contract with the MOJ Estates Directorate. The Employer said that the purpose of its contract with the MOJ Estates Directorate had been to bring 191 sites together under one umbrella with a single HR function and there was no reason why collective bargaining could not cover all 191 sites. The Employer acknowledged that there was some variation in staff terms and conditions because of TUPE but said that this would always be the case in relation to outsourcing and accepting a small bargaining unit would lead to further fragmentation. The Employer said that if the Panel did not accept its primary submission, the Employer’s secondary submission was that the bargaining unit should cover all workers excluding mangers within the Westminster region of whom there were around 350. The Employer said there was no good reason to separate cleaners at 102 Petty France from those at Sanctuary Buildings, for example, other than pay and that it would not be compatible with effective management to consider them separately. The Employer’s third preference was a bargaining unit comprising all workers excluding managers at 102 Petty France, Clive House and the Wales Office; the Employer said that there was no reason to distinguish between them and that past negotiations with the Union reflected that. The Employer said that its fourth preference was all workers at Petty France excluding managers.

5. Considerations

20) 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 appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. Paragraph 19B(1) and (2) 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) 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) 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. 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.” 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 amplified at the hearing.

21) 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. The Panel notes that it cannot reject the Union’s proposed bargaining unit because it feels that a different unit would be more appropriate nor, in considering whether it is compatible with effective management, can it consider whether it is the most effective or desirable unit in that context ^{[footnote 6]}.

22) The Panel considers that the Union’s proposed bargaining unit is compatible with effective management. The Panel notes the Employer’s evidence that the terms and conditions of employment, and policies and procedures relating to employment, of workers at the 191 sites covered by its contract with the MOJ Estates Directorate are dealt with by its HR department at a central level. However the Panel also notes, as the Employer acknowledged, that there are considerable disparities in rates of pay across the nine sites within the Westminster region alone due to differences between the stakeholder departments as to what they are prepared to fund (no evidence was given about disparities with or between the remaining 182 sites). There are also disparities in terms and conditions of employment between staff for historical reasons owing to TUPE transfers although the Panel appreciates that these disparities may well diminish over time. The Panel notes the Employer’s evidence that the three MOJ HQ sites – 102 Petty France, Clive House and the Wales Office – are bunched together in relation to decision on pay and that the industrial action ballots of cleaners and security staff respectively organised by the Union in 2018 covered all three sites. The Panel can appreciate that a bargaining unit consisting of these three sites has its attractions given that these sites share a common stakeholder department and an immediate predecessor contractor, Amey. However, as stated in paragraph 21 above, the Panel’s role is not to decide whether another bargaining unit would be more appropriate than that proposed by the Union. The Employer gave as its fourth preference at the hearing a bargaining unit composed of all workers other than managers at 102 Petty France thus impliedly indicating that a bargaining unit confined to 102 Petty France could, if necessary, be managed effectively even if it was not its preferred outcome. The Panel independently shares this view on the basis of the evidence before it. The Panel further notes the Employer’s evidence that four representatives for a staff forum were chosen from workers at 102 Petty France rather than being derived from a broader amalgamated constituency which also included other sites. This suggests that workers at 102 Petty France are perceived by the Employer as a distinct group in this context. The Panel notes the Employer’s wish to encourage greater mobility of staff between sites within the Westminster region but also notes that workers are paid a higher rate, if appropriate, when they work at another site and does not consider that the Union’s proposed bargaining unit would inhibit flexibility. The Panel understands the Employer’s concerns about proliferation of bargaining units and the implications of such proliferation for effective management. However there is no evidence of any demand for the creation of any further bargaining units at other sites covered by the Employer’s contract with the MOJ Estates Directorate.

23) The Panel has considered the matters listed in paragraph 19B(3) of the Schedule, so far as they do not conflict with the need for the unit to be compatible with effective management. The views of the Employer and the Union, as described earlier in this decision, have been fully considered. In relation to existing national and local bargaining arrangements, it is common ground between the parties that there are no national bargaining arrangements. Evidence given at the hearing indicated that local arrangements are confined to a single bargaining unit covering eight individuals at seven different sites covered by a TUPE transfer, none of which include 102 Petty France. In relation to the desirability of avoiding small fragmented bargaining units within an undertaking, the Union’s proposed bargaining unit would be the sole bargaining unit within the 191 sites covered by the Employer’s contract with the MOJ Estates Directorate other than the small transferred bargaining unit referred to above. On the basis of the figures presented by the Employer at the hearing the Union’s proposed bargaining unit would cover 93 workers out of a total of 635, a figure that represents 14.6% of the workforce ^{[footnote 7]}. As stated in paragraph 22 above there is no evidence of any further demands for recognition elsewhere and as a consequence no evidence of a risk of fragmentation of collective bargaining. As far as the characteristics of workers are concerned, all those within the Union’s proposed bargaining unit are hourly paid, unlike managers and administrators who are salaried. All the workers in the proposed bargaining unit are based at a single location. The Panel has had regard to the object set out in paragraph 171 of the Schedule in reaching its decision.

6. Decision

24) The Panel’s decision is that the appropriate bargaining unit is that proposed by the Union, namely “All workers other than management and administrative staff employed by OCS Group UK Limited working on the contract at Ministry of Justice, 102 Petty France, London SW1H 9AJ”.

Panel

Professor Gillian Morris, Panel Chair

Mr Paul Noon OBE

Mr Roger Roberts

09 September 2019

7. Appendix

Names of those who attended the hearing on 27 August 2019:

For the Union

Richard O’Keeffe UVW Representative Petros Elia UVW Executive Committee Member Frank Magennis UVW Executive Committee Member

For the Employer

Paul Livingston Counsel Michelle Gleadhill HR Business Partner Peter Tierney Operations Director

1. Decision of 12 July 2019, paragraphs 16-21. ↩

2. At the hearing the Employer explained that this term referred to all staff other than the Building Manager[^3]: Figures here are for ‘blue collar staff’ : see note 2 above ↩

3. See, however, the more recent higher figure given by the Employer in paragraph 6 above. ↩

4. R (Cable and Wireless Services UK Ltd v Central Arbitration Committee [2008] EWHC 115 (Admin), Collins J at [9]. ↩

5. See paragraph 6 above, The figure of 93 is arrived at by deducting the Cleaning and Security Managers and the two administrators at 102 Petty France from the figure of 97 ‘blue collar staff’ given by the Employer. ↩