5 September 2005
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:
AMICUS
and
bmi regional
Introduction
1. AMICUS (the Union) submitted
an application dated 4 August
2005 to the CAC that it should be recognised for
collective bargaining purposes by bmi regional (the Employer) for a bargaining
unit comprising “all Cabin Crew at bmi regional.” The stated location of the bargaining unit was
“Aberdeen,
East
Midlands
Airport,
Edinburgh,
Glasgow, Leeds
Bradford and Manchester.” This was received by the CAC on the 4 August 2005. The Employer submitted a response dated 12 August 2005 which was
received and copied to the Union by the CAC
on 15 August 2005.
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 Chris Chapman,
Chairman of the Panel, and, as Members, Mr Sandy Morrison and Mr Dennis Cameron. The Case Manager appointed to support the Panel
was Miss Sharmin Khan.
Issues
3. The Panel is required by paragraph 15
of Schedule A1 to the Act 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 of
Schedule A1 to the Act; and therefore should be accepted.
Views of the Union
4. In its application the Union stated that
it had made its request for recognition by a letter dated 4 July 2005. The Employer responded to its request by a
letter 7 July 2005 stating that
in its view the workers were happy with the representation they had through
existing arrangements. It also stated
that the proposed bargaining unit may be appropriate and stood at 126 workers
at the Union’s request. Copies of both letters were attached to the
application.
5. The Union declared
that there were 126 workers in the proposed bargaining unit of whom 64 were
members of the Union. The Union also stated
that a majority of the workers were already members of the Union and that a
recruitment campaign was in progress. In
its description of the proposed bargaining unit it clarified that no other
employees were subject to CAA rules and that
“All Cabin
Crew at bmi regional operate to strict Civil Aviation Regulatory guidelines and
as a result have to complete annual refresher training in relation to safety
and emergency practices. No other group
of employees, other than pilots, are required to adhere to these requirements.”
The Union finally stated
that the proposed bargaining unit had been agreed with the Employer and that
there was no existing recognition agreement which it was aware of that covered
any of the workers in its proposed bargaining unit.
Views of the Employer
6. In its response to the Union’s
application, the Employer confirmed that it had received the Union’s written
request for recognition on 5 July 2005 and that its
response was as the copy of its letter to the Union dated 7 July 2005 as provided by the Union with its
application. The Employer stated that it
did not agree the proposed bargaining unit before it received a copy of the
application form on 8 August 2005 but went on to state that it did now agree
the bargaining unit.
7. The Employer did not agree with the Union that the
majority of the workers in the proposed bargaining unit were likely to support
recognition. In its covering letter to its response the
Employer noted that other than the Union’s
application, it had not been approached by any workers requesting any type of
Union recognition. It went on to refer
the Panel to an existing method of representation of the workers in the
proposed bargaining unit where representatives were elected and negotiated with
Management on terms and conditions of employment. In its view this was proving to be effective
explaining that recent pay negotiations over a pay offer resulted in the offer
being overwhelmingly accepted by the membership to exemplify its point. As supporting evidence, the Employer supplied
a full copy of the “Memorandum of Agreement” for bmi regional and bmi regional
cabin crew. By a letter to the CAC (dated
19 August 2005), the Employer clarified for the Panel that it had provided a copy
of that agreement to demonstrate its argument that the majority of workers were
not likely to support recognition of the Union under paragraph 36 of the
Schedule and not as evidence that there was already in force an existing
collective agreement under which a union was recognised to bargain collectively
on behalf of workers in the proposed bargaining unit under paragraph 35 of the
Schedule.
8. The Employer did not agree with the Union that there
were 126 workers in the proposed bargaining unit and stated that there were 130
workers in the proposed bargaining unit due to new joiners. The Employer did not specifically agree or
disagree with the level of the union membership within the proposed bargaining
unit as stated by the Union in its
application but explained that staff levels changed according to operational
needs and attrition levels. It also
stated that the Union may have confused some
personnel with other sister companies within the bmi group. The Employer also stated (in its covering
letter to the response) that though it did question the level of membership
claimed by the Union, in the event the figures were accurate, in its view such
a level would have been recruited very recently and it therefore doubted
whether those members appreciated the full scope of recognition of the
Union.
Membership and Support Check
9. To assist in the determination of
the admissibility criteria specified by Paragraph 36 (1) of the Schedule, the
Panel requested that an independent check of union membership in the proposed
bargaining unit should be conducted by the Case Manager.
10. A list of Union members in the
proposed bargaining unit was provided by the Union on 19 August 2005. The Employer provided a list of workers in
the proposed bargaining unit on 22 August
2005. It was agreed
that to preserve confidentiality the information provided by the Parties would
not be copied to the other Party. The
arrangements for the membership and support check were confirmed in a letter to
both Parties on 17 August
2005. The Panel
extended the 10 day acceptance period to 26 August 2005 to allow time for the membership and
support check report to be produced and circulated. The Panel further extended the period for
acceptance until 7 September
2005 to enable the Parties to comment on the membership
and support check.
11. The Employer provided a list of 130
names. The Union provided a list of 64 names of
members. The Case Manager carried out a
comparison of the lists and the results of the membership check were produced
as a numerical report. The membership
check established that 60 workers in the proposed bargaining unit were Union
members, resulting in a membership level of 46.15%. The Membership Check Report was circulated to
the Parties for their comments on 24 August 2005.
Union’s comments
12. The Union first stated
in its response to the membership check that the report showed that 46.15% were
members of the proposed bargaining unit and that it clearly passed the test set
out in paragraph 36(1)(a) which requires that there is at least 10% membership
within the unit.
13.
The Union also asserted that a majority of
workers in the proposed bargaining unit would be likely to favour recognition
for several reasons. Firstly, in respect
of the level of membership as established by the membership check, at 46.15%, in
its view this was a high level and was a strong indication that given the
opportunity to vote in a ballot, the majority of workers would be likely to be
in favour of recognition. Secondly it
had achieved this level of membership with no formal access to the
workers. The Union contended
that it was reasonable to assume that with access, it would be able to persuade
other workers to vote in favour of recognition.
Thirdly since its members list was submitted to the CAC for the
membership check, it had recruited a further 10 members (evidence of which was
available on request), and this demonstrated that desire for recognition was still
growing.
14. Finally the Union acknowledged
the Employer’s contention that recruitment of members could only be recent but
argued that the membership list provided to the CAC was confidential and the
CAC would have noted that recruitment dates in fact spanned a period of
time. It further reasoned that any
recent recruitment was a direct response to the Union’s
application for recognition and in its view this was a clear expression of
approval for the purpose of that application.
Employer’s Comments
15. The Employer mainly reiterated the issues it
raised in its response to the application but brought to the Panel’s attention
two further points. Firstly, that the
negotiating body already in existence empowered elected representatives to
negotiate on a broad spectrum of matters that exceeded those that were
statutorily required if the Union was recognised as stated
in the Memorandum Agreement supplied to the CAC. The Employer also had reason
to believe that the recent recruitment drive by the Union offered ideas to workers
that may be undeliverable by the Union.
16. Secondly, at the meeting with the elected Cabin Crew
Council held on 24 August 2005 there was concern that should the Union be
recognised, the Company would have no alternative to disband the current Cabin
Crew Council and negotiations would therefore be confined to those that were
statutory required by the relevant legislation.
Finally the representatives maintained its views that most of the
workers had no concept of what recognition of the Union meant.
Considerations
17. In deciding whether to accept the
application the Panel must decide whether the admissibility and validity
provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted
by the Parties in reaching its decision.
The Panel is satisfied that the Union made a valid request to the
employer within the terms specified in paragraphs 5 to 9 of the Schedule as the
Union provided a copy of the request made to the Employer on 4 July 2005 to
recognise it for collective bargaining in respect of the proposed bargaining
unit described in paragraph 1 of this decision.
The request was made in writing and identified the Union, the
proposed bargaining unit and stated that the request was made under the
Schedule. The Panel is also satisfied
that the application is not rendered inadmissible by any of the provisions in
paragraphs 33 to 35 and 37 to 42 and is in accordance with paragraph 12 (2) of
the Schedule.
18. The remaining issue for the Panel to
address then is whether the admissibility criteria of paragraph 36 (1) of the Schedule
are met.
19. In accordance with paragraph 36 (1)(a) of
the schedule the Panel must determine whether members of the Union constitute
at least 10 % of the workers in the Union’s proposed
bargaining unit. The Panel finds that in
considering the evidence submitted by the Parties and the results of the
membership check, the first criterion in paragraph 36 (1)(a) is satisfied as
the figures show that 46.15% of the proposed bargaining unit are members of the
Union. Accordingly the Panel is
satisfied that the 10% test is met.
20. According to paragraph 36(1)(b) of the
Schedule, the Panel must assess whether a majority of the workers in the Union’s proposed
bargaining unit would be likely to favour recognition of the union. The Panel at this stage of the process is
obliged under the Schedule to perform its duty to assess support and not
membership of the Union by deciding whether the
majority are ‘likely’ to support the application as specified by paragraph
36(1)(b). To this end the Panel is
satisfied that this admissibility criterion has been met on the following basis:
21. The Panel reminds itself that if a forum in which staff
representatives are elected to negotiate with management already exists within
a Company, there is no general evidence to suggest that it could not co-exist
with a Union that is recognised within that organisation. The Panel also reminds itself that should a
Union gain statutory recognition, a collective agreement is not necessarily
confined to the core issues of Pay, hours and holiday but can be extended to
cover additional matters as agreed by the Parties.
22. The Panel accepts that the Employer has
demonstrated that there is already within the company a forum in which workers
in the proposed bargaining unit are represented by elected representatives
namely the ‘Cabin Crew Council’ who negotiate with management on matters of pay
and conditions of employment. It is
noted that the Memorandum of Agreement in respect of that forum has been provided
by the Employer as supporting evidence that the majority of workers in the
proposed bargaining unit are not likely to favour recognition of the Union. Though the agreement sets out clearly a range
of Company policies and schemes on pay and conditions of employment, the
document itself does not indicate the views or the likely views of individual
workers in respect of the purpose of that agreement or the more relevant issue
of union recognition. Furthermore there is
no evidence to suggest that the ‘Cabin Crew Council’ was formed as an
alternative to entering into a collective agreement with a Trade Union before
the Union’s request for recognition.
23. Though the Panel is aware that for the
purposes of deciding on the admissibility of the application the Union is not
required at this stage of the application process to achieve majority
membership within the proposed bargaining unit, the Panel notes that in this
case, the results of
the
membership check established that 46.15% of the workers in the proposed
bargaining unit are members of the Union and in addition the Union has offered
evidence that a further 10 members have been recruited since the level of
membership check was carried out by the Case Manager and that only a further 7
members would need to be recruited for the membership level to exceed 50%.
24. The Panel is satisfied that membership
of a union, can be accepted as being indicative of that person’s support for
collective bargaining on his or her behalf by the union in relation to the
employer and, in the absence of evidence to the contrary, it is more likely
than not that a worker who has joined a union would be in favour of that union
negotiating with the Employer on matters related to terms and conditions of
employment. Therefore on considering the
level of membership established and as stated in the above paragraph 23 of this
decision the Panel considers there to be sufficient evidence to show that the
majority of 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 proposed bargaining unit.
The Panel is therefore satisfied that the test under paragraph 36 (1)(b)
is met.
Decision
25. The Panel is satisfied that the
application is valid within the terms of paragraphs 5 to 9, is made in
accordance to with paragraph 12 and is admissible within the terms of
paragraphs 33 to 42 of schedule A1. The
application is therefore accepted by the CAC.
Panel
Mr
Christopher Chapman (Chairman)
Mr Sandy
Morrison
Mr Dennis
Cameron
5 September
2005