Case Number: TUR1/564/[2007]

27 April 2007

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:

Connect

and

Vodafone Limited

Introduction

1. Connect (the Union) submitted an application dated 23 March 2007 to the CAC that it should be recognised for collective bargaining by Vodafone Limited (the Employer) for a bargaining unit comprising “All employees working in the Regional Operations North organisation in grades H, I and J”. The location of the bargaining unit was given as “Scotland, Northern Ireland, Wales, North of England and Midlands” below which was added “The main location is in Warrington. Most of the employees are field based and work ‘out of’ sites at various locations”. The CAC gave both parties notice of receipt of the application on 26 March 2007. The Employer submitted a response on 4 April 2007 which was duly 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 Frank Burchill, Chairman of the Panel, and, as Members, Dr Christopher Ball and Mrs Jackie Patel. The Case Manager appointed to support the Panel was Nigel Cookson.

3. The Panel extended the statutory deadline to decide whether to accept the Union’s application to 26 April 2007 to allow time for a membership check to be conducted and for the parties to comment on the results thereof.

Issues which the Panel has to determine

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 of the Schedule; and therefore should be accepted.

The Union’s application

5. In its application the Union explained that it had submitted its formal request for recognition to the Employer on 6 February 2007. The Employer responded saying that whilst it did not accept the request for recognition nevertheless it was prepared to negotiate with Acas facilitating. The Union agreed to this proposal.

6. The Union stated that there were 11,000 workers employed by the Employer and estimated that there were in the region of 200 workers in the proposed bargaining unit, of whom 126 were members of the Union. The Union added that it was happy to submit evidence of its membership for independent verification. As evidence that the majority of the workers in the bargaining unit would be likely to support recognition for collective bargaining the Union stated that membership had been built explicitly on the prospect of recognition, with members recruiting colleagues into the Union on the basis that high membership would mean it could apply for recognition. It explained that membership already exceeded 50% when the Union first entered into formal discussions with the Employer in November 2006, and had increased steadily since then, to a current level of 64%. It added that new members had joined the Union whenever it had issued communications about the ongoing discussions around voluntary recognition and the recognition bid.

7. The Union explained that the reason for selecting the proposed bargaining unit was that the Regional Operations organisation primarily comprised the Employer’s field network engineering workforce. The field engineering workforce is identified on company organisation charts and databases as two separate operational entities, Regional Operations North and Regional Operations South. The Regional Operations North members had been especially vocal and enthusiastic about seeking recognition and had worked to build up membership in support of the application. The Union added that it had specified grades within the bargaining unit which effectively excluded senior managers as it was usual for senior managers not to be covered by collective agreements. The Union stated that the proposed bargaining unit had not been agreed with the Employer.

The Employer’s response to the Union’s application

8. In its response to the Union’s application the Employer stated that it had originally received the Union’s written request for recognition on 7 February 2007. The Employer had declined the request and it attached to its response a copy of its letter to the Union to this effect. The letter confirmed that the Employer was prepared to negotiate under the terms of the Schedule and it proposed that Acas be requested to facilitate the negotiations. The Employer received a copy of the application form from the Union on 26 March 2007.

9. The Employer further stated that it did not believe that the proposed bargaining unit was compatible with effective management of its Regional Operations Unit as this unit was operated and managed on a national basis.

10. The Employer stated that the correct number of workers in the bargaining unit as defined in the Union’s application was 189. On the question of whether the Employer disagreed with the Union’s estimate of membership in the proposed bargaining unit it said that it had no evidence as to the number of Union members in the proposed bargaining unit. As to whether it considered that a majority of workers in the bargaining unit were likely to support recognition the Employer stated that it had no evidence of the views of its employees in relation to Union membership.

The membership check

11. To assist 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 are likely to support recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed a check to be undertaken by the Case Manager 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 of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of Union members within that unit to enable comparisons to be undertaken. It was explicitly agreed with the parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 13 April 2007 from the Case Manager to both parties. The Employer’s list of workers in the proposed bargaining unit was received on 13 April 2007 and the Union’s list of its members in the proposed bargaining unit was received on 16 April 2007. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties. A report of the result of the check of the level of Union membership was circulated to the Panel and the parties on 16 April 2007.

12. The Employer provided a list of 189 names. The Union provided a list of 124 members. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 121, a membership level of 64.02%.

Parties’ comments on the result of the membership check

13. In a letter dated 18 April 2007 the Union submitted that the membership check showed more than 10% membership in the bargaining unit. It explained again that its application for recognition had been prompted by its members’ disappointment at the failure of informal discussions with the Employer in the autumn of 2006 and that the members wished to continue pressing for collective bargaining rights.

14. The Employer, in a letter dated 19 April 2007, stated that it had no comments on the membership check in addition to those made in its earlier response to the Union’s application. The Employer reiterated its belief that Regional Operations North was not the appropriate bargaining unit in that it was not compatible with effective management.

Considerations

15. In deciding whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 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 to recognise it for collective bargaining in respect of the proposed bargaining unit as 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 that it was made in accordance with paragraph 12 of the Schedule.

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

17. 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 check conducted by the Case Manager Panel showed that Union membership stood at 64.02%, a figure which the Employer did not challenge. The Panel is therefore satisfied that this test is met.

18. Paragraph 36(1)(b) of the Schedule calls upon the Panel to decide whether a majority of the workers in the Union’s proposed bargaining unit would be likely to favour recognition of the Union. It should be noted that the Panel is called upon to make an assessment as to likely support rather than it having to arrive at a decision based on a mathematical certainty.

19. To support its position the Union relied on its density of membership in the proposed bargaining unit, which, according to the Case Manager’s report, stands at 64.02%. The Employer did not challenge the Union’s claim that a majority of the workers in the proposed bargaining unit would be likely to favour recognition. When invited to comment on the results of the membership check the Employer elected not to comment on the test set out in paragraph 36(1)(b) but simply referred the Panel to its comments in its response to the effect that it had no knowledge of the views of the workers on the subject of union membership.

20. The Panel is of the view that, in the absence of any persuasive evidence to the contrary, an individual’s membership of a trade union is a likely indicator of that person’s support for the union conducting collective bargaining on his or her behalf in relation to the Employer on matters related to pay, hours and holidays.

21. Accordingly, having given the matter due consideration, the Panel finds that the level of Union membership can be taken as a legitimate indication of the strength of support for recognition within a bargaining unit and so, on the face of the evidence presented, the Panel concludes 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 bargaining unit and therefore the test set out in paragraph 36(1)(b) is satisfied.

Decision

22. 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 the Schedule. The application is therefore accepted by the CAC.

Panel

Professor Frank Burchill (Chairman)

Dr Christopher Ball

Mrs Jackie Patel

27 April 2006