Case Number: TUR1/553/(2007)

31 July 2007

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

DETERMINATION OF THE BARGAINING UNIT

The Parties:

Unite – the Union

and

Pierhead Housing Association

Introduction

1. Amicus (the Union) submitted an application dated 26 February 2007 to the CAC that it should be recognised for collective bargaining by Pierhead Housing Association (the Employer) for a bargaining unit consisting of “All contracted non-executive staff up to and including the position of manager”. Following the merger of Amicus and the TGWU the application will proceed in the name of “Unite – 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 John Goodman CBE, Chairman of the Panel, and, as Members, Ms Virginia Branney and Mr Bill Lockie. The Case Manager appointed to support the Panel was Miss Tola Babatunde, and for the purposes of this decision, Nigel Cookson.

3. By a decision dated 30 March 2007 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. However, no agreement was reached by the end of the appropriate period and so the parties were informed that a hearing would take place at which the bargaining unit would be determined. The parties were duly invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit and a hearing was held in Liverpool on 15 June 2007.

4. In a decision promulgated 10 July 2007 the Panel, after careful consideration of the parties’ oral and written submissions, decided that the appropriate bargaining unit should be one that comprised “All staff posts with the exception of the permanent members of the Executive Group i.e. excluding the Chief Executive Officer, the directors and the Head of Customer and Business Services.” This bargaining unit differed from that originally proposed by the Union by the exclusion of one senior manager post, namely the Head of Customer and Business Services.

Issues

5. As the determined bargaining unit differed from that originally proposed by the Union in its application, the Panel is required by paragraph 20 of the Schedule A1 to the Act (the Schedule) to determine whether the Union’s application is valid or invalid within the terms of paragraphs 43 to 50. To this end both parties were invited, by way of letter dated 10 July 2007, to supply the Panel with written submissions relating to the validity tests.

Union’s submissions

6. In a letter dated 16 July 2007 the Union confirmed that there was no existing recognition agreement covering any of the workers within the new bargaining unit. There was no competing application from any other union, where the proposed bargaining unit covered any workers within the new bargaining unit, nor had there been a previous application in respect of the new bargaining unit.

7. The Union submitted that there was only one worker difference between the proposed and determined bargaining unit and that this individual was not a member of the Union. The previous membership check conducted by the Case Manager gave the Union a membership level of 57.89%. If the bargaining unit was reduced by one and membership remained the same then it would currently stand at 59.46%. This was well in excess of the 10% required. The Union offered to provide details of its members to the CAC on a confidential basis.

8. The Union considered that a majority of the proposed bargaining unit would be likely to favour recognition and the test in paragraph 36(1)(b) (sic) was made out. The Union held this view having regard to the high proportion of Union members in the determined bargaining unit. It concluded its submissions by repeating its offer to provide its membership list to the CAC on a confidential basis.

Employer’s submissions

9. In a letter dated 17 July 2007 the Employer confirmed that there was no existing recognition agreement covering any of the workers in the new bargaining unit and that it was not aware of any competing application from any other union, where their proposed bargaining unit covered any workers within the new bargaining unit. In addition, it was not aware of any previous application in respect of the new bargaining unit.

10. As to whether Union membership amounted to 10% of the workers in the new bargaining unit the Employer stated that it did not know the current level of union membership within the new bargaining unit and it did not believe that the membership check undertaken in mid-March could be relied upon for this information for three reasons. Firstly, the composition of the original bargaining unit, upon which the membership check was based, was different to the new bargaining unit. Secondly, a significant length of time had elapsed since the original membership check was conducted and there had been some staff changes in the intervening period. Thirdly, the Employer did not know whether there had been any changes to Union membership during this time. For these reasons the Employer requested that the Panel undertook an independent check to establish current membership levels.

11. The Employer was unable to be clear about the level of support for the Union and noted that the Union had failed to provide any evidence that the majority of the workers in the new bargaining unit would be likely to favour recognition. The Union had indicated that a group of its members wished to seek recognition via the statutory process but at no point had it claimed that this group represented majority of its members. The Employer could, however, confirm that there had been no indication whatsoever from the Association’s workers that they wished to seek recognition for the Union – this had come solely from the Union.

12. The Employer explained that over recent months, several members of staff, without solicitation, had indicated that they did not support the process. Two members of the new bargaining unit, one of whom was a Union member, had written directly to the Panel stating their professional view that, because of their roles and responsibilities as members of the Senior Management Team, they considered that they should be excluded from the bargaining unit. These views were, however, not taken into consideration by the Panel in its decision making process.

13. The Employer recognised that there may be numerous reasons for each worker joining a trade union including individual personal support and other benefits. It believed that it did not necessarily follow that workers that joined a trade union did so with a specific desire for recognition of the union for collective bargaining purposes.

14. For these reasons the Employer argued that, without further evidence such as a ballot, it could not automatically be assumed that the workers in the new bargaining unit wanted to be represented by the Union.

Membership and support check

15. Following the submissions received from the parties and to assist the determination of the two admissibility tests under paragraph 45(a) and 45(b) of the Schedule, namely whether 10% of the workers in the determined bargaining unit are members of the Union and whether a majority of the workers in this bargaining unit are likely to favour recognition of the Union, the Panel instructed that the Case Manager carry out checks on the level of union membership within the bargaining unit.

16. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names of workers within the determined bargaining unit, and that the Union would supply to the Case Manager a list of paid up 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 20 July 2007 from the Case Manager to both parties. The information from the Union was received by the CAC on 20 July 2007 and the information from the Employer was received on 23 July 2007. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

17. The Union provided a print out of 21 members giving the name, address, date of birth, date of joining, payment method, employer and workplace for each individual named therein. The Employer provided a spread sheet headed “Staff in Bargaining Unit – July 2007” and gave the title, initial, first, middle and surname of the 35 workers listed. Two posts were annotated as “Vacant Post – Student Warden – will be in the post by Sept 07”.

18. No additional checks were carried out by the Case Manager to verify the information supplied by the parties.

19. The list supplied by the Employer showed that there were 35 workers in the determined bargaining unit. The list of members supplied by the Union contained 21 names. According to the Case Manager’s report, the number of Union members in the agreed bargaining unit was 21, a membership level of 60%.

20. A report of the result of the check of the level of Union membership was circulated to the Panel and the parties on 23 July 2007.

Views of the Union

21. In a letter dated 25 July 2007 the Union stated that the application satisfied the validity tests in respect of the bargaining unit determined by the Panel.

22. It submitted that Membership in the new bargaining unit stood at 60% which satisfied the 10% membership requirement and also provided compelling evidence that the majority of the bargaining unit would support recognition of the Union. In the circumstances, the Union requested that the CAC accepted the application and moved on to determine whether a ballot was required.

Views of the Employer

23. In an email dated 24 July 2007 the Employer confirmed that it had no further comments to make in relation to the membership check or the validity tests.

Considerations

24. The Panel is satisfied on the evidence available that the application is valid in terms of the tests laid down in paragraphs 44 and 46 to 49 of the Schedule, namely that there is no existing recognition agreement in force covering any of the workers in the determined bargaining unit, that there is no competing application and that there has been no previous application to the CAC in respect of the determined bargaining unit. The remaining tests before the Panel are whether, in accordance with paragraphs 45(a) and (b) of the Schedule, 10% of the workers constituting the new bargaining unit are members of the union and that a majority of those workers would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

25. With regard to the first test and whether union members constitute at least 10% of the workers in the bargaining unit the Case Manager’s check established that 60% of the workers in the bargaining unit were members of the Union. This figure was not challenged by the Employer. The Panel is therefore satisfied that the 10% test set out in paragraph 45(a) is met.

26. The second issue for the Panel to consider is whether, pursuant to paragraph 45(b), a majority of workers constituting the bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit. The Union relied upon its membership level, which has been established as 60% of the workers in the determined bargaining unit, as evidence that this test was satisfied. Whilst the Employer confirmed that it had no further comments to make in relation to the membership check it had, in its earlier letter of 17 July 2007, set out various arguments as to why it did not believe that the majority of the workers would be likely to favour recognition of the Union.

27. It argued that the Union had failed to provide any evidence whatsoever that the majority of the workers in the new bargaining unit would be likely to favour recognition and the Employer had received no indication from the workers that they supported the Union’s application. On the contrary, the Employer made the point that several members of staff had recently, without solicitation, informed the Employer that they did not support the process. Further, the Employer argued that whilst there may be numerous reasons for a worker joining a trade union, such as individual personal support and other benefits, it did not necessarily follow that an individual joins a trade union specifically for collective bargaining purposes. The Employer then went on to argue that, in the absence of such evidence as a favourable ballot result, it could not automatically be assumed that the workers in the new bargaining unit wanted to be represented by the Union.

28. The Panel has considered the points made by the Employer. Whilst the Employer states that it received indications from a number of workers that they did not support the Union’s application for recognition, it provided no evidence in support of this claim when it had the opportunity to provide such evidence at the time that the Case Manager conducted the check of the figures either initially at the acceptance stage or more recently when the membership level in the determined bargaining unit was checked on 23 July 2007. The CAC was informed by two individuals that they did not wish to be in the bargaining unit because of their roles and responsibilities as members of the Senior Management Team. This however, is not the same as saying that they did not support the Union’s claim for recognition. The Employer indicated that one of these people was a Union member. If this were to be accepted, and it was further predicted that this person was opposed to recognition of the Union, the Union’s remaining membership is still comfortably over 50%. As indicated above, the Employer provided no other evidence on this point nor has the Panel received any evidence from any other source. The Employer then argued that workers joined trade unions for the associated services on offer rather than for the benefit of collective bargaining. However, having considered the matter, the Panel finds that it is satisfied that, notwithstanding the wide range of services currently offered by modern trade unions, on the balance of probabilities, an individual who has joined a trade union would likely to be in favour of that union negotiating with the employer on matters related to pay, hours and holidays. Therefore, the Panel accepts that the level of Union membership provides, in the absence of evidence to the contrary, a legitimate indication of the views of the workers in the determined bargaining unit. On this basis, the Panel believes that it would not be unreasonable for it to conclude that a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union. Accordingly, the Panel is satisfied that the majority of workers constituting the determined 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 45(b) is satisfied.

Decision

29. The decision of the Panel is that the application is valid for the purposes of paragraph 20 of the Schedule and the CAC must proceed with the application.

Panel

Professor John Goodman CBE

Ms Virginia Branney

Mr Bill Lockie

31 July 2007