Case Number: TUR1/553(2007)
20 August 2007
CENTRAL ARBITRATION COMMITTEE
TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992
SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION
DECLARATION OF RECOGNITION WITHOUT A BALLOT
The Parties:
Unite - the Union
and
Pierhead Housing Association
Introduction
1. Amicus the
predecessor of Unite - the Union (the Union) submitted an application dated 26 February 2007 to the CAC that it should be recognised for collective bargaining
purposes by Pierhead Housing Association (the Employer) for a bargaining unit
comprising “All contracted non-executive staff up to and including the position
of manager”. The CAC gave both parties notice of receipt
of the application on 26 February 2007. On 6 March 2007 the Employer submitted a response to the CAC,
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 consider the case. The Panel consisted of Professor John Goodman
CBE, Panel Chairman, and, as Members, Mr William Lockie and Ms Virginia Branney. The Case Manager appointed to support the
Panel was Ms Tola Babatunde.
3. By a decision dated 30 March 2007 the Panel accepted the Union’s application. As no
agreement was reached between the Parties as to the appropriate bargaining unit
the Panel proceeded to determine the bargaining unit. Full reasons for the Panel’s
decision were issued to the parties on 10 July 2007. The Panel’s determined bargaining unit was “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.”
Issues
4. As
the determined bargaining unit differed from that proposed by the Union in its application, the Panel was required by
paragraph 20 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application is valid or invalid within the
terms of paragraphs 43 to 50 of the Schedule.
As part of this process the Panel decided that a new membership check
should be conducted by the Case Manager.
The Case Manager reported the result of this check to the Parties and
the Panel on 25 July 2007. The result of the check showed that there were 35 workers in the
bargaining unit of whom 21 were members of the Union, giving a membership
level of 60%. By a decision dated 31 July 2007 the Panel determined that the application was
valid.
5. In a letter from the CAC dated 31 July 2007 the Union was
asked whether it claimed to have majority membership within the bargaining unit
and if so, whether it wished to submit that it should be granted recognition
without a ballot. In its response dated 1 August 2007, the Union asked that the Panel declare
it recognised without the need for a ballot.
Citing the result of the membership check the Union contended that its membership
accounted for 60% of the workers in the revised bargaining unit. As far as the Union was concerned no argument had
been put forward by the Employer that might lead the Panel to conclude that
there should be a ballot within the terms of paragraph 22(4) of the Schedule.
6. On 1 August 2007 in a letter from the CAC, the Employer was invited to put forward
its case against the Union’s claim for recognition without a ballot. The Employer was given until 6 August 2007 to reply. In an e-mail received
on 1 August
2007 the Employer requested an extension of
time until 8
August 2007 due to annual leave and other
commitments. This request was
granted. In an e-mail received on 8 August 2007 the Employer submitted that it had nothing further to add to
previous statements that it had made on the matter at earlier stages of the
statutory procedure. Its arguments have
been put in various statements to the CAC including a letter dated 19 March 2007 setting out its response to the first membership check and its
statement in respect of the bargaining unit hearing which took place on 15 June 2007.
7. In the Employer’s
submission to that hearing it requested that the CAC agree to a secret ballot
of staff in the interests of good industrial relations and transparent
democratic processes whereby staff would have an appropriate opportunity to
participate in the process which affected them directly. The Employer stated that
it had always had a very good working relationship with its staff and that it
respected their wishes to join any trade union of their choice which might
arise from numerous reasons including individual personal support and discounts
on holidays, travel, insurance etc. The
Employer therefore did not believe that it necessarily followed that staff
joined a trade union with a specific desire for recognition for collective
bargaining and the personal responsibilities that went with it for the
individual. Consequently it did not
believe that it could be assumed automatically that staff at Pierhead Housing
Association wanted the Union to represent them, without some sort of democratic process to
confirm this. The Employer did not know
the identity of the Union’s members and was therefore unable to confirm the level of
support. However it had had no
indication from its staff that they wished to seek recognition for Amicus - the
suggestion had come solely from the Union itself. Since the Union’s application was
submitted to the CAC, several staff including union members, without
solicitation, had indicated that they did not support the recognition
process. The Employer was not convinced that the Union had demonstrated the
necessary level of support for its proposal, and it had not provided the
backing of a petition. The Union had at no point claimed that
a majority of its members in its proposed bargaining unit supported recognition
via the statutory process. It had
indicated only that a group of its members wished to pursue this and that
without knowing the number of those union members the Employer was unable to
determine how representative they were.
The Employer referred critically to a number of actions taken by the Union which it did not regard
as conducive to good industrial relations and that several of its staff had
expressed concern about the Union’s actions. The Employer
concluded by reiterating its request for a ballot as a democratic process which
would clearly and unequivocally define the views of the Association’s staff on
the matter and would resolve any existing doubt.
Considerations
8. Paragraph 22 of the Schedule provides that where the CAC is
satisfied that a majority of the workers constituting the bargaining unit are
members of the union, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions
in paragraph 22(4) applies. Paragraph 22(3) requires the CAC to hold a ballot
if any of these conditions is fulfilled.
9. In this case the last
membership check conducted by the Case Manager established a membership level
of 60%. At over 50% of the bargaining
unit this meets the majority membership requirement set out in the
Schedule. The Panel considers the date
of that check (25 July 2007) is sufficiently
recent for the purposes of this decision. There has been no indication of
significant changes in the composition in the bargaining unit subsequently. The Panel has noted that the Employer did not
comment on the membership check result when invited to do so, and has not
challenged it. The Panel is therefore
satisfied on the evidence before it that the majority of the workers in the
bargaining unit are members of the Union.
10. Therefore,
the imperative that governs the Panel’s position in this case is that provided
by paragraph 22(2) of the Schedule namely that the CAC must issue a declaration of recognition
unless one or more than one of the three qualifying conditions set out in
paragraph 22(4) is fulfilled.
11. Paragraph 22(4)(c) requires the Panel to order a secret
ballot where ‘…membership evidence is produced which leads the CAC to conclude
that there are doubts whether a significant number of the union members within
the bargaining unit want the Union to conduct collective bargaining on their
behalf’. No evidence has been submitted
relating to this condition, which thus is not satisfied.
12. Paragraph 22(4)(b) requires that if ‘…the CAC has evidence,
which it considers to be credible, from a significant number of the union
members within the bargaining unit that they do not want the union (or unions)
to conduct collective bargaining on their behalf’, it must order a ballot. As is
referred to in its earlier decision on the validity of the Union’s application (dated 31
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
a different issue from that presently before the Panel, and 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. Even assuming
that to be the case the Panel does not regard this expression of view by one
person on a different matter to be relevant or adequate to satisfy this
condition. It has received no other
evidence.
13. Paragraph
22(4)(a) requires the CAC to arrange for the holding of a secret ballot ‘…where
it is satisfied that a ballot should be held in the interests of good
industrial relations’. The Panel has
carefully considered all the points made by the Employer in its submissions at
various stages of the statutory process, seeking a ballot on these grounds. The Panel is conscious that there is no
requirement in the Schedule for a union to produce a petition on the specific
issue of its members’ support for its recognition. Indeed in its experience the weight to be
attached to such petitions is often challenged and questions raised over the
circumstances in which signatures have been gathered. The Panel understands the value which is
often attached to secret ballots as mechanisms which legitimise behaviour and
actions. However in the context of
recognition cases the campaigns associated with them can also exacerbate
relationships and make the achievement of good industrial relations more
difficult subsequently. In the view of
the Panel the arguments put by the Employer make little reference to how a
ballot will contribute to good industrial relations in the specific context of
this case. Many of its arguments are
based more broadly. The Union has made its case briefly on the
provisions and requirements of the Schedule and the level of its membership in
the bargaining unit. Having reflected on
the evidence before it the Panel has decided that this condition is not met.
Declaration of Recognition
14. Following careful consideration of all
aspects of the case and all the relevant evidence before it, the Panel declares that the Union is recognised by the Employer as entitled to
conduct collective bargaining on behalf of “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.”
Panel
Professor John Goodman CBE
Mr William Lockie
Ms Virginia Branney
20 August 2007