Case Number:
TUR1/609/[2007]
18 January 2008
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:
Unite – the Union
and
Victim Support West
Yorkshire
Introduction
1. Unite – the Union (the Union) submitted
an application dated 17 December 2007 to the CAC that it should be recognised
for collective bargaining by Victim Support West Yorkshire (the Employer) for a
bargaining unit comprising “All employees in the Witness Service of Victim Support
West Yorkshire, all co-ordinators, senior co-ordinators, outreach workers and administration
staff in VSWY but not the Senior Management Team, Project Managers, PR Manager
or Business Development Manager in VSWY”.
The location of the bargaining unit was given as “Head office in Shipley
and Bradford Regional office in Shipley; Regional offices in Leeds and
Wakefield All witness service centres - Leeds, Wakefield, Bradford, Dewsbury
and Pontefract”. The CAC gave both
parties notice of receipt of the application on 18 December 2007.
The Employer submitted a response on 20 December 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 John Goodman
CBE, Chairman of the Panel, and, as Members, Mrs Maureen Chambers and Mr Derek
Hodgson. 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 18 January 2008
to allow for a membership and support check to be conducted, for the parties to
comment on the results thereof and to give the Panel the opportunity of
considering the parties’ submissions before arriving at a decision.
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 19 September 2007 and
that the Employer had responded in writing on 27 September 2007. The
Union attached copies of both of these letters to its
application. The Union
explained that the Employer had indicated that it was not prepared to enter
into a voluntary agreement with the Union in respect of
the proposed bargaining unit as it intended to set up an employee forum in 2008
with which it proposed to consult over terms and conditions. Members of the Union
were concerned that the Union's influence may be
"diluted" by such a consultative structure and therefore the Union
sought statutory recognition. In its
letter dated 27 September 2007
the Employer, responding to the Union's request for
recognition, referred to an earlier request made by the Union
which the Employer had forwarded to its national centre and explained that it
had written to its national centre seeking confirmation of the outcome of any
discussions/actions which may have taken place.
In the meantime, it added, the Board of Trustees was seeking to meet
early in October 2007 to discuss the Union's request in
the light of the national centre outcomes and current local prevailing
circumstances. The Employer also took
the view that the parties had not reached the stage where either party needed
to refer the matter to the CAC. The Employer
added that it was aware of the good offices of Acas. The Employer proposed that, once it had been appraised
of any National outcome and the result of the VSWY Board's own deliberations,
it would write again to offer a way forward.
In any event, it added, it would write again on 5 October 2007 to keep the Union
informed.
6. The Union stated
that that there were 43 workers employed by the Employer with 32 of these being
in the proposed bargaining unit. The Union
confirmed that the Employer did not agree on the number of workers in the
proposed bargaining unit. Out of the 32
workers in the proposed bargaining unit, 19 were members of the Union and as to
evidence that the majority of the workers in the bargaining unit were likely to
support recognition for collective bargaining, the Union stated that it could
provide the CAC with a petition signed by members and non-members on a
confidential basis on the understanding that it was not copied to the Employer.
7. The Union
explained that the reason for selecting the proposed bargaining unit was that it
consisted of employees in non-managerial grades. These employees had no supervisory or
managerial duties and, as such, a weaker bargaining position. The Union added that
it would pursue a separate bargaining unit for members in managerial grades.
8. The Union
confirmed that the bargaining unit had not been agreed by the Employer and that
there was no existing agreement that it was aware of that covered any of the
workers in the proposed bargaining unit.
9. Finally, the Union
confirmed that the Employer, following receipt of the request for recognition, had
proposed that Acas be requested to assist and that the Union
had agreed to this proposal. The Union
explained that a meeting had been due to take place on 12 December 2007 at which both the Employer and
a senior adviser from Acas were to be present.
The Employer’s response to the Union’s application
10. In its response to the Union’s
application the Employer confirmed that it had received the Union's
request for recognition on the 19
September 2007 and that it responded by letter dated 27 September 2007. The Employer also confirmed that it had
received a copy of the application form from the Union
on 17 December 2007 by fax
with a hardcopy received by post the following day.
11. The Employer stated that it did not agree
the proposed bargaining unit on the basis that its scope was not clear and that
it may not reflect current or proposed internal structures and
responsibilities.
12. The Employer confirmed that it employed
a total of 48 workers and that, contrary to the figure given by the Union
in its application, 21 were within the proposed bargaining unit as defined by
the Union. The Employer
stated that it disagreed with the Union’s estimate of
membership for the following reasons: firstly, no evidence of numbers had been
provided; secondly, the Employer did not accept the basis of the bargaining
unit; and thirdly, there had been significant staff turnover since the original
approach by the Union.
Further, the Employer had arrived at the conclusion that a majority of
the workers in the proposed bargaining unit would not support recognition of
the Union given the Employer’s concerns over the scope and range of the
bargaining unit, its recent business impacts, for example, staff turnover and
anecdotal evidence of member disquiet with the Union itself over some of its
recent activities and approach.
13. The Employer confirmed that there was no
existing agreement covering any of the workers in the proposed bargaining unit
nor was it aware of any previous application by the Union in respect of this or
a similar bargaining unit nor had it received any applications for statutory
recognition in respect of workers in the proposed bargaining unit.
14. Finally, the Employer confirmed that
following receipt of the Union's request it proposed
that Acas be requested to assist. The Employer
gave details as to the parties' communications regarding Acas and explained that
a meeting had been set up for 12
December 2007 but that the Union had failed
to attend this meeting without notice or apology.
The Union’s rejoinder
15. The Panel directed that the Union
be invited to comment on the Employer's response and, in particular, the Employer's
assertion that the Union had failed to attend the scheduled
meeting with Acas. In a letter dated 3
January 2008 the Union said it was concerned by the Employer's comments which
appeared to be a deliberate attempt to misconstrue the events giving rise to
the application, particularly with regard to the involvement of Acas. The Union argued that
it rather than the Employer had proposed Acas should be involved in order to
facilitate negotiations between the parties.
This offer was made to the Employer on several occasions but it was only
on 6 November 2007 that the
Employer finally agreed to Acas being involved.
The Union then went on to explain that its representative fell ill
shortly prior to the meeting arranged for 12 December 2007 by the VSWY and that
the Employer was notified that she may not be fit to attend. However, the Employer insisted that the
meeting go ahead notwithstanding the fact that it had been informed of the
representative’s illness and inability to attend.
The
membership check
16. 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 and support for recognition 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 and a
petition to enable comparisons to be undertaken. It was explicitly agreed with the parties
that, to preserve confidentiality, the respective lists and the petition would
not be copied to the other party. These arrangements were confirmed in a letter
dated 3 January 2008 from
the Case Manager to both parties. The
information from the Union was received by the CAC on 4 January 2008 and the information
from the Employer was received on 7
January 2008. The Panel is
satisfied that the checks were conducted properly and impartially and in
accordance with the agreement reached with the parties.
17. The Employer provided a list of 30 names. The Union provided a
list of 19 members. According to the
Case Manager’s report, the number of Union members in the proposed bargaining
unit was 17, a membership level of 56.67 %.
18. The Union's petition, which ran over 2 A4 sheets, contained
12 signatures. The first sheet of the petition was
date stamped 30 May 2007
and the second sheet date stamped 8
June 2007. The
petition carried the following proposition:
“We the undersigned workers who are
employed by Victim Support West Yorkshire ask that
Unite (Amicus Sector) be recognised as being entitled to collective bargaining
on our behalf.”
At the foot of each sheet was
written:
“Please note: This
petition is confidential and will only be made available to the CAC and ACAS”
19. The
check of the Union’s petition against the Employer's list of
workers established that there were 10 workers from within the proposed
bargaining unit that had signed the petition, representing 33.33% of the
workers in the proposed bargaining unit.
Nine of the signatories were members of the Union, which equates to 30% of the total and one
signatory was not a Union member, which equates to 3.33% of the total. A report of the result of the check of
the level of Union membership and support for recognition was circulated to the
Panel and the parties on 8 January 2008.
Parties’ comments on the result of the
membership check
20. The Employer, in a letter dated 14 January 2008 commented thus. With regard to the test under paragraph
36(1)(a), the Employer accepted that members of the Union
constituted at least 10% of the workers in the proposed bargaining unit. However, the Employer disputed that a
majority of workers in 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 as required by paragraph
36(1)(b). It explained that the Union
had submitted evidence of a petition and that the terms of the petition were
clear in seeking collective bargaining rights and it was also clear that workers
were given an assurance of confidentiality.
However, even noting these points, only 33.33% of the workers in the
proposed bargaining unit had signed the petition and so indicated that they
wanted the Union to be recognised. Not all of the Union members had signed the
petition and only one non-member had signed it.
That was consistent with the Employer's understanding that the majority
of the workers were satisfied with the current arrangements and did not want
the Union to conduct collective bargaining on their
behalf. Finally, the Employer added that
it refuted the content of the Union's letter of 3 January 2008 as totally inconsistent
with the evidence it held of actual events in this matter to date.
21. The Union,
although given the opportunity to comment on the results of the Case Manager’s
comparisons, elected not to do so by the expiry of the deadline imposed.
Considerations
22. 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.
23. There was disagreement between the
parties as to who had first proposed that Acas be invited to assist the parties
following the exchange of correspondence in September 2007. If it was the Employer that had made the
proposal and the Union rejected the proposal or failed
to accept the proposal within a period of 10 working days following the
proposal being made, then paragraph 12(5) is invoked. The effect of this would be to prevent the Union
making its application to the CAC.
However, the Employer’s proposal must be made within the period of 10
working days starting with the day after that on which the Employer informs the
Union under paragraph 10(2) that whilst it does not
accept the request nonetheless it is willing to negotiate. Having examined the papers provided by the
parties the Panel finds that the Employer’s letter of 27 September 2007 (its response to the request
for recognition) and made before the expiry of the first period simply stated
that it (the Employer) was aware of the “good offices of Acas”. This falls short of a proposal that Acas be
invited to assist the parties and, in the Panel’s opinion, was plainly a
response to the final sentence in the Union’s request
letter of 19 September 2007
which read:
“You should also be aware that the services of Acas are available and
(the Union) would be content to enter into talks under their auspices”
24. The Employer wrote to the Union
on 5 October 2007, as
promised. This letter, which fell within
the time limits prescribed by paragraph 12(5), informed the Union
that the Employer had sought advice from its National Centre, Acas and its own
Board of Trustees and that it was now in a position to give the Union
an update of the Employer’s position, which it proceeded to do. The letter then asked the Union,
as a precursor to any future face to face meetings, for its comments on a
number of points that arose from the Union’s formal request
letter of 19 September 2007. Other than the aforesaid reference to having
sought advice from Acas the letter contained no proposal that Acas be called
upon to assist the parties. There is no
evidence of any further correspondence from the Employer to the Union
before the 10 day deadline in which any such proposal must be made and accordingly
the Panel finds that paragraph 12(5) is not invoked. The Panel is satisfied therefore that the
application was made in accordance with paragraph 12 in that before the end of
the first period of 10 working days the Employer informed the Union that it did
not accept the request but was willing to negotiate but no agreement was made
before the end of the second period of 20 working days.
25. The remaining issue for the Panel to
address is whether the admissibility criteria set out in paragraph 36(1) of the
Schedule are met.
26. 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 of
Union membership in the proposed bargaining unit as conducted by the Case
Manager on 8 January 2008 showed
that Union membership stood at 56.67% and the Employer, in its letter of 14 January 2008, acknowledged that
the test under this paragraph was met. The
Panel therefore considers that this test is satisfied.
27. 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. In determining this test the Panel would
remind the parties that it is called upon to evaluate likely support within the
proposed bargaining unit rather than having to arrive at a decision based on a
mathematical certainty.
28. To support its assertion that this test
was met the Union relied on its membership within the proposed bargaining unit,
which the Case Manager’s report placed at 56.67% and a petition which was
signed by 33.33% of the workers in the proposed bargaining unit. This petition was signed by nine Union
members, 30% of the total number of workers in the proposed bargaining unit and
1 non-member that is 3.33% of the total number of workers in the proposed
bargaining unit.
29. The Employer has argued that the evidence
provided by the Union by way of its petition and
membership is not indicative that a majority would be likely to support
recognition of the Union. It pointed out that only a third of the total
number of workers in the bargaining unit had indicated, through signing the
petition, that they wanted the Union to be
recognised. Further, a number of Union
members had not signed the petition and only one non-member had indicated their
support for the Union.
30. The Panel has considered the views of the
parties most carefully. It has weighed
up the evidence set out within the terms of the Case Manager’s report as well
as the arguments mounted by the Employer.
Membership currently stands at over 50% of the total number of workers
in the proposed bargaining unit and the Panel has reached the view that whilst
it may be the case that not all of the Union’s members
support recognition of the Union, as argued by the
Employer, there is no positive evidence that supports this assertion. As for the petition, no evidence was adduced
that explained the circumstances in which it was collected and, whilst it was
not dated by the individual signatories, it would appear that was conducted in late
May and early June 2007. This is some 6
months before the membership and support check conducted by the Case
Manager. Consequently, it is
questionable as to how accurately the now rather dated petition reflects the
current views of the workers in the proposed bargaining unit. The Employer, in its response to the
application, did indicate that there had been significant staff turnover since
the original approach by the Union, which the Panel
understands to have been in June 2007. The
contrast with the membership data is quite marked. In the absence of any persuasive evidence
supporting the Employer’s argument that the petition still reflects the current
position of workers in the proposed bargaining unit, and given the high level
of Union membership in a workplace where the Union is not recognised, the Panel
is persuaded that, on the balance of probabilities, 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
31. 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 John
Goodman CBE (Chairman)
Mrs Maureen
Chambers
Mr Derek Hodgson
18
January 2008