Case Number: TUR1/612/ (2007)

26 March 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:

 

 

UNISON

 

 

and

 

 

National Autistic Society

 

Introduction

 

1.         UNISON (the Union) submitted an application to the CAC, dated 2 January 2008, that it should be recognised for collective bargaining purposes by the National Autistic Society (the Employer).  In its application the Union described the proposed bargaining unit as the “East Anglia Service, formerly Mildenhall Service” located at “Middlefield Manor, Crossways, Domiciliary Care, Old Barns Cottages Resource Centre, Old Barns Cottages (Admin.)”.  The CAC gave both parties notice of receipt of the application on 7 January 2008.  On the 17 January 2008, 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 Lynette Harris as Chairman of the Panel and Mr Roger Lyons and Mr Roger Roberts as Members of the Panel.  The Case Manager appointed to support the Panel was Miss Sharmin Khan.

 

3.         The initial statutory period for the Panel to decide on the admissibility of the application expired on 21 January 2008.  The period was extended until 31 January 2008 in order to allow time for a membership check to be carried out by the Case Manager.  The period was further extended to the 25 March 2008 for the parties to comment on the subsequent report, and for the Panel to consider the evidence and reach a decision.

 

Issues

 

4.         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 and is admissible within the terms of paragraphs 33 to 42 of Schedule A1 to the Act; and therefore should be accepted.

 

 

The Union’s application

 

5.         In its application the Union stated that the figure taken from the Employer’s website stated that there were 32 workers in its proposed bargaining unit.  The Employer in its response to the application confirmed that there were in fact 48.   The Union counted 33 members of the Union in its proposed bargaining unit.  As evidence that the majority of the workers in the bargaining unit were likely to support recognition for collective bargaining, the Union stated that its membership had increase by 40% during a recent campaign that was based on the issue of recognition and other current issues in the work place.  Finally the Union stated that the reason for selecting the proposed bargaining unit was as a response to the request by membership.  The Union submitted with its application a list of members of the Union that were included in its proposed bargaining unit.

 

The Employer’s response

 

6.         In its response to the application, the Employer stated that the parties had not agreed on the bargaining unit before the Employer received the application but that it agreed with the proposed bargaining unit now.   The Employer stated that it employed 48 workers in the proposed bargaining unit. 

 

7.         In response to the Union’s estimate of the level of membership within the proposed bargaining unit and likely support for recognition in that unit, the Employer stated that the Union’s estimate was wrong as from the list of 37 members provided by the Union, five were not in the bargaining unit, 4 had left the National Autistic Society and 6 were not employees but casual labour. The Employer’s response to the application was copied to the Union and the Panel.

 

Membership Check

 

8.         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

 

9.         A list of workers in the proposed bargaining unit was provided by the Employer on 29 January 2008.  The Union provided a list of union members in the proposed bargaining unit on 28 January 2008.  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 sent to both parties on 25 January 2008 which were also copied to the Panel.

 

10.       The Employer provided a list of 63 names.  The Union provided a list of 38 names of members.  The Case Manager carried out a comparison of the lists.  The check of union membership established that 25 workers in the proposed bargaining unit were members of the Union, that is, a membership level of 39.68%.  The results were produced as a report and circulated to the parties for their comments on 31 January 2008. 

 

 

Union’s Comments

 

11.       The Union submitted its comments in respect of the results of the membership check in an e-mail dated 7 February 2008.  It stated that the employee figure of 63 provided by the Employer for the check did not correlate to the published figures on the Employer’s website.  The website stated that staffing of the East Anglia Service i.e. the proposed bargaining unit, was overseen by a manager who was supported by a team of 31 staff, including 11 senior staff which were “available and ready to offer support”.  The website figures provided for either 31 or 42 staff employed within the bargaining unit.  No explanation had been provided by the Employer about the increase to 63.

12.       The Union stated that on the original membership list that it had supplied to both the CAC and the Employer, it had in fact included 5 or 6 members who fell outside of the proposed bargaining unit and would not have therefore appeared on the Employer’ s list.  However, the Union could not see why further 7 to 8 members did not appear on the Employer’s list.  If these members of staff were casual or part-time staff as was intimated by the employer in a previous response, then the Union stated that it would seek to establish their employment rights as enshrined within the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (Amendment) Regulations 2002 and insist that the Employer recognised their employment status and subsequent right to Trade Union Membership and any resultant recognition agreement.  In an e-mail to the CAC dated 19 February 2008 the Union clarified for the Panel that the actual number of excluded workers it was referring to was 6.  The Union reminded the Panel that the workers in question were referred to by the Employer in its initial response to the application a “…not employees but are casual labour”.  The Union maintained that these were workers in its view were Union members who were employed by the National Autistic Society.

13.       In a further e-mail to the CAC dated 20 February the Union offered an update of its membership in the interest of fairness and in good faith.  The Union identified one member that was not part of the proposed bargaining unit, 6 members that were no longer employed by the National Autistic Society and two employees that had since joined the Union.  Taking these changes into account the Union calculated that even if it were to accept the Employer’s figure of 63 to be the total number of workers in the proposed bargaining unit, this would establish a membership level of 52.38% in the proposed bargaining unit and would warrant automatic recognition.  

 

Employer’s Comments

 

14.        By its letter to the CAC dated 5 February 2008, the Employer, in response to the membership check report, stated that it agreed with the figures the report had established, namely that 13 of the union members were not employees of the National Autistic Society and therefore not found on its list of employees and that 25 of the union members were found on its list of employees. 

 

15.       At the request of the Panel the Employer in its letters dated 19 February 2008 and 26 February 2008 clarified for the Panel the following issues.  Its declaration of 63 for the membership check that was carried out was incorrect and should have shown a total of 62 workers instead. The Employer had included the name of the worker that was actually a casual worker and not an employee of the National Autistic Society erroneously.  By the 26 February 2008 the total number of workers in the proposed bargaining unit had reduced to 60 as two workers had left the Company.  The Employer supplied a full list of names together with dates of birth of the current workers within the proposed bargaining unit.

 

16.       The earlier lower figure of 48 declared by the Employer in its initial response to the application, arose from the lack of clarity in the definition of the proposed bargaining unit which had the Mildenhall Service specified rather than the East Anglia area. 

 

17.       The figures cited by the Union on the website were out of date.  The Employer stated that it was difficult to keep them exact and were intended to merely indicate the relative size of the operation.  The general growth of the Employer’s services meant that they were constantly out of date.  The Employer would probably drop them from the service descriptions on the website.

 

18.       The 6 workers referred to in its response to the application as casual labour were not included in its declaration of workers in the proposed bargaining unit for the membership check that was carried out.  The Employer explained that it had a category of casual workers called ‘bank workers’, that were neither full nor part – time employees; they were able to refuse work offered and the Employer did not have to offer them work.  When they did work they were contracted for services but were not subject to the Company’s employment policies such as discipline and grievance.  These workers as at 26 February 2008 stood at 16.  These had not been included in the 60 declared by the Employer and stated in paragraph 19 above.

 

19.       The Panel notes that there is a point of contention between the parties regarding the status of what the Employer refers to as casual staff also known as ‘bank workers’.  The Union’s comments to the Panel are in relation to the number declared by the Employer at the time of the membership check.  The Employer has explicitly stated that its declarations to the CAC have excluded ‘bank staff’.  The Union has not pressed the issue further at this time.  Therefore the Panel considers this to be an issue to be resolved at the next stage of the process when the appropriate bargaining unit is to be agreed between the parties or determined by the Panel.

 

Considerations

 

20.       The membership check carried out for the purposes of the current application assisted the Panel in its decision as to, firstly, whether under paragraph 36(1)(a) of the Schedule, members of the union constitute at least 10% of the workers in the proposed bargaining unit and, secondly, whether under paragraph 36(1)(b) a majority of the 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. 

 

21.       Since that check, both parties have kindly supplied the Panel with additional evidence which has served to clarify for the Panel the changing size of the proposed bargaining unit and the changing levels of membership.  The Panel is mindful that in any working environment the size of the workforce is bound to be a moving target.  The Panel has based its decision on the figures declared at the time of the membership check but also takes into account the subsequent figures supplied by both parties.   The Panel has considered carefully the submissions of both parties and the supporting documentation.

 

Paragraph 36(1)(a)

 

22.       The Case Manager’s check of the Union’s level of membership dated 31 January 2008 established that 25 of the 63 workers in the proposed bargaining unit were members of the Union which, expressed as a percentage was 39.68%.  The Panel is satisfied that the checks carried out and reported on by the Case Manager on 31 January 2008 (described in paragraphs 10 to 12 above) were conducted properly and impartially and were in accordance with the arrangements agreed with the parties.  The Employer has not disputed that the members of the Union constitute at least 10% of the proposed bargaining unit. The Panel is therefore satisfied that the 10% test in accordance with paragraph 36(1)(a) of the Schedule has been met.

 

Paragraph 36(1)(b)

 

23.       For the Panel to accept the application, the Schedule does not require that a majority of workers in the bargaining unit be already members of the union, nor does it require that a majority of those in the bargaining unit has explicitly expressed support for the union. Paragraph 36(1)(b) requires the Panel to decide whether the majority of workers in the bargaining unit as defined by the Union are “likely” to favour recognition of the Union.  The Panel does not need to decide that a majority of the workers are in fact in favour.

 

24.       Further, on the basis of its experience and expertise in the forum of industrial relations, the Panel considers that it is more likely than not, that to be a member of a union is indicative of that individual’s wish for the union to be recognised as entitled to conduct collective bargaining issues on his/her behalf.    

 

25.       Taking into account the Case Manager’s check of the Union’s list of members against the list of workers provided by the Employer dated 31 January 2008, the Panel considers that an overall support level of 39.68% of the proposed bargaining unit has been demonstrated. 

 

26.       Given the level of union membership and evidence supplied by the parties subsequent to that test, the Panel finds that the majority of the workers would be likely to favour recognition of the Union for the purposes of collective bargaining.  The Panel is therefore satisfied that the test required by paragraph 36(1)(b) of the Schedule has been met.

 

27.       After full consideration of all the documentation submitted by the parties, the Panel is also satisfied that the Union’s application meets the remaining statutory tests.

 

Decision

 

28.       For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

 

 

 

Panel

Professor Lynette Harris – Chairman of the Panel

Mr Roger Lyons

Mrs Roger Roberts

 

19 March 2008