Case Number:
TUR1/637/[2008]
17 June 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
North Lanarkshire
CCTV Limited
Introduction
1. Unite the Union (the Union) submitted
an application to the CAC on 22 May 2008 that it should be recognised for
collective bargaining by North Lanarkshire CCTV Limited (the Employer) for a bargaining
unit comprising “All operators, supervisors and clerical workers based in North
Caldeen Road, Coatbridge ML5 4EF”. The
CAC gave the parties notice of receipt of the application on 27 May 2008. The Employer submitted a response to the
application on 9 June 2008
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 Kenny Miller,
Chairman of the Panel, and, as Members, Mr Ken Cameron and Mrs Maureen Chambers. The Case Manager appointed to support the
Panel was Nigel Cookson.
Issues which the Panel has to determine
3. 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
4. In its application the Union,
when asked to give the date of its request to the Employer and a brief summary
of the Employer’s response, explained that it had formally written to the
Employer on 14 August 2007
seeking a voluntary recognition agreement under the auspices of Acas. On 24
April 2008 the Employer stated that it would not negotiate any
further with the Union unless the full time officer
charged with conducting the negotiations was replaced. The Union’s view was
that the Employer had no powers to force this request and, believing that the
Employer had no real intention of entering into meaningful negotiations, it had
decided to submit the application to the CAC.
The Union enclosed a number of letters with its
application but there was no correspondence that could have been construed as a
response from the Employer to a request for formal recognition made in
2007. The Union
did include however, a letter it sent to the Employer on 30 April 2008 which contained a formal request
for recognition in the terms dictated by the Schedule. There was no evidence of any response to this
letter either.
5. According to the Union
there were 26 workers employed by the Employer with 24 workers in the proposed
bargaining unit. The Union
did not know whether the Employer agreed with the Union’s
estimate as to the number of workers in the proposed bargaining unit. There were 17 members of the Union
in the proposed bargaining unit and the Union was prepared
to provide evidence that a majority of the workers were likely to support
recognition for collective bargaining at a later stage if requested by the CAC.
6. The Union
explained that it had selected the proposed bargaining unit according to the
pattern of its membership and confirmed that the Employer had not agreed the
composition of the bargaining unit.
7. Finally, the Union
confirmed that it had not made a previous application for recognition in
respect of the workers in the proposed bargaining unit or a similar unit nor
was there an existing agreement that covered any of the workers in the proposed
bargaining unit.
The Employer’s response to the Union’s application
8. In its response to the Union’s
application dated 5 June 2008
the Employer stated that it had not received a request for recognition dated 14 August 2007. It was later, in November 2007 that with the
Employer’s approval the Union had approached the workers
in the proposed bargaining unit. The first
contact the Employer had from the Union requesting a
meeting to discuss recognition was on 31
January 2008. The Employer
responded to this letter on 11
February 2008 seeking clarification as to which workers the request
related and explaining that the matter would be raised at the forthcoming
meeting of the Employer’s board of directors.
9. The Employer confirmed that it received
a copy of the application form directly from the Union
and that prior to this it had not agreed the composition of the bargaining unit
with the Union. However,
whilst it now agreed the bargaining unit the Employer pointed out that the
description of the unit was incorrect and should be “Supervisors, Monitoring
Officers and Clerical Support”.
10. The Employer stated that it employed 29
workers and that it did not agree with the Union as to
its estimate of the number of workers in the bargaining unit: the Union
had given a figure of 24 whereas the correct number was 25. The Employer did not disagree with the
Union’s estimate of its membership in the proposed bargaining unit and when
asked to give reasons if it did not consider that a majority of the workers in
the proposed bargaining unit would be likely to support recognition of the
Union, simply annotated the form ‘n/a’.
11. 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. Finally, the Employer indicated that it had
not received any other applications for statutory recognition in respect of
workers in the proposed bargaining unit.
Considerations
12. In deciding whether to accept the
application the Panel must decide whether the admissibility and validity
provisions referred to in paragraph 3 of this decision are satisfied. In reaching its decision the Panel has carefully
considered all the evidence submitted by the parties. The Panel must be 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. In its application the Union
seems to be confusing a voluntary request for recognition with one made in
accordance with the Schedule. It makes
reference to having formally written to the Employer on 14 August 2007 but
having scrutinised the papers submitted it is clear to the Panel that the
statutory request relied upon by the Union for the purpose of this application
must be that set out in the letter dated 30 April 2008. The Panel is satisfied that this letter is a
valid request in that it was made in writing, identified the Union
and 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. The
Panel is further satisfied that, in the absence of any evidence to the contrary,
the application was made in accordance with paragraph 11 of the Schedule, in
that the Employer failed to respond to the Union’s formal request of 30 April
2008 before the end of the first period of 10 working days starting with the
day after that on which the Employer received the request for recognition.
13. The Panel notes that the point made by
the Employer in its response to the application as to the description of the
bargaining unit refers to the terms used to describe the workers therein rather
than any disagreement as to its composition and the Panel is satisfied that
both parties have a clear understanding as to which workers the application
concerns.
14. The remaining issue for the Panel to
address is whether the admissibility criteria set out in paragraph 36(1) of the
Schedule are met.
15. 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 Union
stated in its application that 17 out of the 24 workers in the proposed
bargaining unit were members of the Union. The Employer, whilst not contesting the level
of Union membership, has said that the true figure as to the number of workers
within the proposed bargaining unit is 25.
Union membership therefore stands at 68% of the proposed bargaining
unit. The Panel is accordingly satisfied
that Union membership exceeds the 10% threshold set by the Schedule.
16. The test in paragraph 36(1)(b) is whether
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. The Panel assumes that as there is no
reference in the application to a petition the Union relied
on its membership alone to support its position in respect of this test. The Employer, when given the opportunity to
explain any reasons it may have for disputing the Union’s
claim that a majority of the workers were likely to support recognition, elected
not to comment. In considering whether
this test is satisfied the Panel finds that it is swayed by the fact that the
Employer has not only agreed with the Union’s estimate as to its membership in
the bargaining unit but has also not challenged the Union’s claim that a
majority of the workers were likely to support recognition of the Union. The Panel is of the view that the level of
membership within the proposed bargaining unit can be a reasonable indicator of
the strength of support for the Union and it has therefore reached the
conclusion that, on the balance of probabilities, a majority of the workers in
the proposed bargaining unit would be likely to favour recognition of the Union
and accordingly, the test set out in paragraph 36(1)(b) is satisfied.
Decision
17. The Panel is satisfied that the
application is valid within the terms of paragraphs 5 to 9, is made in
accordance to with paragraph 11 and is admissible within the terms of
paragraphs 33 to 42 of the Schedule. The
application is therefore accepted by the CAC.
Panel
Professor Kenny
Miller, Chairman of the Panel
Mr Ken Cameron
Mrs Maureen
Chambers
17 June
2008