Case
Number: TUR1/424/2005
11 February 2005
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:
NUJ
and
AOL (UK) Limited
Introduction
1. The NUJ (the Union) submitted an
application to the CAC, dated 11 January 2005, that it should be recognised for
collective bargaining purposes by AOL (UK) Limited (the Employer), in respect
of a bargaining unit, comprising 'Staff working at no.80 Hammersmith Road,
within the Production Department, who are profile 3 or below, who are eligible
to join the NUJ, and who have as a material part of their job function ‘getting
content up onto the AOL service (or Editorial) roles’. The CAC gave both Parties notice of receipt
of the application on 13 January 2005. On 20 January 2005 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 Linda
Dickens (Panel Chair), Mr Kenneth Anthony and Mr Keith Sonnet (Members).
The Case Manager appointed to support the Panel was Maverlie
Tavares and, for the purpose of this decision, Kate Norgate.
3. The Panel extended the statutory deadline for it to decide
if the Union’s application should be accepted by the CAC to11 February
2005 in order to allow time for a membership check to be carried out by the
Case Manager 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.
5. The Union, in its application to the
CAC dated 11 January 2005, stated that there were 73
workers employed in the proposed bargaining unit, 35 of whom were members of
the Union. It claimed that
around 50% are already in the Union and that it had agreed the bargaining unit with the
Employer.
6. The
Employer, in its response dated 20 January 2005 stated that, as a result of
recruitment and changed job responsibilities within the programming department
during 2004, it considered there were in excess of 90 falling within the
definition of the proposed bargaining unit. The Employer offered to
supply a list to the union representative. It stated that it believed the
Parties had reached an agreement on the principles and description of the
bargaining unit, although a small but significant typographical error had
appeared in the wording of the letter it received from the Union, dated 4 June
2004, on which the Union appeared to be basing its formal application for trade
union recognition. The Employer
emphasised that the bargaining unit had been agreed for the purposes of
negotiating a voluntary agreement, and it was prepared to accept that same unit
for the purposes of the current statutory recognition process. The Employer, in its response to the Union’s estimate of membership in
the proposed bargaining unit, stated that it has no information on the extent
of union membership within the proposed bargaining unit, save as provided in
the Union’s application. It expressed
that it was not in a position to judge whether a majority of workers are likely
to support recognition as it had not had the opportunity to address this matter
with the affected employees. The
Employer noted that it had set up a company wide consultation forum and
undertaken substantial consultation with a group of employees within the
proposed bargaining unit and considered it likely (and at the very least
possible) that the level of support for the recognition of the Union may have
declined as a result.
Membership Check
7. To assist the Panel’s consideration of
two of the requirements for admissibility specified in the Schedule, 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 favour 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 within the proposed bargaining unit. Both
Parties agreed 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 to enable a comparison to be
undertaken. It was explicitly agreed with the Parties that, to preserve
confidentiality, neither list would be copied to the other party.
The agreed arrangements were confirmed in a letter dated 24 January 2005 to both Parties. The information from both the Union and Employer was received 27 January 2005.
8. The Employer provided a list containing
the names, department and business titles of 91 workers. The Employer, in
sending its list of workers in the proposed bargaining unit made clear that its
definition of the proposed bargaining unit is that contained in the NUJ’s
application for recognition dated 4 June 2004 (save for the NUJ typo which
stated “profile 4” instead of “profile 3”), and includes “trainers or senior
trainers to the extent that their roles are primarily focused on the provision
of training in relation to the software and hardware tools which are used by
AOL employees to get content up onto the AOL service”. The Union provided a list of 37 members it considered to be in
its proposed bargaining unit.
9. The result of the membership check was that of the 91 workers
listed by the employer as in the Union’s proposed bargaining unit, 33 were members of the
NUJ; a membership level of 36.26%.
Views of the Union
10. The Union, in commenting on the outcome of the check, stated it
had received the list of the posts the Employer considered to be in the
bargaining unit. The Union stated that in its view only around 80 of those jobs
fell within its definition of the bargaining unit, and listed those posts which
it felt should be excluded (mainly on the grounds they were not editorial
roles). The Union voiced its belief that the
definition of the bargaining unit it had thought was agreed with the Employer
may need to be re-addressed. The union noted that excluding the specified posts
which fell outside its proposed bargaining unit took the level of membership
over 40%. In addition to this, the Union claimed it had the names of
four other members, which it had since discovered should also have been
supplied to the Case Manager for the membership check. The Union also stated that it had been contacted by the
Employer since the results of the Membership check, who informed them that its
numbers also included 7 people on fixed term contracts.
Views of the Employer
11. The Employer, in its response the Union’s application noted that it
had been seeking to progress a voluntary agreement with the Union since June 2004 and had
been waiting for the Union to propose a mechanism whereby employee support
within an agreed bargaining unit could be assessed. It disputed the claim made
by the Union in its application that the process had stalled. In
expressed the view that it was unfortunate that they did not have an
opportunity to discuss and agree with the Union the number and identity of
persons falling within the agreed bargaining unit prior to the application
being made to the CAC in January. In commenting on the Membership check, the
Employer stated that, in the light of the small difference in the size of the
group put forward by each party, it had explained to the Union that the names
of 7 fixed term employees have been included in the list, and whilst it felt
that these people fall within the definition of the bargaining unit, it
remained open to discussion as to whether or not this category of employee is
appropriate for inclusion, and if necessary to amend/clarify the bargaining
definition (to ‘permanent employees’ rather than the slightly looser current
wording of ‘staff’). The Employer stated
it is not in a position to comment on the Union’s list of members, nor is
it in a position to comment on whether union membership of itself is an
indicator of guaranteed support for union recognition in these
circumstances. It noted that during a
recent election for representatives on the recently introduced employee forum
no employee choose to mention membership of the NUJ.
Considerations
12. The Panel acknowledges the desire of the
employer to proceed on a voluntary basis in agreeing a bargaining unit and in
ascertaining support for recognition of the Union. However, as it is entitled
to do, the Union has made a formal application to the CAC which it has not
withdrawn and therefore we need to determine whether it should be accepted. 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 Employer and the Union in reaching its decision.
13. The Panel is satisfied that the Union made a valid request to the
Employer within the terms of paragraph 5 to 9 of the Schedule and that its
application was made in accordance with paragraphs 11 or 12. Furthermore, the application is not rendered
inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs
37-42 of the Schedule. The acknowledged typographical error in the
definition of the bargaining unit is noted and not seen as material.
14. The Panel has to decide 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 also, whether, under
paragraph 36 (1) (b), a 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.
15. The Panel is satisfied that the check,
which showed that 36.26% of the workers in the proposed bargaining unit were
members of the Union, was conducted properly. As noted, the correspondence
following the Membership check revealed some uncertainty around the exact
numbers in the unit as defined by the Union. We cannot resolve those issues at this point but
accept that it is probable that union membership within its proposed bargaining
unit is around 40%. The Panel is satisfied that members of the union do
constitute at least 10% of the workers in the proposed bargaining unit as
required by paragraph 36 (1) (a) of the Schedule.
16. The second issue for the Panel to consider
is whether, under paragraph 36(1)(b), a 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. The Panel is satisfied that this test has
been met.
17. For acceptance of the application the Schedule does not
require that a majority of workers in the bargaining unit be already members of
the union, nor 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 that the majority of workers in the bargaining
unit as defined by the Union are “likely”
to favour recognition of the Union. The Panel do not need to decide that a
majority of the workers are in
fact in favour. The Panel consider that it is therefore a matter of
informed judgement on their part based on the evidence before them to decide if
this test has been met. Actual support with the bargaining unit, as it is
eventually agreed or determined, falls to be tested at a later stage if
necessary.
18. We were given no evidence as to the views of those not in the
Union. It is the Panel’s view
that it is reasonable for it to believe that those members of the union, who
constitute at least 36% of the proposed bargaining unit favour its recognition
for collective bargaining. There is no
evidence to the contrary. The Case
Manager’s check indicated no decline in Union membership despite the setting up
of the consultation machinery, and experience suggests that there are likely to
be some workers not in the Union who would support recognition of it.
Decision
19.
For the reasons given above, the Panel’s decision is that the
application is accepted by the CAC.
Panel
Professor Linda Dickens MBE
Mr Kenneth Anthony
Mr Keith Sonnet
11 February 2005