Case Number: TUR1/444(2005)

31 August 2005

 

 

 

CENTRAL ARBITRATION COMMITTEE

 

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

 

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

 

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

 

THE DETERMINATION OF THE BARGAINING UNIT

 

 

The Parties:

 

UCATT

 

and

 

Millennium Stadium plc

 

 

Introduction

 

1.         UCATT (the Union) submitted an application to the CAC on the 24 March 2005 that it should be recognised for collective bargaining by Millennium Stadium plc (the Employer) for a bargaining unit comprised of “Manual/Security/Tour Guide staff employed full/part time based permanently at the Millennium Stadium as their place of work.”

 

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 Paul Davies, Panel Chairman, and, as Members, Mr Dennis Scard and Mr Neil Wallace.  The Case Manager appointed to support the Panel was Miss Maverlie Tavares.

 

3.         By a decision dated 27 June 2005, the Panel accepted the Union’s application and, as no agreement had been reached on the bargaining unit, subsequently invited both Parties to supply the Panel with, and exchange, written submissions relating to the question of determining an appropriate bargaining unit.  A hearing was held on 28 July 2005.  The Panel decided that the appropriate bargaining unit should be that proposed by the Employer and consist of “all permanent employees of the Millennium Stadium plc excluding the Chief Executive and the employees in the Group Services Department.”

 

4.         As the determined bargaining unit differed from that proposed by the Union, the Panel is required by paragraph 20 of the Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 to determine whether the Union’s application is valid or invalid within the terms of paragraphs 43 to 50 of the Schedule. 

 

Case Manager’s membership and support check

 

5.         To assist the determination of the two admissibility tests under paragraph 45 (a) and 45 (b) of Schedule A1, namely whether 10% of the workers in the determined bargaining unit are members of the Union and whether a majority of the workers in this bargaining unit are likely to favour recognition of the Union, the Panel instructed that the Case Manager carry out checks on the level of union membership within the determined bargaining unit and the number of workers who had indicated support for recognition of the Union for the purposes of collective bargaining.

 

6.         The Parties agreed that the Employer would supply, to the Case Manager, a list of the names of workers within the determined bargaining unit and that the Union would supply, to the Case Manager, a list of its union members within that unit and a copy of its evidence in support of the Union to enable a comparison to be undertaken.  The Employer provided a list of 52 workers, which was received by the CAC on 8 August 2005. The Union provided a list of 16 union members in the determined bargaining unit, and a petition in the form of eight letters of intent supporting recognition of the Union. This was received by the CAC on 10 August 2005. It was explicitly agreed with both Parties that, to preserve confidentiality, the respective lists would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to both Parties dated 5 August 2005.   

 

7.         The result of the membership and support check showed that there were 52 workers in the bargaining unit of whom 14 were members of the Union, giving a membership level of 26.92%.  The Union’s petition was in the form of eight letters of intent supporting recognition of the Union, and the check showed that they had been signed by 7 non-union member workers in the bargaining unit (13.46%).  The report of the result from the membership and support check was circulated to the Panel and the Parties on 10 August 2005. Both Parties were then invited to supply comments relating to the validity tests and the membership check report. 

 

Union’s comments

 

8.         The Union submitted that even though it only had two days, (8th and 9th August 2005), it was able to show that there had been in an increase in support for it, (the names of 24 workers it had provided for the membership and support check), and that should indicate to the Panel that the majority of workers in the bargaining supported its application for recognition. It requested that the Panel should grant it recognition for the bargaining unit it had determined. The Union was surprised that three workers from the names it had provided for the membership and support check were not on the Employer’s list, and it had been reliably assured that they were working, and directly employed by the Employer. The Union also requested that the CAC review the decision it had made on determining the bargaining unit. It argued that two senior managers did not sit comfortably in the bargaining unit, but did state it would abide by the directive given to it.

 

Employer’s comments

 

9.         The Employer did not comment on the tests but sought clarification on whether the workers who had signed the letters of intent were union members, and did not understand why two union members and one signatory from the letters of content were not on the list it supplied. The Employer also stated the Union had encouraged people to sign its letter of intent up to the day of 9 August 2005, and had not sought the Employer’s approval to approach staff. It continued that this had shown that the Union had no respect for its business and undermined the authority of the CAC and the process as whole which it had been adhering to.

 

10.       On receipt of the Union’s comments on the validity tests, the Employer attested that the two managers that the Union did not want included in the bargaining unit had already been included in it by the Panel. It asked for the statutory process to be concluded without further delaying tactics from the Union. The Employer argued that the Union could withdraw its application or the process could proceed to a ballot.

 

Further evidence for the membership and support check

 

11.       Following the Union’s comment that it was only allowed two days to approach workers of the Millennium Stadium regarding support for its application, the Panel gave both Parties further time to provide evidence on the validity tests. In an email received on 22 August 2005, the Employer stated that five union members had cancelled their union membership and had confirmed in writing that they no longer wished to be represented by the Union. The Employer asserted that this would mean the union membership had reduced to 11 members in the bargaining unit. The Employer also stated that it had been verbally informed that none of the employees in the bargaining unit wanted to be represented by the Union. It claimed this showed the support for the Union to be recognised was approximately 20%. Although invited to do so, the Employer did not provide any evidence to substantiate these claims. The Union declined the invitation to provide further evidence of support for its application.

 

Considerations

 

12.       The Panel is satisfied on the evidence available that the application is valid in terms of the tests laid down in paragraphs 44 and 46 to 49 of the Schedule, namely that there is no existing recognition agreement in force, that there is no competing application and that there has been no previous CAC application in respect of the new bargaining unit.  The remaining tests before the Panel are whether, in accordance with paragraphs 45(a) and (b) of the Schedule, 10% of the workers constituting the new bargaining unit are members of the union and whether a majority of those workers would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

 

13.       The difference between the proposed and determined bargaining unit is the inclusion of 31 additional workers from the following departments: venue sales, ticketing, business development and stadium operations.  The Case Manager’s check established that 26.92% of the workers in the bargaining unit were members of the Union.  The evidence available before the Panel, therefore, establishes that at least 10% of the workers in the bargaining unit are members of the Union, and that the Union has met the admissibility test stipulated in paragraph 45(a) of Schedule A1. 

 

14.       The second issue for the Panel to consider is whether, under paragraph 45(b), a majority of workers constituting the bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit.  The Union’s petition, in the form of letters of intent, was signed by 13.46% of the workers in the bargaining unit. These were all non-union members. If the test of a majority of workers being likely to favour recognition of the Union were a matter of simple arithmetic, then it would require the addition of only six more workers to the seven letters of intent to show a numerical majority.   The Panel is satisfied that on the balance of probabilities it is likely that amongst the 31 other workers support of recognition would exist to this limited extent. Given the difficult relationship between the Parties which may have hindered the Union from approaching more workers for their support, and the increased level of support demonstrated in the number of signed letters of intent from non-union members, the Panel thinks the Union has satisfied this test. The Panel recognises that this is not a definitative test of support and it is for this reason that decisions on whether a Union should be recognised are never taken at this stage of the procedure. 

 

Decision

 

15.       The decision of the Panel is that the application is valid for the purposes of paragraph 20 of the Schedule and the CAC will therefore proceed with the application. Since the Union does not have a majority membership in the bargaining unit, the Panel will proceed to organise a secret ballot of the workforce in order to make a definitive assessment of their support for the Union’s application, unless the Union or the Union and the Employer jointly give notice under paragraph 24 that they do not wish a ballot to be arranged.

 

 

Panel

 

Professor Paul Davies

Mr Dennis Scard

Mr Neil Wallace

 

31 August 2005