Case Number: TUR1/328/2003

Case Number: TUR1/450/2005

29 June 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:

Transport and General Workers Union

and

easyJet

Introduction

1. The Transport and General Workers Union (the Union) submitted an application to the CAC dated 18 April 2005 that it should be recognised for collective bargaining by easyJet (the Employer). The Union’s proposed bargaining unit was described as all employees at Easyjet/Easyland employed in the Contact Centre as Customer Service and Sales located at London Luton Airport. The CAC gave both Parties notice of receipt of the application on 20 April 2005. The Employer submitted its response to the application on 27 May 2005; the response 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 Frank Burchill (Deputy Chairman) and as Members, Mr Ken Anthony and Mr Derek Hodgson. The Case Manager appointed to support the Panel was Sarah Kendall.

3. The Panel is required by the Act to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 8; 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.

4. The CAC Panel has extended the acceptance period in this case on four occasions. The initial period expired on 5 May 2005. The period was extended to 13 May and 31 May 2005 to enable the Panel on both occasions to consider the evidence before it. The period was further extended to 14 June 2005 to enable the Case Manager to conduct a membership and support check, for the Parties to comment on the subsequent report and for the Panel to consider said comments before arriving at a decision. The period was extended for a final time to 30 June 2005 to enable the Panel to formulate its written decision.

5. In the Employer’s letter dated 3 May 2005 it stated that contrary to the information given in the Union’s application the Employer had responded to the Union’s initial letter of request for recognition (in e-mail format) dated 17 November 2004, within 10 days of receipt of the Union’s initial request. The Employer stated that this initiated discussions between the Union and the Employer with Acas facilitating meetings on 17 March, 11 April and 4 May 2005. The Employer stated that as it had, before the first period expired, informed the Union of its willingness to negotiate with a view to agreeing the bargaining unit, therefore the second period (in accordance with paragraph 10(2) of the Schedule) had commenced. It was the Employer’s belief that because the Union had submitted an application to the CAC before the second period had closed the Union was “out of process”.

6. The Union, in a letter dated 3 May 2005 from the Case Manager, was invited to comment on the Employer’s claim. In a letter dated 6 May 2005 the Union stated that the Employer had responded to its initial letter dated 17 November 2004 which was subsequently withdrawn and a new initial letter dated 24 March 2005 was issued to the Employer. The Union stated that the Employer had not responded to that request which resulted in the Union submitting the application dated 18 April 2005.

7. In its response dated 27 May 2005 to the Union’s application the Employer, further to the correspondence noted in paragraph 5 of this decision, stated that it had not responded to the Union’s request dated 24 March 2005 because it had nothing further to add to the comments made in its response of 23 November 2004. The Employer also contended that there was an agreement that the Union would not proceed with its second application to the CAC and that it should not regard the Union’s letter of 24 March 2005 as a further request under Schedule A1 to the Employer until the outcome of the discussions with Acas were known.

8. The Employer stated that Acas had conducted a membership check on behalf of the Parties on 30 April 2005 and confirmed that the union membership level was 46.25%. A further membership check was conducted by Acas at the behest of the Union which revealed a membership level of 49%.

9. The Employer reported that it employed 3534 workers, 168 of those worked within the definition of the Union’s proposed bargaining unit. The Employer argued that it had no way of verifying the details provided to Acas for the purposes of the membership check and believed that the Union had failed to attain the requisite level of union membership. The Employer also stated that it did not consider that a majority of the workers in the Union’s proposed bargaining unit were likely to support the Union. The Employer argued that the Union’s proposed bargaining unit was unsuitable. However, it is not appropriate to consider this matter at this stage.

Membership and petition check

10. To assist the determination of two of the admissibility criteria, the Panel proposed that the Case Manager should undertake checks of the level of union membership within the Union’s proposed bargaining unit and the number of workers within that unit who had signed the Union’s petition. The criteria are, firstly, under paragraph 36(1)(a) of the Schedule, whether 10% of the workers in the proposed bargaining unit are members of the Union and, secondly, under paragraph 36(1)(b), whether a majority of workers within that unit would be likely to favour recognition of the Union.

11. The Parties agreed that the Employer would supply, to the Case Manager, a list of the names of the workers within the proposed bargaining unit and that the Union would supply, to the Case Manager, a list of Union members within that unit together with evidence that the members were up to date with their subscriptions in accordance with the rules, 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. Additionally, the Parties agreed that the Union would provide confidentially a copy of the petition to test support for collective bargaining in the proposed bargaining unit so that a check could be undertaken by the Case Manager of the number of workers within that unit who had signed the petition. The agreed arrangements were confirmed in a letter dated 6 June 2005 to both Parties. The information was received from the Union on 7 June 2005 and the Employer provided the information on the 8 June 2005.

12. The Employer provided a list containing the Employee ID, preferred name, surname, job title, organisation unit, organisation unit description, start date, date left and date of birth of the 173 workers in the Union’s proposed bargaining unit. The job titles were noted as Telesales agents and Customer Support Agents.

13. The Union provided a copy of a membership printout broken down in the following categories; membership number, call centre, Mail name, Postcode, DOE (Date of Employment), Pay and Employer. The Union’s printout stated that 44 Union members’ subscriptions were paid by check off, 28 Union members’ payments were made by direct debit and one individual paid on a cash basis. The Case Manager had requested that the Union provide the date on which the last payment had been received. This information had not been supplied to the Case Manager, who in a telephone conversation with the Union clarified that the check off payments were up to date and the direct debit payments automatically cleared on a monthly basis. Although the Union provided the relevant paragraphs concerning the rules of membership subscriptions this was not used by the Case Manager.

14. The Union’s petition contained 114 signatures on five sheets each made up of four columns and 18 rows. (However the Union had registered 110 signatures as the total) On the petition was the statement “We the undersigned call upon EASYJET (Staff Grades) to recognise the Transport and General Workers Union (T&G) for the purposes of collective bargaining including wages and conditions”. There was no date on the petition and no dates against the signatories.

15. The result of the membership check was that there were 173 workers in the Union’s proposed bargaining unit of whom 69 were members of the TGWU; a membership level of 39.88%. The check of the petition showed that it had been signed by 55 of the 173 workers (31.79%). Of those 55 signatories, 36 (20.81%) were union members and 19 (10.98%) were non-members.

16. The Case Manager’s report detailing the result of the checks was circulated to the Panel and the Parties on 13 June 2005.

Views of the Union

17. In its response sent by e-mail on 14 June 2005 the Union questioned the number of workers in the Employer’s list. The Union referred to a meeting held with the Employer prior to the membership check conducted by Acas where it was established that there were 160 workers in the proposed bargaining unit. When the Employer provided the information to Acas the figure had risen from 160 to 184. When Acas sought clarification from the Employer on that figure, the Employer realised they had inadvertently included managers. The Employer then put forward the names of 168 workers in the proposed bargaining unit minus managers, consultants, contractors and temporary staff.

Views of the Employer

18. The Employer accepted the evidence set out in the Case Manager’s membership and support check report that the membership level within the proposed bargaining unit was at 39.88%, substantially exceeding the requisite 10% required by paragraph 36(1)(a) of the Schedule. However, the Employer argued that a majority of its employees in the Union’s proposed bargaining unit were not in favour of easyJet recognising the T&G for the purposes of collective bargaining. It stated that an excessively high number of workers whom the Union indicated were in the proposed bargaining unit, had signed the petition indicating that they wished to sign away their right to individual bargaining with the Employer but who had not felt that it was appropriate to identify themselves completely. From a total of 114 signatures less than half disclosed their names on the petition form which meant that only 71 of the 114 names where legible. The Employer concluded that there was a significant trend which established that the workers in the Union’s proposed bargaining unit were not fully supportive of the recognition proposal.

19. In a further e-mail dated 16 June 2005 the Employer stated that it reviewed the list it had forwarded to the CAC containing 173 names of call centre and customer service agents employed by the Employer in the proposed bargaining unit. It clarified that the information was accurate as of 7th June when the list was prepared. The Employer stated that the reason for the increase in the number employed within the proposed bargaining unit was due to a recent recruitment campaign.

Considerations

20. The Panel decided that in view of the point raised by the Employer detailed at paragraph 5 of this decision, it was necessary to consider first whether the application was made in

accordance with paragraphs 11 or 12, which read:

11. – (1) This paragraph applies if-

(a) before the end of the first period the employer fails to respond to the request, or

(b) before the end of the first period the employer informs the union (or unions) that the employer does not accept the request (without indicating a willingness to negotiate).

(2) The union (or unions) may apply to the CAC to decide both these questions-

(a) whether the proposed bargaining unit is appropriate or some other bargaining unit is appropriate;

(b) whether the union has (or unions have) the support of a majority of the workers constituting the appropriate bargaining unit.

12. - (1) Sub-paragraph (2) applies if-

(a) the employer informs the union (or unions) under paragraph 10(2), and

(b) no agreement is made before the end of the second period.

(2) The union (or unions) may apply to the CAC to decide both these questions-

(a) whether the proposed bargaining unit is appropriate or some other bargaining unit is appropriate;

(b) whether the union has (or unions have) the support of a majority of the workers constituting the appropriate bargaining unit.”

21. The Panel has considered the evidence provided by both Parties on this issue. The Employer acknowledged the receipt of the Union’s recognition request letter dated 24 March 2005 in its response form. Although the Employer does not state on what date the Union’s letter was received, it is the opinion of the Panel that the Union would have posted the letter to the Employer on the date the letter was drafted. In the absence of any evidence from the Employer, it is the Panel’s view that on the balance of probabilities, the letter would have been received by the Employer within 48 hours (2 working days) and taking into consideration the Easter bank holidays the Employer would have received the letter by 31 March 2005. The Employer did not respond to the Union’s letter of 24 March 2005 and there has been no assertion from the Employer that an oral response was given. Albeit that meetings were taking place as a result of the first request dated 17 November 2004, the second request letter dated 24 March 2005 had not been responded to by 14 April 2005. Therefore the Union is entitled, following the explicit structure of paragraph 11 to apply to the CAC.

22. The Panel has also to decide whether the Union’s application is admissible within the terms of paragraphs 33 to 42 of the Schedule. The Union’s application and the Employer’s response along with all the other evidence submitted by the Parties satisfies the Panel that the Union’s application is admissible within the terms of paragraphs 33 to 35 and 37 to 42.

23. The outstanding question which the Panel must address is whether the application is admissible within the terms of paragraph 36 of the Schedule, namely, whether members of the Union constitute at least 10% of the workers in the bargaining unit (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union for the purposes of collective bargaining (paragraph 36(1)(b)).

24. The Case Manager’s membership check established, as indicated in the report dated 13 June 2005, that 39.88% of the workers in the proposed bargaining unit are members of the Union. The Employer has not disputed this figure and the Panel has not been made aware of any evidence that would suggest other than that the figure is accurate. The Panel is therefore satisfied, on the evidence available to it, that at least 10% of the workers in the proposed bargaining unit are members of the Union and that the Union’s application is therefore admissible within the terms of paragraph 36(1)(a).

25. In considering the test set out in paragraph 36(1)(b) of the Schedule the Panel considered all of the evidence submitted by both Parties both before and after the Case Manager’s check, which had established that 55 workers, from within a proposed bargaining unit totalling 173 workers, had signed the Union’s petition (that being 31.79% of the proposed bargaining unit signalling their apparent support for the Union). Drawing on its industrial relations experience, expertise and knowledge the Panel was not persuaded by the Employer’s argument “that there was a significant trend which established that the workers in the Union’s proposed bargaining unit were not fully supportive of the recognition proposal”. Its view was that often a Union is powerless to supervise the completion of a petition and has to rely on shop stewards or volunteers to take the task forward. However, the Panel notes that the petition could have given a clearer indication that a printed name was required but this does not alter the fact that a significant number of workers did sign the petition and identified themselves by printing their names. The individuals who could not be identified were not included in the Case Manager’s report. The Panel considers that, in the absence of evidence to the contrary, the level of union membership, together with those individuals who signed the petition who were not members of the Union provides a legitimate indicator of the views of the workers in the proposed bargaining unit. The Panel is accordingly satisfied that the 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 in accordance with the requirements of paragraph 36(1)(b) of the Schedule.

26. The Panel considers that its duty at this stage in the statutory procedure is to be satisfied that there is a likelihood that there is a body of workers that favour recognition of the Union for the purposes of collective bargaining on their behalf. Furthermore, the Panel must be satisfied that the body of workers likely to favour recognition amounts to a majority of those in the proposed bargaining unit. Being likely to favour recognition of the Union is markedly different from being guaranteed to support the Union – convincing evidence of the latter may be gleaned from a secret ballot and it is not the task of the Panel to determine guaranteed support but, under paragraph 36(1)(b), it must determine that the application is underpinned by persuasive evidence. The consequences of accepting an application are weighty, and may affect both Parties in the longer term. The Panel’s view is that the consequence of having a ballot must only be faced where there is sufficient evidence to lead it to conclude that recognition supportive views exist amongst a majority of the workers in the proposed bargaining unit.

27. The Panel is satisfied, in accordance with paragraph 36(1)(b) of the Schedule, that a majority of workers constituting the relevant bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on their behalf.

28. In addition, the Panel is satisfied, after considering all the documentation submitted by the Parties, that the Union’s application meets the remaining statutory tests.

Decision

29. The Panel's decision is that the application is accepted by the CAC.

Panel

Professor Frank Burchill

Mr Ken Anthony

Mr Derek Hodgson

29 June 2005