Decision

Validity Decision

Updated 12 September 2018

Case Number: TUR1/1049(2018)

18 July 2018

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

DETERMINATION OF THE BARGAINING UNIT

The Parties:

PROSPECT

and

Babcock Mission Critical Services Onshore Ltd

1. Introduction

1) PROSPECT (the Union) submitted an application to the CAC on 27 April 2018 that it should be recognised for collective bargaining by Babcock Mission Critical Services Onshore Ltd (the Employer) for a bargaining unit comprising “Those permanent employees in Maintenance engineering below that of Supervisors and for Pilots below that of Head of Flight Operations. For the avoidance of doubt this covers, licenced maintenance engineers and unlicenced maintenance engineers and all Pilots”. Asked to give the location of the bargaining unit the Union stated that the main location was at Staverton in Gloucestershire but the Employer operated a number of smaller bases across the country, however all were managed from Staverton. The CAC gave both parties notice of receipt of the application on 30 April 2018. The Employer submitted a response to the CAC dated 4 May 2018 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 deal with the case. The Panel consisted of Mr Barry Clarke, Chairman of the Panel, and, as Members, Mr Derek Devereux and Mr Paul Talbot. The Case Manager appointed to support the Panel was Nigel Cookson.

3) By a decision dated 29 May 2018 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. On 2 July 2018 the CAC was informed that the parties had met and agreed an appropriate bargaining unit which was: “Those permanent employees in Maintenance engineering below that of Supervisors and for Pilots below that of Senior Pilots and Training Captains. For the avoidance of doubt this covers licenced maintenance engineers and unlicensed maintenance engineers and Pilots, co-pilots and HHOs”. This differed from the bargaining unit originally proposed by the Union by the exclusion of the Senior Pilots and Training Captains.

2. Issues

4) Paragraph 20 of the Schedule states that where an application has, as in the present case, been accepted under paragraph 11 and the parties have agreed an appropriate bargaining unit that differs from the proposed bargaining unit then the CAC must, within the decision period, decide whether the application is invalid within the terms of paragraphs 43 to 50 of the Schedule. The tests that the Panel must consider under these paragraphs are:-

• is there an existing recognition agreement covering any of the workers within the new bargaining unit? (paragraph 44)

• is there 10% union membership within the new bargaining unit? (paragraph 45(a))

• are the majority of the workers in the new bargaining unit likely to favour recognition? (paragraph 45(b))

• is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? (paragraph 46)

• has there been a previous application in respect of the new bargaining unit? (paragraphs 47 to 49)

3. The membership 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 new 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 agreed 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 agreed bargaining unit and that the Union would supply, to the Case Manager, a list of its members within that unit to enable a comparison to be undertaken. 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 3 July 2018. The information from both parties was received by the CAC on 3 July 2018.

7) The Union provided a list of 65 union members in the agreed bargaining unit and the Employer provided a list of 125 workers.

8) The result of the membership and support check showed that 50 workers in the bargaining unit were members of the Union, giving a membership level of 40%. The Panel is satisfied that the check was undertaken appropriately and in accordance with the agreement reached with the parties.

9) The report of the result from the membership check was circulated to the Panel and the parties on 4 July 2018. Both parties were then invited to comment on the check and the further tests as set out in paragraph 4 above.

4. The Union’s comments on the result of the membership check

10) In an email dated 10 July 2018 the Union stated the only observation it had to make was that it appeared that one of its members who was currently employed by the Employer did not appear on the Employers list. Whilst the Union believed that this had no meaningful impact upon the bargaining unit check it could have an impact upon the ballot for recognition. The Union had not yet received agreement by the member for his name to be provided so the issue could be completely clarified, nevertheless it would request that this was raised with the Employer so that it was aware and could rectify any errors.

5. The Employer’s comments on the result of the membership check

11) By an email dated 13 July 2018 the Employer confirmed that it had no comments to make on the results of the Case Manager’s check.

6. Considerations

12) The Panel is satisfied, in the absence of any evidence to the contrary, 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 the workers constituting the new bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

7. Paragraph 45(a)

13) The membership and support check established that there was a membership level of 40%. As stated above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. The Panel is therefore satisfied that the test set out in paragraph 45(a) of the Schedule is met and that at least 10% of the workers constituting the new bargaining unit are members of the Union.

8. Paragraph 45(b)

14) Under paragraph 45(b) of the Schedule, an application is invalid unless the Panel decides that a majority of the workers constituting the agreed 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 membership check conducted by the Case Manager, as set out in paragraphs 5 to 13 above, showed that 40% of the workers in the agreed bargaining unit are members of the Union. When we were considering a similar test in respect of the bargaining unit originally proposed by the Union we made a number of points that are equally valid here. Firstly, as under paragraph 36(1)(b), the test under paragraph 45(b) is whether a majority of the workers constituting the agreed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit. In our decision to accept the application we reminded the parties that under paragraph 36(1)(b) we did not need to be satisfied that a majority of workers in the proposed bargaining unit actually supported recognition of the Union, only that a majority of workers would be likely to do so. The same proviso likewise applies in our consideration of the test under paragraph 45(b).

16) Secondly, we made clear that we considered that, having taken into account the evidence presented at that stage, all Union members would be likely to support recognition and we set out the reasons why we had arrived at this conclusion. We mentioned the commitment made by the members in joining the Union and paying their subscriptions and that in the absence of any evidence to the contrary, we took this as a sign of support for the Union’s campaign to seek recognition. We believe that this remains the case and nothing has been put forward by the Employer to counter this view.

17) Thirdly, the Panel referred to the bandwagon effect that it believed would occur the closer the process came to its conclusion especially as the Union would be afforded statutory access to the workers in order to inform them about its campaign for recognition and to seek their support. Again, we believe that this remains the case and no evidence has been put forward that would lead us to conclude otherwise.

18) Fourthly, we made the point about the difficulties faced by the Union in making contact with the workers in the proposed bargaining unit given that they work out of airports spread across England, Wales and Scotland and the limited opportunities this would present the Union with in both recruiting new members and seeking the workers views on recognition. These restrictions because of the locations remains the case in respect of the new bargaining unit.

19) Finally, in considering whether to accept the application we took into account the fact that the Employer did not challenge the Union’s claim to majority likely support and, once again, the Employer has not sought to argue that the test of likely support is not satisfied. We have taken this into account in reaching our decision.

20) For the reasons set out above the Panel is satisfied that the majority of workers constituting the relevant bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit and that the test set out in paragraph 45(b) of the Schedule is met.

9. Decision

21) 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.

Panel

Mr Barry Clarke, Chairman of the Panel

Mr Derek Devereux

Mr Paul Talbot

18 July 2018