26 Jan 2018

In the cases of IWGB v Cordant Security Ltd TUR1/1026 (2017) and IWGB v University of London TUR1/1027 (2017), the Central Arbitration Committee (CAC) has recently considered whether a trade union representing outsourced workers could collectively bargain with the employer (which already recognised a union) and whether it could bargain with the end-user/client.

Facts

Cordant Security Ltd (Cordant), a facilities management company, had been appointed to provide a wide-range of services to the University of London (the University) under an outsourcing arrangement. This included cleaning, security and front of house services, and involved around 75 support workers (consisting of security, post room workers, porters and receptionists) being outsourced to the University. The workers were technically employed by Cordant but carried out their services at the University. Under the outsourcing arrangements, the workers were not entitled to the same rights and benefits as those directly employed by the University, even though the University substantially determined their terms and conditions.

On 21 November 2017, the Independent Workers Union of Great Britain (IWGB) filed a legal claim with the CAC on behalf of the 75 support workers. As part of its application, the IWGB sought statutory recognition with both Cordant and the University under Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). It also sought to claim that, despite Cordant being the primary employer of the support workers, Article 11 of the European Convention on Human Rights (ECHR) entitled the workers to negotiate with their "de facto" employer (ie the University), irrespective of the outsourcing arrangements.

The matter was considered by the CAC.

CAC decision

The CAC first considered the application for joint recognition against both Cordant and the University. It rejected the application and held that it was inadmissible on the following grounds:

  • Cordant already recognised Unison for collective bargaining. Paragraph 35 of Schedule A1 of TULRCA states that "an application is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit"
  • The absence of any contract between the support workers and the University was fatal to the application. This was because Section 296(1) of TULRCA defines worker as "an individual who works, or normally works or seeks to work under a contract of employment"

In regards to IWGB's claim under Article 11 of the ECHR, the CAC did not rule on whether this provides unions with a right to collectively bargain with a "de facto" employer. It stated that any decision to expand the scope of statutory recognition would be a matter for Parliament and the question of whether Section 296 was incompatible with Article 11 would be a matter for the High Court.

Comment

The decision will be good news for employers, particularly those that engage in outsourcing activities. It also reinforces the principle that workers can only collectively bargain with their primary employer (and not a "de facto" employer), and rejects the possibility of unions seeking to gain joint recognition with an end-user/client.

Interestingly, the CAC reaffirmed its view that to allow the application to proceed would "transform the statutory machinery for collective bargaining" by allowing two unions the right to bargain with two employers over the terms of the same group of workers. It also went on to state that to allow the application would go against the CAC's statutory duty to promote "fair and efficient practices and arrangements in the work place."