Decision

Acceptance Decision

Updated 8 November 2019

Case Number: TUR1/1140 (2019)

08 November 2019

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:

National Education Union

and

Plymouth College

1. Introduction

1) The National Education Union (the Union) submitted an application to the CAC dated 16 October 2019 that it should be recognised for collective bargaining by Plymouth College (the Employer) for a bargaining unit comprising “Academic teaching staff” based at Plymouth College Senior School, Ford Park, Plymouth PL4 6RN and Plymouth College Preparatory School, St Dunstan’s Abbey, The Millfields, Plymouth, PL1 3JL. The CAC gave both parties notice of receipt of the application on 16 October 2019. The Employer submitted a response to the CAC dated 25 October 2019 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 Professor Gillian Morris, Panel Chair, and, as Members, Mr David Coats and Mr Derek Devereux. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 30 October 2019. The acceptance period was extended to 12 November 2019 in order to allow time for the parties to comment on the results of a membership check and for the Panel to consider these comments before arriving at a decision.

2. Issues

4) The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) 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; is admissible within the terms of paragraphs 33 to 42; and therefore should be accepted.

3. Summary of the Union’s application

5) In its application to the CAC the Union stated that it had made a request for voluntary recognition to the Employer on 22 May 2019 which had been declined by the Employer via email on 12 July 2019. The Union said that it had sent its formal request for recognition under the Schedule to the Employer on 27 July 2019, in a letter dated 25 July 2019, and that it had received a response from the Employer on 7 August 2019 declining its request. A copy of all the correspondence referred to by the Union was attached to its application.

6) When asked whether the Union had made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Union answered “N/A”. The Union stated that, following receipt of the request for recognition, the Employer had not proposed that Acas should be requested to assist the parties.

7) The Union stated that the total number of workers employed by the Employer was 135, a figure taken from the Employer’s website on 4 October 2019. The Union stated that there were 60 workers in the proposed bargaining unit, of whom 54 were members of the Union as of 4 October 2019. When asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining the Union stated that it could supply evidence to the CAC on a confidential basis.

8) The Union stated that the reason for selecting the proposed bargaining unit was because it was a group of professional staff, sharing the same general terms and conditions, mechanisms for pay increases and professional work concerns. The Union stated that it was also a coherent and business efficient group to be collectively represented and it was a readily identifiable group by those within it, and by the Employer, schools in general and the public. The Union said that the bargaining unit had not been agreed with the Employer. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit.

9) The Union confirmed that it held a current certificate of independence and attached a copy of this to its application. The Union stated that it had copied the application made to the CAC, and supporting documents, to the Employer on 16 October 2019.

4. Summary of the Employer’s response to the Union’s application

10) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition under the Schedule on 25 July 2019. The Employer said that the request had been declined and attached a copy of its email of 7 August 2019 which stated this. The Employer said that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist.

11) The Employer stated that it had received a copy of the Union’s application form from the Union on 16 October 2019. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union and that it did not now agree it. The Employer stated that it was unconvinced that the existing arrangements for staff consultation would be improved by statutory recognition being granted whether in relation to the proposed bargaining unit or in relation to its employees as a whole. The Employer stated that the Union itself had said that it had worked very closely and very successfully with the Employer in recent years and as such it was unclear how formal recognition would in any way enhance this. The Employer said that if it had a choice as to whether to have a bargaining unit limited to academic teaching staff or one that embraced the whole workforce, it would very much prefer the latter. The Employer said that it would be unhelpful to have fragmented bargaining groups as it would prefer to be able to consult its employees as a whole. The Employer stated that, whilst there were some issues that affected academic teaching staff but not the remainder of its employees, and vice versa, it made sense to deal with all of its employees as a single, unified grouping rather than to segment the employees by reference to the Union’s rather different interests. The Employer stated that whilst the Union was seeking to restrict its involvement to one group of employees, perhaps because of its target membership, the Employer would wish to treat its employees, whatever their role, as part of a single team which had the best interests of the students at heart. The Employer said that to fragment the staff in such a way would be counterproductive and work against attempts by management to move away from a ‘them and us’ culture that existed between teachers and support staff and move towards a ‘one team’ culture. The Employer stated that to quote from the Union’s own website:

Approximately 100 independent schools negotiate staff terms and conditions with NEU, of which roughly half include all support staff as well as teachers. As a modern trade union, NEU believes in the ethos of the school community and that the contribution of all staff is equally important. Consequently, the NEU welcomes into membership all staff working in the independent sector: teachers and teaching assistants, technicians and librarians, office administration and cleaners, grounds and caretaking staff.

12) The Employer stated that there were 84 workers in the proposed bargaining unit. The Employer stated that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer said that it had no information to confirm or deny the estimate given by the Union. When invited to give its reasons if it did not consider that a majority of the workers in the proposed bargaining unit would be likely to support recognition, the Employer stated that it did not know the details of the Union’s membership within the proposed bargaining unit, nor within the Employer as a whole. The Employer said that it was not convinced that the majority of its employees (both teachers and support staff) had an active interest in the Union being granted recognition rights or that its employees in the wider group wanted the Union to have statutory recognition. The Employer said that it had consulted with its employees in relation to a number of issues in the recent past and had not been aware of any general feeling amongst them that those consultation processes were unsatisfactory or that consultation could have been carried out more quickly or effectively via a recognised trade union. The Employer said that the consultation over pension changes, carried out earlier in 2019 through an existing consultative body, was one example of effective consultation that had taken place. The Employer said that as well as disagreeing with the composition of the proposed bargaining group, the Employer remained deeply concerned about the circumstances around, and manner in, which the Union had conducted its alleged consultation of its proposed bargaining group and would wish to have an opportunity to give more details of this during the process.

14) In answer to the questions whether it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, or whether it had received any other applications in respect of workers in the proposed bargaining unit, the Employer answered, respectively, “None” and “Not applicable”.

5. The Membership Check

15) To assist the determination of two of the admissibility tests specified in the Schedule, namely, 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 would be 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 an independent check of the level of union membership within the proposed bargaining unit. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, dates of birth and job titles of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of its paid up members within that unit (including their full name and date of birth). It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 28 October 2019 from the Case Manager to both parties. The information from both parties was received by the CAC on 30 October 2019. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

16) The list supplied by the Employer indicated that there were 89 workers in the proposed bargaining unit. The list of members supplied by the Union contained 52 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 50, a membership level of 56.18%.

17) A report of the result of the membership check was circulated to the Panel and the parties on 30 October 2019 and the parties were invited to comment on the result by 4 November 2019.

6. Summary of the parties’ comments on the result of the membership check

18) In an e-mail to the Case Manager dated 4 November 2019 the Employer stated that it could not comment on whether 10% of the workers in the proposed bargaining unit are members of the union as required by paragraph 36(1)(a) as it had no evidence that touched on the accuracy of the Union’s membership list. The Employer made a number of comments on whether a majority of the 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 (paragraph 36(1)(b). First the Employer submitted that non-membership, in the context of a determined recruitment campaign by the Union, should be treated as an indication against a wish on the part of non-members for there to be recognition; on that basis, 44% of those in the proposed bargaining unit would appear not to be sufficiently motivated even to join the Union let alone to ask for recognition. Secondly the Employer submitted that mere membership of a union did not make it “likely” that a person was also in favour of recognition; there were many other benefits available to union members and those members within the Employer had already had the benefit of membership in this way. Thirdly the Employer said that the union was actively recruiting members during a consultation process concerning a proposed exit from the Teachers’ Pension Scheme. The Employer said that naturally enough some of the affected employees felt that membership of and advice from a union would be helpful in the context of that consultation but that this was not the same as being likely to vote for recognition. Fourthly the Employer said that there had been an informal ballot on recognition conducted by the Union but that there had been no independent supervision of this ballot and it was in the context of the pension consultation that was, inevitably, a difficult process for all concerned. The Employer submitted that a new ballot, run independently and not in the context of a contentious pension change, would not necessarily have had the same outcome and that the Union had acknowledged at the time that the ballot was by way of a recruitment exercise. The Employer also said that it felt that the purpose of this informal ballot was not at all clear to those being balloted and suspected that those being balloted were under the impression that voting “yes” might be a necessary part of the pension consultation process which was not the case. The Employer submitted that the informal ballot should not be treated as being anything like a reliable indication as to the likely outcome of a properly conducted ballot.

19) No comment on the result of the membership check was received from the Union.

7. Considerations

20) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 above are satisfied. The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision.

21) The Panel is satisfied that the Union made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that its application was made in accordance with paragraph 11. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

8. Paragraph 36(1)(a)

22) Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the union constitute at least 10% of the workers in the proposed bargaining unit. The membership check conducted by the Case Manager (described in paragraphs 15 and 16 above) showed that 56.18% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 15 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 has therefore decided that members of the union constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

9. Paragraph 36(1)(b)

23) Under paragraph 36(1)(b) of the Schedule, an application is not admissible unless the Panel decides that a majority of the 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. For the reasons given in paragraph 22 above the Panel has concluded that the level of union membership within the bargaining unit stands at 56.18%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union. It follows that the Panel does not accept the Employer’s submission that mere membership of a union does not make it “likely” that an individual would favour recognition in the absence of factual evidence being provided to the Panel to support such a submission. No such evidence was provided in this case. The Panel notes the Employer’s evidence that the Union was actively recruiting members in the context of a consultation process concerning a proposed exit from the Teacher’s Pension Scheme. The Panel has not investigated further whether this was the case but does not consider that, even if it were, it would necessarily mean that those who joined the Union in that context would not be likely to support recognition; indeed, it is equally possible that this experience would make it more likely that they would do so.

24) On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, a majority of the 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, as required by paragraph 36(1)(b) of the Schedule. For the avoidance of doubt the Panel has not taken into account, in reaching this conclusion, the informal ballot which the Employer, in its comments on the membership check, said had been conducted by the Union.

25) The Panel notes the Employer’s comment in paragraph 18 above that it had no evidence that touches on the accuracy of the Union’s membership list. The Panel notes that the system of membership checks employed to determine whether the admissibility tests in paragraph 36 are satisfied relies on the good faith and honesty of both parties in supplying information. The Panel has received no evidence which leads it to suspect that either party has not acted honestly and in good faith in relation to this application and in accordance with the arrangements agreed with the parties.

10. Decision

26) For the reasons given in paragraphs 21 to 25 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mr David Coats

Mr Derek Devereux

08 November 2019