Decision

Acceptance Decision

Updated 5 June 2020

Case Number: TUR1/1176(2020)

4 June 2020

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:

NEU & NASUWT

and

Box Hill School Trust Limited

1. Introduction

1) The NEU & NASUWT (the Unions) submitted an application to the CAC dated 22 May 2020 that they should be recognised for collective bargaining by Box Hill School Trust Limited (the Employer) for a bargaining unit comprising “Teachers and newly qualified teachers”. The location of the bargaining unit was given as Box Hill School, London Road, Mickleham, Dorking RH5 6EA. The application was received by the CAC on 26 May 2020 and the CAC gave all parties notice of receipt that day. The Employer submitted a response to the CAC on 1 June 2020 which was copied to the Unions.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case. The Panel consisted Professor Gillian Morris, Panel Chair, and, as Members, Miss Mary Canavan and Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Nigel Cookson.

2. Issues

3) The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Unions’ 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 Unions’ application

4) In their application the Unions said that they had written to the Employer by email with a formal request for recognition on 12 March 2020. A copy of the Unions’ letter was attached to the application. The Unions said that they had received a response from the Employer on 20 March 2020 which stated that the Employer wished to engage constructively with such a request once it had been received. The Unions said that a further email had been sent to the Employer on 25 March 2020 inviting representatives of the school to engage in discussions over formal recognition with a proposed agreement attached. The Unions said that on 14 May 2020 the Employer had telephoned to apologise for the delayed response and had reasserted its desire to engage in talks after the Employer had consulted lawyers. The Unions said that, due to the mounting delays, they had opted to proceed with this application.

5) When asked to provide evidence that the Unions concerned would cooperate with each other and enter into single table bargaining arrangements, the Unions stated that they had worked closely and achieved joint recognition status at a number of workplaces across the independent and state education sectors.

6) When asked whether the Unions had made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Unions answered “No”. The Unions 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 Unions stated that the total number of workers employed by the Employer was 131. The Unions stated that there were 72 workers in the proposed bargaining unit, of whom 52 were members of the Unions. When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Unions said that the majority of employees in the proposed bargaining unit were members of the NEU (51%) with a further 21% being members of the NASUWT. The Unions said that they had a petition in support of collective bargaining from a majority of all employees within the proposed bargaining unit (89%) and a majority of members within the bargaining unit (100%).^{[footnote 1]} The Unions said that a copy of the evidence could be made available to the CAC for verification on request.

8) When asked to give their reasons for selecting the proposed bargaining unit, the Unions stated that the vast majority of members of the NEU employed by the Employer were employed as teachers and that teachers employed by the Employer had, as a group, specifically expressed a desire to secure collective bargaining with the NEU. The Unions said that teachers were a discrete body at the school and were employed on ‘teacher contracts’. The Unions said that teachers were required to undertake specific duties (planning and delivering lessons and assessing students) and were paid on a separate teacher pay scale/range and were exclusively members of the Teachers’ Pension Scheme. The Unions confirmed that the bargaining unit had not been agreed with the Employer.

9) The Unions confirmed that they held current certificates of independence. The Unions stated that they had copied their application and supporting documents to the Employer on 12 March 2020.^{[footnote 2]}

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

10) The Employer stated that it had received the Unions’ written request for recognition on 12 March 2020. When asked for its response to the Unions’ request, the Employer said “Enclosed” but no enclosure was received by the CAC with the Employer’s response form.

11) The Employer said that it had received a copy of the Unions’ application form on 26 May 2020. The Employer said that it had not, before receiving a copy of the application form from the Unions, agreed the bargaining unit with the Unions but that it did agree it. The Employer stated that, following receipt of the Unions’ request, it had not proposed that Acas should be requested to assist.

12) The Employer said that it agreed with the number of workers in the proposed bargaining unit as defined in the Unions’ application. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) Asked to give reasons if it disagreed with the Unions’ estimate of membership in the proposed bargaining unit, the Employer answered “NA”. When asked to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition, the Employer again answered “NA”.

14) Asked whether it wished to put forward a case that the Unions would not co-operate with each other the Employer said “NA”. When asked if it was aware of any previous application under the Schedule by the Unions in respect of this or a similar bargaining unit the Employer answered “NA”.

5. Considerations

15) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 above are satisfied. The Panel has considered carefully all the evidence submitted by the parties in reaching its decision.

16) The Panel is satisfied that the Unions made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that their application was made in accordance with paragraph 12. The Panel is also 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.

6. Paragraph 36(1)(a)

17) Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the Unions constitute at least 10% of the workers in the proposed bargaining unit. In their application the Unions stated that 51% of the workers in the proposed bargaining unit were members of the NEU and a further 21% were members of the NASUWT. On this basis the Panel takes the Unions to be stating that 72% of the workers in the proposed bargaining unit are members of the Unions. The Employer did not challenge the Unions’ figures in its response to the application and the Panel has no evidence from any other source which suggests that they are inaccurate. On the basis of the evidence before it the Panel has decided, on the balance of probabilities, that members of the Unions constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

7. Paragraph 36(1)(b)

18) 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 Unions as entitled to conduct collective bargaining on behalf of the bargaining unit. For the reasons given in paragraph 17 above the Panel has accepted, for the purposes of this decision, that the level of membership of the Unions is 72%. 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. No such evidence to the contrary was received in this case.

19) The Panel would have been prepared to decide that, on the balance of probabilities, a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Unions as entitled to conduct collective bargaining on behalf of the bargaining unit on the basis solely of the level of membership of the Unions. In this case the Unions stated that they also had a petition in support of collective bargaining from 89% of workers in the proposed bargaining unit. The Employer did not dispute the validity of this petition or the level of support which the Unions said had been manifested by it and the Panel has no evidence from any other source to suggest that the Unions’ statement is inaccurate.

20) On the basis of the evidence before it the Panel is satisfied that a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Unions as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 36(1)(b) of the Schedule.

8. Decision

21) For the reasons given in paragraphs 16-20 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Miss Mary Canavan

Mr Paul Noon OBE

1. The Panel understands this to mean that a total of 89% of the workers in the proposed bargaining unit had signed the Unions’ petition and that the signatories included all the members of both unions. ↩

2. This date refers to the date of the letter constituting the Unions’ request for recognition rather than the date they served a copy of the application form and associated documents on the Employer. In its response to the Unions’ application the Employer confirmed it received the latter documents from the Unions on 26 May 2020: see paragraph 11 below ↩