Decision

Acceptance Decision

Updated 25 November 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1287(2022)

12 October 2022

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

Frensham Heights Educational Trust Limited

1. Introduction

1) NEU & NASUWT (the Unions) submitted an application to the CAC dated 9 September 2022 that it should be recognised for collective bargaining by Frensham Heights Educational Trust Limited (the Employer) for a bargaining unit comprising the “Teachers and Early Career Teachers (excluding the Headteacher) employed by Frensham Educational Limited”. The location of the bargaining unit was given as “Frensham Heights, Rowledge, Farnham, Surry, GU10 4EA”. The application was received by the CAC on 9 September 2022 and the CAC gave both parties notice of receipt of the application on the same date. The Employer submitted a response to the CAC dated 16 September 2022 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 of Ms Laura Prince, Panel Chair, and, as Members, Mr David Cadger and Mr David Coats. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 23 September 2022. The acceptance period was extended to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the comments before arriving at a decision. The acceptance period ends on 21 October 2022.

2. Issues

4) 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

5) The Unions stated that they sent their request letter to the Employer on 17 August 2022. The Employer responded by letter dated 18 August 2022 stating: “You may or may not know that I meet with all four of the School’s Union Reps on a regular basis. I will have a meeting with them as soon as we can arrange a mutually convenient time after the start of the term. Should the School enter into negotiations over a VAR then the earliest meeting of the full Board of Governors, at which it would be finally agreed, is the 10 December this year”. The Unions stated that the Employer had not provided an adequately clear response to their request for voluntary recognition within the timeframe of the Schedule. The Unions further stated that the Employer had confirmed that the earliest a voluntary agreement could be agreed was 10 December 2022 and this showed that the Employer was unwilling to reach an agreement within a 20-day negotiation period. A copy of the Unions’ request and the Employer’s response to that request were attached to the application.

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 their 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 132, and that there were 82 workers in the proposed bargaining unit, of whom 67 were members of the Unions.

8) 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 explained that the majority of employees in the proposed bargaining unit were members of the Unions. The Unions had a petition in support of recognition signed by a majority of all employees within the proposed bargaining unit in addition to the majority of workers within the proposed bargaining unit being in membership. The Unions offered to supply evidence of this for verification on request from the CAC.

9) When asked for its reasons for selecting their proposed bargaining unit, the Unions stated that “The majority of members of the NEU/NASUWT employed by the employer are employed teachers. Teachers employed by the employer have, as a group, specifically expressed desire to secure collective bargaining with the NEU. Teachers are a distinct body of employees at the school who are employed on ‘teacher contracts’ Teachers are required to undertake specific duties (planning and delivering lessons and assessing students) and are paid on a separate teacher pay scale/range and are exclusively members of the Teachers’ Pension Scheme”.

10) When asked if this was a joint application, and to provide any evidence that the unions concerned would cooperate with each other and enter into single table bargaining arrangements, the Unions explained that Officials from each union had already been in close communication to discuss the application. The Unions had previously submitted a number of joint applications, which were accepted by the CAC: TUR1/1176(2020), TUR1/1182(2020), TUR1/1183(2020), TUR1/1189(2020), TUR1/1193(2020), TUR11237(2021) and TUR1/1248(2021).

11) The Unions confirmed that they held certificates of independence. Finally, the Unions stated that they had copied the application and supporting documents to the Employer on 9 September 2022.

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

12) In its response to the Unions’ application the Employer stated that it had received the Unions’ written request for recognition on 17 August 2022. The Employer stated that it had initially replied to the Unions’ request on the 18 August 2022 explaining that it had obtained clearance to make preliminary enquiries. The Employer further stated, “The School, at the time of the email, was on holiday, all the union representatives were away, and I would not be able to hold a meeting with them before the start of term.” The Unions had emailed the Employer on 23 August 2022 asking if they could attend any meetings with workplace representatives to which the Employer agreed. The Employer explained it had spoken to a NEU representative on 6 September 2022 (day two of Autumn Term) and stated that it would have a meeting soon but subsequently the Employer agreed that it would try to get the process completed by 12 November 2022. The Employer stated that it regretted the fact that commencing this process had become necessary given that the school had been, and still remained, cooperative. It went on to add that the school intended to continue with the voluntary application process in parallel to the CAC process.

13) The Employer stated that it had received a copy of the Unions’ application from the Unions on 9 September 2022. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Unions, and stated that “Yes” it did agree with the proposed bargaining unit. The Employer stated that, following receipt of the Unions’ request, it had not proposed that Acas be requested to assist.

14) When asked whether it agreed with the number of workers in the proposed bargaining unit as set out in the Unions’ application, the Employer stated that it did agree. Adding that there were 160 staff in total which included 85 teaching staff.

15) When asked whether there was an existing agreement for recognition in force covering workers in the proposed bargaining unit, the Employer answered, “No”.

16) In answer to the question whether it disagreed with the Unions’ estimate of membership in the proposed bargaining unit, the Employer stated that it did not disagree with the Unions’ estimate.

17) When invited 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 said that it did not agree that there was a majority. The Employer explained that the application was received during school summer holidays, therefore the School had not been able to gauge the level of support amongst staff. The Unions had also not provided any evidence to support that a majority of the workers in the proposed bargaining unit were likely to support recognition.

18) Finally, the Employer stated “I am not aware of any previous application” 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, and, “None received” when asked whether it received any other applications in respect of workers in the proposed bargaining unit.

5. The membership and support check

19) To assist in the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the proposed bargaining unit are members of the Unions (paragraph 36(1)(a)) and whether 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 (paragraph 36(1)(b)), the Panel proposed an independent check of the level of union membership within the proposed bargaining unit and of a petition compiled by the Unions. 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 Unions would supply to the Case Manager a list of their paid up members within that unit (including their dates of birth) and a copy of a petition signed by workers in favour of recognition. 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 dated 21 September 2022 from the Case Manager to both parties.

20) The information from the Employer was received by the CAC on 28 September 2022, and from the Unions on 23 and 26 September 2022. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

21) The list supplied by the Employer indicated that there were 88 workers in the Unions’ proposed bargaining unit. The list of members supplied by the Unions contained 63 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 58, a membership level of 65.91%.

22) The petition supplied by the Unions contained 62 names and signatures, eight of the names on the petition had been crossed out, so these were excluded from the checks, leaving only 54 for the check. The proportion of workers in the proposed bargaining unit who had signed the petition and were union members was 56.82%. The report also showed that 59.09% of workers in the proposed bargaining unit (52 out of 88 workers) had signed a petition in favour of recognition. The proportion of workers in the proposed bargaining unit who had signed the petition and were non-members was 2.27%. The petition consisted of 5 A4 sheets, which were set out as follows:

“Trade Union Recognition Petition Frensham Heights Educational Trust, Frensham. We, the undersigned wish for our trade unions, the National Education Union (NEU) and National Association of Schoolmasters Union of Women Teachers (NASUWT), to be recognised for the purposes of collective bargaining at Frensham Heights Educational Trust, Farnham on behalf of teaching staff. We wish for recognition to be agreed for all workers and employees in the specified bargaining unit at Frensham Heights Educational Trust, Farnham and for this recognition to be for the purposes of collective bargaining on (but, not restricted to) pay, hours, holidays and other terms and conditions of employment.”

Name……. Signature……. Date……. Union……

23) A report of the result of the membership and support check was circulated to the Panel and the Parties on 30 September 2022 and the parties were invited to comment on the results of that check by noon on 5 October 2022.

6. Summary of the parties’ comments following the membership and support check

24) In an e-mail to the CAC, dated 5 October 2022, the Unions pointed out that the figures provided clearly showed that they had met the criteria laid out in paragraph 36(1).

25) In an e-mail to the CAC dated 6 October 2022 the Employer acknowledged that the 88-figure provided in the report was correct.

7. Considerations

26) 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.

27) 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 remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

Paragraph 36(1)(a)

28) 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.

29) The membership check conducted by the Case Manager (described in paragraphs 19 – 23 above) showed that 65.91% of the workers in the proposed bargaining unit were members of the Unions. As stated in paragraph 21 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. The Panel has therefore decided 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.

Paragraph 36(1)(b)

30) 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.

31) For the reasons given in paragraph 20 above the Panel has concluded that the level of union membership within the bargaining unit stands at 65.91%. 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 Unions. No such evidence to the contrary was received in this case. The Panel also notes that the support check conducted by the Case Manager showed that 59.09% of workers in the proposed bargaining unit (52 out of 88 workers) had signed a petition in favour of recognition (see paragraph 22 above). Of those who had signed the petition 50 were Union members (56.82% of the proposed bargaining unit) and 2 were non-members (2.27% of the proposed bargaining unit).

32) On the basis of the evidence before it the Panel has decided, on the balance of probabilities, 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

33) For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Ms Laura Prince, Panel Chair

Mr David Cadger

Mr David Coats

12 October 2022