Decision

Recognition Decision

Updated 25 November 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1287(2022)

25 November 2022

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

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 they 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) By its written decision dated 12 October 2022 the Panel accepted the Unions’ application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. On 26 October 2022 the parties notified the CAC that they had reached an agreement as to the appropriate bargaining unit and this was “Teaching staff (excluding the headteacher, deputy head (academic) and all visiting or temporary teachers)”. This differed from the original proposed bargaining unit as it now excluded the deputy head (academic), as well as excluding visiting and temporary teachers. The Union confirmed the difference between the proposed and agreed bargaining unit was marginal.

2. Issues

4) Paragraph 22 of the Schedule A1 to the Act (the Schedule) provides that, if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the unions, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies. Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled. The three qualifying conditions are:

(i) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(ii) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

(iii) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf.

Paragraph 22(5) provides that “membership evidence” for these purposes is:

(a) evidence about the circumstances in which union members became members, or

(b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

The Unions’ claim to majority membership and submission they should be recognised without a ballot

5) In a letter dated 10 November 2022 the Unions were asked by the CAC whether they claimed majority membership within the bargaining unit and, if so, whether they submitted that they should be granted recognition without a ballot. The Unions, in an e-mail dated 15 November 2022, stated that “The Unions do claim that we have majority membership within the bargaining unit and therefore submit that we should be granted recognition without a ballot. This is demonstrated by the membership check which you have previously conducted”.

3. Summary of the Employer’s response to the Unions’ claim that they should be recognised without a ballot

6) On 15 November 2022 the CAC copied the Unions’ e-mail of 15 November 2022 to the Employer and invited the Employer to make submissions in relation to the Unions’ claim that they had majority membership within the bargaining unit and in relation to the three qualifying conditions specified in paragraph 22(4) of the Schedule.

7) In its response dated 18 November 2022 the Employer stated that “The School sees no reason why a further ballot should be held. The School agrees that a significant number of the Union members within the bargaining unit want Union Recognition. The School hopes to reach a Voluntary Agreement soon”.

4. Considerations

8) The Schedule requires the Panel to consider whether it is satisfied that a majority of the workers constituting the bargaining unit are members of the Unions. If the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Unions, it must declare the Unions to be recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit unless it decides that any of the three qualifying conditions set out in paragraph 22(4) is fulfilled. If the Panel considers that any of those specific conditions is fulfilled, it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

9) The membership and support check conducted on 30 September 2022 had shown the Employer listing a total of 88 workers. As stated in the acceptance decision dated 12 October 2022, the Unions had provided a spreadsheet listing 63 union members. The number of union members in the proposed bargaining unit was 58, a membership level of 65.91%. Accordingly, the Panel accepts that the majority of workers in the bargaining unit are members of the Unions.

10) The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision as to whether any of the qualifying conditions laid down in paragraph 22(4) of the Schedule is fulfilled.

Paragraph 22(4) (a)

11) The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Employer mentioned good industrial relations in its comments but did not expand on this. In this case neither party has submitted evidence that holding a secret ballot would be in the interests of good industrial relations. The Panel is therefore satisfied that this condition does not apply.

Paragraph 22(4) (b)

12) The second condition is that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union to conduct collective bargaining on their behalf. The CAC has no such evidence and this condition does not apply.

Paragraph 22(4) (c)

13) The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union to conduct collective bargaining on their behalf. No such evidence has been produced, and this condition does not apply.

5. Declaration of recognition

14) The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that a majority of the workers constituting the bargaining unit are members of the Unions. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule is met. Pursuant to paragraph 22(2) of the Schedule, the CAC must therefore issue a declaration that the Unions are recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The CAC accordingly declares that the Unions are recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising “Teaching staff (excluding the headteacher, deputy head (academic) and all visiting or temporary teachers)”.

Panel

Ms Laura Prince, Panel Chair

Mr David Cadger

Mr David Coats

25 November 2022