Decision

Validity Decision

Updated 25 November 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1287(2022)

10 November 2022

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

AGREEMENT OF THE BARGAINING UNIT

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 “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 a decision dated 12 October 2022 the Panel accepted the Union’s 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 bargaining unit proposed by the Union and now excluded the deputy head (academic) and all visiting or temporary teachers.

2. Issues

4) As the bargaining unit agreed by the parties differed from that proposed by the Union, paragraph 20 of Schedule A1 to the Act (the Schedule) requires the Panel to decide whether the Union’s application is valid within the terms of paragraphs 43 to 50 the Schedule. The matters that the Panel must consider are: -

• is there an existing recognition agreement covering any of the workers within the new bargaining unit? (paragraph 44)

• is there 10% union membership within the new bargaining unit? (paragraph 45(a))

• are the majority of the workers in the new bargaining unit likely to favour recognition? (paragraph 45(b))

• is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? (paragraph 46)

• has there been a previous application in respect of the new bargaining unit? (paragraphs 47 to 49)

5) In a letter dated 27 October 2022 the Panel invited the parties to make submissions on these matters for consideration by the Panel.

3. Views of the Union

6) In an email dated 2 November 2022 the Union advised that:

• there was no existing recognition agreement covering any of the workers within the new bargaining unit;

• There was significantly more than 10% membership as previously proven;

• Given the membership levels on the balance the majority of employees would agree recognition;

• there was no competing application from another union that covered any worker in the new bargaining unit;

• there was no previous application in respect of the new bargaining unit.

4. Views of the Employer

7) In an email dated 31 October 2022 the Employer advised that:

• (agreeing with the Union) there was no existing recognition agreement covering any of the workers within the new bargaining unit;

• From the previous communications the Employer believed that the School was unable to verify from the information gathered if the Union had membership above the 10% level;

• The Employer similarly stated that it was unable to verify if the majority of the workers in the new bargaining unit were likely to favour recognition;

• (agreeing with the Union) there was no competing application from another union that covered any workers in the new bargaining unit;

• (agreeing with the Union) there was no previous application in respect of the new bargaining unit.

5. Discussion and conclusions

8) The Panel must decide whether the Union’s application is valid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision the Panel has considered the parties’ submissions and the other evidence before it. The following matters are not disputed:

• there is no existing recognition agreement covering any of the workers within the agreed bargaining unit;

• there is no competing application from another union; and

• there has been no previous application in respect of the agreed bargaining unit.

9) The remaining issues for the Panel to decide are whether the validity criteria contained in paragraphs 45(a) and (b) are met.

Paragraph 45(a)

10) Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the Union constitute at least 10% of the workers in the agreed bargaining unit.

11) The CAC conducted a membership and support check at the acceptance stage for the bargaining unit originally proposed by the Union. The new bargaining unit was slightly smaller than that proposed by the Union as it no longer contained the deputy head (academic) and all visiting or temporary teachers. At the acceptance stage union membership stood at 65.91%. The change in numbers, even assuming that the workers now excluded were in membership, would not be sufficient to significantly affect membership density within the agreed bargaining unit. Indeed, the Employer, when asked to comment on this test, did not supply any further evidence that the 10% threshold could not be reached. The Panel finds that this test is satisfied.

Paragraph 45(b)

12) Under paragraph 45(b) of the Schedule, an application is invalid unless the Panel decides that a majority of the workers constituting the agreed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

13) As stated in the acceptance decision dated 12 October 2022, the Union had 65.91% of the workers in the proposed bargaining unit in membership. This, the Panel accepted, was a legitimate indicator of likely support for recognition of the Union for collective bargaining purposes. The Employer, commenting on this test, did not provide any evidence to suggest that the majority of the workers were unlikely to favour recognition of the Union to conduct collective bargaining on their behalf. On the evidence before it, the Panel has decided that, on the balance of probabilities, the majority of the workers in the agreed 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 45(b) of the Schedule.

6. Decision

14) The decision of the Panel is that the application is valid for the purposes of paragraph 20 of the Schedule and the CAC must proceed with the application.

Panel

Ms Laura Prince, Panel Chair

Mr David Cadger

Mr David Coats

10 November 2022