Decision

Acceptance Decision

Updated 11 September 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1350(2023)

18 August 2023

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

GARD’NER MEMORIAL LIMITED

1. Introduction

1) NEU & NASUWT (the Unions) submitted an application to the CAC on 27 July 2023 that they should be recognised for collective bargaining by Gard’ner Memorial Limited (the Employer) for a bargaining unit comprising the “Teaching staff (including early career teachers but excluding the headteacher) employed by Gard’ner Memorial Limited (More House School), Farnham”. The CAC gave both parties notice of receipt of the application on 27 July 2023. The Employer submitted a response to the CAC dated 1 August 2023 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 Naeema Choudry, Panel Chair, and, as Members, Mr Richard Fulham 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 10 August 2023. 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 24 August 2023.

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 9 May 2023. The Employer responded by letter dated 23 May 2023 stating, “Whilst we are willing to consider this further, given that we are in the middle of a project around pensions and significant time and resources is dedicated to this, we would ask that we pick this up following this into the new academic year.” The Unions confirmed that they were of the view that the Employer had not provided an adequately clear response to their request within the timeframe laid out in the Schedule. 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 175, and that there were 70 workers in the proposed bargaining unit, of whom 55 were members of the Unions. The Unions confirmed that that the Employer did not agree on the number of workers in the proposed bargaining unit and also that the proposed bargaining unit had not been agreed with the Employer.

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 in membership. The Unions had a petition in support of recognition signed by a majority of all the employees within the proposed bargaining unit and also had a majority of members within the proposed bargaining unit. The Unions confirmed that evidence could be made available to the CAC on request for verification.

9) When asked for their 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 as teachers. Teachers employed by the employer have, as a group, specifically expressed a desire to secure collective bargaining with the NEU/NASUWT. 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 the only group of workers to be given access 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 this application. The Unions had previously submitted a number of joint applications, which were accepted by the CAC as evidence that they would cooperate.

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 27 July 2023.

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 9 May 2023 and replied stating “… Accordingly, if we are going to consider entering into a recognition agreement, we will need some assurance that it is indeed what all our staff want. If there is a majority support of our teachers in support of the trade union recognition, then we will welcome a further discussion about the potential terms of this…”

13) The Employer stated that it had received a copy of the Unions’ application from the Unions on 27 July 2023. 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 not agree.

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 had not seen any evidence in order to comment.

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 was unsure of its employees’ views and were unable to ascertain them during the holiday period.

18) Finally, the Employer stated “None” 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 also replied, “None” 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 2 August 2023 from the Case Manager to both parties.

20) The information from the Employer was received by the CAC on 7 August 2023, and from the Unions on 3 August 2023. 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 71 workers in the Unions’ proposed bargaining unit. The list of members supplied by the Unions contained 54 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 58, a membership level of 70.42%.

22) The petition supplied by the Unions contained 83 names and signatures. The proportion of workers in the proposed bargaining unit who had signed the petition and were union members was 66.20%. The report also showed that 83.10% of workers in the proposed bargaining unit (59 out of 83 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 16.90%. The petition consisted of 8 A4 sheets, which were set out as follows:

“Trade Union Recognition Petition- More House, Farnham. We, the undersigned wish for our trade union, the National Education Union (NEU) and the NASUWT to be recognised for the purposes of collective bargaining at More House, Farnham on behalf of Teaching Staff (excluding the headteacher and visiting teachers). We wish for recognition to be agreed for all workers and employees in the specified bargaining unit at More House, 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.”

23) A report of the result of the membership and support check was circulated to the Panel and the Parties on 8 August 2023 and the parties were invited to comment on the results of that check by noon on 14 August 2023.

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

24) In an e-mail to the CAC, dated 10 August 2023, the Unions pointed out that the figures provided clearly demonstrated that their application met and exceeded the tests laid out in paragraph 36(1).

25) The Employer did not submit any comments on the results of the membership report by the deadline imposed.

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 11 in that the Employer refused the formal request for recognition without indicating a willingness to negotiate. 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 showed that 70.42% 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 21 above the Panel has concluded that the level of union membership within the bargaining unit stands at 70.42%. 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 83.10% of the workers in the proposed bargaining unit (59 out of 83 workers) had signed a petition in favour of recognition. Of those who had signed the petition 47 were Union members (66.20% of the proposed bargaining unit) and 12 were non-members (16.90% of the proposed bargaining unit).

32) The Panel considers that the level of union membership in this case, coupled with the results of the petition, are a clear indication that the majority of workers would be likely to favour recognition

8. Decision

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

Panel

Ms Naeema Choudry, Panel Chair

Mr Richard Fulham

Mr David Coats

18 August 2023