Decision

Bargaining Unit Decision

Updated 26 January 2021

Case Number: TUR1/1193/2020

04 January 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DETERMINATION OF THE BARGAINING UNIT

The Parties:

National Education Union (NEU) & National Association of School Masters/Union of Women Teachers (NASUWT)

and

Notre Dame School

1. Introduction

1) NEU & NASUWT (the Unions) submitted an application to the CAC dated 6 August 2020 that they should be recognised for collective bargaining purposes by Notre Dame School (the Employer) for a bargaining unit described as: “Teachers and NQTs (excluding Visiting Music Teachers and the Warden)”. The location of the bargaining unit was given as Notre Dame Preparatory & Senior School. The application was received by the CAC on 6 August 2020 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted its response to the application dated on 12 August 2020 which the CAC copied to the Unions.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chairman established a Panel to deal with the case. The Panel consisted of Mr Tariq Sadiq as Panel Chair, and, as Members, Mr Len Aspell and Mr David Coats. The Case Manager appointed to support the Panel was Linda Lehan and, for the purpose of this decision, Nigel Cookson.

3) By a decision dated 14 October 2020 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. As no agreement was reached, the parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit. The parties were given notice that a hearing would take place virtually on 18 December 2020. The names of those who attended the virtual hearing on behalf of the parties are annexed to this decision.

4) The Panel is required, by paragraph 19(2) of Schedule A1 to the Act (the Schedule), to decide whether the Unions’ proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. Paragraph 19B(1) and (2) state that, in making those decisions, the Panel must take into account the need for the unit to be compatible with effective management and the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need. The matters listed in paragraph 19B(3) are: the views of the employer and the union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and the location of workers. Paragraph 19B(4) states that in taking an employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that it considers would be appropriate.

2. Clarification of the proposed bargaining unit

5) At the start of the hearing the Panel Chair referred to the Unions’ submission in which they had clarified that there had been an administrative error in the definition of the proposed bargaining unit in the application in the reference to “Warden” as one of the excluded categories of worker. The Unions asked that “teachers and newly qualified teacher’s (excluding Headmistresses or Headteachers)” be substituted to which the Employer consented. The Panel Chair proposed that the definition be non-gender specific and so the exclusion would be ‘headteachers’ to which both parties agreed. The Panel was satisfied that this was a clarification of the proposed bargaining unit rather than a change and the proposed bargaining unit was therefore defined as “teachers and newly qualified teachers (excluding Headteachers)”.

3. Summary of the Unions’ submissions

6) The Unions submitted that a bargaining unit comprising of teachers and newly qualified teachers (excluding the headteachers) constituted an appropriate bargaining unit which was compatible with effective management and they addressed each matter listed under paragraph 19B(3) in turn.

7) First, on the matter of the views of the parties, the Unions had stated a preference for a bargaining unit comprised of teachers and newly qualified teachers since this process had started and had a clear mandate from their members to adopt this position. In the early stage of communication with the Employer the Unions did respond positively to the suggestion of a whole school bargaining unit. This was considered on the basis that an agreement be concluded swiftly in good faith and contained a wider range of terms than the CAC’s model method. However, when the Employer was offered the opportunity to proceed based on its own proposed bargaining unit the Employer declined to do so. The Unions therefore did not believe that the Employer wished to proceed based on its own proposed school-wide bargaining unit and that it had now returned to pursuing a school-wide bargaining unit only to delay and frustrate the reaching of an agreement and that this demonstrated poor faith in the process. Questioned by the Panel Chair, the Unions stated that they were no longer prepared to entertain a whole school bargaining unit and had only been prepared to consider that proposal as part of a purely voluntary agreement.

8) The Unions drew the Panel’s attention to the following applications recently accepted by the CAC which, they submitted, featured identical bargaining units to the one proposed here and set a clear precedent. In each of these cases, the bargaining unit was not contested by the employer: TUR1/1176(2020) NEU & NASUWT and Box Hill School Trust Limited; TUR1/1189(2020) NEU & NASUWT and Bishop’s Stortford College and TUR1/1183(2020) NEU & NASUWT and St. Bede’s School Trust.

9) Asked by the Panel if the Unions were aware of any cases where recognition was in respect of a whole school bargaining unit, the Unions stated that they were unable to identify any such CAC examples and they did not have any definitive numbers for any such voluntary agreements.

10) Second , on the question of existing national and local bargaining arrangements, neither Union had national bargaining rights for any bargaining unit other than teachers and newly qualified teachers. Both Unions had national bargaining rights for teachers and newly qualified teachers in the state sector. The NASUWT only admitted members from the proposed bargaining unit. A number of independent schools recognised the Unions with regard to a bargaining unit such as proposed here including the schools listed above.

11) Third, as for the desirability of avoiding small, fragmented bargaining units, the Unions submitted that the proposed bargaining unit comprised the majority of workers employed and so was neither small nor fragmented. Eighty-nine were listed by the Employer according to the CAC’s membership check dated 6 October 2020 and, as the total number of staff employed by the school was 159, this meant that the bargaining unit comprised 56% of all staff employed at the school. Although the Employer confirmed at the hearing that this number had dropped to 88, this was still not a small or fragmented unit.

12) Fourth, as regards the characteristics of workers in the proposed bargaining unit and any other employees the Unions submitted that the contracts issued by the Employer clearly demonstrated that teachers and newly qualified teachers were employed on different terms than other groups of staff in the school. These differences in terms covered all of the aspects of employment that would be covered by the CAC’s model method, namely pay, holiday and hours.

13) Teachers and newly qualified teachers had distinct duties as defined by their contracts which included reference to the Teacher’s Standards (Guidance for school leaders, school staff and governing bodies set by Government. Schedule B of this document outlined the duties expected of teaching staff at the school in detail which contrasted with support staff contracts whose main duties were set out in Schedule A and were a completely different set of duties than those listed in Schedule B of a teacher’s contract.

14) Teachers and newly qualified teachers were paid according to distinct pay scales as defined by their contracts and were entitled to receive the ‘Surrey Fringe Allowance’. This contrasted with different pay scales and no Surrey Fringe Allowance for support staff. The school also offered a separate pension scheme for teachers than for support staff.

15) Whilst it was the case that the NEU did recruit from amongst the workers that were excluded from the proposed bargaining unit, this was not just an application made by the NEU but a joint application and the Unions wanted a bargaining unit which admitted members of both unions.

16) The hours of work for teachers were based around the school day which contrasted to support staff contracts which specified the number of hours per week. As for holidays, teachers were entitled to paid holiday during all school holidays and Half Term which contrasted with a much smaller holiday entitlement for support staff.

17) Fifth, as for the location of workers, all workers in the proposed bargaining unit were employed to carry out duties at the same location at the Notre Dame School in Cobham, Surrey.

18) Summing up the Unions stated that they were pursuing the proposed bargaining unit as they had a clear mandate to do so. They were not asking for anything out of the ordinarily. There was a clear precedent for the sort of bargaining unit the Unions were seeking and the Unions remained unsure as to what bargaining unit the Employer preferred. The Unions had provided clear evidence in support of their case whereas no such clear evidence had been put forward by the Employer.

4. Summary of the Employer’s submissions

19) The Employer explained that it would prefer not to recognise unions as it was worried that it would be a less effective way for all staff to have their voices heard as individuals. The Employer also believed that many staff, including teachers, did not want the Unions to negotiate or bargain on their behalf. It had invited all staff to share with it their views on union recognition and the Employer had appended these views with its submission. The Employer absolutely supported union membership as individuals and recommended that all staff join a union. However, if the CAC required the Employer to recognise the Unions for collective bargaining on pay, hours and holidays as per the CAC model, the Employer would prefer that it applied to all staff, not just teachers. Whilst it was the Employer’s preference that the bargaining unit would include the headteacher, it was flexible on the inclusion of this particular post.

20) The Unions had specified that they were only seeking recognition for teachers, not teaching assistants, librarians, technicians or any support or administration or estates staff. The Unions had not mentioned that the NEU allowed all staff to join their union which would include those staff outside the Unions’ proposed bargaining unit. What was important, the Employer submitted, was that it wanted a way to work collectively with all staff as the school was a collegiate, community based institution and so the Employer believed all staff should be included. It gave the example of the annual cost of living increase in pay which was given to all staff and not just teachers. Also, benefits like paid time off for wellbeing activities were for all staff in all areas of the school, as was access to the employee support programme. The Employer did not believe that teaching staff should be able to negotiate benefits that other staff in different roles were not party to and, to do so, would lead to disharmony amongst those excluded from collective bargaining. For the Employer as a collegiate and community-focussed setting it was not appropriate to exclude some groups of staff who were eligible for membership of either of the Unions (for example the Heads, librarians, administrators, ancillary staff, technicians and teaching assistants).

21) When asked by the Panel as to why the proposed bargaining unit would cause disharmony, the Employer submitted that it understood some staff had expressed a view that they were not as happy as they could be with how things were organised. The petition was not expressed as it should have been and the Employer believed that the whole staff voice should be heard and the holding of a secret ballot would deal with any possible resentment. The support staff had worked hard to show that they were part of the school community and were equally valued and so the Employer was nervous at the thought of having some staff subject to collective bargaining and some that were not. Educating as a community, valuing the individual was central to the Employer’s ethos and the idea that everyone was part of this community was important.

22) Regarding the matters that would be covered by statutory collective bargaining namely pay, hours and holidays, the Employer submitted that in terms of pay, annual pay reviews were carried out for all staff excluding the executive team and so the annual cost of living increase was the same for all categories of staff, not just teachers. The Employer believed that allowing teachers to bargain for a separate pay increase would be divisive. As pay was a central part of the CAC model for collective bargaining, the fact that pay awards were across all staff at Notre Dame caused the Employer to conclude that all staff should be in the same group if collective bargaining was awarded by the CAC. Staff members, teaching and non-teaching, could be on a range of different pay scales depending on their role.

23) As regards hours, teachers worked school hours unless they were part time which was the same as non-teachers who had teaching elements to their role or who were directly involved in supervising students - librarians, cover supervisors, teaching assistants and technicians for example. The actual hours depended on which part of the school (Prep or Senior) they worked in for all these staff members. This would suggest that teachers, teaching assistants and other roles which had a teaching or supervising of student’s element should all be in the same bargaining unit.

24) Finally, in respect of holidays teachers were entitled to take all the school holidays as holiday, which included statutory holiday. Teaching assistants and other staff who had a teaching element in their role were entitled to paid statutory holiday plus additional holiday depending on their contract as were all non-teaching members of staff. Therefore in respect of holidays, only teachers formed one coherent group.

25) Assessing the three areas of the CAC model for collective bargaining it was, in the Employer’s opinion, clear that teachers were not a separate and distinct group in all three areas. The Employer would strongly argue that for the effective management of the school, the most appropriate collective bargaining unit would be for all staff to be included.

26) Commenting on the Unions’ submissions the Employer observed that, as an independent school, national bargaining arrangements were irrelevant. The Employer accepted that teachers had specific duties that made their role distinct and the Employer would understand if the CAC believed that such a bargaining unit was appropriate. When the Employer was prepared to consider a voluntary arrangement with the Unions, the Unions put forward a model that was broader in scope compared to what the CAC would impose. The Employer was grateful that the Unions had considered a wider unit but, after given the matter some thought, the Employer decided that it did not wish to pursue a voluntary agreement.

27) The Employer confirmed that there was no bargaining currently taking place and whilst the Employer had an open door policy so that staff could feel free to raise points and make suggestions, it did not negotiate individually on pay with an annual cost of living increase being applied evenly across the board to all staff bar the heads and the burser. On a case by case basis, the Employer would consult with the staff and seek feedback as it believed in everyone having a voice.

28) The Employer confirmed that in addition to the teachers and newly qualified teachers there were currently 21 teaching assistants and nursery practitioners, two librarian posts although this included a job share so there were three members of staff and three subject linked technicians whose role was to provide assistance for practical subjects. Each of these roles were on a different contract. There was also a separate leadership scale that covered the senior leadership within the school. The Employer confirmed that there was no other bargaining unit within the school.

29) In closing the Employer stated that it understood the arguments in favour of both parties’ positions and that it would accept the CAC’s decision and work towards a ballot of the workers as to whether or not they wanted the Unions to be recognised. The Employer believed that if collective bargaining were to be imposed , it should be in respect of all the staff and if the staff then voted in favour of recognition, the Employer would make it work.

5. Considerations

30) The Panel is required, by paragraph 19(2) of the Schedule to the Act, to decide whether the proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. Paragraph 19B(1) and (2) state that, in making those decisions, the Panel must take into account the need for the unit to be compatible with effective management and the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need. The matters listed in paragraph 19B(3) are: the views of the employer and the union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and the location of workers. Paragraph 19B(4) states that in taking an employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that it considers would be appropriate. The Panel must also have regard to paragraph 171 of the Schedule which provides that “In exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned.”

31) As stated above, the Panel’s first task is to decide, in accordance with paragraph 19(2) of the Schedule, whether the Unions’ proposed bargaining unit is appropriate. This is the overriding requirement under Paragraph 19B(2) and relates principally to the matters to be collectively bargained under the statutory regime namely pay, hours and holidays. The requirement is that proposed bargaining unit should be compatible with effective management, not that it be compatible with the most effective management – see R v Central Arbitration Committee and another ex parte Kwik-Fit (GB) Ltd [2002] IRLR 395, CA at [15]. The Panel cannot reject the bargaining unit put forward by the Unions simply because we form the view that there is a more appropriate bargaining unit nor is it the Panel’s task to determine the most effective or desirable unit given the particular circumstances of the case before us.

32) The Panel would like to thank the parties for attending the virtual hearing, for their submissions both oral and in writing and for answering the many questions that were asked by the Panel. Having carefully considered these submissions the Panel has concluded that, for the following reasons, the Unions’ proposed bargaining unit is compatible with effective management. Teachers and newly qualified teachers (excluding Headteachers) represent a distinct group which is easily identifiable and is situated in one location. Those in the proposed bargaining unit have common duties, terms and conditions of employment regarding pay, hours and holidays and there are differences regarding duties, hours and holidays regarding staff outside the proposed bargaining unit. The Employer’s aim of a collegiate approach is a common aspiration of an employer and is not necessarily inconsistent with union recognition.

33) The Panel has also considered the matters listed in paragraph 19B(3) of the Schedule, so far as they do not conflict with the need for the bargaining unit to be compatible with effective management. The views of the Employer and the Unions, as summarised above, have been fully considered. In relation to existing national and local bargaining arrangements, there are no bargaining arrangements of either description in place with the Employer making clear that collective bargaining did not take place at all nor did it bargain with the workers on an individual basis.

34) In relation to the desirability of avoiding small fragmented bargaining units within an undertaking, this relates specifically to fragmentation of collective bargaining not fragmentation between bargaining units or fragmented collective bargaining. At [36] of Lidl Limited and CAC v GMB [2017] IRLR 646 CA, Underhill LJ said:

“The policy expressed by head (c) is evidently that, other things being equal, where a group of employees can appropriately be bargained for by single trade union in a single bargaining unit it is desirable that they should be. It is thus concerned specifically with fragmentation of collective bargaining.”

35) The Panel finds that the proposed bargaining unit is neither small nor fragmented and it would not lead to proliferation. The Unions’ proposed bargaining unit would be the only bargaining unit within the school and there is no suggestion that there is any demand for recognition for collective bargaining purposes on the part of other workers within the Employer’s workforce. The Unions’ proposed bargaining unit is not a small unit in that it comprises the majority all workers employed i.e. 56% of staff employed at the school.

36) As for the characteristics of the workers, the Panel is satisfied that the Unions’ proposed bargaining unit consists of a clearly identifiable group of workers, in this case teachers and newly qualified teachers. These workers share common characteristics that distinguishes them from the other workers outside the proposed bargaining unit such as support staff and technicians. The Employer has argued that to differentiate between those in the bargaining unit and those outside would lead to disharmony on the part of those workers excluded from the bargaining arrangements, but this is not an argument that we find persuasive. The collective experience of the Panel is that it is common to have collective bargaining for groups of workers with shared characteristics such as we have in this case. Teachers and newly qualified teachers are a clearly defined set of professions who are bound by a commonality of purpose and are subject to a strict set of requirements that set them aside from other workers within the undertaking. The contracts issued to teachers and newly qualified teachers demonstrate that they are employed on different terms from other groups of staff in the school. They are required to undertake specific duties under these contracts including teaching, assessing and appraising students in contrast to support staff. They are paid on a distinct pay scale and receive the Surrey Fringe Allowance in contrast to different pay scales and no Surrey Fringe Allowance for support staff. There are also separate pension schemes for teachers and support staff. The teachers’ hours of work are based around the school day in contrast to support staff who work a specific number of hours per week. Teachers are entitled to paid holiday during all school holidays on half term in contrast to support staff who receive much smaller holiday entitlements. In relation to location, the workers are all based at the same location in Cobham, Surrey. For these reasons the Panel believes that the Unions’ proposed bargaining unit is compatible with effective management and so an appropriate bargaining unit within the Employer’s undertaking.

37) The alternative bargaining unit put forward by the Employer is not a homogenous unit in that it would cover workers on a myriad of terms and conditions fulfilling a variety of roles and, in our view, such a bargaining unit would not be clear and self-contained.

38) The Panel notes that most of the Employer’s objections to the Unions’ proposed bargaining unit were based on principle rather than on the statutory provisions of paragraph 19B(3). Its main concern appeared to be that workers should be given the opportunity of taking part in a secret ballot to determine whether the Unions were recognised but this is not a matter for the Panel to address as part of our determination here. The Employer submitted that its preference was an all-inclusive bargaining unit that extended to cover all of the workers employed at the school including the headteachers although it stated that it was prepared to be flexible as to whether the headteachers were included or not. It based this proposal on the school having a collegiate, inclusive approach and this approach was one which was at the heart of its decision making process and was the reason why it did not wish to separate out the teachers and newly qualified teachers from the other workers. The Panel accepts that the Employer does indeed take such an approach but the Panel does not believe that holding firm with this vision renders the Union’s proposed bargaining unit incompatible with effective management. It is not axiomatic that such a bargaining unit would lead to a divergence of terms and conditions and in any event, if this were to happen the remedy would be in the Employer’s hands to achieve a workable balance through the medium of collective bargaining or agreement.

39) The Panel does not accept that the Unions’ proposed bargaining unit would make effective management more difficult because the Employer will have to engage in collective bargaining with the teachers and newly qualified teachers. Bargaining in respect of separate groups of workers is standard practice in workplaces where trade unions are recognised and such negotiations over pay are effectively managed. Neither would having the proposed bargaining unit in place prevent the Employer from effectively managing its workforce. It is the Panel’s view that there are already differences in the pay bands between those workers in the Unions’ proposed bargaining unit and those outside and so the proposed bargaining unit, in itself, would not create division where none had existed beforehand. Indeed, having different groups of workers within a workplace on distinct terms and conditions is not unusual and the Panel does not believe this to be a barrier to effective management.

40) The Panel has had regard to the object set out in paragraph 171 of the Schedule in reaching its decision.

6. Decision

41) The appropriate bargaining unit is that as proposed by the Unions and as clarified at the hearing, namely “teachers and newly qualified teachers (excluding Headteachers)”. Panel

Mr Tariq Sadiq - Panel Chair

Mr Len Aspell

Mr David Coats

04 January 2021

7. Appendix

Names of those who attended the hearing:

For the Unions

Laurence Rose - Regional Development Officer, NEU

Caryn Symons - Senior Regional Officer, NEU

Nick Trier - National Executive Member, NASUWT

For the Employer

Amelie Morgan - Prep Headmistress

Anna King - Senior Headmistress