Decision

Acceptance Decision

Updated 2 October 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1415(2024)

20 August 2024

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

St Edmund’s School Canterbury, Kent

1. Introduction

1)         NEU & NASUWT (the Unions) submitted an application to the CAC on 19 July 2024 that they should be recognised for collective bargaining by St Edmund’s School Canterbury, Kent (the Employer) for a bargaining unit comprising “Teaching staff (including early career teachers but excluding the headteacher and visiting teachers) employed by St Edmund’s School Canterbury, Kent.” The Union clarified that the bargaining unit was “limited to those employed to work at St Edmund’s School, St Thomas Hill, Canterbury, Kent, CT2 8HU.” The CAC gave both parties notice of receipt of the application on 22 July 2024.  The Employer submitted a response to the CAC dated 26 July 2024 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 Mr Rohan Pirani, Panel Chair, and, as Members, Mr Sean McIlveen and Mr Paul Noon.  The Case Manager appointed to support the Panel was Joanne Curtis.

2. Issues

3)         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. The Unions’ application

4)         In their  application the Unions said that they had written to the Employer with a formal request for recognition on 3 June 2024.  On 7 June 2024 the Employer acknowledged the Unions’ request and said that it would be discussed at the “Full Board Meeting” on 27 June 2024. The Employer responded to the Unions’ request on 5 July 2024 stating that the Governing Board of St Edmund’s School “although broadly supportive and understanding of the principle of voluntary recognition” had a number of concerns and questions.  A copy of the Unions’ letter of 3 June 2024 and the Employer’s reply of 5 July 2024 were enclosed with the application together with emails exchanged between the parties dating from 24 April 2024 to 15 July 2024.  

5)         According to the Unions, it was estimated that there were around 223 workers employed by the Employer with 109 of these falling within the proposed bargaining unit.  When asked to state the number of members in the proposed bargaining unit the Unions said “NEU - 66 NASUWT - 33 Details available upon request.”  When asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Unions said “the majority of employees in the proposed bargaining unit are members of the NEU/NASUWT. The Unions have a petition in support of recognition signed by a majority of all employees within the bargaining unit and also a majority of members within the bargaining unit. A copy of the evidence can be made available to the CAC on request for verification.”

6)         When asked to give their  reasons for selecting the proposed bargaining unit, the Unions stated “ The Majority of members of the NEU/NASUWT employed by the Employer 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 renumerated according to a specific pay scale.” The Unions confirmed that the bargaining unit had not been agreed with the Employer.

7)         The Unions confirmed that they had current certificates of independence and, when asked to provide any available evidence that the unions concerned would cooperate with each other and enter single table bargaining arrangements the Unions stated “officials from each union have already been in close communication to discuss this application. NEU and NASUWT have previously submitted a number of joint applications which have been accepted by the CAC.” The Unions stated that they copied the application and supporting documents to Employer on 19 July 2024.

8)         Finally, the Unions said there had not been a previous application in respect of this or a similar bargaining unit and there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

4. The Employer’s response to the Unions’ application

9)         The Employer stated that it had received the Unions’ formal request for recognition on 3 June 2024.  When asked what its response was, the Employer stated “Our response was entirely positive, as we made clear in our letter to the unions (attached), but we asked a number of largely factual questions, which had been raised by the School’s Governing Board. We received a response from Jane Gastrell (NEU) requesting an in-person meeting with myself and the School’s Governing Board to address these questions, yet in the same correspondence the NEU informed the school that they had made this application for Statutory Recognition. We find this disappointing, because we understood that the discussions around Voluntary Recognition were both fruitful and ongoing. Nothing that was said by the school either in that letter or in the extensive email correspondence before and since their request could possibly have led the unions to believe that we were rejecting that request, thus necessitating an application for Statutory Recognition. We would therefore like to continue those positive discussions, because we firmly believe that a Voluntary Recognition agreement, presuming it could be achieved, would be a more constructive and harmonious way of reaching an agreement that reflected the wishes and concerns of the school, the unions, and their members, as well as staff who are non-members.”

10)       The Employer said that its intention had been to provide the Unions with comments on the draft “Voluntary Agreement” once it had received the replies to its queries. The Employer went on to say “as this is a school, it is difficult to involve all interested parties (and particularly the teaching staff) outside term time. Further, our NASUWT representative left at the end of this academic year, so we expected discussions to continue with their replacement in the new academic year. Equally, one of the NEU representatives has resigned, so we were expecting to continue with their replacement as well. Therefore, the timing of this application has caused a serious practical problem, having been made right at the end of term, as it makes it extremely difficult to engage with Governors and staff, which is what the school both needs and wants to do, given the importance of this matter. In fact, the timing of the application has made it difficult to respond both to the application for Statutory Recognition, but also to accelerate discussions around Voluntary Recognition.” The Employer said it had a genuine expectation that discussions around voluntary recognition would continue in the new term, with the new team of union representatives. The Employer said it would like to be allowed the time to pursue this process.

11)       When asked to give the date it received a copy of the application form directly from the Unions, the Employer stated this was 19 July 2024.  The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form but did now agree with the proposed bargaining unit.

12)       The Employer stated that it employed 233 workers. The Employer said that it did not agree with the number of workers in the bargaining unit as defined in the Unions’ application and said that “the number of workers in the bargaining unit is now 104. This is owing to staff leaving and to changes of roles from teaching positions that have occurred since the Teachers’ Pension Scheme consultation at the start of this year.” When asked if it disagreed with the Unions’ estimate of membership in the proposed bargaining unit the Employer said that it did not have this information available.

13)       When asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, the Employer said “we understand that there was a petition in support of recognition in or around March of this year. This was at the time when there was a consultation with staff about the Teachers’ Pension Scheme, which led to a ballot for strike action. This issue was amicably resolved without industrial action taking place. We have not seen that petition, so we are not in a position to say whether we accept what has been stated or not, both as to its content and the level of support. The school would like to see a copy of that petition so that it can provide an informed response to this question.”

14)       The Employer confirmed that there was no recognition agreement in place covering any of the workers in the proposed bargaining unit. When asked whether, following receipt of the Unions’ request, the Employer had proposed that Acas be requested to assist, the Employer answered, “we have not proposed assistance from Acas, because our understanding was that we were still discussing Voluntary Recognition.”

15)       When asked if it wished to put forward a case that the Unions would not co-operate with each other the Employer answered “n/a.” Finally, when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit the Employer answered “no”.   

5. The membership and support check

16)       To assist 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.  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 full names and dates of birth and a copy of a petition in support 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 5 August 2024 from the Case Manager to all parties.  The information from the Employer was received by the CAC on 9 August 2024, and from the Unions on 6 and 8 August 2024. 

17)       The list supplied by the Employer contained the names of 104 workers and the list of members supplied by the Unions contained 92 names.

18)       The Unions also provided a petition, which was headed with the NEU’s logo and contained 68 names/signatures.  The petition consisted of 7 A4 sheets with columns headed: The petition had columns headed: “Name”, “Signature”, “Date” and “Union” The proposition of the petition read as follows:

“We, the undersigned wish for our trade union, 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 St Edmund’s School, Canterbury, on behalf of teachers.

We wish for recognition to be agreed for all workers and employees in the specified bargaining unit at St Edmund’s, Canterbury 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.”

19)       According to the Case Manager’s report, the number of union members in the proposed bargaining unit was 84, a membership level of 80.77%.  The check of the petition showed that it had been signed by 65 workers in the proposed bargaining unit, a figure which represents 62.50% of the proposed bargaining unit.  64 of the petition signatories were members of the Unions and 1, that is 0.96% of the petition signatories, were non-members.  A report of the result of the membership check was circulated to the Panel and the parties on 12 August 2024 and the parties’ comments invited. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

6. Parties’ comments on the membership check

20)       In an email dated 13 August 2024 the Unions stated that the check demonstrated that the joint application met the tests as set out in the Schedule.

21)       In an email dated 14 August 2024 the Employer said “to the extent that the information contained is within our knowledge (we do not, for example, have a copy of the petition that the Unions refer to), we do not dispute the data that you have helpfully provided.  In case it assists, I would also like to take this opportunity to provide an update on our ongoing discussions with the union representatives in relation to a voluntary recognition agreement.   In this regard, to further progress the positive discussions we have been engaged into to date, to seek to agree the terms of voluntary recognition we have a meeting scheduled with the NEU representative Jane Gastrell on Tuesday 3rd September at 1.15pm.” The Employer went on to say “We will also be making contact with NASUWT as to an appropriate contact to liaise with following the departure of the School’s NASUWT representative. Following this, we trust that all parties will be in a better position to engage with staff on this important matter and to continue to progress agreement on appropriate terms of a voluntary recognition arrangement as staff return after the holiday period.”

7. Considerations

22)       In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied.  The Panel has considered all the evidence submitted by the parties in reaching its decision. 

23)       The Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 and that it was made in accordance with paragraph 12 of the Schedule.  The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

Paragraph 36(1)(a)

24)       In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Unions constitute at least 10% of the workers in the Unions’ proposed bargaining unit.  In this case the check of membership established that there were 84 members in a 104-worker bargaining unit giving a combined membership density of 80.77%. 

Paragraph 36(1)(b)

25)       The test in paragraph 36(1)(b) is whether 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. The Case Manager’s check of the Unions’ petition against the list of 104 workers provided by the Employer indicated that 65 of the petition signatories were workers from within the proposed bargaining unit, a support level of 62.50%. The wording on the petition is set out in paragraph 18 above.  The Panel believes the proposition to be clear and unambiguous.  The call for the Employer to “formally recognise the NEU and NASUWT for collective bargaining purposes” would leave the signatory in no doubt what they were being asked to support. It is an exceedingly short proposition. It is not one that is lengthy and confusing but brief and to the point.  

26)       Given that 80.77% of the bargaining unit are members of the Unions and that more than 60% of the workers signed the Unions’ petition in support of recognition, the Panel is satisfied that, in accordance with paragraph 36(1)(b) of the Schedule, on the balance of probabilities, a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Unions.

8. Decision

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

Panel

Mr Rohan Pirani, Panel Chair

Mr Sean McIlveen

Mr Paul Noon

20 August 2024