Decision

Whether to Ballot

Updated 20 May 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1248/2021

16 March 2022

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECISION ON WHETHER TO BALLOT

The Parties:

NEU & NASUWT

and

The Hawthorns Educational Trust Limited

1. Introduction

1) NEU & NASUWT (the Unions) submitted an application to the CAC dated 23 December 2021 that they should be recognised for collective bargaining purposes by The Hawthorns Educational Trust Limited (the Employer) for a bargaining unit described as: “Teachers and Early Career Teachers (excluding the Headteacher) employed by The Hawthorns Educational Trust Limited”. The CAC gave both parties notice of receipt of the application on 23 December 2021.

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 Mrs Lisa Gettins, Panel Chair, and, as Members, Mr Kieran Grimshaw and Mr Paul Moloney. The Case Manager appointed to support the Panel was Joanne Curtis.

3) By a decision dated 4 February 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 25 February 2022 the Employer wrote to the CAC and the Unions to confirm that, provided its interpretation of the proposed bargaining unit was correct namely “Teachers and Early Career Teachers (excluding the Headteacher) employed by The Hawthorns Educational Trust Limited”, it was willing to agree the bargaining unit and did not consider that the assistance of the CAC on this point was necessary. This was confirmed by the Unions in an e mail dated 2 March 2022. As the bargaining unit was the same as that proposed by the Unions in their application, the Panel moved to the next stage in the statutory process.

2. Issues for the Panel

4) Paragraph 22 of 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 union (or 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 (or unions) if any of these qualifying conditions is fulfilled. The three qualifying conditions are:

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

(b) 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;

(c) 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) states that membership evidence 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.

3. Summary of the Employer’s submissions

5) In a response to the CAC dated 25 February 2022 the Employer submitted that, as previously stated in its initial response to the Unions’ application and its letter of 28 January 2022, it believed that a ballot was absolutely essential because two of the qualifying conditions were met. Firstly in accordance with paragraph 22(4)(a) of the Schedule, holding a ballot would be in the interests of good industrial relations and secondly, in accordance with paragraph 22(4)(c) of the Schedule, membership evidence has been produced which cast doubt as to whether a significant number of the Unions’ members within the bargaining unit want the Unions to conduct collective bargaining on their behalf.

6) The Employer asserted there was a conflict between the results of the Unions’ petition on recognition (responses to which were received in the period 5 October 2021 to 30 November 2021) and the School’s staff survey (sent to staff on the morning of Monday 10 January 2022). The Employer asserted that the results of the School’s survey evidence that less than 30% of those within the bargaining unit were in support of trade union recognition. The Employer considered there to have been a material change in circumstances following the date of the Unions’ earlier petition as it was sent to staff in the context of a consultation over a proposal to withdraw from the Teachers’ Pension Scheme (TPS). The Employer believed that any support for trade union recognition at this time was driven largely by the TPS consultation which concluded on 6 December 2021. The Employer did not consider that it would assist good industrial relations to declare recognition in the absence of a ballot, given its submission that there was conflicting evidence on the level of support for recognition from within the bargaining unit.

7) The Employer believed there to be credible evidence from a significant number of union members in the bargaining unit that they did not want the Unions to conduct collective bargaining on their behalf on the basis of the School’s survey which asked staff whether they would support the formal recognition of the Unions or would prefer an internal Staff Committee (encompassing both teaching and support staff) to discuss issues such as pay, hours, holiday and welfare. It stated that less than 30% of those within the proposed bargaining unit indicated their support for union recognition in response. It considered that this represented a more up to date reflection of the views and preferences of the workers within the bargaining unit in comparison to the Unions’ petition. It also believed it to be a more reliable indicator than the Unions’ petition now that the main point of concern for teaching staff, namely the pension consultation, had been resolved.

8) The Employer went on to say that in respect of the Unions’ petition, a number of teachers (who had said they were members of one of the Unions involved) had subsequently made comments to the School’s management which demonstrated they were not supportive of recognition. The Employer stated that membership evidence regarding the circumstances in which workers joined the Unions or length of membership cast doubts over whether a significant number of Union members in the bargaining unit wanted the Unions to conduct collective bargaining on their behalf and that the primary rationale in signing the Unions’ petition was not one that would fall within the scope of trade union recognition in the event it was declared. The Employer repeated its assertions in an email dated 8 March 2022.

4. Summary of the Union’s submissions

9) By e-mail dated 2 March 2022 the Unions submitted their response to the Employer’s submissions. The Unions stated that that they had majority membership in the agreed bargaining unit, and that the Employer did not appear to contest this. Regarding the Employer’s arguments in favor of holding a ballot, the Unions stated that there was no equivalence between the Union’s petition and the school survey and as there was no equivalence there was no conflict. The Unions referenced the anonymity of the Employer’ survey and set out why responses to their survey should therefore be considered a more accurate reflection of genuine staff feeling than the Employer’s survey. Furthermore, the Unions stated that the Employer’s survey contained no explicit evidence that members of staff who freely signed the petition had withdrawn their support.

10) The Unions stated that their application met the tests for recognition to be granted. They stated that positive industrial relations would be best served by awarding recognition based on the evidence already provided. They stated that the evidence demonstrated high union membership amongst the bargaining unit and overwhelming support for recognition. The Unions added that the Employer had provided three statements that it claimed constituted opposition to recognition, however it was not clear if any of the statements were from union members and that, even if they were all from union members, three members of staff did not constitute a significant body of opinion within the bargaining unit by any measure.

11) Finally, the Unions stated that the Employer was correct that a recognition agreement would not cover pensions, however that this did not support the Employer’s request for a ballot rested on an illogical contradiction.

5. Considerations

12) The Schedule requires the Panel to consider whether it is satisfied that the majority of the workers in the bargaining unit are members of the Unions and if the Panel is satisfied that the majority of the workers in the bargaining unit are members of the Unions, it must declare the Unions recognised by the Employer, unless it decides that any of the three conditions in paragraph 22(4) are fulfilled. If the Panel considers any of the conditions are fulfilled it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

13) The Case Manager’s membership check on 26 January 2022 established that 39 workers in the bargaining unit of 57 workers, that is 68.42% of the total, were members of the Unions and the Unions have asked the Panel to declare recognition of the Unions for collective bargaining without a ballot. The Panel accepts that the majority of workers in the bargaining unit are members of the Unions, but it must now consider whether any of the three qualifying conditions stated in paragraph 22(4) (described in paragraph 4 of this decision) applies in this case.

14) The Panel is persuaded that a ballot should be held in the interests of good industrial relations. There is a significant difference of opinion between the parties over the level of support for recognition. Both parties have presented arguments based on their understanding of the views of workers in the bargaining unit which were informed by surveys of those workers, carried out at different times and using different methodologies. The Panel has noted the parties’ comments in their submissions but believes that in this case the outcome of a secret ballot scrutinised by a Qualified Independent Person would provide a clear mandate from the workers one way or other as regards their preference. In the longer term, holding a ballot would help create a better, more sustainable and workable environment where the parties could work effectively together. It is the Panel’s view that a ballot, where both parties would be able to present their cases in a regulated environment, is the better way to resolve the issues raised by the parties and would create for a more stable and respectful relationship in the future. In our view, what the ballot will achieve for the Unions, should they succeed, would be to give them the necessary legitimacy in its relations with the Employer and a mandate from the workers in the bargaining unit to bargain on their behalf.

15) Accordingly, the Panel is satisfied that a ballot should be held in the interest of good industrial relations, and that the qualifying condition in paragraph 22(4)(a) of the Schedule applies. It is not necessary therefore to go further and consider the case put forward by the Employer that the condition in paragraph 22(4)(b) and 22(4)(c) applies.

6. Decision

16) For the reasons provided above, the Panel’s decision is that a ballot should take place as it is satisfied that it would be in the interests of good industrial relations to do so. The Panel now gives notice pursuant to paragraph 22(3) of the Schedule, namely that it intends to arrange for the holding of a secret ballot in which the workers constituting the bargaining unit will be asked whether they want the Unions to conduct collective bargaining on their behalf.

Panel

Mrs Lisa Gettins, Panel Chair

Mr Kieran Grimshaw

Mr Paul Moloney

16 March 2022