Decision

Acceptance Decision

Updated 10 July 2020

Case Number: TUR1/1182/2020

10 July 2020

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

Wellesley House School

1. Introduction

1) NEU & NASUWT (the Unions) submitted an application to the CAC dated 17 June 2020 that they should be recognised for collective bargaining purposes by Wellesley House School (the Employer) for a bargaining unit described as: “Teachers and newly qualified teachers”. The location of the bargaining unit was given as Wellesley House School, Broadstairs, Kent CT10 2DG. The application was received by the CAC on 17 June 2020 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted a response to the CAC on 24 June 2020 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 Chairman established a Panel to deal with the case. The Panel consisted of Professor Gillian Morris, Panel Chair, and, as Members, Mr Roger Roberts and Ms Claire Sullivan. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 1 July 2020. The acceptance period was extended to 13 July 2020 to allow time for the parties to comment on the results of the membership and support check and for the Panel to consider these comments before arriving at a decision.

2. Issues

4) The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s 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) In their application to the CAC the Unions stated that the NEU had initially approached the Employer via email on 10 February 2020 requesting a voluntary recognition agreement on behalf of its members. The Unions stated that a response rejecting voluntary recognition had been sent by the Employer on 12 February 2020. The Unions stated that they had sent a letter (hard copy) and an email on 23 April 2020 to the Employer to inform the Employer that it was their intention^{[footnote 1]} to make an application under the Schedule for statutory recognition^{[footnote 2]} and that a formal rejection letter from the Employer dated 28 April 2020 had been received on 1 May 2020^{[footnote 3]}. A copy of all the correspondence referred to above was attached to the Unions’ application.

6) When asked to provide evidence that the Unions concerned would cooperate with each other and enter into single table bargaining arrangements the Unions stated that they had agreed to hold a joint meeting to seek recognition. The Unions said that the representatives of both Unions at the school had requested the application jointly and that members had signed a petition to support it. The Unions stated that they had worked closely and achieved joint recognition in a number of workplaces across both the independent and state sectors.

7) 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 the request for recognition, the Employer had not proposed that Acas should be requested to assist the parties.

8) The Unions stated that the total number of workers employed by the Employer was 41, of whom 25 were in the proposed bargaining unit. The Unions said that 17 workers in the proposed bargaining unit were members of the Unions. 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 stated that the majority of employees in the bargaining unit were NEU members (65%) and an additional number were members of the NASUWT (35%). The Unions stated that a petition had been circulated which showed that 60% of all the workers in the proposed bargaining unit supported recognition for collective bargaining. The Unions stated that 72% of NEU members and 83% of NASUWT members had supported the petition. The Unions stated that a copy of the evidence could be provided on request to the CAC for verification.

9) The Unions stated that the reason for selecting the proposed bargaining unit was because Teachers and NQTs had the same contract (terms and conditions) and separate pay scales from non-academic staff and contributed to the Teachers Pension Scheme (TPS). The Unions stated that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the proposed bargaining unit the Unions answered ‘No recognition agreement exists’.

10) The Unions confirmed that they held a current certificate of independence. The Unions stated that they had copied their application and supporting documents to the Employer on 17 June 2020.

4. Summary of the Employer’s response to the Unions’ application

11) In its response to the Unions’ application the Employer stated that it had received a letter from the Unions stating their intention to seek recognition on 23 April 2020. The Employer stated that a formal letter was received on 17 June 2020 which was an application for recognition under the Schedule. The Employer stated that it had responded to the Unions’ letter of 23 April 2020 on the 28 April 2020 acknowledging safe receipt and saying that it would await further communication from the CAC.

12) The Employer confirmed that it had received a copy of the application form from the Unions on 17 June 2020. The Employer stated that it had not, before receiving a copy of the application form from the Unions, agreed the bargaining unit with the Unions and that it did not agree the proposed bargaining unit. The Employer stated that its objections to the proposed bargaining unit were due to the Employer being unsure how the Unions’ number was reached and who it involved. The Employer stated that, following receipt of the Unions’ request, it had not proposed that Acas should be requested to assist as it had not been advised to do so.

13) The Employer stated that it did not have any details to ascertain whether it agreed with the number of workers in the bargaining unit as defined in the Unions’ application. The Employer stated that it did not know how the numbers from the Unions were reached as there were 22 affected staff in the TPS consultation.^{[footnote 4]}

14) When asked if there was an existing agreement for recognition in force covering workers in the proposed bargaining unit the Employer said that, as stated in its handbook which was sent to all staff, the school did not recognise a Trade Union as having representative rights and relied upon the existing management structure for communication between employee and employer. The Employer stated that there were clear and open channels of communication between staff, leadership and governors. The Employer stated that throughout the process of TPS consultation the Governors had always encouraged open channels of communication between the staff representatives and the governing body.

15) In answer to the question whether it disagreed with the Unions’ estimate of membership in the proposed bargaining unit the Employer stated that it did not know how the proposed number was reached, so it did not know who was included. 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 stated “n/a”.

16) The Employer answered ‘n/a’ 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 when asked if it had received any other applications in respect of workers in the proposed bargaining unit.

5. The membership and support check

17) 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 membership of the Unions 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 proposed bargaining unit including their full names and date 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 and petition would not be copied to the other party. These arrangements were confirmed in a letter dated 26 June 2020 from the Case Manager to both parties.

18) The information from the Unions was received by the CAC on 26 June 2020 and from the Employer on 30 June 2020. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

19) The list supplied by the Employer indicated that there were 23 workers in the Unions’ proposed bargaining unit. The list of members supplied by the Unions contained 17 names. According to the Case Manager’s report the number of members of the Unions in the proposed bargaining unit was 16, a membership level of 69.57%.

20) The petition supplied by the Unions was set out as follows:

Trade Union Recognition Petition – Wellesley House School, Broadstairs

We the undersigned wish for our trade unions, The National Education Union (NEU) and The National Association of School Masters/Union of Women Teachers (NASUWT) to be recognised for the purposes of collective bargaining at Wellesley House School, Broadstairs, on behalf of teaching staff.

We wish for recognition to be agreed for all workers and employees in the specified bargaining unit at (sic) 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.

NAME(Print)	SIGNATURE	DATE

In the column headed date, the dates ranged from 06/03/20 – 11/03/20.

21) The petition contained 16 names and signatures, of which 15 were in the proposed bargaining unit, a figure which represents 65.22% of the proposed bargaining unit. Of those 15 signatories, 13 were members of the Unions (56.52% of the proposed bargaining unit) and 2 were non-members (8.70% of the proposed bargaining unit).

22) A report of the result of the membership and support check was circulated to the Panel and the parties on 1 July 2020 and the parties were invited to comment on the results by 6 July 2020. No comments were received from either party.

6. Considerations

23) 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.

24) 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. Furthermore, 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 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

7. Paragraph 36(1)(a)

25) 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.

26) The membership check conducted by the Case Manager (described in paragraphs 17-19 above) showed that 69.57% of the workers were members of the Unions. As stated in paragraph 18 above the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed 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.

8. Paragraph 36(1)(b)

27) 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. For the reasons given in paragraph 26 above the level of membership of the Unions is 69.57%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition. No such evidence to the contrary was received in this case; indeed, the support check conducted by the Case Manager (see paragraphs 17 and 20-21 above) showed that 13 members of the Unions (56.52% of the proposed bargaining unit) had signed the petition in favour of recognition of the Unions.

28) The Panel would have been prepared to decide that, on the balance of probabilities, 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 on the basis of the level of union membership alone. In this case the Unions provided further evidence of support for recognition in the form of the petition which showed that 65.22%of the workers in the proposed bargaining unit supported recognition. The Employer did not dispute the validity of the petition and the Panel has no evidence which would suggest that it represents anything other than the views of the signatories to it.

29) On the basis of the evidence before it the Panel is satisfied, on the balance of probabilities, that 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, as required by paragraph 36(1)(b) of the Schedule.

9. Decision

30) For the reasons given in paragraphs 24-29 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mr Roger Roberts

Ms Claire Sullivan

10 July 2020

1. On the application form the Unions said that this letter informed the Employer that it was the NEU’s intention to make an application. The letter itself makes clear that it was the intention of both Unions. Had the letter itself not made this clear the request would not have complied with paragraph 8(b) of the Schedule. ↩

2. The letter itself expressed a preference for a voluntary recognition agreement. ↩

3. The Employer’s letter did not expressly reject the request but stated that the Employer would await any contact that may come from the CAC. ↩

4. The Panel takes the initials “TPS” to refer to the Teachers’ Pension Scheme. No date was given by the Employer to indicate when the TPS consultation took place. ↩