Validity Decision
Updated 31 December 2021
Applies to England, Scotland and Wales
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Case Number: TUR1/1220(2021)
7 October 2021
CENTRAL ARBITRATION COMMITTEE
TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992
SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING DETERMINATION OF THE BARGAINING UNIT
The Parties:
University & College Union
and
Study Group Limited
1. Introduction
1) The University & College Union (the Union) submitted an application dated 7 May 2021 to the Central Arbitration Committee (the CAC) that it should be recognised for collective bargaining by Study Group Limited (the Employer) for a bargaining unit comprising “All teaching staff below the grade of Head of Subject and all Progression Support Staff at Sussex ISC ”.
2) The Panel established under section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act) to deal with the application consists of Mr Stuart Robertson, Panel Chair, and, as Members, Mr Derek Devereux and Mr Paul Morley. The Case Manager is Ms Linda Lehan.
3) By a decision dated 11 June 2021 the Panel accepted the Union’s application. The parties were unable to reach agreement on the appropriate bargaining unit. At a hearing to determine the issue on 18 August 2021, the Panel decided that the appropriate bargaining unit was “All academic/teaching staff employed by the Employer Study Group Limited at the Sussex International Study Centre excluding Senior Managers at the lever of Head of Subject and above”. This bargaining unit differs from the bargaining unit proposed by the Union in that it excludes the Progression Support Staff at Sussex International Study Centre.
2. Issues
4) As the bargaining unit determined by the Panel differs from that proposed by the Union, paragraph 20 of Schedule A1 to the Act (the Schedule) requires the Panel to decide whether the Union’s application is valid within the terms of paragraphs 43 to 50 the Schedule. The matters that the Panel must consider are:-
• is there an existing recognition agreement covering any of the workers within the new bargaining unit? (paragraph 44)
• is there 10% union membership within the new bargaining unit? (paragraph 45(a))
• are the majority of the workers in the new bargaining unit likely to favour recognition? (paragraph 45(b))
• is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? (paragraph 46)
• has there been a previous application in respect of the new bargaining unit? (paragraphs 47 to 49)
5) In a letter dated 20 September 2021 the Panel invited the parties to make submissions on these matters for consideration by the Panel.
3. Views of the Union
6) In a letter dated 27 September 2021 the Union advised that
• there was no existing recognition agreement covering any of the workers within the new bargaining unit;
• there was no competing application from another union that covered any worker in the new bargaining unit;
• there was no previous application in respect of the new bargaining unit;
• there was 10% union membership within the new bargaining unit; and
• the majority of the workers in the new bargaining unit were likely to favour recognition.
4. Views of the Employer
7) In a letter also dated 27 September 2021 the Employer advised that:
• (agreeing with the Union) there was no existing recognition agreement covering any of the workers within the new bargaining unit,
• (agreeing with the Union) there was no competing application from another union that covered any workers in the new bargaining unit;
• (agreeing with the Union) there was no previous application in respect of the new bargaining unit;
• it did not know whether the Union had 10% membership within the new bargaining unit as it did not keep records of union membership, but it assumed so;
• it did not know whether the majority of the workers in the new bargaining unit were likely to favour recognition as there had been changes to the bargaining unit and several people had resigned.
5. Discussion and conclusions
8) The Panel must decide whether the Union’s application is valid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision the Panel has considered the parties’ submissions and the other evidence before it. The following matters are not disputed:
• there is no existing recognition agreement covering any of the workers within the determined bargaining unit;
• there is no competing application from another union; and
• there has been no previous application in respect of the determined bargaining unit.
9) The remaining issues for the Panel to decide are whether the validity criteria contained in paragraphs 45(a) and (b) are met. Paragraph 45(a)
10) Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the union constitute at least 10% of the workers in the determined bargaining unit.
11) The CAC conducted a membership and support check at the acceptance stage for the bargaining unit originally proposed by the Union. The new bargaining unit is marginally smaller than that proposed by the Union, a reduction of five workers out of a bargaining unit of approximately 89. At the acceptance stage the membership stood at 22.47% and the change in numbers is not material in deciding if the 10% threshold has been reached. The Panel finds that this test is satisfied.
6. Paragraph 45(b)
12) Under paragraph 45(b) of the Schedule, an application is invalid unless the Panel decides that a majority of the workers constituting the determined bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.
13) As stated in the acceptance decision dated 11 June 2021, the Union’s petition was signed by 50.56% of the workers. This is a legitimate indicator of likely support for recognition of the Union for collective bargaining purposes. The Panel notes that the change in the bargaining unit reduces its membership by only five people. Although the Employer has stated that several workers have resigned, no numbers have been given to demonstrate that the majority of the workers are no longer likely to favour recognition of the union to conduct collective bargaining on behalf of the bargaining unit. On the evidence before it, the Panel has decided that, on the balance of probabilities, a majority of the workers in the determined bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 45(b) of the Schedule.
7. Decision
14) The decision of the Panel is that the application is valid for the purposes of paragraph 20 of the Schedule and the CAC must proceed with the application.
Panel
Mr Stuart Robertson, Panel Chair
Mr Derek Devereux
Mr Paul Morley
7 October 2021