Decision

Acceptance Decision

Updated 11 March 2020

Case Number: TUR1/1148(2019)

31 January 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:

NASUWT, NEU & NAHT

and

Wellingborough School

1. Introduction

1) NASUWT, NEU & NAHT (the Unions) submitted an application to the CAC on 4 December 2019 that they should be recognised for collective bargaining by Wellingborough School (the Employer) for a bargaining unit comprising “Teachers, specifically those with a contract to teach and who meet the eligibility criteria to pay into the Teachers Pension Scheme”. The CAC gave all parties notice of receipt of the application on 6 December 2019. The Employer submitted a response to the CAC dated 13 December 2019 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 Mr Charles Wynn-Evans, Panel Chair, and, as Members, Mr Len Aspell and Mr David Coats. The Case Manager appointed to support the Panel was Nigel Cookson.

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 8 November 2019 and that they had met with the Employer and had agreed to go down the statutory route. A copy of the Unions’ letter of 8 November 2019 was enclosed with the application.

5) According to the Unions, there was a total of 259 workers employed by the Employer with 102 of these falling within the proposed bargaining unit. The Unions stated that they had 59 members within the proposed bargaining unit. 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 that they had carried out a survey of their members which showed that 58 members wanted the Unions to apply for recognition with one member abstaining. A copy of the survey was enclosed with the application.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Unions stated “consistency across education sector”. The Unions confirmed that the proposed bargaining unit had been agreed with the Employer.

7) When asked for to provide available evidence that the Unions would cooperate with each other and enter into single table bargaining arrangements the Unions attached correspondence from the NEU and NAHT confirming the agreement to seek recognition. The Unions confirmed that they were in possession of certificates of independence and that, following receipt of the request for recognition, the Employer had not suggested that Acas be requested to assist.

8) Finally, the Unions stated said there had not been a previous application in respect of this proposed 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 6 December 2019. When asked what its response was, the Employer stated that it had emailed the NASUWT representative on 6 December 2019 stating “For the purposes of the CAC Employer Response Document, I am emailing simply to acknowledge receipt today of your recognition request and of the associated documentation”.

10) When asked to give the date it received a copy of the application form directly from the Unions, the Employer stated this was 6 December 2019. The Employer stated that it had not agreed the proposed bargaining unit prior to having received a copy of the completed application form but when asked did it agree the proposed bargaining unit, it answered “Yes”.

11) The Employer stated that it employed a total of 258 workers. The Employer did not agree with the Unions’ figure as to the number of workers in the proposed bargaining unit explaining that there were currently 107 workers within the proposed bargaining unit. It added that it did not know the reason for the discrepancy, but the figure did depend on the definition of “teacher” as per the answer to section 14 in the Unions’ application. When asked to give reasons for disagreeing with the Unions’ estimate of their membership in the proposed bargaining unit, the Employer did not answer. Nor did it answer when called upon to give reasons if it did not consider that a majority of the workers in the proposed bargaining unit were likely to support recognition.

12) When invited to put forward a case that the Unions would not cooperate with each other the Employer elected not to do so.

13) 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 “No”.

14) Finally, when asked if it was aware of any previous application under the Schedule by the Union(s) in respect of this proposed or a similar bargaining unit the Employer again elected not to answer.

5. Clarification of the Employer’s response

15) Before the Unions were invited to comment on the response the Panel Chair asked the Employer to clarify its answer to question 1 which asked for the date on which the Employer received the Unions’ written request under Schedule A1 for recognition and the answer given was “6th December 2019”. It was explained that in their application the Unions stated that they wrote to the Employer formally requesting recognition under the Schedule on 8 November 2019. The Employer was asked to confirm on which date it received the Unions’ letter of 8 November 2019.

16) In an email dated 19 December 2019 the Employer explained that to assist the Panel it was going to attempt to lay out the relevant timeline including that on 12 November 2019 it received a letter dated 8 November 2019 requesting union recognition. As this letter was exactly the same as the one received on 17 September 2019, and included the words “…after which we will have to proceed down the route of applying for statutory recognition”, the Employer did not consider this to be the request that was relevant to the CAC, hence why the Employer did not reference this date in its response to the CAC.

17) The Employer added that the documentation provided to the CAC by the NASUWT said, in Box 6, that the date of the request to the Employer was sent on 8 November 2019, and that “Have met with employer and we have agreed to proceed down statutory route”. However. In the Employer’s view. the meeting referred to must be that of 10 October 2019, at which point no such request/statement regarding statutory recognition had been received and, in fact, the letter of 8 November 2019 was one requesting voluntary, not statutory, recognition. If the response in Section 1 of the Employers’ Response was supposed to indicate when the Employer had first received a request of any kind, then that date should have been 17 September 2019, which also disagreed with the date given by the NASUWT.

6. Unions’ comments on the Employer’s response

18) The Employer’s email and the response to the application were copied to the Unions and their comments invited.

19) In an email dated 7 January 2020 the Unions stated that the Employer’s email was an attempt at obfuscation. The NASUWT met with the Employer on 10 October 2019 and the Employer seemed to be keen to have the involvement of the CAC in negotiating a recognition agreement. At this meeting it was agreed to involve the two other unions in the process.

20) As for the Employer’s response, the Unions stated that Companies House records showed the number of staff employed as 259 but the Unions had no way of knowing exactly how many teachers were employed by the Employer. The Unions’ best estimate was around 107 but they were not privy to the exact number. The request for recognition did not cover the whole staff, only teachers. With regard to the Employer’s answer to question 4, it was the Unions’ belief that the parties agreed at the meeting on 10 October 2019 that the bargaining unit should be ‘teachers’ but, as the meeting was unminuted, the Unions had no evidence for this.

7. The membership and support check

21) 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 across the Unions 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 proposed bargaining unit including their full names and dates of birth. As the survey referred to in the Unions’ application was conducted anonymously it was not included within the comparison undertaken by the Case Manager. It was explicitly agreed with the 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 13 January 2020 from the Case Manager to both parties. The information requested from the Unions was received by the CAC on 13 January 2020 and from the Employer on 14 January 2020.

22) The NASUWT provided a print out of its membership list with the details of 59 individuals. The NEU provided a list with the details of 16 members. Two individuals appeared on both the NASUWT’s and the NEU’s lists but were only counted once for the purpose of the check. No information was received from the NAHT. The Employer provided a spreadsheet with 110 names.

23) According to the Case Manager’s report, the number of union members in the proposed bargaining unit across the Unions was 67, a membership level of 60.91%. A report of the result of the membership check was circulated to the Panel and the parties on 16 January 2020 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.

8. Parties’ comments on the membership check

24) In a letter dated 19 January 2020 the Employer submitted that it had very few comments to make but would, for the purposes of completeness, give its thoughts and questions. The Employer did not doubt the numbers as provided by the NASUWT and NEU, and they were in line with its expectations. The fact, however, that there were six Union members not on the list provided by the Employer, whilst not concerning, led the Employer wonder if there was a difference in understanding of the definition of the proposed bargaining unit, and the Employer would be keen to remove that difference prior to the next stage of the process.

25) The Employer appreciated that the difference did not appear to be material, as the proportion of ‘agreed’ Union members still met the necessary criteria, but it would not want a situation to develop in the future where there was confusion as to upon whose behalf a Union might be communicating with the School.

26) The Employer’s second reflection was in relation to the NAHT. It understood that this Union agreed to be a signatory of the application without consulting its members (which might be reasonable). It had now failed to provide any information about its members at the School. The Employer questioned what difference, if any, did this make to the NAHT’s involvement in the application and should the Employer alert any potential members of that Union about those parts of the process that have happened without the involvement of their Union?

27) In an email dated 21 January 2020 the Unions stated that, as membership of both unions was above 50%, and as members had expressed a clear wish for union recognition, they believed this demonstrated as per paragraph 36 of the Schedule that members “would be likely to favour recognition of the union (or unions) as entitled to conduct collective bargaining on behalf of the bargaining unit.”

28) The Unions also stated that, having looked at a number of previous cases on the website, there was a long held precedent for automatic recognition to be awarded where union membership exceeded 50%.

9. Considerations

29) 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.

30) 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 11(2) of the Schedule in that before the end of the first period of 10 working-days following the Employer’s receipt of the request for recognition, the Employer failed to respond to the request. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

10. Paragraph 36(1)(a)

31) 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 membership check conducted by the Case Manager established a membership density of 60.91%. It is clear to the Panel therefore that members of the Unions constitute at least 10% of the workers in the proposed bargaining unit. That one of the three applicant Unions did not put forward information for the membership check has no bearing on the admissibility of the application as the statutory test is to be applied by reference to the aggregate union membership density within the proposed bargaining unit.

11. Paragraph 36(1)(b)

32) The test in paragraph 36(1)(b) of the Schedule 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. Here the Unions rely on the density of membership within the proposed bargaining unit as evidence that this test is satisfied. The Employer, given the opportunity of commenting on this test, elected not to do so but questioned whether the number of Union members that were found to not be in the proposed bargaining unit was indicative of an issue with the definition of the proposed bargaining unit.

33) The Panel, having considered the papers received and in the absence of any evidence to the contrary, takes the view that the Union membership within a particular bargaining unit can be taken as a legitimate indicator as to the views of the workers concerned. Here, the combined membership is a fraction over 60% and the Panel considers that the majority of this number would have joined the Unions in the expectation that they would seek to bargain with their Employer on their behalf.

34) The Panel is satisfied therefore that, on the balance of probabilities, a majority of the workers in the bargaining unit would be likely to support recognition of the Unions and the test set out in paragraph 36(1)(b) is therefore met.

12. Decision

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

Panel

Mr Charles Wynn-Evans, Panel Chair

Mr Len Aspell

Mr David Coats

31 January 2020