Decision

Recognition Decision

Updated 11 March 2020

Case Number: TUR1/1148(2019)

11 March 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

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 of 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.

3) By a decision dated 31 January 2020 the Panel accepted the Unions’ application. In the letter accompanying the decision the parties were informed that, as the Employer had stated its agreement to the proposed bargaining unit in its response to the application, the next step was for the Panel to decide whether or not a majority of the workers in the proposed and indeed agreed bargaining unit were members of the Unions.

2. Issues

4) Paragraph 22 of the Schedule 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 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 Unions if any of these qualifying conditions is fulfilled. The three qualifying conditions are:

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

(ii) 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;

(iii) 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. The Unions’ claim to majority membership

5) In an email dated 11 February 2020 the Unions stated their wish to apply for recognition without a ballot. They reminded the Panel that the Unions had a majority of the bargaining unit in membership. A ballot of members of NASUWT, conducted on an informal basis by the largest of the three unions applying for recognition, showed that a majority of its members, and of the bargaining unit, clearly indicated a wish for the Unions to be granted recognition. The result of the ballot was 58 of 59 members in favour with one abstention. That was a turnout of 100% of members of NASUWT.

6) Addressing the qualifying conditions, as for the first qualifying condition, the Unions submitted that it would be detrimental to industrial relations to conduct a ballot. Members had expressed a clear wish that the Unions conduct industrial relations on their behalf as they were not comfortable representing themselves. Teachers were professionals and were perfectly able to act as their own advocates in issues regarding pay, progression, pensions and holiday, but did not feel comfortable doing so.

7) As for the second qualifying condition, the Unions had provided evidence to the contrary, and the continued growth of the Unions and addition of union reps since this process commenced would suggest that no significant change in opinion had taken place subsequently, or since the aforementioned ballot of members.

8) Addressing the third condition, the Unions submitted that NASUWT membership had remained at the figure submitted during the membership check and the Unions were confident that no significant number of members had changed their mind regarding union recognition.

4. The views of the Employer

9) In a letter received by the CAC on 17 February 2020 the Employer made submissions in response to the Unions’ belief that a ballot was not required. The Employer fully understood that the CAC could award recognition at this stage unless at least one of the qualifying conditions was satisfied.

10) The Employer stated that it was not in a position to provide evidence to substantiate the application of the second and third conditions, aside from the fact that it was not convinced that members of the Unions had been told by the Unions precisely what collective bargaining would look like under statutory recognition and questioned whether the Unions understood the implications themselves. The Employer referred to a draft agreement it had been provided with which went well beyond the parameters of statutory recognition. The Employer did not know whether the Unions believed that this was the scope of statutory recognition, nor whether they had given that impression to their members, but this was the only documentation the Employer had seen. There had been no mention of the meaning of statutory recognition in the survey conducted by the NASUWT as referred to in its submissions above.

11) The Employer also included, for the Panel’s attention, a letter it had sent to all of its workers, not just those in the bargaining unit, and asked the Panel to take into consideration a number of points which suggested a further lack of understanding of what statutory recognition would entail.

12) One specific area of concern for the Employer within this process was the welfare and rights of non-teaching-union members under statutory recognition. According to the information gathered by the CAC, 39% of the bargaining unit were not members of the Unions. The Employer had received an (admittedly small) number of emails from such teachers, worried about the process itself and what the outcome might mean for them. The Employer fully appreciated that their concerns were not within the bounds of the qualifying conditions set out in paragraph 22(4) but, nonetheless, felt duty bound to make the point to the Panel.

13) The Employer was also concerned that it had not been made apparent that the Unions recognised that any additional benefit achieved on behalf of teachers, through negotiation or bargaining, would have a direct and negative impact upon pay rises for Support Staff.

14) The Employer appreciated that its submissions might not be deemed to address the question in hand. If the majority of the bargaining unit wished to have the Unions recognised then the Employer would accept and respect both their opinion, with or without a ballot, and the judgment of the Panel.

5. Union’s comments on the Employer’s submissions

15) In a letter dated 20 February 2020 the Unions submitted that they did not believe that the Employer had raised any substantive point in its letter relevant to the decision to be made by the Panel having stated that it did not have conclusive evidence that a ballot was required under any of the qualifying conditions. However, in response to the inference that a ballot should be held in the interests of good industrial relations, the Unions would argue that members of the bargaining unit had demonstrated their support for union recognition by virtue of the membership levels of the Unions, the election of a team of reps at the school and by the completion of a survey which had a 100% response rate and near unanimous support for recognition.

6. Employer’s final comments

16) In a letter dated 28 February 2020, the Employer commented on the contents of the Unions’ letter of 20 February 2020. With regard to the survey referred to by the Unions, the Employer noted that it only included NASUWT members and so the near unanimity of the response only meant that nearly all NASUWT members supported recognition. It did not say anything about the 39% of members of the bargaining unit who were not invited to take part and so it should not be taken as an indicator that all teaching staff support recognition. On the question of whether a ballot should be held the Employer stated that, were the Panel to decide that a ballot should be conducted, then its fairness would be assisted by an independent person. The Employer would certainly not seek to influence how individuals voted beyond making it clear, as it had done so far, what statutory recognition did and did not mean. The Employer was fully prepared for a decision to be made by the Panel in favour of recognition but felt it should highlight any documentation that had been distributed which contained elements that were not automatically part of any statutory recognition agreement, and to give the Employer’s view of how recognition might work in practice. The Employer also addressed other issues raised by the Unions in their letter but which did not address the qualifying conditions.

7. Considerations

17) As set out in paragraph 4 above, paragraph 22(1)(b) of 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. 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 that 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.

18) On 16 January 2020 the Case manager’s check established that membership of the Unions in the bargaining unit stood at 60.91%. At the time the check was completed the Employer did not dispute the findings in the report but commented that the results were in line with its expectations. The Panel has not been informed or provided with any evidence of any changes to either the number of workers in the agreed bargaining unit or the number of members of the Unions in that bargaining unit since the check was conducted. Accordingly, the Panel accepts that the majority of workers in the bargaining unit are members of the Unions. Having so decided, the Panel must now move to consider whether any of the three qualifying conditions set out in paragraph 22(4) applies, given the circumstances of this particular case.

8. Paragraph 22(4)(a)

19) The first of the qualifying conditions under paragraph 22 is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The points raised by the Employer in its letter received on 17 February 2020 can be summarised as follows: the draft agreement put forward by the Unions went further than statutory recognition; it was concerned as to the welfare and rights of those workers in the agreed bargaining unit who were not members of the Unions and it also raised concerns on behalf of workers outside of the agreed bargaining unit. In its letter the Employer accepted that it might not be deemed to have addressed the question in hand, i.e. that of whether a ballot was required, to which the Panel concurs.

20) In its final comments received by the CAC on 28 February 2020 the Employer dealt with the contents of the Unions’ letter of 20 February 2020 without addressing the matters material to the only relevant question of whether one or more of the qualifying conditions were met. Having carefully studied the submissions received, the Panel is of the view that it has not heard cogent argument as to exactly how the interests of good industrial relations would be best served by the holding of a ballot such that a ballot would be in the interest of good industrial relations. In all the circumstances, the Panel is satisfied that this condition does not apply.

9. Paragraph 22(4)(b)

21) The second condition is that 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 Unions to conduct collective bargaining on their behalf.

22) The Panel is satisfied that this condition has not been met on the grounds that a significant number of members of the Unions have not informed the CAC that they did not want the Unions to conduct collective bargaining on their behalf.

10. Paragraph 22(4)(c)

23) The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the members of the Unions within the bargaining unit want the Unions to conduct collective bargaining on their behalf.

24) No membership evidence as defined in paragraph 22(5) has been produced that could lead the Panel to conclude there were doubts whether a significant number of members of the Unions within the bargaining unit wanted the Unions to conduct collective bargaining on their behalf. Accordingly, the Panel is satisfied that this condition is not met.

11. Declaration of recognition

25) The CAC accordingly declares that the Unions are recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising “Teachers, specifically those with a contract to teach and who meet the eligibility criteria to pay into the Teachers Pension Scheme”.

Panel

Mr Charles Wynn-Evans, Panel Chair

Mr Len Aspell

Mr David Coats

11 March 2020