Decision

Validity Decision

Updated 24 October 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1302(2023)

22 May 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

AGREEMENT OF THE BARGAINING UNIT

The Parties:

NASUWT & NEU

and

Radley College

1. Introduction

1) NASUWT & NEU (the Unions) submitted an application to the CAC on 3 February 2023 that they should be recognised for collective bargaining by Radley College (the Employer) for a bargaining unit comprising “Teachers and Early Career Teachers (excluding the Headteacher) employed by Radley College” which is in Abingdon, Oxfordshire. The CAC gave both parties notice of receipt of the application on 6 February 2023. The Employer submitted a response to the CAC dated 10 February 2023 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 Chair established a Panel to deal with the case. The Panel consisted of Mr Tariq Sadiq, Panel Chair, and, as Members, Mr Mustafa Faruqi and Mr Steve Gillan. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) By a decision dated 7 March 2023 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 12 April 2023 the parties notified the CAC that they had reached an agreement as to the appropriate bargaining unit and this was “Teachers and Early Career Teachers employed by Radley College, excluding the Warden (Headteacher) and the Sub Warden (Deputy Headteacher). For the avoidance of doubt, the bargaining unit includes all other teaching members of the Senior Management Team (SMT) save for the Warden and Sub Warden”. This bargaining unit differed from that originally proposed by the Unions by the exclusion of the Sub-Warden.

2. Issues

4) As the bargaining unit agreed by the parties differed from that proposed by the Unions, paragraph 20 of Schedule A1 to the Act (the Schedule) requires the Panel to decide whether the Unions’ 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 17 April 2023 the Panel invited the parties to make submissions on these matters for consideration by the Panel.

3. Views of the Unions

6) In an email dated 28 March 2022 the Unions advised that

• there was no existing recognition agreement covering any of the workers within the new bargaining unit;

• There was significantly more than 10% membership as previously proven;

• Given the membership levels on the balance the majority of employees would agree recognition;

• 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.

4. Views of the Employer

7) In a letter dated 19 April 2023 the Employer advised that:

• (agreeing with the Unions) there was no existing recognition agreement covering any of the workers within the new bargaining unit,

• (agreeing with the Unions) From the previous communications the Employer believed that there was membership above the 10% level.

• The Employer did not know whether the majority of the workers in the new bargaining unit were likely to favour recognition. The Employers response was that there was not the required level of support for the reasons set out in its letters and that all the correspondence it had submitted should be considered. The Employer for reference re-enclosed all the letters mentioned and their attachments.

• (agreeing with the Unions) there was no competing application from another union that covered any workers in the new bargaining unit;

• (agreeing with the Unions) there was no previous application in respect of the new bargaining unit

5. The membership and support check

8) To assist in the determination of two of the validity tests specified in the Schedule, namely, whether 10% of the workers in the agreed bargaining unit are members of the unions (paragraph 45(a)) and whether a majority of the workers in the agreed bargaining unit would be likely to favour recognition of the unions as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 45(b)), the Panel proposed an independent check of the level of union membership and support for recognition within the agreed bargaining unit. The Unions provided a list of Union members in the agreed bargaining unit, and a copy of their petition. The information from the Unions was received by the CAC on 28 April 2023 & 2 May 2023. The Employer provided a list of workers in the agreed bargaining unit on 28 April 2023. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and petition would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to both parties dated 25 April 2023. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

9) The list supplied by the Employer indicated that there were 117 workers in the agreed bargaining unit. The list of members supplied by the Unions contained 71 names. According to the Case Manager’s report, the number of union members in the agreed bargaining unit was 69, a membership level of 58.97%. The Unions’ petition was signed by 93 workers and the check established that 83 (70.94%) of the workers were in the agreed bargaining unit. Sixty signatories were members of the Unions (representing 51.28% of the bargaining unit) and 23 were non-members (representing 19.66% of the bargaining unit).

10) A report of the result of the membership check was circulated to the Panel and the parties on 2 May 2023 and the parties were invited to comment on the result.

6. Parties’ comments on the membership check

11) In an email dated 9 May 2023 the Unions stated that it was their view that the membership check supported their application.

12) In a letter dated 9 May 2023 the Employer stated it accepted that there was at least 10% union membership in the new bargaining unit and so this test had been met. However, it disputed that the second of these tests, that the majority of the workers in the new bargaining unit were likely to favour recognition, had been met. In relation to the central issue of support for recognition the Employer referred to a petition organised by the workers in the bargaining unit and which it had presented to the CAC. The Employer was concerned that, by expressly saying that the issue of support would be tested with reference only to the Unions’ initial petition, that the subsequent petition (or other evidence) would not be considered. The Employer considered this is wrong as the CAC’s obligation under the Schedule was to reconsider the tests in full and all the evidence before it. To assist the CAC the Employer provided an additional updated analysis of the second petition in light of the change to the bargaining unit. The second petition, gathered in February 2023, had 75 valid signatories out of an updated bargaining unit of 117 (i.e. 64%) stating that they did not wish there to be union recognition. The CAC’s most recent membership and support check found that the number of union members in the bargaining unit was 69. Even if all of those in the bargaining unit who were not union members (i.e. 48) had signed the petition, then it must follow that 27 union members had signed the petition to say they did not wish there to be union recognition at this time, given that there were 75 valid signatories in total. This meant that the absolute maximum of the bargaining unit that comprised union members who wished there to be union recognition was only 36%. This second petition wholly displaced any suggestion that union members could automatically inferred to equate to support for recognition and that the approach of establishing likely support for recognition based on the Unions’ October 2022 petition alone was flawed and the application should not be accepted.

7. Discussion and conclusions

13) The Panel must decide whether the Unions’ 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 agreed bargaining unit;

• there is no competing application from another union; and

• there has been no previous application in respect of the agreed bargaining unit.

14) 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)

15) Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the unions constitute at least 10% of the workers in the agreed bargaining unit.

16) The membership check conducted by the Case Manager outlined above showed that 58.97% of the workers in the agreed bargaining unit were members of the Unions. As previously stated, the Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties. The Panel has therefore decided that members of the Unions constitute at least 10% of the workers in the agreed bargaining unit as required by paragraph 45(a) of the Schedule.

Paragraph 45(b)

17) Under paragraph 45(b) of the Schedule, an application is invalid unless the Panel decides that a majority of the workers constituting the agreed bargaining unit would be likely to favour recognition of the unions as entitled to conduct collective bargaining on behalf of the bargaining unit.

18) The result of the membership check showed a membership level of 58.97% and the check of the Unions’ petition showed that it had been signed by 23 non-members representing 19.66% of the agreed bargaining unit. Taking these two figures together, the Unions can point to a level of support in the region of 78% of the agreed bargaining unit.

19) Contrariwise, the Employer has expressed concern over the accuracy of the above figures as it submitted that a petition, orchestrated by a worker, or workers, in the bargaining unit challenges the level of support established by the check of the Unions’ petition and membership lists. This petition we are told was collated by a worker in the bargaining unit and then passed to the Employer and the results of the Employer’s analysis of the petition bolster its view that a majority of workers do not favour recognition of the Unions. We note that there is no evidence to suggest that the worker that collated the petition also shared it with the Unions. In considering the weight that the Panel attaches to the Employer’s counter-petition, we are conscious that workers may feel obligated to sign a petition that is orchestrated by the Employer or possibly an agent of the Employer. The Panel is not suggesting that any undue pressure was brought to bear by the Employer in this particular case, but it may well be the workers’ perception that they felt compelled to sign it especially knowing the Employer’s view on the subject of union recognition.

20) The Panel is also aware that the Employer’s petition was collected at a time when the Unions did not have formal access to the workplace and it may well be the case that the workers’ views on recognition as expressed in the Employer’s petition, are not based on fully informed reasoning.

21) Further, the Panel would remind itself and the parties that it is not asked to gauge actual support for recognition at this time but only to assess whether, if the matter were to proceed to a statutory ballot, a majority of the workers in the bargaining unit would be likely to favour recognition. If this is the test then the Panel is of the view that in a secret ballot, it is indeed likely that a majority of workers would be likely to favour recognition of the Unions.

22) Accordingly, on the evidence before it, the Panel has decided that, on the balance of probabilities, a majority of the workers in the agreed 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 45(b) of the Schedule.

8. Decision

23) 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 Tariq Sadiq, Panel Chair

Mr Mustafa Faruqi

Mr Steve Gillan

22 May 2023