Decision

Acceptance Decision

Updated 28 August 2019

Case Number: TUR1/1128/2019

28 August 2019

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:

National Education Union

And

St Francis’ College

1. Introduction

1) National Education Union (the Union/NEU) submitted an application to the CAC dated 26 July 2019 that it should be recognised for collective bargaining purposes by St Francis’ College for a bargaining unit described as “the teaching staff employed by St Francis’ College”. The application was received by the CAC on 26 July 2019 and the CAC gave both parties notice of receipt of the application on 29 July 2019. The Employer submitted a response to the CAC dated 2 August 2019 which was copied to the Union.

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 Roger Roberts and Mr David Coats. 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 9 August 2019 and was extended to 23 August 2019 and subsequently to 28 August 2019 to allow time for a membership check to be carried out, for the parties to comment on the subsequent report, and for the Panel to consider the parties’ 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 Union’s application

5) In its application to the CAC the Union stated that the NEU workplace representatives wrote to the Employer’s Governing Body to request voluntary recognition and on 1 July 2019 the Employer’s Governing Body replied declining the request. The Union stated that it had made a request under the Schedule for recognition to the Employer on 5 July 2019 and copies of all correspondence was attached.

6) When asked whether the Union had made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Union answered ‘no’. The Union stated that, following receipt of the request for recognition, the Employer had not proposed that ACAS should be requested to assist the parties.

7) The Union stated that the total number of workers employed by the Employer was 119. The Union stated that there were 64 workers in the proposed bargaining unit, of whom 33 were members of the Union. When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining the Union stated that more than half of the members of the bargaining unit were members of the NEU. The Union stated that there had been several meetings of all the teaching staff to discuss recognition where, regardless of their membership of the NEU, the overwhelming majority of teachers had expressed a desire for the NEU to be recognised collectively to represent them. The Union stated that, in particular, on 4th April 2019, a whole school meeting of teachers, with 50 teachers present, voted unanimously in favour of recognition of the NEU which represented a vote of 100% in favour on a turn-out of 78% of the teaching staff in respect of whom recognition is sought by the Union.

8) When giving the description of the bargaining unit as described above in paragraph 1 the Union provided a more detailed definition stating that the proposed bargaining unit comprised the main academic teaching staff in the senior and preparatory schools and did not include peripatetic, or “visiting”, teachers, nor teachers employed on short-term contracts.

9) The Union stated that the reason for selecting the proposed bargaining unit was because it was a group of professional staff sharing the same general terms and conditions, mechanisms for pay increases and professional working concerns. The Union stated that the bargaining unit was a coherent, and business efficient, group to be collectively represented and was a group which was readily identifiable by those in it, the employer, schools in general and the public. In answer to the questions as to whether the bargaining unit been agreed with the employer and whether there was any existing recognition agreement which it was aware of which covered any workers in the bargaining unit the Union answered ‘no’.

10) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application and supporting documents to the Employer on 26 July 2019.

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

11) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 5 July 2019. The Employer enclosed a copy of their response to the Union’s informal request which they said remained the position of the College together with a copy of a letter sent to the Union dated 1 August 2019 (this letter was actually dated 2 August 2019) apologising for the delay in responding to their letter of 5 July and confirming that it had completed the Employer’s Response document and would prefer to see an amicable and voluntary resolution of the process.

12) The Employer confirmed that it had received a copy of the Union’s application form on 29 July 2019. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union and in answer to the question ‘do you agree the proposed bargain unit?’ answered ‘yes’.

13) As to whether the Employer agreed with the number of workers in the bargaining unit as defined in the Union’s application, the Employer stated that it did not have access to the necessary information due to the College being closed for summer holidays and was trying to ascertain that information.

14) The Employer confirmed that there was currently no recognition agreement in place covering any of the workers in the proposed bargaining unit.

5. The membership and support check

15) 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 subsequently agreed by the Employer are members of the Union (paragraph 36(1)(a)) and whether a majority of the workers in the agreed bargaining unit would be likely to favour recognition of the Union 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 within the agreed bargaining unit. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, addresses, and job titles of workers within the agreed bargaining unit, and that the Union would supply to the Case Manager a list of the names and addresses of paid up members within that unit. It was explicitly agreed with both parties that to preserve confidentiality the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 6 August 2019 from the Case Manager to both parties.

16) The information from the Union was received by the CAC on 9 August 2019 and from the Employer on 13 August 2019. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. The Employer provided a spreadsheet consisting of 67 names and a list of the job titles were listed in the Case Manager’s report. The Union provided a spreadsheet bearing the details of 32 members.

17) According to the Case Manager’s report the total number of workers in the bargaining unit was 67 and the number of Union members in the bargaining unit was 29, a membership level of 43.28 %. A report of the result of the membership check was circulated to the Panel and the parties on 13 August 2019 and the parties’ comments invited.

6. Summary of the parties’ comments

18) In a letter to the CAC dated 16 August 2019 the Union stated that it disputed the number of workers in the bargaining unit proposed by the Employer as it included staff roles that were inappropriate and incompatible with the proposed bargaining unit. The Union disputed that the Senior Leadership Team (SLT) comprising the Head, Deputy Head, Director of Studies or Head of the Prep, should be included in the proposed bargaining unit of teaching staff . The Union also disputed that the Dance Assistant, Graduate Assistant – P.E. and Swim Teacher should be in the bargaining unit and submitted a detailed argument on why it believed that these workers and the SLT should not be included within the proposed bargaining unit. The issue of which individuals fall within the proposed bargaining unit will, if necessary, be considered by the Panel at a later stage of the process.

19) The Union stated that it had noted that 3 members on their list showed in the report as allegedly not working for the Employer and believed that one of the members had retired but the other two members had been mistakenly excluded as they are known by different names.

20) The Union stated in support of its application that 7 new members working as St Francis’ as Teachers had joined the NEU in the last week.

21) The Union stated that it was confident that its application for recognition satisfied the tests set out in paragraph 36 of the Schedule and that it had in membership the majority of the bargaining unit of teaching staff. The Union asserted that 65% of the proposed bargaining unit were NEU members and based this on a revised bargaining unit of 60 and revised membership of 39. The Union argued that, even if the CAC were not to agree entirely with the numbers in its proposed bargaining unit, it remained confident that membership was comfortably over 50%.

22) The Union reiterated the point made in its application form that there was a democratic vote of all the members of the bargaining unit at a staff meeting of all teaching staff on 2 April, with approximately 50 teachers in attendance, when there was a unanimous vote for the recognition of the NEU in respect of the teaching staff. This represented a vote of 100% in favour on a turn-out of around 80% (depending on the figure taken for the number in the bargaining unit).

23) No comments were received from the Employer.

7. Considerations

24) 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 which has been provided to it by the parties in reaching its decision.

25) The Panel is satisfied that the Union made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that its 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 issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

8. Paragraph 36(1)(a)

26) Under paragraph 36(1)(a) of the Schedule, an application is not admissible unless the Panel decides that members of the Union constitute at least 10% of the workers in the proposed bargaining unit.

27) The membership check conducted by the Case Manager showed that 43.28% of the workers were members of the Union. As stated in paragraph 16 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 taken into consideration the Union’s comments regarding the possibly inflated number of workers in the bargaining unit but, even taking at face value the result of the Case Manager’s membership check, the result of that check demonstrated that the Union has satisfied the first validity test of 10% union density. The Panel has therefore decided that members of the Union constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

9. Paragraph 36(1)(b)

28) 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 Union as entitled to conduct collective bargaining on behalf of the bargaining unit.

29) As noted in paragraph 27 the level of union membership in the proposed bargaining unit is 43.28% based on the membership check conducted by the Case Manager. The Panel has given consideration to the Union’s comments referred to above about the possibly inflated numbers in the bargaining unit but has not taken account of the Union’s contention that its membership numbers had increased since the membership check as no specific evidence was provided in support of that latter contention. The Panel has also taken into account the Union’s contention that a unanimous vote had been taken in favour of recognition at the meeting of teachers which had been held about which the Employer had made no comment by way of challenge or otherwise. The Union did not provide any additional evidence of support for recognition, such as a petition, but the Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of the workers in the bargaining unit as to whether they would be likely to favour recognition of the Union. No such evidence to the contrary was received in this case. On the basis of the evidence before it as referred to above the Panel has decided that, on the balance of probabilities, a majority of the workers in the proposed 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 36(1)(b) of the Schedule.

10. Decision

30) 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 Roger Roberts

Mr David Coats

28 August 2019