Decision

Recognition Decision

Updated 16 February 2021

Case Number: TUR1/1189(2020)

16 February 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECLARATION THAT THE UNION IS NOT ENTITLED TO BE RECOGNISED

The Parties:

NEU & NASUWT

and

Bishop’s Stortford College

1. Introduction

1) NEU & NASUWT (the Unions) submitted an application to the CAC on 4 August 2020 that they should be recognised for collective bargaining by Bishop’s Stortford College (the Employer or the College) for a bargaining unit comprising “All teachers directly employed by Bishop’s Stortford College, including the Deputy Heads in the Prep and Senior School, excluding teachers on zero hours contracts, Teaching assistants, peripatetic Music teachers, and Heads”. The location of the bargaining unit was given as Bishop’s Stortford College, 10 Maze Green Road, Bishop’s Stortford CM23 2PJ. The CAC gave both parties notice of receipt of the application on 4 August 2020. The Employer submitted a response to the CAC dated 10 August 2020 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 Charles Wynn-Evans, Panel Chair, and, as Members, Mr Roger Roberts and Mr Steve Gillan. The Case Manager appointed to support the Panel for the purpose of this decision was Kate Norgate.

3) By a decision dated 25 September 2020 the Panel accepted the Unions’ application.
In its response to the Unions’ application the Employer agreed that the Unions’ proposed bargaining unit was an appropriate bargaining unit.

2. The Ballot

4) By a further decision dated 9 November 2020, the Panel decided that a ballot should be held in the interests of good industrial relations and gave notice to the parties accordingly, pursuant to paragraph 22(3) of the Schedule. In a letter dated 9 November 2021 the Case Manager advised the parties that the Panel would wait until the end of the notification period of ten working days, as specified in paragraph 24, before arranging for the holding of the ballot. The notification period elapsed without the Unions, or both parties jointly, informing the CAC that they did not want the CAC to arrange for the holding of the ballot.

5) The parties did not agree on the type of ballot to be held; the Unions favoured a workplace ballot, the Employer a postal ballot. In a decision dated 20 November 2020 the Panel informed the parties that, having considered the view of the parties and the factors specified in paragraph 25(5) of the Schedule, it had decided that a postal ballot was the most appropriate. The parties reached an agreement on the Unions’ access during the balloting period and the Panel subsequently directed that Kanto Elect should be appointed as the Qualified Independent Person (QIP) to conduct the ballot.

6) The QIP was appointed on 4 December 2020 and the parties were notified accordingly. The ballot papers were dispatched on 21 December 2020 to be returned to the QIP by no later than noon on 13 January 2021.

7) By letter dated 13 January 2021 the Unions informed the CAC that at 3pm on 11 January 2021 it was notified by the Employer of four new workers in the bargaining unit. The Union maintained that the Employer’s failure to act in a reasonable and timely manner had denied the Unions legitimate access workers in the bargaining unit. The Union requested that the CAC extend the ballot period by two weeks, until 27 January 2020, so that those new members of staff could be verified as legitimate members of the bargaining unit, for the Unions to be able to speak to those workers, and to allow them sufficient time to cast their vote.

8) On 15 January 2021 the Case Manager, on behalf of the Panel Chair, wrote to both parties and invited them to attend in informal meeting via Zoom to seek to resolve the Unions’ complaint. A meeting was held on 21 January 2021 at which various matters were agreed by way of a resolution of the Unions’ complaint as follows:-

(a) The additional workers fell within the bargaining unit and that their names would be provided to the QIP by the CAC.

(b) Any vote already received by the QIP cast by one of these additional workers would be removed from the count.

(c) The CAC would communicate with the members of the bargaining unit via the QIP to explain that it had been agreed by the parties and the CAC that the ballot would be extended to ensure that the additional workers could take part fully in the balloting process. It would also be confirmed to the workers in the bargaining unit that, with the ballot being extended, any worker who had not already returned a ballot paper, could do so before the revised closing date.

(d) The workers within the bargaining unit would be informed that the Unions would be granted access to the additional workers following which the affected workers would be issued with fresh ballot papers, and that this would be communicated to those additional workers by way of a joint e-mail along with copies of the parties’ campaign literature that had already been sent out as part of the original access arrangements.

(e) The parties agreed the dates and times for the Unions to meet with the additional workers via Zoom or another appropriate medium. The Unions’ access would then take place by no later than 29 January 2021.

(f) The ballot was extended by agreement between the parties until noon on 8 February 2021. On 29 January 2021 fresh ballot papers would be sent to the additional workers and those ballot papers should be returned to the QIP by no later than noon on 8 February 2021, the close of the ballot.

9) The QIP reported to the CAC on 8 February 2021 that, of the 137 workers eligible to vote, seventy nine (79) ballot papers had been returned. One (1) ballot paper was found to be invalid. Forty four (44) workers (56.41% of the valid vote) had voted to support the proposal that the Unions should be recognised for the purposes of collective bargaining with the Employer. Thirty four (34) workers (43.58% of the valid vote) had voted to reject the proposal. The proportion of workers constituting the bargaining unit who supported the proposal was 32.12%.

10) The CAC informed the Unions and the Employer on 9 February 2021 of the result of the ballot in accordance with paragraph 29(2) of the Schedule.

3. Paragraph 29(3)

11) Paragraph 29(3) of the Schedule provides as follows:-

(3) If the result is that the union is (or unions are) supported by—

(a) a majority of the workers voting, and

(b) at least 40 per cent of the workers constituting the bargaining unit, the CAC must issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.

(4) If the result is otherwise the CAC must issue a declaration that the union is (or unions are) not entitled to be so recognised.

4. Declaration that the Union is not entitled to be recognised

12) Whilst the ballot established that a majority of workers who voted in the ballot supported the proposal that the Unions should be recognised by the Employer for the purposes of collective bargaining within the bargaining unit, the result of the ballot was that the Unions were supported by less than 40% of the workers constituting the bargaining unit. The condition for recognition set out in paragraph 29(3)(b) was therefore not satisfied.

13) In accordance with paragraph 29(4) of the Schedule, the CAC declares that the Unions are not entitled to be recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit.

Panel

Mr Charles Wynn-Evans, Panel Chair

Mr Roger Roberts

Mr Steve Gillan

16 February 2021