Decision

Acceptance Decision

Updated 17 July 2020

Case Number: TUR1/1183(2020)

3 July 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:

NEU & NASUWT

and

St. Bede’s School Trust

1. Introduction

1) NEU & NASUWT (the Unions) submitted an application requesting that they be recognised for collective bargaining by St. Bede’s School Trust (the Employer) for a bargaining unit comprising “Teachers and Newly Qualified Teachers employed at the following sites of St. Bede’s School Trust Sussex: Nursery; Prep; Senior and Sixth Form”. The location of the bargaining unit was given as Bedes Senior School, Upper Dicker, East Sussex BN27 3QH and Bedes Prep School, Duke’s Drive, Eastbourne, East Sussex BN20 7XL. The application was dated 1 June 2020 and was received by the CAC on 19 June 2020. The CAC gave both parties notice of receipt of the application on 19 June 2020. The Employer submitted a response to the CAC dated 26 June 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 Ms Laura Prince, 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 2 March 2020. A copy of this letter was enclosed with the application. The Employer responded on 18 March 2020 stating that the board of governors of the Trust schools intended to engage constructively with the formal request once it had been received. An email was then sent to the Employer on 24 March 2020 inviting representatives of the school to engage in discussions over formal recognition with a proposed agreement attached (email and agreement attached). A further email was sent to the Employer on 23 April 2020. (copy attached). No response to either email was received.

5) According to the Unions, there were a total of 510 workers employed by the Employer with 138 of these falling within the proposed bargaining unit. The Unions did not know whether or not the Employer agreed with their estimate as to the number of workers in the proposed bargaining unit. The Unions stated that they had 94 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 the majority of employees in the proposed bargaining unit were members of one of the applicant unions (68%). The Unions also had a petition in support of collective bargaining from a majority of all employees within the bargaining unit (74%). A copy of the evidence could be made available to the CAC on request for independent verification. Members had been elected and trained reps had previously met and requested a strike ballot over a proposed change to pensions, since withdrawn. Members requested recognition and that the Unions proceed to secure this at several member meetings.

6) When asked to give their reasons for selecting the proposed bargaining unit, the Unions stated that the vast majority of members of the NEU employed by the Employer were employed as teachers. Teachers employed by the employer had, as a group, specifically expressed a desire to secure collective bargaining with the NEU. Teachers were a discreet body of employees at the school who were employed on ‘teacher contracts’. Teachers were required to undertake specific duties (planning and delivering lessons and assessing students) and were paid on a separate teacher pay scale/range and were exclusively members of the Teachers’ Pension Scheme. When asked whether the bargaining unit had been agreed with the Employer the Unions answered “n/a”.

7) The Unions confirmed that they were in possession of current certificates of independence. Asked to provide any available evidence that the Unions would cooperate with each other and enter into single table bargaining arrangements the Unions stated that they were both TUC members and regularly entered into joint recognition agreements in the independent school sector. Both Unions were jointly recognised across the state education sector.

8) When asked whether the Unions had made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Unions answered “No”. The Unions stated that, following receipt of the request for recognition, the Employer had not proposed that Acas should be requested to assist the parties. The Unions stated that they had copied their application and supporting documents to the Employer on 19 June 2020.

9) Finally, the Unions said there had not been a previous application in respect of this 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

10) The Employer stated that it had received the Unions’ formal request for recognition on 3 March 2020. When asked what its response was and, if it responded in writing, to enclose a copy of the letter, the Employer stated “16th March 2020 (letter attached) to email”. In its letter of 16 March 2020, the Employer informed the Unions that “I can confirm that the Board of Governors intends to engage constructively with the formal request for recognition once it has been received and proposes a negotiation on the basis set out in paragraph 10(2) of TULRCA.”

11) When asked to give the date it received a copy of the application form directly from the Unions, the Employer stated this was on 19 June 2020. The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form but when asked did it agree the bargaining unit, it answered “Yes”.

12) The Employer stated that it employed 540 workers and that it agreed with the Unions’ figure as to the number of workers in the bargaining unit. The Employer left blank the space on the form set aside to give its reasons if it disagreed with the Unions’ estimate of their membership in the bargaining unit. It also left blank the space set aside to give its reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition of the Unions. As this was an application made by more than one union the Employer was given the opportunity to put forward a case that the Unions would not co-operate together, but it did not do so.

13) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the 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 Unions in respect of this or a similar bargaining unit the Employer did not answer.

5. Considerations

15) 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.

16) 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 12 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.

6. Paragraph 36(1)(a)

17) Paragraph 36(1)(a) of the Schedule states that an application is not admissible unless the Panel is satisfied that members of the Unions constitute at least 10% of the workers in the proposed bargaining unit. Here, the Unions stated that 94 of the workers in the proposed bargaining unit were members of one of the applicant unions. In its response the Employer stated that it agreed with the Unions figure of 138 workers in the proposed bargaining unit. The Employer, although given the opportunity to do so, did not challenge the Unions’ membership figures. On the basis of the figures provided by the Unions and the agreed total for the workers in the proposed bargaining unit, membership density would stand at 68.12%. The Panel has therefore concluded, on balance, that members of the Unions constitute at least 10% of the workers in the proposed bargaining unit and the test under paragraph 36(1)(a) of the Schedule is thereby satisfied.

7. Paragraph 36(1)(b)

18) Paragraph 36(1)(b) of the Schedule states that an application is not admissible unless the Panel is satisfied that 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. In this case the Panel has concluded, on the evidence before it, that joint membership of the applicant unions stands at 68.12%. In addition to their joint membership density, the Unions also made reference in their application to a petition in support of collective bargaining which they state had been signed by 74% of the workers in the proposed bargaining unit.

19) The Employer was given the opportunity to challenge the Unions’ assertion as to the density of combined union membership in the proposed bargaining unit as well as the Unions’ claim that a majority of the workers in the bargaining unit would be likely to favour recognition of the Unions but elected not to do so. No argument or evidence was put forward to cast doubt on the veracity of the Unions’ claims in both respects.

20) The Panel is of the view that, in the absence of any evidence to the contrary, union membership is a legitimate indicator as to the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition. In this case the Panel believes that it is likely that, given the density of union membership coupled with the results of the petition, and applying its industrial relations experience for which it was appointed, 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, and the test under paragraph 36(1)(b) of the Schedule is satisfied.

8. Decision

21) For the reasons given in paragraphs 16-20 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Ms Laura Prince, Panel Chair,

Mr Len Aspell,

Mr David Coats

3 July 2020