Case Number: TUR1/443(2005)

19 April 2005

 

 

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 Association of Teachers in Further and Higher Education

(NATFHE)

and

Alliance Française de Londres (2004) Ltd

 

Introduction

1.         The Union in this case, The National Association of Teachers in Further and Higher Education (NATFHE) submitted an application dated 23 March 2005 to the CAC that it should be recognised for collective bargaining purposes by Alliance Francaise de Londres (2004) Ltd (the Employer) for a bargaining unit comprising “all those teachers employed by the employer as teachers of the French language and having as their principal normal place of work 1 Dorset Square London NW1 6PU”.  The stated location of the bargaining unit was “1 Dorset Square London NW1 6PU – being the principal normal working place identified in the contract of employment.”  This was received by the CAC on the 24 March 2005 and copied to the Employer on 29 March 2005.  The Employer submitted a response to the CAC on 5 April 2005 which was then 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 Ms Mary Stacey, Chairman of the Panel, and, as Members, Mr Arthur Lodge, and Ms Bronwyn Mckenna.  The Case Manager appointed to support the Panel was Miss Sharmin Khan.

3.         In order to allow sufficient time for all the evidence submitted by the Parties to be considered fully, the Panel decided to extend the 10 day acceptance period until 19 April 2005.

Issues

4.         The Panel is required by paragraph 15 of Schedule A1 to the Act 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 of Schedule A1 to the Act; and therefore to be accepted.

 

Views of the Union

 

5.         In its application the Union informed the CAC that it had made its request for recognition by a letter dated 10 December 2004 and described the history and its contact with the Employer in this case and the involvement of ACAS.

 

6.         The Union declared that there were 28 workers in the proposed bargaining unit of whom 18 were members of the Union.  The Union also stated that membership data and a petition in support of recognition could be provided if and when it was requested.  It also informed the CAC of its reasons for selecting the proposed bargaining

 

Views of the Employer

 

7.            In its response to the Union’s application, the Employer also described the background and its contact with the Union to date regarding the recognition request. Other matters, not relevant for the purposes of this decision were also raised such as the Employer’s preferred method of collective bargaining and its objection to the proposed bargaining unit. 

 

8.              The Employer did not agree with the Union that there were 28 workers in the proposed bargaining unit but stated that there were 29 “teachers” or workers in the proposed bargaining unit. 

 

9.               The Employer did not disagree with the level of union membership within the proposed bargaining unit as stated by the Union.  Though noting that the Union contended that 18 out of 28 workers in the proposed bargaining unit were members of the Union, the Employer stated that it was not able to agree or disagree with the estimate nor did it intend to assert that the Union had misstated its membership.  The Employer went on to state that it had no reason to disbelieve that 10% of the proposed bargaining unit were already members of the Union. 

 

10.              In response to the assertion by the Union that there was likely to be majority support amongst the workers in the bargaining unit proposed, the Employer made three comments but fell short of asserting categorically that there was not likely to be majority support within the bargaining unit contended for. Firstly it was tentatively suggested that the petition had not been signed on an entirely voluntary basis by some members of staff; secondly that they did not know how long the Union members had been in membership of the Union; and, thirdly the response addressed matters relevant to consideration of whether to order recognition without a ballot in due course, on the assumption that the Union’s application would be accepted at this stage.

 

Considerations

 

11.              In deciding 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 considered all the evidence submitted by the Employer and the Union in reaching its decision.  The Panel is satisfied that the Union made a valid request to the employer within the terms specified in paragraphs 5 to 9 of the Schedule as the Union provided a copy of the request made to the Employer on 10 December 2004 to recognise it for collective bargaining in respect of the proposed bargaining unit described in paragraph 1 of this decision.  The request was made in writing and identified the Union, the proposed bargaining unit and stated that the request was made under the Schedule.  The Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 37 to 42 and is in accordance with paragraph 12(2) of the Schedule.

 

12.        The remaining issue for the Panel to address then is whether the admissibility criteria of paragraph 36 (1) of the Schedule is met.

 

13.        In accordance with paragraph 36 (1)(a) of the schedule, the Panel must determine whether members of the Union constitute at least 10 % of the workers in the Union’s proposed bargaining unit.  In the absence of any evidence to the contrary and considering the Employer has clearly stated that it does not doubt the Union’s estimate of its level of membership within the proposed bargaining unit, the Panel finds the criterion of paragraph 36 (1)(a) to be satisfied.  The Union stated in its application that 18 of the workers within the proposed bargaining unit were Union members and the Employer in its response declared that unit to include a total of 29 workers.  The level of Union membership within the proposed bargaining unit can therefore be expressed as 62.7%.  Accordingly, the Panel is satisfied that the 10% test is met.

 

14.        In accordance with paragraph 36(1)(b) of the Schedule, the Panel must assess whether a majority of the workers in the Union’s proposed bargaining unit would be likely to favour recognition of the Union.  This means the Panel at this stage is obliged under the Schedule to perform its duty to assess support and not membership of the Union by deciding whether the majority are ‘likely’ to support the application as specified by paragraph 36(1)(b). 

 

15.        The Panel notes that the Union has stated that it is able to provide a petition and that the Employer has raised its concern on the matter of how signatures for that petition may have been gathered.  However, the Panel considers that in this case it is the number of Union members within the proposed bargaining unit itself that provides sufficient evidence for the Panel to make its decision on whether or not the majority likely test specified in paragraph 36(b) is met.  Further evidence such as a petition or the way in which signatures might have been collected is therefore not required for the purposes of this decision.

 

16.        The Panel is satisfied that membership of a union, can be accepted as being indicative of that person’s support for collective bargaining on his or her behalf by the union in relation to the employer and, in the absence of evidence to the contrary, it is more likely than not that a worker who has joined a union would be in favour of that union negotiating with the Employer on matters related to terms and conditions of employment.  On the basis of this principle in conjunction with the unchallenged level of Union membership within the proposed bargaining unit, the Panel finds that at 62.7%, Union membership exceeds the 50% level and therefore provides adequate evidence that the majority of 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.  The Panel is therefore satisfied that the test under paragraph 36 (1)(b) is met.

 

Decision

 

17.           The Panel is satisfied that the application is valid within the terms of paragraphs 5 to 9, is made in accordance to with paragraph 12 and is admissible within the terms of paragraphs 33 to 42 of schedule A1.  The application is therefore accepted by the CAC.        

 

Panel  - Ms Mary Stacey (Chairman)

                 Mr Arthur Lodge

                 Ms Bronwyn Mckenna

 

19 April 2005