Information and consultation at work: trade union recognition

Section 8 of the Personnel Today Management Resources one stop guide on information and consultation at work. Other sections.

Use this section to Gain an overview of how trade unions can impose compulsory trade union recognition and collective bargaining procedures upon employers Develop an action plan for dealing with requests for compulsory trade union recognition Understand an employer's obligations and duties towards trade unions and workers as a result of compulsory recognition and collective bargaining procedures Identify measures that could avoid the imposition of compulsory trade union recognition Recognise the circumstances in which compulsory trade union recognition and collective bargaining procedures can be brought to an end

From 6 June 2000, independent trade unions acquired a statutory right to recognition under the Employment Relations Act 1999 (ERA). Before the ERA came into force, employers were free to choose whether or not to recognise a trade union for collective bar-gaining purposes, following the repeal in 1980 of the previous statutory recognition provisions in the Employment Protection Act 1975. Now there is a statutory procedure for independent trade unions to impose compulsory trade union recognition on employers, for the purposes of collective bargaining in relation to pay, hours and holidays, provided they can satisfy prescribed levels of support among the workforce.

Voluntary recognition

The majority of recognition arrangements currently in place in the UK are voluntary. The compulsory recognition requirements introduced by the ERA (and inserted into Schedule A1, TULRA) do not have any impact on these arrangements, nor do they prevent employers and trade unions from entering into any new voluntary recognition arrangements.

One of the main purposes of the compulsory recognition requirements is to encourage employers and trade unions to enter into negotiations that result in voluntary recognition arrangements rather than adopting the statutory framework set out under Schedule A1, TULRA.

Under s178 TULRA, recognition is defined as "recognition of the union by an employer, or two or more associated employers, to any extent, for the purpose of collective bargaining". Voluntary recognition does not require any formal agreement between the employer and the trade union. It can be express or implied. The extent to which the union is recognised by the employer for collective bargaining purposes is entirely a matter for negotiation between the parties.

Compulsory recognition

Schedule A1 to TULRA provides independent trade unions with a statutory procedure for imposing compulsory recognition and collective bargaining on an employer.

This is done by the trade union applying to the Central Arbitration Committee (CAC) for a declaration that the union is 'recognised as entitled to conduct collective bargaining' on behalf of a specified group of workers known as the 'bargaining unit'. The trade union will have to satisfy a number of tests before being able to obtain compulsory recognition.

If the union satisfies the relevant tests and the CAC issues a declaration of recognition, the next step is to try to agree a method of collective bargaining. Where the parties are unable to agree, it may result in the CAC imposing a compulsory method of collective bargaining. The compulsory method limits the scope of statutory collective bargaining to matters relating to pay, hours and holidays.

Semi-voluntary recognition

There is a middle ground in between voluntary recognition (outside of Schedule A1, TULRA) and compulsory statutory recognition. Schedule A1 provides for a form of semi-voluntary recognition.

This occurs if the compulsory recognition procedure has been triggered by a recognition request from a trade union but it is later abandoned because the employer has agreed to recognise the union. Subject to certain qualifying conditions, the parties will have reached a statutory 'agreement for recognition'.

A statutory agreement for recognition differs from a voluntary agreement outside the statutory regime in two ways. First, it allows a union (or an employer) to apply to the CAC for the imposition of collective bargaining rules if these cannot be agreed between the parties. Second, the employer is not normally allowed to terminate a statutory agreement for three years, whereas agreements outside the statutory regime can be terminated by the employer at any time.

However, a statutory agreement for recognition is similar to a voluntary agreement outside the Schedule A1 regime in that the employer does not need to employ a statutory derecognition procedure to bring the agreement to an end. For the purposes of this guide, the following sections will concentrate largely on compulsory trade union recognition rather than voluntary (ie, outside Schedule A1, TULRA) or semi-voluntary forms of recognition.

FIVE STEPS TO COMPULSORY TRADE UNION RECOGNITION

Step One: The initial request

Conditions for a valid request

The compulsory procedure is triggered by a trade union making a formal request for recognition to an employer. A valid request must be received by the employer:

in

writing

identifying the relevant union (or unions) and the bargaining unit

stating that it is made under Schedule A1 of TULRA.

In addition, the request must come from an independent trade union (for example, those unions that possess a certificate of independence awarded by the Certification Officer - a governmental appointee who is charged with certain supervisory functions in relation to trade unions).

Small employer exception

A union's request for recognition will only be valid under the compulsory scheme if the employer (together with any associated employer) employs:

21 or more workers on the day that a request is received; or

an

average of 21 workers or more in the13-week period ending with that day.

Otherwise, the small employer exception applies and the request will be invalid. As far as employers with fewer than 21 workers are concerned, a request for union recognition is a purely voluntary matter.

Possible outcome: parties agree or agree to negotiate

Following the initial request, the parties then have 10 working days to either agree to recognition or to commence negotiations with a further 20 days to conclude them. This could result in either:

an

entirely voluntary recognition agreement outside of Schedule A1, TULRA procedure. The contents of the agreement are a matter for negotiation between employer and union. At this point, the statutory procedure is no longer applicable; or

a

semi-voluntary agreement for recognition under Schedule A1, TULRA. At this point, the compulsory procedure has been concluded.

In both of these situations, the Advisory, Conciliation and Arbitration Service (Acas) is available to assist with negotiations.

Possible outcome: parties fail to agree

If the employer fails to respond or gives an outright refusal to the recognition request within the initial 10 days or if the parties are unable to conclude an agreement in the total time allowed, the trade union may apply to the CAC for a declaration of union recognition.

Step Two: Application to the CAC for a declaration of recognition

Conditions for acceptance of the union's application

The CAC has 10 working days after it receives a trade union's application to decide if it is admissible. The principal conditions for the CAC's acceptance of an application are that:

the union has met the conditions for a valid initial request

10 per cent of the 'bargaining unit' are union members;

a majority of the workers in the bargaining unit would be likely to favour recognition; and

the application is made in the form prescribed by the CAC along with any supporting documents, copies of which must be sent to the employer to notify them of the application.

Factors that render an application inadmissible

The following factors will render an application inadmissible:

the bargaining unit includes workers who are already covered by a collective agreement that provides for recognition. However, the application will still be acceptable if the agreement is with the same union making the application and it does not provide for collective bargaining over pay, holidays or hours. It will also be acceptable if the recognised union is a non-independent union that was previously recognised by the employer in respect of substantially the same bargaining unit and was derecognised in the last three years before being recognised again; or

there is an overlap with another bargaining unit in respect of which the CAC is already considering an application; or

there is a joint application by more than one union (although the CAC will treat the application as admissible provided the unions can satisfy certain conditions which demonstrate that they will operate in a co-operative manner).

An application will also be rejected if three years have not elapsed since:

any

previous application by the union in respect of the same or substantially the same bargaining unit was accepted by the CAC

any

previous declaration by the CAC that the union was not entitled to be recognised in respect of the same or substantially the same bargaining unit

any

previous declaration by the CAC that the union was to be derecognised under the statutory procedure.

Step Three: The bargaining unit

Determining the scope of the bargaining unit

Once an application has been admitted by the CAC, the next step in the process is to identify the bargaining unit (if not already agreed between the parties) to be covered by the recognition arrangements.

The parties have 20 working days, after the CAC notifies its acceptance of the application, to reach an agreement. They may be assisted in their negotiations by the CAC or Acas.

If the union and the employer can agree on this point, the CAC can move on to deciding upon recognition. However, if the parties are unable to agree upon the identity of the unit, the CAC has 10 working days to impose a bargaining unit on the parties. The identity of the bargaining unit will often be crucial to the question of recognition as it determines which workers will be taken into account when assessing the levels of support for union recognition.

Compatibility with effective management and other factors to be taken into account

The main factor that the CAC must take into account when imposing a bargaining unit on the parties is that it is compatible with 'effective management'. This is significant for group companies or organisations where the workforce is spread over several locations. Often, unions will target one particular department or location for recognition where it has widespread support.

If employers want to contest an application for recognition, they need to show that effective management of the workers is centralised at a high level (for example, a regional, national or global level), which stretches across the organisation and incorporates non-unionised sections as well as the targeted workers. This will result in a larger bargaining unit that is likely to dilute support for union recognition.

Conversely, if the union is able to show that effective management is decentralised through area and line managers, the bargaining unit is likely to be smaller. This will make it easier to obtain recognition in respect of a targeted workforce.

When deciding upon the identity of the bargaining unit, the CAC must also take into account the following factors (to the extent that they do not conflict with effective management):

the

views of the employer and the union

any

existing national and local bargaining arrangements

the

desirability of avoiding small fragmented bargaining units within an undertaking

the

characteristics of workers falling within the proposed bargaining unit and any other relevant employees

the

location of workers.

If the CAC decides that the bargaining unit differs from the one proposed in the original application for recognition, the admissibility tests mentioned in step two will be re-applied to check whether the application for recognition can proceed.

Step Four: Automatic recognition and ballots for recognition

Automatic statutory recognition

Once the bargaining unit has been identified, the CAC will look at the question of recognition. It can award automatic statutory recognition if a majority of the workers in the bargaining unit already belongs to the union.

Balloting for recognition

However, the CAC is not obliged to award recognition automatically. Regardless of a majority of union members, a secret ballot of the workers in the bargaining unit is necessary if:

the CAC is satisfied that a ballot should be held in the interests of good industrial relations

a

significant number of the union's members in the bargaining unit inform the CAC that they do not want the union to conduct collective bargaining on their behalf; or

the CAC receives evidence about the circumstances in which union members joined the union, or about the length of time they have been members, which leads it to conclude that a significant number of members in the bargaining unit do not want it to conduct collective bargaining on their behalf.

The CAC is also obliged to hold a secret ballot if the number of workers in the bargaining unit who are union members falls short of a majority.

Step Five: Conduct of a recognition ballot

Statutory recognition following a recognition ballot

A union can obtain recognition if the CAC orders a secret ballot which reveals that there are the following levels of support in favour of recognition:

a

majority of the workers who actually vote in the ballot; and

at

least 40 per cent of the workers in the bargaining unit (for example, all those entitled to vote).

Conducting the ballot

When the CAC gives notice of its intention to hold a recognition ballot, the union has 10 working days to ask the CAC not to hold the ballot. The CAC must then cancel the ballot and inform the parties of its action and the reason for the cancellation.

If the ballot is to go ahead, the CAC determines when it should take place and whether it will be conducted by post or at the workplace or, in some circumstances, by a combination of the two.

However, the CAC does not conduct the ballot. It is carried out under the supervision of a 'qualified independent person' (such as a solicitor or other approved person) appointed by the CAC. The QIP has 20 days from their appointment to conduct a ballot. The costs of a ballot are shared equally between the employer and the union.

Employers' duties during the ballot

Employers have certain duties during the conduct of a ballot including:

duty

to co-operate generally in connection with the ballot

duty

to supply names and addresses of workers in the bargaining unit to the CAC (so far as it is reasonable to do so)

duty

to provide the union with reasonable access to workers in a bargaining unit to inform them of the object of the ballot and to seek their support and their opinions on the issues involved.

If an employer breaches one of these duties, the CAC can order it to take steps to remedy the breach if the ballot has not yet been held. Failure to comply with the CAC's order may result in the CAC awarding recognition without a ballot being held.

The Government has published a Code of Practice on balloting for recognition and derecognition (see below for further information on derecognition). The code gives practical guidance on the employer's duty to provide a union with reasonable access to workers in the bargaining unit.

The result of the ballot

The CAC must inform the employer and union of the ballot result and its consequences, as soon as reasonably practicable after it has received details from the QIP.

If the union has won, the CAC must issue a declaration that the union is recognised for the purposes of conducting collective bargaining on behalf of the bargaining unit. Otherwise, the CAC will declare that the union is not entitled to be recognised for the purposes of collective bargaining and the union will have to wait for three years before it can re-apply in respect of the same or substantially the same bargaining unit.

COLLECTIVE BARGAINING

Reaching an agreement for collective bargaining arrangements

The main consequence of recognition is collective bargaining on behalf of the workers in the bargaining unit.

Following notification of the CAC's declaration of recognition, the parties have 30 working days (or longer if they agree otherwise) in which to agree on collective bargaining arrangements.

If the negotiations are successful, the agreed bargaining rules will remain in place for three years and the CAC will only become involved again if one or both parties asks for this (for example, where a party breaches the rules or changes occur within the bar-gaining unit). Similar to voluntary collective agreements outside the scope of Schedule A1, TULRA, the agreed rules will not be legally enforce-able unless there is a clear intention to the contrary expressed in a written agreement.

If the parties are unable to agree a method of collective bargaining within the 30 days, either party may apply to the CAC for assistance. The CAC has a further 20 working days after it receives an application for assistance, to help the parties reach agreement.

CAC can impose statutory collective bargaining rules

If the parties are still unable to reach an agreement, the CAC may impose its own statutory collective bargaining rules. Legislation specifies a statutory method of conducting collective bargaining. The rules are complicated and impose a burdensome, legally-binding procedure on unions and employers.

The CAC must take this specified method into account when determining which method to impose upon the parties. How-ever, it is free to depart from this specified method if it thinks this is appropriate.

The parties can also, by agreement, subsequently vary the imposed method, including the fact that it is legally-binding, provided that they do so in writing. In the majority of cases, it will be in both parties' interests to agree upon their own collective bargaining arrangements.

Failure to observe collective bargaining rules

Where the parties have agreed collective bargaining arrangements but subsequently fail to observe them either party can apply to the CAC for help with trying to reach another agreement within 20 working days.

If no agreement is achieved, the CAC must impose a collective bargaining method on the parties.

Failure to comply with collective bargaining arrangements, which are in the form of a legally enforceable contract, will be remedied by an order for specific performance. This means that the court can order one or both of the parties to perform their obligations under the contract.

MAIN FEATURES OF THE STATUTORY METHOD OF COLLECTIVE BARGAINING

Legally binding contract

Unlike voluntary methods of collective bargaining, the statutory method is treated as a legally-binding contract between the par-ties, which is enforceable by a court order for specific performance. It can only be amended by written agreement between the parties.

Pay, hours, holidays and training

The statutory method covers the pay, hours and holidays of the workers included in the bargaining unit and provides for union proposals on each of these areas to be considered annually. Trade unions with a statutory method of collective bargaining also have a separate right to be periodically consulted on an employer's policy, actions and plans for training.

Bargaining procedure

The bargaining procedure is carried out by a Joint Negotiating Body (JNB) with an equal number of representatives (normally three) of the employer and the trade union.

The bargaining procedure is complex. Proposals by either party must be put forward in writing along with reasons for proposals and the main supporting evidence. This is followed by a strict timetable for counter-proposals and follow-up meetings.

Unions must be allowed reasonable access to workers in the bargaining unit to discuss their proposals for collective bargaining.

The parties are required to set aside half a working day for JNB meetings which should be held on the employer's premises where practicable. The employer must provide heating and lighting and ensure that meetings will be held in private.

Workers who form part of the union side of the JNB must be given paid time off in order to prepare for and attend meetings.

Amending terms and conditions

The employer is not permitted to vary contractual terms of workers in the bargaining unit in relation to pay, hours and holidays unless the proposals have first been discussed with the union (except for individual contracts where the individual has agreed to alteration of the terms of the contract only by direct negotiation with the employer).

No obligation to reach agreement

There is no obligation to reach an agreement on a proposal when the parties have exhausted the collective bargaining procedures. In this situation, it falls to the employer to take a final decision.

DERECOGNITION

Circumstances in which an employer can derecognise a trade union

Generally, statutory derecognition is only relevant to compulsory recognition arrangements and does not apply in relation to voluntary recognition. Voluntary arrangements can be terminated by an employer or a trade union at any time.

Statutory derecognition is the process by which an employer (and in some cases the workers) can bring the recognition and collective bargaining arrangements with a trade union to an end. Statutory derecognition procedures are available to employers in the following circumstances:

where

the number of workers falls below 21

the

level of support required for compulsory recognition no longer exists in the bargaining unit; or

the

level of support required for automatic statutory recognition no longer exists in the bargaining unit.

Circumstances in which workers can derecognise a trade union

Statutory derecognition procedures are available to the workers where:

the

level of support required for statutory recognition no longer exists in the bargaining unit; or

derecognition

relates to a voluntary recognition arrangement of a non-independent trade union.

The procedure for statutory derecognition is almost the mirror image of the procedure that the union must follow to obtain compulsory recognition. However, statutory derecognition is only available to employers and workers upon the expiry of three years from the date on which recognition was originally granted by the CAC.

Semi-voluntary statutory agreements for recognition also last for three years although it is not necessary to follow a statutory derecognition procedure in order to terminate these agreements.

In practical terms, unless the union and the employer can agree to early derecognition (or there has been a qualifying change in the bargaining unit), collective bargaining and all the other aspects of recognition will remain in place for three years regardless of any decline in support for the union.

Arrangements will not automatically cease at the end of the three year period but the employer or the workers will be able to apply for derecognition if they wish to do so. Applications by workers to derecognise non-independent trade unions under purely voluntary collective agreements are not subject to the three year waiting period. These applications can be made to the CAC at any time.

Other circumstances in which statutory recognition will come to an end

Recognition may end before the three year period has expired in some circumstances, for example, where the original bargaining unit is no longer appropriate (for example, due to changes in the business structure or activities or a substantial change in the number of workers) or the unit ceases to exist (for example, the business has closed down).

Statutory recognition arrangements will also come to an end if a trade union loses its certificate of independence.

PROTECTION FOR WORKERS INVOLVED IN COMPULSORY TRADE UNION RECOGNITION

Detriment and dismissal relating to statutory recognition and derecognition

An employee can bring a claim in the Employment Tribunal if they are dismissed on various grounds connected to statutory recognition or derecognition, including where they:

acted with a view either to bringing about the recognition of a union by the employer, or to preventing it

indicated that they either supported or did not support the recognition of a union by the employer

acted with a view to either securing, or preventing the ending of, bargaining arrangements with the employer

indicated that they either supported, or did not support, the ending of bargaining arrangements with the employer

influenced or tried to influence voting in a recognition or derecognition ballot; or

voted in a recognition or derecognition ballot, or

proposed to do, failed to do, or proposed to decline to do, any of the above.

Similar rights apply if an employer subjects a worker to a detriment (such as a detriment other than the dismissal of an employee) by any act or deliberate failure to act in connection with statutory recognition or derecognition.

However, an employer is not liable for a dismissal or inflicting a detriment where the worker actions (or omissions) are deemed to be 'unreasonable'. The ERA does not specify what type of behaviour is unreasonable, although it is likely to amount to actions which involve a breach of contract by an employee or a worker.

Bringing a claim for compensation in the employment tribunal

A dismissal (including selection for redundancy) for a reason connected to statutory recognition or derecognition will be automatically unfair. There is no upper age limit or qualifying service requirement for bringing a claim. Workers who are employees are entitled to compensation in accordance with the normal rules for unfair dismissal.

Workers generally are entitled to compensation where they have suffered a detriment. The amount of compensation will reflect what the Employment Tribunal considers "just and equitable" and taking into account any attributable losses suffered by the complainant. An award of compensation may be reduced if the complainant contributed to the employer's detrimental act or omission or if he or she fails to mitigate the claim. Compensation is subject to the same upper limit as for unfair dismissal where the detriment suffered is the termination of a worker's contract (other than a contract of employment).

These rights only apply to a dismissal or detriment in connection with the recognition and derecognition procedures within the scope of Schedule A1, TULRA and not purely voluntary arrangements outside the statutory machinery.

WHAT LIES AHEAD?

Proposals for reforming laws on compulsory trade union recognition and the Employment Relations Bill

In February 2003, the Department of Trade and Industry published the findings of its review of the ERA in a consultation document which proposed a number of reforms to the rules on compulsory trade union recognition.

Following on from the review and consultation, a new Employment Relations Bill was introduced in the House of Commons on 2 December 2003 and into the House of Lords on 30 March 2004. The Bill is expected to achieve Royal Assent by this autumn. The Bill picks up on many of the proposals in the review of the ERA, and includes the following provisions in relation to recognition:

The

ability for unions to apply for 'top-up' recognition where their existing voluntary agreement does not include any one or more of pay, hours or holidays

A

power for the CAC to reduce the 20-day time limit set aside for the parties to negotiate the bargaining unit

Clarification that the employer's comments on the union's proposal and any counter-proposal are taken are into account in determining whether the union's proposed bargaining unit is appropriate

A

general requirement for union and employer co-operation with a confidential CAC membership check, ensuring full disclosure to the CAC of employee and union membership data

Disclosure of further information concerning employees in the union's proposed bargaining unit (such as numbers, grade and location of workers) at the stage where the parties are obliged to enter into negotiations to agree the bargaining unit

Earlier

union access to workers in a proposed bargaining unit for union recognition at the stage where the CAC has determined that the union application is admissible

Postal voting for employees who are not able to attend their workplace on the day of CAC ballot and a power to introduce e-voting facilities for recognition ballots

Clarification that pensions are not 'pay' for the purposes of collective bargaining under compulsory recognition but at the same time giving a power to order that pensions are added to the other existing three core topics of pay, hours and holidays.

Checklist: How to improve employee relations and avoid requests for compulsory recognition

Consider the potential for union support among the workforce. Are any of the workforce union members? Are there any voluntary recognition arrangements in place which could be derecognised by workers to clear the way for an application for compulsory recognition? Levels of union support can be ascertained by conducting an attitude survey or meetings with line managers.

If

an application for compulsory recognition is a possibility and this is not the employer's preferred method of representation for workers, consider alternative forums such as staff associations or works councils.

Try to resolve the concerns of any groups of workers who may be particularly attracted to union recognition because they feel disenfranchised (for example, following a business transfer) or have specific grievances.

If

there is more than one union in the workforce and compulsory recognition is a possibility, consider which union(s) would be the best choice for future collective bargaining. Recognition of a preferred union may prevent others from obtaining compulsory recognition.

Take active steps to develop good relations with trade unions that are likely to obtain compulsory recognition. Collective bargaining arrangements will normally remain in force for three years and derecognition will only be available in limited circumstances.

Conducting a recognition or derecognition ballot: Key points from the Code of Practice

Consider establishing a formal written agreement with the union on access arrangements including a mechanism for dispute resolution.

Disclose to the union details of the typical method of communicating with workers and other information about the workplace that may be needed to facilitate access.

Where

practicable, allow the union access to workers at their actual workplace during normal working hours. The union should ensure that disruption to the business is minimised.

Allow the union to hold at least one half-hour meeting during working hours for every 10 days of the access period which all workers or a substantial proportion of them are able to attend. Small fifteen-minute surgeries should also be allowed for groups of two or three workers to meet union representatives.

Give workers paid time off to attend meetings or surgeries with union representatives.

Give the union access to the usual methods of communicating with workers (for example, notice boards, meetings, e-mail, intranet or internet) in the run-up to a ballot. If access to the internet by workers is normally prohibited for non-work purposes, consider allowing one worker access specifically for the purpose of downloading union information.

Both

the employer and the union should avoid acrimonious situations and behave responsibly during the balloting process.

Disputes that the parties are unable to resolve between themselves should be referred to Acas in the first instance. As a last resort, the union can ask the CAC to adjudicate and make an order to remedy the situation (for example, by rescheduling the ballot). There is no provision for the employer to complain to the CAC about the union's behaviour but this will be taken into account when deciding if the employer has fulfilled its duty to provide access to the workers.

The Code of Practice is not legally binding. However, the CAC can order an employer who does not allow a trade union reasonable access to take steps to do so. The CAC can award recognition (or refuse to award derecognition) without a ballot if the employer fails to follow the CAC's orders to remedy a breach of the requirements relating to balloting.

The consequences of derecognition

Statute confers several important rights upon an independent trade union once it has been recognised by the employer—whether the recognition is statutory or voluntary

The right to information from the employer for the purposes of collective bargaining. Under the statutory scheme this is limited to pay, hours and holidays unless the parties agree otherwise

Rights to consultation on collective redundancies

The

right for union officials, learning representatives and other members to take time off work

Rights to information and consultation in connection with the transfer of an undertaking

Rights to information and consultation under health and safety legislation

Rights to information and consultation on occupational pensions schemes

Rights to trigger the procedure for establishing an EWC

Where

the union has statutory recognition and the CAC imposes a method for the conduct of collective bargaining on the parties (which they have not varied), the union has the right to be informed and consulted over training.

Determining the method of collective bargaining

CHECKLIST: HOW TO DEAL WITH AN APPLICATION FOR COMPULSORY TRADE UNION RECOGNITION

Do

not ignore the request. Consider meeting with the union on an informal basis and ask for some evidence of the levels of support for compulsory recognition.

Consider the adoption of a voluntary recognition agreement. This will avoid the potentially disruptive and costly process of compulsory recognition. Recognition can be advantageous to employers. For example, a more permanent form of employee representation will avoid the need for a lengthy election process on TUPE transfers or collective redundancies. Good relations with a union can also help to manage employee relations in times of change.

If

the employer wants to contest recognition, this can be done by challenging the union at various stages of the statutory procedure and, in particular, ensuring that the bargaining unit is unlikely to produce the necessary levels of support. However, it may be more realistic to try and co-operate with the union and reach a mutually acceptable voluntary agreement if union support is widespread.

Where

possible, try to avoid the imposition of the statutory method of collective bargaining rules by agreeing a voluntary procedure. The statutory method of collective bargaining is complex and burdensome for both the union and the employer.

Avoid extreme anti-union or 'union busting' tactics as this is unlikely to foster good employee relations. It will also make future negotiations with the union problematic. In some cases, it may result in the CAC awarding recognition early.

TRADE UNION RECOGNITION working examples Scenario one On 1 June, Mr Cod, the senior manager of Frank's Fish Food Ltd, receives a letter by recorded delivery from the Seamen and Pondlife Union (SPU), requesting that the company meets with union officials to discuss union recognition. FFF Ltd is a small outfit that only employs 20 or so workers, although it forms part of a larger network of fish related businesses in the Portsmouth area. In the last few months, there has been a high turnover of staff largely due to an ongoing row over reduction in overtime and changes to employees' commission structure. Mr Cod thought he had the situation under control after a meeting of the staff council, where they had a fast and furious exchange of views on the point but the recognition request would indicate that the workers are unhappy. Roughly half of the employees working at FFF Ltd are members of SPU, although membership is growing fast across the whole fish business network since the arrival of Ray Sting at FFF Ltd, a militant union official. Mr Sting is keen on drumming up support for SPU wherever he can and he is also very vocal on the latest pay dispute. Mr Cod is sure that Mr Sting is behind the letter from SPU but he's not sure what to do next. The thought crosses his mind that it might be a good idea to just bin the letter and put Mr Sting on a long-term secondment to the local salmon farm. Key issues Is there a valid request for compulsory recognition? Does the small employer exception apply or will the total number of employees in the fish network be taken into account? Does the bargaining unit already recognise another union? Is there a case of subjecting an employee to a detriment as a result of the application for recognition? What is the effect of ignoring an application for recognition? Valid request The first thing to establish is whether or not Mr Cod has received a valid request for compulsory recognition, in which case the clock starts ticking on the statutory procedure. Alternatively, it might just be an initial approach by the union to discuss recognition generally. We know that the request is in writing and that it identifies the union but it must also: identify the relevant bargaining unit state that it is made under Schedule A1 of TULRA In addition, Mr Cod needs to check that SPU is an independent trade union. Small employer exception and associated employers If the statutory procedure has been triggered, the small employer exception may nevertheless apply to preclude an application for recognition. The exception applies to an employer (together with any associated employer) who employs 20 or fewer workers on the day that a request is received. For employers with fewer than 21 workers, a request for union recognition is a purely voluntary matter. At first sight, the exception appears to apply to FFF Ltd. However, the request will not be invalid if FFF Ltd has employed an average of 21 workers or more in the 13-week period ending on 1 June. As the membership has been fluctuating over the last few months, this will need to be checked. Even if FFF Ltd only has 20 workers, it is possible that the other businesses in the fish network are 'associated employers', which will boost the numbers. Mr Cod needs to check if one or more of businesses are associated companies. Two employers are associated if one is a company of which the other has control or if both are companies of which a third person has control. Two companies are controlled by the same person if that person has more than 50 per cent of the shares in each company. Recognition of another union If SPU's initial request triggers the statutory procedure, the next step is likely to be an application to the CAC, unless FFF Ltd is prepared to reach agreement with SPU over recognition. There is a possibility that the employee council at FFF Ltd could mean that SPU's CAC application would be invalid. This is because applications are inadmissible where the proposed bargaining unit includes workers who are already covered by a collective agreement which provides for recognition. In Prison Officer's Association and Securicor Custodial Services Ltd (CAC, 21 August 2000), the CAC found that an employer's recognition of a non-independent staff association was sufficient to bar an application for recognition by an independent trade union. However, in TGWU and Grosvenor Casinos Ltd (CAC, 12 July 2002), the CAC held that an employee council was not sufficient to preclude an application as the council had no mandate to negotiate pay, hours or holidays. Instead it merely provided a forum for information and consultation between the company and its workers (See also BECTU and City Screen Ltd (CAC, 10 December 2003) ). Accordingly, the extent of FFF Ltd's employee council's functions and powers will determine whether or not it is sufficient to bar SPU's application. However, this is unlikely to be the end of the story as it is always open to SPU to start derecognition proceedings through its members. Under Schedule A1, TULRA, workers can derecognise a voluntary arrangement of a non-independent trade union to clear the way for a later application. Protection for workers involved in compulsory trade union recognition If the statutory procedure has been triggered, FFF Ltd must not subject Mr Sting to any un-lawful detriment by moving him to another site as a result of his attempt to bring about recognition and campaigns for support among the workforce. FFF Ltd risks Mr Sting bringing a claim for compensation in the employment tribunal if he can show that he has suffered a detriment as a result of his actions to bring about union recognition. There is no upper age limit or qualifying service requirement for bringing a claim. The effect of ignoring a request for compulsory recognition Mr Cod would be far better responding to the union request and trying to find out more information about what is being proposed to assess the real likelihood of union recognition and whether or not it can be averted. If he ignores a valid request for recognition, the union only has to wait 10 days before it can make an application to the CAC and trigger the recognition process. Scenario two Flying Carpets Ltd is being taken through the procedure for obtaining statutory recognition by the Weavers and Handicraft Union (WHU). The WHU's application for union recognition has been accepted by the CAC but there is now a dispute between WHU and FC Ltd over the appropriate bargaining unit. WHU claims that the bargaining unit should be confined to all the weavers (except senior management) at the Worcester site, where they have a substantial following rather than across the company taking in several sites in the UK. However, FC Ltd argues that the bargaining unit should not be confined to the weavers but it should also include supervisory, technical design and administrative staff, to reflect a whole company ethos. In addition, FC Ltd claims that the business is managed at a national level with a standard employee handbook and plans to develop standard workers' terms and conditions throughout the group. FC Ltd argues that these factors are incompatible with local collective bargaining. Key issues What happens when there is a dispute over the bargaining unit? What weight is given to the union and the employer's views on the bargaining unit? Is the union's proposal compatible with effective management? How do geographical location and the characteristics of workers affect decisions about the bargaining unit? Dispute over the appropriate bargaining unit The parties have 20 working days, after the CAC notifies its acceptance of the application, to reach an agreement on the identity of the bargaining unit. If they cannot agree, the CAC must decide on the appropriate bargaining unit. Employer's and union's views The Court of Appeal considered the approach to be adopted by the CAC when determining the bargaining unit (on the application of Kwik-Fit (GB Ltd) v Central Arbitration Committee [2002] IRLR 395). According to the court, the employers and unions views were not on an equal footing. While the employer's views should be taken into account, the court held that provided the union's proposed unit is 'appropriate', the CAC should not go on to consider whether or not the employer's proposed unit is more appropriate. Compatible with effective management The main factor that the CAC must take into account when imposing a bargaining unit on the parties is whether it is compatible with 'effective management'. WHU has targeted a particular type of worker (for example, the weavers) in a specific location where it has widespread support. FC Ltd is trying to show that effective management of the workers is centralised at a national level and takes in other types of worker, which will result in a larger bargaining unit. This is likely to dilute support for union recognition. The fact that FC Ltd is trying to adopt a 'whole company' ethos may not be of any help if this approach is not already in existence. In ISTC and Benteler Automotive UK (CAC, 17 October 2000), the CAC rejected this argument from the employer as, despite its plans, it had not yet achieved a whole company ethos and the union's bargaining unit reflected reality. Even if FC Ltd has already made a substantial investment in adopting a whole company approach, the CAC could still find that the WHU's bargaining unit is more appropriate. In TGWU and Grosvenor Casinos Ltd (CAC, 30 September 2002), the CAC accepted that the employer had standard terms and conditions. However, as there were noticeable variations through the group, such as a regional structure for pay rates, the union's proposed bargaining unit was compatible with effective management. Impact of location and characteristics of workers on the bargaining unit To the extent that they do not conflict with effective management, the CAC must also take into account the following factors when determining the identity of the bargaining unit: The views of the employer and the union Any existing national and local bargaining arrangements The desirability of avoiding small fragmented bargaining units within an undertaking The characteristics of workers falling within the proposed bargaining unit and any other relevant employees The location of workers. Disputes over the bargaining unit often focus on the type of worker and geographical location. In FC Ltd's case, the employer is attempting to draw the different UK sites and the other categories of worker into the bargaining unit to dilute union support. It could also argue that if the characteristics of workers are sufficiently similar and the different sites reflect a purely logistical division (rather than a different type of work function), the union's proposed unit could result in a small fragmented unit. This would be divisive in terms of employee relations. In ISTC and Hygena Ltd (Scunthorpe) (CAC 9 March, 2001), the above arguments succeeded for the employer where the CAC found that the characteristics of the workers in the employer's proposed bargaining unit were similar across all plants in relation to job requirements. The CAC decided that the union's proposed bargaining unit of just manual staff at one plant, excluding supervisors and clerical staff, would upset the company's practice. However, in ISTC and Teknek Electronics Ltd (CAC, 22 August 2003), the CAC rejected an employer's contention that the union's proposed bargaining unit of shopfloor production employees (but excluding managerial, IT and administration staff based on another site) would result in a small fragmented bargaining unit. The CAC is not bound by its past decisions and in terms of determining the appropriate bargaining unit, it will be a question of looking at the individual facts in the FC Ltd case. As far as the employer can show that the terms and conditions across the organisation are similar, together with the work function at the different sites, there is a stronger possibility that the CAC will accept their proposed bargaining unit.

 

One stop guide to information and consultation at work: other sections Section 1: the changing workplace Section 2: current consultation obligations on collective redundancies Section 3: current obligations with business transfers Section 4: electing staff representatives for redundancy and transfers Section 5: listed companies and consultation Section 6: European Works Councils (EWCs) Section 7: health & safety and occupational pensions Section 8: trade union recognition Section 9: future consultation obligations Section 10: useful resources Section 11: jargon buster Appendix: consulting in a regulated environment checklist