Compulsory recognition: Phantom menace or a new hope?

Nicholas Robertson, Partner at Rowe and Maw, gives an overview of the
legislation on compulsory union recognition and how it will affect a typical
business

The legislation on compulsory recognition of trade unions came into force on
6 June 2000. Our experience, so far, is that unions are reluctant to trigger
the formal procedure if it can be avoided. However, formal recognition
applications are being threatened regularly. At the time of writing this
article the CAC has had nine applications. In our view there are relatively few
employers who will not be affected by this new legislation at some stage. They
may face an application for trade union recognition, for example, or pressure
from an in-house staff association seeking to increase its powers.
Alternatively, a union which is already recognised may seek to make use of the
Act to strengthen its position or the employer may acquire a business where
there is pre-existing union recognition.

This article aims to provide an overview of the new legislation and to
identify constructive steps which employers should be taking at this stage. It
does not presuppose that employers are innately hostile to unions. Some employers
will be prepared to accept recognition deals willingly, others will be bitterly
opposed. The aim of this article is to allow employers to make up their own
minds on the new legislation and how it affects their business.

Which employers are caught by the Act?

An employer with 20 or fewer workers cannot be required to recognise the
union under the Act. The Act takes into account the number of workers in Great
Britain working for the employer and any associated employers on the day the
request is received and the average over the previous 13 weeks. This extended
definition of a "worker" covers many non-standard workers and so
widens the impact of the legislation.

What subjects does the Act cover?

The Act can only require a union to be recognised for negotiation on pay,
hours of work and holidays. There is no statutory process by which a union can
require collective bargaining on additional subjects. In addition, the Act
gives a right to a union for six monthly consultation meetings to discuss policies
and plans for training.

Who can apply for recognition?

A union applying for statutory recognition must have a certificate of
independence. In our view it is likely that most applications for recognition
will be by independent trade unions who already have the necessary certificate.
Nonetheless, it is a point worth bearing in mind if an employer faces an
application from an in-house staff association. Conversely, the employer may
want to enter an agreement with an in-house staff association if this will head
off an application by a more aggressive union.

When will the Act apply?

The union must first formally request the employer to grant recognition to
it. The request must specify the bargaining unit for which it seeks
recognition. The request must also state specifically that it is a formal
application under Schedule A1 of the Act. One key point for an employer, on
receiving a request for union recognition, is to double check whether it makes
this formal statement. Our experience indicates that in a number of cases
unions are drafting very formal applications for recognition but deliberately,
or otherwise, not including the reference to Schedule A1. This may be designed
to place maximum pressure on the employer without committing the union to a
formal application to the CAC, if it subsequently wishes to increase the
pressure on the employer.

What is the procedure for a recognition request?

If the union serves a formal request for recognition the employer has 10
working days to respond. If the employer indicates that it is willing to
negotiate with the union then there is a further 20 working days minimum set
aside for negotiation between the parties. The parties can choose to involve
Acas in any discussions. The parties can extend the period for negotiations.
However, our view is that a union will be alert to any obvious attempt by an
employer to time waste by stringing out the discussions for as long as possible
with no intention of concluding an agreement. In any discussions with the union
the employer will want to try and evaluate the strength of the support for the
union amongst the workforce, the details of the proposed bargaining unit, and
why the union considers it is appropriate, and the benefits which the union
states it can bring both to the bargaining unit and to the employer.

If the parties cannot reach agreement then the union may apply to the CAC to
determine the outstanding issues.

First, the CAC will determine whether the application is valid. For example
the CAC must be satisfied that 10 per cent of the proposed bargaining unit are
members of the union and that a majority of the workers in that unit are
"likely" to favour recognition. It is clear that there are going to
be significant battles fought at this stage. Employers may well look to knock
out the union’s application by attacking the evidence as to the likelihood of a
majority of workers wanting recognition. This is one of the reasons why the
employer should focus on the union’s evidence in this area in any initial
negotiations.

If the application is valid the CAC will then determine the appropriate
bargaining unit to be covered by union recognition. There are specific criteria
laid down by the Act to be applied by the CAC. The most important factor is
that any bargaining unit must be compatible with effective management of the
employer’s business. In addition, the CAC can consider the views of the
employer and the union, existing national and local bargaining arrangements,
characteristics of the workers inside and outside the proposed bargaining unit
and the desirability of avoiding small fragmented bargaining units. The CAC
will then review whether, in the bargaining unit it has identified, the union
still has 10% membership and a majority are still likely to favour union
recognition.

Assuming the union clears these hurdles the CAC will consider whether a
majority of the workers in the bargaining unit are members of that union. If
so, in the absence of special factors, this will trigger automatic union
recognition for that unit. However, if the union does not have a majority of
members, or if special factors exist, then a secret ballot of workers in the
bargaining unit will be held. The cost of the ballot is shared equally by the
employer and the union. The union is entitled to reasonable access to workers
in the bargaining unit during the ballot to canvass support.

The union’s application will fail unless it receives a majority of votes in
the ballot. Those voting in favour must also constitute 40 per cent or more of
workers in the unit.

If the union is entitled to be recognised the employer and the union are
given the opportunity to agree a collective bargaining method. This negotiation
period will last a minimum of 30 working days, and can be extended by the
parties if they agree. The bargaining method is the framework which will govern
the employer and the union’s relationship. If the parties cannot agree an
appropriate bargaining method either party can request the CAC to impose one.
This statutory bargaining method will be a legally enforceable agreement
imposed on the parties. However, the parties can subsequently agree to vary the
statutory agreement, so that it reverts to a voluntary agreement. The
introduction of a legally binding collective agreement between the employer and
the union is potentially a very significant step. In any event, parties
negotiating a collective agreement in these circumstances should recognise that
the CAC and the courts are likely to interpret collective agreements in the
same way as they interpret any other contractual documentation and so it is
important for drafting to be precise and accurate.

How long does a grant of recognition last?

There is no defined maximum period for recognition. Instead there are
detailed provisions which will allow an employer and the union (or indeed
workers) to apply to the CAC to cancel or amend a declaration of recognition.
However, many of the opportunities for an employer to apply to derecognise a
trade union only apply after an initial three year period.

Can an employer just ignore the procedural agreement?

There are obvious HR consequences if an employer is seen by the workforce to
ignore the procedural agreement. In addition to this, there may be legal
consequences. Under the Act the only remedy for failing to comply with the
legally binding agreement is a declaration of specific performance. Broadly
speaking, this is a court order requiring the party to comply with the terms of
the agreement. If the parties have agreed a voluntary bargaining procedure then
even this remedy is not going to be available. Crucially, however, there is no
duty on an employer to bargain or to negotiate in good faith imposed under the
statutory bargaining procedure. In other words the courts can compel a meeting
to take place but cannot compel an employer to negotiate reasonably.

What are the consequences of recognition?

A recognition agreement may allow the union a significant increase in its
ability to influence matters within the bargaining unit. In legal terms the
employers should note the consequences of a grant of recognition extends beyond
merely looking at the statutory topics. For example, once recognition has been granted
or agreed workers in the bargaining unit will have the right to reasonable
unpaid time off during working hours to take part in union activities. Union
officials employed by the employer will be entitled to paid time off to
negotiate with the employer or to undergo training relevant to their duties.
The union will have the right to disclosure of information from the employer
for the purpose of collective bargaining over the topics for which it is
recognised. The union will also have a right to information about any
occupational pension schemes, and rights to consultation over any transfers
covered by the Transfer Regulations or any collective redundancy proposals
where these could impact on the workers for whom it is recognised. The union
will also be entitled to nominate safety representatives for those workers and
to be consulted on matters affecting their health and safety.

Conclusion

Evidence from unions suggests that more voluntary collective agreements have
been concluded over the previous 12 months. We have been involved in a number
of discussions with trade unions. Responses from employers have varied
tremendously. One thing is certain at this point. At some stage there are going
to be significant battles over union recognition when a determined union meets
a determined employer and the law will be fully tested. However, any employer
will be well advised to decide now on its attitude to union recognition. Our
view is that most employers will be affected by this legislation at some stage.

What should an employer be doing now?

The golden rule for each employer is to consider what its attitude would be
if there is an application for compulsory union recognition. Even if the
employer agrees to negotiate with the union over the principle of union
recognition this only requires the union to allow a maximum of 30 working days
for such discussions to take place. In practice it may take some time just to
organise the first meeting between the employer and the union to understand the
strength of the union’s case. There are many opportunities for an employer to
influence the process if it is properly prepared. Conversely, an employer who
leaves it until an application is received is always going to be struggling to
keep up with the union which, after all, will rapidly assemble expertise in
recognition campaigns under the Act.

Employers should be asking themselves two types of questions, one set is
largely factual, and then, in the light of the answers to the factual issues,
the employer can identify its strategy.

1 What is the level of support for the union?

This is crucial for evaluating the risk of a successful application for
recognition. However, processing information on trade union membership may fall
foul of the Data Protection Act 1998 if it is done by reference to individuals,
rather than an overview.

2 Why is there support for the union?

Union membership may benefit its members in a number of ways. First, there
is the perceived advantage that the union will act as a representative of the
employees in collective negotiations. Secondly, the union may offer assistance
for disciplinary hearings. Thirdly, union membership may offer discounted
benefits. Discussions with individuals may reveal the attraction of union
recognition or distinguish between a desire for union recognition and a desire
for union membership.

3 What bargaining units would the employer propose?

The employer should consider now what it would contend to be the appropriate
bargaining unit if there is any prospect of a collective recognition
application. Even if the employer is willing to accept an application in
principle it must identify what areas of the business it is willing to have
covered by union recognition. Alternatively, if the employer decides it wishes
to oppose union recognition it may seek to adjust the bargaining unit
accordingly. It may be able to take steps to reinforce the appropriate
bargaining unit in terms of the way departments are structured, profit and cost
centres organised, or general consultation undertaken. This is probably the
most important area and also the most time consuming area for employers and one
which needs to be addressed in advance of any union recognition application.

4 Is there an alternative to the union which is seeking recognition?

Many employers have historic collective agreements which have fallen into
disuse without anyone putting a formal stop to them. Employers should consider
now whether they wish to revive such agreements. This could be for constructive
partnership reasons or because the employer wishes to prevent a new union
seeking recognition. Since the CAC will not adjudicate on inter union disputes
a pre-existing collective agreement will preclude another union seeking
recognition.

Alternatively if union recognition is seen as desirable or inevitable by the
employer, the employer should consider whether it feels that a relationship
with one union would be easier than with another union. Some employers have
arranged beauty parades from interested unions, to focus on what the unions
could offer the employer if they were granted recognition for a particular
bargaining unit.

Equally an employer may consider concluding a voluntary agreement with an
in-house staff body covering the statutory topics. This could significantly
reduce the likelihood of a compulsory recognition application from a practical
standpoint, and a legal one, if the association can be viewed as independent.

Turning now to the strategic questions:

1 Do you wish to have collective representation for your workforce?

The first step is for the employer to identify the type of collective
relationship which it wishes to have (or not to have) as the case may be. The
employer might prefer an exclusive relationship covering some or all workers
with one particular union or a combination of relationships with a union and a
staff association for example. It may also be worthwhile preparing a draft of
the type of procedural agreement which the employer would propose to any union
for discussion during the recognition process.

2 Can you take the initiative?

If the employer does not presently have a relationship with a union, and
accepts one is likely to be imposed on it at the end of the day, the employer
should consider whether to seize the initiative. It may be better for the
employer to approach the union with proposals for some form of recognition than
to have recognition imposed on it. From the union’s point of view this will
allow it to concentrate its resources on another employer. The employer may be
able to gain concessions from the union at this stage of the process. It may
also foster the creation of a partnership approach, which could benefit all
involved.

3 What is the long term view?

If the employer is convinced that some form of recognition is inevitable, for
whatever reason, the employer should always consider the long term view. In
this way the employer can identify whether initial opposition to union
recognition is worthwhile, or whether it is better to be proactive. The
employer can then identify whether delay serves any useful purpose.

There may be changes to the terms and conditions of employment proposed, for
example, which the employer wishes to introduce in advance to compulsory union
recognition. The employer may legitimately take the view that employee
enthusiasm for union recognition will dwindle, the longer the process takes.
One point of view is that a union is likely to choose a softer target first in
seeking to apply the new legislation to union recognition.

An employer who appears to be a determined and well-prepared foe may well
encourage the union to look elsewhere to start with. Conversely, if the
employer is likely to end up with a recognised trade union then the cost of
delaying the process may be that the relationship with the union is more
hostile to start with than need be the case.

4 Identify your bargaining chips

Employer bargaining chips may include:

(i) the employer can reach an agreement with the union speedily;
(ii) the employer can allow the union to have recognition in respect of a wider
bargaining unit;
(iii) the employer can allow the union to have influence outside the scope of
the statutory topics;
(iv) the employer can permit a greater number of union representatives to be
appointed from amongst the workforce than is strictly necessary;
(v) the employer can concede more frequent meetings with the union, or allow
the union the opportunity of calling consultation meetings;
(vi) the union could be allowed sole bargaining rights for all the workers in
the bargaining unit.

Comments are closed.