Trade union recognition

In this series, we delve into the XpertHR reference manual to find essential
information relating to one of our features. This month’s topic…

Compulsory recognition

To invoke the compulsory recognition procedure the following certain
conditions must be satisfied:

– The union is ‘independent’

– The employer has at least 21 workers

– There is no collective agreement already in force under which a union is
recognised to conduct collective bargaining

– The Central Arbitration Committee is satisfied that at least 10 per cent
of the workers in the relevant bargaining unit are members of the union and
that the majority of the workers in that unit would be ‘likely’ to favour
recognition

– There are no competing applications for recognition by other union(s),
unless the unions can show that they will co-operate and act together on behalf
of all the workers if granted recognition, and

– No application for recognition has been made to the CAC within the
previous three years in respect of the same bargaining unit.

The recognition process

An independent union makes a formal request for recognition which must be in
writing, and which must define the part of the business (the bargaining unit)
which the request is being made for.

One of the key issues in this process is the definition and scope of the
‘bargaining unit’. This comprises the group of workers who are to be covered by
any agreement and for which recognition is to be agreed (or if necessary
determined by the CAC) in accordance with specified criteria – the most
important being effective management.

In essence, groups of workers who are managed separately are likely to
constitute separate bargaining units. As the likelihood of an independent union
securing recognition depends upon it gaining the support of a majority of the
workers within a bargaining unit, the scope of that bargaining unit will be
important in determining its chances of success.

If the employer agrees within 10 days that the union will be recognised to
conduct collective bargaining on behalf of the bargaining unit, then no further
action is required provided that a method of collective bargaining is also
agreed.

If the employer does not accept the request but is willing to negotiate then
the parties have a further period in which to agree the scope of the bargaining
unit and the extent of any collective bargaining. Again, if agreement is
reached within this period no further action is required. Either party may ask
Acas to help conduct negotiations.

The CAC will become involved only if:

– The employer fails to respond to the original request for recognition, or

– The employer refuses the request without indicating a willingness to
negotiate, or

– The negotiations fail.

In such cases the union may apply to the CAC. Its intervention can be stayed
if the employer first proposes that Acas be involved in the negotiations. The
CAC will refuse to intervene unless the union’s application is both valid and
admissible. To be valid the union must show:

– It has made a written request to the employer for recognition identifying
itself and the proposed bargaining unit, and stating that it is made under the
Trade Unions and Labour Relations (Consolidation) Act 1992

– It is independent, and

– The employer has at least 21 workers

To be admissible the union must show:

– At least 10 per cent of the workers in the bargaining unit are members of
the union

– The majority of the workers in the proposed bargaining unit would be
likely to favour recognition of the union to conduct collective bargaining

– The application is made in the proper form with supporting documents

– The employer is given notice of the application

– No existing recognition agreement applies to the bargaining unit

– If another union is making a competing application, that they will
co-operate if both are recognised, and

– The union had not within three years made an application for recognition
in respect of the same bargaining unit.

If the CAC is satisfied that the application is valid and admissible, it
will accept the application to become involved and will try to help the parties
reach agreement on the scope of the bargaining unit within 20 days. During
negotiations it will refuse applications from other unions.

If no agreement can be reached on the appropriate bargaining unit by the
expiry of this period the CAC must, within a further 10-day period, decide
itself what should comprise the bargaining unit.

In deciding this issue the CAC must take into account specified criteria
including:

– The need for the bargaining unit to be compatible with effective
management, and the matters set out below so far as they do not conflict with
that need

– The views of the employer and union

– Existing national and local bargaining arrangements

– The desirability of avoiding small fragmented bargaining units within the
business

– The characteristics of workers falling within the proposed bargaining unit
and other relevant employees, and

– The location of workers.

In R v Central Arbitration Committee and another ex parte Kwik Fit (GB) Ltd,
2002, IRLR 395 CA the Court of Appeal held that when the CAC determines the
bargaining unit it must first consider the proposal put forward by the union
and, if it finds this to be the appropriate bargaining unit, the CAC should go
no further. It follows that the CAC is not under a duty to treat equally the
employer’s proposed bargaining unit alongside the union’s proposed bargaining
unit. However, the Court of Appeal did make clear that in determining this
issue the CAC should have regard to the points raised by the employer.

If the CAC is not satisfied that a majority of the workers in the bargaining
unit are members of the union then it must arrange for a secret ballot to be
held to determine whether the workers want the union to bargain on their
behalf.

If the CAC is satisfied that the majority of the workers in the bargaining
unit are members of the union then it must issue a declaration that the union
is recognised as entitled to conduct collective bargaining on behalf of the
workers in the bargaining unit unless:

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

– A significant number of the union members inform the CAC that they do not
want the union to conduct collective bargaining on their behalf, or

– Evidence exists which led the CAC to conclude that there are doubts as to
whether a significant number of the union members want the union to conduct
collective bargaining on their behalf.

In this case a secret ballot will be held unless either the union or the
union and employer request that no ballot be held, in which case the
application proceeds no further.

If the employer obstructs the conduct of the ballot the CAC may declare that
the union is recognised to conduct collective bargaining on behalf of the
bargaining unit.

The union will win the ballot if it is supported by a majority of the
workers who voted and at least 40 per cent of the workers constituting the
bargaining unit. Consequently, if the bargaining unit comprises 100 workers, 40
must vote in favour of recognition with fewer than 40 voting against.

Having received evidence that a majority of workers in the bargaining unit
are members of the union (or have voted in favour of recognition in a ballot),
the employer and the union will have 30 days (or longer by agreement) in which
to agree a method for conducting collective bargaining. If no agreement is
reached they can refer the question to the CAC, which will allow a further
20-day period of negotiations with its help to secure agreement. If agreement
proves impossible the CAC will impose a method for conducting collective
bargaining.

As soon as a union has applied to the CAC for recognition any subsequent
‘voluntary’ recognition agreement negotiated with the employer cannot be
terminated by the employer for at least three years.

Recognition agreements imposed by the CAC, which may also contain a legally enforceable
method of collective bargaining, cannot likewise be abandoned at will.

This is an extract from the Industrial Relations and Collective Rights
chapter of the XpertHR employment law reference manual (chapter author Marc
Meryon, Kennedys).

Action point checklist

– Listen carefully to what your
employees want

– Address their concerns in a positive way to avoid frustrating
their desire to be informed and consulted

– Do not victimise any employee seeking union recognition

– Ensure that your business is structured in a way which
produces compatible bargaining units

– Consider doing deals with friendly unions to forestall
compulsory recognition of hostile unions

– Consider holding a ballot to ascertain employees’ views

– Remember that if you fail to do a deal voluntarily and union
recognition is imposed, it cannot be abandoned at will

– Beware the possibility of industrial action even if you avoid
compulsory recognition

Questions and answers

What is the significance of an
employer recognising a trade union?

If an employer recognises the union, the union gains important
rights, including the right for its members and officials to take time off
work; to information from the employer to enable the union to conduct
collective bargaining; to be consulted on proposed redundancies; and to be
informed and consulted in connection with the transfer of an undertaking.

What happens if an independent union makes a formal written
request for recognition?

If the employer agrees within 10 days that the union will be
recognised to conduct collective bargaining on behalf of the bargaining unit,
then no further action is required provided a method of collective bargaining
is also agreed.

If the employer does not accept the request but is willing to
negotiate, the parties have a further period in which to agree. Either party
may ask Acas to help conduct negotiations. If no agreement is reached, the
union may apply to the CAC for compulsory recognition.

At what point would the CAC become involved in the trade
union recognition process?

It becomes involved if the employer fails to respond to the
original request for recognition or refuses the request without indicating a
willingness to negotiate, or if negotiations fail. The CAC’s intervention can
be postponed if the employer first proposes that Acas be involved in the
negotiations. The CAC will intervene only if the union’s application is valid
and admissible.

Can an employer derecognise an independent union?

If the employer voluntarily recognises a union, it can
derecognise it at any time. A compulsory recognition agreement set up following
application to the CAC cannot, however, be terminated by the employer for at
least three years. In the event that circumstances change during the three-year
period, the employer can apply to the CAC to end the collective bargaining
arrangements.

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