As trade union recognition beds down, employers are realising that they do not have to recognise a union they don’t want. Dominique Hammond reports.
Last week was a good week for Graeme Rothwell, HR director of Premier Prison Services. The Prison Officers Association, which had become the first union to apply to the Central Arbitration Committee for recognition, withdrew its application in relation to Premier’s private prison in Doncaster, conceding that Rothwell has the right not to recognise it.
But it was not such a good week for Mark Healy, national chairman of the POA, who is feeling pretty aggrieved. Despite 86 per cent of prison officers at Doncaster belonging to his union, he is having to live with Rothwell’s decision not to recognise the POA and to honour instead what he regards as the virtually invisible Prison Services Union.
Healy is having a hard time getting over the injustice. He says Premier has gone against the spirit of statutory union recognition, brought in last month under the Employment Relations Act. “The whole thrust was to allow people to be represented by the union of their choice. The situation at Doncaster can’t be right.”
Minority gains
The POA is not the only union waking up to the fact that representing the majority of employees in a group does not necessarily guarantee a recognition deal.
At Eurotunnel, the Transport and General Workers Union has been recognised despite Aslef having a stronghold among drivers. Rosti Plastics has signed up with moderate engineering union the AEEU, even though the T&G has more members.
Even the PSU knows how it feels to be beaten to the prize by a competitor with less support. Despite 82 per cent of employees at Group Four’s courts and escorts services in the Liverpool area belonging to the PSU, the company has signed a deal with “Britain’s general union” the GMB.
So why is it that these unions are not getting the recognition they feel they deserve and what does it mean for employers and for employment relations?
Rothwell has been against union recognition from the start. In his eyes he has been forced to make the best of a bad situation. He expected the POA to apply for recognition and there were talks between the union, the company and Acas. However, Rothwell realised that one thing the law did grant him was a choice.
While discussions were progressing with the POA, they were also being held with the milder, non-TUC, PSU. By the time the POA applied for recognition on 9 June, three days after the law was introduced, it had already lost the race.
Rothwell had agreed to recognise the PSU the day the law came in on 6 June. Under the law no other union can apply for recognition, once an independent union has been recognised.
Rothwell is unapologetic about not wanting to work with the POA. It is simply too idealistically opposed to the company to offer it a partnership, he says.
“The POA has been quite clear that it fundamentally opposes private sector prisons and we would find it difficult to work with an organisation that would rather we didn’t exist.”
Partnership promotion
Owen Warnock, employment law partner at Eversheds, says it is inevitable that unions perceived as militant or threatening by employers will be marginalised by the law.
“I expect this is a deliberate consequence of the way the law was drafted,” he says. “Everything about this law seeks to promote partnership between employer and union. The CAC tries to force parties to reach an agreement before making recognition compulsory.”
“With most sectors having at least two unions these days, the employer is going to have some degree of choice. Unions are going to have to think not only about providing something of value to members but about making themselves acceptable to the employer as well. You could argue it will always be the softer union that gets the recognition deal.”
Action warning
However, he adds that any attempt by employers to recognise a token union for their own convenience is likely to backfire. “If you choose a union that staff really do not want to be represented by, you are not going to have effective employment relations in the long run. The union has to be credible with staff. It is perfectly possible for staff to take industrial action to force an employer to recognise the union they want.”
In the case of Premier, Rothwell is adamant that the deal with PSU is supported by staff. Although 302 of the 350 prison officers at Doncaster belong to the POA, the agreement is company-wide covering all 2,700 staff in its four prisons and the prisoner escort services. The PSU has around 800 members, mostly in the escort services, giving it a majority overall.
“Our response to the POA saying that they should be recognised is that we do not want to enter into a multi-union agreement,” says Rothwell.
“We feel that the PSU which also has a strong representation at Doncaster, and even stronger overall, is best placed to deal with us in partnership, in the spirit of the Fairness at Work White Paper.
Union representation
“The POA only wanted to represent the frontline staff who have day-to-day contact with prisoners. We feel that everyone should be represented. But this doesn’t prevent our employees being members of the union of their choice. When the right to be accompanied in grievance procedures is introduced in September, POA members can be accompanied by someone from the POA, so we will still be dealing with the POA.”
It is precisely for this reason – the fact that Premier will still have to deal with the POA – that the TUC believes the company has made a mistake in refusing to recognise it.
“It is wrong and quite dangerous to shut them out like this,” says Sarah Veale, TUC employment rights policy officer.
“The solution would have been to recognise both unions. There is no problem with having a multi-union agreement.
“If a company signs a single union agreement and 45 per cent of staff are in a different union, they will immediately be disgruntled and they won’t trust the union representing them. The employer is still going to end up dealing with more than one union, so why not do a partnership with them?
“If a union is popular with the workforce, they ought to respect that. Showing that they don’t is not a good starting point for employment relations.”
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