• Recognition which is imposed upon an employer where a union can demonstrate a certain level of support and which brings with it enhanced rights for the union.
When did it come into force?
• The provisions came into force on
6 June 2000.
How does it work?
Step 1 Formal written request
The union submits a formal written request for recognition to the employer, specifying the desired bargaining unit. The employer has 10 days to respond to a formal written request.
The employer may simply agree to recognise – at which point the process ends. If not, proceed to Step 2.
Step 2 Negotiations
Given the employer is willing, the union must agree to negotiate for at least 20 days. Also, if the employer indicates it is willing to involve Acas, then the union must allow Acas to become involved. If the employer will not negotiate, go to Step 3.
Step 3 Application to CAC
If agreement still cannot be reached, the union may then apply to the CAC which will consider whether the union passes a number of initial hurdles:
• Does the employer have less than 21 employees?
• Does the employer already recognise another union in respect of the same group of workers, even if voluntarily?
• Has the union applied for mandatory recognition and been rejected within the past three years?
If the answer to any of the above is “Yes” then the CAC must reject the application.
If the answer to all is “No”, proceed to step 4.
Step 4 Bargaining unit
If the parties cannot agree on the bargaining unit, after first seeking to broker an agreement, the CAC will determine what it should be taking into account from the following factors:
• The compatibility of the unit with the need for effective management.
• The views of the employer and the union.
• Any existing national or local bargaining arrangements.
• The desirability in general of avoiding small, fragmented bargaining units within an undertaking.
• The characteristics of the employees in the unit proposed by the union and any other employees thought to be relevant.
• The location of the employees.
Step 5 Automatic recognition
If at least 50 per cent of the employees in the bargaining unit are members of the union then the CAC will declare the union recognised without the need for a ballot, unless either:
• The CAC believes a ballot is in the interest of good industrial relations; or
• A significant number of union members inform the CAC or membership evidence (eg evidence of a snap recruitment campaign) leaves the CAC to conclude that it does not want collective bargaining, in which case the CAC will call a secret ballot as in step 6 below. (These powers of the CAC have been criticised by the TUC).
Step 6 Secret Ballot
The CAC will first consider the following:
• Are at least 10 per cent of employees in the bargaining unit members of the union?
• Is there prima facie evidence that a majority of employees in the bargaining unit (whether or not members of the union) are likely to favour recognition?
If the answer to either of the above is “No” then the CAC will not proceed with the application any further (this “knockout” stage has also been heavily criticised by the TUC).
Provided the answer to both is “Yes”, the CAC will then call a secret ballot.
Points to note:
• The secret ballot will be conducted by an independent body.
• The union must be given “reasonable access” to the employees to be balloted. As this area is likely to be a major cause of dispute, a code of practice on access to workers during recognition and derecognition ballots has been published.
• Ballots may be conducted at the workplace if the CAC believes there to be no risk of improper interference.
• Costs of ballot are shared between employer and union.
Step 7 Declaration
If recognition is supported by a majority of those voting, which number must also amount to 40 per cent of the employees in the bargaining unit, then the CAC will declare union recognised.
For example, If there are 100 employees in the bargaining unit and 60 of those vote, of which 35 vote in favour, the union will not be recognised. Whereas if 80 vote, of which 45 vote in favour, the union will be recognised. This is because a majority are in favour, and that number also amounts to at least 40 per cent of those in the bargaining unit.
Step 8 Procedure agreement
Following a declaration (or the employer’s agreement to recognise once the process has begun), the CAC will impose a legally enforceable procedure agreement (unless the parties reach agreement between themselves or they jointly request the CAC not to do so). As a minimum, the procedure agreement must specify the method of collective bargaining on pay hours and holidays.
Can an employer derecognise a union which has won mandatory recognition?
Yes. After three years the employer may make a request for derecognition using a very similar reverse procedure. This will only succeed if the employer can show that the union has lost the necessary support.
Consequences of recognition (whether voluntary or mandatory)
• Right to disclosure of information for the purposes of collective bargaining, health and safety and occupational pension schemes.
• Right to paid time off for officials.
• Right to unpaid time off for members
• Right to be consulted about collective redundancies, transfers of undertakings, health and safety and occupational pension schemes.
Additional benefits of mandatory recognition
• Right to collectively bargain about pay, hours and holidays as a minimum.
• Right not to be derecognised for at least three years and then only if employer can show that union has lost key support.
(NB A union’s right to immunity against being sued for encouraging industrial action and employees’ rights not be dismissed/victimised on union grounds DO NOT depend on a union being recognised).
Compiled by Jane Ellis, employment partner at law firm Wragge & Co
