The new statutory procedure on trade union recognition came into force on 6 June 2000, providing a mechanism whereby trade union recognition can be forced on unwilling employers. This can happen either where most workers in the relevant bargaining unit as defined already belong to the union, or where the union wins a majority in a secret ballot for recognition – provided that the majority constitutes at least 40 per cent of those entitled to vote. However, far from producing headlines, the new legislation has so far operated very quietly. This might be because of the negotiation processes under way with some employers – or possibly because there is not the interest there once was in trade union involvement in collective bargaining.
An overview of the procedure
The union must start off the process by seeking recognition in writing, identifying the union and the bargaining unit. Certain eligibility rules apply, most importantly that all employers with fewer than 21 workers are exempt from the legislation. The employer has 10 working days to respond, beginning the day after receiving the request. It can either refuse or fail to respond to the application, in which case the union can apply to the Central Arbitration Committee (CAC) immediately; agree to recognise the union; or, most likely, agree to negotiate. The parties can ask for Acas’ help in conducting their negotiations.
The CAC determines questions such as whether the proposed bargaining unit is appropriate and whether or not the union has the support of most workers in the bargaining unit. It also has jurisdiction over the validity of applications and decides when a secret ballot for recognition is appropriate.
A ballot must be supervised by a qualified independent person appointed by the CAC and must take place within 20 working days of the appointment. There are procedural matters involved in organising the ballot, again supervised by the CAC. The employer has a duty to cooperate with the ballot, and there are penalties if it does not. After the ballot the CAC must inform the employer and the union of the result as soon as is reasonably practicable.
If the vote goes in favour of the union, the parties have 30 working days (or a longer period, as agreed) to negotiate a method for conducting the bargaining. Unless otherwise agreed, the bargaining will be in respect of pay, hours and holidays.
The legislation setting out the procedure is extremely complex, consisting of more than 27,000 words in 172 paragraphs and in nine parts. For trade unions and employers being put through this process a very substantial amount of work will need to be done. It will be no surprise at all if considerable litigation arises out of these detailed, and sometimes ambiguous, provisions. Perhaps such litigation will be the first sign of how many negotiating procedures are underway.
by Russell Brimelow, Head of the employment group, Boodle Hatfield 020-7318 8135