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Trade Union Recognition in the UK: an Overview of How the Law Is Operating in 2009

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Trade Union Recognition in the UK: an Overview of How the Law Is Operating in 2009 Trade union recog nition in the UK: an overview of how the law is operating in 2009 1 Trade union recognition in the UK: an overview of how the law is operating in 2009 1. Introduction 1.1. The law on trade union recognition is very complex, running to some 201 paragraphs with considerable cross-referencing and is still developing as cases are considered and decided. This briefing is intended to put the reader in the picture as we see it in the Autumn of 2009. 1.2. The principle underlying the law is simple enough: “…where a majority of the relevant workforce [want] the union to represent them, the union should be recognised.1” The main consequence of statutory recognition is that the employer is then obliged to undertake collective bargaining with union representatives on pay and other matters. 1.3. The Employment Relations Act 1999 added a schedule to the Trade Union and Labour Relations (Consolidation) Act 1992 — Schedule A1 — which contains the statutory recognition rules. Further changes were made by the Employment Relations Act 2004, following a review of the legislation between February and May 2003. 1.4. In England, Wales and Scotland claims are dealt with by a body known as the Central Arbitration Committee (CAC). Cases brought by trade unions in Northern Ireland are dealt with by the Industrial Court. The CAC and Industrial Court have to make a number of decisions under the statutory procedure (outlined below). Previous decisions reached by the CAC are available on its web site at www.cac.gov.uk. In Northern Ireland, the corresponding web site is www.industrialcourt.gov.uk. 1.5. The CAC is a statutory body whose members are appointed by the Secretary of State. Its Chairman is Sir Michael Burton and in hearing cases it operates as a panel of three comprising a Deputy Chairman, a person with experience of representing workers and a person with experience of representing employers. Its general duty in exercising its power in relation to the trade union recognition regime is to encourage and promote fair and efficient practices and arrangements in the workplace. 1.6. Up to 31 March 2009 (the date of the last Annual Report), a total of 672 applications for recognition have been registered with the CAC. Of these, 200 have gained statutory recognition, 158 were unsuccessful and 295 were withdrawn, although some have been resubmitted. In 5 cases the process ended because the company went into liquidation. The remainder were still in process as at 31st March 2009. In 1 Labour Party manifesto, 1997 2 2007/8, the CAC made a special study of what happens after applications are withdrawn. It found that, of the 23 cases withdrawn in the previous year, in 8 (one in three of the total) the reason was that the employer and union had reached a voluntary agreement for recognition. 1.7. In the 12 months to March 2009 there were 42 new applications made to the CAC down from 64 in both the previous two years. 1.8. A review of the cases shows that this is not just an issue for big organisations. Unions trying to counter falling membership are quite prepared to pursue recognition claims in smaller undertakings: the majority of cases (57% last year) involved organisations with less than 200 employees with the average size of a bargaining unit being 137 workers. In recent cases we have handled, the union was looking for recognition for a group of 27 workers in one case, and just 19 in another. 1.9. A total of just 25 cases were actually subject to a CAC ruling on whether or not recognition should be awarded during the year. In 16 cases the union was successful; in 9 the panel ruled in favour of the employer. The unions’ success rate of 53% (10 cases out of 19) when a ballot was called is also down on the historic average of 63%. This is significantly down on the previous year. 1.10. Each new application is allocated by the CAC to a Case Officer (a civil servant who is a member of the CAC’s staff) and that individual liaises with the parties on a day to day basis as the case is processed. The majority of CAC cases take 20-24 weeks to be completed, with the average up last year from 20 weeks to 22 weeks. Complex cases, those proceeding to one or more hearings, are likely to take in excess of 24 weeks. 1.11. A trade union pursuing a case before the CAC is seeking a legally binding ruling that would require the employer to recognise the union · in respect of a defined group of employees (the appropriate “bargaining unit”) · for the purposes of collective bargaining · in relation to pay, hours and holidays. 1.12. Pay, hours and holidays are not defined in the legislation. However, following an amendment by the 2004 legislation, “pay” currently does not include an employee’s entitlement to an occupational pension or employers’ contributions to such schemes. This may change at some point in the future, as the Department for Business Enterprise & Regulatory Reform (BERR) has inherited from the former Department of Trade & Industry (DTI) the right to amend the law in this area. It has reviewed whether to extend to unions the right to negotiate in respect of pensions but such a change appears unlikely in advance of a likely General Election in Spring 2010. 3 1.13. It should be noted that a union securing recognition will also enjoy considerable statutory consultation rights on such issues as: collective redundancies; business transfers; health and safety matters; and certain changes to workers’ pension entitlements. Its local representatives also gain rights to time off at work, paid by the employer when undertaking union duties, unpaid when simply pursuing union activities. A consultation on the revised ACAS Code of Practice on time off closed on 16 March 2009 and the finalised Code has now been published. 4 2. The process 2.1. The Employment Relations Act 1999, as amended by the Employment Relations Act 2004, has created a legal process2 that empowers trade unions to make formal requests for recognition in respect of a bargaining unit to the employer concerned. 2.2. Unless the employer agrees on recognition at this point, the union may then make an application to the CAC for recognition. The CAC can be called upon to make a number of key decisions, the most important of which are as follows: · whether or not the application is admissible · what the appropriate bargaining unit should be · whether or not to hold a secret ballot · whether the duties imposed on the parties are being observed · how the ballot should be conducted · the access that the trade union should have · the method of collective bargaining. 2.3. As a result of the 2004 Act, the CAC is also required to determine the appropriate penalty where either an employer or trade union is culpable of committing an unfair practice in the period leading up to a recognition ballot. This necessitated DTI (now BERR) issuing a revised Code of Practice on ‘Access and Unfair Practices during Recognition and De-Recognition Ballots’. 2.4. As expected, most of the complaints of unfair practice so far have come from unions complaining about employer behaviour. By acting quickly in response to complaints the CAC has so far been able to reach a decision on their validity in each case without having to upset arrangements for balloting. To date, in no case has the CAC upheld the complaint. 2.5. In terms of defending a recognition claim, the devil is in the detail. Those advising employers need not only to be familiar with practice and procedure before the CAC, but also to have a detailed understanding of these provisions and be prepared to exploit legal arguments and practical approaches on behalf of the employer/client. This will allow them to gain as much control of the overall timescale as is possible. 2.6. The procedure is summarised in Appendix 1. However, employers who do not wish to concede union recognition should watch out for evidence of petitions being circulated by union officials or activists among the workforce, and be ready to ensure at that point that employees understand the implications of recognition. Such petitions increasingly form a major plank in union arguments to the CAC for accepting their application. 2 set out in Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 5 3. Formal trade union requests for recognition 3.1. The statutory procedure commences with the trade union making a formal request for recognition in respect of a bargaining unit to the employer. The request must be in writing, specifying the bargaining unit and referring to the legislation under which the request is made. An application to the CAC will not be considered when no formal request for recognition has been made. 3.2. The employer receiving the request has 10 working days, i.e. two working weeks, to choose to respond to the request failing which the union will have the right to formally apply for recognition to the CAC. During this period there are a number of possibilities: · the employer can agree that the trade union be recognised either on a purely voluntary basis or by way of an agreement for recognition; · the employer can reject the proposal but agree to negotiate, in which case a second negotiating period of 20 working days is triggered; or · the employer may reject the application outright or fail to respond, in which case the union can lodge an application with the CAC.
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