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

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 Of these, 200 have gained statutory recognition, 158 were unsuccessful and 295 were withdrawn, although some have been resubmitted.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

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.

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.

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

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.

3.3. The second negotiating period lasts for 20 working days from the end of the first period: · if agreement is reached during the second period, the parties will enter into either an entirely voluntary arrangement or “an agreement for recognition” · if no agreement is reached, the union may apply to the CAC to decide both the appropriate bargaining unit (if not already agreed) and whether the union has majority support in the unit. If, however, the union has rejected, or failed to respond to, a request from the employer to involve ACAS within 10 working days of the employer notifying the union of its wish to enter the second period, the union cannot apply to the CAC.

3.4. In the CAC decision of URTU v Booles’ Tools and Pipe Fittings Limited (TUR1/477/2005), the trade union made a written request for voluntary recognition which was received by the employer. This letter of request did not mention Schedule A1 and did not meet the requirements of the Schedule. The union maintained that they sent a further letter of request which did comply with Schedule A1 prior to making an application to the CAC. However, the employer stated that no such request was received by them and this was pointed out to the CAC on receipt of the CAC application. Due to the fact that the union was not able to provide proof of posting their request and the letter had not been sent by special delivery or some other reliable method, the panel was not satisfied that the application was admissible . A request for recognition is not valid unless it is received by the employer.

3.5. Unions have generally learnt from this experience and tend now to use registered post, with its proof of despatch and delivery, for submitting requests.

4. Is the application to the CAC admissible?

4.1. Once an independent trade union has made an application for recognition to the CAC, the panel appointed must decide whether or not the application is valid in accordance with paragraphs 5-8 of the Schedule and admissible within paragraphs 33-42 of the Schedule. The CAC has 10 working days to decide whether or not to accept the union’s application as admissible - although this period may be extended, and frequently is to allow the CAC’s Case Manager to conduct a membership check, comparing the employer’s records of numbers employed in the union’s proposed bargaining unit and the union’s membership records, and to permit the parties to comment on the findings.

4.2. The CAC has to apply a number of tests to determine admissibility as well as validity. The key tests are:

· has the union made a legally valid request? · does the application relate to the request? · has the union a membership level of at least 10% within the claimed bargaining unit? · has the union evidence of likely majority support within the claimed bargaining unit? · is any other union already recognised for the purposes of collective bargaining on behalf of any of the workers in the proposed bargaining unit? · has there been a ballot involving the same union in respect of the same or a similar bargaining unit within the last three years?

4.3. The principal areas of dispute have focused on those paragraphs of the Schedule dealing with admissibility (34, 35 and in particular 36) rather than on validity tests.

4.4. However, in National Union of Journalists v The Local Radio Company (TUR1/541/06), the CAC rejected an application on the basis that the union had failed to lodge their request with the employer of the workers in the proposed bargaining unit. The company owned 27 local radio stations, some bought as going concerns, but the CAC accepted that each was a separate legal entity and was financially and operationally autonomous. Each entered into leases for its own premises, purchased and maintained its own equipment and recruited its own staff. The introduction of a news ‘hubbing’ operation across four of the stations was not inconsistent with each station being an employer. Nor was the fact that certain services, such as HR support, were available to individual stations if they so chose; or that managers from other stations

might become involved to provide an independent appeal stage in grievance procedures.

4.5. In early cases before the CAC, employers argued that by virtue of paragraph 34 a trade union is required to provide a copy of any petition it organises containing signatures in support of recognition to the employer, as well as a copy of its application. Paragraph 34 indicates that the employer is entitled to receive a copy of not only the application but any ‘supporting documents’.

4.6. However, the CAC has refused to accept this argument (advanced in at least three cases, AEEU v GE Caledonian Ltd (TUR1/120/01), AEEU v Control Techniques Drives Ltd (TUR1/109/01) and TGWU v Plane Handling Limited (TUR1/220/02)). The CAC’s view appears to be that the effect of paragraph 34 is qualified by the provisions of paragraph 33, stating that an application must be made in such form and be supported by such documents as the CAC specifies. Only supporting documents as specified by the CAC need to be disclosed to an employer.

4.7. Paragraph 35 states that an application is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is recognised for all or any of the workers in the proposed bargaining unit. This is designed to avoid inter-union disputes over competing claims for recognition being considered by the CAC. This paragraph has given rise to a number of difficulties that have been illustrated in CAC and High Court decisions. The paragraph precludes a trade union from having an application for recognition admitted if another trade union is already recognised by the company for at least one of the workers amongst the bargaining unit that the new union is seeking to represent.

4.8. The position was confirmed by the Court of Appeal in July 2005 in the case of NUJ v Central Arbitration Committee, MGN Ltd (Case No/1770/2004). In this case, the Court confirmed that the CAC had correctly ruled that the National Union of Journalists’ (NUJ’s) claim was not admissible. As a result, a trade union with a substantial number of members who were workers in the particular bargaining unit was precluded from entering into collective bargaining on their behalf. On our advice, a voluntary agreement was entered into between the employer and another union which, while it had a very limited membership in this particular bargaining unit, had already been recognised by the employer for bargaining units covering many similar workers in the same location. This reduced for the employer the risk of being caught in a serious inter-union dispute.

4.9. The Industrial Courts in Northern Ireland followed the approach of the Court of Appeal in a more recent case in 2008 involving Unite the Union and Flybe (Case No. IL-38/2008). In that case Unite sought a bargaining unit of all Flybe engineers including the engineering store person at George Best Belfast City Airport. Unite enjoyed reasonable membership at Belfast City Airport as well as at a number of

other Flybe bases throughout the United Kingdom. However, following discussions with the existing Staff Committee and the ALAE Trade Union and following a ballot of engineers across the country including Northern Ireland, Flybe had already granted recognition to the ALAE for all engineers employed by Flybe at their bases in the UK, including Belfast, Jersey, Guernsey and the Isle of Man. This agreement predated the application by Unite and was dated 10 December 2007. The Industrial Court accepted that there was a collective agreement in force and overruled the union’s jurisdictional argument that Belfast could not be included because it was a different jurisdiction. The Industrial Court took the view that the ALAE collective agreement was in force in Northern Ireland and there was nothing in Regulation 35 which precluded an agreement being UK wide.

4.10. Interestingly, a voluntary recognition agreement with a trade union can block out another trade union in this way even if the voluntary recognition agreement does not cover the core elements of collective bargaining as identified in statute — i.e. negotiations on pay, hours and holidays. In the case of TGWU v Asda (TUR1/368/2004) the GMB trade union was recognised only for disciplinary and grievance purposes, but this was sufficient to block out a claim by the Transport and General Workers Union (TGWU) for collective bargaining rights.

4.11. However, an employer attempting to use this tactic will be required to demonstrate that the voluntary agreement they are relying on to block out another trade union application is in fact ‘in force’. In the case of Amicus v 21st Century Logistics (TUR1/445/2005) the employer entered into a voluntary arrangement with the TGWU. They relied on this agreement to block out an application by Amicus. However, when the TGWU became aware of Amicus’s interest and their levels of union membership within the proposed bargaining unit, they withdrew from the agreement. The CAC decided that the agreement had never been in force even though at the time of making their decision there was a six-month notice provision within the agreement for termination which had not yet lapsed.

4.12. Additionally, the Paragraph 35 provisions can be problematic for an employer seeking to assert that a trade union is already recognised where the body that the employer deals with is not formally listed as a trade union. The employer may hope to frustrate a claim by a trade union by dealing with a staff forum and arguing that this is a body that qualifies as a trade union recognised by the employer for the purposes of collective bargaining. In the case of TGWU v W Jordan Cereals Limited (TUR1/258/2003) the employer had a staff association called ‘Voice’. The CAC rejected that Voice was a trade union because: · it did not have contracts of membership with employees; · employees could not join or refuse to join Voice and could not resign from it; · they could not dissolve it; and · there were no elected officers for Voice

4.13. An agreement with a Staff Association may suffice. In Unite v DSG Retail (TUR1/567/2007) the CAC panel accepted that - although it had no certificate of independence - the DSA Staff Association was a union, on the basis that it had been included in the list of Trade Unions maintained by the Certification Officer; that its Rule Book showed that its aims and objectives included the regulation of relations between employees and their employer; that it was run by an Executive Committee of members; and that employees had to take positive action to become members. There was a recognition document authorising it to conduct collective bargaining, and some evidence that there was bargaining taking place, at least on the bonus element of pay.

4.14. Finally, and perhaps most commonly, the provisions of paragraph 36 have been used by employers to argue that applications are not valid. Paragraph 36 requires a trade union to satisfy two points. · that it enjoys a membership level of 10% within the claimed bargaining unit. In practice, this provision is not proving contentious as virtually all trade unions will have at least this level of membership before applying to the CAC · that a majority of the workers from the claimed bargaining unit would be likely to favour recognition. This would typically involve a trade union relying on their membership levels alone to demonstrate that this provision is satisfied or, alternatively, on a combination of membership levels and a separate petition supporting recognition signed by other staff affected.

4.15. The CAC have generally refused to consider that ‘the majority are likely to favour’ requirement is a mathematical test; the CAC panels commonly rely on their own industrial relations experience to determine this issue either for or against the trade union. However, in practice, a claim is likely to fail where a trade union has relatively low membership levels and no supporting evidence. This was the case in NUM v Hatfield Coal Company (TUR1/55/2001), where membership levels were around 30%. The CAC determined there needed to be some tangible evidence demonstrating that the majority of employees would be likely to favour recognition when membership levels were considerably below 50%.

4.16. By contrast, where a trade union has been able to show membership in excess of 40%, the CAC has adopted the approach that this in itself is a significant indicator of the views of the majority of workers. For example, in the case of Unison v Craeg Moor Group Ltd (TUR1/249/2003) membership levels were 46.66% and the CAC were satisfied that the majority of workers in the proposed bargaining unit would be likely to favour recognition despite the fact that membership fell below 50%. Similarly, in the case of Unite the Union v National Car Parks Ltd (TUR1/644/2008) the panel concluded, on the basis of their experience - and in the absence of evidence to the contrary - that there will be workers who are not members of the Union who would be likely to favour recognition. The application was accepted though union membership was 44.44%

4.17. However, in the case of GMB v John Nixon Ltd (TUR1/406/2004) the CAC confirmed that membership levels and the petition demonstrated an overall level of support of 38.79%. They took the view that membership levels were static and that the union had no support at three of the employer’s sites. The panel concluded that the overall level of support fell below a result that could be considered as showing that a majority of the workers in the proposed bargaining unit favoured recognition.

4.18. In a 2007 decision, Unite the Union v The College of Law (TUR1/563/2007), where the union was able to demonstrate rising membership, the CAC Panel reaffirmed the traditional assumption that support for recognition will tend to be wider than union membership reveals. They stated that ‘the Panel does not equate non-membership with an automatic lack of support for recognition’, hypothesising that some may not wish to pay subscriptions to a union until it is recognised, while others may be deterred by a, possibly mistaken, belief that the employer would be concerned if it was known that they were union members.

4.19. Therefore, an employer faced with a trade union recognition claim should consider carefully the overall levels of union membership and whether there is any additional support for union recognition in the form of a petition. The CAC panel should be encouraged to apply the ‘likely majority support test’ strictly based on tangible evidence, such as relevant correspondence from members of the proposed bargaining unit, rather than their industrial relations experience. The latter, in the majority of cases, operates against the employer. The reason is that its orthodoxy holds: first, that membership in itself is indicative of support for collective bargaining; and second, that some other workers, though not in membership, are silently supportive.

4.20. Employers may submit their own contrary evidence. The CAC tends to scrutinise this very closely. Simple assertions that the employer does not believe a majority would favour recognition cut no ice. Counter-petitions, which some employers have sought to organise carry less weight than the union equivalent. This point arose in Unite the Union v Stephens and George Ltd (TUR1/634/2008), when the panel refused to deduct from the union petition all those who had also signed the employer’s. “In our experience, the Employer is in a stronger position than the Union to secure expressions of support in its favour from individual workers because of the inducements, positive and negative, it can offer, explicitly or, more likely, implicitly, to those supporting its views.”

4.21. The case of GMB v Capital Aluminium Extrusions Limited (TUR1/639/2008) gives useful guidance on when an employer’s contrary evidence can be persuasive. In this case, union membership levels in the proposed bargaining unit stood at 46.15%. However, the union failed to produce a petition to which it had referred earlier in the proceedings to demonstrate wider support: and the Case Manager found that none had been conducted. The employer, however, conducted a snap survey which showed

that 61.54% did not support recognition. The panel were persuaded to regard this as strong evidence for a number of reasons. First, the letter issued to all workers explaining the purpose of the survey, although setting out the employer’s position opposing recognition, did explain that there was no compulsion to provide a reply and that the workers were free to express their personal opinions if they did choose to respond. Workers were clearly free to decide for themselves whether or not they did take part and there was no suggestion by the union - though it had advised its members not to participate - that workers were coerced into responding, or that the responses were from people outside the bargaining unit. In addition, workers were given the chance to reply anonymously, and then place the replies in a sealed envelope before handing it to an individual who, the letter indicated, was a Union member. The envelopes were opened in the presence of that member and the MD. Given the strength of this evidence, the GMB’s application was rejected.

Acceptance of the application and the special independent person

4.22. As soon as an application is accepted by the CAC, the union may take advantage of a facility to communicate with workers who are in the proposed or agreed bargaining unit. To do so, the union must apply, in writing, to the CAC asking it to appoint a suitable independent person (SIP) to handle these communications. The union bears the costs of the SIP, who will send to any relevant worker information that is provided to it by the union and will charge the union for this service.3 The CAC will appoint the SIP as soon as possible after the union’s request and will then notify the name, and appointment date, of the SIP to the parties. This notification will begin the ‘initial period’ throughout which the union can send information to workers through the SIP.

4.23. The initial period starts on the day the CAC notifies the parties of the name and date of appointment of the SIP. It continues until the Panel informs the union of the Qualified Independent Person appointed to conduct a ballot, or the union is awarded recognition without a ballot, or the union withdraws its application.

4.24. The CAC has no role in vetting the content of the communication and thus cannot deal with any complaints about accuracy or content.

4.25. An employer who is notified of the appointment of a SIP must comply with duties to provide information to the CAC that will enable the SIP to fulfil its role (so far as it is reasonable to expect the employer to do so): a. to give the CAC the names and home addresses of the ‘relevant workers’, within ten working days starting with the day after that on which the employer

3 A person may act as a SIP if specified in the Recognition and Derecognition Ballots (Qualified Persons) Order 2000 and (Amendment) Order 2002 and there are no grounds for believing either that he or she will carry out any functions arising from the appointment other than competently or that his or her independence in relation to those functions might reasonably be called into question.

is informed of the name and date of appointment of the SIP. ‘Relevant workers’ are either those falling within the proposed bargaining unit or, if a bargaining unit has already been agreed by the parties or decided by the CAC, those within that bargaining unit; b. if the employer has given the CAC the names of workers within the proposed bargaining unit and a different bargaining unit is then agreed by the parties or decided on by the CAC, the employer must give the CAC the names and home addresses of those who are now the ‘relevant workers’. This must be done within ten working days starting with the day after that on which the bargaining unit is agreed or the CAC’s decision is notified to the employer. c. to notify the CAC as soon as reasonably practicable of the name and home address of any worker who subsequently joins the bargaining unit after the initial list has been supplied; and of any worker who ceases to be a ‘relevant worker’ because he or she has left the bargaining unit (except where a new complete list is supplied because the definition of the bargaining unit changes). The CAC must pass all information it receives to the SIP as soon as possible. The CAC will pass on the information only to the SIP.

4.26. The CAC may order the employer to remedy any failure to observe these duties within a set timescale. If the employer fails to comply with the order the CAC, again providing the initial period has not yet ended, will issue a notice to both parties confirming that there has been a failure to comply with the remedial order; and may also issue a declaration that the union is recognised.

5. What should be the appropriate bargaining unit?

5.1. Once a claim has been determined to be admissible the CAC is then required (in the absence of agreement between the parties on the point) to establish the appropriate bargaining unit. Paragraph 19 of the Schedule requires the CAC first to decide whether the bargaining unit proposed by the union is the appropriate one. In doing so, the CAC must be satisfied that the union’s proposed bargaining unit is ‘compatible with effective management’. In addition, the CAC must take into account a number of lesser criteria:

· the views of the employer and the union; · existing national and local bargaining arrangements; · the desirability of avoiding small fragmented bargaining units within an undertaking; · the characteristics of workers falling within the proposed bargaining unit and any employees of the employer whom the CAC considers relevant; and · the location of workers.

5.2. The way in which the CAC applies the provisions of Paragraph 19 is subject to considerable scrutiny.

5.3. The landmark case here was TGWU v KwikFit (TUR1/126/2001), a case where the company attempted to overturn the CAC’s initial decision in favour of the union by way of judicial review. Although KwikFit initially succeeded with its judicial review application before the High Court, it went on to lose before the Court of Appeal which restored the decision of the CAC.

5.4. The union claimed that Kwikfit depots within the M25 circle alone constituted an appropriate bargaining unit; while the company argued it should be all their UK depots. In the Appeal Court’s view the CAC had acted entirely in accordance with its obligations under the Schedule. The CAC’s task in determining the appropriate bargaining unit is to start with any proposal before it, in other words the union’s proposed bargaining unit, and then determine whether that is appropriate. The Appeal Court said that the CAC was not excluded from considering other bargaining units, but this was a one or two stage process:

· first, testing the union’s proposed unit in the light of the company’s argument that a different unit was appropriate · second, considering an alternative bargaining unit only if the CAC considers the union’s proposal is inappropriate.

5.5. While preserving this test, the 2004 Act made it clear that, in taking the employer’s view into account for the purpose of deciding the appropriate bargaining unit, the

CAC must consider any evidence put forward by the employer that another bargaining unit would be more appropriate.

5.6. The practical effect is still that the union’s view of what is ‘appropriate’ will carry more weight than the employer’s view. In R (on the application of Cable & Wireless Services UK Ltd) v CAC & Communication Workers Union (CWU) (2008 EWHC 115), the High Court rejected a claim by Cable & Wireless (C&W) that the CAC had incorrectly decided the appropriate bargaining unit. The CWU had applied for recognition for a bargaining unit consisting of all field service engineers employed in the UK, excluding managers. C&W had sought to resist this unit on the grounds that it was fragmented. The CAC determined that fragmentation was not measured numerically but in terms of whether a bargaining unit would divide the workforce into numerous groups prone to compete with each other and that on the facts, union recognition would not inhibit inter-departmental team working. On that basis, it decided that that field workers were a suitable bargaining unit for the purposes of statutory recognition. This case led to the only application for judicial review of a CAC decision in the last 2 years. In the High Court, C&W argued that the CAC's decision on fragmentation was wrong. In addition, it argued that the use of the word 'units' in Schedule A1 implied that the test should be numerical and that the existence of a number of such units should be avoided. Following the approach in the Kwik-Fit case, the High Court held that the CAC was an expert body and the Court would only intervene with its decision if it could be shown to have acted irrationally or made an error of law. It decided that the CAC had been correct to conclude that the proposed unit would not fracture C&W's workforce. In rejecting the 'units' argument, the Court stated that the real issue was whether proliferation was likely to result from the recognition of one such unit and the CAC had concluded that this was unlikely, or at least unpredictable.

5.7. As unions will look to make the most of pockets of relatively high membership, they can be expected to argue for smaller bargaining units centred around where the members are concentrated. The CAC reports that the average size of a bargaining unit in applications fell from 147 in 2005/06 to 103 in 2006/07, although it rose again to 119 in 2007/08.

5.8. A well-organised employer can still succeed when arguing for an alternative bargaining unit, as was the case in TGWU v Calor Gas Ltd (TUR1/198/2002). In this case the applicant union wanted only drivers in the bargaining unit. The company successfully argued that the unit should comprise ancillaries and support staff as well as drivers, given the way in which the company’s product was delivered to its customers.

5.9. In a later, complex, case (CWU v MCI (TUR1/482/2005)) the employer succeeded in persuading the CAC that the union’s bargaining unit was not appropriate. In this case the union sought a bargaining unit consisting of workers within the description ‘UK

operations’ who were ‘solely responsible for work related to all network and customer operations activities in the UK’. The union was seeking to represent primarily field- based engineers with some administrative employees. The company stated that an appropriate bargaining unit would be the whole of the Operations and Technology function and those workers who directly or indirectly report to the Vice President of Operations and Technology. The company’s proposed bargaining unit was considerably larger than the union’s proposed bargaining unit. The company was able to demonstrate that the union’s proposed bargaining unit was not appropriate. This was achieved (to a large extent) by the use of workflow diagrams and organisation charts as well as detailed focus on the roles carried out by employees within the union’s proposed bargaining unit compared with further employees within the UK Operations and Technology business outside of the proposed bargaining unit. In some instances workers had the same job title both within and outside the union’s proposed unit. From the company’s perspective this decision proved critical as, following the favourable outcome for the company, the Communication Workers Union (CWU) subsequently withdrew their claim.

5.10. A combination of arguments was successful in a recent case, Unite the Union v The College of Law (TUR1/563/07). Here the union’s proposed bargaining unit was one branch of the college, the smallest, in which it was judged to have 59% membership. It sought to rely on the KwikFit judgment. The CAC panel confirmed that, as now incorporated into the Schedule in revised paragraph 19,

‘the CAC must take into account any view the employer may have about any other bargaining unit the employer considers appropriate. If the CAC decides that a bargaining unit proposed by a union is not an appropriate unit, it must further decide, under paragraph 19(3), a bargaining unit which is appropriate. It is only if the bargaining unit proposed by a union is found not to be appropriate that the CAC considers the employer’s or any other alternative unit in its own right.’

5.11. The panel took into account a range of evidence from the college, including that the management and organisation was highly centralised as a result of systematic policy, which could be undermined by a separate bargaining unit based on a single location. The panel concluded that the union’s proposed bargaining unit was not compatible with effective management and was therefore not appropriate. It noted that the only difference between the union and management was on the geographical point — either a single branch or college wide. It went on to conclude that the college’s proposed unit was compatible with effective management, and was the appropriate one.

5.12. Similarly, in another recent case, Unite the Union v Kettle Foods (TUR1/557/07), the employer’s meticulously detailed submission demonstrated how their ‘one company’ approach was embedded in practice, a fact which the union did not contest. This

convinced the CAC that a bargaining unit comprising production operatives alone would be incompatible with effective management. The CAC then turned to consider the employer’s proposal of a wider unit, which excepted only the executive team and the most senior managers. This withstood comparable scrutiny and was concluded to be appropriate. Interestingly, citing another recent case, BECTU v The Royal Shakespeare Company Ltd (TUR1/540/06), the panel concluded that there did not appear to be a general principle of industrial relations that the immediate managers of a group of workers should not be in the same bargaining unit, stating ‘it will depend on the facts of a particular case’.

5.13. However, the CAC will look for solid evidence to back up employers’ claims about the way in which they manage the business. In Unite the Union v Sports Direct International (TUR1/619/2008) the company claimed that the union’s proposed unit drew an artificial distinction, while the company ethos was one of inclusivity and the unit needed to be a site-wide one, reflecting the integrated nature of the site, terms and conditions of staff, the management structure and working practices. The panel accepted that the Company had worked hard to develop and deliver an integrated operational facility at its Shirebrook site in Mansfield; but they found no evidence that it currently required functional flexibility from staff; that the statements about common core terms and conditions were not substantiated by detailed information on pay, hours, holidays, etc. While a single site ethos was clearly an aim there was no supporting evidence of its existence, no evidence of how it was communicated to employees or reinforced through practice and procedures.

5.14. By contrast, the employer was successful in Unite the Union v Harry Lawson Limited (TUR1/620/2008) in having the union’s proposed bargaining unit of “drivers at the Baluniefield Depot” extended to cover also workshop employees, based on firm evidence that the pay, shifts and hours for the workshop employees had for 30 years been negotiated with a Works Committee also representing drivers. The employer also showed convincingly that all its workshop employees were expected to obtain HGV licences and were then used to supplement regular drivers. The CAC accepted that they were “an integral part of the Employer’s operational set-up”, paid drivers’ terms when driving. Not including them in the bargaining unit would leave them as a small fragmented group for whom separate negotiating arrangements would have been required.

5.15. The main challenge for any employer arguing for an alternative (usually larger) bargaining unit is to be well-organised. An employer should look closely at the terms and conditions and benefits provided to staff in the union’s proposed bargaining unit as well as to other employees whom the company may be seeking to argue should be included within an alternative bargaining unit. The company should consider the characteristics of the workers and whether it can genuinely be said that workers outside the union’s proposed bargaining unit are doing the same or similar work as employees within the proposed bargaining unit. The company should consider use of

organisation charts and the structure and operational nature of the business generally. The employer must concentrate on proving the incompatibility of the union’s proposal with effective management and offer an alternative that is better able to withstand the CAC’s analysis.

If the bargaining unit as determined by the CAC is different from that originally claimed by the applicant union, is the claim still admissible?

5.16. In circumstances where the CAC rules against the applicant union on the issue of the bargaining unit, it is required to move a step back and determine again whether or not the application is valid within the terms of paragraphs 43–50 of the Schedule (which mirror the provisions of paragraphs 33–42 used in making the original assessment). Therefore, it follows that the arguments summarised above in relation to admissibility are also potentially available to an employer at this stage of the process. It is primarily for this reason that the CWU withdrew their claim against MCI, because they appreciated that with the expansion of the bargaining unit it would not be possible to persuade the CAC that the majority of the employees within the new bargaining unit would be likely to favour recognition. This was also the case in the decision of ISTC v Yamada (Europe) Ltd (TUR1/372/2004). In this matter the Iron and Steels Confederation (ISTC, now known as the “Community” union) and Yamada agreed an alternative bargaining unit without the CAC having to determine the issue. However, in view of the additional number of employees in the revised bargaining unit and an employee petition confirming that employees were opposed to recognition, the ISTC were unsuccessful in persuading the CAC that the claim remained admissible at this stage of the process. This case again demonstrates the importance to employers of thinking strategically about each stage of the process; about what the ultimate objective of the business is; and about how best to achieve this over the entirety of the statutory process.

6. Should a secret ballot be held?

6.1. Once an application for recognition has been accepted and the bargaining unit determined, and providing the CAC is satisfied that the claim remains admissible, the panel then has to decide whether it must call a ballot. To win a ballot, the union has to meet two requirements: · secure a majority of the votes cast; and · win the support of not less than 40% of all those entitled to vote. The second requirement may be a considerable challenge, but it is helpful in ensuring established arrangements that work well enough are not easily dislodged by a minority pressing for union bargaining.

6.2. Assessing whether or not a ballot is needed will usually involve the CAC carrying out a further membership check at the relevant time, to determine the percentage of employees in the bargaining unit who are union members. Where union membership levels are below 50% the panel is obliged to order that a secret ballot be conducted. However, when membership levels exceed 50% the CAC must issue a declaration that the union is entitled to be recognised to conduct collective bargaining without a ballot — unless at least one of three qualifying conditions apply. It will be for the employer to build and present a persuasive case to the panel that it should conclude one or more of the following applies: · that the CAC is satisfied a ballot should be held in the interests of good industrial relations (paragraph 22(4)(a) · that the CAC has evidence, which it considers credible, from a significant number of union members in the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf (paragraph 22(4)(b) · that membership evidence regarding the circumstances in which workers joined the union or their length of membership casts doubt on whether a significant number of the union members in the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf (paragraph 22(4)(c).

6.3. In practice, it is the first exception, that a ballot is required in the interests of good industrial relations, which has been argued by employers most often when faced with the prospect of automatic recognition. In the case of ISTC v Mission Foods (TUR1/256/2003) the CAC decided to hold a ballot even though a majority of the workers in the bargaining unit were union members. It considered this would be in the interest of good industrial relations. In this case there were conflicting petitions from employees — one claiming support for recognition, and another asking for the right to vote in secret on the issue of recognition. This, together with the fact that the company said it would cooperate with the union if the ballot supported recognition, prompted the CAC to hold a ballot. In this case, the union narrowly lost the vote and were unsuccessful in achieving recognition.

6.4. In Unite the Union (formerly known as Amicus) v Harrods Limited (TUR1/559/2007), the employer succeeded in arguing that the second exception applied. This case concerned a small bargaining unit of 19 engineers. A membership check carried out for the purposes of determining whether the union’s application should be accepted showed a membership level in the bargaining unit of 70%. Nonetheless, the panel was persuaded that a ballot should be held, following the submission to the CAC by the employer of letters and e-mails received from 12 employees in the bargaining unit (10 of them union members) indicating they did not wish the Union to conduct collective bargaining on their behalf and/or that they did not support the application. The panel was not convinced to disregard these submissions by unsubstantiated allegations from the union that the employer had applied undue pressure on staff to write them and that the correspondence did not reflect the workers’ views.

6.5. A 2008 case, Unite the Union v GSI Group Ltd, followed a similar pattern. Of the 26 workers in the bargaining unit, 18 (i.e. 69%) were union members. The employer’s first evidence, that a ‘poll’ of workers showed 23 not in favour of collective bargaining, was discounted by the CAC. It was a non-confidential petition organised by the employer and did not by itself constitute credible evidence of the union members’ views. “It might be objected that Panels often take into account union petitions at the acceptance stage, but it seems to us that unions are rarely in the same position to influence workers’ decisions through explicit or implicit inducements or threats, if views are expressed or not expressed in a particular way. If a union were in such a position in relation to a group of workers, it would be wise to treat non-confidential expressions of opinion obtained by that union with similar scepticism.”

6.6. However, the panel took a different view of 20 letters delivered in sealed envelopes by the Company to the CAC. The letters were first anonymised and then provided to the Union and the panel. Of the 20, 19 either opposed the claim or sought a ballot on the issue. Although the employer had held a meeting of the workers and encouraged them to submit views to the CAC, and facilitated the process by arranging for their collection and forwarding to the CAC, the expression of views seemed to have been kept confidential from the company. The panel was struck by the lack of uniformity in the letters, and the envelopes. There was no evidence that they had been produced under inducement or threat. The panel agreed to order a ballot and the employees subsequently voted against recognition.

6.7. In addition to the GSI case, over 19 other cases have been reported where union membership levels were in excess of 50% but, notwithstanding that fact, a ballot was still ordered. The majority of cases involved union membership levels of between 50% and 60% — in reality, it is extremely difficult to persuade the CAC to grant a ballot in such circumstances. The historical average is that in 76% of cases where a union has demonstrated majority membership, recognition has been granted without a ballot.

6.8. In a very recent decision in June 2009, a ballot was ordered in the case of Unite the Union and Gillette UK Ltd (Case No. TUR1/667/2009). This case was interesting for a number of reasons. In this case the established membership level was 52.55%. Out of claimed trade union members of 72, 14 emails and letters were received from workers in the agreed bargaining unit using different terminology but generally expressing the view that they were not in favour of collective bargaining. A total of 6 of the 14 emails and letters were from union members in the bargaining unit. There is also considerable discussion in this case regarding concerns about whether somebody can truly be counted as a union member when they are in arrears with union membership fees. The CAC took the view that even excluding these 3 individuals from the bargaining unit the membership would stand at 69 members, equating to 50.36% and so still, marginally over the 50% threshold. They were not prepared to entertain unconfirmed and unspecific evidence that additional employees had cancelled their union membership as it was not verified or supported by a CAC report.

6.9. The CAC accepted that the evidence from union members amounting to 6 people who confirmed that they were not supportive of collective bargaining was credible evidence of their views. They found no clear evidence of undue pressure being applied by the employer to extract such views from employees. However, the panel did not accept 6 individuals amounted to a significant number within the bargaining unit.

6.10. Ultimately though the CAC ordered a ballot on the basis of good industrial relations. Although 72 workers in the agreed bargaining unit comprising 137 workers were members of the union amounting to 51.09%, because between 4 and 6 of the 72 were opposed to union recognition (as evidenced by their emails), it follows that a maximum of between 64 to 66 union members might be said to favour union recognition which comprised of less than 50% of the bargaining unit. On the basis of good industrial relations they felt that recognition ought to be legitimised by a majority verdict in a ballot of workers. Ultimately, recognition was granted in this case following a significant majority voting in favour of collective bargaining and the ballot was held in July 2009.

6.11. A decision of interest in 2006 involved senior lecturers at Nottingham Trent University, NATFHE v Nottingham Trent University (TUR1/483/2005). In this case union membership amongst the determined bargaining unit was 92.43%. Notwithstanding this fact the CAC ordered a ballot. This was because a number of employees had written to the CAC asking for the right to vote on this issue. The lecturers had previously been advised that they would be entitled to take part in a voluntary ballot on the issue of union recognition. However, the union, the National Association of Teachers in Further and Higher Education (NATFHE) withdrew without explanation from the commitment to hold that ballot and decided instead to lodge a formal application to the CAC, presumably in the hope of achieving automatic

recognition. Primarily for these reasons the CAC ordered a ballot and whilst the majority of employees who actually voted, expressed support for union recognition, the union was unable to secure the votes of more than 40% of people within the bargaining unit and thus lost the ballot.

6.12. This is a good example of why employers should consider the case they can make for holding a ballot, and of what can be achieved in a postal ballot situation where many employees often do not bother to vote. In this case, a ballot was called, only 38% of people in the bargaining unit actively voted in favour of recognition, despite the union’s high membership, and the union lost.

7. What duties must the parties observe once a ballot has been ordered?

7.1. Where an employer is informed by the CAC that a ballot will take place, the employer is placed under five duties as follows: · to co-operate generally in connection with the ballot with the union and with the Qualified Independent Person (QIP) conducting the ballot · to give the union reasonable access to the workers within the bargaining unit (see below) · to give to the CAC within 10 days the names and home addresses of all the workers within the bargaining unit and to notify the CAC as soon as practicable should any workers leave or join the bargaining unit · to refrain from making any offer to workers in the bargaining unit which has, or is likely to have, the effect of inducing any or all of them not to attend the union access meetings and which is not reasonable · not to take or threaten to take any action against a worker because they either planned to attend a meeting with the union or in fact attended/took part in any meeting between the union and the other workers in the bargaining unit.

7.2. The fifth is further spelt out, so that an employer will be taken to have failed to comply with this obligation if: · the employer refused a request for a meeting between the union and the workers to take place in the absence of the employer or any representative of the employer; · the employer or an employer representative attended such a meeting without invitation; · the employer seeks to record or seeks be informed of what takes place in any such meeting; or · the employer refuses to give an undertaking that it will not seek to record or find out what took place at such a meeting.

7.3. These provisions were introduced as a result of intensive trade union lobbying to prevent an employer from obstructing union access meetings.

7.4. A Code of Practice issued by the DTI (now BERR) on ‘Access and Unfair Practices during Recognition and De-Recognition Ballots’ covers these provisions and can be accessed at http://www.berr.gov.uk/files/file14418.pdf

7.5. This Code of Practice elaborates on ‘unfair practices’. Modelled on the US concept of ‘unfair labor practices’, they apply to both an employer and a trade union once a ballot has been ordered. Seven unfair practices are specified in the legislation. These significantly limit the way in which a trade union — and particularly an employer — can campaign during a recognition ballot. They are:

· offering to pay money or give monies worth to a worker entitled to vote in the ballot in return for the worker’s agreement to vote in a particular way or to abstain from voting — effectively purchasing of votes is outlawed · making an ‘outcome specific offer’ to a worker. An outcome specific offer is defined as an offer which is conditional on the CAC issuing a declaration that the union is not entitled to be recognised · coercing a worker entitled to vote in the ballot to find out whether the worker intends to vote/abstain or how the individual intends to vote · dismissing or threatening to dismiss a worker · taking or threatening to take disciplinary action against a worker · subjecting or threatening to subject a worker to any other detriment · using or attempting to use undue influence on a worker who is entitled to vote.

7.6. There have now been a few cases where allegations of unfair practices have been made. In TGWU v Comet Group Limited (TUR1/501/2006) the union made five complaints involving both breach of the access agreement (see below) and unfair practices. On access the CAC decided that the lateness of the allegations, which were made after the balloting, meant it had no jurisdiction. On the other points the panel ruled in favour of the employer. In GMB v JF Stone Investments Ltd t/a The American Dry Cleaning Company (TUR1/492/06) the CAC confirmed that it is not enough to show that a party has done one of the seven prohibited acts; it must also be shown that the act was done with improper motive with a view to influencing the result of the ballot. In this case the employer dismissed one of the union's leading activists, but the allegation of unfair practices failed because that dismissal was the outcome of a disciplinary matter unconnected with the ballot and was not calculated to influence its result.

7.7. Unusually, in Prospect & PCS v National Maritime Museum (TUR1/529/06), it was the employer who made a complaint. In this case the union had asked the Qualified Independent Person (QIP) authorised to oversee the ballot to circulate campaigning materials to all workers’ home addresses. The employer contended that this was outside the access agreement terms and recommended by the Code of Practice only as a means for reaching ‘a-typical’ workers; that its being sent in close proximity to the ballot papers in a similar mailing by the QIP might prejudice the result in their favour; and that the employer should have been alerted. On this occasion the panel ruled against the employer — all the actions were permissible.

7.8. The ultimate sanction in the case of a party committing an unfair practice is either for recognition to be awarded (in the case of a serious employer breach) or for recognition to be denied (in the case of a serious union breach). It is the final unfair practice that is likely to cause the most difficulty for the CAC in due course. This will involve an allegation that either party has used or attempted to use ‘undue influence’. There is no statutory definition of what amounts to undue influence but, increasingly,

the conduct of the employer and the union will come under scrutiny in the run up to a union recognition ballot.

7.9. We have seen such challenges increasingly mounted by trade unions. Therefore, the employer’s tactics in a ballot campaign need to be considered carefully. Challenges can threaten the momentum or direction of a campaign. During Transport and General Workers v Harrods (TUR1/535/06), the union unsuccessfully challenged to content of a ‘Frequently Asked Questions’ document. A wider complaint was lodged in Unite the Union v Kettle Foods (TUR1/557/2007) that the employer had given partial information at meetings, that meetings had been held in breach of the access agreement and that the Company’s access meetings had been presented to the workers as compulsory and the Union’s as voluntary - again unsuccessfully.

7.10. Reflecting on the lack of success with unfair practices complaints, the Chairman of the CAC has noted that the relevant statutory provisions are quite testing, “in that the party making the complaint has to satisfy three requirements: first, whether the other party took one of the actions listed in the Schedule; secondly, whether the motivation for that action was to influence the result of the ballot; and thirdly, whether that action had the effect of changing, or was likely to change, a worker’s intention to vote.”4

7.11. To avoid successful challenge, the objective of an employer should be to communicate thoroughly on the issue and present a legally reviewed argument, which is reasoned and balanced, as to why trade union recognition is not necessary or desirable within the organisation. This could legitimately focus on questioning trade union promises, presenting objective reasons as to why union recognition could have an adverse impact on the organisation. Heavy-handed, over-zealous managers — and in some cases the activities of independent consultants — will need to be managed carefully to avoid falling foul of the legislation.

4 Chairman’s Review of the Year, in CAC Annual Report 2007-8

8. How should the ballot be conducted?

8.1. In deciding the type of ballot to be held — i.e. workplace, postal or indeed combined, the CAC is required by Paragraph 25 of the Schedule to consider: · the likelihood of the ballot being affected by unfairness or malpractice if it were conducted at a workplace or workplaces; · costs and practicality; or · any such matters as the CAC considers appropriate.

8.2. In practice, the CAC writes to both parties seeking their views on the format of the ballot. Where the parties agree, it is normal for the CAC to order that a ballot takes place by the agreed method.

8.3. In accordance with the 2004 Act it is now possible for the CAC to order a workplace ballot, but also to provide people with the opportunity to vote by post if they are unable to vote at work for a particular reason. However, for the CAC to order a combination of workplace and postal balloting special factors must be present, including the location of workers, the nature of their employment and any other factors put to the CAC by the parties.

8.4. Back in 2003, the CAC reported that:

“The average participation rate was 75% with workplace and combination ballots registering a higher figure than postal ballots. Postal ballots have nevertheless tended to provide the highest proportion of votes in favour of 5 recognition.”

8.5. When we analysed the results of different types of ballot up to August 2006, the average turnout for workplace ballots was 88.62% compared with 84.28% for combination ballots and 71.81% for postal ballots. An analysis of all of the ballots undertaken up to October 2008 suggests that a workplace ballot will often reward the employer. The employer has been successful in 58.33% of workplace ballots and 50% of combination ballots, compared with just 22.35% of postal ballots

8.6. On an analysis of ballot results it is evident that postal ballots are ordered much more often than workplace ballots, and that this is an increasing trend. This is the outcome of a policy decision by the CAC.

“It is fair to say that in the early days of recognition, ballots were either workplace or postal in format, and, once the format had been decided, the panel could not revisit its decision. If a workplace ballot was in train and some workers requested postal votes because they could not attend the voting

5 See The CAC’s caseload, in Acas Annual Report 2002-3

station on the day in question, the request was refused because the format of the ballot was workplace only. The Committee fairly soon decided that there was a risk of disenfranchising some workers and the preferred formats became postal and combination, the latter most commonly being a workplace ballot with provision for a postal vote for absentees”6

8.7. In these circumstances, the employer’s next best option tends to be a combination ballot. The move away from workplace ballots emphasises the importance of determining the best channels and devising the most effective messages for conveying the employer’s view throughout the Union’s recognition campaign.

6 See Statutory Recognition 2000-2005, in Acas Annual Report 2004-5

9. What access must the Trade Union have?

9.1. In circumstances where the CAC has ordered a ballot to determine whether the trade union should be recognised for collective bargaining purposes, an employer is under a legal duty to cooperate generally in connection with the ballot and to give the trade union such access to the workers in the bargaining unit as is reasonable to enable the union to inform the workers of the object of the ballot and to seek their support and opinions on the issues involved.

9.2. The Code of Practice, entitled ‘Access and Unfair Practices during Recognition and De- Recognition Ballots’, gives practical guidance about the issues arising when an employer is required to grant access. Its advice on trade union access during a recognition ballot does not extend to access outside the workplace and outside working hours, as a union is perfectly free to access workers in whatever way it sees fit outside the workplace (e.g. hiring a public hall to hold a meeting or using local media to put across its case). The Code deals with specific circumstances of access during the period of recognition or de-recognition ballots. Whilst the Code is not legally binding, any breaches will be admissible in evidence and will be taken into account before proceedings at the CAC.

9.3. An employer who refuses to cooperate with the ballot and to provide reasonable access during the specified ballot period (normally a period of 20 working days) could ultimately be faced with recognition being awarded without a ballot.

9.4. Once the CAC have indicated their intention to conduct a union recognition ballot the parties will be given a period of time to draw up an ‘access agreement’. Access during the ballot period can take many and varied forms depending on the type of workplace and the characteristics of the workforce.

9.5. Normally, the trade union will put forward their proposals for access in writing for the employer to respond. Where access cannot be agreed voluntarily the CAC can intervene and rule on the issue if required. Access is usually given to individual union members employed by the employer who are nominated as lead representatives by the trade union, or to full time union officials. It is envisaged that access will take place at the workplace during normal working hours. The CAC will have regard to the employer’s typical methods of communicating as a benchmark for determining how the union should communicate. In essence, however, the union will be granted meetings with the workforce.

9.6. The Code envisages both small and large group meetings. It is suggested that the union should be granted at least two large group meetings during the ballot period, which will ordinarily be the 20-working-day period as specified by the CAC in the run up to the ballot. The first large group meeting should take place during the first 10

working days of the ballot period and the second should take place in the second 10 working days of the ballot period. However, if employees work on different shifts the practical effect could be a requirement for more than two meetings to enable the union to address everybody. The Code envisages that large group meetings will last 30 minutes.

9.7. With regard to small group meetings the CAC suggests that surgeries may be appropriate. This would ordinarily involve a full time official of the union having a private room on site in which to meet with people within the bargaining unit who wish to have a short period of time with union officials on a one-to-one basis or in groups of two or three employees at a time. In addition to this type of access, there are often arrangements that enable the union to have access to electronic communications. The union will also be entitled to have a notice board at the company’s premises.

9.8. The issue of access is highly emotive and can result in disputes between the parties about consistency and equality of access. An employer will need to think carefully about how access should be managed in their workplace and what their own strategy for communicating and accessing the workforce should be in the context of trade union access rights. Planning their own approach on communication channels and key messages for them as a business should be done at an early stage, in advance of the trade union having formal access rights under the CAC process.

10. Declaration

10.1. Once the ballot result is known he CAC will issue a Declaration7. Depending on the voting, this will state either (i) that the union is entitled to be recognised; or (ii) that the union is not entitled to be recognised. In cases where the CAC decides no ballot is required because the evidence of majority union membership is sufficient, the Declaration is always of the former kind.

10.2. As noted earlier, where a ballot is secured, the employer has an opportunity to set out their case for the workers in the bargaining unit to decide. To achieve recognition, the union must not only achieve a simple majority of votes, but also attract the support of at least 40% of those entitled to vote.

10.3. There are several examples of employers prevailing, even where the union has close to majority membership. A recent example was the case of Unite the Union v Harry Lawson Ltd (TUR1/620/2008). In this case, the union had 48% membership in its originally proposed bargaining unit of 50 workers. By achieving a slightly larger bargaining unit, the employer increased the number of workers to 60, reducing the union membership level a little to 41.66%. The employer in this case had a long- established and influential works committee, and this may help explain how, in a postal ballot, 33 voted against recognition, and only 19 for, with 8 not voting.

10.4. In an unusual development, the NUJ brought a case, National Union of Journalists v Bristol News and Media Ltd (TUR3/3/2006), under paragraph 66 of Part III of Schedule A1. This allows for the determination of whether the original bargaining unit awarded under the legislation is no longer appropriate and, if so, what would constitute an appropriate bargaining unit. The CAC accepted the application and then addressed itself to two questions under paragraph 70: whether or not the original bargaining unit continued to be an appropriate bargaining unit; and, if it did not, what other bargaining unit or units was appropriate.

10.5. This followed some restructuring of what had previously been the Bristol United Press Limited, bringing closer together the editorial activities of the Bristol Evening Post and the Western Daily Press. A new, wider bargaining unit was determined by the panel.

10.6. Under paragraph 85, the CAC then had to decide whether the difference between the original bargaining unit and the new was such that support for the union needed to be assessed. The panel so decided. It went on, under paragraph 87, to determine that a secret ballot should be held, in the interests of good industrial relations and because there was credible evidence from union members in the new bargaining unit

7 Very rarely, the CAC may order a rerun of the ballot because of complaints about the conduct of the ballot, not attributable to the employer or union, when it concludes that workers have not had a fair opportunity to vote

that they did not want the union to conduct collective bargaining on their behalf. The NUJ won the vote. Of the 140 workers in the much-expanded bargaining unit, 74 voted for recognition, 37 against.

11. What method of collective bargaining should apply?

11.1. Once the ballot result is declared there are two possibilities. If the union has not won (by securing 40% of those in the bargaining unit voting in favour, as well as a simple majority), then paragraph 40 of the Schedule prevents that union from making a further application for the same group of workers for a period of three years (commencing the day after the CAC declared the union was not entitled to be recognised).

11.2. Alternatively, where an applicant union succeeds in winning a secret ballot, the employer is required to recognise that union for collective bargaining purposes relating to the pay, hours and holidays of the workers identified within the appropriate bargaining unit. The statutory procedure contains both a negotiation period of 30 days and an agreement period of 20 days for the parties to agree an appropriate collective agreement to enable bargaining to take place. In the event that an agreement cannot be reached, the CAC will impose recognition and, in doing so, take into account the model collective agreement set out in the Trade Union Recognition (Method of Collective Bargaining) Order 2002.

11.3. This Order contains a model collective agreement known as ‘the specified method’. There is little to be gained by an employer failing to reach an agreement with the union if the union has been successful in the ballot. The specified method has disadvantages. The method imposed by reference to this Order will be a legally binding arrangement between the parties and can be enforced in the ordinary civil courts. The great majority of collective agreements in the UK are deliberately framed to avoid possible litigation: they are binding in honour only and cannot be enforced through the civil courts.

11.4. Furthermore, the specified method is prescriptive in terms of how collective bargaining should take place and how many representatives should be appointed. Consequently, there is limited scope for flexibility if the specified method is imposed. Admittedly the parties can agree to vary the terms of the imposed method, including the requirement that it be legally binding, but following the breakdown of negotiations, the circumstances for reaching such an agreement will not be good. There have been relatively few cases which have progressed through to the final CAC stage where a bargaining method is imposed, two examples being TGWU v TVR Engineering Ltd (TUR1/371/2005) and, more recently, Unite v Xansa UK Ltd (TUR1/568/2007).

11.5. When negotiating a method of collective bargaining the employer should seek advice on what arrangements might suit the organisation best. It can help to have an informed awareness of the limits to what the union will be awarded if it has to revert to the prescribed method. The trade union can be expected to press for more and a

watchful employer can use the method to contain such ambitions and secure a better deal.

11.6. In 2009 the CAC received an application under Part 4 of the Schedule, only the third such case since the recognition provisions were enacted in 2000. This was an application for derecognition of the GMB by “Ifor Williams Trailers [TUR1/182/2002]. The application was submitted by a Mr E Madeley. The process of dealing with such applications of derecognition is a mirror image of the Part 1 recognition provisions and an employer would have to show that a majority of the workers in the bargaining unit would be likely to favour an end to collective bargaining. In this case, the employer was not able to meet that criterion.

12. Appealing the decisions of the CAC

12.1. The Schedule contains no proper appeal mechanism to challenge decisions of the CAC on a point of law. The only possibility is to use ‘judicial review’ as an appeal mechanism. Under the judicial review procedure, the High Court can overrule the CAC (as the CAC is a statutory body) if it is persuaded that the CAC has acted in excess of its powers or has plainly misapplied the law. The practical problem is that given the huge discretion given to the CAC at each stage of the procedure, it is extremely difficult to argue successfully that the CAC has acted in excess of its powers. This point has been reinforced by comments of the High Court and Court of Appeal in cases brought so far.

12.2. Of 630 applications made to the CAC between June 2000 and March 2008 under the Trade Union Recognition provisions in Part 1 of the Schedule, only ten have resulted in applications for judicial review of CAC decisions — and only three have been successful. In two of the ten cases the application did not proceed beyond the permission stage. In one case the CAC decision was quashed by agreement between the parties.

12.3. An application was made by the employer in the case of GMB/URTU v Ultra-Frame (UK) Ltd (TUR1/313/2003). In summary, the CAC decision issue was that a ballot should be re-run because a number of workers had not received ballot papers and had, therefore, been denied the opportunity to vote. Although the number was small, it appeared there could be a material impact on the result. The High Court quashed the CAC decision and required the CAC, in consequence of the ballot result, to issue a declaration that the union was not recognised for collective bargaining purposes. The CAC appealed this decision to the Court of Appeal on the basis that it wanted to ensure the correct construction of the statute was being applied, rather than to address the precise facts of the case. It was agreed that the order of the High Court would in any event remain unchanged, notwithstanding the application to the Court of Appeal.

12.4. The Court of Appeal restored the CAC supervisory responsibility in relation to ballots. It also endorsed the CAC’s ability to consider and, if necessary, rectify problems in connection with the ballot brought to the CAC’s attention before the declaration was issued. This is an important point to take into account, particularly given the new law on unfair practices.

12.5. Another significant application for judicial review in 2004-2005 involved the NUJ v MGN Ltd case (TUR1/307/2003). This was over the decision on whether the NUJ’s application to the CAC could be accepted, given the provisions of paragraph 35 of the Schedule, which state that where there is an existing collective agreement in force with another union the applicant trade union should not have their application accepted as admissible. The NUJ applied for judicial review of the CAC’s ruling that

they were blocked out from applying for recognition because of the existing agreement with the British Association of Journalists: the NUJ failed.

12.6. In the Ultra-Frame case, the Court of Appeal once again underlined the fact that the CAC is ordinarily the place where industrial relations decisions of this nature should be taken and the Court should be reluctant to intervene.

12.7. There was only one reported decision at judicial review in 2007-2008. In R (on the application of Cable & Wireless Services UK Ltd) v CAC & Communication Workers Union (CWU) (2008 EWHC 115), the High Court rejected a claim by Cable & Wireless that the CAC had incorrectly decided the appropriate bargaining unit (see further above at paragraph 5.6).

12.8. In summary, the judicial review process is one in which few parties will be able credibly to mount a case and where fewer still can hope to succeed.

13. Derecognition

Although most of the focus in this briefing has been recognition claims, it is important to appreciate that Schedule A1 also deals with derecognition. Following the expiry of three years from a declaration of recognition by the CAC, an employer may issue a request to the trade union to agree an end to the collective bargaining arrangements. Where the union rejects or fails to respond positively to such a request, the employer may apply to the CAC with a view to a secret ballot being held to decide whether the bargaining arrangements should be ended. As with the recognition procedure, for the employer to be successful at de-recognising a trade union it must secure the support of 40 per cent of the workers within the bargaining unit as well as a simple majority.

Our experience

Eversheds has undertaken more advisory work and represented more companies at the CAC than any other law firm.

We have extensive practical experience of dealing with industrial relations issues in both the public and private sector. With our help you can minimise disruption and encourage co- operation. We’ll deal with sensitive matters in the strictest confidence and keep you up-to- date with the law.

Areas of expertise

· collective agreements · formal claims for recognition · redundancy and restructuring · industrial action · European Works Councils · establishing employee consultation groups.

Contacts:

Martin Warren Thomas Player Practice Group Head Partner, Cardiff Tel: +44 (0)845 498 7559 Tel: +44 (0)845 498 7574 Email: [email protected] Email: [email protected]

Owen Warnock Peter Norbury Partner, Cambridge Partner, Birmingham Tel: +44 (0)845 497 4282 Tel: +44 (0)845 497 1546 Email: [email protected] Email: peternorbury@eversheds,com

Appendix 1: Overview of compulsory trade union recognition procedure

TU makes formal request for recognitio n in respect of bargaining unit (BU)

Employer content to Employer not willin g to agree recognition First period 10 days negotiate

Employer does not accept request but willing to negotiate TU applies to CAC to determine BU and level of

support for recognition Second period 20 days or No agreement reached longer by agreement. Parties attempt to negotiate TU application Parties agree BU and agreement rejected recognition BU agreed and recognition union may TU application

Appropriate period – 20 request SIP accepted days or longer as ordered by TU loses and BU not agreement CAC Purpose: for parties to Reco gnition – collective agree the BU with help cannot re-apply barg aining commences from CAC for 3 years

TU proves it has a majority Automatic recognition (unless CAC Parties agree how to CAC determines BU within the specified BU determines ballot still appropriate collective ly bargain within 10 days after end of appropriate period TU fails to prove it has a majority with the specified BU CAC orders ballot and appoints qualified independent person to conduct it Agreement period – 20 days – CAC helps parties Parties fail to agree Negotiation period – 30 days; how to bargain Parties attempt to agree method for Ballot within 20 days collective bargaining TU wins CAC issues TU loses and CAC imposes collective declaration (40% rule) cannot re-apply Parties still fail to bargaining procedure agree how to bargain Full imposed recognition TU recognised for 3 years

Appendix 2: Table of ballot results

No. Case Name Date of Type of Bargaining Turnout Votes in Votes Spoilt votes decision ballot unit favour against 1. BAJ & Essex Chronicle Services Ltd 07/06/01 Postal 50 43 20 (46.51%) 23 (53.49%) N/A (86%) 2. TGWU & Whitbread plc 17/07/01 Postal 130 112 107 5 (4.46%) N/A (86.15%) (95.54%) 3. MSF & APW New Forest Ltd 20/07/01 Postal 112 60 23 (38.33%) 37 (61.67%) N/A (53.57%) 4. MSF & Aim Composites 10/08/01 Postal 106 68 60 (88.24%) 8 (11.76%) N/A (64.15%) 5. TGWU & Chiltern Scotland Ltd 12/09/01 Workplace 63 41 33 8 (19.51%) N/A (65.08%) (80.49%) 6. BAJ & Mirror Group Newspapers 15/10/01 Postal 553 334 317 (94.9%) 16 (47.9%) 1(0.3%) (60.4%) 7. AEEU & Honeywell Garnett Engine Boosting 18/10/01 Combination 90 89 25 64 N/A Systems (98.89%) (28.09%) (71.91%) 8. TGWU & Andrews (Sheffield) Ltd 19/10/01 Postal 181 139 133 3 (2.16%) 3(2.16%) (76.8%) (95.68%) 9. BALPA & Ryan Air 22/10/01 Postal 245 140 46 (32.85%) 94 (67.14%) N/A (57.14%) 10. GPMU & Derwent Information Ltd 26/10/01 Postal 595 420 244 (58.1%) 176 (41.9%) N/A (70.59%) 11. BFAWU & Seabrooks Crisps 28/11/01 Workplace 239 218 80 (36.7%) 138 N/A (91.21%) (63.3%) 12. TGWU & Britten Merlin Ltd 07/12/01 Postal 192 120 119 1 (0.83%) N/A (62.5%) (99.17%) 13. TGWU & William Beckett Plastics Ltd 11/12/01 Workplace 34 33 10 (30.3%) 23 (69.7%) N/A (97.06%) 14. AEEU & Honda of the UK Manufacturing 19/12/01 Combination 4045 3140 2272 848 40(12.75%) (77.63%) (56.17%) (27.01%) 15. UNIFI & Turkye IS Bankasi AS 25/01/02 Postal 17 14 6 (42.86%) 8 (57.14%) N/A (82.35%) 16. TGWU & Barcardi Martini 19/02/02 Postal 235 198 122 74 (37.37%) 2 (1.01%) (83.54%) (61.62%) 17. TGWU & Riverstone Ltd 08/03/02 Combination 196 153 137 16 (10.5%) N/A (78.1%) (89.5%) 18. TGWU & Snack Factory Ltd 15/03/02 Postal 45 41 21 (51.22%) 20 (48.78%) N/A (91.11%)

No. Case Name Date of Type of Bargaining Turnout Votes in Votes Spoilt votes decision ballot unit favour against 19. TGWU & Optane Group Ltd 28/03/02 Postal 338 274 222 52 (18.98%) N/A (81.07%) (81.02%) 20. BECTV & MTV Europe 28/03/02 Postal 131 74 54 (72.97%) 20 (27.03%) N/A (56.49%) 21. TGWU & Lunar Caravans Ltd 10/04/02 Combination 141 103 95 8 (7.77%) N/A (73%) (92.23%) 22. BALPA & Excel Airways 29/04/02 Postal 56 47 34 (72.34%) 13 (27.66%) N/A (83.93%) 23. GPMU & Printers Graphique Ltd 01/05/02 Combination 69 36 35 (97.2%) 1 (2.8%) N/A (52.17%) 24. TGWU & King Asia Foods 10/05/02 Combination 154 125 39 (31.2%) 86 (68.8%) N/A (81.17%) 25. TGWU & Kwik-Fit 23/05/02 Postal 574 473 466 3 (0.63%) 4(0.85%) (82.4%) (98.52%) 26. AEEU & GE Caledonian Limited 29/05/02 Combination 730 694 243 449 2 (0.29%) (95.07%) (35.01%) (64.7%) 27. TGWU & Economic Skips 07/06/02 Postal 47 35 4 (11.43%) 31 (88.57%) N/A (74.47%) 28. Amicus & Ifor Williams Trailers Ltd 05/09/02 Postal 398 306 236 64 (20.92%) 6 (1.96%) (76.88%) (77.12%) 29. ISTC & Cornelius Electronics Ltd 20/9/02 Combination 131 103 58 (56.3%) 45 (43.7%) N/A (78.66%) 30. TGWU & Cytec Engineering Materials Ltd 07/10/02 Combination 51 47 44 3 (6.38%) N/A (92.16%) (93.62%) 31. TGWU & Rest Assured 25/10/02 Combination 212 130 125 5 (3.85%) N/A (61.32%) (96.15%) 32. GMB & Northbourne Ltd 28/10/02 Postal 25 23 14 (60.87%) 9 (39.13%) N/A (92%) 33. TGWU & Grosvenor Casinos Ltd 06/01/03 Postal 970 605 589 15 (2.47%) 1(0.17%) (62.37%) (97.36%) 34. TGWU & International Radiators Ltd 03/02/03 Combination 102 89 33 56 N/A (87.25%) (37.08%) (62.92%) 35. TGWU & NIC Hygiene Specialists 20/02/03 Combination 50 34 34 (100%) 0 N/A (68%) 36. TGWU & Calorgas Limited 21/02/03 Postal 58 57 14 (24.56%) 43 (75.44%) N/A (98.28%) 37. TGWU & Dubors Ltd 05/03/03 Combination 143 120 60 (50%) 60 (50%) N/A (83.92%)

No. Case Name Date of Type of Bargaining Turnout Votes in Votes Spoilt votes decision ballot unit favour against 38. TGWU & Gala Casinos Ltd 18/03/03 Postal 899 517 487 (94.2%) 30 (5.8%) N/A (57.51%) 39. ISTCS & Charles Day (Steels) Ltd 20/03/03 Postal 21 21 6 (28.6%) 15 (71.4%) N/A (100%) 40. GMB & Richmond Mirrors Ltd 25/03/03 Combination 48 37 21 16 N/A (77.08%) (56.76%) (43.24%) 41. GMB & Video Duplicating Company 02/04/03 Combination 170 129 112 (86.8 17 (13.2%) N/A (75.9%) %) 42. Amicus & Black Decker 03/04/03 Postal 78 75 24 (32%) 51 (68%) N/A (96.15%) 43. ISTC & Mollertech Ltd 17/04/03 Postal 194 105 101 (96.2%) 4 (3.8%) N/A (54.12%) 44. GMB & Linpac Mouldings Ltd 23/04/03 Postal 260 131 121 9 (6.87%) 1(0.76%) (50.38%) (92.37%) 45. GMB & JJB Sports Ltd 01/05/03 Postal 592 329 247 (75.1%) 82 (24.9%) N/A (55.57%) 46. TGWU & Plane Handling Ltd 08/05/03 Combination 586 517 271 246 N/A (88.23%) (52.42%) (47.58%) 47. TSSA & Silverlink 21/05/03 Postal 93 66 55 (83.33%) 11 (16.64%) N/A (70.97%) 48. NUJ & Telegraph Group Ltd 27/05/03 Postal 651 395 361 (91.4%) 34 (8.6%) N/A (60.68%) 49. TSSA & Culina Logistics 03/07/03 Postal 165 147 30 (20.4%) 117 (79.6%) N/A (81.9%) 50. GMG & Halo Healthcare Ltd 01/10/03 Postal 10 8 7 (87.5%) 1 (12.5%) N/A (80%) 51. TSSA & Gatwick Express 13/10/03 Postal 38 33 20 (60.6%) 13 (39.4%) N/A (86.84%) 52. TGWU & W Jordan (Cereals) Ltd 31/10/03 Postal 283 225 93 (41.33%) 132 N/A (79.51%) (58.67%) 53. TGWU & Porvair Technologies 21/11/03 Combination 70 64 40 (62.5%) 24 (37.5%) N/A (91.43%) 54. GMB & Bisley Office Furniture 09/12/03 Combination 457 424 141 279 4 (0.94%) (92.78%) (33.25%) (65.80%) 55. TGWU & Canon Rubber Ltd 15/12/03 Postal 231 198 63 (31.81%) 135 (68.2%) N/A (85.71%) 56. TGWU & Quick Frame Sales Ltd 16/12/03 Postal 56 34 30 (88.24%) 4 (11.76%) N/A (60.71%)

No. Case Name Date of Type of Bargaining Turnout Votes in Votes Spoilt votes decision ballot unit favour against 57. GMB & Fashion Logistics 19/12/03 Postal 208 127 118 (93%) 9 (7%) N/A (61.71%) 58. ISTC & Mission Foods 19/12/03 Combination 168 151 74 (49%) 77 (51%) N/A (89.88%) 59. ISTC & Hanmare Polythene Ltd 19/12/03 Combination 70 67 23 44 N/A (95.71%) (34.33%) (65.67%) 60. ISTC / Amicus & Polypipe Building Products Ltd 08/01/04 Postal 780 460 392 (85.2%) 68 (14.8%) N/A (58.97%) 61. TGWU & Northern Glass Limited 09/02/04 Postal 52 36 35 (97.22%) 1 (2.78%) N/A (69.23%) 62. Unison & Parkcare Homes Ltd 13/02/04 Postal 80 45 41 (91.1%) 4 (8.9%) N/A (56.25%) 63. TGWU & Armchair Passenger Transport Co 20/02/04 Workplace 260 173 160 13 (7.51%) N/A Ltd (66.54%) (92.49%) 64. NUJ and Ananova 08/04/04 Postal 47 42 18 (42.8%) 24 (57.2%) N/A (89.36%) 65. GMB & Madam Tussauds 16/04/04 Workplace 139 115 67 48 N/A (82.73%) (58.26%) (41.74%) 66. Amicus & Teconnex 27/04/04 Workplace 90 83 36 47 N/A (92.22%) (43.37%) (56.63%) 67. ISTC & NDT Ltd 05/05/04 Postal 21 19 1 (5.26%) 18 (94.74%) N/A (90.48%) 68. BECTU & British Broadcasting Corp. 06/05/04 Postal 69 47 44 (93.6%) 3 (6.4%) N/A (68.16%) 69. Union of Shop, Distributive & Allied Workers 12/05/04 Postal 167 85 77 (90.59%) 6 (7.06%) 2 (2.35%) (USDAW) & Bargain Booze Ltd (50.9%) 70. GMB & Tristar Cars Ltd 24/05/04 Postal 344 246 185 (75.2%) 61 (24.8%) N/A (71.51%) 71. GMB & The Royal Pigeon Racing Association 26/05/04 Postal 27 22 15 (68.18%) 6 (27.27%) 1 (4.55%) (81.48%) 72. TGWU and Tibbett & Britton Group 28/06/04 Postal 49 36 36 (100%) 0 N/A (73.47%) 73. Community (Formerly ISTC) & 28/07/04 Combination 45 41 38 3 (7.32%) N/A ThyssenKrupp Services Centre UK Ltd (91.11%) (92.68%) 74. GMB & Walkers Snack Distibn Ltd 05/08/04 Combination 101 93 37 56 N/A (92.10%) (39.78%) (60.22%) 75. Amicus & GE Thermometrics (UK) Ltd 10/08/04 Combination 102 97 38 (39.2%) 59 (60.8%) N/A (95.10%)

No. Case Name Date of Type of Bargaining Turnout Votes in Votes Spoilt votes decision ballot unit favour against 76. GMB & ASDA 27/08/04 Combination 575 435 206 229 N/A (75.66%) (47.36%) (52.64%) 77. Community (Formerly ISTC) & Premier Trade 03/09/04 Postal 170 76 71 (93.43%) 5 (6.57%) N/A Frames (44.71%) 78. Amicus & South Marsden Distribution Centre 24/09/04 Workplace 411 375 308 67 (17.9%) 1 (0.27%) Ltd (91.24%) (82.1%) 79. BECTU & Intelfax 24/09/04 Postal 14 8 6 (75%) 2 (25%) N/A (57.14%) 80. Amicus (GMB) & Liebherr Cranes Ltd 29/09/04 Postal 111 88 69 (78.41%) 19 (21.59%) N/A (79.28%) 81. Amicus & Sebden Steel West Midlands 01/10/04 Postal 48 36 34 (94.44%) 2 (5.56%) N/A (75%) 82. GMB & Varn International 01/10/04 Postal 52 38 11 (29%) 27 (71%) N/A (73%) 83. UCATT & FW Mason & Sons Ltd 18/10/04 Postal 87 73 41 (56.16%) 32 (43.84%) N/A (83.91%) 84. TGWU & Instrument Technology Ltd 28/10/04 Postal 99 48 38 (79.17%) 10 (20.83%) N/A (48.48%) 85. CATU & Industrial Agricultural Engineers 16/11/04 Workplace 112 110 50 60 N/A (98.21%) (45.45%) (54.55%) 86. Amicus & Paddock Fabrications Ltd 30/11/04 Postal 249 195 101 92 (47.18%) 2 (1.03%) (78.31%) (51.79%) 87. GMB & Gleason Works Ltd 16/02/05 Postal 246 235 128 107 N/A (95.53%) (54.47%) (45.53%) 88. GMB & G-Plan Upholstery Ltd 21/02/05 Postal 221 111 99 (89.19%) 12 (10.81%) N/A (50.23%) 89. TGWU & TVR Engineering Ltd 28/02/05 Workplace 272 242 150 92 N/A (88.97%) (61.98%) (38.02%) 90. GMB & Caunton Engineering 31/03/05 Workplace 60 59 17 42 N/A (98.33%) (28.81%) (71.19%) 91. TGWU & Royal P&O Medlloyd 04/04/05 Postal 24 17 11 (64.71%) 6 (35.29%) N/A (70.83%) 92. MSFU & Uniport DCM Jaguar Business 22/04/05 Postal 130 117 52 (44.44%) 65 (55.65%) N/A (90%) 93. GMB & URTU and Ultra Frame (UK) Ltd 23/05/05 Postal 409 297 160 (53.9%) 137 (46.1%) N/A (72.61%) 94. USDAW and Porcelanosa 27/05/05 Postal 53 45 27 (60%) 18 (40%) N/A (84.91%)

No. Case Name Date of Type of Bargaining Turnout Votes in Votes Spoilt votes decision ballot unit favour against 95. UCATT & Mike Amodeo Contractors Limited 01/06/05 Postal 25 14 14 (100%) 0 N/A (56%) 96. AMICUS & Japan Airlines 03/06/05 Postal 217 174 168 (96.6%) 6 (3.4%) N/A (80.2%) 97. GMB & Whitby Seafoods Ltd 14/06/05 Postal 134 52 24 (46.15%) 28 (53.85%) N/A (38.81%) 98. TGWU and Corby Chilled Distribution 27/06/05 Postal 83 57 42 (73.68%) 15 (26.32%) N/A (68.67%) 99. GMB & Savours Health & Beauty 31/08/05 Postal 203 121 118 3 (2.48%) N/A (59.61%) (97.52%) 100. Amicus & Baker Oil Tools 18/10/05 Workplace 186 181 78 100 3 (1.66%) (97.31%) (43.09%) (55.25%) 101. AMICUS and Fibrothetford 27/10/05 Postal 28 23 21 (91.3%) 2 (8.7%) N/A (82.14%) 102. UCATT & Millennium Stadium PLC 21/11/05 Postal 54 36 8 (22.22%) 28 (77.78%) N/A (66.67%) 103. NUJ & Leicester Mercury Group 12/01/06 Postal 100 72 57 14 1 (72%) (79.2%) (19.4%) 104. Association of Teachers and Lecturers (ATL) & 09/02/06 Postal 160 90 78 (86.67%) 12 (13.33%) N/A Wycliffe College Incorporated Ltd (56.25%) 105. TGWU and Easyjet 15/02/06 Postal 194 150 143 6 (4%) 1 (0.67%) (77.32%) (95.33%) 106. NATFFHE/AUT & Nottingham Trent University 09/03/06 Postal 43 28 16 (57.14%) 12 (42.86%) N/A (65.12%) 107. NUJ & TSL Education Ltd 10/03/06 Postal 112 89 85 (95.51%) 4 (4.49%) N/A (79.46%) 108. GMB & Dart Products Ltd 13/03/06 Combination 137 121 46 75 N/A (88.32%) (38.02%) (61.98%) 109. Amicus & CCL Label (Ashford) Ltd 15/03/06 Postal 56 29 18 (62.07%) 11 (37.93%) N/A (51.79%) 110. GMB & Magna Kansei Ltd 10/04/06 Workplace 352 333 162 171 N/A (94.6%) (48.65%) (51.35%) 111. TGWU & Convatec Ltd 14/08/06 Postal 504 324 197 (60.8%) 127 (39.2%) N/A (64.29%) 112. TGWU & Comet Group Ltd 18/08/06 Combination 55 47 20 27 N/A (85.45%) (42.55%) (57.45%) 113. TGWU & Homebase 25/08/06 Postal 174 151 87 (57.62%) 64 (42.38%) N/A (86.78%)

No. Case Name Date of Type of Bargaining Turnout Votes in Votes Spoilt votes decision ballot unit favour against 114. PCS & Adecco UK Ltd 14/09/06 Postal 574 368 368 (100%) 0 N/A (64.11%) 115. TGWU & Henrob Ltd 18/10/06 Postal 53 38 14 24 N/A (71.69%) (36.8%) (63.2%)

116. TGWU & Plastmo Profiles 06/11/06 Postal 94 41 32 9 N/A (43.61%) (78.05%) (21.9%) 117. GMB & JF Stone Investments Ltd t/a The 27/10/06 Combination 106 91 14 77 N/A American Duty Dry Cleaning Company (85.84%) (15.38%) (72.64%) 118. Amicus & XFAB UK Ltd 09/11/06 Combination 173 162 97 65 N/A (93.64%) (59.88%) (40.12%) 119. Prospect & Rock Savage Power Company Ltd 21/11/06 Postal 29 29 15 14 N/A (100%) (51.72%) (48.28%) 120. NUJ & Staffordshire Sentinel Newspapers 14/02/07 Postal 96 72 36 36 N/A (75%) (50%) (50%) 121. Amicus & Winterhalter Ltd 22/02/07 Postal 78 55 54 1 N/A (70.51%) (98.18%) (1.82%) 122. BECTU & Royal Shakespere Company 23.04.07 Postal 206 102 91 11 N/A (49.51%) 123. PCS & National Gallery Company Ltd 24/04/07 Postal 51 40 40 0 N/A (78.43%) (100%)

124. The Amalgamated Union (formerly known as 18/05/07 Combination 150 139 94 45 N/A TGWU) & Harrods (92.66%) (67.62%) (32.37%) 125. GMB & Bisley Office Equipment 01/06/07 Combination 454 410 202 208 N/A (90.30%) (49.27%) (50.73%) 126. NUJ v Bristol News & Media Ltd 21/06/07 Postal 140 112 74 37 1 (80%) (66.07%) (33.04%) 127. TGWU & ASIG 16/07/07 Postal 55 52 35 17 N/A (94.54%) (67.3%) (32.69%) 128. ALAE & SRTechnics EasyTechLted 24/08/07 Postal 103 76 65 11 N/A (73.78%) (85.53%) (14.47%) 129. Unite v Harrods 31/10/07 Postal 18 14 9 5 N/A (77.78%) (64.29%) (35.71%) 130. Amicus v The College of Law 11/09/07 Postal 331 218 160 58 N/A (65.86%) (73.4%) (26.6%) 131. GMB v Home Group 16/10/07 Postal 148 115 112 3 N/A (77.70%) (97.39%) (2.61%)

No. Case Name Date of Type of Bargaining Turnout Votes in Votes Spoilt votes decision ballot unit favour against 132. Unite v Kettle Foods 16/10/07 Combination 318 301 93 206 2 (94.65%) (30.9%) (68.4%) 133. GMB v Uponor Ltd 5/11/07 Postal 132 87 70 17 N/A (65.9%) (80.46%) (19.54%) 134. RMT v Palmers 16/11/07 Postal 84 62 47 15 N/A (73.81%) (75.8%) (24.2%) 135. GMB v Windowstyle UK Ltd 27/12/07 Postal 428 245 195 49 1 (57.24%) (79.59%) (20%) 136. CWU v COLT Telecom Group PLC 6/12/07 Postal 23 8 5 3 N/A (34.78%) (62.5%) (37.5%) 137. CWU v COLT Telecom Group PLC 6/12/07 Postal 26 14 7 7 N/A (53.85%) (50%) (50%) 138. CWU v COLT Telecom Group PLC 6/12/07 Postal 55 30 18 12 N/A (54.55%) (18%) (12%) 139. Unite v Photronics (UK) Ltd 10/01/08 Postal 119 63 48 15 N/A (52.94%) (76.19%) (23.8%) 140. NUJ v Northcliffe Media Ltd (Kent) 14/05/08 postal 73 55 33 22 N/A (75.34%) (60%) (40%) 141. NUJ v Northcliffe Media Ltd 14/05/08 Postal 73 30 15 15 N/A (41.09%) (50%) (50%) 142. Unite v Waverley TBS 27/05/08 Postal 20 16 16 0 N/A (80%) (100%) 143. NASUWT, NUT & ATL v Mount St Mary’s College 30/05/08 Postal 50 42 21 20 N/A (84%) (52.4%) (47.6%) 144. CWU v Cable & Wireless 20/06/08 Postal 359 331 77 254 N/A (92.2%) (23.3%) (76.7%) 145. Unite v Harry Lawson Ltd 20/08/08 Postal 60 52 19 33 N/A (86.67%) (36.53%) (63.46%) 146. Unison v National Autistic Society 1/09/08 Postal 73 37 37 1 N/A (52.05%) (97.37%) (2.63%) 147. Unite v Sports Direct International plc 10/09/08 Postal 486 358 335 23 N/A (73.66%) (93.58%) (6.42%) 148. GMB V East Riding Sacks Ltd 11/09/08 Postal 117 99 31 68 N/A (84.61%) (31.3%) (68.7%) 149. NUJ v South West Wales Media Ltd 12/09/08 Postal 92 79 45 34 N/A (85.87%) (56.96) (43.03%) 150. Unite the Union v National Carparks Limited 18/03/09 Postal 60 43 43 0 N/A (100%)

No. Case Name Date of Type of Bargaining Turnout Votes in Votes Spoilt votes decision ballot unit favour against 151. Unite the Union v London and North Western 16/06/09 Postal 99 90 72 18 N/A Railway Co. Ltd (80%) (20%) 152. Unite the Union v Gillette UK Ltd 28/07/09 Postal 138 131 77 54 N/A (58.8%) (41.2%)