Legal Article - Employment Law

Trade Union Membership and Recognition

Trade Unions are organisations of workers seeking to protect and advance its members interests in the workplace.

They are a body for legal advice, financial assistance and some educational facilities. Any employee can join a union and cannot be discriminated against for doing so.

Employers can choose to operate with a union to enhance the employer / employee relationship.

Trade Union Recognition

Trade Union Recognition

Voluntary Trade Union recognition allows for maximum flexibility for the employer as there are no legal obligations within a voluntary agreement. Employers are therefore free to bargain with more than one Trade Union at any time.

As best practice, a written recognition agreement containing the associated bargaining process should be drawn up between parties, this can be revised at any stage. Agreements like this prevent miscommunication of each parties intentions and allows for consistency during bargaining.

They must, however, contain the following;

• How and when meetings will be organised

• Who the union representatives will be and provisions made for these people to have requisite time of in order to attend meetings

• How the workforce will be informed of outcomes of any discussions

• How both parties must act during any bargaining meetings, providing for a dead locked vote situation
 
• The exact issues on which they can debate e.g. pay

Voluntary Trade Union membership is recognised once an agreement has been reached to negotiate on pay and working conditions of its members. This can be by voluntary arrangement. If this cannot be reached, the Trade Union can apply for statutory recognition.

Step 1

A trade union can at any time approach an employer to seek recognition on behalf of its members and the employer can agree or reject the claim. If the latter the union now has the right to submit a formal written request for recognition, specifying the bargaining unit i.e. the group of workers the union wishes to represent which can be all the employees, or a specific department, depot etc.

The employer has 10 working days to respond beginning from the first working day after the request has been received. If the employer agrees recognition that is the end of the legal process. If the employer agrees to negotiate the request, a further 20 working days are allowed to try to reach a voluntary agreement, this begins the first day after the 10 day period. If the employer rejects the claim outright or fails to reach an agreement within the 20 days, the union can proceed to the next stage.

Step 2

The union can apply to the Central Arbitration Committee (CAC) for a decision on whether it should be legally recognised. The CAC panel consists of 3 CAC members, a chairman, a pro worker member and a pro employer member.

The CAC will reject the claim if any of the following factors apply:

• The employer does not employ a minimum of 21 employees, including employees of associated employees, in the UK. This also includes part time workers.

• The union is independent as certified by the Certification Officer

• The union request to the employer is in the proper form and the copies of its papers to the CAC have been copied to the employer

• The union has previously made an application for recognition for the same bargaining unit in the preceding three years and been rejected

• The union’s membership is less than 10% of the proposed bargaining unit

• The majority of employees are not for recognition

• If the union fails to show its open co-operation with other unions that may already be recognised

• Another trade union is recognised for collective bargaining for any part of the proposed bargaining unit.

Step 3

The Central Arbitration Committee will allow the union and employer 20 working days to agree the bargaining unit. If they cannot the CAC will decide it taking account of the following factors:

• The compatibility of the unit with the need for effective management

• The views of the employer and union

• Any existing national or local bargaining arrangements

• The desirability in general of avoiding small, fragmented bargaining units within an undertaking

• The characteristics of the employees in the unit proposed by the union and any other employees thought to be relevant

• The location of the employees.

Once the bargaining unit has been agreed the next step applies.

Step 4

The CAC will award automatic recognition rights if at least 50% of the employees in the bargaining unit are members of the union, unless either:
• The CAC decides that a ballot should be held in the interests of good industrial relations

• Where a significant number of the union members within the bargaining unit inform the CAC that they do not want the union to conduct collective bargaining on their behalf

• Where membership evidence is produced which leads the CAC to conclude that there are doubts about whether a significant number of the union members within the bargaining unit want the union to conduct collective bargaining on their behalf.

The next step is to hold a secret ballot.

Step 5

The Central Arbitration Committee will still not authorise a ballot until it is satisfied that at least 10% of employees in the bargaining unit are members of the union and there is prima facie evidence that a majority of employees in the bargaining unit are likely to favour recognition.

The secret ballot has to be conducted by an independent body e.g. the Electoral Reform Society; the costs shared between the union and the employer, and may be conducted at the workplace if the CAC believes there is no risk of improper interference.

Of particular importance is the union’s right to have reasonable access to the employees to be balloted. The union and employer have 10 working days to reach an access agreement.

This must establish the circumstances and times when the union can communicate with employees in the bargaining unit to persuade them to vote in favour of recognition. If the parties cannot reach an agreement the CAC will make an order based on the Code of Practice on Access to Workers during Recognition and Derecognition Ballots.

There then follows a 20 working day access period when the Code will be implemented.

Step 6

If the employer fails to cooperate in allowing access or on the conduct of the ballot the CAC can award automatic recognition.
Otherwise, recognition will be granted if it is supported by a majority of those voting and this makes up 40% of the employees in the bargaining unit. If this majority is not achieved the union cannot make another statutory recognition claim for the same bargaining unit for another three years.

Step 7
The union and the employer have 30 working days to negotiate their own collective bargaining agreement. If they fail to do so the CAC will impose the specified method of collective bargaining contained in the Trade Union Recognition (Method of Collective Bargaining) Order. This covers collective bargaining on pay, hours and holidays.

Trade Union Derecognition

Trade Union Derecognition

The consequences of statutory recognition are that the Trade Union will, from then on, be entitled to negotiate on pay, hours and holiday. Plus any additional issues within the bargaining agreement. Any information requested by the Trade Union must be disclosed.

Employers must inform unions of all changes, even if only proposed to pensions, redundancies and TUPE transfers.

If statutory recognised then the Derecognition procedure must be followed.

After 3 years, a company can ask the CAC to hold a ballot to see whether there is support for the bargaining arrangements to be ended. This can only be completed if;

• the company has less than 21 members of staff
• they no longer has the majority of support from the workforce
• membership falls below 50%

An application must be made to the CAC for Derecognition and a notice sent to the relevant Trade Union. Once received, the CAC will convene a panel to discuss the validity of the application. This msut be completed within 10 working days of the initial application.

If the CAC feel it is invalid, then it will be treated as if the application had not been made and the agreement will remain in tact. If it is decided the application is valid, the agreement will cease.

The union will be able to challenge this decision and the CAC must reconsider for a further 10 days. If the decision is appealed then the agreement remains in tact until the second outcome is reached. If the decision is upheld the agreement will cease on the date after the last day of the CAC’s second final decision.  

 

Why Employees join Trade Unions

Why Employees join Trade Unions

Employers should consider using their best endeavours to agree voluntary collective bargaining arrangements if there is good evidence to suggest substantial trade union support in the company or part of the company. These can be much more flexible and generate a positive approach to industrial relations in the future.

The Advisory Conciliation and Arbitration Service, or an industry’s own dispute procedure (like the Retail Motor Industry’s Procedure) where it exists, can be used to help with a settlement.

It is probably in the employer’s interest to encourage large bargaining units due to the stringent balloting requirements unions have to overcome. Unions will try to identify small areas as the bargaining unit for the same reason.

Research evidence suggests that one very important reason why employees join trade unions is that communications between management and the workforce are poor. It is not, therefore, a good idea to bring in management consultants to “persuade” employees to reject a union.


The Right to join a Trade Union

The Right to join a Trade Union

Employees and potential employees have a legal right to belong to any Trade Union of their choice, as well as a right not to belong to a Trade Union. They also have the right to take part in the activities of a Trade Union outside their normal working hours, or within normal working hours with the employers permission.
The Courts have interpreted “outside working hours” as including lunch breaks and tea breaks even if the employee is on the employer’s premises.

Employers cannot refuse to employ anyone simply on grounds of their Trade Union membership, nor can they be dismissed or made redundant for that reason.

Whilst in employment individual employees have the right not to have action short of dismissal taken against them to prevent or deter them from belonging to a Trade Union or to penalise them from being a member.

Trade Union Representative at a Disciplinary Hearing

Trade Union Representative at a Disciplinary Hearing

Workers who are required or invited to attend a disciplinary or grievance hearing by their employer are entitled to be accompanied by a “companion” who may be a full time trade union official or a lay trade union officer or workplace representative who has been certified by the union as having received training or having experience of acting as a companion at disciplinary or grievance hearings.

Workers are free to choose an official from any trade union to accompany them whether or not a union is recognised by an employer.

The ACAS Code of Practice on Disciplinary and Grievance Procedures suggests, however, that where an employer recognises a Trade union, it is good practice that the union official accompanying the worker should be from that union.

The choice, however, is the individual worker’s. The official is only allowed to address the hearing and confer with the worker during the hearing and cannot answer questions on the worker’s behalf.

 The Code, however, recommends that the official should take a full part in the hearings. If the official is not able to attend date of the hearing set by the employer, the worker can insist on an alternative date, which must be within five days of the original date.

 

Time Off for Trade Union Duties

Time Off for Trade Union Duties

Where an independent Trade Union is recognised by an employer, an employee who is a member of the Union is entitled to reasonable time off during working hours to take part in certain Trade Union activities.

The employer is not obliged to pay the employee for the time off. However, if the employee is an official of the Union (i.e. shop steward) they must be allowed reasonable time off with pay during working hours to carry out those duties as an official which relate to matters for which the employer has recognised the Union, or where the Union is not recognised, functions which the employer has agreed the Union may perform and undergo training which is relevant to those duties and which is approved by the Trades Union Congress or the independent Trade Union of which the employee is an official.

Trade Union Safety Representatives

Trade Union Safety Representatives

Again where an independent Trade Union is recognised by an employer, if an employee is appointed by their union as a safety representative, they are entitled to be given reasonable time off from work to carry out their functions and to undergo relevant training.

Under the Health & Safety at Work Act 1974 it is the duty of employers to consult with these representatives about making suitable arrangements to co-operate effectively in promoting and developing means to ensure the health and safety at work of employees.

In particular, under the Management of Health & Safety at Work Regulations 1992 consultation must take place on the following:

a) The introduction of measures in the workplace substantially affecting health and safety of employees

b) Arrangements for the appointment of “competent” persons as defined under the 1992 Regulations

c) Planning and organisation of health and safety training

d) Provisions of health and safety information and,

e) Health and safety implications of new technology.

Under the 1974 Act safety representatives have the following functions to perform:

a) To investigate potential hazards and dangerous occurrences at the workplace (whether or not they are drawn to their attention by the employees they represent) and to examine the causes of accidents at the workplace

b) To investigate complaints by an employee they represent relating to the employee’s health, safety and welfare at work

c) To make representations to the employer on matters arising out of subparagraphs (a) and (b) above

d) To make representations to the employer on general matters affecting the health, safety and welfare at work of the employees at the workplace

e) To carry out inspections of the workplace and of documents in accordance with the provisions detailed below

f) To represent the employees they were appointed to represent in consultations at the workplace with inspectors of the Health and Safety Executive and of any other enforcing authority

g) To receive information from inspectors on matters affecting the employees’ health, safety and welfare; and

h) To attend meetings of safety committees where they attend in their capacity as safety representatives in connection with any of the above functions.

An employer must establish a Safety Committee within three months of receiving a request in writing from at least two safety representatives and must post a notice stating the composition of the Committee and the workplace to be covered by it in a place where it may be easily read by the employees.

Right to Information

Right to Information

Finally, where an independent trade union is recognised by a company for negotiating purposes, the union has the right to write and ask for information from the company to help it to negotiate effectively. The information to be disclosed, as soon as possible after receiving the request, is:

a) information without which the trade union representatives would be to a material extent impeded in carrying on with such collective bargaining; and

b) Information which it would be in accordance with good industrial relations practice for the employer to disclose for the purposes of collective bargaining.

Employers are not required to disclose:

a) Information against the interests of national security; or

b) Information which could not be disclosed without contravening a prohibition imposed by or under an enactment; or

c) Information acquired in confidence; or

d) Any information which relates specifically to an individual unless that person has agreed specifically to its disclosure; or

e) Information likely to cause substantial injury to the employer’s undertaking for reasons other than its effect on collective bargaining; or

f) Information obtained by the employer for the purpose of bringing, prosecuting or defending any legal proceedings.

The Advisory, Conciliation and Arbitration Service has produced a Code of Practice on Disclosure of Information to Trade Unions’ for Collective Bargaining Purposes which gives details of the types of information that may need to be disclosed, when and how it should be disclosed and what happens legally if it is not disclosed.

In addition to the above a recognised independent trade union has the right to be informed and consulted about proposed redundancies and in respect of transfers of ownership under the Transfer of Undertakings Regulations 1981.

Industrial Action: Ballots and Notice to Employers

Industrial Action: Ballots and Notice to Employers

Where possible, employers should be careful to avoid dispute with employees. As good practice, employers should look to inform and consult employees on all matters by way of staff forums, meetings and regular Trade Union consultation.

If industrial action does arise, employers should follow procedure and look to dissolve problems as soon as possible.

Trade Unions have immunity from legal action when encouraging their members to take some form of industrial action (e.g. strike, banning overtime, work to rule) providing they hold a secret postal ballot of all members they propose to call Out on strike etc. and that the action is supported by a majority voting in favour.

All ballots involving more than 50 individual voters must be subject to independent scrutiny. The trade union has to appoint this person, who has to produce a report stating that the ballot has been conducted properly. An employer can request a copy of the report provided the request is made within six months of the date of the ballot.

The union must also ensure that:

i. the voting paper must contain at least one of two specified types of question, both of which must be capable of a ‘Yes’ or ‘No’ answer: these are a question which asks whether a person is prepared to take part in, or continue to take part in, a strike; or a question which asks whether the person voting is prepared to take part in, or continue to take part in, industrial action short of a strike.

ii. The voting paper must specify who is authorised to call a strike, the address to which they are to be returned and the date, and must be consecutively numbered

iii. The voting paper must contain the following statement “if you take part in a strike or other industrial action, you may be in breach of your contract of employment”

iv. Give the employer in writing at least 7 days before the ballot a notice stating

• That the union intends to hold the ballot
• the date the union believes will be the opening day of the ballot
• describe those employees who it is reasonable for the union to believe, the time the notice is given, will be entitled to vote in the ballot. This description must be such as to enable the employer readily to ascertain which employees are involved.

v. all reasonable steps are taken to ensure that those entitled to vote and their employers are informed of the details of the outcome of the ballot

vi. Give the employer in writing 7 days notice of any intended action. The notice must be in writing and must describe, in such a way that the employer can readily identify them (but without giving their names), the employees of that employer whom the union intends to call upon to take action and must also state whether the action is intended to be continuous or discontinuous.

Where the action is to be continuous, the notice must specify the intended date for the affected employees to begin to take part in the action. Where the action is intended to be discontinuous, the notice must state the intended dates for any of the affected employees to take part in the action.

Since each date on which action is to take place must be covered by seven days’ notice, the union will either have to specify a full list of days of action at the outset or, alternatively, give a separate seven days’ notice of each stoppage

vii. The notice will not be valid, and consequently the union will not be protected in tort, if any employees covered by it are induced to take part in action which is outside the terms of the notice, either before the notified start date of the action or, if the action is discontinuous, on a day which has not been specified in the notice. Where continuing action has been taking place which the union has ceased to authorise or endorse and the union wishes to restart the action, either as continuous or discontinuous action, the original seven days’ notice cannot be relied upon. New notice must be given.

The ballot ceases to be effective after four weeks from the date of the ballot. The trade union loses its immunity if the purpose of the industrial action is

• To enforce trade union membership

• In support of a member who has been dismissed for taking unofficial action

• Secondary action i.e. in support of a third party who is not the employer party to the dispute

• Pressure to impose a union membership agreement.

In the course of lawful industrial action, employees and trade union officials can peacefully picket the workplace for the purpose of communicating information, or persuading someone to stop working.

In addition, employees taking “protected” industrial action i.e. the union has complied with the legal requirements governing the organisation of industrial action will have the right to claim automatic unfair dismissal, irrespective of age or length of service, if the dismissal takes place:

• Within a period of 8 weeks, beginning with the day on which the employee started to take industrial action

• After the end of the eight weeks where the employee stopped taking industrial action before the 8 week period ended

• After the end of the 8 week period where, although the employee has not stopped taking action, the employer has not followed all reasonable steps to resolve the dispute.

“All reasonable steps” will include complying with procedures laid down in any collective agreement, including any industry wide agreement, and whether, after the industrial action began, either side:

• offered or agreed to start or restart negotiations

• Unreasonably refused a request to make use of conciliatory services

• Unreasonably refused a request to make use of mediation services in relation to the procedures to be adopted for resolving the dispute.

Apart from the above, an employer can dismiss employees on a lawful strike without fear of an industrial tribunal case providing all of them are dismissed. They must not re-employ selectively within 3 months of the dismissals, otherwise those not reemployed can claim unfair dismissal. The employer does not, of course, have to pay employees while they are taking industrial action.

An employee has no right whatsoever to complain of unfair dismissal if, at the time of the dismissal, they were taking part in “unofficial” industrial action. Employers may, therefore, selectively dismiss such employees without losing their “immunity” from tribunal claims. Action is “unofficial” if an employee’s own union is not supporting it because the union does not have legal immunity.

Strike action does not break an employee’s continuity of employment, but any time during which an employee is on strike does not count towards establishing continuity. If an employer institutes a ‘lock-out’ (i.e. refuses to let their employees work) the employee’s can claim either wrongful or unfair dismissal or breach of contract.


Preventing Discrimination against Trade Union Membership and Non-Membership

Preventing Discrimination against Trade Union Membership and Non-Membership

To prevent discrimination against a person for belonging or not belonging to a Trade Union at the selection or recruitment stages the employer should ensure that application forms, employment literature, advertisements, or instructions to advertisers and employment agencies make no references to Trade Union membership or non-membership as a requirement for the job.

Similarly, all staff who may be involved in recruitment, selection, interviewing, or in contact with the public or employment agencies (e.g. receptionists, security officers, supervisors) should be informed and trained not to refer to Trade Union membership.

Only if an applicant for employment asks should an employer respond to any questions concerning Trade Unions’. When responding the Company representative should state categorically that the Company recognises the right of all employees to belong to any Trade Union of their choice, or to none.

It may be helpful to explain that the industry has a National Joint Council and a National Agreement and which Trade Unions’ are signatory to the Agreement.

Where an employer recognises a Trade Union locally, they should ensure that discrimination does not take place inadvertently by “allowing” the Union to recommend people for employment, or to “dictate” who they will work with, or should be made redundant etc.

Right to Belong to a Union

Right to Belong to a Union

The courts are interpreting the legal right of “every employee not to have action, short of dismissal, taken against him/her as an individual by their employer for the purpose of preventing or deterring them from being or seeking to become a member of an independent Trade Union or penalising them for doing so” in a very liberal way.

The Court of Appeal has said that any action which, makes Trade Union membership meaningless (i.e. take away the benefits of belonging to a Trade Union) is deterring employees from being members. Taking “action” includes withholding a benefit as well as imposing a penalty, whilst to “penalise” means to subject to a disadvantage. Some examples from case law of what this means in practice are

• refusing to allow union representation at a grievance hearing

• withholding a pay rise to an employee in one union which is given to other employees in another union where the same work is being done

• preventing an employee from calling in a trade union official in connection with a dispute about the contents of the employee’s terms and conditions.

Time-off Rights

Time-off Rights

The Advisory, Conciliation and Arbitration Service (ACAS) has produced a Code of Practice on Time Off for Trade Union Duties and Activities which gives practical advice on what are trade union activities and duties, when time-off should be given, what is a reasonable period of time-off and how it should be given.

These rights only apply where the Union is recognised by a company, including where a company has had to recognise a shop steward under the industry’s Disputes Procedure. Examples of when ordinary trade union members should have time-off without pay are

• attending workplace meetings to discuss and vote on the outcome of negotiations with the employer

• meeting full-time officials to discuss issues relevant to the workplace • voting in union elections.

Examples of when shop stewards should have time-off with pay are:

• To take part in negotiations with their employer

• To discuss on behalf of their constituents any matter to do with terms and conditions of employment and allocation of work activities

• To attend an Industrial Tribunal on an employee’s behalf

• To attend training courses to help carry out their Trade Union Officer duties effectively.

Published: 03 Jun 2011

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