Legal Article - Employment Law

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.

Published: 03 Jun 2011

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