If a trade union has sufficient support amongst a company's workforce, it may be able to secure recognition from the company for collective bargaining purposes under a procedure set down in the Trade Union and Labour Relations (Consolidation) Act 1992. This procedure is extremely complex and a summary only is provided here. A flow diagram illustrating the operation of the procedure can be found at the end of this section. Companies that are facing a legal claim for recognition should contact their Association for advice.
The statutory procedure has been designed to encourage employers and unions to reach voluntary agreements on recognition wherever possible: employers and unions are provided with opportunities throughout the procedure to reach a voluntary agreement on recognition rather than move on to the next stage. If they wish, they can call on the services of the Advisory, Conciliation and Arbitration Service to help them reach agreement.
The procedure does not apply to small employers, that is, those that employ 20 or fewer people. In deciding whether a company meets this figure, the numbers employed by the company and by any associated employer are taken into account. (Employers are associated if one is a company controlled by the other or they are both companies controlled by another body, so companies within the same corporate group are likely to be associated.)
The first step in the statutory procedure is for the union to approach the employer formally, to ask for recognition. If the employer does not agree to recognition, the union can apply to a body called the Central Arbitration Committee (CAC) for it to decide whether the union should be recognised. The CAC will accept applications for recognition only from independent trade unions, that is, unions that are not under the employer's domination or control or liable to interference by the employer. Joint application from two or more unions will be considered, provided they can show that they will cooperate in the bargaining process and, if the employer wants it, that they will agree to single-table bargaining (one union or more? ).
The CAC will not accept an application for recognition if the employer already recognises a union in respect of any workers covered by the application. This ensures that established collective bargaining relationships with one union are not disrupted by an application for recognition by another union.
The CAC will consider a union's application for recognition only if it is satisfied that the union has reasonable support from the workers in the proposed bargaining unit. (The bargaining unit is the group of workers who are to be covered by the bargaining arrangements. If the union and employer have not agreed the unit, the CAC may have to decide what the appropriate unit is (see 'Defining the bargaining unit').) A union will be viewed as having reasonable support if at least 10 per cent of the workers in the bargaining unit are members of the union and the CAC thinks a majority of the workers in the unit are likely to favour recognition.
The CAC may receive competing applications from unions seeking to represent the same group of workers. If only one of the unions has at least 10 per cent of the workers as members, its application will be accepted. If both unions pass this test or neither one does, then neither application will be accepted. The unions then have the option of making a joint application if they wish.
If the employer does not agree to the union's proposed bargaining unit, the CAC will decide whether that unit is in fact appropriate. In reaching its decision, the CAC will apply certain criteria laid down in the legislation. The overriding criterion is that the unit must be compatible with effective management. Provided the proposed bargaining unit does not conflict with that criterion, the following factors will also be taken into account:
- the views of the employer and the union;
- existing national and local bargaining arrangements;
- the desirability of avoiding small, fragmented, bargaining units;
- the characteristics of the workers failing within the proposed unit and of any other employees the CAC considers relevant; and
- the location of workers.
If the CAC concludes that the union's proposed unit is appropriate, it will confirm it, even if it is not the best or most effective unit that could have been put forward. On the other hand, if the CAC concludes that the proposed unit is not appropriate, it will decide what unit is appropriate.
If it is satisfied that the majority of the workers in the bargaining unit are members of the union, the CAC will automatically grant recognition, unless one of the conditions requiring a ballot (see 'Ballot on recognition') applies. If the majority of the workers are not members of the union, a ballot will always be held.
If the majority of the workers in the proposed bargaining unit are not members of the union, the workers will be balloted for their views on whether the union should be recognised. Even if the majority of the workers are members, a ballot will be held if:
- the CAC considers that a ballot should be held in the interests of good industrial relations; or
- the CAC has evidence, which it considers to be credible, from a significant number of the union’s members in the bargaining unit that they do not want the union to bargain on their behalf; or
- evidence is produced on the length of time the workers in the unit have been union members, or on the circumstances in which they became members, that leads the CAC to doubt whether a significant number of union members want the union to bargain on their behalf. This might apply, for example, if new members were offered free membership as part of the union's campaign for recognition.
The ballot is conducted by an independent third party appointed by the CAC. It is a secret ballot, conducted at the workplace, or by post, or by a combination of those methods, as the CAC considers appropriate. The cost of the ballot is shared equally by the employer and the union.
The employer must co-operate generally with the ballot and provide the CAC with the names and home addresses of the workers in the proposed bargaining unit, so that these can be passed on to the person running the ballot. The employer must also allow the union reasonable access to the workers in the proposed bargaining unit, so that the union can let them know what the ballot is about and seek their support or their opinions. This may involve allowing the union to hold a private meeting with the workers, if the union requests one, to discuss the ballot and the issues involved. If such a meeting is held, the employer must not try to dissuade workers from attending it or penalise them if they do so, nor attempt to find out what went on at it.
Both the employer and the union are under a duty not to engage in unfair practices aimed at influencing the ballot result. This means, for example, that neither employer nor union must offer workers money or any other benefit to encourage them to vote in a particular way, or pressurise them to disclose how they intend to vote or have voted, or threaten them with any sanction. There is a Code of Practice on access and unfair practices during union recognition and derecognition ballots, which gives further detail and practical guidance on these duties.
If an employer refuses to co-operate with the ballot or either side engages in unfair practices, the CAC has a range of powers, including power to cancel the ballot, make the ballot result void, and order the employer to recognise the union.
If a majority of those voting in the ballot and at least 40 per cent of the workers in the unit vote in favour of recognition, then recognition will be ordered. For example, if the proposed bargaining unit contains 200 workers and 75 vote in favour of recognition and 50 against, recognition will not be awarded, as fewer than 40 per cent of the electorate voted in favour. On the other hand, if 85 vote in favour and 60 against, recognition will follow.
If recognition is awarded but the employer and the union are unable to reach agreement on how bargaining should be conducted, the CAC can impose a method. This will be based on the model method set out in the Trade Union Recognition (Method of Collective Bargaining) Order 2000. The model method requires the employer and union to establish a Joint Negotiating Body, made up of at least three employer representatives and at least three union representatives. The Body must negotiate at least annually on pay, hours and holidays.
If an employer refused to bargain in accordance with the imposed method, the union could apply to the court for an order that the company should comply with it. If the employer still failed to comply, it would be in contempt of court.
If a union achieves recognition under the statutory procedure, the company must negotiate on pay, hours and holidays. Negotiations can also extend to other matters if the employer and union agree that they should be covered. If a bargaining method has been imposed (method of bargaining ), the employer will also be required to consult with the union on training matters.
Once a collective agreement is reached, the legal effect it has depends on whether it is incorporated into individual employees' contracts of employment. The incorporation of collective agreements is discussed below (incorporation ).
If the union fails to secure recognition, it cannot apply again for the same bargaining unit for three years.
If a union has been recognised under the statutory procedure, there is a separate procedure by which the employer or one or more of the workers in the bargaining unit can apply to the CAC for the union to be derecognised. The application for derecognition cannot be made earlier than three years after recognition was awarded. The union will be de-recognised if a majority of those who vote and at least 40 per cent of the workers in the bargaining unit favour derecognition in a secret ballot.
If an employer recognises a union voluntarily, it is free to de-recognise the union whenever it wishes. Any employer that derecognises a union, whether under the statutory procedure or otherwise, should bear in mind that it is bound by the terms of any collective agreements that it reached with the union that have been incorporated into individual employees' contracts (incorporation ).
The legislation also lays down procedures that allow an employer to apply for the union to be derecognised if:
- the employer no longer employs more than 20 workers; or
- the bargaining unit no longer exists; or
- recognition was awarded without a ballot on the basis that 50 per cent of the workers in the unit were union members, but membership has now fallen below 50 per cent.
If the employer changes its structure, nature or size, the bargaining unit covered by the original recognition award may become inappropriate. The legislation therefore lays down a procedure whereby either the employer or the union can apply for the bargaining unit to be amended to reflect the changed circumstances.
It is automatically unfair for an employer to dismiss an employee or to select an employee for redundancy because he or she has supported or opposed the recognition or derecognition of a union under the statutory procedure. This protection applies regardless of the employee's age or length of service. It is also unlawful for an employer to put a worker under any other form of disadvantage on these grounds.
If an employee alleges that he or she has been dismissed for a reason relating to union recognition, an employment tribunal may order the employer to re-employ the individual pending the hearing of his or her claim (interim relief ).
