Statutory trade union recognition procedure comes into force

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On 6 June 2000, a new statutory procedure came into effect in the UK, through which trade unions can seek recognition from employers for collective bargaining purposes. This feature outlines the main elements of the legislation and discusses its likely impact.

The statutory trade union recognition provisions of the Employment Relations Act 1999 (UK9903189F) were brought into effect by the government on 6 June 2000. The new legislation provides that, where a union claim for recognition for collective bargaining purposes cannot be resolved bilaterally with the employer concerned, the union may refer the matter to the Central Arbitration Committee (CAC) for determination. The CAC is a statutory body organised on a "tripartite" basis with a chair (currently a High Court judge, Sir Michael Burton) and a number of deputy chairs who are academics or lawyers, and two groups of members with experience as employer or worker representatives respectively. The role of the CAC is to determine the scope of the bargaining unit (unless this has already been agreed by the parties), and to declare whether the union should be recognised on the basis that a majority of the workers concerned are members of the union or that a (qualified) majority support recognition in a ballot. A panel of three CAC members – one from each category – will be convened to deal with each application.

Key points of the new legislation

The statutory procedure may only be used in respect of employers with at least 21 employees. In making an application to the CAC, the union must show that it has at least 10% membership within the proposed bargaining unit and that a majority of workers in the proposed bargaining unit are likely to favour recognition. Joint applications by two or more unions are permissible if they show that the unions will cooperate effectively and, if the employer wishes, conduct single-table bargaining. However, the CAC is precluded from processing competing applications.

Disagreements between employers and unions on scope of the proposed bargaining unit will be determined by the CAC, taking account of a range of factors and subject to the overriding need for it to be "compatible with effective management".

The CAC will then decide whether a ballot is needed. If the CAC is satisfied that a majority of the workers in the bargaining unit belong to the union making the application, it will issue a declaration of recognition without a ballot unless it considers holding a ballot would be "in the interests of good industrial relations" or if there are doubts whether a significant number of union members want the union to bargain on their behalf. Where there is less than 50% membership in the bargaining unit, the CAC is required to order a secret ballot, to be conducted by a qualified independent person.

If a majority of the workers voting and at least 40% of those eligible to vote support the union in a ballot, the CAC must issue a declaration that the union is recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.

Where recognition is awarded, the union and the employer have a period of 30 working days within which to agree a method by which they will conduct collective bargaining. If the parties fail to do so, the CAC will specify the method by which they will conduct collective bargaining. This will have effect as if it were a legally binding contract between the parties and will be enforceable via the courts. The Trade Union Recognition (Method of Collective Bargaining) Order 2000 sets out a government-specified bargaining method, involving the establishment of joint negotiating body to negotiate the pay, hours and holidays of the workers comprising the bargaining unit, which the CAC must take into account – but may depart from as appropriate – in exercising its powers. Unions recognised in this way are also entitled to be consulted by the employer on training issues.

Provision is made for the CAC to order the variation of collective bargaining arrangements where the employer or union shows that the original bargaining unit is no longer appropriate as a result of a change in the organisation or structure of the business, a change in its activities or a substantial change in the number of workers in the original bargaining unit.

The 1999 Act also makes provision for the derecognition of unions recognised under the statutory procedure but only after a period of at least three years has elapsed following the CAC's original decision. Derecognition may be sanctioned by the CAC where the number of workers employed by the employer falls below 21 or where the majority of the bargaining unit support derecognition in an employer- or employee-initiated ballot.

The government has issued a code of practice setting out guidance on union access to workers during recognition and derecognition ballots. If an employer fails to allow reasonable access, the CAC may order the employer to remedy the failure. Non-compliance with such an order may result in the CAC declaring that the union is recognised – or is not derecognised – without a ballot.

Reaction to commencement of recognition provisions

In a statement marking the introduction of the recognition procedure, Department of Trade and Industry minister Alan Johnson said that the new legislation was "fair, workable and balanced", and would become an "accepted and enduring feature of [the UK's] employment relations system". However, the Conservative Party said a future Conservative government would repeal the legislation.

The general secretary of the Trades Union Congress (TUC), John Monks, said: "The main effect of this new law is to encourage more voluntary [recognition] deals. Only a small minority of employers are now hostile to unions in principle; most recognise that modern unions want partnership, not needless conflict. But this law is needed to deal with those employers stuck in the 1980s or trying to bring US-style union busting to Britain." The Confederation of British Industry"disagree[d] in principle with statutory trade union recognition" and, although successful in influencing the details of the legislation, continues to have major misgivings about its likely impact.

Commentary

The coming months will reveal the extent to which unions make use of the new procedure – and how successfully. While it is impossible to predict the number of recognition applications likely to be made, an initial government estimate for planning purposes was that there were likely to be between 100 and 150 references to the CAC per year. Certainly the CAC, which in recent years has had a very low profile, can expect greater prominence and a considerably higher caseload as a result of the recognition legislation.

As at mid-July 2000, only two recognition applications had been submitted to the CAC. Indeed, it is likely that unions will at first be cautious about using the statutory procedure. Unions will initially want to put "strong" cases through the procedure, ie those where a substantial majority of the employees concerned are in membership or where the union is confident of clear and solid majority support for recognition, in order to avoid embarrassing early defeats and establish a track-record of successful applications. Moreover, the consequence of obtaining an adverse result is that the union is barred from bringing a further recognition claim for the same or a similar bargaining unit for three years.

However, the recognition provisions, which reached the statute book in July 1999 but have only now become operational, are widely credited by trade unions and industrial relations analysts as having creating a more favourable organising climate for unions. The TUC has reported a significant rise in recognition deals ahead of the legislation. This is confirmed by research presented to the British Universities Industrial Relations Association in July 2000 by Gregor Gall (University of Stirling) and Sonia McKay (Labour Research Department), who found that 267 recognition agreements were signed in 1999, compared with between 85 and 104 in each the previous four years.

At the same time, it is apparent that at least some employers are gearing up to resist the statutory imposition of union recognition. Recent press reports suggest that US-based "union-busting" consultants already have clients in the UK who they are providing with specialist advice and assistance on union avoidance strategies. It remains to be seen whether the similarities between the UK recognition provisions and the statutory recognition procedure that has existed in America since 1935 mean that such organisations will find a ready market among UK companies for the anti-union campaigning techniques which are widespread in union "certification" (and "decertification") elections in the USA. (Mark Hall, IRRU)

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