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FAIRNESS
AT WORK
ANNEX I
A
Statutory Procedure for Trade Union Recognition
The
procedure for obtaining recognition
(i) An
independent trade union, or group of two or more independent unions
acting jointly, which wishes to be recognised in a business with
more than 20 employees will submit a formal request to the employer,
in writing, specifying the group of employees on behalf of whom
it is seeking recognition (’the bargaining unit’). (For
simplicity the following description refers to a single union,
but such references should be read as covering two or more unions
acting jointly.) Employers will remain free to recognise voluntarily
unions which do not hold a certificate of independence, and existing
recognition of such unions can continue, but non-independent unions
may not invoke the statutory procedure to obtain recognition.
(ii) The
employer will have 14 days from the receipt of the request to
respond; if the employer agrees to the request then the formal
procedure will be closed; if the employer, while not accepting
the request, for example because he does not agree that the group
of employees proposed by the union is an appropriate bargaining
unit, is willing to negotiate with the union, then the employer
and union will have at least 28 days in which to try to reach
an agreement. If both parties consent, they may invite ACAS to
assist them in reaching an agreement. They may continue to negotiate
for as long as both sides are willing.
(iii) If
the employer does not respond to the union request within 14 days,
or if he rejects it and refuses to negotiate, the union may, at
the end of that period, make an immediate application for the
Central Arbitration Committee:
- to determine
whether the bargaining unit proposed by the union is appropriate,
and if not, to specify what would be an appropriate bargaining
unit; and/or
- to determine
whether the union has the support of a majority of the employees
in the appropriate bargaining unit.
The CAC,
having received an eligible application, will first examine whether
there is prima facie evidence that the union enjoys a reasonable
level of support such as to make it likely that there could be
a majority in favour of union recognition in the bargaining unit.
Evidence of reasonable support might take the form of membership
records or a petition signed by a sufficient number of employees.
The employer too may submit evidence. If the CAC is not satisfied
that the union has sufficient support, it will not proceed with
the application. In consultation with interested parties, the
Government will draw up guidance for the CAC on how reasonable
support should be defined.
(iv) A
union may also make an application for the CAC to determine either
or both of the above questions if the employer and union have
been unable to agree on one or both issues and at least 28 days
have elapsed since the employer first responded to the union’s
request. However, the CAC will not entertain an application if,
within 14 days of responding to the union’s request, the
employer proposed, without conditions, that the parties seek the
assistance of ACAS but the union refused. Nor will the CAC entertain
an application if it has evidence that another trade union is
already recognised in respect of some or all of the employees
concerned. In the event that two or more unions separately make
applications with reasonable support in respect of the same group
or overlapping groups of employees, the CAC will cease all work
on those applications.
As indicated
above, two or more unions may combine to seek joint recognition
in respect of a group of employees, and may, if necessary, submit
a joint application to the CAC. Where competing or overlapping
applications have been made, they may be withdrawn, whereupon
a single union or two or more acting jointly may recommence the
procedure for recognition by making a single request for recognition.
The TUC may attempt to resolve disputes between its affiliates
but this will not be part of the statutory procedure.
(v) Where
the CAC decides to proceed with an application, it will first
try to broker an agreement between the employer and union, allowing
up to 28 days for this stage; if at the end of that period the
employer and union remain at odds over whether the bargaining
unit proposed by the union is appropriate, the CAC will, normally
within seven days, determine the appropriate bargaining unit(s).
In doing so, the CAC should take particular account of the bargaining
unit’s compatibility with the need for effective management,
as well as:
- the views
of the employer and of the union;
- any existing
national or local bargaining arrangements;
- the desirability
as a general rule of avoiding small, fragmented bargaining units
within an undertaking;
- the characteristics
of the employees in the bargaining group proposed by the union
and of any other of the employer’s employees whom the CAC
consider relevant; and
- the location
of employees.
The CAC may
decide that the appropriate bargaining unit is that proposed by
the union, a group proposed by the employer, or a different group
identified by the CAC (which might be the whole of the employer’s
workforce or any smaller group).
If the CAC
decides on a different bargaining unit to that proposed by the
union, it will be able to reject any application if the union
cannot show a reasonable level of support for recognition in that
unit (see (iii) above). The union itself may feel it has no chance
of success in a ballot, and should therefore be able to withdraw
its application at any time. Equally, if the employer drops his
objections to the union application, the parties should be able
to reach an agreed settlement and discontinue the procedure at
any time.
(vi) Once
the bargaining unit has been agreed, or decided by the CAC, the
employer may accept that the union enjoys the support of a majority
of the workforce. In this case the CAC will issue a declaration
that the union is recognised for the bargaining unit in question.
The CAC will also issue a declaration if it is satisfied, having
examined carefully suitable evidence from the union and, if he
wishes, from the employer, that more than 50% of the bargaining
unit are members of the union seeking recognition. Otherwise the
CAC will arrange for a secret ballot of the bargaining unit to
be conducted by an independent body which is qualified to act
as a scrutineer in industrial action ballots. The ballot will
normally be carried out within 21 days of the determination of
the bargaining unit. During that period, the employer will grant
the union reasonable access to the employees to be balloted. The
Government is minded to ask ACAS to draw up a statutory Code of
Practice to help employers and unions understand what reasonable
access means in practice. Employees who campaign for or against
recognition or union membership will be protected against dismissal
or action short of dismissal. If the scrutineer is satisfied,
for example after consulting the employer and the union, that
there is no risk of improper interference, the ballot may be conducted
at the workplace. Otherwise it will be a postal ballot with voting
papers sent to employees’ home addresses. The employer will
be under a legal duty to co-operate with both the body conducting
the ballot and the trade union, to provide both with the names
and, if the ballot is postal, addresses of the employees to be
balloted. As far as is reasonably practicable, every member of
the bargaining unit agreed or decided by the CAC will be entitled
and able to vote, but nobody else. The cost of the ballot will
be shared equally between the employer and the union.
(vii) The
body conducting the ballot will notify the result to the CAC,
the employer and the union. The CAC will issue a declaration that
the union is to be recognised for the bargaining unit agreed or
decided by the CAC provided that a majority of those voting and
at least 40% of those eligible to vote have supported recognition.
Otherwise it will issue a declaration that the union is not recognised.
The
consequences of recognition
(viii) Where
a union has achieved recognition through this procedure (because
the employer has agreed to recognition - see step (ii) above,
or following the involvement of ACAS and/or the CAC), the employer
and the union must try to reach a procedure agreement to give
effect to recognition and set out how they will conduct collective
bargaining. If both parties consent, they may invite ACAS to assist
them. Such an agreement may, if the parties wish and so indicate
in the agreement, be legally binding (as is the case under the
existing law), and could then be enforced through the courts.
However,
if, after three months from the date of the employer’s agreement
to recognition or the CAC declaration, as the case may be, no
agreement has been reached, the union may apply to the CAC to
have a default procedure agreement applied (though again negotiations
can be extended if both sides agree). The CAC will first try to
broker an agreement between the employer and the union. If at
the end of a period which it considers reasonable in the circumstances
the CAC has been unable to reach an agreement with the parties,
it may impose a collective bargaining procedure which will be
legally binding on both parties. The procedure will be based on
a model laid down in legislation and drawn up with the advice
of ACAS, with such amendments as the CAC considers desirable in
the specific circumstances. It will provide for collective bargaining
to cover pay, hours and holidays as a minimum. There are conflicting
views on whether training should also be included. The Government
would welcome responses on this point. The parties may add other
items if they wish.
The terms
of agreements resulting from collective bargaining are normally
incorporated into individual employees’ contracts either
explicitly or by custom and practice and thus set the minimum
terms and conditions for all employees in the bargaining unit.
Under the existing law an employer and employee can agree different
terms if they wish. Since the current law allows flexibility and
works well, the Government sees no reason to change it.
Enforcement
(ix) Since the procedure will be legally binding,
by way of a deemed contract between employer and union, either party
will be able to apply to a court if it believes the other is in
breach of the procedure. A court could make an order for specific
performance. Failure to comply with such an order could be a contempt
of court.
(x) An
independent union or an employer may also apply to the CAC in
order to have the default procedure applied if it considers that
the other party is not honouring the terms of a recognition agreement
which is not legally binding, whether negotiated before the procedure
came into force, outside this procedure or following a CAC recognition
declaration. On receipt of such an application the CAC will notify
the employer and allow the parties one month to try to reach an
agreement. If they fail to do so, the CAC will impose a legally
binding collective bargaining procedure in the same way as in
the second paragraph of (viii).
Derecognition
(xi) There will be a broadly similar procedure
for resolving disputes where an employer seeks to derecognise a
union because he believes the majority of the bargaining unit no
longer supports recognition. The Government invites views on how
and in what circumstances this procedure should apply.
Renewed
applications for recognition or derecognition
(xii) Where a union has unsuccessfully applied
for recognition for a group of employees, the CAC will not entertain
a new application by that union for recognition in respect of the
same or substantially the same group within a period of three years
from the date of the declaration on the first application. Similarly,
the CAC will not entertain an application for derecognition within
three years of either a recognition declaration or an unsuccessful
request for derecognition.
Changing
the bargaining unit
(xiii) There may be circumstances, eg following business
restructuring, take-over, divestment, merger of unions, where it
is appropriate for the bargaining unit to be changed. The law will
need to make allowance for this. If, following a change in circumstances
which affects the relevance of the bargaining unit, the employer
and the union are unable to agree on whether the bargaining unit
for which the union is recognised should change, either may apply
to the CAC for a fresh determination of the bargaining unit. If
the CAC determines that the bargaining unit should include employees
who were not previously part of it, the employer may seek to invoke
the derecognition procedure, in which case the normal procedure
will apply. In all other circumstances the existing recognition
arrangements will apply to the new bargaining unit subject to any
modifications agreed between the employer and the union or judged
appropriate by the CAC where it has applied a default procedure.
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