Trade Union Recognition

Nobody could have failed to notice the activity of trade unions over the past few months. The most recent high profile example being the failed strike action by BA cabin crew organised by the trade union Unite.

Recession is a time when trade unions gather strength and momentum. As employers look to save costs, modernise and rationalise processes to compete or survive, employees tend to get more disgruntled. This is when trade unions may pounce.

Most organisations employ individuals who are trade union members, but it is when trade unions are recognised that their influence can become more powerful. Many organisations which recognise trade unions will say that they have a perfectly manageable relationship, but there are others who don’t seem to have that luxury. BA and Unite appear to be an example of the latter.

Most organisations that don’t already recognise trade unions are very reluctant to accept the idea of trade union recognition. Employers are therefore often faced with the prospect of compulsory recognition, rather than voluntary recognition, and whilst recognised trade unions are relevant mostly to larger organisations, it is important to remember that they can also have an influence on SMEs.

A trade union that is recognised either voluntarily or compulsorily (under Part I of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act “TULRCA” 1992) has the power to conduct collective bargaining on behalf of its “bargaining unit” (see below) in relation to pay, hours, holiday entitlement etc. The recognised trade union will be taken seriously by the employer in negotiations because it can also organise strike action. This strike action will, if conducted within the strict requirements of the legislation, give those trade union members a certain level of protection against disciplinary action that could otherwise be brought by the employer.

The first requirement to ensure that the industrial action is protected is a valid trade dispute. The second is that a secret postal ballot is held amongst all the trade union members. In the recent failed strike action by Unite on behalf of BA cabin crew, the trade union failed to comply with the second requirement as they sent the ballot papers out to non (old) trade union members as well as the current membership. This meant that the resulting strike action was not protected and therefore did not go ahead.

As long as the trade union can comply with the relevant legislation to ensure that its industrial action is protected, it can put an employer under a great deal of pressure that a group of disparate employees simply could not impose without profound disciplinary ramifications.

So how will you know when compulsory recognition is coming, and what rights and obligations do you have? The first time you are likely to hear about this is when a trade union makes a recognition request. The request will contain details of the group which the trade union wants to represent (the “bargaining unit”) along with confirmation that most of the employees in the bargaining unit are in favour.

It is important to note that during the process of attempting to achieve recognition, any associated employees are protected (under TULRCA) from any related detrimental treatment or dismissal by the employer.

At this point you can either accept the request, reject it entirely, or negotiate on the details. If you accept it, the union will become recognised and the recognition process will be complete.

If negotiation is required, then there is a short period of time within which to do this, note that Acas can assist with negotiations.

If the request is rejected or agreement through negotiation cannot be reached, the trade union is entitled to seek statutory recognition from the Central Arbitration Committee (CAC). The CAC has the power to both grant and remove recognised status.

The CAC will ensure that the correct process has been followed. They will need to be satisfied that the proposed bargaining unit is appropriate; that 10% of that bargaining unit are members of the trade union; and that the majority of the bargaining unit would be likely to favour recognition of the trade union. They will then ask the employer to respond to the application. Once this process has been followed the CAC will then make a decision. If they agree to recognise the union, the union will have the right to conduct collective bargaining on behalf of employees in relation to pay; hours; holiday; etc.

In practice, the only way to avoid trade union recognition is to set up an alternative employee consultation group, so that the employees don’t feel they need the union in the first place.

Published 24/12/2009. The author of this article is Matthew Huddleson