How can trade unions seek recognition and what can employers do to resist this?

In 1995 50% of employees in the UK transport industry were trade union members.  This is now down to below 35%.  Yet we are seeing an increase in efforts by trade unions to gain recognition in workplaces in the logistics and transport sectors. This is not just an issue for large employers.  Unions are trying to counter falling membership by pursuing recognition in small and medium sized businesses.

We consider in this article the ways in which a union can seek recognition and how this can be resisted by employers.

Recognition of trade unions

A trade union pursuing recognition is seeking the right to be recognised by the employer in respect of a specific group of employees (the “bargaining unit”), for the purposes of collective bargaining in relation to pay, hours and holidays.

If a union obtains recognition status it will also enjoy considerable statutory consultation rights on issues such as collective redundancies, business transfers, health and safety matters and changes to pension entitlements.

A trade union may seek recognition by either voluntary or statutory means.

Voluntary recognition

Trade union recognition for collective bargaining purposes can stem voluntarily by the employer agreeing to recognise the union. This means the union is recognised without the use of any legal procedures; this can have the advantage of providing enhanced flexibilities to both parties by avoiding having to use alternative (potentially complex) statutory recognition procedures. However, in order for the employer to have to consider recognition voluntarily, the union will have to show that they meet the statutory criteria for recognition and must have made a valid request for recognition.

Statutory recognition

If the employer refuses to voluntarily recognise the trade union, the trade union can make an application to the Central Arbitration Committee (CAC) for statutory recognition. Note, a statutory application can only apply where the employer employs 21 or more workers.

For an application to the CAC to be valid, the union must show:

• that at least 10% of the workers in the bargaining unit are members of the union; and
• that a majority of the workers in the bargaining unit are likely to be in favour of the union recognition. If the union cannot evidence this, the CAC may call for a ballot.

Once the application is made by the union, the employer has 10 working days to respond. If the employer chooses to agree to the request, they are deemed to have formally recognised the trade union for collective bargaining purposes. If the employer rejects the request or fails to respond in time, the union is entitled to be granted statutory recognition. The employer may alternatively decide that, although they do not accept the request, they are willing to negotiate. This then triggers a 20 working day period to agree a collective bargaining unit.

Once the CAC has accepted an application for recognition and the bargaining unit has been agreed, the CAC will consider whether a majority of the workers in the bargaining unit are members of the union, based on the best evidence available. If CAC is not satisfied that this is the case, it will notify the parties that it intends to arrange a ballot in order to ask the members of the bargaining unit whether they want the union to conduct collective bargaining on their behalf.

There are three qualifying conditions which means that a ballot must be held:

• if the CAC is satisfied that a ballot should be held in the interests of good industrial relations;
• if the CAC has credible evidence from a significant number of union members in the bargaining unit that they do not want the union to conduct bargaining on their behalf; or
• if membership evidence leads the CAC to doubt whether a significant number of the union members want the union to conduct collective bargaining on their behalf.

If the majority of the bargaining unit are union members, the burden of proof is on the employer to show that one of the qualifying conditions for the ballot is met.

If a ballot is due to take place, the employer must co-operate with the union and give them access to the workers in the bargaining unit. Both the employer and the union must refrain from using any unfair practice with a view to influencing the result of a ballot i.e., threatening dismissal or disciplinary action.

If the union is supported by a majority of the workers voting and at least 40% of the workers in the bargaining unit, the CAC must issue a declaration that the union is recognised as entitled to conduct collective bargaining on behalf on the workers in the bargaining unit. Otherwise, the CAC must issue a declaration that the union is not entitled to be recognised.

Employer tactics to avoid a successful union recognition application

1. Suggest the involvement of ACAS – The CAC is unable to accept a statutory application from the union if, following the union’s application, the employer suggests that Acas should be involved and the union refuses or does not respond. This could be a helpful tactic by the employer to ensure fairness and also opens the door to a potential rejection of the application by the CAC.
2. Consider challenging the constitution of the bargaining unit and/or suggest a larger unit – This is a common reason used by employers to reject trade union recognition applications.
3. If the collective bargaining unit is agreed, employers could consider exercising the right to show one of the three qualifying conditions for a ballot. This will allow them to exercise campaign techniques in a bid to prevent the application from being successful.
4. Campaign techniques – If the CAC decides a ballot should take place, the employer should consider using active campaigning techniques and perhaps hire a paid consultant to assist with the campaigning work.

If there is a genuine demand amongst part of your workforce for greater say over pay and condition, consider what other means of employee engagement can be established to meet this demand but without the formality of recognising a trade union.  One idea to consider is putting in place a ‘works council’ that can be informed and consulted about certain matters, as and when required by employer or employee.