UK: Threatened By Trade Union Application For Recognition?

The Trade Union Labour Relations (Consolidation) Act 1992 ("the Act") provides a mechanism whereby an independent trade union can apply to the Central Arbitration Committee ("CAC"), provided that various conditions are satisfied, and force an employer to recognise the union for collective bargaining purposes. The union is required to specify the particular category (or categories) of workers (known as the "bargaining unit") in respect of whom it seeks to conduct collective bargaining with the employer.

The CAC recognition process is also of relevance to those organisations which have entered into voluntary recognition agreements with unions, since it may also be used in this context to extend the ambit of existing voluntary collective bargaining arrangements to include more fundamental, and emotive, issues such as workers' pay, hours and holidays.

In the majority of cases, the statutory recognition process is never completed, because instead the parties reach a voluntary arrangement regarding collective bargaining. A recent CAC case we dealt with in which we successfully defended a recognition application, serves as a good example of tactics which employers can use to block a recognition application. At the very least, these tactics can be used to forestall a union's push for recognition, and to provide a basis from which an employer may seek to negotiate a recognition agreement on more favourable terms.

Tactics which employers may consider in these circumstances include:

1. The use of an internal staff association (i.e. a body set up by the company to collect and represent the views of workers) to block a recognition application.

2. A publicity drive to raise awareness of the benefits of existing consultation arrangements, in an attempt to avoid the union showing majority support for recognition of that union.

3. Conducting a "beauty parade" of independent trade unions with a view to entering into a voluntary agreement with an alternative more moderate union, thereby blocking an attempt by a more hard-line union to seek recognition via the CAC.

4. A close review of the union's CAC application to ensure that it has complied with the complex mechanics and conditions of the statutory application procedure. Failure to comply with the various steps under this procedure could render the application inadmissible.

This article focuses on the first of these points.

A union's application for recognition will fail if the employer can show that there is already in force a collective agreement under which the employer conducts collective bargaining with a body representing some or all of those specified in the bargaining unit proposed by the union ("a Pre-Existing Agreement") - this is not to be confused with a pre-existing agreement for the purposes of the Information and Consultation with Employees Regulations 2004. Such a body can include an employer's internal staff association.

The requirements for a qualifying Pre-Existing Agreement are that:

1. The staff association must satisfy the definition of a "trade union" within the meaning of section 1 of the Act. This means that it must be "an organisation (whether temporary or permanent) which consists wholly or mainly of workers of one or more descriptions and whose principal purposes include the regulation of relations between [those] workers... and [the employer]". Most staff associations are capable of satisfying this definition. However, it is advisable to specify this aim of "regulating relations between workers and the employer" in the written rules or objects of the staff association. The contention that the staff association satisfies this definition can be bolstered by a successful application to the Certification Office for the association to be listed as a trade union.

2. There must actually be a collective agreement between the staff association and the employer. It is not, however, necessary that the agreement has been acted upon. It is advisable to have this agreement in writing and, depending on the employer's attitude to collective bargaining, a Pre-Existing Agreement can be drafted so as to be very limited in scope or it could form the basis of something more meaningful. As a minimum, a Pre-Existing Agreement must provide for collective bargaining in respect of one or more of the following (even to a limited extent):

(a) terms and conditions of employment or physical conditions in which workers are required to work;

(b) either engagement, non-engagement, termination, suspension of employment, or duties of employment of one or

more workers;

(c) allocation of work or the duties of employment between workers or groups of workers;

(d) matters of discipline;

(e) a worker's membership or non-membership of a trade union;

(f) facilities for officials of the staff association; and

(g) machinery for negotiation or consultation, and other procedures relating to any of (a) to (f). By way of illustration as to how low the threshold is for collective bargaining under a Pre-Existing Agreement, the CAC has found that a "partnership agreement" with a union - entitling it to limited representational rights at disciplinary and grievance hearings, which specifically excluded collective bargaining on terms and conditions of employment including pay - amounted to a Pre-Existing Agreement. In a more recent case, the CAC considered that an agreement with a staff association - entitling it to limited negotiation in respect of machinery for paying bonuses - amounted to collective bargaining under points (d) and (a) above respectively.

3. In order to be able to show collective bargaining in action it is key that there is negotiation between the staff association and the employer. It is necessary to show more than just consultation in respect of any one of (a) to (g) above. Again, evidence of negotiation is crucial. This could take the form of minutes taken of meetings between staff association representatives, and management from the company.

4. The collective agreement with the staff association must cover at least one worker in the bargaining unit proposed by the Trade Union making the CAC application. An employer could therefore either set up one Pre-Existing Agreement for the entire workforce (excluding management) or, alternatively, a number of similar agreements tailored to different parts of the business.

5. The agreement must be "in force". Again, evidence that the agreement is current, and not moribund, is required. Whilst meetings do not have to be held often, they should be regular, and minuted. For example, if the particular area of collective bargaining relates to the mechanics for the annual bonus scheme, then it would make sense to have meetings prior to the beginning of each bonus year, to determine the criteria (or other mechanisms) relating to the bonus for that year.

The establishment of a collective bargaining agreement with a staff association does not give immunity from further attempts by a trade union to seek recognition. However, it requires the union to overcome an additional hurdle because it must first obtain de-recognition of the staff association before making a further application to the CAC.

Key points to know about the CAC include:

• The CAC's role is not to impose alternative arrangements where an existing agreement for collective bargaining is in place, nor is it to judge the quality of existing arrangements.

• The CAC is relatively informal, and legal representation is not required, but it is still a court.

• The CAC is an evidence-based body, and will adopt an inquisitorial style approach. It is, therefore, advisable to ensure that any written submissions made by an employer defending a union's application for recognition are as full as possible. Whilst the CAC will permit elaboration by way of oral witness evidence at the CAC Hearing, it will usually not allow new points of evidence at this stage. With that in mind, it is important to ensure that those individuals with working knowledge and experience of the mechanics of collective bargaining between the staff association and the employer are available to attend any Hearing.

If employers believe that there is a risk that a CAC application will be made, and they would want to resist such an application, they are advised to explore possible steps that they could take - in particular, whether they should make arrangements for a qualifying Pre-Existing Agreement to be put in place sooner rather than later.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.