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Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Recognition - overviewListing and independence
One of the functions of the Certification Officer is to maintain a list of trade unions. An organisation of workers may apply to the Certification Officer to have its name entered on the list of trade unions. If it complies with the various requirements, then its name will be added to the list. Conversely, if an organisation already on the list appears not to be a trade union, its name may be removed.
Many of the statutory provisions relating to trade unions only apply to a trade union that is ‘independent’. In this context, independence means, in effect, that it is able to act independently of any employer. A trade union which is already on the list of trade unions may apply to the Certification Officer for a certificate that it is independent, which can then be used as proof that it is independent.
For further information, see Trade union listing and independence.
The right to be recognised
An employer may 'recognise' a trade union for a number of different purposes, and at one of a number of different ‘levels’. The highest level is recognition for the purposes of negotiation so as to reach bilateral agreement between the employer and the union. This is usually referred to as recognition for collective bargaining.
For further information, see Trade union recognition.
Voluntary recognition where no request for statutory recognition
An employer and a trade union are at liberty to agree voluntarily that the union is to be recognised for all manner of possible purposes. However, it is only where there is voluntary recognition for the purpose of collective bargaining in relation to a number of specified matters that various statutory recognition rights will arise.
In this context, collective bargaining is defined by statute to mean negotiations relating to, or connected with, one or more of a number of work-related matters, including terms and conditions of employment and disciplinary matters.
Where recognition is voluntary in the true sense, an employer may change its mind and withdraw its voluntary recognition at any time.
Initial request procedure for statutory recognition
A trade union may commence a statutory procedure, with the aim of gaining statutory recognition by an employer, in certain specified circumstances. The statutory recognition process is complex. It is commenced by the union making a request to the employer for recognition for the purpose of collective bargaining.
The definition of collective bargaining in the context of the statutory recognition procedures is more restricted than in other contexts. Collective bargaining is here defined primarily as negotiations relating to pay, hours and holidays, but also includes negotiations relating to any other matters that are agreed at any time by the employer and union as also being the subject of collective bargaining.
There are various requirements for a request for recognition to be valid. These include requirements that the employer in question employs a specified minimum number of workers, and that the union making the request is certified as independent. The request must also propose a particular bargaining unit of workers in respect of which the union wishes to be recognised for collective bargaining purposes.
The aim of the initial request procedure is to enable and encourage the employer and union to agree recognition for collective bargaining purposes, following negotiation and with the assistance of Acas if necessary. If the employer and union reach agreement, then the union is deemed to be recognised. If no agreement is reached, the union may refer the matter to the CAC.
Reference to Central Arbitration Committee
Where the union refers its request for recognition to the CAC, it will ask the CAC to decide statutory questions, namely whether the proposed bargaining unit is appropriate, and whether the union has the support of a majority of the workers constituting the appropriate bargaining unit.
The CAC must first decide whether the application is valid and admissible, according to various validity and admissibility criteria. For example, an application will be inadmissible unless the CAC decides that members of the union constitute at least 10% of the workers in the relevant bargaining unit, and that a majority of workers in the bargaining unit would be likely to favour recognition of the union for collective bargaining on their behalf: this is often referred to as ‘the 10% test’.
Once the CAC has accepted an application as being valid and admissible, it must then try to help the parties to reach agreement as to the appropriate bargaining unit. Where the parties cannot agree, the CAC must decide whether the bargaining unit proposed in the union’s initial request is appropriate and, if not, it must devise a different unit that is.
Once the CAC has accepted an application as valid and admissible, and the appropriate bargaining unit has been agreed by the parties, or decided by the CAC, the CAC must proceed with the application for statutory recognition.
If the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union that made the request for recognition, then, unless one of three specified qualifying conditions is fulfilled, the CAC must issue a declaration that the union is recognised as entitled to conduct collective bargaining on behalf of the workers in the bargaining unit.
However, where the CAC is not satisfied that a majority of the workers constituting the bargaining unit are members of the union, or where one of the three specified qualifying conditions is fulfilled, instead of making a declaration of recognition, the CAC must give notice that it intends to arrange for a secret ballot to be held, in which the workers in the bargaining unit will be asked whether they want the union to conduct collective bargaining on their behalf.
Once the CAC has given notice of its intention to hold a secret ballot, a ballot must be held, unless the union, or the union and the employer jointly, notify the CAC that a ballot is not wanted.
Where a ballot is to be held, various duties arise in respect of the employer and the union, including a duty on the employer to co-operate, in connection with the ballot, with the union and the qualified independent person who will conduct the ballot, and a duty on both parties not to use any unfair practice to influence the result of the recognition ballot.
Once a recognition ballot has been held, the CAC must inform the employer and the union of the result as soon as reasonably practicable. If the result is that 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 of the bargaining unit. If there is any other result, then the CAC must issue a declaration that the union is not entitled to be recognised for collective bargaining purposes in respect of the bargaining unit.
For further information, see Reference to Central Arbitration Committee.
Agreeing a method for collective bargaining
Once the CAC has issued a declaration of recognition, the parties are given time to negotiate an agreed method by which they will conduct collective bargaining. If the parties are unable to agree a method for collective bargaining, or if they do agree but then fail to carry out the agreed method, then the employer or the union may apply to the CAC for assistance. The CAC must then try to help the parties to agree a method for collective bargaining.
If the parties are still unable to agree a method for collective bargaining following assistance from the CAC, the CAC must specify to the parties what method they are to adopt.
Voluntary recognition following request for statutory recognition
The statutory recognition provisions also cater for situations where the statutory recognition procedure has been commenced by the union making an initial request for recognition and, either in response to the initial request, or at some later stage before the statutory procedure has been exhausted, the parties reach agreement that the union is to be recognised for the purposes of collective bargaining. Such an agreement is referred to as ‘an agreement for recognition’.
Changes and derecognition
Changes affecting the bargaining unit where the CAC has made a formal statutory declaration of recognition, and where there are provisions in place relating to a method for collective bargaining, are covered by specific statutory procedures.
Where the employer or the union believes that the original bargaining unit is no longer an appropriate bargaining unit, application may be made to the CAC for a decision as to what is an appropriate bargaining unit.
Similarly, there is a procedure to be followed where the employer believes that the original bargaining unit has ceased to exist, and wishes the bargaining arrangements to cease to have effect.
There are also detailed statutory provisions relating to the derecognition of a union for the purposes of collective bargaining, in certain specified circumstances.
For further information, please see Trade union recognition changes and derecognition.
The rights conferred by recognition
A number of specific rights are conferred on an independent trade union once it has been recognised by a relevant employer. Most of these are conferred whether the union’s recognition is statutory or voluntary.
The rights conferred on an independent and recognised trade union include the following:
the right to disclosure of information by the employer for the purposes of collective bargaining
the right for union officials, learning representatives of the union, and other union members, to take time off work for trade union duties and/or activities
Where a trade union has statutory (but not voluntary) recognition, it may also be entitled to be consulted by the employer about certain matters relating to training of workers.
For further information, please see The rights conferred by trade union recognition.
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