Statutory right to union recognition (Clause 1 and Schedule 1)
This is the most controversial provision of the legislation, contained in a Schedule which takes up 25 pages of the Bill.
Written request - The procedure begins with the union making a written request for recognition, which identifies the proposed bargaining unit. This may be made by two or more unions acting jointly. The unions must have certificates of independence. The request is made to the Central Arbitration Committee (CAC). The CAC will not consider the request where another union is already recognised for workers in the bargaining unit.
Small employers - Small employers are excluded, so if the request relates to an employer who employs fewer than 21 employees (taking into account employees in associated companies) the CAC will reject the request.
First period - The next stage is the "first period" which lasts 10 days from the employer receiving the request. If the employer accepts the request, the union is recognised and the procedure ends. If the employer does not accept the request, but agrees to negotiate, there are 28 days for the employer to agree recognition in negotiations, failing which the union can refer the matter to the CAC. If the employer rejects the request or fails to reply, the union may refer the matter to the CAC.
Sufficient support - When the union refers the matter, the CAC must determine whether the union has sufficient support in the bargaining unit: the test for this is at least 10% of the proposed bargaining unit are members of the union and a majority of the proposed bargaining unit would be likely to favour recognition. A petition may count as evidence.
Bargaining unit - The CAC then has 28 days to get the union and employer to agree the bargaining unit. If there is no agreement, the CAC must decide the bargaining unit within 10 working days. The CAC's primary consideration is the need for the bargaining unit to be compatible with effective management, but it must also take into account (so far as they do not conflict with the primary consideration), the views of the union and employer; existing bargaining arrangements; desirability of avoiding small and fragmented bargaining units; characteristics and location of workers.
Determining recognition: majority support - Once the bargaining unit is decided (or agreed) the CAC must again assess whether the union is likely to have majority support.
Majority membership - If a majority of the bargaining unit are members of the union, the CAC may issue a declaration that the union is recognised for collective bargaining: but unlike the proposals in the White Paper, this is no longer automatic.
The CAC must order a ballot if it is satisfied that one of three conditions apply
- that it is in the interests of good industrial relations to hold a ballot
- that a significant number of union members in the bargaining unit inform the CAC that they do not want recognition
- that membership evidence is produced which leads the CAC to doubt whether a significant number want recognition.
This is one of the most controversial changes from the White Paper and one which opens up the most scope for challenge by employers. The Government is to keep this provision under review to check it does not undermine the operation of the recognition procedures.
Ballot - Where a majority of the bargaining unit are not members, or where the CAC orders a ballot, there is then a ballot. A scrutineer must be appointed and the ballot completed within 28 days. There are legal duties on the employer to co-operate with the ballot, provide lists of names and give the union access to campaign. The CAC must decide whether the ballot should be workplace or postal. The cost of the ballot is shared between the union and the employer.
To secure recognition, a union will need a vote in favour from a majority of those voting and 40% of those balloted.
Recognition granted - If a union is recognised after a declaration by the CAC or ballot, but cannot agree with the employer a method for conducting collective bargaining, either party can ask the CAC for assistance.
The CAC must allow 42 days for the parties to reach agreement, plus a further 42 days with the active assistance of the CAC. If agreement is not reached, the CAC determines a bargaining procedure. This will be legally enforceable, but can be enforced in the courts only by an order of specific performance. This is an order obliging the parties to comply with the procedure or face being in contempt of court.
Voluntary recognition - Where there is voluntary recognition with an employer with over 20 workers, a similar procedure applies for determining the method of collective bargaining when the parties cannot agree.
Derecognition: principles - The Bill provides procedures for recognition which are essentially a mirror image of the recognition procedures. An application for derecognition cannot be made within three years of recognition being granted. The procedure applies where recognition was ordered or the CAC determined the method of bargaining.
Derecognition: fewer than 21 workers - If there are fewer than 21 workers employed by the employer (including those with associated employers) more than three years after recognition was awarded, the employer can apply to the CAC to derecognise. If the CAC agrees that the number has fallen below 21, derecognition will be ordered.
Derecognition: ballot - Where three years have elapsed since an order for recognition, an employer may request that the union agrees to end recognition. If agreement is not reached on this, there is a procedure for the employer to apply for a ballot where the CAC is satisfied there is sufficient support for a ballot to make an application for derecognition worthwhile.
An individual worker may make an application on the same basis.
Where the CAC is satisfied there is sufficient support, it will order a ballot. There are similar duties to co-operate and provide information and access. Derecognition will only be ordered where there is the support of the majority of those voting and 40% of those entitled to vote.
Derecognition: where recognition automatic - Where recognition was granted under the automatic procedure on the grounds of majority membership, an employer will not be able to initiate a derecognition ballot where a majority of the bargaining unit remain in membership.
Non-independent unions - Unions will be able to apply for a ballot to derecognise a union which is recognised by an employer, but does not have a certificate of independence. An application cannot be made within three years of an agreement for recognition. An application under this procedure would be a necessary prelude to an independent union applying for recognition covering the same bargaining unit.
Detriment and dismissal - The provisions on protection against detriment and dismissal for recognition reasons are covered earlier in this document.