Under the statutory recognition procedures in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A), the Central Arbitration Committee (CAC) can order a ballot and issue a declaration of recognition (or non-recognition).

In R (on the application of Ultraframe (UK) Ltd) v Central Arbitratation Committee (2005, IRLR 641), the Court of Appeal has now said that the CAC also has the right to investigate and re-run a ballot that turns out to be unreliable.

 

What were the basic facts?

Two trade unions applied to the CAC for recognition at Ultraframe UK Ltd. The CAC was not convinced that the unions had enough members, and held a secret ballot of the workers constituting the bargaining unit.

The ballot showed a majority of workers voting were in favour of recognition, but they were four votes short of the necessary 40 per cent of the bargaining unit (see box below). The unions complained to the CAC that some of their members had not received ballot papers. The CAC agreed and ordered the ballot to be re-run.

 

What did ultraframe argue at the High Court?

Ultraframe argued that the CAC had no power to order a re-run and applied to the High Court for a judicial review.

The judge agreed and said that the CAC only had the right to "arrange" for the ballot to be held by a qualified independent person (QIP), and then act on the result of the ballot as required by paragraph 29 (see box).

The High Court said that the CAC had no power to act as it did and that it was obliged to act on the QIP's figures "as delivered to it even if it had incontrovertible evidence that they had been produced by mistake, or even by fraud."

 

What did the Court of Appeal decide?

Fortunately, the Court of Appeal disagreed. It said that the CAC's duty is "stated in emphatic terms" in paragraph 29 to emphasise that the CAC has to treat the ballot as definitive and not merely consultative.

That did not mean, however, that "Parliament has deprived the CAC of any power to investigate, and if needs be to decline to act upon, a ballot that it thinks or knows to be unreliable as an answer to the question posed by it...And the answer that would have to be given to a party aggrieved by the conduct of the ballot, be they employer or worker, that all that they can do is to go off to court should be equally surprising."

The court said that this outcome could not have been what parliament intended. The High Court judge was therefore wrong and the CAC had the right to investigate and, when appropriate, to annul a ballot of workers about whether they wanted a union to bargain collectively for them.

 

PARAGRAPH 29, TULR(C)A

1) As soon as is reasonably practicable after the CAC is informed of the result of a ballot by the person conducting it, the CAC must act under this paragraph.
2) The CAC must inform the employer and the union or unions of the result of the ballot.
3) If the result is that the union is (or the unions are) supported by: (a) a majority of the workers voting, and (b) at least 40 per cent of the workers constituting the bargaining unit, the CAC must issue a declaration that the union is (or the unions are) recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.
4) If the result is otherwise the CAC must issue a declaration that the union is (or the unions are) not entitled to be so recognised.

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