Under the Employment Relations Act 1999, trade unions can apply to the Central Arbitration Committee (CAC) for recognition if they cannot reach a voluntary agreement with the employer.
In NUJ v Central Arbitration Committee and MGN Limited (2006, IRLR 53), the Court of Appeal said that the CAC was right to rule an NUJ application inadmissible, despite the fact that it had the support of a majority of the members of the bargaining unit.
The NUJ instructed Thompsons to act on its behalf.
What were the basic facts?
By June 2003, more than half the journalists in the sports division of Mirror Group Newspapers (MGN) were members of the NUJ, so the union approached management for recognition.
Some time after this, however, the British Association of Journalists (BAJ), which had, at most, one member in the division, also made an approach, and the employers signed a recognition agreement with them in July 2003.
The employers subsequently consulted the union on two occasions, but did not engage in any pay bargaining, nor was the mechanism for this set up.
In September 2003, the NUJ applied to the CAC for recognition, but as MGN had already come to an agreement with the BAJ, the arbitration committee said the NUJ's application was inadmissible.
What Did The High Court Decide?
And the High Court agreed (see LELR 96 for details). It said that the committee could not proceed with an application for recognition if another collective agreement was "already in force."
In this case, the High Court said that the agreement between MGN and the BAJ was clearly designed to be a recognition agreement and satisfied the requirements of the legislation. And because it was binding from the moment it was signed, it was therefore in force when the CAC considered the NUJ's application.
It also said that, although everyone has the right to freedom of association, that right could not be breached even if most of the workforce was 'shut out' from the collective bargaining process because the employer had recognised another union.
What Did The Court Of Appeal Decide?
The Court of Appeal said that the High Court was right, and that the NUJ's application was inadmissible because another collective agreement was in force.
It dismissed the union's argument that a collective agreement could not be in force if it had not been used to determine the terms and conditions of workers in the bargaining unit.
All that the CAC needed to look for "was an earnest desire to work within the agreement; not evidence that any of its specific provisions had in fact been carried out."
"In force" simply meant that, once signed, the agreement was binding on the parties to it.
The NUJ then argued that the refusal of MGN to negotiate with them constituted a breach of article 11 of the Human Rights Act - the right to join a trade union. The Court also dismissed this argument, saying that "the right to be recognised for the purposes of collective bargaining does not fall within the rights guaranteed by Article 11."
Nor, said the court, had the state discriminated against the union under Article 14 of the Human Rights Act by failing to take positive steps to stop the recognition legislation being abused by an employer.
Comment
The case highlights the loophole available to employers to reach sham agreements with unrepresentative "unions" in order to block the representative union's application for recognition. Despite the evidence that the BAJ had no more than one member in the bargaining unit and there had never been any negotiations with it, the NUJ was still not recognised.