The doom merchants who predicted that the revamped Central Arbitration Committee would collapse under the flood of cases have been proved wrong. Six months has now passed since the trade union recognition provisions in the Employment Relations Act 1999 came into force. By the end of December just 33 cases for recognition had been lodged with the CAC for bargaining units ranging from tens to thousands of workers. The TUC and most unions report that many employers are agreeing to voluntary recognition under threat of use of the legislative provisions - hence the low number of formal applications. And many of the cases lodged with the CAC have resulted in semi-voluntary agreements before the statutory procedure has been completed.

In this article we look at some of the cases the CAC has dealt with so far and the main issues to emerge. If it is the fear of CAC proceedings that is bringing employers to the bargaining table, how the statutory procedure is working in practice is crucial to the formation of voluntary agreements as well as the statutory process itself.

There are essentially five steps in the statutory procedure once an application has been lodged. The first is the acceptance stage - when the CAC applies the admissibility and validity tests. If the union passes the first stage, the CAC will go on to look at the bargaining unit if the parties cannot agree it between themselves. The cases so far have mainly concerned these two stages - by mid December there had been just one case on whether a secret ballot should be held where the union had more than half of the bargaining unit in membership. The CAC has not yet had to use its powers during a ballot or adjudicate on the method of collective bargaining to be used.

 

Acceptance

To accept an application, the CAC must apply some initial tests. Three of these have featured heavily in the cases so far - whether the union has members consisting of at least 10% of the proposed bargaining unit; whether a majority of workers in the proposed bargaining unit would be likely to favour recognition of the union for collective bargaining; and whether there is an existing, voluntary, recognition agreement with another union or even the one making the application.

By the end of December 2000 only, two cases failed to be accepted by the CAC (although a number of cases that looked likely to fail were withdrawn first). In both cases it was because of a pre-existing agreement with another union. The CAC will not get involved in inter-union disputes which are for the TUC to resolve. The CAC has no power to accept an application where another union is recognised, even if it is a non-independent union or a union with no, or minimal membership or support at the workplace. (There is one limited exception to this where a non-independent union has been de-recognised and re-recognised within three years). Where the agreement is with a sweetheart union one or more workers must apply under part 6 of the procedure in Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, for the sweetheart union to be de-recognised and then the independent union can start the recognition process.

In Prison Officers Association v Securicor the POA's application was not accepted because of an existing agreement with the Securicor Custodial Services Staff Association. The CAC panel held that the agreement with the non-independent staff association was in force and covered pay, hours and holiday. In this case the agreement with the staff association was in writing and the evidence was that it had operated continuously for some time. The staff association was listed with the Certification Officer as a non-independent trade union.

In ISTC v Award PLC, the application failed because the company had signed a recognition deal with the AEEU literally days before the ISTC lodged their application to the CAC.

It was feared by some that big disputes would arise over a union's assertion that ten per cent of the proposed bargaining unit was in membership and whether a majority favoured recognition. So far this has not happened. Unions have been relying on anonymised membership records information to show their levels of membership, and in some cases the CAC have conducted their own membership check. This has been done by comparing the list of names of union members given by the union in confidence to the CAC against the list of workers in the bargaining unit given in confidence by the employer. But in the cases so far the employers have not seriously challenged the authenticity of the union's membership figures.

Showing majority support for recognition has been achieved mainly by petitions in the workforce, signed statements of support and membership figures (where half or more of the proposed bargaining unit are members of the union seeking recognition). In one case, TGWU v Stadium Electrical Components Ltd, the employer sought to challenge the union's petition as they thought workers had signed it only after the union had misrepresented the company's position in their leaflets. The CAC panel rejected this argument and found that the union's newsletter did not detract from the significance of the petition which showed majority support for recognition. In Equity v New Millennium Experience Company the union relied on a straw poll of workers in the bargaining unit and the evidence of the union official who conducted the poll.

In ISTC v Fullarton Computer Industries Ltd the company argued that the union's membership had been temporarily inflated due to an aggressive recruitment campaign and a recent redundancy announcement. The CAC decided that the company's evidence did not detract from the clear statistical evidence of union support verified by the case manager.

Bargaining unit

If the union gets through the acceptance stage and if the parties are unable to agree, the CAC will determine the bargaining unit. There have been three contested hearings on the bargaining unit. In ISTC v Benteler Automotive Ltd it was decided in the union's favour - in other words the CAC supported the union view that the bargaining unit proposed by them was compatible with effective management and the union could proceed to the next stage. In the ISTC case, the union saw the bargaining unit as production operatives and material handlers. The company is a car parts manufacturer.

Management were arguing for a wider bargaining unit than the union - to include the whole company excluding only nine managers, or, as an alternative, all hourly paid workers which would include supervisory, control and administrative staff. The CAC panel supported the union's unit because it fitted with the reality of the existing management organisation and practice and current terms and conditions.

In GPMU v Red Letter Bradford Ltd the union argued for a bargaining unit of shopfloor members excluding managers and agency workers. The company wanted the entire workforce. The CAC panel accepted the union's proposed bargaining unit - it was clearly identifiable and operated elsewhere within the company and the industry generally.

In the other cases that have reached the bargaining unit stage there has been agreement - in MSF v Saudi Arabian Airlines the employer did not disagree with the union's proposed bargaining unit of the entire workforce excluding senior management.

In Equity v NMEC the employer agreed the proposal for all costume character hosts. In UNIFI v Union Bank of Nigeria at the hearing the union agreed to the exclusion of senior management from the bargaining unit.

Declaration of Recognition

The CAC has made a declaration of recognition in three cases - UNIFI v Union Bank of Nigeria, ISTC v Benteler Automotive Ltd, and GPMU v Statex Press (Northern) Ltd leaving only the method of collective bargaining to be resolved in those cases.

In MSF v Saudi Arabian Airlines a postal ballot is currently underway as the union did not have membership density of 50% plus in the bargaining unit decided. The outcome of the ballot will determine whether the union is recognised or not.

So although its early days for the CAC's recognition procedures, the cases are progressing fairly smoothly, largely within the timeframe laid out in the legislation with unions having a considerable degree of success. Time will tell whether the cumbersome procedures can withstand more sustained and aggressive resistance from recalcitrant employers, or if the pattern set by the early cases will remain the norm.