R v Central Arbitration Committee ex parte Qwik-Fit (CA unreported)
In a landmark judgment, a decision from the CAC has been upheld in the first case on statutory recognition to reach the Court of Appeal. The Court of Appeal has overturned the High Court judgment in the judicial review case brought by Kwik-Fit Ltd against a CAC decision on the bargaining unit in a claim by the TGWU for recognition.
One of the key stages in an application to the CAC for statutory trade union recognition is deciding the bargaining unit. If the parties are unable to agree a bargaining unit for themselves, the CAC will decide it. The scope of the bargaining unit in turn determines the balloting constituency - only those in it can vote for or against recognition. So the precise delineation of the bargaining unit can be crucial as to whether a trade union can win a recognition ballot or show that 50% plus of the bargaining unit are trade union members and get recognition without a ballot.
So how does the CAC decide 'the appropriate bargaining unit' if the parties fail to agree? The law says that the CAC must take account of the need for the bargaining unit to be compatible with effective management taking into account a number of factors such as the views of the employer and of the union; existing bargaining arrangements; the characteristics and location of the workers (para 19(5)).
There are two big issues bound up in this decision making process - firstly what is really meant by appropriate - does it mean the best or most appropriate bargaining unit. Secondly, if 'appropriate' does not have to be the best bargaining unit, then obviously more than one unit could be appropriate - possibly the union's proposal, the company's suggestion and any one or more possible units thought up by the CAC. How should the CAC decide between them and does one pull rank over any other?
In this case the TGWU had proposed the bargaining unit should comprise Kwik-Fit employees in their London divisions. Kwik-Fit argued that a national bargaining unit was appropriate.
The CAC decided that their task was not to decide what bargaining unit would be the most effective form of management, but merely to ensure that what is decided is compatible with effective management. They considered that they should examine whether the union's proposed bargaining unit is found wanting and does conflict with effective management. On that basis, the CAC found the TGWU's proposed bargaining unit was appropriate.
Kwik-Fit won a judicial review against the CAC and got an order to stop the ballot taking place which has now been overturned by the Court of Appeal. The Court of Appeal have ruled that the CAC panel had acted entirely in accordance with the law. The CAC must start with the union's proposed bargaining unit and determine whether that unit was appropriate. The CAC is not excluded from considering other bargaining units, but it is a two stage process - to test the union's proposed unit in light of the company's argument that a different unit is appropriate, and only as an alternative if the CAC considers the union's proposal to be inappropriate. So the union and the employer's suggestions are not on an equal footing - the union's unit takes priority
To determine what is 'appropriate' the Court also said is a modest test and does not mean the optimal unit.