Under the Employment Relations Act 1999 (updated in October 2004), trade unions can apply to the Central Arbitration Committee (CAC) for recognition if they cannot reach a voluntary agreement with the employer.
In Transport and General Workers Union v Asda (2004, IRLR 836) the CAC said that as another union was already recognised for collective bargaining, the TGWU's claim could not succeed.
What were the facts?
The TGWU applied to the CAC on 10 May 2004 for recognition within a bargaining unit consisting of 'warehouse operatives and drivers' at an Asda depot in Falkirk, Scotland.
The CAC gave both parties notice of receipt of the application on 13 May 2004. The company submitted an interim response on 17 May and its reply to the CAC's questionnaire on 20 May.
The union stated in its application that the employer had an understanding with the GMB union that was purely consultative and limited to representation rights in disciplinary and grievance matters. It did not provide for collective bargaining on any topic and was not a recognition agreement.
Asda, on the other hand, said that, although the partnership agreement (reached on 8 April 2004) did not cover pay, it made the TGWU's claim inadmissible because it covered other aspects of collective bargaining.
The union then said that at the time its recognition request was submitted to the employer, on 1 April 2004, there was no partnership agreement even in place. Asda said this was irrelevant and that, in any event, the partnership agreement had been clarified (on 28 May) to confirm that it provided for negotiation with the GMB on facilities relating to shop stewards.
What did the parties argue?
The union said that it had requested recognition on 8 March, 25 March and 1 April, and presented its application to the CAC on 10 May when there was no collective agreement in force. The union pointed out that although the partnership agreement mentioned collective representation, this was not the same as collective bargaining. The fact that the employer had amended the agreement after the union's application strengthened its argument that there was no collective agreement in force when it made its application to the CAC.
This was therefore the key date. To decide otherwise, it said, would allow 'unscrupulous employers to enter meaningless agreements and adopt tactics designed simply to circumvent a union's application'.
Asda, on the other hand, submitted that the relevant date could not be the date of the union's application as it had not submitted a response to the CAC at that point, which constituted a key part of the evidence it had to consider.
If the CAC did not agree with it on that point, it argued that at the time the union made its application, there was already a collective agreement in force. It included time off for trade union officials, the provision of relevant quality training for shop stewards, the selection and number of shop stewards, and issues relating to disciplinary and grievance procedures.
What did the CAC decide?
The CAC had to decide two things. First, did the partnership agreement between Asda and the GMB constitute a collective agreement? And, second, when did it come into force?
It decided that there was a collective agreement in force for two reasons. Firstly, that the 8 April partnership agreement referred to facilities for shop stewards and procedures for grievance and discipline. Secondly, it was part of a pre-existing stores agreement with the GMB covering 270 stores and 22 distribution depots in the UK.
Having decided that the 8 April agreement did constitute a collective agreement, it did not need to consider the issue of a relevant date.