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 NUJ v Central Arbitration Committee & MGN Ltd, the High Court decided that the CAC was right to rule an NUJ application inadmissible, despite the fact that it had the support of a majority of the journalists in the bargaining unit.
The NUJ instructed Thompsons.
What were the facts in the case?
On 25 September 2003, the NUJ applied to the CAC for recognition for collective bargaining with Mirror Group Newspapers (MGN) for journalists employed in the sports division. It had the support (in the form of a petition) of about 100 of the 130 journalists involved.
MGN said that the British Association of Journalists (BAJ) was already recognised, although negotiations had only started in June (some time after the NUJ had approached the MGN management). The NUJ had no idea that the BAJ was also talking to MGN until there was a 'done deal' on 3 July.
The CAC decided, in December 2003, that the NUJ's application was inadmissible and confirmed this in March 2004. The NUJ applied to the High Court for a judicial review of that decision.
What did the parties argue at the hight court?
In the High Court, the NUJ argued that the collective agreement with the BAJ had no validity because it had never come into force. Nor could the union conduct negotiations 'on behalf of' any of the workers because it did not have the support of even a 'substantial' number of the journalists that it was supposed to be representing.
It said that the CAC decision violated the right to workers' freedom of association, which includes the right to be heard within the workplace. This individual right, said the NUJ, was breached by letting the employer decide which union to bargain with, and conversely by imposing a union on the workers about which they had not been consulted.
MGN, on the other hand, argued that the wishes of the workforce was irrelevant in relation to the question of whether a union is recognised or not. And it pointed out that once a union is recognised, certain statutory rights follow. If the NUJ's arguments were correct, these would not apply (contrary to the law for the last 30 years) until it was clear that the agreement had come into force or whether the union was representative of the potential membership.
In any event, MGN pointed out that the CAC had no mechanism to test the level of support for a union.
What did the high court decide?
Unfortunately, the High Court agreed with the CAC. 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 3 July 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 is not breached even if most of the workforce is 'shut out' from the collective bargaining process because the employer has recognised another union.
The CAC decision was, therefore, neither wrong in law, nor perverse. The result of this decision, however, as the court itself pointed out, is that a trade union with a substantial number of members can be prevented from bargaining on their behalf by an agreement between an employer and another union with very few members. This is surely an unjust conclusion for workers.