Fairness at Work White Paper, DTI May 1998 (Cm 3968)
In this article we highlight the key features of the Government's proposals on trade union recognition and other aspects of collective representation at work. We shall be submitting a formal response to the proposals.
The Statutory Recognition Procedure
It is the proposals on recognition which have attracted most interest. The Government wants the starting point to be voluntary agreements between unions and employers. Where an employer fails to give a positive response to a request for recognition within 14 days the union can activate the statutory procedure.
The procedure is to be administered and enforced by 'a re-structured and reinforced' Central Arbitration Committee ('CAC').
Multi-Union Claims and Inter-Union Disputes
The CAC will not deal with an application where another union is already recognised for the bargaining unit, nor where two or more unions make competing claims for recognition covering all or part of the same workforce. Any such disputes must be sorted out by the unions before an application is made.
The procedure will allow two or more unions to make joint applications and all the references below to support and majorities apply to the combined strength of the unions submitting the claim.
The CAC must first determine whether the union has 'reasonable support' among the employees for whom it is seeking recognition.
The Government will issue guidance for the CAC on how reasonable support should be defined. Membership records or a petition may be evidence of support.
The union's request for recognition must set out its proposed bargaining unit. If this is not agreed by the employer, the CAC will determine the appropriate bargaining unit. In doing so, the CAC must take particular account of the bargaining unit's compatibility with the need for effective management as well as:
- views of employer and union
- existing bargaining arrangements
- avoiding small fragmented bargaining units
- characteristics of employees within and outside the unit
- location of employees
- the union must demonstrate reasonable support in the bargaining unit chosen by the CAC before the application can proceed.
If the employer does not accept that the union has majority support in the bargaining unit, there are two ways this can be determined.
If the CAC is satisfied that more than 50% of the bargaining unit are members of the union, this automatically counts as majority support. There is no need for a ballot. This is a significant improvement on the legislation in the USA where ballots are required in all cases.
Where membership does not exceed 50%, there must be a ballot, conducted by an independent scrutineer. This may be at the workplace, unless there is a risk of interference in which case a postal ballot is required. Interestingly, under US legislation postal ballots have resulted in more success for unions seeking recognition than workplace ballots. This is because of the extent to which US employers can 'persuade' workers to vote against recognition.
To avoid the pitfalls of the 1975 legislation, the employer will be under a legal duty to co-operate with the ballot and to supply lists of names and addresses. The cost of the ballot will be shared equally between the employer and the union.
Recognition will only be granted where a majority of those voting and 40% of those entitled to vote have supported recognition.
Suppose, in a bargaining unit of 100 there is a ballot for recognition. 80 people vote. 41 vote in favour and 39 against. There is support from a majority of those voting and 40% of those entitled to vote. Recognition is granted.
In contrast, if there had been a turnout of 50 people, with 39 voting in favour and 11 against, although the union had secured support from 78% of those voting, it would be denied recognition as its support was less than 40% of the total electorate.
This has caused understandable resentment and concern. It is a far stiffer test than that faced by politicians seeking election and a glaring anomaly when compared with the 24.6% of the electorate who voted 'yes' in the referendum which will lead to a Mayor for London.
The 40% requirement is to be reviewed after two years if it is unworkable. It will be. There are unlikely to be many (if any) ballots under the procedure. Unions will rely instead on the test of majority membership.
Workers in firms with fewer than 20 employees are to be denied the right to recognition. This is arbitrary and unfair.
The Government is rightly proposing to abolish the 20 redundancy threshold for consultation rights as it recognises that employers organise their businesses in a way to avoid their legal obligations: the same applies to recognition.
Workers in small firms are often more vulnerable and in need of protection and advice. A disproportionate number of workers in small firms are women. Statistics show that recognition raises wage levels, so the 20 employee threshold is discriminatory and may be open to legal challenge.
Consequences of Recognition
Where recognition is granted, the union and employer must reach a procedure agreement. If this is not achieved within three months, the union may apply to the CAC for a legally binding procedure agreement based on a standard model. This is a radical departure from the presumption of collective agreements which are not legally binding.
Recognition will cover pay, hours and holidays, plus any other issues which the union and employer agree to include. The Government is considering whether training should also be included.
Employees covered by collective agreements will still be able to agree different individual terms and conditions.
The White Paper says 'there will be a broadly similar procedure' for resolving disputes where an employer seeks to derecognise the union because he believes the majority of the bargaining unit no longer supports recognition. The Government does not specify the test or procedure. The legislation must place strict tests on the circumstances in which this procedure can be activated otherwise employers will seek to initiate ballots which are costly and de-stabilise industrial relations in the hope of undermining the union.
New Applications and Changes
The legislation will not permit unions to apply for recognition covering substantially the same group of workers within three years of a previous unsuccessful application. Employers will not be allowed to apply for derecognition within three years of a recognition declaration or an unsuccessful derecognition attempt.
If there is a change in the bargaining unit, either the union or the employer may apply to the CAC to determine the appropriate bargaining unit. This may lead to further ballots. The legislation must be drawn tightly to prevent employers gerrymandering to undermine existing bargaining arrangements.
Timetable and Enforcement
- union requests recognition
- employer has 14 days to respond
- if employer willing to negotiate, has 28 days
- if no agreement, union applies to CAC
- CAC decides whether to proceed (reasonable support, inter-union etc)
- CAC tries to broker agreement, allowing 28 days
- no agreement, CAC decides bargaining unit within seven days
- CAC determines if majority membership
- if not, ballot to be carried out within 21 days
- declaration of recognition
- three months to reach procedure agreement
- no agreement, apply to CAC
- CAC attempts to broker agreement, if not imposes one.
If the procedure is legally binding, the union or employer can apply to court for an order requiring that the procedure be followed and for contempt of court if this is disobeyed.
If either party considers the other is not honouring an agreement which is not legally binding, it may apply to the CAC which may impose a legally binding agreement. There does not appear to be any means of appeal against the CAC's decision on any issue, which is likely to mean its decisions are susceptible to judicial review.
Protection and Access
Employees who campaign for (or against!) recognition will be protected against detriment or dismissal. Trade unions will have reasonable access to employees 'during the campaign': which leaves open the question of access in order to achieve 'reasonable support'.
In an extremely welcome step, workers will have a legal right 'to be accompanied by a fellow employee or trade union representative of their choice during grievance and disciplinary procedures'. This clearly allows representation by officials employed by the union. Ministers have made clear that this is a right of representation, not merely attendance.
Protecting Union Members and Activists
The pernicious House of Lords decision in Wilson and Palmer will be partially reversed by outlawing discrimination by omission on grounds of trade union membership, non-membership or activities. More is needed to correct the deficiencies of this law. Blacklisting of trade union members will be prohibited.
Employees who are dismissed for taking part in official industrial action supported by a ballot will be allowed to pursue claims for unfair dismissal. The White Paper says that the Tribunal would not get involved in the merits of the dispute, but would have to decide 'whether the employer had acted fairly and reasonably taking into account all the circumstances of the case'. This aspect of the legislation will need particularly careful drafting and the Government recognises there are issues on the tests to be applied and the level of compensation.
Unions will no longer be forced to disclose names of individuals to be balloted or called upon to take part in industrial action, only to identify the group or category of employees. The law and Code of Practice on industrial action ballots are to be simplified, although there are no specific proposals yet.
....and finally - the CROTUM gets the sack.