Labour & European Law Review Weekly Issue 340 09 October 2013
Section one of the Trade Union and Labour Relations (Consolidation) Act (TULRCA) 1992 defines a trade union as an organisation whose principal purpose is the regulation of relations between workers and employers. In Akinosun v The Certification Officer, the Employment Appeal Tribunal (EAT) held that an organisation which existed purely to provide representation at internal hearings could not therefore satisfy the definition.
In July 2001 Mr Akinosun and a colleague set up the Employment Rights Representation and Advisory Services Ltd (ERRAS) in order to represent workers, for a fee, at hearings with their employer. By late 2011 the volume of work had grown to such an extent that Mr Akinosun decided to leave his full-time job as a nurse and devote himself to the ERRAS work.
However, as ERRAS was not a union the company did not enjoy certain rights, including the right to accompany workers under section 10 of the Employment Relations Act 1999 to disciplinary and grievance hearings. Mr Akinosun therefore decided to set up the General and Healthcare Workers Union (GAHWU) and applied to the Certification Officer (CO) to list it as a trade union under section one of TULRCA.
Section one of TULRCA states that: "a trade union means an organisation ... (a) which consists wholly or mainly of workers of one or more descriptions and whose principal purposes include the regulation of relations between workers of that description or those descriptions and employers or employers’ associations …"
Decision of CO
The CO turned down the application on the basis that GAHWU could not provide any evidence that its principal purpose was the regulation of relations between workers and their employers.
Instead, he found that the real reasons for setting it up were “to take advantage of section 10 accreditation, to directly or indirectly further the commercial interests of ERRAS Ltd or its directors and [did] not include the regulation of relations between workers and employers as required by the definition of a trade union”.
Mr Akinosun appealed on two grounds. Firstly, that the organisation had clearly set out its principal purpose in its draft rules; and secondly, that although GAHWU had no officers or members at present, the CO could have given it the benefit of the doubt and then removed its name from the list if at some point in the future it did not behave as an organisation within section one.
The EAT agreed with the CO. It said that the question as to whether an organisation fitted the description in section 1(a) was firstly a question of fact to be decided by the CO. If he found that the “principal purposes” did not include the regulation of relations between workers and employers, he could not then certify the organisation as a trade union irrespective of what it may have set out in its rule book.
Secondly, said the EAT, the definition focuses on the collective aspect of work - in other words, the regulation of relations between groups of workers on the one hand and employers or employers’ associations on the other. It therefore followed that an organisation which existed to provide representation at internal hearings would not, purely for that reason alone, be a trade union not least because “there would be nothing of the collective about it”.
Thirdly, as section 3(3) is framed in the present tense (the organisation is a trade union), the CO has to look at the organisation as it now stands, and not what it might look like at some future date.