There are some employers who will do virtually anything to thwart a trade union's legitimate efforts to represent its members. The case of BECTU v City Screen Ltd (IDS Brief 753) is a good example.

What prompted the dispute?

In April 2003, City Screen Ltd bought three cinemas. Although it took on the existing staff, it refused to honour a voluntary recognition agreement that the previous owner had entered into with BECTU. This had given the union collective bargaining rights for staff up to managerial level.

BECTU applied to the Central Arbitration Committee (CAC) on 6 October 2003 for recognition. The company responded by claiming that it already had a recognised staff organisation - The City Screen Staff Forum - for collective bargaining purposes.

As such, it said that BECTU's application could not go ahead because under para 35(1) of Schedule 1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (TUL(C)RA), an application for recognition is not admissible if a collective agreement with a union is already in force for that particular bargaining unit.

Strangely enough, the purported recognition agreement had not come into force until 10 October - four days after BECTU's application to the CAC. It looked very much like the company had manufactured the staff forum to avoid its application.

What did the union argue?

At a hearing on 25 November the union argued that as the company's agreement with the City Screen Staff Forum did not exist when it applied for recognition, BECTU's application could continue.

Alternatively, it argued that Forum was not a trade union and that the agreement between the company and Forum was not a collective agreement.

What did the CAC say?

The CAC accepted that the employer might well have set up Forum to thwart the union's application, but that there was no law against it.

It also said that the date for determining when a collective agreement came into force was the date of the CAC decision at the hearing, not when the union made its application.

But was Forum a trade union?

According to section 1(a) TUL(C)RA, a trade union is defined as 'an organisation...which consists wholly or mainly of workers...and whose principal purposes include the regulation of relations between workers...and employers...'.

BECTU argued that Forum was not a negotiating body, had little support from workers and had no workers sitting on its executive committee. It could not therefore satisfy the definition of a trade union.

The company responded that Forum consisted of four workers - the managing director (also its General Secretary), the finance director, the director of booking services and the head of operations. It was open to all employees and the company intended it to become a negotiating body by the next annual salary review in October 2004.

The CAC agreed with the union. Although the recognition agreement covered all non-managerial jobs, Forum had no members among any of those workers. It could not therefore satisfy the definition in section 1(a) of the legislation.

Was there a collective agreement?

Again, the CAC agreed with the union. It said there was no agreement in force that determined the terms and conditions of the relevant employees.

The recognition agreement of 10 October was not a collective agreement because it had been signed only by senior management, as opposed to two separate parties. And it had been reached without any involvement of the staff concerned.

As none of the relevant staff were members, the executive committee could not consult them, nor could it reach an agreement on their behalf, as required under para 35(1).

As there was no collective agreement in force, BECTU's application for recognition could go ahead.