Statutory trade union recognition (1): basic procedure

Analysis of the basic procedures leading to statutory union recognition.

"Our [recognition] proposals are ... very different from those of the [Employment Protection Act 1975]. They are ... more comprehensive, because we want the law to be precise and complete. We want to give clear guidance to employers, trade unions, workers and the CAC on every aspect of what the law requires and allows. It is a complex subject, and we have to encompass a wide variety of situations and permutations. Inevitably, therefore, the Schedule is complex."

(Michael Wills, Minister for Small Firms, Trade and Industry, 16.3.99, House of Commons Standing Committee E, col. 345)

"We have designed the recognition procedure as a way of encouraging partners to talk to each other. The ultimate sanction is, therefore, not an imposed agreement on terms and conditions, which might produce a momentary benefit for employees but would do nothing for the long-term relationship in the workplace. Rather, the ultimate sanction is a duty to meet and to try to negotiate."

(Michael Wills, Minister for Small Firms, Trade and Industry, 16.3.99, House of Commons Standing Committee E, Official Report, col.346)

In its 1980 Annual Report, the Advisory, Conciliation and Arbitration Service ("ACAS") said: "The complex structure of the existing industrial relations system (including both the complexity of the trade union structures, of employing organisation structures and of practices and procedures with long histories) makes it extremely difficult to envisage a statutory procedure for compulsory trade union recognition which could operate smoothly." This was the key conclusion after some four and a half years' experience of trying to operate the ill-fated statutory recognition provisions contained in ss.11-16 of the Employment Protection Act 1975.

Nevertheless, the Labour Party manifesto for the 1997 general election stated: "People should be free to join or not to join a union. Where they decide to join, and where a majority of the relevant workforce vote in a ballot for the union to represent them, the union should be recognised. This promotes stable and orderly industrial relations."1 That commitment was reiterated in the Fairness at work White Paper2, which also emphasised that it was "vital" to establish a clear framework and process governing decisions on recognition.

Inevitable complexity?

The resulting provisions are in the main to be found in the new Schedule A1 inserted into the Trade Union and Labour Relations (Consolidation) Act 1992 ("the TULR(C)A") by s.1 and Schedule 1 of the Employment Relations Act 1999 ("the 1999 Act"), and came into force on 6 June 20003.

Schedule A1 alone contains 172 paragraphs and runs to more than 27,000 words. Then Minister of State for Trade and Industry, Ian McCartney claimed: "All of the circumstances we can think of are covered by the proposals"4. Indeed, it is clear from the general tenor of the Parliamentary debate on what became Schedule A1 that the Government hopes, on the one hand, that this level of detail will severely limit the extent to which the jurisdiction and decisions of the CAC can be opened up to judicial review. On the other hand, the recognition procedure laid down reflects a desire to encourage negotiation and voluntary agreement between the parties wherever possible, and to avoid conflict with existing (and future) wholly voluntary collective bargaining arrangements made entirely outside the statutory procedure. The success of the whole project may well depend upon how these competing tensions are resolved in practice.

This first in a series of three features focuses on the basic statutory recognition procedure, including: requests to employers; applications to (and the role of) the Central Arbitration Committee ("the CAC" - see especially the document extract on pp.4-5); determining bargaining units; "automatic" recognition; recognition ballots; the consequences of recognition; CAC-imposed bargaining methods; and enforcement thereof. We also touch on "semi-voluntary" recognition and the duty of employers to consult statutorily recognised unions over training.

A second feature on, in particular, the protection of individuals from detriment and dismissal on recognition-related grounds will appear shortly, whilst a third feature dealing with subsequent changes to bargaining units and the derecognition provisions will appear in a future issue of IRLB.

REQUESTS FOR RECOGNITION

A trade union (or trade unions jointly - see p.6 below) seeking recognition to be entitled to conduct collective bargaining on behalf of a group or groups of workers may make a request in accordance with Part I of Schedule A1 (para. 1 - and see diagram (i) on p.6).

Limited "collective bargaining"

For most purposes under these provisions, references to "collective bargaining" are to "negotiations relating to pay, hours and holidays" only (para. 3(3)).

If, however, the parties agree matters as the subject of collective bargaining, references to collective bargaining are to "negotiations relating to the agreed matters" (para. 3(4)), which may or may not include the minimum content specified in para. 3(3). This is the case whether the agreement is made before or after the time the CAC issues a declaration, or the parties agree, that the union is (or unions are) recognised.

In any event, unless otherwise stated, the broader traditional meaning of collective bargaining contained in s.178 of the TULR(C)A does not apply (para. 3(2)).

Validity of requests

To trigger the statutory procedure, the union or unions "must make a request for recognition to the employer" of the workers constituting the bargaining unit ("BU") in respect of which recognition is sought (para. 4 read with definitions in para. 2(2)). Such a request is, however, valid only if:

  • It is in writing; it identifies the union or unions and the [proposed] BU; and states that it is made under Schedule A1 (para. 8)5.

  • It is "received" by the employer (para. 5). The meaning of "received" in this context is unclear, but arguably connotes some form of actual or physical receipt of the request by the employer (whether or not it is dealt with immediately thereupon), in particular in the case of a personal employer. The mode of conveying a valid written request could presumably include post, fax, e-mail or delivery by hand. Mere posting, and reliance on the normal course of post, will almost certainly be insufficient.

  • The union (or each of the unions) has a certificate of independence (from the Certification Officer) under s.6 of the TULR(C)A (para. 6).

  • The employer, taken with "any associated employer or employers", employs:

    (a)at least 21 "workers"6 on the day the employer receives the request; or

    (b)an average of at least 21 workers in the 13 weeks ending with that day (para. 7(1)). The average number of workers under this latter subparagraph is determined by aggregating the numbers of workers employed in each of the 13 weeks ending with the day the request was received by the employer (including workers not employed for the whole of the week - that is, part-time workers), and dividing the aggregate figure by 13 (para. 7(2)).

    Associated employers

    For the purposes of calculating the 21-worker threshold, the definition of "associated employer" is that contained in s.297 of the TULR(C)A. Two employers will consequently be treated as "associated" if one is a company of which the other (directly or indirectly has control), or both are companies of which a third person (directly or indirectly) has control.

    But any worker employed by an associated company incorporated outside Great Britain must be ignored unless the day the request was made (when determining the number of workers employed under para. 7(1)(a) above) fell within a period during which he or she ordinarily worked in Great Britain (para. 7(3)). He or she must similarly be ignored in relation to a week (when calculating aggregate weekly numbers of workers employed under para. 7(1)(b) above), unless the whole or any part of that week fell within a period during which he or she ordinarily worked in Great Britain (para. 7(4)).

    A worker who is employed on board a ship registered in the register maintained s.8 of the Merchant Shipping Act 1995 is treated as ordinarily working in Great Britain under these provisions unless: the ship's entry in the register specifies a port outside Great Britain as the port to which the vessel is to be treated as belonging; the employment is wholly outside Great Britain; or the worker is not ordinarily resident in Great Britain.

    During the Committee Stage of the 1999 Act in the House of Commons, Minister for Small Firms, Trade and Industry, Michael Wills, explained7: "...the provision that refers to 'associated employers' bears only on whether an employer is regarded as being above the threshold, employing more than 20 workers. It does not allow a union to apply for recognition with a single [request] to all those employers. It merely prevents an employer from escaping recognition by splitting [its] workforce into separate undertakings, each with no more than 20 employees."

    More generally, Mr Wills recognised that it was a matter of judgment as to where the worker numbers threshold or "cut-off" should be set, and that the Government would keep it under review8: "If it appears that it is not working ... we will review whether the level is too high or too low." Paragraph 7(6) of Schedule A1 accordingly gives the Secretary of State power to vary by order "the number of workers for the time being specified in [para. 7](1)" in either direction. On the Government's own calculations9, the threshold already excludes some 8.1 million people - or about 31% of the total workforce - from the statutory recognition regime.

    Agreement and/or negotiations

    Once a valid request for recognition is received, there is an initial period (known as "the first period") of 10 "working days"10 beginning with the day after receipt of the request in which the employer should respond. There are two situations in which the basic recognition procedure can effectively be closed at this stage or shortly thereafter, with no further steps being taken under Part I of Schedule A1:

  • Before the end of the first period9 the parties may agree a BU and that the union is (or unions are) to be recognised as entitled to conduct collective bargaining on behalf of the unit (para. 10(1));

  • Before the end of that period the employer informs the union(s) that it does not accept the recognition request but that it is nevertheless willing to negotiate (para. 10(2)). The parties may then conduct negotiations with a view to agreeing a BU and that the union is (or unions are) to be recognised as entitled to conduct collective bargaining on behalf of the unit. Any such agreement must be made before the end of a further period of 20 working days starting with the day after that on which the first period ends (that is, negotiations can continue for 20 working days plus the balance of the first period), or such longer period (starting on that day) as the parties may from time to time agree.

    Note: Certain agreements reached "semi-voluntarily" by the parties following a valid request to an employer under Schedule A1, but before the CAC has made a declaration of recognition or has come under a duty to arrange a recognition ballot (see below), may be protected and enforced under Part II of the Schedule (see pp.13-14 below on "Semi-voluntary recognition").

    Union refuses to go to ACAS

    The employer and the union(s) may request ACAS to assist in conducting negotiations (para. 10(5)).

    A union (or unions) will, however, be precluded from making any subsequent application to the CAC (see immediately below) if, within a period of 10 working days starting with the day after that on which the employer informs the union(s) of its willingness to negotiate under para. 10(2), the employer proposes that ACAS be requested to assist in conducting the negotiations and either: (a) the union rejects (or unions reject) the proposal: or (b) the union fails (or unions fail) to accept the proposal within the 10 working days starting with the day following that on which the employer makes the proposal (para. 12(5)).

    APPLICATIONS TO THE CAC

    Otherwise, if no agreement is reached (for whatever reason), or agreement is reached only on the BU, following the initial recognition request to the employer, the union(s) may apply to the CAC under paras. 11 or 12 of Schedule A1 for it to determine various questions (see diagram (ii) on p.7).

    Rejection or failure to respond

    If the employer fails to respond to the request for recognition before the end of the first (10-working-day) period referred to above, or before the end of that period the employer informs the union (or unions) that it does not accept the request (without indicating a willingness to negotiate), the union(s) may apply to the CAC to decide both of the following questions:

  • whether the proposed bargaining unit is appropriate or some other bargaining unit is appropriate;

  • whether the union has (or unions have) the support of a majority of the workers constituting the appropriate bargaining unit (see particularly para. 11(1) and (2)).

    Negotiations fail

    The union(s) can also ask the CAC to determine those same questions where the employer entered into negotiations in accordance with para. 10(2) (see p.3 above) within the first period following a request for recognition, but no agreement on either matter was reached before the end of the second (20-working-day) negotiating period provided for (see para. 12(1) and (2)).

    If before the end of that second period the parties agree a BU, but not that the union is (or unions are) to be recognised as entitled to conduct collective bargaining on behalf of the unit, the union(s) may apply to the CAC to decide the sole remaining question of whether the union has (or unions have) the support of a majority of the workers constituting the bargaining unit (see para. 12(3) and (4)).

    Admissability of applications

    By virtue of para. 15 of Schedule A1, the CAC can accept applications under paras. 11 and 12 only if the initial request for recognition to the employer was valid (see above), and the application is prima facie "admissible" within the terms of paras. 33-42 (see the box on p.9). Further, the CAC is precluded from dealing with competing or overlapping applications from unions covering (wholly or partly) the same bargaining unit (see below and again the box on p.9). We reproduce extracts from the CAC guide to the application process, CAC proceedings and CAC hearings below.

    The CAC must give notice to the parties of receipt of an application under para. 11 or 12 (see para. 13). In deciding questions of validity and admissibility, the CAC must consider any evidence which has been given by the employer or the union(s) - para. 15(3). A decision on whether or not to accept an application must be made within the period of 10 working days starting with the day after that on which the CAC receives the application, or such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension (para. 15(6) - "the acceptance period"). The CAC must give the parties notice of its decision.

    Competing applications precluded

    In principle, the CAC is precluded from accepting competing applications in relation to the same bargaining unit, unless only one of them passes a 10% union membership test in the relevant bargaining unit (see generally para. 14).

    This applies in situations where the CAC receives two or more relevant applications under para. 11 or 12 that cover, wholly or partly, the same "relevant" bargaining unit (that is, there is at least one worker within one of the "relevant" bargaining units who also falls within the other relevant bargaining unit (or units)), and the CAC has not already accepted any of the applications. The relevant bargaining unit for these purposes is either the bargaining unit proposed in the union (or unions) request, or the bargaining unit agreed between the parties (where the application is made under para. 12(4) above).

    Within 10 working days, starting with the day following that on which the CAC receives the last relevant application (or such longer period (so starting) as the CAC may specify), the CAC must decide, with regard to each relevant application, whether "members of the union (or unions) constitute at least 10% of the workers constituting the relevant bargaining unit" (that is, it must decide whether the so-called "10% test" is satisfied).

    The CAC must refuse to accept any of the applications if:

  • the 10% test is satisfied with regard to more than one of the relevant applications, or

  • the 10% test is satisfied with regard to none of the relevant applications.

    If, however, the CAC decides that the 10% test is satisfied with regard to only one of the relevant applications it must proceed to determine the validity and admissibility of that application, and must dismiss the others. No further steps are to be taken under Part I of Schedule A1 in respect of applications refused at this stage.

    These provisions are primarily intended to insulate the CAC from having to determine inter-union rivalries and demarcation disputes. In the Government's view11, "the CAC should not decide between credible competing applications", with the application of "the 10% test" at "such a preliminary stage" seeking largely to eliminate "spoiling" or "frivolous" applications.

    This policy is further reflected in para. 51 of Schedule A1, which provides that if an existing application has been accepted and a new overlapping application (which again may have only one worker in common) passes the 10% test, the existing application will be treated as inadmissible. The new application will in any event fall foul of para. 38 of the Schedule (see the box on p.9).

    Joint applications distinguished

    Competing applications must be distinguished from a joint application made by two or more unions. The latter is permissible provided that the unions can demonstrate that they will comply with the requirements as to cooperation and prospective single-table bargaining (if the employer so wishes) contained in para. 37 of Schedule A1 (see the box on p.9).

    In these circumstances, the general application of the 10% membership threshold (required by para. 36 - see the box on p.9) means that the combined membership of the unions involved in a joint application must amount to 10% of the workers constituting the relevant (that is, the proposed or agreed) BU12.

    Withdrawal of applications

    A union (or unions) can withdraw an application at any point before it has been accepted by the CAC without penalty.

    Under para. 16, the union(s) may withdraw the application thereafter at any point prior to the CAC issuing a declaration of "automatic" recognition (see p.8) or notifying the parties that it intends to arrange a recognition ballot (see pp.8-9). But withdrawal within that period is not risk free: the union(s) will be precluded from making another application for statutory recognition in respect of the same or substantially the same bargaining unit for three years (see para. 39 in the box on p.9).

    DETERMINING APPROPRIATE BARGAINING UNIT

    As we have seen (p.3), the BU to which a CAC application relates may be established by agreement between the parties at an earlier stage in the statutory recognition procedure.

    CAC to encourage agreement

    Where, however, the CAC is asked to determine the BU under para. 11(2) or 12(2) (see pp.3-4), it must initially "try to help the parties to reach an agreement" as to what the "appropriate bargaining unit" ("ABU") is. This must be done during the 20 working days starting with the day after that on which the CAC gives notice of acceptance of the application, or such longer period (so starting) as the CAC may specify (para. 18 - "the appropriate period").

    Criteria for determining ABU

    If the parties have not reached agreement by the end of the appropriate period, the CAC must itself decide the ABU within the 10 working days starting with the day after the appropriate period ends, or such longer period (so starting) as the CAC may specify (para. 19(1) and2)).

    When deciding the ABU, the CAC must take into account "the need for the unit to be compatible with effective management" and, in so far as they do not conflict with that need, the following matters:

  • the views of the employer and of the union (or unions);

  • existing national and local bargaining arrangements;

  • the desirability of avoiding small fragmented bargaining units within an undertaking;

  • the characteristics of workers falling within the proposed bargaining unit and of any other employees of the employer whom the CAC considers relevant;

  • the location of workers (see para. 19(3) and (4)).

    The CAC must give notice of its decision to the parties.

    Compatibility with effective management would seem to be intended to imply "consistency" with such13. Indeed, this view is reinforced by the CAC's general duty to have regard to "the object of encouraging and promoting fair and efficient practices and arrangements in the workplace" in exercising any of its functions under Schedule A1 in a particular case (provided this is itself consistent with the application of specific provisions - see para. 171).

    It is worth noting that the new chairman of the CAC, Sir Michael Burton, has indicated14 that a BU will not have to be the only possible unit compatible with effective management for it to pass this test. A range of matters will be relevant, including the structure of profit centres and control over possible BUs, and extreme arguments will be "unwelcome". Existing bargaining arrangements referred to in the further list of matters to be taken into account do not, in the Government's view15, include purely consultative staff councils, which it said "are no substitute for genuine collective bargaining".

    Admissibility requirements reapplied

    If the ABU agreed by the parties (under para. 18) or decided by the CAC (under para. 19) differs from that originally proposed by the union(s), the CAC must test the continued validity of the recognition application in relation to the modified BU (para. 21). These tests mirror the general admissibility tests set out in the box on p.9 (see especially paras. 35, 36 and 38-42), and are contained in paras.43-50 of Schedule A1 (with references to the relevant bargaining unit here meaning the BU agreed by the parties or decided by the CAC). The CAC must determine validity within the 10 working days following the day on which the ABU was agreed or decided.

    "AUTOMATIC" UNION RECOGNITION

    In determining a recognition question under paras. 11 or 12 (see pp.3-4), if the CAC "is satisfied that a majority of the workers constituting the BU are members of the union (or unions)", it must on the face of it issue a declaration "that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit" (see para. 22(1) and (2)).

    Rebuttable presumption of recognition

    If, however, any one of three "qualifying conditions" is fulfilled, instead of issuing such a declaration, the CAC must give notice to the parties that it intends to arrange for the holding of a secret ballot in which the workers constituting the bargaining unit are asked whether they want the union (or unions) to conduct collective bargaining on their behalf (para. 22(3)). The qualifying conditions are:

  • the CAC is satisfied that a ballot should be held "in the interests of good industrial relations";

  • a significant number of the union members within the bargaining unit inform the CAC that they do not want the union(s) to conduct collective bargaining on their behalf;

  • membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union(s) to conduct collective bargaining on their behalf (para.22(4)(a)-(c)).

    For the purposes of the latter subparagraph, "membership evidence" is:

    (a)evidence about the circumstances in which union members became members; and

    (b)evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account (para. 22(5)).

    Ascertaining membership and support

    In the Government's view16, union membership under the above provisions is a matter of fact to be determined in accordance with the union (or unions') rules: "Only genuine and current members should be counted ... the [union] rules books lay down who is a member. Unions are bound by their rules, which specify that membership is terminated after arrears of subscriptions reach a specified level. They must not try to claim people as members who do not satisfy their own criteria." Where there is a conflict of evidence between the union(s) and the employer on this question, the CAC guide says that "there may be an independent check on the level of union membership in the bargaining unit".

    In relation to membership evidence casting doubt on support for collective bargaining, the Government suggested17: "If, for example, the employer can show that a significant number of union members have recently cancelled their check-off authorisations and appear to be leaving the union, that might prompt the CAC to hold a ballot." Sir Michael Burton has warned18 that in the CAC's view there will be no such thing as "automatic" recognition; and demonstrating over 50% membership in a BU will raise, at most, a "presumption" of or "opportunity" for recognition without a ballot. But, said Sir Michael, the higher the level of union membership the less likely it is that a ballot will be ordered.

    RECOGNITION BALLOTS

    A recognition ballot will in any event always be required if the CAC is not satisfied that a majority of the workers constituting the bargaining unit are members of the union (or unions). In these circumstances, therefore, the CAC must again give notice to the parties that it intends to arrange for the holding of a secret ballot in which the workers constituting the bargaining unit are asked whether they want the union(s) to conduct collective bargaining on their behalf (para. 23).

    Within the 10 working days after receiving CAC notice of its intention to hold a ballot, the union(s), or the union(s) and the employer, may notify the CAC that it does not, or they do not, want a ballot to be held (para. 24(2)). Cancellation of the ballot at this stage will again debar the union(s) from making a further recognition application in relation to the same or substantially the same BU for three years (see para.39 in the box below). And once this 10-day period has passed, it will no longer be possible to reach a "semi-voluntary" agreement (see pp.13-14) and the parties will be liable for the costs of the ballot (whether or not it is actually held - see pp.11-12).

    Appointment of "QIP"

    If the CAC is not so notified, it is under a duty to go ahead with arrangements for holding the ballot, which is to be conducted by a "qualified independent person" ("QIP") appointed by the CAC (paras. 24(4) and 25(2)).

    Those who may act as QIPs are specified in the Recognition and Derecognition Ballots (Qualified Persons) Order 200019. They include practising solicitors and qualified company auditors, together with six designated bodies: Electoral Reform (Ballot Services) Ltd; The Industrial Society; Election.Com Ltd (formerly Unity Security Balloting Services Ltd); Association of Electoral Administrators; Involvement and Participation Association; and Twenty-First Century Press Ltd.

    There must be no grounds for believing that the QIP chosen will carry out any functions conferred on him or her in relation to the ballot otherwise than competently or that his or her independence in relation to the ballot might reasonably be called into question (para. 25(7)(b)).

    Balloting methods

    The ballot must take place within the period of 20 working days starting with the day after that on which the QIP is appointed, or such longer period (so starting) as the CAC may decide (para. 25(3)). It may be conducted at a workplace or workplaces decided by the CAC, by post, or by a combination of these methods, depending on the CAC's preference (para. 24(4)(a)-(c)).

    In deciding how the ballot is to be conducted the CAC must take into account:

  • the likelihood of the ballot being affected by unfairness or malpractice if it were conducted at a workplace or workplaces;

  • costs and practicality;

  • such other matters as the CAC considers appropriate.

    The CAC may not, however, decide that the ballot is to be conducted using a mixture of methods under para. 24(4)(c) above unless there are "special factors" making such a decision appropriate. Special factors include:

  • factors arising from the location of workers or the nature of their employment;

  • factors put to the CAC by the employer or the union(s).

    During the House of Lords Committee stage of the 1999 Act, Government spokesman Lord McIntosh of Haringey said20 the best example of a case where a mixture of workplace and postal voting may be appropriate "could be an oil rig where one crew is on duty and the other is ashore on leave. It would be sensible to ballot the on-board crew at their workplace - probably the only way one could do so. The crew onshore would have to be balloted by post." The CAC guide suggests: "A combination ballot could [also] be justified where workers in the BU are absent, for example on maternity or long-term sick leave."

    Note: As soon as is reasonably practicable after the CAC comes under the duty to arrange the ballot, it must inform the parties of:

  • the name of the person appointed to conduct the ballot and the date of his or her appointment;

  • the period within which the ballot must be conducted;

  • whether the ballot is to be conducted by post or at a workplace or workplaces;

  • the workplace or workplaces concerned (if the ballot is to be conducted at a workplace or workplaces) - para. 25(9).

    Employer's duty to cooperate

    An employer that is so informed under para. 25(9) is placed under the following three duties in relation to the ballot (see para. 26(2)-(4)):

  • to cooperate generally, in connection with the ballot, with the union (or unions) and the appointed QIP (the second and third duties are not to prejudice the generality of this);

  • to give the union(s) such access to the workers constituting the bargaining unit as is reasonable to enable the union(s) to inform the workers of the object of the ballot and to seek their support and their opinions on the issues involved. Particular regard should be had in this respect to the statutory Code of Practice on access to workers during recognition and de-recognition ballots21 ("the Code" - see the synopsis in the box opposite); and

  • so far as it is reasonable to expect the employer to do so, to give the CAC, within 10 working days following the day after that on which the employer is informed about the ballot under para. 25(9), the names and home addresses of the workers constituting the bargaining unit. As far as is reasonably practicable, the employer must also give the CAC the name and home address of any worker who joins the unit subsequently, and inform it of any worker whose name has previously been given who ceases to be within the unit.

    QIP as "union post office"

    As soon as is reasonably practicable after receiving the prescribed information as to names and addresses, the CAC must pass it to the QIP appointed to conduct the ballot (para. 26(5)). If asked to do so by the union(s), the QIP must send to any worker whose name and home address have been so given by the employer, and who is (so far as the QIP is aware) still within the unit, any information supplied to the QIP by the union(s) - para. 26(6). The union(s) must, however, bear the cost of sending the information (para. 26(7)).

    This part of the QIP's role was described vividly by Lord McCarthy as being that of "a kind of union post office". Explaining the Government's thinking on the dissemination of information provisions, Lord McIntosh referred to the imminent removal by the 1999 Act of any requirement for unions to inform employers of the identity of individuals in the context of industrial action ballots (see Industrial action ballots and notices to employers), and stated22: "We have come to the conclusion that in relation to recognition ballots, employees could have an equally valid wish not to be identified to the union or unions seeking recognition. However, the union has a perfectly legitimate right, indeed a duty, to communicate with those workers ... A union can send material to the works to be balloted via the body conducting the ballot. That ensures that the union can put its case [for recognition] while avoiding the disclosure of names and addresses to the union. Disclosure to the union could also be contrary to the right to privacy guaranteed by Article 8 of the European Convention on Human Rights."

    Sanctions for failure to comply

    If the CAC is satisfied that the employer has failed to fulfil any of the duties imposed on it in relation to the balloting process, and the ballot has not yet been held, it may order the employer to take such steps to remedy the failure as the CAC considers reasonable and specifies in the order, and to do so within such period as the CAC considers reasonable and similarly specifies (para. 27(1)).

    In the event that the CAC is satisfied that the employer has failed to comply with such an order, and the ballot has still not been held, it may (but is not required to) issue a declaration "that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the bargaining unit" (para. 27(2)). The CAC must then take steps to cancel the ballot; if the ballot is nevertheless held it will be null and void (para. 27(3)).

    On the question of whether an employer has failed to comply with its general duty to cooperate with the union(s) and the QIP, Michael Wills emphasised23 the desirability of giving the CAC "considerable discretion" in this regard "because it will know non-cooperation when it sees it". Perhaps more importantly, the CAC will be required to have regard to the access Code both on that question and more specifically on the question of what amounts to reasonable access (see again the box opposite). In the debate on the Code in the House of Commons Standing Committee on delegated legislation, Minister for Competitiveness Alan Johnson asserted24 that the threat of automatic recognition without a ballot was ultimately "the only meaningful way of [effectively] forcing a reluctant employer to abide by the Code".

    Effect of union's actions?

    While the legislation does not impose any correlative duties or sanctions on union(s) in relation to cooperation and/or access, the access Code states that: "... in deciding whether the employer has complied with his duty to give the union access, the CAC may take into account all the relevant circumstances. This may include the behaviour of the union. The CAC may therefore decide that the employer has complied with [its] duty in circumstances where, because the union has acted unreasonably, he denies the union access or refuses to implement agreed access arrangements" (see para. 50 of the Code).

    Costs of ballot to be shared

    The gross costs of the ballot are to be shared equally between the employer and the union(s), whether or not the ballot has been cancelled (see generally para. 28 of Schedule A1). If there is more than one union, they may indicate to the QIP that they wish to share their part of the costs other than in equal shares.

    Relevant costs of the ballot are: the costs wholly, exclusively and necessarily incurred in connection with the ballot by the QIP; such reasonable amount as the QIP charges for his or her services; and such other costs as the employer and the union(s) agree. They will not generally include, for example, the cost of providing information to workers incurred by the parties (in particular by the union(s) - see above).

    In the Government's opinion25, the principle of shared costs "means that neither party has an interest in going ahead with a ballot it is unlikely to win, or an extravagant, costly ballot. Both parties have an incentive to keep costs down, and, indeed, if they think they are not going to win, to avoid having a ballot at all."

    Majority vote and 40% threshold

    The CAC must inform the employer and the union (or unions) of the result of the ballot as soon as is reasonably practicable after it has itself been so informed by the QIP (para. 29(1) and (2)).

    If a majority of the workers voting in the ballot, and at least 40% of the workers constituting the bargaining unit (that is, 40% of those entitled to vote), vote in favour of recognition, the CAC must issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the bargaining unit (para. 29(3)). Otherwise, the CAC must issue a declaration that the union is (or unions are) not entitled to be so recognised (para. 29(4)).

    CONSEQUENCES OF RECOGNITION

    After receiving notice from the CAC of a declaration awarding statutory recognition, the parties have a "negotiation period" of 30 working days (which may then be extended by agreement between them) in which they "may conduct negotiations with a view to agreeing a method by which they will conduct collective bargaining" (see para. 30(1) and (4) and also diagram (iii) on p.8).

    Where no agreement is reached in the negotiation period, the employer or the union (or unions) may apply to the CAC for assistance (para. 30(3)). The CAC must then, within a further "agreement period", try to help the parties to reach an agreement on a bargaining method. The agreement period is 20 working days starting with the day after that on which the CAC receives the application for assistance, or such longer period (so starting) as the CAC may decide with the consent of the parties.

    Specified bargaining method

    If at the end of the agreement period the parties have still failed to reach agreement on a bargaining method, the CAC "must specify to the parties the method by which they are to conduct collective bargaining" (para. 31(3)).

    In carrying out this duty, the CAC must have regard to the "model" method of collective bargaining specified by the Secretary of State in The Trade Union Recognition (Method of Collective Bargaining) Order 200026 ("the model method" - summarised in the box opposite), although it may depart from this to "such extent as [it] thinks it is appropriate to do so in the circumstances" (para.168 of Schedule A1).

    Nature of method

    Lord McIntosh described the model method in the following terms27: "The model method which the Government intends to provide ... will be purely procedural. It will specify the matters for collective bargaining, namely pay, hours and holidays, and when talks are to take place, who is to attend and what further steps are to be taken in the event of failure to agree. In other words, it will be a typical basic procedure agreement. It will not require the parties to agree; it will not require arbitration if talks fail; it will not impose additional legal constraints on industrial action."

    Underlining the Government's view that "the duty on the parties will be simply to meet and talk ... they cannot be forced to agree", Lord McIntosh rejected arguments that the method contains any implied obligation to bargain "with a view to reaching agreement" or "in good faith"28.

    Enforcement

    Any method imposed by the CAC, including the model method," is to have effect as if it were contained in a legally enforceable contract made by the parties" (para. 31(4)), with the only (intended) remedy for breach thereof being an order for "specific performance" in the Civil courts (para. 31(6)). But Lord McIntosh did not entirely rule out the possibility of interlocutory orders being made to compel compliance with the imposed procedure29, "if an employer, for example, had announced publicly that he had no intention of complying". Perhaps most tellingly, as is pointed out in the preamble to the model method, a failure to comply with an order for specific performance (or a related interlocutory order - if available) could constitute a contempt of court, raising the possibility (in the first instance) of fines.

    The parties may in any event agree in writing that the presumption of contractual enforceability contained in para. 31(4) will not apply, or will not apply to particular parts of the method specified by the CAC, or, indeed, to vary or replace the method specified by the CAC (para. 31(5)). Further, if at any time before the CAC imposes a specified method the parties jointly apply to the CAC requesting it to stop taking steps under these provisions, the CAC must comply with the request.

    Note: The imposition of the model method, or a CAC variation thereof, is not intended to affect the rights of individual workers under either statute or their contracts of employment (see the preamble to the model method and our second feature).

    Method not carried out

    The CAC may also act under para. 31 (in response to an application for assistance from the parties) to promote agreement and/or specify a bargaining method where it has issued a recognition declaration, the parties have agreed a bargaining method and one or more of the parties "fails to carry out" that agreement (para. 32).

    To this extent, it would seem that the CAC itself will itself be concerned with making some limited assessment of the procedural propriety or bona fides of the parties (see also the similar provision in relation to semi-voluntary recognition immediately below). According to Michael Wills30, the phrase "fails to carry out" (or rather, its similarly worded predecessor in the original draft of the 1999 Act) is intended to be "as broad a term as possible to catch all substantial failures to follow a procedure".

    "SEMI-VOLUNTARY" RECOGNITION

    As we noted on p.3, collective agreements reached "voluntarily", or more accurately "semi-voluntarily", by the parties following a valid request for recognition to an employer under Schedule A1, but before the CAC has made a declaration of recognition or has come under a duty to arrange a recognition ballot, may be protected and ultimately become the subject of a CAC specified method of bargaining under Part II of the Schedule.

    These provisions apply where the union has (or unions have) applied to the CAC for it to determine questions under paras. 11 or 12 (see pp.3-4), and the union and employer parties to that application have jointly given notice to the CAC that they want no further steps to be taken under the statutory procedure (see para. 17). If the parties conclude an ostensibly voluntary recognition agreement at this stage, the absence of Part II would, the view of Michael Wills, create a "loophole whereby an employer could claim to recognise a union voluntarily but fail to negotiate with it. The union could then not bring a claim under the procedure because it was already recognised" (by virtue of para. 35 of Schedule A1 - see the box on p.9).31

    Determining type of agreement

    Agreements reached in the circumstances just outlined, therefore, will be regarded by para. 52 of Schedule A1 as "agreements for recognition"32.

    Under para. 55, one or more of the parties to an agreement may apply to the CAC for it to determine whether or not the agreement is "an agreement for recognition". The CAC must determine that question within the 10 working days starting with the day following receipt of the application, or such longer period (so starting) as the CAC may specify. If the answer is in the affirmative, the employer will be precluded from terminating the agreement for three years from the date it was made. Thereafter, the employer will be able to terminate the agreement in the normal way, with or without the consent of the union(s). For their part, the union(s) can terminate an agreement for recognition at any time, during or after the three-year period.

    Application to CAC to specify method

    If the parties make an agreement for recognition, the further consequences (and time limits) broadly mirror those that follow a CAC award of recognition (see pp.12-13 above). There will thus be an initial period of negotiation between the parties with a view to them agreeing a bargaining method, following which they may apply to the CAC for assistance if no agreement is reached in that period (see para. 58). They may similarly apply to the CAC for assistance if they agree a bargaining method, but one or more of them fails to carry it out (para. 59).

    At this point, the CAC must give the parties notice of receipt of an application under paras. 58 or 59, and determine (within 10 working days following the day after it receipt, or such longer period (so starting) as it may specify) whether it is admissible within the terms of paras. 60 and 61. In particular, the 21 worker threshold is reapplied as at the date of the application (para. 60(3) and (5)-(8)).

    The process then goes back to mirroring that already outlined (see p.13). If the CAC proceeds with the application, it must try to help the parties reach an agreement within an agreement period (see para. 63(1)), failing which it must specify a bargaining method relating to pay, hours and holidays (para. 63(2)).

    These provisions are not intended by the Government to affect "any purely voluntary agreements, including all agreements made before [Schedule A1 came] into force"33.

    DUTY TO CONSULT ON TRAINING

    Finally, we note the limited duty of employers to consult over training with unions who are statutorily recognised under Part I (but not, it seems, Part II) of Schedule A1, and in relation to which a legally enforceable CAC specified method of collective bargaining remains in place (that is, the parties have not modified the principle of legal enforceability in whole or in part, or agreed to vary or replace the CAC method - see p.13).

    Six-monthly meetings

    In these circumstances, a new s.70B inserted into the TULR(C)A by the 1999 Act (see footnote 3) provides "the employer must from time to time invite the trade union [or unions] to send representatives to a meeting" for the purposes of -

  • consulting about the employer's policy on training for workers within the bargaining unit;

  • consulting about its plans for training those workers during the six months starting with the day of the meeting; and

  • reporting about training provided for those workers since the previous meeting.

    The first such meeting must be held within six months of the day on which s.70B first applies in relation to the bargaining unit (that is, when a relevant bargaining method is first specified). Each subsequent meeting must be held at six-monthly intervals after the date of the first meeting. At least two weeks before a meeting, the employer must provide to the trade union(s) any information without which its (or their) representatives "would be to a material extent impeded in participating in the meeting", and which "it would be in accordance with good industrial relations practice to disclose for the purpose of the meeting". An employer is not, however, required to disclose information in this context which it would not be required to disclose for the purposes of collective bargaining by virtue of s.182(1) of the TULR(C)A.

    An employer must take account of any written representations about matters raised at a meeting received from the union(s) within four weeks thereof.

    Tribunal complaints

    A union (or unions) may present a complaint to an employment tribunal that an employer has failed to comply with its obligations under s.70B in relation to a bargaining unit (see s.70C). Such a complaint must be brought within three months beginning with the date of the alleged failure, with the usual provision for extension of time if the tribunal is satisfied that it was not reasonably practicable to present the complaint within that period.

    Where the tribunal finds the complaint well-founded it must make a declaration to that effect, and may make an award of compensation of up to two weeks' pay (subject to the £230 statutory ceiling on a week's pay) "to be paid by the employer to each person who was, at the time when the failure occurred, a member of the bargaining unit". Proceedings for the enforcement of such awards may be commenced by each of the individuals covered by the award, and may not be brought by the union(s).

    Footnotes

    1 "New Labour: because Britain deserves better."

    2 Cm 3968, May 1998.

    3 See The Employment Relations Act 1999 (Commencement No.6 and Transitional Provisions) Order 2000, SI No, 1338(C.39), commencing ss.1,5,6 and 25 and Schedule 1 of the 1999 Act.

    4 House of Commons consideration of Lords amendments to the 1999 Act, Hansard (HC), 26.7.99, col. 39.

    5 The Secretary of State may by order made by statutory instrument prescribe the form of requests and the procedure for making them; and if he does so the request is not valid unless it complies with the order (para.9 of Schedule A1). There are at present no plans to make such an Order.

    6 The definition of "worker" contained in s.296 of the TULR(C)A applies for all purposes under Schedule A1. It thus covers individuals who work, or normally seek work, under "a contract of employment", or "any other contract" whereby the worker "undertakes to do or perform personally any work or services for another party who is not a professional client" of his or hers.

    7 Standing Committee E ("SC(E)), House of Commons Official Report, 16.3.99, col. 358.

    8 ibid col. 368.

    9 Lord McIntosh of Haringey, House of Lords Report Stage of the 1999 Act, Hansard (HL), 8.7.99, col. 1045. More precisely, figures for 1998 show that there are over 4.8 million employees in enterprises that employ under 20 employees. If you add in the self-employed (that is, workers under all contracts other than contracts of employment), there are some 8.4 million people employed in enterprises employing under 20 workers (including employees and the self-employed). Hence it is arguable that the lower figure is probably the more appropriate when considering the true level of exclusion from union recognition (see the "DTI statistical bulletin: SME statistics for the UK 1998", DTI ref: URN/99/92, available from the DTI, tel: 0114 259 7538, price £15).

    10 "A working day" is defined for all purposes under Schedule A1 as "a day other than" a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday (see para. 172 of the Schedule).

    11 See SC(E), Official Report, 16.3.99, cols. 356 and 363.

    12 ibid, col. 357.

    13 ibid, cols. 385-386.

    14 CAC press conference, 6.6.00.

    15 SC(E), Official Report, 16.3.99, col. 386.

    16 ibid, cols. 388-389.

    17 ibid.

    18 CAC press conference, 6.6.00.

    19 SI 1306, made under powers contained in para.25(7)(a) of Schedule A1. Available from the Stationery Office, price £1.

    20 Hansard (HL), 7.6.99, col. 1196.

    21 Made under s.203 and 204 of the TULR(C)A.

    22 Hansard (HL), 7.6.99, col. 1206.

    23 SC(E), Official Report, 16.3.99, col. 398.

    24 House of Commons Official Report, 22.5.00, col. 13.

    25 Hansard (HL), 7.6.99, col. 1210.

    26 SI No. 1300. Available from the Stationery Office, price £2.

    27 Hansard (HL), 7.6.99, col. 1159.

    28 ibid, col. 1275.

    29 ibid, col. 1237.

    30 SC(E), Official Report, col. 412.

    31 SC(E), 16.3.99, col 410.

    32 For these purposes, other than in relation to a CAC method specified under para. 63(2), references to collective bargaining are to negotiations relating to any matters in respect of which the union is (or unions are) recognised as entitled to conduct negotiations under the agreement for recognition. Again, s.178 of the TULR(C)A does not apply.

    33 Hansard (HL), 8.7.99, cols. 1052-1057.

    The Central Arbitration Committee

    2.1 The Central Arbitration Committee (CAC) is an independent tribunal with statutory powers. Its chairman is Sir Michael Burton, who is also a High Court Judge. Under the Employment Relations Act 1999, it has been given statutory responsibility to adjudicate disputes over trade union recognition. It also has new powers in relation to European Works Councils. The CAC's approach is flexible and seeks to be problem-solving. The CAC's role with regard to trade union recognition will form the vast majority of its work. The CAC's existing ability to provide voluntary arbitration in industrial disputes and determine claims from trade unions on the disclosure of information for collective bargaining purposes will continue. This guide only covers the statutory recognition provisions.

    Statutory recognition

    2.2 The statutory recognition provisions of the Act provide that, in certain circumstances, a trade union may apply to the CAC for a declaration that it should be recognised to conduct collective bargaining regarding pay, hours and holidays on behalf of workers employed by an employer in a particular bargaining unit. The basic principle is that recognition is granted if a majority of the workers in the bargaining unit wish it, provided that the application meets the statutory criteria (for example, applications cannot be accepted where the employer employs a total of less than 21 workers). The CAC may declare the union to be recognised without a ballot if more than 50% of the workers in the bargaining unit are members of the union. If, alternatively, the CAC calls for a ballot, recognition will be granted if a majority of those voting, and at least 40% of the workers in the bargaining unit, vote in favour. Following a declaration of recognition, either party can ask the CAC to try to help the parties agree a bargaining procedure. If the parties cannot agree, the CAC specifies a procedure. A procedure specified by the CAC is legally enforceable unless the parties agree otherwise.

    2.3 Once the CAC has accepted an application for recognition of a particular bargaining unit, no other application can be accepted from that union in respect of that bargaining unit, or one that is substantially the same, for three years. The statutory recognition process is set out more fully at Annex 1 [not reproduced here].

    2.4 There are also statutory procedures for de-recognition, changes to the bargaining unit and specifying a method of bargaining where the parties have reached a semi-voluntary agreement. These are summarised in Annex 2 [not reproduced here].

    CAC Proceedings

    3.1 The CAC will be even-handed in its application of the provisions of the legislation. The procedures will be as user-friendly for both employers and trade unions as possible. Applications for statutory recognition may be made to the CAC if a direct request to the employer does not result in recognition.

    3.2 Applications will be received by CAC case managers who will do all they can to explain the procedures and help both parties understand the implications of the legislation, as well as resolve difficulties. The existence of each application will be made public on the CAC's web site, www.cac.gov.uk

    3.3 A panel of three CAC members will be convened to deal with each application. The panel will consist of the CAC Chairman or, more usually, one of the Deputies and one Member with experience as a representative of employers and one Member with experience as a representative of workers. The composition of the panel will normally remain the same throughout an application. Both parties will be informed of the names of the panel members.

    3.4 The CAC's approach will be as flexible as possible, given that the processes are laid down in legislation and are quite formal in nature. The CAC will try to take a problem-solving approach and to help the parties, where possible, reach voluntary agreements outside the statutory process. Both parties are free to contact the case manager at any time to discuss any aspect of the application. The CAC panel will expect the parties to cooperate in providing any relevant information.

    3.5 Since the CAC has a duty to help the parties to resolve underlying problems and reach agreement, some contact between the CAC and the parties will be of an informal nature. However the CAC also has to take formal decisions based on evidence available to both parties, so there is a mix of informal and formal processes. Where necessary, the case manager and panel members will make it clear to the parties when they are discussing matters informally and when the discussion is part of a formal process.

    3.6 The key CAC decision points are:

  • whether to accept the application (in all cases);

  • what the bargaining unit should be;

  • if the bargaining unit agreed or decided is different from that in the original application, whether the application is valid with the new bargaining unit;

  • whether a ballot is needed, and how it is to be conducted;

  • what the method of conducting collective bargaining should be.

    Not all the decision points will arise in every case.

    Application form

    3.7 The application form is available from the CAC, together with notes on the information required from unions making applications. Applicants should complete the form in as much detail as possible, but in the knowledge that it and any supporting documentation must be copied to the employer. It would therefore not normally contain names or addresses of individuals. It is however essential that the description of the bargaining unit in the application is sufficiently clear for the CAC, and the employer, to be able to identify readily which posts are covered by the bargaining unit and which are not. Information about the number of workers in the bargaining unit who belong to the union making the application should also be included, together with evidence (in any form) that the majority of workers in the bargaining unit is likely to favour recognition.

    3.8 Key points to note:

    (a)in the application form, the union has to define the bargaining unit by functional groups and/or posts, and give the total number of workers in the bargaining unit. This information has to be copied to the employer.

    (b)Also in the application form, the union has to provide the number of union members in the bargaining unit. This information has to be copied to the employer.

    (c)If either (a) or (b) is the subject of challenge, further verification may be necessary by way of a membership check or otherwise.

    Confidentiality

    3.9 Both the union's application papers and the employer's comments on them will be copied to the other party. Either party can discuss matters in confidence with the case manager and, where appropriate, with members of the panel, or with ACAS, when the CAC is trying to help the parties to each agreement. But, if the confidential information concerns key facts that are relevant to the panel's decision (eg impending mergers or take-overs of either businesses or trade unions), then the panel may later need to reveal these facts to the other party in the interests of fairness, to enable them to be checked and/or challenged at a hearing. The panel will always warn the party concerned in advance before disclosing any information previously given in confidence. Names and addresses of individuals will not be disclosed without agreement, providing they are not supplied as part of the application documentation.

    Hearings

    3.10 If it appears that a hearing will be necessary, the chairman of the CAC panel may hold a preliminary meeting in order to set out procedures and identify the issues disputed. The parties will be asked to submit and exchange evidence in the form of written submissions prior to the hearing. New evidence will only be admitted at hearings for good reasons. The parties will be asked to inform the CAC panel in advance of the names of the speakers proposed for the hearing. The parties may appoint representatives but there is no requirement to use lawyers. Hearings will generally be held in public, although it is open to the CAC to hold a hearing (or part of a hearing) in private, for example if the panel considers there are areas of particular confidentiality or that it is necessary in order to reach a satisfactory settlement. The CAC intends to hold hearings in as informal a way as is consistent with clarity and fairness. Each party will be asked to comment on and amplify its written statement and to comment on the other's evidence and to answer questions put by the CAC panel. Speakers may be cross-questioned where factual issues are in dispute, at the discretion of the chairman of the panel. Evidence is not given under oath.

    3.11 The CAC is required to meet relatively short deadlines set by statute, and hearings will normally be arranged as quickly as possible to meet these and the convenience of the parties. The CAC expects that hearings will normally be completed in a day, and the procedures adopted at the hearings will be based on that expectation. While the CAC is based in London, hearings may be arranged at locations more convenient to the parties. The decision on location will rest with the CAC.

    CAC Decisions

    3.12 Decisions, declarations, and determinations of the CAC will be publicly available, but will not normally be publicised by means of a Press Notice unless the application raises issues of public interest. Where decisions of the CAC are publicised, the parties will be informed first. All decisions are made in the name of the CAC rather than that of the individual panel members. Decisions of the CAC in summary form will, after being notified to the parties, be posted on the CAC web site [www.cac.gov.uk].

    3.13 The CAC does not charge for carrying out its statutory functions (and there is no scope for the CAC to pay the expenses of either party). However, where a ballot is held (see Annex 1, Stage 7), the costs are divided between the parties on a 50/50 basis.

    Contact details for CAC

    Address: Central Arbitration Committee, Third Floor, Discovery House, 28-42 Banner Street, London EC1Y 8QE, tel: 020 7251 9747, fax: 020 7251 3114, web site: www.cac.gov.uk

    Contact names

    Secretary and Chief Executive - Callum Johnston

    Operations Managers - Keith Mizon and John Thorpe

    Senior Case Managers - Tim Barnsley and Simon Gouldstone

    Executive Assistant - Donnalyn Morris

    Source: "Statutory recognition - guide for the parties", published by the CAC, June 2000.

  • Form of application (para. 34):
  • Applications must be made in such form as the CAC specifies", and must be supported by such documents as the CAC specifies (see the document extract on pp.4-5).

  • Notice to employer (para. 34):
  • The union (or unions) must give to the employer notice of the application, and a copy of the application and any documents supporting it (see again the document extract on pp.4-5).

  • Existing bargaining arrangements (para. 35):
  • An application is inadmissible if the CAC "is satisfied" that there is already in force a collective agreement under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any workers falling within the "relevant bargaining unit"34 ("RBU"). The CAC guide advises that the existing agreement "can be with any trade union, whether or not it has a certificate of independence, and can be a voluntary or statutory agreement. Equally, the existing collective agreement, does not need to be limited to pay, hours or holidays. A national agreement counts as an existing agreement for this purpose if the employer is party to it and uses the national agreement for collective bargaining [as defined under s.178(2) of the TULR(C)A] purposes." As the CAC guide warns, there need be only one worker in common for this exclusion to apply.

    There are, however, two limited exceptions to this general position. An application will be admissible if:

    -the union (or unions) recognised under the existing collective agreement and the union (or unions) making the application are the same, and the matters in respect of which the union is (or unions are) entitled to conduct collective bargaining do not include pay, hours or holidays (see para. 35(2)). This provision is intended to ensure that unions do not have to give up more limited [voluntary] recognition covering "non-core" issues (for example, disciplinary matters) in order to pursue statutory recognition on pay, hours or holidays under the statutory procedure35.

    -the union under the existing collective agreement does not have (or none of the unions have) a certificate of independence; there was a previous agreement under which that union was recognised by the employer (whether alone or with other unions) as entitled to conduct collective bargaining on behalf of a group of workers which was "the same or substantially the same" as the group covered by the existing agreement; and the previous agreement ceased to have effect within the three years prior to the date of the existing agreement. It is for the CAC to decide whether one group of workers is the same or substantially the same as another, but in so deciding the CAC "may take account of the views of any person it believes has an interest in the matter". According to the CAC guide, "without this provision an employer attempting to avoid statutory recognition could simply re-recognise a non-independent union (or staff association) as soon as it was de-recognised following an application from workers, therefore barring the independent union indefinitely".

    Note: The procedure for seeking to obtain the derecognition of non-independent unions (which is contained in Part VI of Schedule A1) will be considered in our third feature.

  • Minimum required level of support (para. 36):
  • An application is admissible only if the CAC "decides" that -

    (a)members of the union (or unions) constitute at least 10% of the workers constituting the RBU, and

    (b)a majority of the workers constituting the RBU "would be likely to favour recognition" of the union (or unions) as entitled to conduct collective bargaining on behalf of the bargaining unit.

    The CAC must give reasons for its decision. As always, union membership is a question of fact to be determined in accordance with the union (or unions') rules (and see opposite)36. If there is a conflict of evidence on the question, the CAC guide says that "there may be an independent check on the level of union membership in the [RBU]". It also says that the parties can provide evidence as to whether a majority are likely to favour recognition "in any form available". This could include, it suggests, "petitions from workers".

  • Joint applications (para. 37):
  • An application made by more than one union is admissible only if -

    (a)the unions: "show that they will cooperate with each other in a manner likely to secure and maintain stable and effective collective bargaining arrangements"; and

    (b)the unions show that, "if the employer wishes, they will enter into arrangements under which collective bargaining is conducted by the unions acting together on behalf of the workers constituting the RBU".

  • Competing/overlapping applications (para. 38 and see pp.5-6 in text):
  • An application is inadmissible if the RBU contains one or more workers who fall within the RBU or ABU in an existing application made by another union (or unions), and which the CAC has accepted and is proceeding with (but has not issued any declaration either that the union is (or unions are) recognised or not recognised or the parties have not notified the CAC that they do not wish a recognition ballot to proceed).

  • Repeat applications precluded for three years (paras. 39-42):
  • The CAC cannot accept an application if a previous application by the same union (or unions) in respect of the same or substantially the same bargaining unit has been accepted by the CAC within the last three years (para. 39). Similarly, the CAC cannot accept an application within three years of the union(s) failing to achieve recognition under the statutory procedure following a ballot (including a ballot following a change in the BU - to be covered in our third feature) for three years (para. 40), or within three years of the union being derecognised following a ballot (again to be covered in our third feature) - para. 41. It is for the CAC to decide whether one bargaining unit is the same or substantially the same as another, but in deciding the CAC may take account of the views of any person it believes has an interest in the matter (para. 42).

    34 For the purposes of the admissibility requirements summarised in this box, references to the "relevant bargaining unit" mean either the proposed bargaining unit, where the application is made under paragraph 11(2) or 12(2) of Schedule A1; or the agreed bargaining unit, where the application is made under paragraph 12(4).

    35 See comments by Lord McIntosh during Lords Report Stage of the 1999 Act, 8.7.99, Hansard (HL), cols. 1037-1038.

    36 See comments by Lord McIntosh during Lords Committee Stage of the 1999 Act, 7.6.99, Hansard(HL), col. 1191.

    Code of practice on access to workers during recognition and derecognition ballots37: a synopsis

    According to its introduction, the general purpose of the Code is to give "practical guidance" about the issues that arise when an employer receives a request by a union (or unions) for access to its workers at their workplaces and/or during their working time during recognition or derecognition ballots (para. 8 of the Code).

    It also aims "to help the employer and the union[s] to arrive at agreed arrangements for access, which can take full account of the circumstances of each individual case" (para. 9), and to "encourage reasonable an d responsible behaviour by both the employer and the union[s]" (para. 10). In relation to the latter, the Code reminds both parties that "the law provides protections against dismissal or detriment for workers who campaign either for or against recognition" (para. 10 - and see part two of our series).

    Preparing for access

    Section B of the Code advises that "preparations for access should begin as soon as possible", and that the parties "should make full use" of the 10-day period immediately following receipt of a CAC notice that it intends to arrange for the holding of a ballot (para. 14 and see pp.8-9 in text).

    The parties should thus discuss the practical arrangements for the union's (or unions') activities at the workplace, in advance of the access period actually beginning (para. 16). In particular, says the Code, consideration "should be given to establishing an agreement, preferably in writing, on access arrangements. Such an agreement could include:

  • the union's [or unions'] programme for where, when and how it or they will access the worker on site and/or during their working time; and

  • a mechanism for resolving disagreements, if any arise, about implementing the agreed programme of access." (para. 17)

    Access in operation

    The access period will, the Code continues (in Section C), begin as soon as the parties have been informed of the arrangements for the ballot by the CAC (para. 24 and see opposite page in text). If the ballot is to be conducted by post, the Code suggests, "the access period will come to an end on the closing date of the balloting period"; if it is to be conducted at the workplace, "access will continue until the ballot has closed" (para. 25).

    Access agreements should, says the Code, specify who is to be given access to the workers to be balloted. It suggests employers should be prepared to give such access to: individual union members employed by the employer, who are nominated by the union(s) as the lead representatives of their members where the bargaining unit is situated; such workers who are so nominated in respect of the union(s) members at other workplaces in the employer's business, "provided that it is practicable for them to attend events at workplaces where the bargaining unit is situated" (with their travel costs being met by the individuals or the union(s)); and "full-time" union officials (para. 26).

    Among other matters, Section C of the Code deals with:

  • Location of access - "Where practicable in the circumstances, a union [or unions] should be granted access to the workers at their actual workplace". Each case will, however, "depend largely on the type of workplace concerned, and the union[s] will need to take account of a wide variety of circumstances and operation requirements that are likely to be involved. In particular, consideration will need to be given to the employer's responsibility for health and safety and security issues. In other words, access arrangements should reflect local circumstances and each case should be examined on the facts." (para. 27)

  • Mode of access - Where they are suitable for the purpose, the employer's "typical methods" of communicating with its workforce "should be used as a benchmark for determining how the union[s] should communicate with members of the same workforce during the access period"(para. 28). More specifically, employers, where practicable, should provide a notice board for the union's (or unions') use (para. 34). The Code also contains paragraphs dealing with internet use and use of employers' internal electronic communications. In these cases, the Code suggests, the extent of access will depend upon whether the employer "explicitly, or tacitly," allows its workers to use such systems in connection with activities or for matters that are "not directly related to the performance of their job" (paras. 35 and 36).

  • Timing of access - Access "should usually take place during working hours but at times which minimise any possible disruption to the activities of the employer" (para. 29).

  • Frequency and duration of access - Subject to the above, "the employer should allow the union to hold one meeting of at least 30 minutes in duration for every 10 days of the access period, which all workers or a substantial proportion of them are given an opportunity to attend" (para. 30). These may be supplemented, where it would be appropriate in the circumstances, by union "surgeries" organised at the workplace during working hours "at which each worker would have the opportunity, if they wish, to meet a union representative for fifteen minutes on an individual basis or in small groups of two or three" (para. 31). The Code states employers "should ensure that workers who attend a meeting or a 'surgery' organised by the union[s] with his agreement, should be paid, in full, for the duration of their absence from work [provided that the worker would otherwise have been at work" (para. 32). Perhaps paradoxically, if the union wishes one of the employer's workers to conduct a "surgery", the Code says only that "the employer should normally give time off with pay to the worker concerned ... Exceptionally, it may be reasonable for the employer to refuse time off" (para. 33 and see further part two).

  • Arrangements for non-typical workers - The employer should bear in mind the difficulties faced by unions in communicating with: shift workers; part-time workers; homeworkers; a dispersed or peripatetic workforce; those on maternity or parental leave; those on sick leave (para. 38).

    Two further sections of the Code deal with the general responsibilities of employers and trade unions (in particular, for example, the need to behave responsibly and to avoid "acrimonious situations" - see Section D) and non-compliance with the access provisions (Section E).

    37 The Code itself imposes no legal obligations and failure to observe it will not in itself render anyone liable to proceedings. But any of its provisions are admissible in evidence and must be taken into account in proceedings before any court, tribunal or the CAC where they consider them relevant (para. 13). Copies of the Code can be obtained from the CAC (see the document extract on p.4-5 for contact details).

    "Model" method of collective bargaining: a summary

    Contained in a Schedule to the Trade Union Recognition (Method of Collective Bargaining) Order, the purpose of the model method "is to specify a method by which the employer and the union[s] conduct collective bargaining concerning the pay, hours and holidays of the workers comprising the bargaining unit" (para. 1 of the Schedule to the Order), and the employer must not grant the right to negotiate in respect of those matters "to any other union" in respect of workers covered by the model method (para. 2).

    Joint negotiating bodies

    The model method requires that the employer and the union(s) establish "a joint negotiating body" ("JNB") to discuss the relevant issues (para. 4), This will usually contain three representatives from each side, although the union side may be larger since each recognised union (if more than one) is entitled to at least one seat (para. 5).

    Employer representatives "must either be those who take the final decisions within the employer's organisation in respect of the pay, hours and holidays of the workers in the bargaining unit or who are expressly authorised by the employer to make recommendations directly to those who take such final decisions. Unless it would be unreasonable to do so, the employer shall select as a representative the most senior person responsible for employment relations in the bargaining unit." (para. 6). Union representatives will be appointed in accordance with union(s) rules and procedures, and may be either individuals employed by the employer or employed officials of the union(s).

    It is stipulated that the chairmanship of the JNB will alternate between the appointed chairmen of the two sides at yearly intervals, with the first 12 months following the first meeting of the JNB being chaired by the chairman of the employer side (para. 10). Provision is also made in respect of the circulation of documentation and agendas by the employer-side secretary (para.11), as well as the record of meetings which "does not need to be a verbatim account, but should fully describe the conclusions reached and the actions to be taken" (para. 12).

    Bargaining procedure

    According to the model method, "the union's [or unions'] proposals for adjustments to pay, hours and holidays" must be dealt with on an annual basis, unless the two side agree a different bargaining period.

    The JNB must conduct these negotiations for each bargaining round according to a six-stage procedure (see generally para. 15):

  • Step 1 - The union (or unions) must set out in writing to the employer its (or their) proposals ("the claim") "to vary the pay, hours and holidays, specifying which aspects it wants to change", and this must generally be submitted timeously. In cases where there is no annual established date on which the employer currently reviews the specified bargaining matters, the union must put forward its first claim within three months of the imposition of the model method (and by the same date in subsequent rounds).

  • Step 2 - Within 10 days of the employer side of the JNB's receipt of the union's (or unions') letter, a quorate38 meeting of the JNB must be held to discuss the claim.

  • Step 3 - Within 15 working days immediately following the step 2 meeting, the employer must either "accept the claim in full or write to the union[s] responding to its [or their] claim". A written response may be presented at a JNB meeting to be held within the 15-day period and called by the employer . The employer's written response must set out "all relevant information in [the employer's] possession and, in particular, "information costing each element of the claim and describing the business consequences, particularly any staffing implications ..." It is not, however, required to disclose information that it would not or could not be required to disclose under the existing provisions on the disclosure of information for collective bargaining purposes (see ss.181 and 182 of the TULR(C)A). If the employer's response contains counter-proposals, it must set out the reasons for making them, together with supporting evidence.

  • Step 4 - Within 10 working days of the union side of the JNB's receipt of the employer's written response, a further quorate meeting of the JNB must be convened to discuss it.

  • Step 5 - If no agreement is reached at the step 4 meeting (or the last of such meetings if more than one is held at that stage), another quorate meeting of the JNB must be held within 10 working days. Up to two additional individuals may attend and participate at this stage, and on the union side these will be employed officials of the union.

  • Step 6 - If no agreement is reached at the step 5 meeting (or the last such meeting ...) within 5 working days the parties must consider, separately or jointly consulting ACAS with a view to conciliation.

    An employer must not, under the model method, vary contractual terms affecting the pay, hours and holidays of workers in the bargaining unit, unless it has first discussed its proposals with the union.

    Any collective agreement entered into as a result of negotiations under the above procedure should be in writing, and disputes about compliance dealt with broadly in accordance with steps 5 and 6 above.

    Facilities and time off

    If they are employed by the employer, the model method states that union members of the JNB must be given paid time off by the employer to attend:

  • JNB meetings;

  • a two-hour pre-meeting of the union side before each JNB meeting; and

  • a day-long meeting to prepare the claim at step 1 in the bargaining procedure (para. 21).

    The model method also provides that "the employer shall agree to the union's [or unions'] request to hold meetings with members of the bargaining unit on company premise to discuss the step 1 claim, the employer's offer or revisions to either ... Where such meetings are to be held in working time, the employer is under no obligation to pay individuals for the time off." (Para. 23 and see part two of our series).

    38 A JNB meeting will be quorate if 50% or more of each side's members (or, where applicable, their substitutes) are in attendance.