TUPE and union recognition
[ch 6: page 58]Union recognition agreements transfer automatically as long as the transferring group “maintains an identity distinct from the remainder of the transferee’s undertaking”. Otherwise, recognition by the transferee must be negotiated (Regulation 6, TUPE).
Where the old employer recognised a union but the new one does not, the transferee should be encouraged to recognise the union and to invite employees to join. In practice, union recognition is one of the first things that must be agreed with the new employer, preferably during consultation before the transfer. This is especially important in a public sector outsourcing, where ex-public sector staff often find themselves employed by small private sector organisations with limited experience of working with unions. Encouraging employees to join the union in the run up to the transfer is very important, Even if the new employer is hostile to trade unions, with enough members among the transferring workforce, the union will be able to apply for compulsory recognition using the statutory recognition procedure (see checklist for reps on page 56).
If both transferor and transferee recognise the same union for transferring employees, that union will continue to be the recognised union after the transfer. However, since there will be two recognition agreements, they should be reviewed and it is normally sensible to negotiate a single agreement.
Most recognition agreements are voluntary, meaning that they can be varied or rescinded by the new employer after the transfer (Regulation 6(2)(b), TUPE).