The statutory recognition procedure

The first step is for the CAC to accept the application as valid. It will only do this if the union demonstrates that it already has at least 10% of the bargaining unit in membership and that a majority of the workers in the unit would be likely to favour recognition. The union must produce evidence in support of these two requirements. This will usually consist of its own membership records and any letters, petitions and other evidence from the workforce showing that there is likely to be majority support for recognition. This information remains confidential. The employer is not given copies of any documents relating to workers’ intentions regarding recognition or whether individuals are union members.

Normally, only one union can apply for recognition for the bargaining unit at a time. Where more than one union wishes to gain recognition for the same group, they must apply together and show they are capable of co-operation. If they cannot do this, both applications are invalid.

A union cannot apply for statutory recognition where there is already a recognised union, even if the recognised union does not have the support of the majority of the workforce in the bargaining unit. An employer can decide to recognise another union at any time up until the CAC accepts the application as valid. The employer’s decision would then block the second union from making a statutory claim.

However, if the existing recognised union does not hold a certificate of independence and the recognition agreement is at least three years old, that pre-existing recognition agreement cannot stop an application by an independent union (Para 35(1) (4) Schedule A1, TULRCA).

The scope of an employer’s ability to resist an application for statutory recognition by pointing to a pre-existing collective agreement with another union came under scrutiny in a key judgment of the Administrative Court, R (on the application of Boots Management Services Limited) v The CAC and the Pharmacists’ Defence Association Union [2014] EWHC 65. In this case, high street retailer Boots exploited a loophole in the legislation that allows an employer to resist an application for statutory recognition by an independent union by signing a collective agreement with a sweetheart union, in this case the Boots Pharmacists Association (BPA). BPA was not an “independent” union. Indeed, shortly after the CAC hearing in this case, it was denied a certificate of independence by the Certification Officer on the basis that it was liable to interference by Boots, “tending towards being dominated or controlled by it”. Even so, the rules allow an employer to defeat an application for statutory recognition by signing a voluntary recognition agreement with another union, even though it is not independent.

However, the recognition agreement between Boots and the BPA allowed for consultation only, not negotiation. The only collective bargaining under the BPA recognition agreement was over union facilities and bargaining machinery. Commenting on the narrow range of subjects that Boots and the BPA had agreed to collectively bargain over, the Administrative Court judge said: “the reality is that in the field of industrial relations, collective bargaining between employers and trade unions is meaningless if it does not engage in some meaningful way with the terms and conditions of employment of the relevant section of the workforce”.

The judge went on to invite the PDAU to apply to the Court for a declaration that the statutory recognition machinery is incompatible with Article 11 of the European Convention on Human Rights, insofar as it enables an employer to block an application by an independent union by relying on a pre-existing agreement to bargain over anything less than the core terms of pay, holidays and hours.

A declaration of incompatibility would mean that it is formally left to parliament to amend the wording of TULRCA. Even so, in the meantime, unions are in a stronger position, as a result of this ruling, to resist sweetheart deals.

The judge’s comments in this case also undermine past rulings such as T&G v Asda [2004] IRLR 836, in which the CAC held that a “partnership agreement” which did not cover pay bargaining was a recognition agreement and thus barred another union from making a statutory claim for recognition.

The Boots judgment flows from the confirmation by the ECHR, in Demir v Turkey [2009] IRLR 766, that the right to bargain collectively with the employer is integral to the right to form and to join trade unions under Article 11 (see page 125).

The Boots decision turned on the scope of collective bargaining with the preferred union. However, it also impacts on the related issue of representivity, i.e. how representative is the employer’s preferred union? Under the statutory recognition procedure, an employer’s sweetheart union can block an application for recognition by an independent trade union even though the sweetheart union does not genuinely represent members in the bargaining unit. For example, in NUJ v CAC [2005] IRLR 28, Mirror Group Newspapers decided to recognise the British Association of Journalists (BAJ) for collective bargaining on pay, holidays, and hours instead of the National Union of Journalists. This was even though BAJ had at most one member in the bargaining unit, whereas NUJ enjoyed considerable support among the workers. The NUJ’s recognition application failed because a pre-existing agreement was in place with the BAJ, even though the BAJ did not properly represent the bargaining unit. Following Demir, NUJ v CAC is unlikely to be good law, paving the way for more successful challenges to employers who block applications for recognition by using sweetheart unions.

Other challenges have succeeded on the basis that the sweetheart union is not a trade union at all. For example, entertainment union BECTU successfully challenged cinema group City Screen when it signed an agreement with a body whose membership consisted solely of four managers and which had no source of funds other than that provided by the company. The CAC held that this was not a “trade union” but a staff association and that therefore it did not bar the BECTU recognition claim (BECTU v City Screen TUR1/309/2003. Under section 1(a) of TULCRA, a trade union is an organisation “which consists wholly or mainly of workers…and whose principal purposes include the regulation of relationship between workers…and employers”.

The principal purpose of a trade union must be collective in nature, whatever other individual services it also offers. In Akinosun (on behalf of General and Health Workers Union) v the Certification Officer [2013] UKEAT 0180/13/0507, the EAT said that a body that only offers representation at internal disciplinary hearings cannot be a trade union. This new case also establishes that the test for whether or not an organisation is a trade union is based on its activities at the date of application to the certification officer, not on evidence of planned future activities.