The need for a ballot

If the union has recruited more than half the workers in the bargaining unit, the CAC may be able to award recognition without the need for a ballot. Only a minority of unions have achieved statutory recognition this way. Generally, the claim goes through a series of procedures and is most likely to be concluded by means of a secret ballot of workers.

The ballot can either be held by post sent to the individual’s nominated address, or at the workplace, or a combination of the two. It is up to the CAC to decide. Regardless of the employer’s attitude to the union, they have a legal duty to co-operate generally with the union and with the person appointed to conduct the ballot and to provide the CAC with a list of workers’ names and addresses. The CAC can order a ballot to be re-run if not all the workers entitled to vote had been given that opportunity (R (on the application ofUltraframe (UK)) v CAC ([2005] IRLR 641)).

Unions must be given reasonable access to the workforce. In 2005, the Department of Trade and Industry (now BIS) introduced a Code of Practice on recognition and derecognition, Access and unfair practices during recognition and derecognition ballots. The Code can be found on the BIS website.

The Code gives advice to employers and unions on what arrangements should be made so that the union gets the opportunity to put its case to workers in the bargaining unit. It suggests a mass meeting lasting at least 30 minutes every 10 days of the access period and, where appropriate, for “surgeries” to be held during working hours where workers can meet with the union individually or in small groups.

The union should be allowed to display material in a prominent place and, where appropriate, workers should have access to information on the internet and by email. The Code also explains the unfair practices that are prohibited during the balloting process, which include offers of money, threats or coercion intending to influence the outcome of the ballot. In addition it contains a guide to fair campaigning.

The Employment Relations Act 2004 (ERA 04) introduced postal voting rights to workers who are absent from work on the date of the recognition ballot.

Whatever the methods agreed, the union should have the same access to the workforce as the employer. If the employer puts out a circular with arguments against recognition, the union should be allowed to circulate its arguments in favour.

To win a recognition ballot, it is not enough simply to get a majority of the votes cast (50% plus one). At least 40% of the entire bargaining unit must also vote in favour of recognition. In effect, abstentions count as votes against the union.

If the ballot goes in the union’s favour, or if the CAC declares that there should be recognition without a ballot because the union already has more than 50% of the workforce in membership, the employer and union have to try to negotiate a collective bargaining procedure. With a statutory recognition award, the union is limited to an agreement to negotiate over pay, hours and holidays. “Pay” had been defined widely by the CAC to include pension rights but the ERA 04 reversed this position, making it clear that pensions are excluded from the definition of pay.

If employers and unions cannot reach an agreement on procedures, the CAC will impose one. This will normally involve setting up a joint negotiating body and a six-stage bargaining procedure, with each stage having a specified timetable.

Although the law on recognition appears extremely complicated, unions initially experienced significant successes. It has led to both statutory awards for recognition and to a significant increase in voluntary recognition, as employers realise that they could secure a more acceptable agreement through co-operation. More recent statistical evidence points to a decline in successful applications (see Is it only a flash of recognition? Mackay and Moore, Labour Research, May 2013).