The statutory recognition procedure

The CAC has to first accept the application as valid. It will do this only 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 has to 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 that 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 even decide to recognise another union at any time until the CAC accepts the application as valid, which would block the second union from making a statutory claim.

However, the body with which the employer comes to a deal must be an independent union. Entertainment union BECTU 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 union and therefore did not bar the BECTU claim for recognition (BECTU v City Screen TUR1/309/2003).

An important decision, The Pharmacists’ Defence Association Union (PDAU) v Boots Management Services (TUR1/823/2012), has established that the body with which the employer comes to a deal must be recognised for collective bargaining purposes in relation to at least pay, hours and holidays. In this case, the CAC has held that it would be a breach of Article 11 of the European Convention on Human Rights (ECHR) — the right to freedom of association — for a union to be barred from seeking statutory recognition because of a prior agreement between the employer and a body that does not have the right to bargain collectively on at least these terms.

The decision against Boots follows from a key decision of the ECHR for trade unions, Demir v Turkey [2009] IRLR 766. In this case, the ECHR held that the right to bargain collectively with the employer is one of the essential elements of the right to form and to join trade unions under Article 11:

The CAC in the PDAU case cited the decision in Demir and said that the statutory recognition procedure (Paragraph 35(1) of Schedule A1 of TULRCA) must be interpreted in such a way that an application can only be defeated if there is already a collective agreement in force recognising another union to conduct collective bargaining “in respect of pay, hours and holidays”:

The case reverses earlier decisions such as T&G v Asda ([2004] IRLR 836), in which the CAC had held that a “partnership agreement” which did not include pay bargaining was nevertheless a recognition agreement and thus barred another union from making a statutory claim for recognition.

As long as the collective agreement with the employer’s favoured union gives that union the right to bargain about pay, holidays and hours, it is unlikely to matter that in practice, the sweetheart union fails to exercise its right to collectively bargain effectively on behalf of its members.

The PDAU case was about the terms of a collective agreement, but there may also be cases about “representivity” — the extent to which the employer’s sweetheart union genuinely represents members in the bargaining unit. 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 in the bargaining unit concerned, instead of the National Union of Journalists, even though the NUJ was the far more representative union — BAJ had at most one member in the bargaining unit whereas NUJ had considerable support. NUJ’s challenge failed because at the time (pre-Demir), it was not thought that the right to bargain collectively fell within the rights guaranteed by Article 11. However, in the PDAU case, the employer conceded that following Demir, the NUJ case is no longer good law, paving the way for a future challenge to employers who block applications for recognition using sweetheart unions, based on representivity within the bargaining unit.