Statutory recognition

TULRCA provides a mechanism through which unions can gain statutory recognition, even where the employer is implacably opposed to it. However, the law does not apply to small employers — that is those with 20 or fewer workers. The legislation extends to workers and not just employees. However, those who work freelance may be excluded from the calculation of the number of workers (R v CAC [2003] IRLR 460).

To apply for recognition under the statutory procedure, a union has to submit a request in writing to the employer. If it is unable to negotiate a recognition agreement, it makes a formal application in writing to the Central Arbitration Committee (CAC).

When making a formal application, the union has to identify the bargaining unit for which it is seeking recognition. This is the group of workers it wants to represent. It is important to choose the bargaining unit carefully, as the outcome of any eventual ballot can hang on who is, or is not, included in the unit. The law says that the CAC must examine whether a bargaining unit is “compatible with effective management”.

The courts have interpreted this to mean that the union’s bargaining unit will usually only be successfully challenged where the employer can show that it is not compatible with management. It does not have to be the most effective unit of organisation, as long as it is not an ineffective one. If the employer successfully challenges the union’s preferred bargaining unit, the CAC can impose a different one. At this stage the union may choose to withdraw the application.

The Employment Relations Act 2004 (ERA 04) obliges employers to provide the union and the CAC with an up-to-date list of workers in the bargaining unit. It also imposes a legal obligation on a union to provide the CAC with information about its membership. The Act also allows the CAC to intervene if the employer engages in “unfair practices” (section 10, ERA 04) to influence the result of a recognition ballot.