Initial threshold of support


An application to the CAC for statutory recognition can only be accepted by the CAC as valid if the union can show the CAC that:


• it has at least 10% of the bargaining unit in membership; and


• a majority of workers in the unit are likely to favour recognition. 


Until this can be shown, unions have no statutory right to access the workplace to help build membership and support for recognition. 


The union must produce evidence to the CAC that it can fulfil both conditions, usually consisting of its own membership records and letters, petitions and other evidence from the workforce showing that majority support is likely. CAC guidance says that if the union wants this information kept confidential from the employer, this must be agreed with the CAC in advance. This is normally done through an agreement with the parties that the CAC case worker will verify each side's information without sharing it with the other. 



Normally, only one union can apply for recognition for the bargaining unit at a time. Where more than one union wants recognition, they must apply together and show they can co-operate. Otherwise both applications will be invalid. 




An independent union cannot apply for statutory recognition if there is already a recognised union, even if that union is not supported by most workers in the bargaining unit. An employer can choose to recognise another union at any time up until the CAC accepts the union’s application for statutory recognition as valid. The employer’s union of choice does not need a certificate of independence from the Certification Officer. 


Once the employer has recognised its preferred union, the other union is blocked from making a statutory claim for recognition, regardless of how much support it enjoys among the workforce. In NUJ v CAC [2005] IRLR 28, Mirror Group Newspapers was allowed to recognise the British Association of Journalists (BAJ) for collective bargaining on pay, holidays, and hours instead of the National Union of Journalists, even though BAJ had at most one member in the bargaining unit, whereas the NUJ enjoyed considerable support. The NUJ’s recognition application failed because of the pre-existing agreement with the BAJ.
This is one of the biggest weaknesses in the statutory recognition regime. It allows employers to get around the procedure by using a sweetheart union (see the Boots litigation, box below).


If a recognised union is not independent and was derecognised at any point in the last three years, then an application from an independent union can be accepted (TULRCA, Schedule A1: Collective Bargaining: Recognition, Para 35(1) and (4)).