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The statutory recognition procedure
[ch 5: pages 115-117]TULRCA provides a mechanism for unions to gain statutory recognition even where the employer is implacably opposed. These rules are found in Schedule A1 to TULRCA.
There are very many limitations to the statutory recognition procedure, which is generally regarded by unions as not fit for purpose.
The statutory recognition law does not apply to small employers — those with 20 or fewer workers. The legislation extends to workers and not just employees. However, freelance workers 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 must submit a request in writing to the employer. If it is unable to negotiate a recognition agreement, it must make a formal application in writing to the Central Arbitration Committee (CAC).
When making a formal application, the union must 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”.
Courts have interpreted this to mean that a union’s bargaining unit can usually only be successfully challenged where the employer can show that it is not compatible with effective 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 law allows the CAC to intervene if the employer engages in “unfair practices” (section 10, ERA 04) to influence the result of a recognition ballot.
The first step in the statutory recognition procedure is for the CAC to accept the application as valid. It will only do this if the union can demonstrate that it already has at least 10% of the bargaining unit in membership and that a majority of 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. This is one of the biggest weaknesses in the legislation, as it allows employers to get around the procedure through use of a sweetheart union (see the Boots litigation, discussed in the box below).
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 (Schedule 1A: Collective Bargaining: Recognition, Para 35(1) (4), TULRCA).
The Boots litigation — why the statutory recognition procedure is “unfit for purpose”
Just how much scope there is for a determined employer to resist an application for statutory recognition is illustrated by ongoing litigation involving pharmacists at high street chemist Boots. Boots has gone to extraordinary lengths to avoid recognising an independent union — the Pharmacists Defence Association Union (PDAU) — who want to collectively bargain wages and other terms and conditions for pharmacists at Boots.
Once Boots became aware that PDAU intended to apply for statutory recognition, the company took immediate steps to prevent this by exploiting loopholes in the recognition procedure. Boots secretly signed a “sweetheart deal” with an organisation known as the Boots Pharmacists Association (BPA). The BPA was refused a certificate of independence by the Certification Officer who described it as open to being “dominated or controlled” by Boots, but this did not stop it being lawfully recognised by Boots.
Under its written recognition agreement, the BPA was recognised for collective bargaining, but only over “union facilities and the bargaining machinery”. On all other issues, including the core elements of any collective bargaining agenda — pay, holidays and hours — Boots’ only obligation was to “consult” with the BPA.
Boots was able to use the pre-existing voluntary recognition agreement it had signed with the BPA to block PDAU’s application for statutory recognition.
PDAU launched a legal challenge and an administrative court judge was initially sympathetic to its case, suggesting that by allowing an employer to avoid recognition of an independent union by making a sweetheart deal with a non-independent union on a narrow agenda of peripheral issues, the statutory recognition procedure was incompatible with Article 11 of the European Convention on Human Rights — the right to freedom of association. PDAU was invited to apply for a declaration of incompatibility with the Convention (R (on the application of Boots Management Services Limited v CAC and the PDAU [2014] EWHC 65 (Admin)).
However, following an intervention by the Secretary of State for Business, innovation and Skills, the judge changed his mind and refused to grant the declaration, ruling instead that he was satisfied that the statutory recognition procedure did not infringe Article 11.
The basis for this change of heart is that under Part VI of Schedule A1, TULRCA, (Paragraphs 134-137 (Derecognition where union not independent), an independent union is able to gain recognition when a non-independent union has been recognised by the employer provided it can persuade one worker in the bargaining unit of the sweetheart union to launch statutory derecognition procedures. Given the availability of this potential course of action, the judge ruled out a declaration of incompatibility with human rights law.
The judge conceded that in reality, only a brave employee would be prepared to take this step, given fears of possible reprisal. However, he pointed to the legal right to protection from detriment or dismissal in connection with union recognition (TULRCA Schedule 1A, paras 156–161) and concluded that given the availability of this statutory protection, the statutory recognition procedure did not infringe Article 11. The PDAU is seeking leave to appeal.
(R (on the application of Boots Management Services Limited) v Central Arbitration Committee and Pharmacists Defence Association Union (Secretary of State for Business, Innovation and Skills intervening) [2014] EWHC 2930 (Admin)