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The statutory recognition ballot
[ch 5: pages 145-146]If a union has already recruited more than half the workers in the bargaining unit, the CAC can award recognition without a ballot.
The secret ballot can be a postal or workplace ballot, or a combination of the two. It is for the CAC to decide. There are postal voting rights for workers who are absent on the day of the ballot. There is no provision for online voting.
Employers owe a legal duty to co-operate with the union and the ballot scrutineer and to give the CAC a list of workers’ names and addresses. The CAC can order a re-run of the ballot if not all workers entitled to vote were given the chance (R (on the application of Ultraframe UK v CAC [2005] IRLR 641) or to extend the ballot run if there is evidence that significant numbers of workers did not get a ballot paper because of poor quality address information (see Boots litigation, box, page 147).
Once a secret ballot has been ordered, unions must be given reasonable access to the workforce. There is a statutory Code of Practice: Access and unfair practices during recognition and derecognition ballots, available from the GOV.UK website. The Code outlines arrangements that should be made to enable the union 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” 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. The Code explains the unfair practices that are prohibited during the balloting process. These include offers of money, threats (for example, of disciplinary action) or coercion intending to influence the outcome. It also contains a guide to fair campaigning.
The Code predates the rise of social media, which offers many innovative, low-cost opportunities to build support for recognition, especially for “hard-to-reach” workers who are home-based or mobile, who work anti-social or variable shift patterns, or whose employer is actively hostile to recognition.
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. The ballot cost is shared between union and employer.
To win a recognition ballot, it is not enough to secure a majority of the votes cast (50% plus one). Instead, the union needs a vote in favour from a majority of those voting and at least 40% of the workers in the bargaining unit. In effect, abstentions count as votes against the union.