The bargaining agenda



If the ballot goes in the union’s favour or if the CAC declares for recognition without a ballot, the next step is to agree a collective bargaining procedure. 




Where statutory recognition is imposed by the CAC, the bargaining agenda will be limited to pay, hours and holidays. (The parties can agree to bargain on other matters). Pensions are excluded from the definition of pay. 





In BALPA v Jet2Com.Limited [2017] EWCA Civ 20, the Court of Appeal pointed out that “trade union representatives and managers are not lawyers” and ruled that the words “pay, hours and holidays” must be given their ordinary meaning. Whether or not a matter “relates” to pay, hours and holidays will depend on the facts in each case. In the Jet2 case, for example, pilot roster arrangements, proposals for a joint rostering monitoring committee, allocation of days off to a pilot’s home base and shift swapping all “related” to pay, hours and holidays, but a proposal for a lounge rest area for pilots did not.

 






The compulsory bargaining procedure imposed by the CAC includes a requirement for the employer to consult the union over its training policy for workers in the bargaining unit and on training plans over the next six months, and to report on any training provided since the last meeting (section 70B (Training), TULRCA). If the employer fails to consult, the union can bring a tribunal claim. The maximum award is two capped weeks’ pay for each member of the bargaining unit (maximum £1,050 per worker, April 2019). 




The Trade Union Recognition (Method of Collective Bargaining) Order 2000 provides a model framework for negotiations. It is a cumbersome and formal six-step procedure which is legally enforceable through an order for “specific performance” (that is, an order compelling a reluctant party to attend negotiations). The parties can agree to something less restrictive if they prefer.




Although a hostile employer can be forced to participate in the formal bargaining process, they cannot be forced to negotiate meaningfully. The statutory obligation to negotiate does not require the employer to come to negotiations in a particular state of mind (BALPA v Jet2.Com.Ltd [2015] EWHC 1110). 


However, an employer that makes a direct offer to members in order to subvert the collective bargaining process is likely to be in breach of section 145B, TULRCA (Kostal UK Limited v Dunkley & Others [2017] UKEAT/0108/17/RN). This is explained on page 149.