The statutory recognition ballot

If the union has recruited more than half the workers in the bargaining unit, the CAC may be able to award recognition without the need for a ballot. However only a minority of unions have achieved statutory recognition in this way. Generally, the claim is most likely to be concluded by means of a secret ballot of workers.

The ballot can either be held by post sent to the individual’s nominated address, or at the workplace, or a combination of the two. It is up to the CAC to decide. Regardless of the employer’s attitude to the union, they have a legal duty to co-operate generally with the union and with the person appointed to conduct the ballot, and to provide the CAC with a list of workers’ names and addresses. The CAC can order a ballot to be re-run if not all the workers entitled to vote were given the chance (R (on the application of Ultraframe (UK)) v CAC [2005] IRLR 641).

Unions must be given reasonable access to the workforce. In 2005, the Department of Trade and Industry (now BIS) introduced a Code of Practice on recognition and derecognition, Access and unfair practices during recognition and derecognition ballots. The Code is on the GOV.UK website.

The Code gives advice to employers and unions on what arrangements should be made so that the union gets the opportunity 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” to be held 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 and where appropriate, workers should have access to information on the internet and by email. The Code also explains the unfair practices that are prohibited during the balloting process, which include offers of money, threats or coercion intending to influence the outcome of the ballot. In addition it contains a guide to fair campaigning.

The Employment Relations Act 2004 (ERA 04) introduced postal voting rights to workers who are absent from work on the date of the recognition ballot.

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.

To win a recognition ballot, it is not enough simply to secure a majority of the votes cast (50% plus one). At least 40% of the entire bargaining unit must also vote in favour of recognition. In effect, abstentions count as votes against the union.

If the ballot goes in the union’s favour, or if the CAC declares that there should be recognition without a ballot because the union already has more than 50% of the workforce in membership, the employer and union must try to negotiate a collective bargaining procedure. With a statutory recognition award, the union is limited to an agreement to negotiate over pay, hours and holidays. Pensions are excluded from the definition of pay.

“Pay, hours and holidays” has a very narrow meaning. In BALPA v Jet2.Com.Ltd [2015] EWWHC 1110, the High Court ruled that it covers only “core” contract terms relating to pay, hours and holidays. In particular, it does not include any collective term relating to pay, hours or holidays that cannot be incorporated into the individual employment contract (see Chapter 3). In this particular case, pilot rostering arrangements (i.e. the shifts, hours and periods worked by pilots) did not count as “pay, hours or holidays”, even though the arrangements directly affected all three contract terms.

Part of the explanation for this narrow interpretation is that in cases where employers and unions fail to reach agreement, the CAC imposes a cumbersome and rigid six stage bargaining procedure, leading to an annual formal negotiation meeting. It is not suited to collective bargaining on issues that call for ongoing negotiation and flexibility to respond to workplace changes. The two parties can obviously reach agreement on a more flexible way of negotiating, but where, as in the Jet2 example, the employer is implacably opposed to any trade union involvement at all, the bargaining framework and agenda for compulsory bargaining under the statutory recognition procedure will be very limited, as this case shows.

Although a hostile employer can be forced to participate in the formal bargaining process, they cannot be forced to negotiate meaningfully. For example, in BALPA v Jet2.Com.Ltd [2015] EWWHC 1110, each year before the annual pay negotiations with BALPA, the airline contacted each pilot in the bargaining unit directly, to announce the planned pay rise. The airline never moved from this pay offer and its intention throughout was to undermine the union. Nevertheless, ruled the judge, Jet2 had not breached the statutory procedure. The obligation to negotiate under the compulsory recognition procedure does not impose any obligation on either party to come to the negotiations with a particular state of mind, said the judge.