What is it?
Recognition of a trade union is about the employer’s acceptance of that union’s right to participate in ‘collective bargaining’ on behalf of, and otherwise to represent the interests of, a category of workers.
Whether an employer chooses voluntarily to recognise it or not, a trade union can nonetheless seek statutory recognition for ‘collective bargaining’.
What is ‘collective bargaining’?
The scope of collective bargaining will often vary according to the way in which the right to undertake it has arisen in the first place.
If recognition has been voluntarily agreed;
Collective bargaining can, according to the particular agreement, cover any of the matters under the general statutory definition. These are:
◉ terms and conditions of employment
◉ physical conditions of work
◉ engagement or non-engagement of any worker
◉ termination or suspension of employment, or the duties, of any worker
◉ allocation of work or duties between workers or groups of workers
◉ disciplinary matters
◉ a worker’s membership or non-membership of a trade union
◉ facilities for union officials
◉ the machinery for negotiation and consultation, and procedures on the topics above.
When statutory recognition (see below) is awarded:
The scope of collective bargaining is then either dependent upon the agreement reached (‘semi-voluntary’) or, if the statutory default model is imposed, it is limited to a narrower statutory definition, which covers only:
Legal status and effects of collective agreements
A collective agreement between employer(s) and recognised trade union(s) is not, itself, legally binding and enforceable between those parties. However, the incorporation of parts of a collective agreement into the individual employment contracts is the way in which a change agreed between employer and union becomes legally effective. The making of the new agreement on pay or another appropriate subject can vary the terms of employment, whether or not the employee is a member of the union. And, even if the employment contract does not have an express clause incorporating the results of collective bargaining, an employee in the bargaining group is generally treated as being covered by terms agreed between the employer and the union.
Legal significance of recognition
However it comes about, once the recognition of a trade union is established or acknowledged, it brings into being certain rights and responsibilities created by legislation. The major ones concern:
◉ time off for officials, learning representatives and employees
◉ consultation on redundancy, measures in connection with a transfer of undertaking and, perhaps, pension changes
◉ the disclosure of information (see below).
Although these subjects might also be covered by aspects of an initial or subsequent ‘procedural agreement’ between employer and union, the relevant legislation applies automatically and cannot be excluded by the terms of an agreement or by the failure of an agreement to mention them.
There are other union-related rights that do not depend upon recognition. For example, protection against victimisation and the right to be accompanied at disciplinary and grievance hearings.
‘Compulsory’ statutory recognition
Initiating the process
The statutory recognition procedure allows an independent trade union to seek recognition for collective bargaining on behalf of a specified group of workers. This group of workers is known as the ‘bargaining unit’.
The union starts the process by making a written request to the employer for recognition. If voluntary agreement cannot be reached between the parties within a specified period, the union may apply to the Central Arbitration Committee (CAC) to decide on recognition.
What is the procedure if the parties cannot agree?
If the parties cannot agree, within a fixed period, on the appropriate bargaining unit for the debate on recognition, the CAC’s first task will be to decide that question.
For an application to proceed, at least 10% of the proposed bargaining unit must be members of the union and, in the view of the CAC, a majority of the workers in the unit must be likely to favour recognition.
If the majority of the workers in the bargaining unit are members of the union, the CAC normally awards recognition without a ballot of the workforce. If a ballot is necessary, recognition must be supported by a majority of those who vote and by at least 40% of the workers who constitute the bargaining unit.
If recognition is granted, the parties must then seek to agree on a method of conducting collective bargaining. If the parties cannot reach agreement on this, they must adopt the CAC’s procedure, which requires the employer to negotiate with the union at least on pay (excluding pension rights), hours and holidays. This enforced agreement will be legally binding between the parties.
Should either the employer or the union fail to comply with a bargaining procedure imposed by the CAC, the offended party can apply to a civil court for an order that the other party comply. Breach of such an order is a criminal offence.
What if the application for recognition fails?
Should the application to the CAC ultimately fail (after being allowed to proceed), no further application can be made by the union for the same or similar bargaining unit within the next three years.
Removing union recognition
There is a similar procedure, to be used in defined circumstances by an employer and/or workers, for derecognition of a union that enjoys ‘compulsory’ recognition.
What happens when TUPE applies?
Under TUPE, recognition, whether voluntary or statutory, will pass over to the new employer if the transferred entity remains distinct from the rest of the new employer’s business.
However, although statutory recognition can only be cancelled using the prescribed procedure mentioned above, voluntary recognition can be ended immediately by the new employer if it wishes.
The employer must disclose certain information to recognised independent trades union(s) for collective bargaining. The union(s) must make, and co-ordinate, requests in writing and specify their relevance. There are limitations on the employer’s obligations. The Acas Code of Practice 'Disclosure of Information to Trade Unions for Collective Bargaining Purposes' provides guidance on the disclosure of information. Failure to observe the Code does not itself render anyone liable to proceedings, but relevant provisions of the Code are taken into account in proceedings before the CAC.
The sanction is a complaint to the CAC, which can make ‘one-off’ awards in individual contracts, based on what the settlement would have been had information been available to the trade union.
Any term in a commercial contract that specifies the use of only union or non-union labour is void. It is also unlawful to exclude a tender, or to fail to award a contract, or to terminate a contract, on grounds that anyone employed, or likely to be employed, on work connected with the contract is, or is not, a member of a union. The same conditions apply to contracts that specify recognition of and negotiation/consultation with unions or unions’ officials.
The contractual consequences
Industrial action by workers, whether official (supported by one or more trade unions) or not, almost invariably involves, or causes, breaches of contract or other interference with contractual relations. Such breaches or interference may relate to:
◉ the contracts of employment of those taking the industrial action, and/or
◉ the contracts of employment of other workers, whether employed by the employer at the heart of the industrial dispute or another employer caught up in it, and/or
◉ commercial contracts of the employer at the heart of the dispute or those of another organisation.
What is the legal position of someone who organises industrial action?
Just as a breach of contract can itself be the subject of a common law legal action by the injured party, so can the civil wrong of inducing or encouraging that breach. In legal terms, that is what the organiser of industrial action (whether a union or an individual) does.
It is often more effective for an employer to seek legal redress from an organiser of industrial action, particularly a trade union, than from the individual workers who participate.
As a result of this, leaving the common law to operate by itself would mean that industrial action would almost always be unlawful and open to legal action, regardless of the circumstances. Legislation has therefore intervened to give organiser(s) of the industrial action protection from legal liability if it is ‘in contemplation or furtherance of a trade dispute’ and then satisfies additional requirements.
A trade dispute exists when workers are in dispute with their own employer and the dispute is wholly or mainly about matters such as pay, conditions and jobs. This excludes disputes between union(s) and employer when none of that employer’s employees is in dispute; disputes between unions or groups of workers; and, usually, disputes about matters overseas.
Additional requirements for statutory immunity of organiser(s) of industrial action
1 Ballots. A trade union loses immunity if its industrial action has not received majority support in a ballot of members employed within the group(s) that are likely to be called to take action in which at least 50% of those eligible to vote exercised their right to do so. Normally, if industrial action covers different places of work, separate ballots must be held for each one.
The ballot paper must summarise the dispute underlying the proposed action and indicate the period within which the action is expected to occur.
In certain parts of the public sector (non-ancillary work in health, schools, fire services, transport, border security, decommissioning of nuclear installations and management of radioactive waste and spent fuel), the majority support for industrial action must also constitute at least 40% of those entitled to vote in the ballot.
In all cases, the number actually voting includes those returning spoiled or otherwise invalid ballot papers.
The employer must have received at least seven days’ notice of the union’s intention to hold a ballot and must have had sight of the ballot paper (which must set out a summary of the dispute) at least three days in advance of the ballot. As soon as practicable after the ballot, the union must notify both all those entitled to vote and the employer of the result and provide the employer with information about voting patterns. Ballots with a potential constituency in excess of 50 must also have an independent scrutineer.
There is a supporting Code of Practice, ‘Industrial Action Ballots and Notice to Employers’, which provides practical guidance.
2 Notice and commencement of industrial action. A trade union must also give the employer(s) subject to industrial action at least seven (if the employer agrees) or otherwise fourteen days’ written notice of the start of that action. Failure to do so results in loss of immunity.
Industrial action must occur within six months (or a longer agreed period not exceeding nine months) of the date of the ballot. After the expiry of that period, any new or continuing industrial action will only have immunity if it is supported by a fresh ballot.
The supporting Code of Practice, referred to in 1 above, provides practical guidance.
3 Secondary action, such as ‘blacking’ and sympathetic strikes, has no immunity, unless it occurs in the course of picketing that is lawful under 6 below.
4 A person who induces, or threatens to induce, a breach of contract because the employer employs, or has employed, non-union members or fails, or has failed, to discriminate against them has no immunity.
5 Pressure to impose membership or recognition of a union(s). Unions or other persons who organise industrial action to put pressure on an employer to act in a way that is contrary to the provisions for union membership or recognition in commercial contracts (see above) have no immunity from legal action. Nor do those who organise or threaten industrial action that interferes with the supply of goods or services on grounds that:
◉ work done in connection with the supply of goods or services has been or is likely to be done by non-union members, or
◉ the supplier of the goods and services does not recognise or negotiate/consult with unions or union officials.
6 Picketing. Lawful picketing is limited to:
◉ employees at or near their own place of work
◉ an official of a union accompanying a union member, whom he or she represents, at or near the member’s place of work
◉ an unemployed person at a former place of work in furtherance of a dispute connected with dismissal, resignation or redundancy.
In addition, the following requirements must be observed:
◉ the union must appoint an official or other member familiar with the Code of Practice (see below) as picket supervisor (PS);
◉ the union or the PS must take reasonable steps to tell the police the PS's name and how to contact him/her;
◉ the PS must have a letter of authorisation, to be shown to the employer or its representatives on request;
◉ the PS must be in attendance at the picket (and outwardly identifiable in some way) or readily contactable and able to attend at short notice.
If it is induced by lawful picketing, secondary action will have immunity from liability – for example, if a delivery driver is persuaded to turn back, so inducing a breach of the driver’s contract and of the commercial contract(s) for supply and delivery.
The supporting Code of Practice, ‘Picketing’, provides practical guidance.
Other aspects of industrial action
Liability of trade unions
Those who suffer, or stand to suffer, loss because of unlawful industrial action (action that does not meet the applicable requirements of 1 to 6 above) can seek a court order (injunction) requiring the union to restrain or delay the action and/or can sue the union for damages.
The union is responsible if its actions are authorised or endorsed by the executive committee, president, general secretary or any official (including a shop steward) or committee. If authorisation or endorsement is by an official or committee, the union can avoid liability if the action is repudiated by the principal executive committee, president or general secretary.
Limits on damages against unions
The upper limits on damages awarded against a union in a single set of legal proceedings for unlawful industrial action are:
◉ if the union has fewer than 5,000 members £10,000
◉ 5,000 - 24,999 members £50,000
◉ 25,000 - 99,999 members £125,000
◉ 100,000 or more members £250,000.
The dismissal of participants in industrial action
A dismissal will be automatically unfair if it is for taking, or having taken, part in official (authorised or endorsed by a trade union – see above) industrial action that is also lawful (‘protected’ by statutory immunities – see above) when the dismissal occurs in one of the following circumstances:
◉ during the 12-week, ‘protected period’ that starts with the first day on which the action was taken by the employee
◉ after the 12-week period, but when the employee’s participation in the action stopped before the end of that period
◉ when the employee’s action continued beyond the 12-week period, but the employer had not followed all reasonable procedural steps to resolve the dispute.
(1) The fairness of a dismissal occurring during participation in official industrial action that is not lawful will not be considered by a tribunal unless some other participants were not dismissed at the time or (although all were originally dismissed at that time) some were re-engaged within a period of three months. However, those dismissed for having previously participated in such action retain the normal protection from unfair dismissal.
(2) Those dismissed at the time of their participation in ‘unofficial’ industrial action have no right to claim unfair dismissal. However, those dismissed for having previously participated in such action (which had ceased at the date of dismissal) retain the normal protection from unfair dismissal.
Temporary replacement labour
Currently, there are restrictions on the supply of temporary labour to replace those participating in industrial action, although these are subject to Governmental scrutiny and may ultimately be abolished.