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RESEARCH PAPER 00/5523 MAY 2000

Trade union recognition

This paper contains a short account of the newstatutory procedure for trade union recognition whichis due to come into operation on 6 June 2000 under theEmployment Relations Act 1999. Background to theprovisions is contained in two earlier Library ResearchPapers: 98/99 on Fairness at Work and 99/11 on theEmployment Relations Bill 1998/99. Developmentssince those papers were written are traced in this paper.The 1999 Act applies to Great Britain but a similarprocedure will be introduced in Northern Ireland underthe Employment Relations (Northern Ireland) Order1999, SI No 2790.

Julia Lourie

BUSINESS AND TRANSPORT SECTION

HOUSE OF COMMONS LIBRARY

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Summary of main points

• The Employment Relations Act 1999 introduced a lengthy procedure under whichreluctant employers can be compelled to recognise trade unions for the purpose ofcollective bargaining on pay, hours and holidays. The statutory procedure only applies tofirms employing more than 20 workers.

• To achieve statutory recognition, a trade union will have to show in a secret ballot that ithas the support of 40% of those working in the bargaining unit as well as a majority ofthose voting. Alternatively, the union will have to demonstrate that more than 50% of theworkers in the unit are members of the union. Even if they are, the Central ArbitrationCommittee (CAC) may, in certain circumstances, order a ballot.

• The background to the statutory recognition procedure is described in two earlier LibraryResearch Papers: 98/99 on Fairness at Work and 99/11 on the Employment Relations Bill1998/99. This paper contains (in section II) a simplified account of the complex statutoryrecognition procedure which will come into force on 6 June 2000. There are equallycomplicated provisions covering changes in the bargaining unit and derecognition ofunions recognised under the statutory procedure. These, however, are given only cursorytreatment in this paper.

• Section I of this paper outlines the amendments which were made to the trade unionrecognition provisions of the Employment Relations Bill 1998/99 during its passagethrough Parliament and looks briefly at some of the preparations which unions andemployers have been making for the implementation of the legislation. It also givesinformation on the Code of Practice on Access to Workers during Recognition andDerecognition Ballots and the model Method of Collective Bargaining which have beenissued in anticipation of implementation.

• Section III gives details of the membership of the strengthened CAC. This is the keybody, charged with administering and adjudicating the statutory recognition procedures.Finally, a bibliography (in section IV) contains references to material which amplifies theaccount given in this paper. The DTI will be publishing further guidance and explanatorymaterial on its website, http://www.dti.gov.uk/ir/recognition.htm

http://www.dti.gov.uk/ir/recognition.htm

CONTENTS

I Background 7

A. The Employment Relations Bill 1998/99 in Parliament 8

B. Preparing for implementation 17

C. Code of Practice on Access to Workers 19

D. Method of Collective Bargaining 24

II The Statutory Recognition Procedure 26

A. Recognition 26

1. Request for recognition 26

2. First negotiating period 27

3. Second negotiating period 27

4. Application to the CAC 28

5. Determination of the bargaining unit 28

6. “Automatic” recognition 29

7. Ballot on recognition 30

8. Result of the ballot 32

9. Consequences of recognition 32

B. Other provisions 33

1. “Voluntary” recognition 33

2. Changes affecting the bargaining unit 33

3. Derecognition 34

4. Protection against detriment and dismissal 34

III Central Arbitration Committee (CAC) 34

IV Bibliography 39

Appendix: Recognition Procedure Flowchart 41

RESEARCH PAPER 00/55

7

I Background

The Employment Relations Act 1999 introduced a statutory procedure for trade unionrecognition in firms with more than 20 workers. The procedure aims to secure voluntaryagreement, but, if this fails, unions will be able to apply to the Central ArbitrationCommittee (CAC) to decide both the appropriate bargaining unit and whether a majorityof the workers in that unit support recognition. If a majority of those voting in a secretballot and 40% of the workers in the bargaining unit support recognition, the CAC willdeclare the union recognised to conduct collective bargaining on behalf of the workersconcerned.

Section 1 and Schedule 1 of the 1999 Act insert a new Schedule A1, entitled “CollectiveBargaining: Recognition”, in the Trade Union and Labour Relations (Consolidation) Act1992 (TULRCA). A DTI guide to the Act summarises the 60 pages of the Schedule asfollows:

The Act will establish a new statutory procedure for the recognition ofindependent trade unions in organisations employing 21 or more workers, if thatis the wish of a majority of the workforce. The procedure seeks to encouragevoluntary agreements where possible; if employers and unions cannot agree, theCentral Arbitration Committee (CAC) will decide the appropriate bargaining unitand whether the union should be recognised, and if necessary will impose alegally-binding procedure for bargaining about pay, hours and holidays.

The Schedule also includes procedures for changing the bargaining unit andderecognition of unions and protects workers against detriment or dismissal forexercising their rights under the Schedule.1

The Act received the Royal Assent on 27 July 1999. The provisions on trade unionrecognition are due to come into force on 6 June 2000.2

The background to these provisions is covered by two earlier Library Research Papers:

Research Paper 98/99, dated 17 November 1998, on Fairness at Work covers:

• the two previous occasions when first a Conservative and then a Labour Governmentintroduced (rather unsuccessful) procedures for statutory recognition. These were in1971-1974 under the Industrial Relations Act 1971 and 1976-1980 under theEmployment Protection Act 1975

1 http://www.dti.gov.uk/ir/actsumm3.pdf, as at 22 May 2000 2 The Employment Relations Act 1999 (Commencement No 6 and Transitional Provisions) Order 2000,

SI No 1338

http://www.dti.gov.uk/ir/actsumm3.pdf


8

• the decline in both trade union membership and trade union recognition during the1980s and 1990s. The Workplace Industrial Relations Survey (WIRS) recorded that66% of workplaces recognised unions for collective bargaining over pay in 1984, butthis had fallen to 42% by 1998.3 Trade union membership in Great Britain fell from13,289,000 at the end of 1979 to 7,795,000 at the end of 1997.4

• the TUC campaign for rights to representation at work in the mid-1990s

• the promise in the Labour Party manifesto for the May 1997 general election that“where a majority of the relevant workforce votes in a ballot for the union to representthem, the union should be recognised”

• the TUC-CBI joint statement of 4 December 1997 identifying some areas of commonground (but more of disagreement) on how this pledge should be implemented

• the proposals in the White Paper, Fairness at Work, published in May 1998, and thereaction to them

Research Paper 99/11, dated 5 February 1999, on the Employment Relations Bill 1998/99,covers:

• the “refinements” to the White Paper proposals on trade union recognition announcedby Peter Mandelson, then Secretary of State for Trade and Industry, on 17 December1998

• the provisions of the Employment Relations Bill 1998/99, introduced on 27 January1999

• the history of the Central Arbitration Committee

A. The Employment Relations Bill 1998/99 in Parliament

Schedule 1 of the Employment Relations Bill 1998/99 which contained the provisions onstatutory trade union recognition was extensively amended during the Bill’s passagethrough Parliament. What started as a 26-page schedule containing 88 paragraphs endedas a 60-page schedule containing 172 paragraphs. The amendments were all Governmentamendments designed to take on board constructive suggestions made by unions,

3 Neil Millward, Alex Bryson and John Forth, All change at work? British employment relations 1980-1998, as portrayed by the Workplace Industrial Relations Survey series, 2000

4 Information from Certification Officer, reproduced in Labour Market Trends, February 1997 and July1999


9

employers and others during continuing consultations on the procedure. Michael Wills,then a DTI Minister, explained to the Commons Standing Committee on the Bill:

We are also committed, in a spirit of co-operation and partnership, to makingsuch measures as practical and workable as possible. It may help the Committeeif I explain the reasons behind the Government’s amendments to schedule 1. Wehave been consulting more or less continuously on fairness at work since May1997. Employers’ organisations, trade unions, other organisations, individualemployers and workers, academics, lawyers and countless others have bombardedus with advice and opinions, in letters and notes, and at many meetings withofficials and Ministers. We were also privileged to receive numerous commentsfrom the media. That flood of welcome, but often contradictory advice, beganimmediately after the election, and has continued in waves ever since. Freshwaves resulted from the publication of the White paper and of the Bill.

We listened to all those representations and considered them carefully. That isstill going on and as a result, we are constantly refining our proposals. Tointroduce some Japanese into the proceedings rather than Latin, it is kaizen—aprocess of continuous improvement. In that spirit, I emphasise that allconstructive suggestions made by the Committee will be as welcome as thosefrom any other source. We shall carefully consider any suggestions that are madetoday and at subsequent sittings.5

Many of the amendments were technical improvements intended to correct defects andomissions or clarify and strengthen the drafting. Although the key features of the schemeremained unchanged, there were some fairly substantial changes to the detail, some ofwhich are listed below:

Bargaining agenda

As originally drafted, the Bill would have given a union securing recognition under thestatutory procedure the right to bargain on the wide range of terms and conditions laiddown in section 178 (2) of TULRCA. A government amendment made it clear thatimposed collective bargaining should only cover pay, hours and holidays:

Government amendments Nos. 215 to 219, taken together, are designed to ensurethat, as a minimum, collective bargaining covers negotiations about pay, hoursand holiday. The union and employer can agree that other matters be included,but if they cannot agree, and the CAC imposes a bargaining method, it will applyonly to pay, hours and holiday. The amendments ensure that the Bill achieves thepolicy set out in the White Paper. We tabled them because we realised that theoriginal wording went wider than originally intended. The union and theemployer are free to include other matters in the collective bargainingagreement—that is a deliberate feature of the legislation, to encourage voluntary

5 SC Deb (E), 16 March 1999, c 344, Michael Wills


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agreements by giving the parties room for manoeuvre. A union may wish tobargain about occupational pensions, for example. The employer may beprepared to agree to that, provided that the union accepts the employer’s proposalon, say, time off for trade union duties.6

Competing applications

Under the Bill, a union applying to the CAC for recognition had to pass certainpreliminary tests. One of these was that it should have 10% membership in the proposedbargaining unit. In an amendment designed to deter competing applications, the CACmust now reject all applications if more than one union with 10% membership applies:

Amendment No. 171 is the core of a set of amendments—Nos. 163 to 182—thatclarify the way in which preliminary tests affect applications to the CAC. It willinsert three new paragraphs into part I. Proposed paragraph 10A will require theCAC to inform parties when an application is received, so that they know when tosubmit evidence as to whether tests are fulfilled. Proposed paragraph 10B willreplace the old provision on competing applications with a new procedure thatrejects all competing applications unless only one passes a 10 per cent. unionmembership test in the relevant bargaining unit.

I know that hon. Members may have concerns about the width of discretiongiven to the CAC, and I hope that making the procedure more specific will givethem some comfort. The CAC should not decide between credible competingapplications. We think that 10 per cent. union membership is a sufficient test ofcredibility at such a preliminary stage—we are seeking only to eliminate spoilingapplications.7

Although the Minister implied that this was designed to prevent spoiling applications,some commentators believe it might open the door to such applications from “sweetheartunions”.8

Preliminary tests

Another amendment to the preliminary tests requires the CAC to have stronger evidencethat a majority of the workers in the proposed bargaining unit are likely to supportrecognition before allowing an application. The Bill originally asked for “prima facie”evidence, but this has been removed:

Hon. Members are, no doubt, anxious to know why we have taken against primafacie evidence in that way. The answer is that we think that the CAC should look

6 SC Deb (E), 16 March 1999, c 359, Michael Wills7 SC Deb (E), 16 March 1999, c 363, Michael Wills8 See, eg, “Government amends Employment Bill”, Labour Research, May 1999


11

in more detail at whether a majority of workers are likely to favour recognition,even at such an early stage in the application procedure.9

Employer’s duty to co-operate with ballots

The Bill as originally drafted gave the CAC the right to declare a union recognisedwithout holding the ballot if an employer failed to co-operate with the arrangements forholding a secret ballot. An amendment now provides that the CAC cannot do this withoutfirst giving the employer the chance to take specified steps to remedy the situation:

Government amendments Nos. 208 to 210 alter the effect of an employer’s non-co-operation with a ballot that the CAC organises. Under the schedule as drafted,the CAC may either require the employer to take certain steps to co-operate, oraward recognition because the employer is frustrating the balloting process. TheGovernment always intended that the award of recognition be a last resort. Wetherefore want to alter paragraph 18 to reflect that policy.

Government amendment No. 208 will enable the CAC to order an employer whofails to co-operate with the ballot to take reasonable, specific measures to remedythe failure. If the employer does not act on the order within a reasonable period,and if the CAC judges the employer’s non-co-operation to be sufficientlydamaging, it may declare the union to be recognised.10

Changes to the bargaining unit

An entirely new Part - now Part III of the Schedule, containing 32 paragraphs - wasintroduced to enable support for recognition to be re-tested before three years if there wasa substantial change to the bargaining unit, such as a restructuring:

As a result of our continuing consultations, to which I have had manyopportunities today to refer, we have been aware for some time that schedule 1should contain a method for dealing with changes in the bargaining unit. It is acomplex topic, and we have tried to cover all eventualities properly. Our aim is toprovide a method that is as definitive as possible, but which provides the CACwith discretion to make a sensible decision if the parties cannot agree.

I hope that hon. Members will be patient as I try to explain the need for, and thefunction of, this new part of schedule 1, which I accept is rather lengthy. Theprocedure will apply when there are significant changes in a business. It willapply after a change in the nature of the business—for example, a change fromproducing chickens to eggs. Secondly, it will apply after a genuine change in thestructure of the business, such as managing chicken farms centrally, rather than as

9 SC Deb (E), 16 March 1999, c 379, Michael Wills10 SC Deb (E), 16 March 1999, c 400, Michael Wills


12

individual units. Thirdly, it will apply if the number of workers changessubstantially and there is a case for changing the bargaining unit.

In all those cases, old bargaining arrangements may not be appropriated to thechanged business. A fair procedure for assessing the necessary changes isrequired… The procedure … is not dissimilar to the recognition process… TheCAC must decide if the parties cannot agree.

The CAC may rule that the original unit is appropriate, has ceased to exist or isinappropriate, or that a new unit is appropriate. If a new unit is appropriate, thatmay trigger a procedure for assessing support that closely parallels the procedurefor recognition. I appreciate that the devil is in the detail of the provisions, and Ishall be grateful for constructive comments from Opposition Members.11

Labour Research has commented that this new provision “appears to operate as analternative route to derecognition”.12

Withdrawal of applications

Amendments in the Lords made it clear that a union could withdraw an application at anystage until the ballot had been arranged by the CAC. However, if it withdrew after theapplication had been accepted by the CAC, it would not be able to re-apply for threeyears:

There are … circumstances in which it should be possible to withdraw anapplication. For instance, if the CAC determines an appropriate bargaining unitwhich is different from the union's proposed bargaining unit, the union may wishto withdraw its application, build up support in the appropriate bargaining unitand then reapply. The Government believe this should be allowed for by theschedule.

At present the schedule is unclear as to whether an application to the CAC maybe withdrawn, and what the consequences of that withdrawal would be. This is aparticular problem for Part I of the schedule, since the recognition procedure iscomplicated by the need to identify a bargaining unit.

The amendments are intended to clarify the situation. They allow applications forrecognition to be withdrawn at any time up until a ballot is arranged by the CAC.Amendment No. 22 does so by stating that they cannot be withdrawn later.

Once the ballot process begins, the union is committed to seeing it to aconclusion. This will deter speculative applications, and by requiring the ballot tobe held will produce a definite result for or against recognition. Whoever wins the

11 SC Deb (E), 16 March 1999, c 422, Michael Wills. There were further changes made in the Lords, HLDeb 7 June 1999, cc 1250-1252, Lord McIntosh of Haringey

12 “Major amendments to union recognition rules”, Labour Research, September 1999


13

ballot will be able to say to the other party, "You lost fair and square, now let’smove on". In other words, it will encourage a definite result.

Withdrawal of an application will not be free of consequences. There will be nopenalty for withdrawing an application before it is accepted. Once the CACaccepts an application, however, there will be a three-year bar on applications bythe union for recognition in the same bargaining unit, or in a similar unit.Paragraph 34 already has this effect. So a union will be able to withdraw, but itwill not be able to come back for three years. Withdrawal may still save time,face and money.13

Combined workplace and postal ballots

Originally the CAC had to arrange either a workplace ballot or a postal ballot. Anamendment in the Lords allowed it to use a combination of the two:

The present situation is that the CAC has two choices, each with its ownadvantages and disadvantages--a workplace ballot and a postal ballot. Theamendments would add a combined workplace and postal ballot where neither aworkplace nor a postal ballot alone would represent a fair test of support.

I acknowledge that my noble friend Lord Clinton-Davis is saying that it tends tobe better to err on the side of providing more options than fewer in statutes. It islikely that most situations would be best suited to a simple postal or workplaceballot but it would be foolish to deprive the CAC of the power to choose acombination of the two if that were more appropriate. There may be particularsituations where a combined ballot is appropriate. I gave the examples of amerchant ship or oil rig. We want the CAC to have discretion to conduct a mixedworkplace and postal ballot if only because, for particularly good reasons, itbelieves that to be appropriate. The key tests of appropriateness are the views ofthe employer and unions, location of the workers, and the nature of theiremployment.

Amendments Nos. 35 and 36 would allow such mixed ballots for recognition andAmendments Nos. 205 and 206 relate to derecognition ballots. We set arequirement that 40 per cent of workers must vote in favour of recognition for anapplication to succeed. It is only fair that we allow the CAC to run ballots that donot artificially restrict the ability of workers to vote.14

Existing bargaining arrangements

The Bill was concerned not to disrupt existing bargaining arrangements so it preventedapplications for recognition where a union was already recognised. However, someunions are recognised for “non-core” issues (such as disciplinary matters) other than pay,

13 HL Deb 7 June 1999, cc 1185-1186, Lord McIntosh of Haringey14 HL Deb 7 June 1999, c 1197, Lord McIntosh of Haringey


14

hours and holidays. An amendment in the Lords allowed a union to apply for recognitionon pay, hours and holidays without having to give up their existing recognition on thenon-core subjects:

I now turn to the issue of whether a union should be required to give up anexisting collective bargaining agreement in order to apply for recognition underPart I. Amendment No. 8, to which my noble friend Lord McCarthy will speak,covers this point, as does the Government’s Amendment No. 9. I shall not pre-empt anything my noble friend may say, but perhaps I may explain why theGovernment want to deal with this issue in a slightly different way from thatproposed by my noble friend.

We have proposed Amendment No. 9 which changes one of the preliminary testsan application must pass in order for the CAC to accept it. The test currentlyrequires the CAC to reject applications for recognition in a bargaining unit if anyunion, including the applicant union, is already recognised to conduct collectivebargaining on behalf of one or more workers in the bargaining unit. One effect ofthis is to require a union which has a very limited but possibly long-standingrecognition agreement--covering the union’s role in disciplinary matters, forexample--to give up that recognition in order to apply for statutory recognitionunder Part I.

That is not an unusual arrangement. In my own company, I recognised a unionfor disciplinary matters and such issues as the location of the business but not forpay, hours and holidays because my employees preferred to negotiate on thesematters individually with me. The point is: should such recognition for whatmight be called "non-core" issues bar the union from seeking recognition throughthe procedure for pay, hours and holidays?

I do not think it is desirable for a union to be required to end a recognitionagreement covering the "non-core" issues if both the employer and union arehappy with it. The union should be able to seek recognition on the "core" issuesof pay, hours and holidays without being forced first to tear up an existingagreement. Amendment No. 9 therefore provides that a voluntary agreementwhich does not include bargaining about pay, hours or holidays does not bar therecognised union from applying under Part I. The employer will, of course, stillbe able to terminate the voluntary agreement if he wishes. It may be that anemployer, faced with an application for recognition on pay, hours and holidays,wants to renegotiate on the matters for which he already recognises the union.The Government’s amendment allows for that. I beg to move.15

Voluntary recognition

The Bill contained provisions in Part II of the Schedule which were designed to preventan employer from voluntarily recognising a union shortly after it applied for recognition

15 HL Deb 8 July 1999, cc 1038-1039, Lord McIntosh of Haringey


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to avoid imposition of statutory recognition, then derecognising it soon afterwards. Theprovisions were rewritten during the Bill’s passage through Parliament. Originally, theCAC could have imposed a method of collective bargaining where an employer refusedto honour any voluntary agreement. Under the changed provisions, the parties can reachan “agreement for recognition”, usually referred to as “semi-voluntary recognition”,during the statutory procedure. If an employer fails to honour the agreement, the unionwill be able to apply to the CAC to impose a method of bargaining and to ensure that itlasts for three years. However, after the three years, the employer will be able toterminate the agreement without going through special derecognition procedures:

The Government intends to exclude from the scope of Part II any purelyvoluntary agreement, including all agreements made before Schedule 1 comesinto force.

Part II, which refers to voluntary agreements, will apply only to those agreementsmade in consequence of an application for recognition under paragraph 3 of PartI. These are referred to as "agreements for recognition" in our amendments. Inessence, these agreements will be binding on the employer for three years. Afterthree years, the employer will be able to derecognise the union without having toapply to the CAC, just as if the union had been recognised voluntarily.

We believe this change is necessary and desirable for several reasons. It closes aloophole by which an employer could agree recognition, perhaps after a union’sapplication had been accepted by the CAC and a bargaining unit determined, andthen derecognise the union. In this way an employer could avoid recognition evenif all his workers were union members. So these amendments would make "semi-voluntary" recognition binding for three years, just as statutory recognition isbinding for at least three years.

By providing a union with some security in a recognition agreement, and byproviding the employer with more flexibility to derecognise than statutoryrecognition, this change will promote voluntary--or perhaps I should say semi-voluntary--agreements. If the parties can reach agreement without a ballot,perhaps with the help of ACAS or the CAC, or after the bargaining unit has beendetermined, they do not need to go through the entire statutory recognitionprocess--involving balloting and so on--in Part I.

We have also provided a procedure whereby an employer or union can complainto the CAC that a bargaining method agreed after recognition has not beenfollowed. If the CAC finds that this is indeed the case, it will be able to impose abargaining method. This will apply whether the original recognition was via thestatutory process in Part I or was an agreement for semi-voluntary recognitionunder Part II. Wholly voluntary agreements will not be affected.16

16 HL Deb 8 July 1999, cc 1052-1053, Lord McIntosh of Haringey


16

Non-independent unions

Under the provisions of the Bill (and, generally the Act), an independent union would beprevented from applying for recognition if a non-independent union (such as a staffassociation) was already recognised. An amendment introduced in the Commonsprevents the recognition of a “sweetheart” union from blocking such an application if theindependent union applying had been derecognised within the previous three years.17

The Bill did give workers who would prefer to be represented by an independent union anopportunity to apply for derecognition of a non-independent union. An amendmentintroduced in the Lords provided that any such application should be suspended if thenon-independent union had applied for a certificate of independence from theCertification Officer:

The Bill allows voluntary recognition of unions which do not hold a certificate ofindependence. If workers are happy to be represented by such unions, there is noproblem. But we do not think it would be right for an employer to be able toprevent workers from being represented by the independent union of their choiceby recognising a non-independent union. Part VI of Schedule 1 therefore providesa procedure for workers to request and, via a ballot, to require an employer toderecognise a non-independent trade union. (…)

On further consideration, we believe it is right that a union which may beindependent of control of the employer and which has applied for a certificate ofindependence should not be subject to derecognition under Part VI unless it failsto obtain that certificate. These amendments put the principle into effect. Anapplication for derecognition made by workers after the union has applied for acertificate of independence will be suspended pending the outcome of the union'sapplication to the certification officer. If the certification officer grants thecertificate and the union becomes independent, it can no longer be derecognisedunder the procedure. If, however, the certification officer refuses the certificate,then the workers' application for derecognition can go ahead.

However, we believe it is important to prevent unscrupulous employers using anapplication for a certificate of independence by a sweetheart union which theycontrol to delay a perfectly fair application under Part VI. We have thereforeprovided that the union's application must be made before the application forderecognition, to prevent applications made simply to delay matters.18

Loss of independence

Statutory recognition is only available to independent unions. An amendment in theLords provided that, were an independent union recognised under the procedure to lose its

17 HC Deb 31 March 1999, c 1185, Stephen Byers18 HL Deb 8 July 1999, cc 1069-1070, Lord McIntosh of Haringey


17

certificate of independence, its statutory recognition would be removed and anyrecognition agreement would become totally voluntary:

In another place the honourable Member for Daventry, Mr. Tim Boswell, pointedout that Schedule 1 had no procedure for dealing with a union which wasrecognised but then ceased to be independent. My speaking notes say that that isalmost unheard of. I believe that it has never happened for a union to lose itscertificate of independence. But the possibility exists and we should allow for it.So we have a two-page amendment. It is fair that no employer should be requiredto recognise a non-independent union.

However, we also want to promote stable industrial relations. It would beperverse to require a union to be de-recognised simply because it ceased to beindependent. Therefore, the Government believe that statutory recognition shouldbe treated as voluntary if a union loses its certificate. That means that theemployer could derecognise the union if he or she wished or, if the workerswished to derecognise it, they could apply under Part VI of the schedule.

Amendment No. 221 adds a new Part VIA which gives effect to that policy. Wehave also provided for the bargaining arrangements to end. There is no reasonwhy the parties should not agree to continue them, but there should be no legalrequirement to do so. This is a helpful change to deal with what is likely to be arare event. I commend the amendment to the Committee.19

Labour Research has commented that while many of the changes made during thepassage of the Bill might seem quite minor, they “set a new tone to the legislation byseeming to ditch those proposals which might be viewed as a “burden” on business.”20

The CBI’s John Cridland is reported to have commented: “If the unions have won thebattle on the principle, I think we have won quite a lot of the detail”.21

B. Preparing for implementation

Although the trade union recognition provisions of the 1999 Act will not come into forceuntil 6 June 2000, there is evidence of an increase in voluntary recognition deals inanticipation of the legislation. A TUC survey, Focus on recognition, published inJanuary 2000, reported that 75 new deals were signed in the ten months between Januaryand October 1999 – the highest number ever reported in their regular survey. Four in tenunions responding to the survey said the impending union recognition rights had beeninfluential in securing new deals with employers keen to set up voluntary arrangementsbefore the statutory recognition provisions came into force.22

19 HL Deb 7 June 1999, c 1262, Lord McIntosh of Haringey20 “Major amendments to union recognition rules”, Labour Research, September 199921 “Watch it! What unionbusters will do next”, Observer, 12 September 199922 TUC press release, 7 January 2000, More recognition deals signed than ever before; “Unions seize the

moment”, Labour Research February 2000


18

An Incomes Data Services (IDS) study of Union recognition reported:

Our case studies show that there are a number of reasons why organisations aremoving to recognise one or more trade unions for collective bargaining. Theprospect of statutory union recognition is often cited as the impetus for suchvoluntary moves but it is not the whole story. In some cases recognition is beinggranted at companies where union membership is not at the level which wouldtrigger recognition under the statutory procedure. Some employers are choosingto recognise a union in a greenfield start-up situation or when acquiring, or beingacquired by, other companies.

Nonetheless, the impending legislation has helped to concentrate minds on theissue of recognition. It has prompted a desire on the part of management to keepcontrol of the issue to ensure that the recognition process and the resultingagreement do not reflect a scenario where “the tail is wagging the dog” as onepersonnel manager put it. 23

To a certain extent, this is what both the trade unions and the Government would havewanted. Unions have long argued that they would prefer recognition “in the shadow” ofthe legislation rather than as a result of the legislation, and Ministers have stressedthroughout their preference for voluntary deals. Nevertheless, the Act does provide aprocedure under which a hostile or anti-union employer can be forced to recognise aunion where it can show the requisite level of support in the workplace. The IDS Study,quoted above, suggests that “such imposed recognition is unlikely to be the harbinger ofgood industrial relations”.

The TUC is anxious to co-ordinate claims for recognition to ensure that the first cases togo through the procedure are strong ones. If they are not properly planned, there is adanger of losing them, which would be a severe blow to morale.24 Some employers havebeen taking advice on “American-style unionbusting” in an attempt to undermineexpected attempts to use the new procedures. Some of the tactics which hostileemployers might use include: 25

• discouraging workers from joining trade unions

• telling employees that recognising a union would harm the business and might costthem their jobs

23 IDS Study 685, March 2000, Union recognition24 “Positive outlook for recognition despite complexities of law”, Bargaining Report, April 200025 See, eg, “Employers prepare to deal with statutory recognition”, IRS Employment Trends 686, August

1999; “Unionbusters wrecking new law, claims TUC”, Observer, 12 September 1999; “Watch it! Whatunionbusters will do next”, Observer, 12 September 1999: “Managers advised on avoiding recognition”,Labour Research, September 1999; “Positive outlook for recognition despite complexities of law”,Bargaining Report, April 2000


19

• restructuring so that potential bargaining units do not meet the criteria for recognition

• attempting to introduce personal contracts in place of collective agreements

• developing alternative methods of information and consultation such as staff councils

• recognising non-independent unions, such as staff associations

• recognising moderate independent unions prepared to conclude no-strike deals

• if faced with an application, using delaying tactics and testing the law to its limits,perhaps even going to judicial review if the CAC does ultimately grant an unwelcomerecognition.

C. Code of Practice on Access to Workers

One of the reasons for the perceived failure of the 1976-1980 statutory recognitionscheme was that it appeared to allow employers to prevent unions from gaining access tothe workplace to put their case for recognition. The 1999 Act therefore imposes a duty onemployers to:

give the union (or unions) such access to the workers constituting the bargainingunit as is reasonable to enable the union (or unions) to inform the workers of theobject of the ballot and to seek their support and their opinions on the issuesinvolved.26

The Government had made it clear from the outset that it intended to draw up a Code ofPractice on access for unions seeking to persuade workers to vote in favour ofrecognition. TULRCA already gave both ACAS – the Advisory, Conciliation andArbitration Service – and the Secretary of State the power to draw up codes of practice.Section 199 (1) provides that:

ACAS may issue Codes of Practice containing such practical guidance as itthinks fit for the purpose of promoting the improvement of industrial relations.

Section 203 (1) provides that:

The Secretary of State may issue Codes of Practice containing such practicalguidance as he thinks fit for the purpose –

(a) of promoting the improvement of industrial relations, or

26 para 26(3) of Schedule A1 of TULRCA as inserted by the Employment Relations Act 1999


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(b) of promoting what appear to him to be desirable practices in relation to theconduct by trade unions of ballots and elections

The Employment Relations Act 1999 made it clear that both ACAS and the Secretary ofState could use these powers to issue Codes of Practice about reasonable access for tradeunions during recognition ballots.27

Failure to comply with the provisions of a Code of Practice does not, of itself, renderanyone liable to any proceedings, but it may be taken in to account in proceedings beforean employment tribunal or the CAC.28

The original idea was that ACAS should prepare the Code. The White Paper, Fairness atWork, published in May 1998, contained the following proposals on balloting:

The ballot will normally be carried out within 21 days of the determination of thebargaining unit. During that period, the employer will grant the union reasonableaccess to the employees to be balloted. The Government is minded to ask ACASto draw up a statutory Code of Practice to help employers and unions understandwhat reasonable access means in practice.29

However, as time went by, the emphasis shifted to a Code drawn up by the Secretary ofState. Lord McIntosh of Haringey explained during the debates on the Bill that ACASmight not be able to produce such a code and this was why the legislation allowed for theSecretary of State to do so.30

The most extensive debate on the question of access took place during the debates in theHouse of Lords.31 Some Labour peers, including Lord McCarthy and Lord Wedderburn,argued that more requirements about access should be on the face of the legislation ratherthan contained in a code of practice. Lord McCarthy, for example, said:

We believe that there should be on the face of the Bill, not just in the code ofpractice, something about the facilities that the union enjoys during the campaign.The term "campaign" has not been used anywhere in this legislation; it is not inFairness at Work. It will be a campaign. It was a campaign last time. The unionwill be making its case for the most part to non-unionists. It will be saying to themajority of workers who are not trade unionists, "This is why we think you oughtto vote for collective bargaining". That will almost certainly be on the votingpaper. The employer will reply to that, saying, "Nonsense, trust me, I’m your

27 para 26 (8) of Schedule A1 of TULRCA, as inserted by the Employment Relations Act 1999.28 Section 207, TULRCA29 Cm 3968, Annex 130 HL Deb 7 June 1999, c 120531 Committee stage, HL Deb, 7 June 1999, cc 1200-1209


21

good employer and we are going to have a wage increase next week so you donot want to vote for this".

There will be a campaign. Therefore, as all the controls in this situation are in thehands of the employer, the employer controls the organisation, the hierarchy, thesupervision; and the employer can always put his arguments across, as he should.We are saying that something should be on the face of the Bill about the facilitiesthat the unions have in these circumstances. We are putting in small, moderatematters such as details of the facilities, where to hold meetings and so on.

The justification is that we know that in the past the kind of employer who gotinto this situation--we are not talking about the great majority of employers--andfound himself in front of ACAS or the CAC resisted union access, frustratedunion access, prevaricated and sent incomplete returns over and over again, asreflected in the reports of the legislation. In addition to the extra safeguards thatthe Government have put in paragraph 23 of Part IV of the Bill, we want thosetwo things on the face of the Bill.32

However, the Government resisted this, arguing that a Code of Practice would be basedon consultations with parties who would be involved in operating the procedures:

Perhaps I might say a few words about the code of practice. Some people use thederogatory phrase about the Government "chickening out" of decisions, but thereare other arguments for a code of practice rather than trying to put everything onthe face of the Bill. The principal argument for such a code is that it is drawn upin detailed consultation with those who actually spend their lives doing this sortof thing. It will be drawn up in consultation with the CBI, the TUC, and otheremployer organisations, together with other organisations and individual unionswhich wish to become involved. If something goes wrong it can be changed, butthat would not be the case with legislation on the face of the Bill.

Therefore, although I have acknowledged that I do not have a perfect answer toall of these questions--and there may not be one; indeed, I suspect that, as sooften, it will be different in different work places--I think that the code of practicewhich we proposed in the White Paper and which we have confirmed in the Billrepresents the right approach. I think it would be a mistake to accept any of theseamendments because they would restrict the proposed code of practice. 33

It was the DTI, not ACAS, which published a draft code of practice for consultation on 7February 2000.34 The final version of the Code of Practice on Access was laid beforeParliament in draft on 8 May 2000.35 Some changes were made following the

32 HL Deb 7 June 1999, c 120333 Lord McIntosh of Haringey, HL Deb 7 June 1999, c 120834 DTI press release, 7 February 2000, Consultation document on trade union recognition launched35 Draft Code of Practice: Access to workers during recognition and derecognition ballots,

http://www.dti.gov.uk/ir/codfinv4.pdf



22

consultation (and the most significant are noted below), but, for the most part, the finalversion followed the February 2000 proposals closely.

The Code gives practical guidance on the employer’s duty to give the relevant union orunions reasonable access to workers participating in recognition ballots. The overall aimof the Code is “to ensure that the union can reach the workers involved, but localcircumstances will need to be taken into account when deciding what form the accessshould take”.36 The Code also “aims to encourage reasonable and responsible behaviourby both the employer and the union. This should ensure that acrimony between theparties is avoided and individual workers are not exposed to intimidation or threat.”37

The main provisions of the Code are:

• There is a 10 day notification period after the CAC has notified employer and unionof their intention to hold a ballot and before the CAC starts to arrange for the ballot tobe held. During this period, the union should arrange to meet the employer to drawup an “access agreement” which would cover such matters as the union’s programmefor where, when and how it will access the workers on site and/or during theirworking time; and a mechanism for resolving disagreements, if any arise, aboutimplementing the agreed programme of access.38

• There is a 20 day “access period” starting with the date on which the CAC appoints aQualified Independent Person (QIP) to conduct the ballot and ending with the date ofthe ballot. During this period, the union will have access to employees in thebargaining unit in accordance with the access agreement. There is an emphasis onflexibility to meet individual circumstances, but, in general, employers should:

- Grant access to lay union officials, nominated as “lead representatives” and tofull-time union officials39

- Allow access in the workplace, during normal working hours.40 However,there is provision for the access to take place off-site and/or outside workinghours, for example, if the employer’s responsibility for “health and safety andsecurity issues” make this necessary or if there are severe space limitations.

- Allow the union to hold one meeting of at least 30 minutes duration for every10 days of the access period41

36 Draft Code, May 2000, para 937 ibid, para 10 38 ibid, section B 39 Draft Code, May 2000, para 26 40 Ibid, paras 27-29 41 Ibid, para 30


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- “Where they would be appropriate having regard to all the circumstances,union ‘surgeries’ could be organised at the workplace during working hours atwhich each worker would have the opportunity, if they wish, to meet a unionrepresentative for fifteen minutes on an individual basis or in small groups oftwo or three”.42 This is a considerably watered down version of the originalproposal which was that employers “should allow the union as a minimum” toallocate one day in the access period to individual surgeries of this type.43 Ifindividual surgeries do not take place, the minimum time for the largemeetings is increased to 45 minutes

- Allow the union to display written material on a prominent noticeboard and toplace additional material such as explanatory leaflets nearby44

- Allow the union to use internet, intranet or email facilities unless workers arenormally completely barred from using these facilities for non-workactivities45

- Co-operate with the union’s suggestions for gaining access to non-typicalworkers, including shift workers, part-time workers, homeworkers, a dispersedor peripatetic workforce, and those on maternity, parental or sick leave46

• The legislation provides that if the employer fails to comply with his duty to providereasonable access, the CAC may order him to take specified steps to do so. If he failsto comply with such an order, the CAC can issue a declaration that the union isrecognised, without the holding of a ballot.47 The law does not provide for the CACto penalise a union if it behaves unreasonably in relation to access. In response tocomplaints from employers about this, a new paragraph has been added to the May2000 version of the Code which provides that:

in deciding whether the employer has complied with his duty to give the unionaccess, the CAC may take into account all relevant circumstances. This mayinclude the behaviour of the union. The CAC may therefore decide that theemployer has complied with the duty in circumstances where, because the unionhas acted unreasonably, he denies the union access or refuses to implementagreed access arrangements.48

42 Ibid, para 31 43 Proposed Code, February 2000, para 29 (b) 44 Draft Code, May 2000, para 34 45 Ibid, paras 35-3646 Ibid, paras 38-4047 para 27, schedule A1, TULRCA, as inserted by the Employment Relations Act 199948 Draft Code, May 2000, para 50


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The draft Code was debated in the Second Standing Committee on Delegated Legislationand in the House of Lords on 22 May 2000.49

D. Method of Collective Bargaining

Once a union has achieved recognition under the statutory procedure, it still has to agree aprocedural framework for conducting collective bargaining with the employer. The 1999Act provides that, if union and employer cannot agree such a framework, the CAC must“specify to the parties the method by which they are to conduct collective bargaining”.50

This method will “have effect as if it were contained in a legally enforceable contractmade by the parties”.51 Unions have traditionally been cautious about legally bindingcollective agreements “as they can be too restrictive and may not recognise thecomplexities of industrial relations”.52

Paragraph 168 of schedule A1 of TULRCA, inserted by the 1999 Act, gives the Secretaryof State the power to make an order specifying a method of collective bargaining, afterconsulting ACAS. The CAC must take any such method into account, but may departfrom it to such extent as it “thinks it is appropriate to do in the circumstances”.

The most extensive discussion of the imposition of a method of collective bargainingduring the Parliamentary debates on the legislation was during the Committee stage in theLords, where Lord Wedderburn urged the Government to include a requirement that theparties bargain “with a view to reaching agreement” and Lord McCarthy proposed theinclusion of a procedure for breaking deadlocks by independent arbitration.53 Neither ofthese suggestions were taken up.

The DTI published draft proposals on a method for conducting collective bargaining forconsultation on 7 February 2000, at the same time as it issued the draft code of practiceon access to workers during recognition and derecognition ballots.54 Any order madeunder paragraph 168 is subject to the negative procedure. On 12 May 2000, the TradeUnion Recognition (Method of Collective Bargaining) Order 2000, SI No 1300, was laidbefore Parliament. It is due to come into force on 6 June 2000.

The method laid down in the SI 2000/1300 follows closely the method proposed in theconsultation document. Most of the amendments are clarificatory.

49 SC Deb (Second Standing Committee on Delegated Legislation), 22 May 2000; HL Deb 22 May 2000,cc 567-572

50 Schedule A1, TULRCA, para 3151 Ibid, para 31 (4)52 Labour Research Department, The Employment Relations Act 1999 - a guide for trade unionists,

November 199953 HL Deb 7 June 1999, 1272-128054 DTI, Trade union recognition: Public consultation on A Code of Practice on access to workers during

recognition and derecognition ballots and A method of conducting collective bargaining, February2000, URN 99/1256, http://www.dti.gov.uk/er/confin3.pdf

http://www.dti.gov.uk/er/confin3.pdf


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The main features of the model method are:

• The establishment of a Joint Negotiating Body (JNB) with equal numbers of employerand employee representatives

• An annual bargaining round, with a timetable for submitting, meeting to discuss, andresponding to claims. There is provision for outside union and employers’associations to be brought in at the later stages of the negotiation, and for ACASconciliation where both parties desire it.

• Both employers and unions are required to provide written information backing uptheir position.

• Union members of the JNB are to be given paid time off to prepare the annual claim(one day), to attend JNB meetings and a two-hour pre-meeting of the Union Side.

• Where resources permit, the employer should set aside a room for the exclusive use ofthe Union Side of the JNB with a secure cabinet and telephone, and provide them withfacilities such as typing, copying and word-processing

One new provision, added as a result of the consultation, ensures that employers will nothave to discuss proposed changes in terms and conditions affecting pay, hours andholidays with a union if the changes relate only to an individual worker in the bargainingunit who has agreed that his terms may be altered only by direct negotiation between theworker and the employer.55 In other words, the worker is covered by a personal contractrather than a collective agreement.

Fraser Younson, an employment lawyer, writing in People Management, has criticisedthe absence of an obligation to bargain in good faith and commented:

The method is based on a public sector model of a joint body like the Whitleycouncils, and appears to be a throwback to the 1970s “us and them” approach. Itsmajor flaw is that, while providing a six-stage procedure for a series of meetings,it does not address the central issue of whether an employer or union isbargaining in good faith. It is not clear, for instance, whether an employer’sstatutory duty will be satisfied merely by going through the hoops of a series ofmeetings. If it is, the proposals miss the point – that collective bargaining can bean effective means of regulating terms and conditions of employment only ifthere is sufficient trust and respect between the bargaining parties.56

55 new para 1856 “Cracking the code”, People Management, 16 March 2000


26

The other main criticism of the method is that it makes no provision for compulsoryarbitration where agreement cannot be reached. However, the Government resistedamendments on both good faith and arbitration while the Employment Relations Bill1998-99 was going through Parliament because it wanted statutory recognition to be asmuch like voluntary recognition as possible:

There are two principles underlying our thinking. First, we want statutoryrecognition to be as far as possible equivalent in its effects to voluntaryrecognition. Otherwise there would be an incentive for one party to preferstatutory recognition when everyone is agreed that voluntary agreements are thebest solution. So it is important that statutory recognition should deliver no moreand no less than voluntary recognition. Voluntary recognition does not guaranteethat there will be an agreement at the end of bargaining; nor does statutoryrecognition. Voluntary recognition does not provide an automatic route toarbitration; nor does statutory recognition. Voluntary recognition does not containan obligation to bargain in good faith or with a view to reaching agreement; nordoes statutory recognition. That is deliberate and it is balanced.

Secondly, we wanted as far as possible to promote dialogue and avoidconfrontation. That is why the ultimate sanction is for the parties to be forced totalk to each other. We cannot force them to agree and it would be wrong toimpose some third party as arbitrator. There might be a way of dealing with short-term disputes but that does nothing to promote long-term partnership anddialogue.57

II The Statutory Recognition Procedure

The statutory recognition procedure is extremely complicated, but the key steps areusefully summarised in a chart contained in the DTI’s Explanatory Notes on the Act,which is reproduced as an Appendix to this paper. The following account is simplifiedand designed only as a guide to how the recognition procedure will work. All referencesare to paragraphs of the new Schedule A1 of TULRCA.

A. Recognition

1. Request for recognition

The process starts when a union makes a request to the employer for “recognition to beentitled to conduct collective bargaining on behalf of a group or groups of workers” (para1). Unless the parties agree at any stage, collective bargaining will only cover pay, hoursand holidays (para 3). Unions may make a joint application, but, for the sake ofsimplicity, this account will refer to applications by single unions. There are, though,extensive provisions designed to invalidate competing applications from more than one

57 Lord McIntosh of Haringey, HL Deb 7 June 1999, c 1275-1276


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union, or joint applications from unions which cannot show that they will “co-operatewith each other in a manner likely to secure and maintain stable and effective collectivebargaining arrangements” (para 37).

To be valid, the request must:

• Come from an independent trade union (i.e. one which has been certified undersection 6 of TULRCA as not being under the domination or control of an employer)(para 6);

• Be in writing (para 8);

• Identify the union and bargaining unit (para 8);

• State that it is made under Schedule A1 of TULRCA (para 8);

• Be to an employer who employs at least 21 workers (para 7). The Secretary of Statehas the power to vary the threshold for exempting small firms by order subject to theaffirmative procedure (para 7 (6)- (8)).

2. First negotiating period

This lasts for 10 working days from the day after the employer receives the request forrecognition (para 10 (6)). A “working day” is defined as any day other than a Saturday ora Sunday, Christmas Day or Good Friday, or a bank holiday (para 172 (2)).

During this period:

• The parties may agree both the bargaining unit and that the union is to be recognised.They will then either enter an entirely voluntary recognition agreement or an“agreement for recognition” under Part II of the Schedule (para 10 (1)); or

• The employer may reject the proposal but agree to negotiate, in which case they enterthe second negotiating period (para 10 (2)-(3)); or

• The employer may reject the application outright or fail to respond, in which case theunion may apply to the Central Arbitration Committee (CAC) to decide the issue(para 11).

3. Second negotiating period

This lasts for 20 working days from the end of the first period, or such longer period asthe parties may agree (para 10 (7)). During this period the parties “conduct negotiationswith a view to agreeing a bargaining unit and that the union is (or unions are) to berecognised as entitled to conduct collective bargaining on behalf of the unit” (para 10(3)). They may request ACAS to assist in these negotiations (para 10 (5)).


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• If agreement is reached during this second period, the parties will either enter anentirely voluntary recognition agreement or an “agreement for recognition” under PartII of the Schedule (para 10 (4)).

• If no agreement is reached, the union may apply to the CAC to decide both theappropriate bargaining unit (if not already agreed) and whether the union has majoritysupport in the unit (para.12 (2)).

• If, however, the union has rejected or failed to respond to a request from the employerto involve ACAS, made within 10 working days of the employer’s notifying the unionof their wish to enter the second negotiating period, it loses the right to apply to theCAC and will not be recognised (para 12 (5)).

4. Application to the CAC

The CAC has 10 working days in which to decide whether to accept an application from aunion as both “valid” and “admissible”, although it can extend this if necessary (para 14(6) and 15 (6)). The CAC will reject an application if:

• There has been a failure to comply with the steps outlined above (para 15 (2));

• It has already decided a recognition issue relating to the same union and samebargaining unit within the previous three years (paras 39-41);

• Another union is already recognised for the purposes of collective bargaining onbehalf of any workers in the proposed bargaining unit. The only exception to this iswhere the applicant union used to be recognised by the employer but wasderecognised during the previous three years and replaced by a non-independentunion (para 35);

• It fails the “10% test”. Under this test, the union applying for recognition must showthat:

at least 10% of the workers in the proposed bargaining unit are members, and

a majority of the workers in the unit are likely to favour recognition (para 36).

5. Determination of the bargaining unit

If the CAC accepts the application, it has 20 working days in which to help the partiesagree a bargaining unit. It can extend this period if necessary (para 18).

If the parties do not agree on the unit, the CAC must decide the unit itself. The CAC has10 working days to make this decision, though, again, this can be extended if necessary(para 19 (2)). In making the decision, the CAC must take into account:


29

(a) the need for the unit to be compatible with effective management;(b) the matters listed in sub-paragraph (4), so far as they do not conflict with

that need.

(4) The matters are-

(a) the views of the employer and of the union (or unions);(b) existing national and local bargaining arrangements;(c) the desirability of avoiding small fragmented bargaining units within an

undertaking;(d) the characteristics of workers falling within the proposed bargaining unit

and of any other employees of the employer whom the CAC considersrelevant;

(e) the location of workers.58

If the bargaining unit agreed by the parties or decided by the CAC differs from thatoriginally proposed by the union, the CAC has to decide whether it still complies with thepreliminary tests. For example, there must still be no other union recognised forcollective bargaining in respect of any of the workers in the unit, and the unit must stillmeet the 10% test. The CAC has 10 working days in which to make this decision, thoughthe period can be extended if necessary (para 20). If the revised bargaining unit failsthese tests, the union is not recognised and no further steps are taken under the procedure.

6. “Automatic” recognition

If the CAC is satisfied that a majority of the workers in the bargaining unit are membersof the union which has applied for recognition, then “it must issue a declaration that theunion is (or unions are) recognised as entitled to conduct collective bargaining on behalfof the workers constituting the bargaining unit”.59

However, even where there is majority membership, the CAC must not issue adeclaration, but must arrange for the holding of a secret ballot if any of three qualifyingconditions are met. These are:

(a) the CAC is satisfied that a ballot should be held in the interests of goodindustrial relations; (b) a significant number of the union members within the bargaining unitinform the CAC that they do not want the union (or unions) to conduct collectivebargaining on their behalf;

58 para 19 (3) and (4)59 para 22 (2)


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(c) membership evidence is produced which leads the CAC to conclude thatthere are doubts whether a significant number of the union members within thebargaining unit want the union (or unions) to conduct collective bargaining ontheir behalf.60

“Membership evidence” is:

(a) evidence about the circumstances in which union members becamemembers;

(b) evidence about the length of time for which union members have beenmembers, in a case where the CAC is satisfied that such evidence should be takeninto account.61

The Secretary of State has the power to amend these provisions on “automaticrecognition” by order if the CAC finds that they have an “unsatisfactory effect”. Anysuch order would be subject to the affirmative procedure (para 166). He also has thepower to issue guidance to the CAC on how to apply these provisions (para 167).

7. Ballot on recognition

If the CAC decides that a majority of workers in the bargaining unit are not members ofthe union, or if it decides that any of the three qualifying conditions set out above apply,then it must arrange for the holding of a secret ballot “in which the workers constitutingthe bargaining unit are asked whether they want the union (or unions) to conductcollective bargaining on their behalf” (paras 23 and 22 (3)).

After the CAC has notified the parties of its intention to hold a ballot, there is a 10working day “notification period” during which the union can decide that it does not wantto proceed with the ballot (para 24). Once the notification period has lapsed, the CACmust appoint a qualified independent person (QIP) to conduct the ballot (para 25 (2)).The Secretary of State has made an order (subject to the negative procedure) specifyingthe criteria for qualification as an independent person (para 25 (7) and (8)). TheRecognition and Derecognition Ballots (Qualified Persons) Order 2000, SI No 1306, laidbefore Parliament on 12 May 2000, specifies practising solicitors and accountantsqualified to be company auditors, and six named organisations:

• Association of Electoral Administrators;• Election.Com Limited;• Electoral Reform (Ballot Services) Limited;• The Industrial Society;• Involvement and Participation Association; and

60 para 22 (4)61 para 22 (5)


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• Twenty-First Century Press Limited.

The ballot must be held within 20 working days of the day after this appointment or suchlonger period as the CAC decides (para 25 (3)).

The CAC has to decide whether the ballot should be conducted at the workplace, by postor by a combination of the two (para 25 (4)). In making the decision, it must take intoaccount:

(a) the likelihood of the ballot being affected by unfairness or malpractice if itwere conducted at a workplace or workplaces;(b) costs and practicality;(c) such other matters as the CAC considers appropriate.62

However, it can only specify a combined method if there are “special factors”, including:

(a) factors arising from the location of workers or the nature of their employment;(b) factors put to the CAC by the employer or the union (or unions).63

Once the CAC has notified the employer that a ballot is to be conducted, the employer isunder three duties:

• to co-operate generally, in connection with the ballot, with the union and the personappointed to conduct the ballot;

• to give to the union such access to the workers constituting the bargaining unit as isreasonable to enable the union to inform the workers of the object of the ballot and toseek their support and their opinions on the issues involved.

• to give to the CAC, within the period of 10 working days, the names and homeaddresses of the workers constituting the bargaining unit.64

The union can ask the person appointed to conduct the ballot to pass on literature to theworkers whose names and addresses have been supplied, provided the union bears thecosts (para 26 (6)-(7)).

The Secretary of State has issued a Code of Practice on Access to Workers duringRecognition and Derecognition Ballots which is described in Section I (C) of this paper.

If the employer fails to comply with his duties of co-operation and access, the CAC canorder him to do so. If he still fails to comply, the CAC can issue a declaration that theunion is recognised for collective bargaining (para 27 (2)).

62 para 25 (5)63 para 25 (6)64 para 26 (2)-(4)


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The costs of the ballot must be shared equally between the employer and the union (para28 (2)).

8. Result of the ballot

The person conducting the ballot informs the CAC of the result and the CAC notifies boththe employer and the union “as soon as is reasonably practicable” (para 29 (1)).

If the union is supported by:

(a) a majority of the workers voting, and(b) at least 40 per cent of the workers constituting the bargaining unit,65

then the CAC must issue a declaration that the union is recognised as entitled to conductcollective bargaining on behalf of the bargaining unit (para 29 (3)).

The Secretary of State has the power to amend the 40% threshold by affirmative order(para 29 (5)).

9. Consequences of recognition

Once a union has been recognised under this statutory procedure, the parties have a“negotiation period” of 30 working days starting with the day on which they are notifiedof the CAC’s declaration (or such longer period as they may agree) to agree a “method bywhich they will conduct collective bargaining” (para 30).

If they fail to reach agreement, either party may apply to the CAC for assistance inreaching agreement. There is then an “agreement period” of 20 working days (or longerif all parties agree) during which they try to reach agreement (para 31).

If agreement still has not been reached, the CAC must specify the method by which theyare to conduct collective bargaining. This method will have effect as a legallyenforceable contract (para 31 (4)). Specific performance will be the only remedyavailable (para 31 (6)). Specific performance is an instruction by the court to carry outthe terms of the agreement. Failure to comply can result in contempt of courtproceedings.

The Secretary of State has issued a model Method of Conducting Collective Bargainingwhich the CAC must take into account when specifying a method, though it can departfrom the model to such extent as it thinks appropriate. Its provisions are described inSection I (D) of this paper.

65 para 29 (3)


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B. Other provisions

The schedule also contains detailed provisions relating to:

1. “Voluntary” recognition

Part II of the Schedule (paras 52-63) allows the CAC to impose a method for conductingcollective bargaining where the parties have reached a voluntary “agreement forrecognition” after applying to the CAC for statutory recognition but before the CAC hasmade a formal declaration. The aim is to protect unions against employers who mightagree to voluntary recognition in order to avoid statutory recognition, but then fail tohonour the agreement. As in cases where the CAC issues a declaration of recognition,agreements for recognition cannot be terminated by the employer for three years.However, after that, the employer does not have to follow any special derecognitionprocedure to bring it to an end. To distinguish these agreements from genuinelyvoluntary agreements (which are terminable at will and not legally binding), mostcommentators refer to them as “semi-voluntary”. Lord McCarthy has expressed doubtsas to whether any union will abandon the statutory procedure in favour of such anagreement and has questioned whether the provision will ever be used.66

2. Changes affecting the bargaining unit

Part III of the Schedule (paras 64-95) allows either the union or the employer to apply tothe CAC for a change in the bargaining unit if they believe the original unit determinedunder the statutory procedure is no longer appropriate. The CAC will only consider suchapplications if it decides the original unit is likely to be inappropriate because of:

(a) a change in the organisation or structure of the business carried on by theemployer;(b) a change in the activities pursued by the employer in the course of thebusiness carried on by him;(c) a substantial change in the number of workers employed in the original unit.67

There is also a provision allowing the employer to give notice to both the union and theCAC that the bargaining unit has ceased to exist. The union can contest this.

The Schedule contains extensive provisions designed to allow the parties to agree a moreappropriate unit, but, if they fail to agree, the CAC may decide what is an appropriate unit(or units). In some cases, this may involve a secret ballot. There are complex provisionsrelating to workers in “outside bargaining units” (units for which another union is already

66 HL Deb 8 July 1999, cc 1054-105667 para 67 (2)


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recognised for collective bargaining) and “residual workers” (workers covered by theoriginal bargaining unit who may not be covered by a new one).

3. Derecognition

Parts IV and V (paras 96-133) allow for derecognition of unions which have achievedrecognition as a result of an award by the CAC. In these cases, an application forderecognition cannot be made until at least three years after the award of recognition.The derecognition procedures mirror the recognition procedures contained in Part I of theSchedule. Derecognition can occur if:

• The number of workers in the bargaining unit has fallen below 21;

• The employer (or a worker or workers within the bargaining unit) requests an end toarrangements originally agreed following a ballot. In this case, a derecognition ballotmay be held under a procedure which is more or less the mirror image of therecognition procedure;

• The employer requests an end to an “automatic recognition” on the ground that unionmembership has fallen below 50% of the bargaining unit. In this case, the CAC mustsatisfy itself that fewer than 50% of the workers are union members beforeproceeding to a ballot.

Part VI (paras 134-148) permits a worker or group of workers to trigger a derecognitionballot where the employer has a voluntary recognition agreement with a union which isnot independent (a “sweetheart” union). If successful, this would pave the way for anindependent union to seek recognition under the statutory procedure.

Part VII (paras 149-155) deals with the unlikely case that an independent unionrecognised under the statutory procedure might lose its certificate of independence. Insuch a case, the provisions effectively convert any statutory recognition agreement into anentirely voluntary arrangement.

4. Protection against detriment and dismissal

Part VIII (paras 156-165) protects workers campaigning for or against recognition orderecognition or voting or not voting in the ballot against dismissal or detriment. Anydismissal on these grounds would be automatically unfair and no qualifying period ofservice would be required.

III Central Arbitration Committee (CAC)

The Central Arbitration Committee has a key role in the statutory recognition procedure.The CAC was a central industrial relations body in the late 1970s, but the non-interventionist approach of the Conservative Government led to its becoming almost


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dormant during the 1980s and 1990s. It is therefore being revamped. Sir Michael Burton,a High Court Judge, who also sits on the Employment Appeal Tribunal was appointed asthe new chairman of the CAC in February 2000,68 and seven new deputy chairmen and 32other members were appointed in April 2000.69

Details of the terms of the appointments, the recruitment process and the way in whichthe CAC will operate were given in the DTI press release announcing these appointments:

1. All these appointments are part-time (approximately 4 to 5 days amonth on average for deputy chairmen, and approximately 3 days a monthon average for members, depending on caseload) and run for a three-yearterm from 10 April 2000. All will receive payment in respect of the days forwhich they work for the CAC (the deputy chairmen £350 per day, andmembers £198 per day).

2. These posts have been filled through an open recruitment

competition. Adverts appeared in the national press in November andresulted in over 900 applications.

3. The CAC's role currently includes determining statutory claims from

trade unions on the disclosure of information by employers for collectivebargaining purposes. This is intended to ensure that the negotiating process isnot impeded by a lack of information. Issues behind requests for informationhave included proposed redundancies and annual pay negotiations. The CACcan also provide voluntary arbitration in industrial disputes betweenemployers and trade unions. In addition, the CAC has a role in resolvingdisputes under the regulations implementing the European Works CouncilDirective

4. In accordance with the statutory procedures provided by the

Employment Relations Act 1999, the CAC will also determine applicationsmade by trade unions for recognition by employers where these cannot beagreed voluntarily. Each application will be considered by a Panel of CACmembers, which will be led by the Chairman or a deputy chairman andinclude a member from both the employer and employee groups

5. The members are being appointed under Section 260 of the Trade

Union and Labour Relations (Consolidation) Act 1992 (as amended bysection 24 of the Employment Relations Act 1999), which provides that theymust be experienced in industrial relations and include some with experienceas employers' representatives and some with experience as workers'representatives.

68 DTI press release, 24 February 2000, New Chairman for the Central Arbitration Committee69 DTI press release, 11 April 2000, Reinforcement of the Central Arbitration Committee


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6. Sir Michael Burton has recently been appointed Chairman of theCentral Arbitration Committee, and the new appointees join two deputychairmen whose current terms of office expire in 2001. They are ProfessorJohn Goodman, Professor of Industrial Relations, University of ManchesterInstitute of Science and Technology, and Professor Linda Dickens, Professorof Industrial Relations, University of Warwick Business School.70

The current, strengthened, membership of the CAC is listed below:

Chairman

Sir Michael Burton High Court Judge with extensive experience ofemployment law

Deputy Chairmen

Professor John Goodman71 Professor of Industrial Relations, University ofManchester Institute of Science and Technology

Professor Linda Dickens72 Professor of Industrial Relations, University ofWarwick Business School

Professor Frank Burchill Professor of Industrial Relations and Human ResourcesManagement at Keele University

His Honour Judge Peter Clark Circuit judge and resident judge of the EmploymentAppeal Tribunal

Professor Roy Lewis Ex-professor of Law at Southampton, now a barristerspecialising in employment and discrimination law

Professor Gillian Morris Professor of Law at Brunel University specialising inemployment relations and employment law. Also apractising barrister

Professor John Purcell Professor of Human Resources at Bath

Professor Roger Rideout Professor of Labour Law at University College,London. CAC deputy chairman 1977-2000

Ms Mary Stacy Former partner at Thomsons solicitors

70 DTI press release, 11 April 2000, Reinforcement of the Central Arbitration Committee71 existing deputy whose term of office expires in 200172 existing deputy whose term of office expires in 2001


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Employer Members

Mr Kenneth Anthony Head of Industrial Relations with the British FootwearAssociation

Mr Eamonn Barry General Manager – Human Resources with Rolls Royce

Mr David Bower Personnel Director of the Rover Group

Mr Mike Cann Recently retired national negotiator for the LGMB inlocal government, fire service, police and otherprofessions

Mrs Maureen Chambers Employee Relations Manager, Coutts

Mr David Crowe A career Human Resources specialist

Mr Simon Faiers Career in the electricity industry - latter employer beingthe Eastern Group plc where he was Head of HumanResources

Mr Ged Fisher Group Personnel Director with Severn Trent until hisretirement earlier this year

Mr Peter Humphrey Securicor Group Personnel Director until Dec 1997

Mrs Jean Johnson Director of Human Resources with the Law Society

Mr Sandy Morrison Personnel Director with Firth Ports for 17 years

Mrs Diane Palmer Human Resources Director for RAC Motoring Services

Ms Jackie Patel Formerly a Human Resources Director with DeltaCompton Cables

Mr John Rugman Recently retired Head of Human Resources with GKN

Mrs Maureen Shaw Director of Personnel Services, University of Aberdeen

Mr Neil Wallace Newly retired Director of Personnel with CorningOptical Fibres


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Employee Members

Dr Elizabeth Allen National Officer for NATFHE

Mr John Allen Asst General Secretary - Head of Operations and Headof Personnel, Transport Salaried Staffs’ Association

Mr Sandy Boyle Deputy General Secretary of UNIFI

Ms Virginia Branney Employment Relations consultant. Previously DeputyHead of Local Government with UNISON

Mr Dennis Cameron Assistant General Secretary of the Transport SalariedStaffs Association

Mr Ken Cameron General Secretary of the Fire Brigades Union

Mr Bill Connor General Secretary for USDAW

Ms Susan Corby Senior Lecturer in Human Resources Management atGreenwich. Former industrial relations officer, RCM.CAC member 1985-2000

Mr Paul Gates General Secretary, KFAT

Mr Derek Hodgson General Secretary of the CWU

Lord David Lea, OBE Was Assistant General Secretary of the TUC. Now aMember of the House of Lords

Sir Kenneth Jackson General Secretary of the AEEU

Mr Simon Petch General Secretary of Connect, formerly the Society ofTelecom Executives

Mrs Margaret Prosser Deputy General Secretary for the TGWU

Mr Keith Sonnet Assistant General Secretary, UNISON

Dr Bill Speirs General Secretary of the Scottish TUC


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IV Bibliography

Parliament

Parliamentary debate on the trade union recognition provisions of the EmploymentRelations Bill 1998-99:

- Commons, Standing Committee E, Tenth Sitting, 16 March 1999 (Morning) andEleventh Sitting, 16 March 1999 (Afternoon)

- Commons Report, HC Deb 31 March 1999, cc 1158-1194

- Lords Committee, HL Deb 7 June 1999, cc 1144-1218, 1234-1283

- Lords Report, HL Deb 8 July 1999, cc 1037-1073

- Commons consideration of Lords amendments, HC Deb 26 July 1999, cc 35-52

Debates on the draft Code of Practice on Access to Workers during Recognition andDerecognition Ballots:

- Second Standing Committee on Delegated Legislation, 22 May 2000

- HL Deb, 22 May 2000, cc 567-572

Government

Explanatory Notes on the Employment Relations Act 1999,http://www.legislation.hmso.gov.uk/acts/en/1999en26.htm

DTI, Public Consultation on A Code of Practice on Access to Workers duringRecognition and Derecognition Ballots and A method of Conducting CollectiveBargaining, February 2000, http://www.dti.gov.uk/er/confin3.pdf

Draft Code of Practice: Access to Workers during Recognition and DerecognitionBallots, laid before Parliament, 8 May 2000, http://www.dti.gov.uk/ir/codfinv4.pdf

The Trade Union Recognition (Method of Collective Bargaining) Order 2000, SI No1300, laid before Parliament, 12 May 2000, http://www.dti.gov.uk/ir/methodord1.pdf

Guides to the Employment Relations Act 1999

Deborah J Lockton. The Employment Relations Act 1999: A Practical Guide, Jordans,1999

http://www.legislation.hmso.gov.uk/acts/en/1999en26.htm

http://www.dti.gov.uk/er/confin3.pdf


http://www.dti.gov.uk/ir/methodord1.pdf


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Labour Research Department, The Employment Relations Act 1999 – a guide for tradeunionists, November 1999

IDS Employment Law Supplement, Employment Relations Act 1999, November 1999

Relevant articles and studies

Lord McCarthy, Fairness at Work and Trade Union Recognition: Past Comparisons andFuture Problems, Institute of Employment Rights, March 1999

Stephen Wood and John Godard, “The Statutory Union Recognition Procedure in theEmployment Relations Bill: A comparative Analysis”, British Journal of IndustrialRelations, Vol 37 No 2, June 1999

“Trade union membership and recognition 1997-98: an analysis of data from theCertification Officer and Labour Force Survey”, Labour Market Trends, July 1999

Brian Towers, Developing Recognition and Representation in the UK: How Useful is theUS Model?, Institute of Employment Rights, September 1999

Gregor Gall and Sonia McKay, “Developments in Union Recognition and Derecognitionin Britain, 1994-1998, British Journal of Industrial Relations, Vol 37 No 4, December1999

TUC, Trade Union Trends: Focus on Recognition, January 2000

“Unions seize the moment”, Labour Research, February 2000

“Union recognition”, IDS Studies 685, March 2000

Lord Wedderburn, “Collective Bargaining or Legal Enactment: the 1999 Act and UnionRecognition”, Industrial Law Journal, Vol 29 No 1, March 2000

“Positive outlook for recognition despite complexities of law”, Bargaining Report, April2000

Neil Millward, Alex Bryson and John Forth, All change at work? British employmentrelations 1980-1998, as portrayed by the Workplace Industrial Relations Survey series,2000


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Appendix: Recognition Procedure Flowchart

Reproduced from the Explanatory Notes on the Employment Relations Act 1999

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