With particular reference to the policy of the law and in light of any recent changes of which you are aware, critically analyse the legislative provisions governing trade union recognition in the UK

This assignment will consider the policy of law and recent changes in relation to trade union recognition in the UK. It will explore the statutory scheme and critically analyse it, arguing that it is far more favourable to the employer than the employee and that certain amendments are required to be made in order for this law to be satisfactory.
The current procedure, of Trade Union Recognition is contained under Schedule 1 of the Employment Relations Act 1999 and has been subject to contention, for different reasons, from employers to their federations, trade unions, political parties, employment lawyers and academics. These contentions have centred upon the balance between voluntary and statutory routes, the complexion and complexity of the procedures and the methods of enforcement. Suffice it to say that unions and critical observers argued that the procedure was overly favourable to employers, either directly when used or indirectly by deterring applications.

The Employment Relations Act 1999 gave trade unions new legal rights to be recognised by employers where they could demonstrate majority membership or support. While the Act has directly led to fewer than a hundred awards of recognition, the number of voluntary agreements achieved by trade unions in the period immediately preceding the legislation and since its introduction is substantial. According to surveys for the TUC, more than 1,200 agreements have been concluded since 1998.

Guidance to their operation of the provisions of ERA 1999 can be found in two codes. One gives practical advice on how to allow trade union access to workers during recognition and derecognition ballots. The other outlines a specified method of collective bargaining which the CAC can impose after recognition has been awarded, but where agreement has not been reached by the employer and the union on how they should bargain. The code on access is detailed and attempts to be even-handed, some may say asp rational in the way in which it dispenses its advice. For example, it encourages joint access arrangements where there are applications by more than one union. Of more concern to some trade unionists, is the reported situation of the recognition application of an independent union allegedly being blocked by a non-independent trade union which is claiming existing negotiating rights. Such rights, it is argued, should only be available to a union which can genuinely represent the interests of its members because it is not under the financial or management control of the employer.

It is important to consider Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 which is perhaps the most important legislation in relation to trade union recognition and therefore this will be examined in some detail. It is first important to look at the definition of bargaining unit as set out in the act. The preferred Government route for industrial partnership is the voluntary recognition of a trade union by the employer (if substantially supported by employees). However, if this is not achievable, the trade union may in certain circumstances apply to the CAC for a declaration that it should be recognised for collective bargaining over pay, hours and holidays for workers in a specific bargaining unit. When considering the procedure set out in Schedule A1 to the 1992 Act, it is not right to observe that the size and scope of this bargaining unit is a crucial industrial relations issue.

Paragraph 18 of Schedule A1 provides that in deciding the "appropriate bargaining unit" the CAC must firstly consider the need for it "to be compatible with effective management". Subsidiary matters which may also be considered-provided that "they do not conflict with that need"-are the views of employer and union, existing bargaining arrangements, the desirability of avoiding fragmented units and the characteristics and location of workers within the proposed unit.
Determination of the bargaining unit is at the heart of the relationship between employer and trade union. Of the 57 applications for statutory recognition submitted between June 6, 2000, when Sch A1 came into force, and March 31, 2001, all of the 27 accepted cases proceeded to the bargaining unit stage. Over a third of these had to be determined by the CAC because the parties could not reach agreement on the bargaining unit. Of the rest, the bargaining units were agreed in five cases, five were withdrawn and seven were awaiting resolution at the time of reporting.

Paragraph 4 requires a union or unions seeking recognition to make a 'request for recognition' to the employer. In addition to the 'independence' and 'employer size' requirements, a request must comply with the following requirements if it is to be considered 'valid'. The request must be in writing, identify the union and state that it is made under Schedule A1. It must also be received by the employer. It should be noted that while a request may be made by more than one union, acting jointly, it may relate only to a BU comprising workers of a single employer. Allowing multi-union claims was justified by the need to respect workers' freedom to join the union of their choice. This was, however, qualified by the requirement imposed on unions making joint requests to satisfy the CAC that they will co-operate over collective bargaining, even to the extent of committing themselves to joint bargaining, should the employer require this. In this way the government evidently hoped to reconcile the policy of insulating the CAC from issues relating to inter-union competition with the reality that it is still the case in some areas-the National Health Service and newspaper publishing for example-that certain groups of workers may appropriately be represented by more than one union.

In considering the statutory scheme for recognition it is now important to look at some of the cases heard by the CAC and decided under this statutory scheme.
The first of these is TGWU and Gala Casinos Ltd t/a Maxims Casino Club, the CAC Panel convened under the TULRCA 1992, s 263A, considered an application from the union, TGWU, that it should be recognised for collective bargaining purposes by the employer, Maxims Casino Club, for all pit bosses, assistant pit bosses, inspectors, dealers, cashiers and others employed the club.The Union argued that the bargaining unit should be restricted to only one of Maxim’s many casinos, and their rationale fro this was that its wage structure, management, and budget were different from other casinos. The union also argued that the disciplinary process and terms relating to the care of uniforms were also different to that of other unions. The management at the Casino argued that the business was centrally managed and that terms and conditions including rates of pay were fixed at that level, with no local negotiation on wages, hours and holidays. Seniority of the staff at Maxims and higher levels of experience were responsible for any differential payments. The employers were therefore of the view that a bargaining unit should be based on all employees and/or should be one based on employees in the 26 casinos.

The CAC Panel in making its statutory declaration under TULRCA 1992, Sch A1, paragraph 19(3)(a), (b) made reference to its statutory obligation to avoid fragmented bargaining units and accepted the employer's submission that the union's proposal could lead to 170 separate bargaining units. The CAC's determination was that the appropriate bargaining unit "is composed of all employees in all casinos operated by the Employer in the United Kingdom". This could possibly be characterised as a "win-win situation" in that the employers secured a large bargaining unit which reflected their central organisation and the trade unions secured a decision that casino staff should be in a separate bargaining unit, albeit not based on an individual casino, but one which would reflect the CAC Panel's view "that there are a number of relevant distinctions between employees in casinos and bingo clubs both in relation to skills, job titles and descriptions and rates of pay".

The next case which is noteworthy is the case of ISTC and MFI-formerly Hygena (Scunthorpe), in this case the CAC Panel had determined that the bargaining unit should consist of all MFI manual workers across six sites, the issue to be determined was whether the general provisions about validity in paragraphs 43-50 of Schedule A1 were met. Under TULRCA 1992, Schedule A1, paragraph 45(a), (b), the union had to show that its members constituted at least 10 per cent of the workers in the bargaining unit and that a majority "would be likely to favour recognition of the union". But the employer maintained "that the union had only recruited 543 members out of a potential workforce at the three sites of 1,398 and this clearly supported the view that the majority of workers did not want Union recognition. A recruitment rate of just less than 40 per cent had been achieved at three sites after a two-year campaign but there were no members in another site and only two in a further location. This was enough to satisfy the 10 per cent threshold in paragraph 45(a) but not enough to meet the requirement in paragraph 45(b) that a majority of workers would favour recognition. So, a 21.8 per cent membership base overall, meant that the ballot application was dismissed and over 500 workers were unrepresented for collective bargaining purposes by their trade union.

In Manufacturing Science Finance and Saudi Arabian Airlines, a case concerning airline personnel, where agreement had been reached between the parties on an appropriate bargaining unit, the only matter at issue was the level of union membership. The MSF trade union conceded that although it did not have the required 50 per cent plus one majority in the bargaining unit for the CAC to be able to declare recognition without a ballot, it would request that a CAC decision on holding a ballot should be delayed by a week to enable it to reach that threshold. The CAC Panel who declared "that it would be an incorrect application of the statutory process to defer a decision on the holding of a ballot whilst one party sought to secure changes in union membership within the bargaining unit" robustly rejected this.

In ISTC and Fullarton Computer Industries Ltdthe employer's challenged the inappropriateness of the trade union making the application, in that the said union "did not act in the interests of good industrial relations nor in the interests of the Company at the time of the recent redundancy announcements." The CAC Panel, in acknowledging that the redundancy situation had clearly soured management-trade union relations, nevertheless declared that "the appropriateness or otherwise of the applicant union, however, is not a relevant issue for the CAC." Although technically this must be correct, it mirrors perhaps the arguably "laissez-faire" thrust of the legislation.

A further illustration of how the statutory scheme operates can be seen in the CAC decision on the admissibility of a recognition application by the National Union of Journalists (NUJ).In that case, around half of the journalists in the proposed bargaining unit were NUJ members and at most one worker in the bargaining unit was a member of a rival independent non-TUC affiliated union, the British Association of Journalists (BAJ). Despite this, the employer, MGN Limited, recognised the BAJ and its recognition, the Panel found, sufficed to block the NUJ's application under paragraph 35(1) of the SRP, which prevents a union from making an application for recognition 'if the CAC is satisfied that there is already in force a collective agreement under which a union is recognised as entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit'. The Panel found that recognition flows simply from the decision by an employer to grant recognition and of the union to accept that grant of recognition and does not require any authority or consent from a majority or a particular proportion of the workers in relation to whom the collective bargaining will occur. To block a recognition application under paragraph 35(1), it may not even be necessary for any worker to be a member of the union the employer recognises.Evidently, this creates a policy problem, in that the recognised union may not be representative of the workers in question. Where the recognised union is affiliated to the TUC, this problem may be resolved through the TUC Disputes Procedures. Where the recognised union is a non-independent trade union its recognition by the Company can be challenged under Part VI of the SRP. However, where, as here, the recognised union is independent but not affiliated to the TUC, no statutory 'representativity' criterion is available to resolve the issue.

A report under taken for the DTI by researchers at the Working Lives Research Institute and the Policy Studies Institute, focuses on the content of union recognition agreements, that have been concluded voluntarily. The report is based on a statistically representative sample of voluntary trade union recognition agreements, supplemented by the findings of nine case studies. It aimed to establish the extent to which the scope of these agreements mirrored the statutory method of collective bargaining, in particular whether they limited bargaining to the core issues of pay, hours and holidays. It explores how far the agreements went beyond these issues and, in particular, the extent to which they dealt with emerging key issues, including pensions, training and equal opportunities.
In the overwhelming majority of cases new voluntary recognitions took the form of formal written agreements, suggesting that statutory recognition may have led to the codification of collective bargaining. In nine out of ten cases the agreement was still in force at the time of the survey and, where this was not the case, the main reason was due to closure of the workplace. Thus in most of the deals the parties had entered into a long-term bargaining relationship. Most agreements did provide for collective bargaining and only a small proportion (less than 10%) limited the scope of the agreement to consultation or collective representation only.

The Employment Rights Act 2004 made significant changes to the statutory trade union recognition procedure. While this was an already overcomplicated piece of legislation, it has now been augmented by a further 30 pages. The aim of the amendments is to clarify the issues that have arisen over the previous four years of the operation of Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992. These cover three particular areas:
Statutory negotiation rights for unions over the issues of pay, holiday and hours
Statutory negotiation rights for unions over the issues of pay, holiday and hours
The amendments make it clear that the Central Arbitration Committee (CAC) should restrict its consideration to these "core topics", and not extend the parameters to include such matters as occupational or personal pension schemes. This overturns the CAC's decision in Unifi v The Bank of Nigeria Plc.

Returning to the current statutory scheme, to conclude this assignment, it can be seen that the current statutory scheme is not entirely satisfactory. Novitz and Skidmore consider that there is employer bias in defining the bargaining unit; and also that there should be a lower threshold of support than that currently required from the existing workforce before the CAC can order a ballot on the bargaining unit. Additionally, they favour a simple majority in the ballot on the bargaining unit rather than the present majority of workers voting who must constitute at least 40 per cent of the workers in the bargaining unit. This requirement alone, it can be argued, would always predispose a hostile employer to press for larger constituencies. They also consider that there should be stronger measures to prevent employers who "unfairly seek to influence workers to vote against trade union recognition". It is pointed out that the only sanction is a declaration of recognition. Ewing also maintains that the recognition provisions, because they do not apply to employers with 20 or less workers, breach Art 4 of the International Labour Organisation Convention 1998 which requires Member States to promote "the full development and utilisation of machinery for voluntary negotiation" between employers' and workers' organisations. It is claimed that this statutory threshold excludes some 90-95 per cent of private sector workers. Another impediment identified in securing recognition is when existing staff associations can block n11 applications from independent trade unions. Such a situation is arguably in breach of Art 2(2) of the ILO Convention 1998 which stipulates that worker' and employers' organisations should operate without intervention from each other and that workers' organisations should not be under the domination of employers' organisations.

Bibliography

Cases
ISTC and Fullarton Computer Industries Ltd (TUR1/29/00) February 2, 2001
Manufacturing Science Finance and Saudi Arabian Airlines (TUR1/11/00) December 1, 2000
National Union of Journalists (NUJ) Case TUR1/307/2003, 6 January 2004,
TGWU and Gala Casinos Ltd t/a Maxims Casino Club (TUR1/119/2001) November 1, 2001
Unifi v The Bank of Nigeria Plc

Statutes
Employment Rights Act 2004
Employment Relations Act 1999
Trade Union and Labour Relations (Consolidation) Act 1992

Statutory Instruments
SI 2000 No 1300 Terms And Conditions Of Employment, The Trade Union Recognition (Method of Collective Bargaining) Order 2000

Consultation Papers
DTI, Access to Workers During Recognition and Derecognition Ballots (PL 500)
Voluntary Trade Union Recognition Agreements, 1998-2002: Volume One-An
Analysis of New Agreements and Case Studies, S. Moore, S. McKay and H. Bewley. DTI Employment Relations Research Series, September 200

Journal Articles
Antill D, (2001) Trade Union Recognition, New Law Journal 151.7011 (1809)
Ewing, KD, Employment Rights: Building on Fairness At Work, Industrial Law Society Conference, September 16, 2000
Ewing K, (2001) Constitutional Reform and Human Rights: Unfinished Business? 5 Edinburgh Law Review, issue 3
Gall G, (2005) Research and Reports The First Five Years of Britain’s Third Statutory Union Recognition Procedure, Industrial Law Journal 2005.34 (345)
McKay S & Moore S, (2004) Research and Reports Union Recognition Agreements In the Shadow of the Law, Industrial Law Journal 2004. 33 (374)
Toman V, (2005) More Power to the People?, New Law Journal 155.7170 (492)
Books
Bowers J & Honeyball S, (2002) Bowers and Honeyball Textbook on Labour Law, Oxford University Press
Deakin s & Morris G, (2003) Labour Law, Third Edition, Lexis Nexis
Dudington J, (2003) Employment Law, Pearson Higher Education
Lewis D & Sargeant M, (2005) Employment Law , Pearson Higher Education Press
Willey B, (2003) Employment Law in Context, Pearson Professional Education

Novitz and Skidmore, (2001) Fairness at Work, A Critical Analysis of The Employment Relations Act 1999 and its treatment of Collective Rights, Hart Publishing

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