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Employment Relations Act 1999

Part I: Recognition

24.Part I sets out procedures for the recognition of an independent trade union to conduct collective bargaining on behalf of a group of workers, referred to as the bargaining unit. It provides a method for agreeing the appropriate bargaining unit, whether the union should be recognised, and how collective bargaining should be conducted. The key steps in the recognition procedure are illustrated in Figure 1; similarly, the key steps in the process for establishing a method of collective bargaining are summarised in Figure 2.

Figure 1: Statutory recognition procedure

25.Paragraph 1 provides that an application for recognition may be made by a single union or by two or more unions acting together. For simplicity these notes generally refer to an application by a single union but such references should be read as covering a union or unions.

26.Paragraph 2 contains definitions for the purposes of the Schedule. Sub-paragraph (2) defines the bargaining unit, the group of workers on whose behalf a union (or unions) would conduct collective bargaining. Sub-paragraph (3) defines the proposed bargaining unit, the group of workers on whose behalf a union requests recognition. (If the employer does not agree that the unit is appropriate, it may be changed in negotiation. If the employer and union fail to agree, the Central Arbitration Committee (CAC) will rule under paragraph 19.) Sub-paragraph (4) defines employer.

27.Paragraph 3 defines the scope of collective bargaining for the purposes of Part I. Collective bargaining covers pay, hours and holidays plus any matters which the union and employer agree should be included. However, if the CAC determines the method by which collective bargaining should take place under paragraph 31(3), that method will apply only to negotiations over pay, hours and holidays – it will not apply to any other matters the parties agree under sub-paragraph (4). (If the CAC sets a bargaining method, the parties can agree to vary it to include other matters as well.) Sub-paragraph (6), taken with paragraph 35, means that recognition under Part I cannot ‘overwrite’ an existing collective agreement, even if that agreement does not cover pay, hours and holidays, subject to the exceptions given in paragraph 35.

28.Paragraph 4 deals with requests for recognition. Sub-paragraph (1) has the effect that the recognition process is begun by a formal request from the union seeking recognition.

29.Paragraphs 5-9 test whether an application is valid.

30.Paragraph 6 provides that the union making an application must have a certificate of independence from the Certification Officer.

The functions of the Certification Officer, including in relation to certificates of independence, are dealt with in sections 2-9 of the 1992 Act.

  • A trade union is defined as independent by section 5 of the 1992 Act if it (a) is not under the domination or control of an employer or group of employers or one or more employers’ associations, and (b) is not liable to interference by an employer or any such group or association (arising out of the provision of financial or material support or by any other means whatsoever) tending towards such control.

31.Paragraph 7 provides that a request is not valid if an employer has fewer than 21 workers. The term “employer” includes associated employers, as defined below. The Secretary of State may vary the 21 worker threshold, or make other changes to the provisions of this paragraph, by statutory instrument subject to affirmative resolution.

32.Sub-paragraphs (3) and (4) exclude from the calculation of the number of workers people who work for associated employers incorporated outside Great Britain and who do not ordinarily work in Great Britain. The recognition procedure still applies, however, to employers incorporated outside Great Britain which employ more than 21 workers.

  • Two employers are associated employers under section 297 of the 1992 Act if one is a company of which the other (directly or indirectly) has control, or both are companies of which a third person (directly or indirectly) has control.

33.Sub-paragraph (5) provides that workers employed on board UK-registered ships by associated employers are also counted towards the 21 workers threshold, unless (a) the ship is registered as belonging to a port outside Great Britain, (b) the employment is wholly outside Great Britain, or (c) the worker is not ordinarily resident in Great Britain.

34.Paragraphs 8 and 9 make provision for the form and content of requests for recognition, including a power for the Secretary of State to prescribe the form of requests by statutory instrument. Further general provisions on applications are made in paragraphs 33-42.

35.Paragraph 10 provides that the statutory recognition procedure is to end if the parties agree within ten working days both the appropriate bargaining unit and that the union should be recognised to conduct collective bargaining on behalf of the workers who make up that unit. If the employer agrees to negotiate, then the parties have 20 working days, plus whatever remains of the initial ten working day period, in which to conduct negotiations. They can extend the period for negotiation by mutual consent.

36.Paragraph 11 provides that, if the employer does not respond to the request or rejects it before the end of the first (ten working day) period, the union may apply to the CAC to decide the appropriate bargaining unit and whether a majority of workers in that bargaining unit support recognition.

37.Paragraph 12 provides that if the employer and union fail to reach agreement by the end of the second period, the union may apply to the CAC to decide the appropriate bargaining unit and whether a majority of workers in the bargaining unit support recognition. If the parties agree a bargaining unit but cannot agree that the union should be recognised, the union may apply to the CAC to decide whether a majority of workers in the bargaining unit support recognition. However, in either case the union may not apply to the CAC if it rejected or failed to respond to a proposal by the employer (made within 10 working days of having indicated his willingness to negotiate) that the parties should seek the assistance of ACAS in the negotiations.

38.If a union applies to the CAC under paragraph 11 or 12, the CAC must be satisfied, before the application may proceed, that it is valid and admissible.

39.Paragraph 14 applies if two or more applications are received by the CAC, and the bargaining units proposed or agreed in respect of the applications overlap, ie at least one worker is a member of all the bargaining units. In this case, each application is the subject of a “ten percent” test to see whether at least 10% of the bargaining unit are union members. If only one application passes the test, it may proceed; if both pass or neither passes, neither application will be accepted.

40.Paragraph 15 requires any application under paragraph 11 or 12 to be valid in terms of paragraphs 5-9 and admissible in terms of paragraphs 33-42. The CAC has 10 working days (or longer, if it notifies the union and employer of its reason for extending the period) in which to decide whether the application is valid and admissible. In order to proceed, an application must therefore:

  • be received by the employer (paragraph 5);

  • be made by an independent union (paragraph 6);

  • apply to an employer with 21 or more workers (paragraph 7);

  • be made in the proper form (paragraphs 8, 9 and 33);

  • be copied to the employer, along with any supporting documents (paragraph 34);

  • not cover any workers in respect of whom a union is already recognised, unless:

    • the applicant union is the one which is already recognised, and the existing recognition agreement does not cover pay, hours or holidays (paragraph 35(2)); or

    • the recognised union has no certificate of independence, was previously recognised in respect of the same (or substantially the same) bargaining unit, and ceased to be recognised within the three years prior to the application (paragraph 35(4));

  • satisfy the CAC that at least 10% of the proposed bargaining unit are members of the union and a majority of the workers in the proposed bargaining unit would be likely to favour recognition (paragraph 36);

  • (if the application is made by more than one union) show that the unions will co-operate effectively in collective bargaining and, if the employer wishes, conduct single-table bargaining (paragraph 37);

  • not cover any workers in respect of whom the CAC has already accepted an application under paragraph 15 or proceeded with an application under paragraph 20, ie the bargaining unit must not overlap with another unit in respect of which the CAC has accepted an application (paragraph 38);

  • not be substantially the same as an application which the CAC accepted within the previous 3 years (paragraph 39);

  • not be made within 3 years of a declaration by the CAC that the union (or the same group of unions) were not entitled to be recognised in respect of the same (or substantially the same) bargaining unit as in the current application (paragraph 40); and

  • not be made within 3 years of the union (or the same group of unions) being derecognised in respect of the same (or substantially the same) bargaining unit as in the current application (paragraph 41).

41.If the employer and union have agreed the bargaining unit, then the application under paragraph 12(4) leads directly to a determination of support. Otherwise, for applications under paragraphs 11(2) or 12(2), the CAC must decide the appropriate bargaining unit before moving on to the question of whether the union has sufficient support for recognition.

42.Paragraph 16 allows a union to withdraw its application under paragraph 11 or 12 at any time before the CAC awards automatic recognition under paragraph 22(2) or gives notice of its intention to hold a ballot. If the CAC intends to hold a ballot, paragraph 24 gives the union 10 working days in which to decide whether to cancel it. For example, it may become apparent to the union that its proposed unit is not appropriate. It may wish to withdraw its application and reformulate it, possibly in conjunction with another union. If the union withdraws its application after it has been accepted by the CAC under paragraph 15 or cancels a ballot, paragraph 39 has the effect of barring it from reapplying for recognition in respect of the same or a substantially similar bargaining unit for 3 years.

43.Paragraph 17 allows the union and employer to notify the CAC that they wish it to cease work on an application at any time before recognition is granted automatically on the basis of over 50% union membership or a ballot is arranged. Notification of the CAC under this paragraph is necessary if the parties want to make an agreement for recognition (ie to qualify for semi-voluntary recognition under Part II of the schedule) and an application to the CAC under Part I has been made.

44.Paragraph 18 provides that, where the CAC has been asked to decide on the appropriate bargaining unit, it has 20 working days to help the union and employer to agree an appropriate bargaining unit. The CAC may choose to extend this period. Paragraph 19 provides that if no agreement on the bargaining unit is reached, the CAC must determine the appropriate bargaining unit within ten working days, taking account of the need for the bargaining unit to be compatible with effective management and, so far as is consistent with this need, the factors listed in sub-paragraph (4). This period can be extended provided the CAC notifies the parties with its reasons for the extension, but in practice the CAC may have gathered enough information in the course of trying to help the parties to reach agreement to be able to decide quickly.

45.Paragraph 20 requires the CAC to apply several tests if the bargaining unit determined in paragraphs 18 and 19 is different from the union’s proposed bargaining unit. These tests are equivalent to those applied by paragraph 15. If all the tests are passed, or if the bargaining unit has not changed, paragraph 21 requires the CAC to proceed with the application. The tests are that an application must:

  • not cover any workers in respect of whom a union is already recognised, unless:

    • the applicant union is the one which is already recognised, and the existing recognition agreement does not cover pay, hours or holidays (paragraph 44(2)); or

    • the recognised union has no certificate of independence, was previously recognised in respect of the same (or substantially the same) bargaining unit, and ceased to be recognised within the three years prior to the application (paragraph 44(4));

  • satisfy the CAC that at least 10% of the proposed bargaining unit are members of the union and a majority of the workers in the proposed bargaining unit would be likely to favour recognition (paragraph 45);

  • (if the application is made by more than one union) show that the unions will co-operate effectively in collective bargaining and, if the employer wishes, conduct single-table bargaining (paragraph 46);

  • not cover any workers in respect of whom the CAC has already accepted an application under paragraph 15 or proceeded with an application under paragraph 20, ie the bargaining unit must not overlap with another unit in respect of which the CAC has accepted an application (paragraph 47);

  • not be substantially the same as an application which the CAC accepted within the previous 3 years (paragraph 48);

  • not be made within 3 years of a declaration by the CAC that the union (or the same group of unions) were not entitled to be recognised in respect of the same (or substantially the same) bargaining unit as in the current application (paragraph 49); and

  • not be made within 3 years of the union (or the same group of unions) being derecognised in respect of the same (or substantially the same) bargaining unit as in the current application (paragraph 50)

46.If the CAC is satisfied that a majority of the workers in the bargaining unit are members of the union making the application, paragraph 22 provides that the CAC shall issue a declaration of recognition without a ballot, unless one of the conditions in sub-paragraph (4) is met, in which case the CAC must give notice that it intends to hold a secret ballot of members in the bargaining unit. Under paragraph 23, the CAC must also give notice that it intends to hold a secret ballot where the union does not show majority membership in the bargaining unit. If the CAC gives notice of a ballot, paragraph 23 gives the union 10 working days in which to request that the ballot should not be held. If it does so, the CAC will take no further action and the union will not be recognised.

47.Paragraph 166 provides that, where the CAC represents to the Secretary of State that paragraph 22 has an unsatisfactory effect and should be amended, the Secretary of State has power to make amendments by order subject to the affirmative resolution procedure. Paragraph 167 provides that the Secretary of State may issue guidance to the CAC on the exercise of its functions under paragraph 22. This guidance must be laid before Parliament and published.

48.Paragraph 25 makes provision for the conduct of recognition ballots. They must be conducted by a qualified independent person appointed by the CAC. Sub-paragraphs (7) and (8) set out the conditions to be met by a qualified independent person, which include meeting criteria specified in – or being himself specified in – an order made by the Secretary of State subject to negative resolution procedure. (This is essentially the same arrangement as for independent scrutineers for trade union elections and industrial action ballots, where solicitors and accountants and certain bodies such as the Electoral Reform Society are designated as qualified to act as scrutineers.) The ballot is to be conducted within 20 working days of the appointment of the independent person unless the CAC decides to extend the period. This is intended to ensure that the ballot takes place without undue delay, while recognising that organising a large, complex ballot may take longer than 20 working days.

49.Sub-paragraph (4) provides that the ballot may be held at the workplace, by post or, if special factors make it appropriate, by a combination of the two methods, at the CAC's discretion. Sub-paragraph (5) requires the CAC to consider the risk of interference in a workplace ballot, costs and practicality, and any other matters it considers relevant. Sub-paragraph (6) lists ‘special factors’ which might make a combined postal and workplace ballot appropriate. Sub-paragraph (9) requires the CAC to inform the employer and union of the arrangements for the ballot as soon as reasonably practicable.

50.Paragraphs 26(1)-(4) deal with the duties of the employer to cooperate with the ballot, to provide necessary information and to allow the union reasonable access to the workers to campaign for recognition. Sub-paragraphs (6) and (7) provide a mechanism for the union to send information to workers via the person conducting the ballot, at the union’s expense, without the workers’ names and addresses being disclosed to the union. Sub-paragraph (8) gives a power for the Secretary of State or ACAS to draw up a statutory code of practice to give practical guidance on ‘reasonable access’. Such guidance will need to take account of the different circumstances of different employers’ premises and businesses.

51.Paragraph 27 makes provision for action by the CAC in the event that the employer does not fulfil his duties under paragraph 26. The CAC may order the employer to take specific steps to remedy his failure to cooperate. If the employer does not comply, the CAC may declare the union recognised and cancel the ballot.

52.Paragraph 28 provides for half the costs of recognition ballots to be borne by the employer and half by the union or unions making the application. These costs include:

  • the full cost of running the ballot incurred by the scrutineer (including any fee the scrutineer may charge for his services); and

  • any other costs which the employer and union agree should be shared

Costs which are not shared include the cost of providing information to workers incurred by a union or the employer.

53.Paragraph 29 requires the CAC to inform the employer and union of the result as soon as possible after the ballot. If recognition is supported by a majority of those who vote and at least 40% of the workers constituting the bargaining unit, the CAC must declare the union to be recognised; otherwise, it must declare that the union is not recognised. The conditions for recognition under this paragraph may be altered by the Secretary of State by order subject to affirmative resolution procedure.

Figure 2: Establishing a bargaining procedure

54.Paragraph 30 provides that, if a union is recognised by means of a declaration of the CAC and the employer and unions cannot agree a method for conducting collective bargaining, either party can ask the CAC for assistance. This process is illustrated in Figure 2. As elsewhere, the Act provides for a period of negotiation, in this instance of 30 working days, for the employer and union to try to reach a voluntary agreement before the CAC intervenes.

55.Paragraph 31 provides that, if the employer and union are still unable after the 30 working day negotiation period to agree on the method for conducting collective bargaining, the CAC will actively try to help them reach an agreement. The period allowed for this stage is 20 working days, or longer if all involved agree. If that attempt is unsuccessful, then the CAC must specify the method for collective bargaining unless the parties jointly request it not to do so. The imposed method will have effect as if it were a legally binding contract between the employer and union. If one party believes the other is failing to respect the method, the first party may apply to the court for an order for specific performance, ordering the other party to comply with the method. Failure to comply with such an order could constitute contempt of court. Sub-paragraph (5) has the effect that, once the CAC has imposed a method, the parties can vary it, including the fact that it is legally binding, by agreement provided that they do so in writing.

56.Paragraph 32 allows the employer or union to apply to the CAC if an agreed method has not been followed. The CAC will help to broker another agreement or, if the parties cannot agree, will impose a bargaining procedure.

57.Under paragraph 168, the Secretary of State may, after consulting ACAS and by order subject to the negative resolution procedure, specify a model method for collective bargaining which the CAC must take into account but may vary if necessary in particular circumstances.

58.Paragraph 37 provides that if two or more unions apply jointly under paragraph 10 or 11 the CAC must be satisfied they will be able to cooperate effectively on collective bargaining in order to proceed with the application.

59.The purpose of paragraphs 39, 40, 41 and 42 is to give effect to the principle that once an application for recognition has been decided that decision should not be re-opened for at least three years.

60.Paragraph 51 applies if, once an application is accepted, another application is made for recognition in a bargaining unit which includes at least one worker in the original application’s bargaining unit. Paragraph 38 provides that the new application will always be rejected and paragraph 51 provides that, if the union making the new application has at least 10% membership in the relevant bargaining unit and no bargaining unit has been decided for the original application, the CAC must cease work on the original application and treat it as if it had never been admissible.

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