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Employment Relations Act 1999

Part VI: Derecognition where union not independent

102.Part VI provides that workers will be able to apply to the CAC for the derecognition of a union which does not have a certificate of independence and which has been (voluntarily) recognised by an employer.

103.These provisions apply equally if one or many workers in the bargaining unit request an end to collective bargaining arrangements.

104.Paragraphs 134 and 138 restrict the scope of this Part to unions which do not have a certificate of independence.

105.Paragraph 137 provides that at any time after a non-independent union is recognised, a worker (or workers) may apply to the CAC to end the collective bargaining arrangements. Paragraph 139 provides that an application is not admissible unless at least 10% of the bargaining unit favour an end to the collective bargaining arrangements and a majority of the bargaining unit are likely to do so. (This is essentially the same test as in paragraph 110). Paragraphs 135 and 136 provide definitions for this Part of the Schedule.

106.Paragraph 140 makes an application for derecognition under Part VI inadmissible if the union has applied for a certificate of independence under section 6 of the 1992 Act. Paragraph 141 requires the CAC to decide whether an application is admissible in terms of paragraphs 137-140, taking evidence from the employer, union and workers.

107.Paragraph 142(1) mirrors paragraph 116(1), and requires the CAC, during a 20 working day negotiation period, to help the employer, union and workers negotiate with the aim that either they agree to end the bargaining arrangements or the worker withdraws the application. If an agreement is reached or the application is withdrawn, the CAC will take no further action. Otherwise, it must hold a ballot under paragraph 147.

108.If during the negotiation period in paragraph 142 the CAC becomes aware that the union applied for a certificate of independence before the application for derecognition was made, paragraph 143 requires it to suspend work on the workers’ application for derecognition. If the Certification Officer (CO) decides that the union is independent, paragraph 144 has the effect of ending the application, and the union remains recognised. If the CO decides that the union is not independent, the application resumes, and a new 20 working day negotiation period begins. If the employer and union agree to end recognition or if the workers withdraw their application, the CAC will take no further action. If they cannot agree, it must hold a ballot under paragraph 147. If at any time before the CAC is informed of a ballot result under Part VI the union is awarded a certificate of independence – for example, as a result of an appeal against the CO – then paragraph 146 requires the CAC to ignore the workers’ application for derecognition and the union remains recognised.

109.Paragraph 148 deals with the situation where an application for derecognition under this Part has been successful but the employer has re-recognised the non-independent union for substantially the same bargaining unit. In this case, paragraph 35 allows an independent union to apply for statutory recognition under Part I within 3 years of the derecognition. If the independent union is declared to be recognised by the CAC then paragraph 148 provides that the non-independent union shall be derecognised. In this case statutory recognition under Part I replaces the voluntary recognition of the recently-derecognised non-independent union.

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