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Do you recognise me?

Following a thorough review of the 1999 Employment Relations Act, a new and updated version of the legislation received royal assent at the end of last year (see LELR 95).

The review followed a specific commitment by the Government in its 1998 "Fairness At Work" white paper to keep a watching brief on the operation of the statutory recognition and de-recognition procedures introduced in the 1999 Act.

A solicitor from Thompsons' Employment Rights Unit in London, now looks specifically at what the new Act says about recognition. The changes will come into effect on 5 April 2005.

What information has to be provided?

To allow the Central Arbitration Committee (CAC) to assess the level of support for recognition, each side will have to supply certain information:
the workers in a specified bargaining unit (from the employer)
the number of members among those workers (from the union)
the likelihood of the majority of those workers being in favour of recognition (from both).

How will the CAC decide the bargaining unit?

The new law will confirm that the CAC cannot decide to accept the employer's proposal for a bargaining unit or impose its own unless it first rejects the union's proposal. Nor can it decide there is no appropriate unit - it has to find some bargaining unit, even if it is not the one proposed by the union.

It will also have the right to shorten the four-week period for the parties to reach agreement, if it does not think they are likely to do so.

What information does the employer have to give to the Union?

Within a week of the CAC accepting an application, the employer will have to give both the union and the CAC:
a list of the categories of workers in the proposed unit
a list of the workplaces at which they work
an estimate of the numbers employed.

Can the Union communicate with the workers?

A union will not have to wait for a ballot before it can ask the CAC to arrange for information to be sent to each worker in the bargaining unit. In future, it will be able to do so once the CAC has accepted its application.

As with the current provisions, the union has to foot the print and postage bill and the costs of the "qualified independent person" who does the mailing.

If the employer fails, after a formal warning, to co-operate by giving the CAC the names and addresses of the workers to allow the mailing to take place, the CAC can award recognition without a ballot.

Can the CAC order a ballot?

The CAC can order a ballot even where the union has a majority of the bargaining unit in membership, if a significant number of union members tell the CAC that they do not support recognition and the CAC considers the evidence to be credible. This gives the CAC some discretion to discount or reject letters from the employer.

What types of ballots are there?

There are three types of ballot: work place, postal ballot and a combination of the two. In future, the CAC will be able to allow workers to vote by post if they cannot get to work on the day of the ballot.

However the workers must request a postal vote "far enough in advance of the ballot for this to be practicable." This is unlikely to safeguard the voting rights of a worker who takes ill just before the start of a ballot.

What rules will have to be observed during a ballot?

Employers will not be allowed to induce a worker not to go to a union meeting (for instance by giving everyone the afternoon off), nor to threaten action against anyone who attends.

The existing duty to give the union access to the workplace for a meeting has been strengthened to prevent an employer from:
unreasonably refusing a request for the meeting to take place without the employer being present
attending an access meeting without being invited
recording or asking to be informed about what happened at the meeting
refusing to promise not to record or be informed about what happened at the meeting.

Both employers and unions must refrain from using any "unfair practice" during the ballot period (such as offering money, coercing workers to reveal how they voted, or threatening to dismiss them) to influence the outcome of the vote.

Either side can complain to the CAC within one working day after the close of voting. If it upholds a complaint, the CAC can issue one or more remedial orders requiring a party to mitigate the effects of its unfair practice.

Basically, this means that if the employer fails to comply the CAC can award recognition; if the union is the guilty party, it can reject the application for recognition.
If the complaint is made before the start of the ballot, the CAC can postpone it. If the unfair practice includes the use of violence or the dismissal of a union official, it can award recognition or rejection of the union's application even if it has not made a remedial order.

It can cancel an initial ballot, or where that ballot has been completed, it can annul it without disclosing its results. Alternatively, the CAC can arrange for a further ballot where an unfair practice has occurred.

Can the GAC get involved in Inter-Union disputes?

The simple answer is no. In TGWU v ASDA (see LELR 95), the union applied for recognition. ASDA already had a partnership agreement with GMB, although this did not cover bargaining on pay, hours or holidays. It did provide, however, for negotiations on facilities relating to shop stewards. The TGWU's claim could not succeed, therefore, because the GMB was already recognised.

Similarly, the NUJ was thwarted when it applied to the Mirror Group for recognition (see LELR 96), despite the fact that it had the support of the majority of the members in the bargaining unit. The CAC said that it could not go behind a recognition agreement between Mirror Group and the (nonaffiliated) BAJ, even though BAJ only had one member.