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Chris Chapman LLB FCIArb FRSA

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Title: Statutory Trade Union Recognition - the first five years

Industrial Law Society
Leeds
Statutory recognition of trade unions – a review of the operation of the statutory procedures 2000 to 2005

Abstract

This paper examines the practice of the Central Arbitration Committee (CAC) and the courts in interpreting the statutory provisions for achieving recognition of trade unions for collective bargaining purposes under the procedure contained in the Employment Relations Act 1999 which introduced a new Schedule A1 into the Trade Union and Labour Relations Act 1992. It looks at the three main stages in the statutory process and examines the approach adopted by the CAC in the context of the few challenges that there have been to its procedure by way of judicial review in the five years since the procedure came into force. This paper concludes that by and large the courts, and especially the Court of Appeal, have been happy to let the CAC, as the specialist body entrusted by Parliament with the task of adjudicating on applications ,determine the best way to resolve issues arising in its discharge of its statutory responsibilities. Its approach in particular to the question of how to resolve the question of the appropriate bargaining unit and whether the CAC has an overall inherent power to supervise the ballot has been pragmatic rather than overly legalistic. The legislation has not encountered the difficulties that bedeviled its two predecessors in the early 1970’s in particular. A pamphlet published in March 1999 by the Institute of Employment Rights and written by Lord McCarthy, the Labour peer and academic, considered previous attempts to give trade unions the right to seek recognition for collective bargaining purposes. In my conclusions I examine the recommendations from that pamphlet and express the view that to the extent that there have been successes these owe much to the approach taken by the courts on applications for judicial review. Responsibility for the unintended consequences must remain with the policy makers who conceived the original legislation.


Introduction

1. The 1997 Labour Party Manifesto included this commitment: “People should be free to join or not to join a union. Where they do decide to join and where a majority of the relevant workforce vote in a ballot for the union to represent them, the union should be recognised.” That commitment was restated in the White Paper Fairness at Work, which was the precursor to the Employment Relations Act 1999, and which outlined the government’s intention to: “bring forward legislation to provide for representation and recognition where a majority of the relevant workforce wants it.” The relevant legislation is now contained in a schedule to TULRECA 1992, which itself underwent further legislative amendment in the Employment Relations Act 2004, following the DTI Review of the operation of the 1999 Act in 2003.

2. The key provisions underpinning the legislation are the concept of majority support as interpreted by the CAC, with the facility to assess the level of that support in a ballot with a high voting threshold for the union seeking recognition to overcome. The union must not only achieve a simple majority vote in the ballot but the total vote in favour must represent at least 40% of the constituency comprising the relevant bargaining unit entitled to vote in that ballot.

3. The body charged with the sole responsibility for overseeing the process of applications for recognition was the newly restructured and reinforced Central Arbitration Committee (CAC). Headed by a High Court Judge as Chairman, (Burton J, now the former President of the Employment Appeal Tribunal) it determines applications for recognition by panels of three individuals (comprising one of the eleven deputy chairmen, assisted by two members drawn from the respective panels representing employers and workers.) However it must be noted that the CAC does not enforce its decisions. If an employer refuses to bargain with the trade union after a declaration of recognition (a situation that at the time of writing has not yet arisen) the remedy is an award of specific performance in the High Court.

4. Between June 2000 and October 2005 the CAC received 471 applications for recognition; it has issued over 650 decisions on various stages of the application process but has been judicially reviewed on only eight occasions. There is no right of appeal against its determinations. That option was rejected by the government in 1999 and again in the DTI Review in 2003. On only two occasions was the CAC decision overturned. Of that total of eight applications two resulted in decisions with major implications for the recognition process and are dealt with in some detail in this paper.( the CAC website contains the judgments in six of those eight cases.) The Court of Appeal has now upheld the High Court judgment in the NUJ case referred to at length later in this paper, but in terms that again emphasise the specialist nature of the CAC’s decision making powers.

The recognition process

5. There are three key stages in the application for recognition:

a. The acceptance stage (Does the union satisfy the union membership density qualifying condition and command support?)

b. Determination of the appropriate bargaining unit (the unit in respect of which the union seeks collective bargaining rights)

c. The ballot stage including automatic recognition without a ballot( where the union has a membership in excess of 50% in the bargaining unit)

(a) The acceptance stage

6. A union seeking recognition through the statutory process, assuming resistance by the employer, must navigate a series of hurdles all of which are subject to a number of eligibility criteria. The first and most critical stage is acceptance by the CAC of the union’s application. At the acceptance stage there are a number of sequential decisions (potentially twenty in total) to be taken by the CAC, some of which are relatively straightforward and not really requiring a formal decision of the panel: for example does the union have a certificate of independence? Experience has shown that unions still continue to slip up at even this early stage, often for example describing, in the application for recognition, a proposed bargaining unit that the employer suggests or which the application reveals differs from the original bargaining unit described in the union’s original letter to the employer. Even now some trade unions continue to use confusing descriptions to describe the proposed bargaining unit, necessitating either clarification or in extreme cases rejection of the application at that initial stage.

7. However there are three critical questions for the panel to determine which have been subjected to judicial consideration, primarily in relation to the procedures adopted by the CAC in resolving the questions of union membership and majority support:

• Does the union have 10% membership in the relevant proposed bargaining
unit? (Schedule 1A paragraph 36(a))

• Would a majority of the workers constituting the relevant bargaining unit be likely to
favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit? (Schedule 1A paragraph 36(b))

• Is there already in force (emphasis added) a collective agreement under which a
union is recognised as entitled to conduct collective bargaining on behalf of any workers in the relevant bargaining unit? (Schedule 1A paragraph 35(1))

8. So far no union in the first five years of the recognition process has failed at the first hurdle, (although one union came perilously close in an application I dealt with last year, which was withdrawn) but how does the CAC investigate and assess that level of support? Primarily the legislation left it to the CAC itself to devise a method for testing the level of support for recognition at the first stage. In relation to the first two tests it became the practice from an early stage for the CAC secretariat, through the appointed case manager, and with the agreement of the parties, to prepare a confidential membership check. The employer would provide to the CAC secretariat, but not to the union or the panel, a list of the names of the workers in the proposed bargaining unit. The union would reciprocate with membership details of its members and would provide any petition in support. After cross-checking names and clarifying ambiguities if necessary, the case manager would prepare a report indicating the level of support. That report would be provided to the panel as well as the parties. If necessary after representations and/or a hearing if required, the panel would then determine the two admissibility criteria relevant to majority support for union recognition.

9. The practice whereby both parties submit the information to the case manager in confidence received judicial approval in an early application for judicial review in Scotland.( Fullarton Computer Industries Ltd v CAC [2001] IRLR 752) ) However the practice depended for its success on the cooperation of the parties who could not be compelled to provide the information. Annual reports of the CAC did not indicate that the voluntary process was not working, but nevertheless when in 2003 the government carried out its review of the operation of the Employment Relations Act 1999 it decided to recommend a greater degree of compulsion in this stage of the process. In its consultation document it announced that it proposed to introduce a general requirement for the union and the employer to cooperate with the CAC membership check thus ensuring full disclosure of employee and union membership data. As far as the form and content of petitions was concerned it indicated no willingness to prescribe, although in its response to the consultation it modified its stance, but confined its recommendations to asking the CAC to consider reviewing its guidance. The duty to co-operate by supplying information became section 19 of the Employment Relations Act 2004, amending section 170A (1).of Schedule A1 of TULRECA. It applies to both the union and the employer. According to the CAC secretariat the power has been invoked on 3 subsequent occasions.

10. In April 2005 the CAC published its revised guidance to parties after consulting its stakeholders. The revised guidance makes it clear that the parties are not required to disclose the information with the application or the response. If they do it must be copied to the other party; however the parties can supply the information at a later stage on a confidential basis to the case manager, either voluntarily or compulsorily if the CAC invokes its new statutory power.

11. The “majority likely to” test is necessarily imprecise. It does not for example mean more than 50%, in recognition of the fact that it is likely that the union will increase its level of support as the application progresses. It also recognises that the union may encounter practical difficulties in securing access to the workers prior to recognition. In the consultation document the government recorded that up to December 2002 the CAC had rejected 20 applications out of a total of 236 submitted, of which 10 had failed this test. By April 2005 the figures were 50 rejections from a total of 264 applications. It recorded that as so few applications had failed the test it did not propose to change the law, either by modifying the criteria or making them more closely defined. In its response the government noted that unions favoured its removal, that employers favoured its retention, and that the CBI and Engineering Employers Federation advocated application of the test with more vigour, instead of giving the benefit of the doubt to unions. It decided to make no change beyond tightening up the disclosure and cooperation requirement referred to above.

12. As far as the prior recognition point is concerned the issue has not surfaced all that often but when it has it has led to the decisions being either reported or in one momentous instance judicially reviewed. In fact in that case the union successfully obtained the leave of the Court of Appeal to examine the question of the applicability of the Human Rights Act 1998 in a situation where members of a union with majority union membership are denied representation because the employer has granted prior recognition to another union with either few or even no members. Does this situation engage Articles 11 (freedom of association) and 14 (protection against discrimination) of the Convention and the right to associate? The Court of Appeal address the issue somewhat dismissively in the NUJ case referred to below. It seems that the full Court was less impressed than Sedley L.J. who initially granted the union leave to appeal.

13. A union securing recognition for collective bargaining purposes obtains it only for negotiations in relation to pay, hours and holidays. The wider definition of collective bargaining expressly does not apply. It is worth recalling that the original Bill introduced in 1999 would have enabled trade unions to apply for recognition to bargain collectively on all the matters covered by the definition in section 178(1) of TULRECA 1992. The narrower scope of the definition only appeared at the committee stage in the Commons. Specifically it was a government amendment introduced by a junior Minister on a day when the sponsoring Minister Ian McCartney was absent. An abortive attempt was made to reinstate the original clause by Lords McCarthy, Wedderburn and Turner in the House of Lords. The government felt that it was better to provide for a minimum level of bargaining on the key subjects of pay, hours and holidays leaving the other elements to voluntary processes.

14. This distinction was critical to the decision of the CAC to reject an application for recognition by the TGWU in a case reported in late 2004. (TGWU v ASDA [2004] IRLR 836.) In that case the company ASDA had in place a “partnership agreement” with the GMB. The agreement expressly excluded collective bargaining on terms and conditions of employment, but did provide for negotiation on facilities for shop stewards. The employer argued that paragraph 35, which renders inadmissible an application from a union where there is already a collective agreement in existence, has to be construed in accordance with paragraph 3(6) where it states that the narrow definition of collective bargaining does not apply to paragraph 35. The broader definition in section 178 of TULRECA 1992 therefore was the test of whether there was an existing collective bargaining agreement in force. As the GMB had negotiating rights in relation to some of the matters falling within section 178(1), although not in relation to pay, the TGWU’s application was inadmissible.

15. The second case raised a far more contentious issue which was identified by the CAC panel which decided the question as potentially undermining the philosophical basis of the legislation articulated in the quotations at the beginning of this Briefing. At the very least it exposed a potential lacuna in the legislation. The employer was able to frustrate the wish of employees to be represented in negotiations by the union which the majority of the workforce had joined: the National Union of Journalists, by the simple expedient of recognising another union, the British Association of Journalists, which had barely any members employed by the employer. The judge at first instance (Hodge J) found that the BAJ had at best one member although it was suggested that he had left the employment of the employer at the time of the application for judicial review. The issue in the case was whether the relevant agreement with the minority union was in force within the meaning of paragraph 35. On the facts found by the CAC panel the NUJ enjoyed more than 50% membership in the sports division of the Mirror Group. The BAJ had at best one member. Nevertheless the employer negotiated an agreement with the BAJ giving it exclusive rights to negotiate on behalf of journalists on a number of issues including pay, hours and holidays. By the time of the NUJ’s application to the CAC no actual negotiations had taken place between the BAJ and the employer. There had however been consultations in relation to potential redundancies. The CAC panel concluded that the agreement was in force from the date it was signed and, in the absence of evidence that the agreement had been suspended or abandoned, concluded that it rendered the NUJ application inadmissible. It also rejected the union’s argument that the phrase “on behalf of any workers” in paragraph 35 required evidence of consent by the workers to the union acting on its behalf. It also rejected the proposition that its interpretation of paragraph 35 infringed Article 11 of the European Convention on Human Rights: the right of association. The union lost its application for judicial review. The case is reported.([2005] IRLR 28)

16. Its appeal to the Court of Appeal was heard in the summer of 2005. Essentially Hodge J in the application for judicial review in the Administrative Court held that an agreement is in force within the meaning of paragraph 35 from the moment it is signed, even if no negotiations have yet taken place, provided that the agreement had neither been abandoned nor fallen into disuse. There was evidence of some activity between the employer and the union. Equally the union recognised by the employer did not have to demonstrate a substantial level of support among the employees. The union could negotiate on behalf of employees without having to show any level of support from those employees, if the union was negotiating for their benefit. The ability of the employer to exclude the union with the support of the majority of employees did not infringe the right of association under Article 11 of the Convention, as all the rights of that union, including the right to take industrial action were preserved. All that the union was denied was the right to bargain collectively with the employer on behalf of its members. The jurisprudence of the ECHR expressly provides that the union has a right to be heard under Article 11, but no right to bargain.

17. In the Court of Appeal all these arguments were again addressed. In relation to the question of whether an agreement is in force Buxton L.J concluded that as a matter of normal legal or contractual understanding an agreement is in force “when it can be shown to be binding on the parties to it.”( at paragraph 11) He rejected the argument that in the circumstances of the case there were conditions precedent to that, and in particular that for the agreement to be in force there had to be a real and genuine intention to negotiate, a real capability of exercising the entitlement to negotiate, and a real prospect of it being negotiated. All that the CAC had to look for was an earnest desire on the part of the parties to the agreement to work within it. As far as the human rights issues were concerned the judgment was brief. Adopting the clear phraseology of the ECJ in Wilson v United Kingdom ([2002] IRLR 568) it repeated that the right to be heard under Article 11 (freedom of association) does not embrace an obligation on an employer to recognise that union. On the article 14 point it expressed its judgment in one paragraph: the NUJ was being treated in the same way as the BAJ would have been treated if it had made an application for recognition and had been met by the employer concluding an agreement with the NUJ. If the NUJ case reveals a potential for abuse or evasion then the remedy lies with Parliament.

18. Where does the judgment leave the position? The CAC panel put it on record in its determination that the provisions of paragraph 35, designed to avoid inter-union disputes, had not achieved justice: specifically the employer had in its words been able to defeat the “wishes of a majority of the relevant workforce by the simple expedient of concluding a voluntary agreement with a wholly unrepresentative union.” The agreement must be shown to be binding on the parties, which does I would submit permit consideration of most of the issues identified by the NUJ in it arguments before the Court as conditions precedent: in other words can an agreement be binding if there is no evidence of any intention or expectation of bargaining?

(b) Determination of the Bargaining Unit

19. The union in its application to the CAC must define its proposed bargaining unit (the group of workers on whose behalf it wished to negotiate) with sufficient precision to enable both the employer and the CAC to identify it. Not only that but the proposed bargaining unit must not differ from the unit identified in the union’s prior request for recognition. More astute unions have opted for defining the unit in terms reflecting job titles and grades. The CAC is then required, if the parties cannot agree, to decide in accordance with paragraphs 11 or 12 whether the union’s proposed bargaining unit is appropriate or some other bargaining unit. What if the employer proposes a different bargaining unit to that of the union and argues that it is the more appropriate?

20. The CAC is required by paragraph 19(3) to have as its main consideration the need for the proposed unit to be compatible with effective management. In reaching that conclusion it must take into account the matters specified in paragraph 19(4) which include (at 19(4) (a))the views of the employer and the union. Is the CAC required in such an instance to choose between the two? The Court of Appeal gave a definitive answer to that question in the Kwik-Fit case, and in doing so upheld the practice of the CAC.(R v Central Arbitration Committee ex parte Kwik-Fit(GB) Ltd [2002] IRLR 395.) The CAC is first required to determine, applying the test of effective management compatibility, whether the union’s proposed bargaining unit is appropriate. If it is then the enquiry stops there. If not then the CAC must move on and usually will first look at the employer’s proposal. It must still ask itself whether that alternative unit is compatible with effective management. It is not unusual for the panel to opt finally for an amalgam of the two proposed bargaining units. As Buxton LJ in the Court of Appeal usefully put it, the alternative bargaining unit can enter the picture in two ways: as a means of testing whether the union’s bargaining unit is indeed appropriate, and as an alternative bargaining unit if the union’s is rejected. What is not an option is deciding that no bargaining unit passes the test. It is not a case of deciding on the “optimum or best possible outcome,”, nor is it a case of conducting a search for the “most appropriate unit from amongst those that are proposed to it.”

21. In its consultation document in 2003 the government concluded that the overarching criterion of effective management ensured that the process produced sensible bargaining units, and that the process of determination provided for a rigorous assessment of the proposed bargaining unit. Nevertheless it indicated that it proposed to amend the legislation, firstly to codify the effect of the Kwik-Fit formula, and secondly to make it clear that the employer’s comments and any counter proposal are to be taken into account at the assessment stage. Despite union opposition to the latter proposal, based on the argument that it went further than clarification, and employer suggestions that the overruled High Court approach in Kwik-Fit was correct in requiring the CAC to give equal weight to the conflicting proposals in respect of the bargaining unit, the government confirmed its original view in the Response published in December 2003. Paragraph 19 was amended by section 4 of the Employment Relations Act 2004, with effect from April 2005. Paragraph 19B(4) now expressly states that in taking an employer’s views into account, the CAC must take into account any view the employer has about any other bargaining unit that he considers would be appropriate. In my view based on my own and colleagues’ experience this amendment does no more than codify the present historical practice of the CAC.

(c) The ballot stage

22. Once the bargaining unit has been agreed or determined the CAC must then determine whether or not to hold a ballot, and if so what type of ballot: postal, workplace or a combination of the two. A union can request automatic recognition if it commands a majority of members in the bargaining unit. The CAC may decide nevertheless to hold a ballot, and must if the union does not have a majority of members, if it concludes that a ballot should be held. There are three grounds on which the CAC may determine that a ballot is required notwithstanding majority membership:

a. A ballot should be held in the interests of good industrial relations;

b. A significant number of the union members within the bargaining unit inform the CAC that they do not want the union to conduct collective bargaining;

c. Membership evidence casts doubt whether a significant number of union members within the bargaining unit want the union to conduct collective bargaining.

23. The second of these grounds has prompted one application for judicial review.( R ( on the application of Gatwick Express) v Central Arbitration Committee [2003] EWHC 2035 Admin ) The case raised two issues. Firstly what constitutes informing the CAC, when, as was the situation in the case, the letters from union members were provided by the employer? Secondly to what extent did the CAC have power to investigate the provenance of the letters, if for example they were all prepared on the same word processor, and apparently might have been instigated by the employer? The issue was not resolved because the parties settled the litigation, and in particular there was no finding that the letters were “instigated” by the employer. However this case and other similar instances prompted the government to amend the legislation in the Employment Relations Act 2004. It has to be stressed that neither the consultation document nor the response to that consultation mentioned a problem, either real or anticipated. Judge Wilkie in the judicial review application had already clarified that the section does not require the letters to be sent directly to the CAC as long as it receives them, so it is immaterial that the employer acts as the postal service. However the revised paragraph 22(4) inserted by section 6 of the 2004 Act, removes the potential ambiguity and at the same time makes it clear that the CAC has power to test the provenance and authenticity of the union members’opposition by now defining the jurisdiction of the CAC to be subject to it having evidence which it considers to be credible that a significant number of union members do not want the union to bargain on its behalf.

24. The broader question of whether the CAC has any supervisory role in respect of the conduct and outcome of the actual ballot itself was at the centre of a case in the summer of 2005, which went to the Court of Appeal.( R ( On the application of Ultraframe (UK) Ltd v CAC [2005] IRLR 641 CA ) It has always been accepted, and the Act itself provides, that the CAC’s powers do not cease on the appointment of the QIP ( qualified independent person) to conduct the ballot whether it is postal, workplace or a combination ballot. The CAC has power to resolve access issues during the ballot process. Section 26 imposed three duties on the employer in relation to the ballot and provided in section 27 a residual power for the CAC to declare the union recognised if the employer failed to cooperate or comply with directions of the CAC panel. However the issue in the judicial review proceedings was whether the CAC retained any residual powers in relation to the ballot once it had been held. Sections 26 and 27 presuppose that the ballot has not been held. Section 29 then provides that as soon as the CAC is notified (by the QIP) of the outcome of the ballot, it must not only notify the parties of the outcome of the ballot (paragraph 29(2)), but also issue a declaration of recognition if the union has secured the necessary majorities( paragraph 29(3)), or of non-recognition if it has failed (paragraph 29(4)). The only qualification on this is the timing question. The CAC must issue the necessary notification of the ballot outcome as soon as is reasonably practicable. In the case in question the panel had been notified after the ballot had closed, but before it notified the parties of the result that a number of persons entitled to vote had not received ballot papers. It held a hearing, concluded that this had happened, that if the persons in question had received ballot papers as entitled they would have voted in favour, and that the outcome would have been different. It therefore ordered a rerun of the ballot. The employer challenged this decision.

25. The application for judicial review was heard by Davis J, who concluded that the wording of paragraph 29 was unambiguous: once notified of the ballot result the CAC was obliged to notify the parties of the outcome, and then depending on the result declare that the union was either recognised or not. It had no power to supervise the conduct of the ballot once it had been held, and the duty under paragraph 29 was mandatory. He went further holding that the QIP is the person, not the CAC, to investigate and rectify alleged electoral irregularities. He also rejected the reasoning of the CAC that it derived this power to supervise the outcome as well as the process from the wording of paragraph 23(2) that envisaged that a valid ballot was only one in which every ( emphasis added) potential voter had been “asked whether they want the union to conduct collective bargaining on their behalf.” The CAC decided to appeal as the case raised issues in relation to the CAC’s overall powers that extended beyond the facts of this case.

26. In the appeal the CAC was fortunate that Buxton LJ, one of the judges in the Kwik-Fit case, who delivered the judgment of the Court in both instances, was one of the panel hearing the appeal. He was familiar with the legal and industrial relations background. He also coincidentally delivered the judgment of the court in the NUJ case. The Court of Appeal adopted a far more pragmatic approach than the Judge at first instance who had focused more on the wording of the statute. At paragraph 9 of the judgment Buxton LJ quoted the section in his judgment in Kwik-Fit where he emphasised that Parliament had intended that the CAC was the specialist decision making body in a specialist area that was not suitable for the intervention of the courts. Equally however much the courts might feel that the exercise of powers or functions by the CAC might encourage fair and efficient practices in the workplace, the CAC had to derive those powers from the legislation.

27. Buxton LJ examined the options open to the various bodies faced with an allegation of for example election fraud. Noting that any such investigation must entail an enquiry into factual disputes by either the QIP with limited or no resources, or by the Court which would be inappropriate he concluded that “policy and commonsense indicate(d) that Parliament must have intended that the CAC should have responsibility for all disputes in and around the ballot process.” At paragraph 19 he expressed this view strongly in these terms: “The proposition that at this stage of the process Parliament has deprived the CAC of any power to investigate, and if needs be to decline to act upon, a ballot that it thinks or knows to be unreliable … is surprising to the extent that I cannot think that Parliament can have intended it.” Where therefore was the power to be found? The answer was in the original reasoning of the panel, described by Davis J, adopting the phraseology of Harvey in Issue 171, as “ingenious interpretation.” In other words the panel is entitled, applying paragraphs 23(2) and 29 to investigate and decide whether the ballot has in fact been properly conducted, including deciding whether all (and not some) of the workers in the bargaining unit have been afforded the opportunity to vote. If it concludes that the ballot was not a paragraph 29 compliant ballot it can order a rerun.

Conclusions and postscript

28. A record of only eight applications for judicial review in five years, with the approach of the CAC only being overruled in two cases, one of which was the Gatwick Express case, and then only after the parties had themselves agreed to the outcome, demonstrates many obvious points. Firstly the legislation was very carefully drafted in the first place. Secondly the CAC has largely secured the confidence of both trade unions and employers in the decision making process. Thirdly there has been a recognition on the part of the Court of Appeal as articulated in both the Kwik-Fit and Ultraframe judgments that the CAC was intended by Parliament to be the decision making body in what is acknowledged to be a specialist area, that is not suitable for intervention by the courts.

29. The legislation has been amended by the Employment Relations Act 2004. Most of the amendments are fairly minor. The phrasing has been tidied up; some of the procedures adopted by the CAC have been codified; the test of what is the appropriate bargaining unit and how the CAC should answer that question is now expressly set out to reflect both the judgment in Kwik-Fit and CAC practice. The only major innovation in the legislative framework is the introduction of the concept of the “unfair practice”in relation to recognition and derecognition ballots enacted by section 10 of the 2004 Act but not implemented until October 2005 once the new Code of Practice on Access and Unfair Practices during Ballots for Trade Union Recognition had secured parliamentary approval. The new paragraph 27A (2) lists seven examples of unfair practices used with a view to influencing the result of a ballot. All of these are specifically fact sensitive rather than matters which permit a range of views and opinions. For example the panel might have to determine as a question of fact whether an employer has or has not used or attempted to use undue influence, or taken or threatened to take disciplinary action. Hearings are likely to follow a different pattern. This has already been highlighted in the CAC’s revised Guide to parties, at paragraph 3.13 where it states: “In particular cases the CAC panel may determine that stricter standards of evidence are required, or that more formality in proceedings is appropriate.” The section has been left deliberately loose to deter parties from assuming that all such hearings to determine these issues will be conducted as if they were court proceedings. That is not to say that in an appropriate case such a procedure might not be followed. The government resisted any proposal that here should be a right of appeal from decisions of the CAC. It remains to be seen whether the pattern of non-intervention by the courts will continue once the new powers are engaged from October 2005.

30. I now turn to the McCarthy pamphlet in 1999 and link it with the subsequent Institute of Employment Rights pamphlet in October 2003. I have concentrated on those areas identified by McCarthy as having the potential to take Recognition Model 3 off the rails. In his recommendations at pages 59 to 68 McCarthy identified six key areas where the recognition process would stand or fall:

  • A sufficient supply of references. His recommendation was that the CAC should in effect determine what it could handle within the parameters of its budget and than in effect allocate trade unions with a quota. Previous recognition models suffered from overload of ACAS/CAC with unsustainable references. It seems that the admissibility criteria have ensured both an adequate supply and only a limited supply of unsustainable references.
  • Avoiding competing applications. Paragraph 35 and the TUC’s disputes resolution procedures have achieved that and in particular have avoided the CAC becoming involved in inter union disputes. McCarthy did however anticipate the NUJ problem as he did recommend that the existence of formal recognition without membership ought not to prevent recognition where another independent trade union was able to pass the appropriate statutory tests.
  • Securing employer co-operation. McCarthy’s concerns were addressed by the legislation, the Code of Practice and ultimately by the CAC with judicial approval. Nevertheless the 2004 amendments reinforce the CAC armoury in an appropriate case. The additional potential abuses identified in the Ewing et al research will be addressed in part by the new unfair practices.
  • Developing acceptable recognition criteria. Curiously McCarthy argued that the time limits envisaged in the legislation ought to be seen as indicative not mandatory. Speed and delay can produce equally disadvantageous consequences. I consider, despite the TUC position to the contrary that the CAC has managed to strike a balance between the competing demands of the parties.
  • Enforcement. McCarthy argued that statutory recognition procedures required effective sanctions. He did not express much enthusiasm for the remedy of specific performance. Again here there is no evidence from which to draw effective conclusions. Either employers are at the end of the process negotiating with unions, or if they are not no union has yet gone to the court seeking a remedy of specific performance. At the stage before that of negotiating a method of collective bargaining it has only been necessary for the CAC to intervene and impose a method in a handful of cases. If it isn’t working nobody has asked the CAC or the government to fix it.

31. Ewing, Moore and Wood, in their 2003 paper surveyed the experience of unions of the statutory recognition process in the period under review and made three recommendations for amendment of the legislation, of which the second was adopted despite initial lukewarm enthusiasm from the DTI. In particular the proposals which became designated as unfair practices in the Act featured neither in the DTI Review of the 1999 Act, nor in the draft Bill laid before Parliament. They made three specific recommendations:

  • An application should only be blocked by the existence of a collective agreement between an employer and an independent trade union. Even if enacted this would not have assisted the NUJ as the BAJ is an independent trade union, although not affiliated to the TUC.
  • Provision should be made to make it unlawful for an employer to commit an unfair practice, with trade unions having the right to complain to the CAC. The concept was adopted by the government, and is now contained in the amendments to the 1999 Schedule introduced by the 2004 Act and which came into force in October 2004 at the same time as the revised Code on access and ballots was adopted.
  • Finally and most controversially in the context of the failure of the model of recognition contained in model 2, the CAC should be invested with a duty to promote the objective of the legislation, to facilitate representation by a recognised trade union. Ironically the authors though that the second objective would be the most elusive. Despite that the government did introduce the concept of the unfair practice at committee stage in the House of Commons. What was most surprising to this particular survivor of the Industrial Relations Act 1971 was that nobody recalled that that legislation introduced briefly the concept of the unfair industrial practice. We clearly have short memories.

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