The single most important strategic decisions that managers may have to take in the employee relations sphere concern trade union recognition:
- Whether or not to recognise a trade union, and if so about what form the recognition should take.
- Whether or not to resist a trade union campaign for recognition.
- Whether or not to derecognise a union with an established presence in the workplace.
As we explained above, over time trade union membership in the UK as a whole has declined in recent decades, as has the extent of trade union recognition. But unions still retain a presence of some kind in 36 per cent of workplaces employing over ten people, and in 18 per cent they have the majority of employees in membership. Unions are formally recognised in 30 per cent of workplaces overall, but in as many as 67 per cent of those employing over 500 people (Kersley et al. 2006, pp. 111 and 119). Moreover, since 1999 there has been an increase in the number of recognition agreements that have been established, caused mainly by the introduction of laws which can force employers to recognise in certain circumstances. The issue of trade union recognition thus remains a live one for substantial numbers of UK employers.
1. Defining recognition
Section 178 of the Trade Union and Labour Relations (Consolidation) Act 1992 contains the established legal definition of recognition as being a situation in which, either via a formal written agreement or through custom and practice, employers engage in collective bargaining with union representatives about some or all of the following matters:
- Terms and conditions of employment, or the physical conditions in which any workers are required to work.
- Engagement or non-engagement, or termination or suspension of employment or the duties of employment of one or more workers.
- Allocation of work or the duties of employment as between workers or groups of workers.
- Matters of discipline.
- The membership or non-membership of a trade union on the part of a worker.
- Facilities for officials of trade unions.
The decision to recognise or to withdraw recognition from a trade union has implications far beyond the terms of the agreement itself. Once recognised, the union gains a raft of defined legal rights to exercise on behalf of its members. First, there is the right to be consulted before redundancies are made or before a business is transferred to new owners. Recognised unions also have consultation rights in the fields of health and safety and occupational pensions, and are empowered to conclude workplace agreements with employers concerning the working time and parental leave regulations. Second, officials of recognised unions and union-appointed learning representatives have a right to reasonable paid time off work in order to carry out their duties and for training purposes. Union health and safety representatives enjoy these rights as well as others giving them access to office facilities. Third, recognised unions have the right to receive information from managers to enable them to engage in meaningful collective bargaining. Finally, the Transfer of Undertakings Regulations 2006 require that union recognition continues and collective agreements remain in force after the transfer of an undertaking to new ownership, provided that the transferred undertaking retains ‘an identity distinct from the remainder of the transferee’s undertaking’.
A range of other rights such as protection from discrimination on trade union grounds, the right to accompany an employee at a serious disciplinary or grievance hearing, and the right to organise lawful industrial action apply to unions and their members irrespective of whether or not they are formally recognised. However, these rights are conditional on the union concerned being accepted as an independent body by the Certification Officer who has the responsibility of maintaining the official list of trade unions.
2. The cases for and against union recognition
When a trade union has recruited a number of members in an organisation, it will seek recognition from the employer in order to represent those members. If the employees want that type of representation, they will not readily cooperate with the employer who refuses. In extreme cases this can generate sufficient antagonism to cause industrial action in support of recognition. In such situations the employer may be forced to grant partial recognition or even concede the demand for full negotiating rights over a whole range of issues. Alternatively refusal may lead to a situation in which the employer is forced to recognise the union under the terms of the Employment Relations Act 1999 (see below).
However, there are also positive reasons for considering recognising trade unions, relating to the benefits that can flow as a result: there are employee representatives with whom to discuss, consult and negotiate so that communication and working relationships can be improved:
There are a number of reasons why employers should choose to work with, rather than against, unions at the workplace. Firstly, management may regard trade union representatives as an essential part of the communication process in larger workplaces. Rather than being forced to establish a system for dealing with all employees, or setting up a non-union representative forum, trade unions are seen as a channel which allows for the effective resolution of issues concerned with pay bargaining or grievance handling. It is also the case that reaching agreement with union representatives, in contrast to imposing decisions, can provide decisions with a legitimacy which otherwise would be lacking. It can also lead to better decisions as well. (Marchington and Wilkinson 2002, p. 425)
There are also various arguments that can be put for resisting the recognition of a trade union. Employers are often apprehensive about the degree of rigidity in employment practice that union aims for security of employment appear to imply, and they therefore consider to what extent collective consent can be achieved by other means, provided that the management work hard at both securing and maintaining that consent. Managers also tend to perceive unions as being resistant to necessary change, the result of recognition being a reduction in their ability to respond quickly and flexibly to market pressures and opportunities.
3. Forms of trade union recognition
Union recognition comes in various shapes and forms. It may be ‘partial’, in which case the range of topics subject to negotiation is limited, or it may be ‘full’, covering pay, conditions and all employer policies relating to the employment relationship. The irreducible minimum is assistance by a union representative for members with grievances, but the extent to which matters beyond that are recognised as being a subject of bargaining depends on the type of management regime that is in place. It also depends on the possible existence of other agreements that could take some matters out of the scope of local recognition. A feature of some collective agreements is an acceptance that certain matters are potentially subject to negotiation with the recognised union (e.g. pay and redundancy), while in other areas the union has the right only to be consulted or informed.
The second fundamental decision to be taken in respect of recognition concerns the number of unions to be recognised and the type of bargaining to be adopted. There are three basic alternatives:
- Multi-union bargaining involves the recognition of several different unions, each of which negotiates separately on behalf of different groups of workers. Sometimes this leads to a situation in which the separate groups are employed on different sets of terms and conditions. Such an approach has traditionally been common in large public sector organisations such as the National Health Service, although union mergers in recent years have tended to reduce the overall number that are recognised. As a rule different unions will represent different ‘bargaining groups’ such as unskilled manual workers, skilled manual grades and white-collar workers.
- Single -table bargaining is a situation in which a number of unions are recognised, but where only one set of negotiations takes place over terms and conditions at a time. The full range of issues is thus determined for all groups of staff around a single table. It is usual for such arrangements to be associated with ‘single-status’ practices or harmonised terms and conditions, so that all workers enjoy the same basic entitlements as regards matters such as holiday, pensions, hours and sick pay.
- Single -union bargaining is principally associated with situations in which only one union seeks recognition. However, it can also occur where an employer rejects multiunion bargaining and agrees instead only to recognise one union. These are popularly known as ‘sweetheart’ or ‘new style’ agreements and have been the subject of some controversy. They are typically found on greenfield sites and in businesses of technological sophistication, their essential novelty being the closeness and extent of the working relationship between management and union. Union officials find that they have less freedom of action on some matters than their members expect, but also find they are involved in the full range of human resource management questions, not simply the familiar terrain of collective bargaining. The agreements are also frequently accompanied by ‘no strike’ clauses, which supposedly remove the need for industrial action by providing for independent arbitration in situations where management and union fail to reach agreement. Single-status arrangements also often feature in singleunion deals.
From a management perspective it is preferable, if possible, to conclude a partnership agreement with the union or unions which have been recognised. Such approaches have been actively encouraged by the government in recent years because they are believed to constitute good practice and to increase prospects for national economic growth. Partnership deals represent an attempt to move away from the traditional, adversarial, low-trust form of union-management relationship towards one which is characterised by high trust and a willingness to engage in joint problem solving. Communication and consultation are watchwords, so that employees and their representatives are kept fully aware of the factors affecting management decision making and are themselves involved as far as is possible.
The third major way in which collective bargaining arrangements differ is in their level. Three approaches are commonly identified:
- multi-employer bargaining
- single-employer bargaining
- workplace bargaining
All can operate within the same organisation at the same time with different matters being determined at different levels. However, in most organisations which recognise trade unions the most important decisions are taken in one forum.
Multi-employer bargaining involves negotiations over basic pay and conditions of employment taking place at industry or national level through the auspices of employers associations. The result is the presence of industry norms, the same rates of pay and agreements on hours being honoured by all employers in a particular industry. Once common in the UK, this approach is now largely restricted to the public sector, but it remains common in many European countries. Most bargaining in the UK therefore takes place within organisations either at employer level, or in multi-site operations at the level of the workplace. The former is better where core terms and conditions are standardised across the organisation. It is also the more efficient approach as it ties up less managerial time than is the case where each workplace carries out its own negotiations.
Derecognition of trade unions is often seen in published literature as being redolent of fundamentally undesirable ‘macho’ approaches to employee relations. Outright derecognition against the stated wishes of the workforce is rare in the UK, but by no means unknown (Millward et al. 2000, pp. 103-4, Kersley et al. 2006, p. 121). The majority of episodes relate to specific grades of employees rather than the entire workforce, while in other cases partial derecognition has occurred where the scope of matters covered by collective bargaining is narrowed. Such situations often accompany moves by employers to establish personal employment contracts and/or to move towards pay rises based on individual performance or contribution. The result is the retention of collective bargaining machinery, but a tendency for it to be used more and more rarely in important decision making. In recent years some employers have threatened to derecognise their unions if they refuse to adjust established adversarial approaches and enter into partnership agreements. A well-documented example is the negotiation that occurred between USDAW (the shopworkers’ union) and Tesco in 1999 leading to the signing of one of the largest and most controversial new-style union deals (Blyton and Turnball 2004, p. 252).
It could be argued that partial derecognition of this kind ultimately leads to full derecognition as fewer staff see any particular advantage in joining the union. Over time the union becomes so numerically weak that there is no longer a persuasive case for its continued recognition – even over the limited range of issues for which it retains bargaining rights. In such circumstances there is a good case for accepting that the union is no longer performing a useful representative function and that employees’ interests might thus be better served with the introduction of other forms of collective or individual involvement.
5. Trade union recognition law
Since 2000 there has been in place a formal legal route which unions can use as a means of forcing employers to recognise them and to bargain with them in good faith about the pay and conditions of the workers they represent. The new law was introduced as part of the Employment Relations Act 1999 and is highly complex. A central role is played by the Central Arbitration Committee (CAC), a statutory body which is independent of government, to which union recognition claims are sent. The CAC is required to consider the claim and to seek voluntary agreement between the parties. Where this cannot be established it can require management either to recognise the union or to organise a ballot of the workforce concerned. The law applies in all organisations employing more than 20 people where there is no existing collective bargaining arrangement in place.
Where it can be shown that over 50 per cent of the workers in the defined bargaining group are members of the union/unions bringing the claim, the CAC will order recognition unless there is evidence to suggest that sufficient members may not want their union to be recognised or where the panel is persuaded that it would not be in the interests of good industrial relations to require recognition without first organising a ballot. Where the union concerned shows that over 10 per cent of the bargaining group are members and produces evidence to suggest that a ballot for recognition stands a good chance of succeeding the CAC will order that a ballot should take place. In most cases the evidence required will be in the form of a petition of workers in the defined bargaining group.
The direct impact of the recognition law has been relatively slight. Only 450 claims had been made to the CAC by the end of 2005, and in the vast majority of cases these were withdrawn without the need for a formal recognition order to be made. But the introduction of the procedure has led many more employers to enter into voluntary negotiations and to establish recognition agreements on their own terms before the unions that represent their staff need to force the issue by making a claim to the CAC. It is impossible to know exactly how many new agreements have originated as a result of the new law, but 2,000 or so were recorded in the first five years following its introduction.
Source: Torrington Derek, Hall Laura, Taylor Stephen (2008), Human Resource Management, Ft Pr; 7th edition.