Do We Have To Recognise A Trade Union?

  • Employment Law
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Peninsula Group, HR and Health & Safety Experts

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Trade unions exist for many reasons. They support the interest of employees, whilst helping to maintain relations with businesses.

But the union needs to be 'recognised' by the employer first. As an employer, you need to follow the right steps when it comes to trade union recognition.

If you don't, you could end up facing industrial action, unlimited compensation, and business damages.

In this guide, we'll look at what trade union recognition is, what the law covers, and how to support it within your business.

What is trade union recognition?

Trade union recognition is when an employer agrees to 'recognise a union'.

Recognition can include a number of things, but it's mostly about establishing a solid and direct relationship with you, your workers, and the trade union itself.

An employer might respect that some workers have memberships to certain industrial groups. Or, they might attend meetings to negotiate collective bargaining.

Once a trade union gains recognition, it's best to be open to discussion and proper implementation.

What are the benefits of trade union recognition?

There are several benefits when dealing with recognised trade unions. And they don’t just apply to workers. Union reps work in favour of ‘keeping the peace’ between all parties.

Let’s look at the benefits of trade union recognition:

Allows the right to be accompanied

All employees have a statutory right to have trade union representatives with them during certain meetings. This is regardless of whether they're members of recognised trade unions or not.

They also have a right to be consulted by their representatives on things like:

Provides a voice for workers

You often hear about workers needing someone to represent them. That's exactly what a trade union does.

They stand as the voice of workers, against the employer or the government. They'll present issues or situations that the majority of members face during work. When they're recognised by a business, they're trusted to act on behalf of the union membership.

Helps manage business conflicts

Sometimes, a business gets directly affected when its interests clash with its workers.

Common situations like this come from staff restructures, reward management, and working conditions.

Trade union recognition helps you manage issues that benefit all parties. They can protect workers' rights whilst helping to minimise business disruptions.

What are the downsides of trade union recognition?

As well as the benefits, you may face negative issues with recognised trade unions. If you’re not careful, employers could end up dealing with a multitude of work-related complaints.

Let’s look at the downsides to trade union recognition:

For example:

Certain legal limits

When a trade union is recognised, they have a legal right to certain things. For example, they must be given information to engage fairly during collective bargaining.

But this legal recognition right does come with certain barriers. Employers must adhere to the requirements, as well as follow good business practice.

Involve the Central Arbitration Committee (CAC)

Sometimes, you might not be able to reach agreements with trade unions.

Employers should follow the right guidelines on facing unions during collective bargaining. If you can't reach an agreement, unions may involve the Central Arbitration Committee (CAC) for a disclosure order.

Strict rules on consulting representatives

When trade unions are recognised, the employer must consult with their representatives before making any decisions involving their members.

This happens during such action like:

  • Collective redundancies.
  • Transfer of business ownership (TUPE).
  • Changes to pension schemes.
  • Health & Safety

What is the law on trade union recognition?

In the past, trade union recognition came under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

Along with TULRCA, employers need to comply with the Employment Relations Act 2004 and the Trade Union Act 2016.

Employment law outlines a need for equality and justice for both workers and their employer. For example, new union members no longer need to pay a financial contribution to the group. This used to be an automatic requirement; but now they can 'opt-in' if they choose.

The law presents amendments on 'check-off'. This was an automatic payment taken from any worker with trade union membership. The pay was used for administration fees; but this general rule no longer exists.

Employment law also highlights the new guidelines on 'facility time'. Trade union representatives are legally entitled to paid time off to fulfil their duties.

‘Learning’ representatives are also entitled to paid time off for things like:

  • Analyse learning or training needs of trade union members.
  • Give out information by attending workplace meetings.
  • Discuss trade union duties and activities with their employer.

What is statutory recognition?

Statutory recognition is when the employer follows a legal process that recognises a trade union. As the name mentioned, the statutory trade union recognition stands in relation to a legal court.

If an employer neglects these unions, they may refer this to the CAC. The CAC will try to reach a mutual agreement between both parties, rather than enforce decisions. There are three factors needed to reach statutory trade union recognition.

Firstly, the trade union has to provide the right evidence to the court. For example, they need to prove that:

  • 10% of the employees in the proposed bargaining unit are official members.
  • Majority of members are in favour of becoming a recognised trade union.
  • There isn't another trade union recognised by the CAC.

Secondly, the CAC must decide if the bargaining unit is an appropriate one. They'll need to stand as an independent group. They must show effective management and functionality to count as a bargaining unit.

Thirdly, once the CAC accepts the bargaining unit, the union will be granted statutory recognition.

After these three steps, the employer and trade union can draft a collective agreement. But if they don't reach an agreement, the CAC can impose a default method. This default bargaining unit should cover basic work hours, holidays, and pay (except pension).

Statutory recognition usually lasts for at least three years. After this, the employer or employees can apply to the CAC to cease statutory trade union recognition.

Can a trade union automatically become recognised?

Yes, a trade union can still automatically become recognised as the statutory process still stands.

Otherwise, trade union recognition will automatically pass if a 50% majority occurs. Only then will the CAC pass recognition without further enquiries.

If not, the CAC will hold a secret ballot through an independent third party. They'll only grant recognition if 40% of its members are in favour of recognition.

How to support trade union recognition in the workplace

As an employer, it's so important to take the right steps when it comes to a trade union and their reps. If you unfairly refuse to recognise them, it could lead to a world of problems for your business.

Let's look at ways to support trade union recognition in the workplace:

Understand the role of trade union representatives

Employers should treat trade union reps just like they would business clients.

This will help promote trust and solid communication between the parties. Every employer should aim to respect them as the voice of employees.

When dealing with trade unions, there are two points of contact:

  • Local representatives: These internal employees are usually elected on behalf of the union members. They carry out trade union duties in addition to their regular job.
  • Full-time officers: These are employees of the trade union. They cover several duties, and work across several business sectors.

Employment disputes tend to always leave a stain on worker relations. That's why it's important to make professional decisions. Your workers will gain mutual trust and confidence when faced with any type of work-related issues.

Develop a recognition agreement

Once an employer agrees to recognise a union, they should draft an agreement.

This recognition agreement acts like a contract between the employer and trade union. It allows unions to negotiate issues on behalf of their members. For example, they might cover issues on equal pay or working conditions.

The agreement also needs to recognise things like:

  • Freedom to consult.
  • Negotiate and hold meetings.
  • Maintain facilities offered.
  • Time off to undergo union activities.
  • Arrange joint negotiations and consultation committees.

Offer relevant consultation meetings

Under employment law, employers have a legal duty to inform workers about certain business issues.

The best way to do this is through offering relevant consultation meetings. Workers will be able to express any concerns they have in relation to work issues. Their employer will then offer constructive feedback on how they propose to resolve them.

During these consultation meetings, make sure you:

  • Have a clear understanding of what their issues are.
  • Be honest about why they occurred (as they could happen for reasons beyond your control). 
  • Explain what you can and cannot discuss at the present time. 
  • Present a proposed resolution method (where workers will be kept informed).

Highlight support from managers and senior employees

When workers face employment issues, they often raise them to their manager. That's why it's important to highlight support to managers and senior employees.

Just like representatives, they will also have a unique and direct link with workers. So, try to ensure they're equipped with the right tools to deal with work-related issues. For example:

  • Grievance procedures: Present your grievance procedures and highlight your resolution method. Make sure managers show workers the benefits of internal resolution, as it protects work morale, engagement, and relations.
  • Trade union roles: Workers might think that trade unions are completely on their side. This is primarily true, but it’s not always the case. Some may concentrate on cooperation. Their aim is to maintain solid relations between workers and employers. 
  • Training: Most managers will have training on things like resolving work-related issues. They may have even received training on how to improve relations with trade union representatives.

Keep a handle on negotiations

When it comes to work issues and trade union involvement, the most common method used is negotiation.

This method offers open and honest communication between workers and their employer. There are six steps to consider for effective negotiation:

  • Be transparent: You need to clearly present what you want to achieve through negotiation.
  • Be flexible: Make sure you consider the points raised by workers and their reps. It's always better to look for mutual grounds that benefit everyone connected to your business.
  • Try to compromise: Negotiation is all about recognising different points of views, and reaching a resolution that suits everyone. Compromising is far better than forcing methods onto unhappy staff.
  • Listen well: Don't underestimate how important it is to really listen to work-related issues being raised. Often, it'll help you resolve a matter you weren't even aware of before.
  • Protect relations: Make sure you protect your work relations with all parties involved, including representatives.
  •  Plan ahead: It's best to plan ahead in case negotiations don't go your way. Of course, you want to reach an outcome that suits everyone. But you don't want to sacrifice your business along the way.

Can employers use collective bargaining with a trade union?

Yes, once an employer agrees to recognise a trade union, they can use collective bargaining.

This is when both parties will start negotiations on how issues should be resolved. Throughout this time, the employer cannot enforce inducements; or threaten the workers with disciplinaries or dismissal.

Nevertheless, many employers will find it hard to accept collective bargaining purposes. But trade union representatives will aim to reach outcomes on behalf of workers and their employer.

From here, an employer can request for recognised unions to cease once after negotiation. And unions can also voluntarily derecognise themselves.

The CAC will then declare trade union derecognised. From this, they also bring all collective bargaining purposes to an end.

Can employers use collective agreements?

Yes, when an employer is negotiating with representatives, they will use a collective agreement.

This agreement outlines the collective bargaining terms set by you and the representatives. Collective agreements can only stand through a legally enforceable contract. The industrial court binds these 'in honour only' - meaning, they’re only legally enforceable by them.

If an employer breaches these agreements, unions may decide to take industrial action. When this happens, workers often end up breaching their own employment contract. But that doesn't mean employers should have 'no strike' clauses within employment contracts.

Can trade unions take industrial action?

Yes, trade unions may decide to take industrial action if they can't reach an agreement with the employer.

Industrial action usually takes two forms:

  • Strike: This is when workers stop doing their jobs on a specific day or time. For example, taking a 24-hours strike on Christmas Day.
  • Action short of strike: This is also known as 'working to rule'. Workers will take up all sorts of strike-related methods, like picketing, not working overtime, or refusing to perform certain work duties.

Some workers might decide to take low-level or 'unprotected' industrial action. This is often not sanctioned by the trade union and can be unlawful.

Remember, they can claim unfair dismissal if they were dismissed for taking industrial action for their legal rights. For example, health and safety, flexible working, or family commitment matters.

To claim unfair dismissal, workers must be dismissed within the first 12 weeks from when the industrial action occurred.

Industrial action should only be taken as a last resort. Make sure your workers know that you are open to resolving issues through negotiation and collective bargaining. Representatives should do their best to maintain a relationship between workers and employers.

Get expert advice on trade union recognition with Peninsula

As an employer, it's best to keep open minds and recognise trade unions where necessary. It'll help keep positive work relations with your employees, whilst keeping your business reputation out of the industrial court.

But if you don't respect the procedures, you could end up facing industrial action, unlimited compensation, and business damages.

Peninsula offers expert advice on trade union recognition. Our HR team offers 24/7 HR advice and support which is available 365 days a year.

Want to find out more? Seek advice from one of our HR consultants. For further support, call our telephone number 0800 051 3682.

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