Union recognition - what choices do I have? Part one

23 September 2014


At a time of increased economic activity employers are seeing their workforces subject to more active and effective programmes of recruitment by the trade unions. This two-part alert looks at your choices in terms of recognition - from how to avoid it in the long term to how you react if the union comes calling.

Am I bound to recognise a union?

The answer to this is "No", or at least "Not unless the union has the numbers to make you do it" and there is more below on how that works.

So, as an employer, how can you avoid the issue even arising without getting bogged down in time consuming legal arguments?

The answer, in many ways, is in how you treat your staff. The focus of unions is terms and conditions, job security, pensions, working conditions and safety. If your staff feel that you have these issue in hand, that they are fairly treated and safe then what can the unions latch on to as their recruitment tool?

In the private sector, union membership has never been at lower levels. Several generations, and indeed entire sectors of the new economy, have grown up with no experience or involvement in collective organisation.

In a broader sense making sure your staff have a voice - through a staff forum or council - can provide the outlet for their views that the union might otherwise provide. If you have a way of finding out what they are worried about then you can deal with it. A problem which the union might use to recruit will be sorted before it has time to fester.

So, prevention is better than cure even though you have to plan ahead.

The union is demanding recognition, what can I do?

There are several stages to this. First, what is the issue that has brought this about? Second, look at your options, decide what you want to achieve and then plan how to get there. You have choices to make, let's work though them.

Although difficult to get past the campaigning approach of the union, try to get to what the issue is and what you might do about it. Something will have led to the union pushing the point - and generally they will have done their groundwork in terms of having some superficial level of support.

Rather than engaging with them, on their issue, what about engaging direct with the workforce? Take that approach, and you may find that the union finds its support evaporating and you have a workforce that sees you are willing to engage directly. Many employees may prefer to deal direct and avoid the constraints and costs of union membership. If keeping the union out is your key - then listen to what your workforce are really saying.

It is impossible to underestimate the "hearts and minds" aspect of this issue. A non-unionised workforce is not going to change its stance overnight - issues will have built up over time which have allowed the union to gain some foothold. How are we going to avoid that happening again in the future? Changing the style of management may be the price you have to pay.

So what are the options and where do they lead?

"Ignore them and hope they go away" - there is nothing that obliges you to engage with the union at all; they have no right to force you to meet them or discuss the matter. So, you can just hope they give up - but that still leaves you with some workforce issues somewhere along the line. The risk is that they do not go away and then make an application to the Central Arbitration Committee (CAC) - a statutory body which deals with applications for mandatory recognition (more on what they do below).

"Just say no" - slightly more positive than ignoring them but not much. It is tempting - why should we engage in their process when we do not want to do it? The union's only option is to make the application to the CAC - have they got the support? Have they researched their position? Do they know your business well enough to plan around your defensive strategy? Do you really understand how this will pan out - are you creating a longer term problem by taking a hard line?

"Meet and see what they are looking for" - where is the harm in presenting a willingness to listen? You may find out what the staff issue really is; you may find out whether they want full recognition or just representation rights; it might allow for some degree of agreement which is better than being forced down the mandatory route; you may get an idea of how far along the process they are or whether their level of support means it is difficult to resist - or, that they have a flawed understanding of your business and its operation which would allow you to defeat the formal application if it was made. So, let's do some reconnaissance.

"Accept they have the support but negotiate for a better position" - the union may have done their own pre-planning. They know your business, they understand the workforce issues and how bargaining takes place and they have one way or another acquired a high level of membership. You are faced with being forced to recognise - but can you look for an agreement which suits your better than the mandatory scheme?

"Find another union - some are friendlier than others" - If you have an agreement in place with a union then a second union cannot force you down the mandatory recognition path. This tactic has been used widely over the years with employers using "friendly" in house unions but giving them limited powers. That has been undermined by some recent cases but, even if you have to negotiate with your own union on pay, hours and holiday it might be better than the people banging on the door.

"Agree to their terms and move on" - this is uncommon but you may find that you have no defensible position. There is high union membership and support in your business; you could not win the argument even if you tried so what is the point given the damage it will do to employee relations in the longer term. Not attractive, but you live to fight another day.

"I want to test their position and see where we go from there" - In initiating the process the union has to identify who it represents - in terms of grades, functions and locations - and identify a "bargaining unit". Pushing back on these issues is what you need to do. Challenge the proposed bargaining unit (as not reflecting how you manage the business or organise the workforce) or challenge the validity of the membership figures or get confirmation from the workforce that they are not interested. The technical approach, on the bargaining unit, is going to be less of an issue than getting the staff to back you.

The bargaining unit issue seems key - what do we need to do now and in the future?

The union has to identify the proposed bargaining unit in terms which make it clear and recognisable to you what is meant. It can be based on location, it can be based on grade or function, and it can be for some of the workers/employees but not necessarily all of them.

If an application progresses then this can become the focus for the entire process and entails a lot of detailed work and evidence on both sides.

Whenever this issue arises the question will be whether what is proposed gets you or the union where you want to be. The union should always propose a unit in which it has support. If the proposed unit does not reflect how you are organised - and that can be taken quite widely - then that is your line of attack because the CAC will be receptive to arguments that your normal management structures and operations would be distorted if this was accepted.

If that is the case, or there is an alternative configuration which you can defend and in which you know you can defeat the membership and support tests, you might want to look at a change in approach where you offer them that, knowing that parts of the CAC test can be defeated.

The CAC can and does run confidential union membership tests - the parties themselves may be disinclined to produce all the data. The union provides a list of its members in the unit, and the employer provides a list of staff. The CAC matches them up and neither side receives anything more than the decision on whether the test is met. If there is doubt as to the validity of any of the information then the CAC can order a validity check.

One point to remember - the union may have been recruiting to meet the test. An employer can push for a check on whether the new members meet the union's own membership requirements - as to time since joining, whether they have full membership or have been offered it at a "new joiner" rate.

More difficult is evidencing that the majority are likely to favour recognition. This is not that they do, or that they would vote in favour if asked, but that they "are likely to favour it". The union might produce a petition - but an employer can do exactly the same if it wants to disprove the point. This is a combination of understanding what is driving the recognition process and being willing to act quickly to address the issue. If you want to turn the tide you are going to have to get out there on the ground - evidence can be gathered right up to the day of the CAC hearing.

Practically, getting employees to go public with a change of heart can prove very difficult.

Some employers, even when they have felt able to defeat one or more of these elements at an early stage, have allowed the process to run because they think they can defeat it but less contentiously later down the line. That may have worked for them, but it is a high risk strategy - rather like not stopping a car rolling down a hill because there is another off ramp later.

None of that has worked and now I have a letter from CAC - what should I be doing?

To get to this point the union will have satisfied CAC that it has made a formal request in the right way and that they can evidence 10% membership in the proposed bargaining unit.

As you do not recognise the union at this stage you may not know who the members are or how many they have so it is hard to challenge that position at the moment. Finally they will have evidenced that the majority of employees in the proposed bargaining unit would be likely to favour recognition.

You might have acquired more of this information if you had engaged with them earlier even if that failed to achieve an agreement.

What can you do at this point?

What happens in the post acceptance phase of the CAC application will be the subject of part two...


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