Bargaining in Good Faith? Professor Frank Burchill frank.burchill@yahoo.co.uk

Historical Background Voluntarism 1906 Trade Disputes Act - Golden Formula Tort immunity for a Trade Union acting in contemplation or furtherance of a trade dispute: inducement to breach of contract intimidation conspiracy

Recognition important issue to employers Historical Context 1960s/1970s Highly decentralised bargaining Multi-unionism Demarcation disputes Leapfrogging pay claims Walk – outs Recognition important issue to employers

1980s/90s secret ballots for, and notice of, industrial action Trade union / collective bargaining decline Growth of single table bargaining Union mergers Modifications to law on collective bargaining: secret ballots for, and notice of, industrial action outlawing of secondary industrial action workers can only picket their own place of work outlawing of closed shop and union only subcontracting Sequestration

Individual employment rights outlawed: sex, orientation, religion/belief, race, disability, union, age discrimination. all rights applicable to part-time, agency and temporary staff redundancy pay sick pay maternity/paternity pay equal pay/equal value minimum wage paid holiday leave working hours unfair dismissal flexible working privacy

Immediate context Trade Union membership 6.9 million density 27.2% CB Coverage 42% (11 million) Statutory Coverage 34,370 Declarations of recognition 213 Average size bargaining unit 130 186 with ballot 25,279 Voluntary agreements to 2007: 2,000 Coverage 80,000

Central Arbitration Committee Permanent, Independent, Statutory Body Chairman; 11 Deputies; 29 employers; 27 workers Remit Disclosure of information for collective bargaining (CB) purposes 1975 Recognition of Independent Trade Unions for CB on pay, hours, holidays 1999 Transnational Information and Consultation of Employees Regulations 1999 National Information and Consultation of Employees Regulations 2004 High Court Status \No right of appeal\ Judicial Review\ No case law\No precedent\ Unanimous decisions

Recognition: Key Decision Points Whether to accept the application What the bargaining unit (BU) should be If agreed unit differs from original application is application still valid Is a ballot needed and how should it be conducted What should be the method of conducting collective bargaining

Stage 1 Request to Employer Union must make a written request to the employer for recognition for CB purposes Must clearly identify union and BU Must state that request is made under Schedule A1 Employer has 10 working days to respond May agree – voluntary recognition; may disagree or fail to respond – union can apply to CAC Employer may agree to negotiate

Stage 2 Negotiation Additional 20 days for negotiation Failure to agree – union can apply to CAC If within 10 days of negotiations starting employer suggests Acas assistance union must agree to comply within 10 days Failure to agree allows application Any modification of BU requires fresh written request to employer before application to CAC

Stage 3 Admissibility Tests Chairman appoints panel of three which decides: Is the application in the proper form? Has the application been copied to the employer? Does union have a certificate of independence? Does employer employ at least 21 workers? Is there a competing application?

Stage 3 Admissibility Tests Is there an existing recognition agreement for CB purposes? Is there10% union membership in the BU? Is the majority of workers likely to favour recognition? If the application is made by more than one union can they show that they will cooperate with each other? Has there been a previous application in the last three years?

Acceptance CAC has 10 days to decide Case manager collects evidence Once accepted a union cannot make a reapplication for 3 years Scope for withdrawal and semi-voluntary agreements

Acceptance – Duty on Employer If BU not agreed, employer has duty to supply union with information within 5 days: list of categories of workers in proposed BU list of workplaces at which they work the number of workers employer reasonably believes to be in categories and workplaces

Acceptance – Rights of Union To communicate with workers through Suitable Independent Person (SIP) appointed by the CAC. Employer must pass on names and home addresses of all relevant employees to CAC who passes information to SIP.

Stage 4 Deciding Appropriate BU Account must be taken of the following validity tests: need to be compatible with effective management views of employer and union existing national / local bargaining arrangements desirability of avoiding small, fragmented units characteristics of workers in the proposed BU & any other employees CAC thinks relevant location of workers

Stage 5 Changes to proposed BU Bargaining units are either ‘appropriate’ or ‘inappropriate’. There is no concept of ‘more’ or ‘less’ appropriate. If the BU is changed the CAC has to apply the validity tests again.

Stage 6 Testing union support Does a majority of the workers in the BU belong to the union? If so, no ballot requirement unless: CAC believes a ballot would be in the interest of good industrial relations Credible evidence from a significant number of union members that they do not want the union to conduct CB on their behalf Membership evidence relating to circumstances under which they joined the union raising doubts about CB support The parties are allowed to submit evidence on these points

Stage 7 Holding a Ballot If a ballot is required, the union has 10 days to withdraw If no withdrawal, a Qualified Independent Person (QIP) is appointed to conduct ballot CAC decides whether workplace / postal / combined ballot takes place Must take place within 20 days of appointment of QIP

Duties on Employer To cooperate with union and QIP Give reasonable access in accordance with Code of Practice* Pass names and addresses of workers to CAC To refrain from making offers to workers that induces them not to attend union meetings To refrain from threatening workers for attending such meetings To refrain from Unfair Industrial Practices as referred to in the Code of Practice – essentially threats, bribery, intimidation * Code of Practice on Access to Workers During Recognition and Derecognition Ballots

Stage 8 Ballot Result In order for a trade union to be recognised for bargaining purposes following a ballot, a majority of those voting and at least 40% of the workers in the bargaining unit must vote in favour of recognition.

Stage 9 Establishing a Bargaining Procedure Parties have 30 days to agree procedure Failure to agree – seek CAC support Failure to agree – CAC can specify method (Order 2000 ‘model method’) CAC specified method is legally binding unless parties agree otherwise in writing If parties vary CAC method, modified procedure legally enforceable, unless otherwise agreed Remedy: ‘Order for specific performance’

Conclusions Regulatory Institutions Flexibility Sanctions Accountability