1. Bargaining in Good Faith?
Professor Frank Burchill

2. 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

3. 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

4. 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

5. 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

6. Immediate context Trade Union membership 6.9 million density 27.2%
CB Coverage % (11 million)
Statutory Coverage ,370
Declarations of recognition
Average size bargaining unit
186 with ballot ,279
Voluntary agreements to 2007: ,000
Coverage ,000

7. 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

8. 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

9. 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

10. 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

11. 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?

12. 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?

13. 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

14. 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

15. 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.

16. 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

17. 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.

18. 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

19. 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

20. 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

21. 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.

22. 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’

23. Conclusions Regulatory Institutions Flexibility Sanctions
Accountability