Statutory Recognition - Guide for the Parties on Part III of Schedule A1
This part of Schedule A1 is about changes to the bargaining unit or where the bargaining unit has ceased to exist
Applies to England, Scotland and Wales
Introduction
1.1 Part III of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (as amended by the Employment Relations Act 2004) covers how a bargaining unit with a statutory recognition agreement in place is affected when either the employer or union believes that the unit has changed, or if the employer believes it has ceased to exist altogether. Applications can only be made under Part III where the CAC has issued a declaration of recognition under Part I of Schedule A1 and there is a collective bargaining method in place. It does not apply to recognition agreements under Part II of the Schedule. Part III applications can be made at any time after a declaration of recognition.
1.2 This booklet is a practical guide and should not be relied on as a statement of the law. If you wish to understand the rights and obligations of trade unions and employers fully, you should study the Act itself, available from the Office of Public Sector Information (OPSI) or consult a lawyer. This Guide will continue to evolve in the light of experience.
1.3 Besides this guidance, you may wish to consult:
• the Code of Practice on Access and Unfair Practices During Recognition and Derecognition Ballots available from the Department for Business, Energy & Industrial Strategy (BEIS) and the CAC
• the CAC’s website, CAC’s Website, which gives information on the CAC, its members, its role and the statutory recognition and derecognition processes
• the CAC’s Application Form for Part III of the Schedule and the notes on the form
1.4 Throughout this guide, references to ‘union’ should be read as references to ‘unions’ in the plural where the CAC has declared more than one union recognised by the employer.
The Central Arbitration Committee
2.1 The Central Arbitration Committee (CAC) is an independent tribunal with statutory powers. Its Chair is Stephen Redmond. Under the Employment Relations Act 1999, it has been given statutory responsibility to adjudicate disputes over trade union recognition and derecognition. It also has powers in relation to the Information and Consultation Regulations, European Works Councils and The European Public Limited – Liability Company (Employee Involvement)(Great Britain) Regulations 2009 and it determines claims from trade unions on the disclosure of information for collective bargaining purposes. It can also provide voluntary arbitration on a reference from Acas. The CAC’s approach is flexible and seeks to be problem-solving in line with its general duty under paragraph 171 of the Schedule to “have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace”. The CAC’s role with regard to trade union recognition presently forms the vast majority of its work. This guide only covers Part III of the statutory recognition provisions in the Trade Union and Labour Relations (Consolidation) Act 2002 (as amended by the Employment Relations Act 1999 and the Employment Relations Act 2004). A summary of all the statutory provisions relating to trade union recognition and derecognition is at Annex 1.
CAC Proceedings
3.1 The CAC will be even-handed in its application of the provisions of the legislation. The procedures will be as user-friendly for both employers and trade unions as possible.
3.2 On receipt, applications will be allocated to a CAC case manager, a member of the Secretariat. The case manager will first check that the application is properly made in line with the statute and may return incomplete applications to unions for resubmission. The existence of each application will be made public on the CAC’s web-site.
3.3 A Panel of three CAC members will be convened to deal with each application. The Panel will consist of the CAC Chair or, more usually, one of the Deputies and one Member with experience as a representative of employers and one Member with experience as a representative of workers. While the composition of the Panel will normally remain the same throughout an application, it may be necessary to change the membership in the event of unavailability of one of the members. Changes to the Panel will only be made after one of the stages in the statutory process and not during a stage unless exceptional circumstances prevail. All parties will be informed of the names of the Panel members and of any changes in the composition of the Panel.
3.4 The case manager will contact the parties when an application is received, and will be the main point of contact, making enquiries of the parties on the instructions of the Panel. The case manager will ensure that correspondence and documents are cross copied between the parties and the Panel as appropriate. The case manager will do all he or she can to explain the statutory procedures and help the parties understand the implications of the legislation, as well as resolve difficulties. Either party can contact the case manager with queries concerning the application and the statutory procedure; the case manager can quickly liaise with the Panel where necessary. Should the case manager be out of the office for any reason, another CAC official will handle the case in his/her absence.
3.5 The CAC’s approach will be as flexible as possible, given that the processes are laid down in legislation and are quite formal in nature. The CAC will try to take a problem-solving approach and to help the parties, where possible, reach voluntary agreements outside the statutory process. The parties are free to contact the case manager at any time to discuss any aspect of the application. The CAC Panel will expect the parties to co-operate in providing any relevant information. The CAC is enabled to make its decisions by the submissions and evidence put before it by the parties. Whilst there are some matters (e.g. the number of union members) on which the Panel may, as a matter of routine, make enquiries of one party or the other, it will be for the parties to take the initiative in developing their submissions and marshalling their evidence in preparation for each decision point. The onus is on a party that wishes to have an issue considered to raise it formally with the CAC.
3.6 Since the CAC has a duty to help the parties to resolve underlying problems and reach agreement, some contacts between the CAC and the parties will be of an informal nature. However, the CAC also has to take formal decisions based on evidence available to the parties, so there is a mix of informal and formal processes. Where necessary, the case manager and Panel members will make it clear to the parties when they are discussing matters informally and when the discussion is part of a formal process.
Application form
3.7 The application form is available from the CAC, together with notes on the information required from employers or unions making applications. Applicants should complete the form in as much detail as possible, but in the knowledge that it and any supporting documentation sent with it must be copied to the other party. It would therefore not normally contain names or addresses of individuals. It is however essential that the description of the bargaining unit in the application is sufficiently clear for the CAC, and the other party, to be able to identify readily the bargaining unit and the bargaining arrangements that are subject to the application.
3.8 When an application has been lodged with the CAC the Secretariat will send notification of receipt to the applicant and will copy the application to the other party who will be asked to complete a questionnaire for the CAC with questions that are designed to elicit information and evidence germane to the admissibility criteria of Schedule A1. This questionnaire allied to the application form and supporting documents will inform the Panel of any issues that are disputed and enable it to make focused further enquiries before deciding whether to accept the application.
Confidentiality
3.9 Under paragraph 92 of the Schedule an application to the CAC is not valid unless the party making the application gives to the other party “a copy of the application and any documents supporting it.” For the avoidance of doubt, the CAC’s understanding of this provision is that the application and any documents submitted as part of, or at the same time as, the application documentation must be copied to the other party. Therefore, both the application papers and the other party’s comments on them will be copied to all concerned. Names and addresses of individuals, if supplied as part of the application documentation (ie at the same time as the application) must be supplied to the other party. If it is desired that names and addresses should not be disclosed, they should not be supplied to the CAC without seeking prior clarification from the CAC. The CAC may in certain circumstances be able to receive such information or relevant parts of it on the basis of confidentiality: this will normally be achieved by an agreement between the parties that they will each supply information to the CAC case manager on the basis that such information supplied by one party is not disclosed to the other. The CAC has the power to require certain information to be supplied to the case manager by the parties and to draw an adverse inference if such information is not supplied.( Please note: In any processing or disclosure of names or other personal information to the CAC in connection with applications for statutory recognition, unions and employers should note the power under paragraph 170A of Schedule A1 and the requirements of the Data Protection Act 1998. For further information on the Data Protection Act, they should consult the Information Commissioner’s Office (tel 01625 545700)).
3.10 There may be informal communications and discussions in pursuit of the CAC’s duty to help the parties reach a voluntary agreement, and the parties can give the CAC Panel information on a confidential basis during that period. Where appropriate, CAC Panels or the case manager will explain to the parties in advance the consequences of discussing matters with the CAC. However, this confidentiality is qualified: if the confidential information concerns key facts that are relevant to the Panel’s decision, in the interests of fairness, the CAC may later be obliged to make that information available to the parties so as to enable it to be checked and/or challenged at a hearing. The Panel will always warn the parties concerned in advance that this may occur and inform the party concerned before disclosing any information previously given in confidence.
3.11 If a party wishes to discuss any information informally with confidentiality guaranteed, they can contact Acas about this, whether or not Acas are already involved. Anything said to Acas in confidence would not be passed to the CAC and, therefore would not be taken into account in any decision.
Hearings
3.12 Hearings are not always necessary, and some decisions may be taken by the Panel on the papers after giving each party the opportunity to make submissions or if it appears to the Panel that there is no material dispute. If it appears that a hearing will be necessary, the chairman of the CAC Panel may hold a preliminary meeting in order to set out procedures and identify the issues disputed. The parties will be asked to submit and exchange evidence in the form of written submissions prior to the hearing. New evidence will only be admitted at hearings for good reasons and at the discretion of the Panel and, where it is admitted, parties can request that the Panel allows some additional time, such as a short adjournment, to consider the new evidence. The parties will be asked to inform the CAC Panel in advance of the names of the speakers and any witnesses proposed for the hearing. Speakers should be persons who are capable of representing the positions of the parties and who can contribute appropriately to the evidence required to assist the Panel’s considerations at the particular stage in the statutory procedure. The parties may appoint representatives but there is no requirement to use lawyers. Hearings will generally be held in public, although it is open to the CAC to hold a hearing (or part of a hearing) in private, for example if the Panel considers there are areas of particular confidentiality or that it is necessary in order to reach a satisfactory settlement. The CAC intends to hold hearings in as informal a way as is consistent with clarity and fairness. Each party will be asked to comment on and amplify its written statement and to comment on the other’s evidence and to answer questions put by the CAC Panel. Speakers and any witnesses may be cross-questioned where factual issues are in dispute, at the discretion of the chairman of the Panel. In particular cases the CAC Panel may determine that stricter standards of evidence are required, or that more formality in proceedings is appropriate. Parties will be advised if this is the case in good time prior to the hearing.
3.13 The CAC is required to meet relatively short deadlines set by statute, and hearings, if they are necessary, will normally be arranged as quickly as possible in order to meet these deadlines. Wherever possible hearing dates will be arranged taking account of the convenience of the parties but there are occasions where it is necessary for the CAC to impose a hearing date in order to comply with its statutory obligations. Where a hearing date is imposed the CAC will give as much notice to the parties as is possible in the light of the statutory requirements. The CAC expects that hearings will normally be completed in a day, and the procedures adopted at the hearings will be based on that expectation. While the CAC is based in London, it may hold hearings at other locations where this is believed helpful and/or more convenient to the parties. The decision on location will rest with the CAC. Forthcoming hearings are listed on the CAC’s website.
CAC Decisions
3.15 Decisions, declarations, and determinations of the CAC are publicly available, but are not normally publicised by means of a Press Notice. Where decisions of the CAC are publicised, the parties will be informed first. All decisions are made in the name of the CAC rather than that of the individual Panel members. After notification has been made to the parties, decisions of the CAC are posted on the CAC web-site. Decisions concerning the processing of an application (eg to conduct a membership check, or to hold a hearing, or to grant an extension) will be communicated to the parties in a letter signed by the case manager. However the decision itself will always have been made by the Panel. Extensions are covered in more detail below.
Extensions
3.16 At most stages of the statutory process, the time limits may be extended by the CAC Panel as long as it gives the parties notice of the extension and states the reasons for the extension. Where one of the parties requests an extension to a statutory time limit, the Panel, in deciding whether to grant the extension, will follow these principles:
• the Panel will take into account the views of the party making the request, the reasons for the request and any relevant circumstances in which the request is made
• the Panel will seek to avoid giving an unfair advantage to a party
• the Panel will aim to keep such extensions to a minimum
• the Panel will take all reasonable steps to consult the other party (or parties) and seek their views prior to reaching a decision
• the case manager will inform the parties in writing of the Panel’s decision with regard to the extension, together with the reason for the extension (if any) and its duration
3.17 Extensions may also be granted by the Panel at the joint request of the parties (where (a), (b), and (c) above will not apply). In addition, the Panel may grant an extension at its own instigation where, for example, it needs more information or to conduct a membership check or hearing. In such cases, the parties will be informed of the reason for the extension and its duration.
3.18 The CAC does not charge for carrying out its statutory functions (and there is no scope for the CAC to pay the expenses of any party). However, where a ballot is held the costs are divided between the employer and the union on a 50/50 basis unless the CAC upholds a complaint that a party has used an unfair practice and decides that a fresh ballot should be held (see the section on Unfair Practices). In these circumstances the CAC can apportion the costs of the ballot as it so decides.
Contact details for CAC:
Address:
Central Arbitration Committee
PO Box 80600
London
E19 9JX
Tel: 0330 109 3610
Email: [email protected]
Website: CAC Website
Contact names:
Chief Executive - Maverlie Tavares
Operations Manager - Bola Olayinka
User Satisfaction
If you are asked for your views on any aspect of our service, we would appreciate your cooperation. But if you have comments, whether of satisfaction, complaint or suggestion, please do not wait to be asked. If you are dissatisfied with any aspect of our service, please let us know so that we can put things right. If you cannot resolve the problem with the person who dealt with you originally, please ask to speak to the Operations Manager or, if necessary, the Chief Executive who will investigate your complaint. If you wish to complain in writing, please write to Maverlie Tavares, Chief Executive, at the address above.
In the event of any complaint, we hope that you will let us try to put things right. But if necessary, you can write to your MP who can tell you how to have your complaint referred to the Parliamentary Commissioner for Administration (the Ombudsman).
PART III LEGISLATION
There are two channels in which applications can be made to the CAC under Part III.
The first of these is under paragraph 66 where an employer or union believes that the original bargaining unit is no longer appropriate. This is referred to as Scenario 1 in this Guide.
The second is under paragraph 74 where an employer gives notice to a union that it believes the bargaining unit has ceased to exist. This is referred to as Scenario 2.
These two channels are described in Section 1 of this Guide
Under both Scenarios, a new bargaining unit may need to be agreed or determined at some future point. The statutory process is the same for both Scenarios from that point onwards and the relevant provisions are summarised in Sections 2 to 5.
SECTION 1 – making an application
Scenario 1 - When the employer or union believes that the original bargaining unit is no longer appropriate
Application to the CAC (Paragraph 66)
1.1 If the employer or the union believes that the bargaining unit is no longer appropriate, either can apply to the CAC for a decision on what is an appropriate bargaining unit. The reason why the bargaining unit is no longer appropriate must be due to one or more of the following criteria (paragraph 67(2)):
• a change in the organisation or structure of the business
• a change in the business activities, or
• a substantial change in the number of workers in the bargaining unit
An application form is available from the CAC.
On receiving an application, the CAC will appoint a panel, and notify both the employer and the union that an application has been received. The CAC will then decide if the application is admissible.
Admissibility (Paragraphs 67 and 92)
1.2 To be admissible the application must pass the following tests:
• Is the application in proper form? (ie as required in the CAC application form)
• Has the application been copied to the other party? (If the application was made by the employer, then the employer must copy it to the union, and vice versa)
c) Is it likely that the original bargaining unit is no longer appropriate? The reason why the unit is inappropriate must be due to one or more of the reasons listed in paragraph 1.1
The CAC has 10 working days to decide if it can accept the application, but this period can be extended if the CAC informs the parties and give reasons. The parties will be informed whether or not the application is accepted.
If the application is not accepted, then bargaining arrangements will continue as if the application had not been made.
If the application is accepted, then a new bargaining unit may be required - see Section 2 of this Guide.
Scenario 2 - When the employer believes that the bargaining unit has ceased to exist
Employer gives notice to union (Paragraph 74)
1.3 If the employer believes that the bargaining unit has ceased to exist, and wishes collective bargaining to end, it must send the union (or each union) a notice and copy it to the CAC.
The notice must:
• identify the bargaining unit and the bargaining arrangements
• state the date on which the notice is given
• state that the unit has ceased to exist
• state that bargaining arrangements are to cease and set a date for when the arrangements will end. The date must be at least 35 working days from the day after the day the notice is given
A proforma notice for this purpose is available from the CAC
On receiving a copy of the notice, the CAC will appoint a panel, and notify both the employer and the union that an application has been received. The CAC will then decide if the notice is valid.
The CAC advises employers to send the notice to a full-time officer of the trade union. When the CAC receives a copy of the notice, it will copy it to the General Secretary of the union or unions concerned.
To be valid the notice must pass the following tests:
• Has the notice been given to the union
• Does the notice include all the criteria listed above
The CAC has 10 working days to decide if the employer’s notice is valid, but this period can be extended if the CAC informs the parties and give reasons.
If the notice fails any of the above tests then it is invalid. The CAC will inform the parties of this, and bargaining arrangements continue as before.
If the CAC panel decides that the notice is valid it will inform both parties. The union then has an opportunity to respond to the employer’s notice - see paragraph 1.4 below.
The union responds to the employer’s notice (Paragraph 75)
1.4 The union then has 10 working days in which to make an application to the CAC in response to the employer’s notice. There is no provision in the legislation for the 10 day period to be extended.
The union can apply for a decision on whether or not the original unit has ceased to exist or whether it is no longer appropriate. The reason why the unit is no longer appropriate must be due to one or more of the following reasons:
• a change in organisation or structure of the business
• a change in activities of the business
• a substantial change in number of workers employed in original bargaining unit.
An application form is available from the CAC. If the union does not make an application then the employer can end the bargaining arrangements on the date specified in the employer’s notice.
The CAC will give the parties notice of receipt of an application from the union and then decide if the application is admissible. To be admissible by the CAC the application must be:
a) in the form specified (ie as required in the application form),
b) copied by the union to the employer together with any supporting documentation.
The CAC has 10 working days to make its decision, but this can be extended if the CAC informs the parties and gives its reasons. The parties will both be informed if the application is accepted as admissible.
If the CAC decides that the union’s application is not admissible, it will take no further action and the employer’s notice stands.
If the CAC decides the union’s application is admissible, then both parties are given the opportunity to present their views on the issues raised in the union’s application.
CAC decides if the bargaining unit has ceased to exist, or is no longer appropriate (paragraph 77)
1.5 The CAC can decide that:
• the bargaining unit no longer exists
• the bargaining unit still exists, and is still appropriate
• the bargaining unit still exists but is no longer appropriate
The CAC has 10 days for this although this can be extended if the parties are informed and the CAC gives its reasons. This is the decision period.
If the CAC decides that the unit no longer exists, it will notify the parties and bargaining arrangements will cease. Bargaining arrangements will finish on the day stated in the employer’s notice or, if it is later, the day after the last day of the decision period.
If the CAC decides that the bargaining unit has not ceased to exist and is still appropriate, it will inform the parties. The employer’s notice is then treated as if it had not been given.
If the CAC decides that the bargaining unit has not ceased to exist but is no longer appropriate, then a new bargaining unit (or units) is required. The next stage is described in Section 2 of this Guide.
Section 2 – The new bargaining unit
Determining or agreeing the new bargaining unit(s)
2.1 This section applies if the CAC either:
• accepts an application under paragraph 66 that the bargaining unit is no longer appropriate, or
• has received a notice under paragraph 74 requesting an end of bargaining arrangements, together with a union response under paragraph 75, and has decided that the bargaining unit does still exist but is no longer appropriate
Parties agree a new bargaining unit (Paragraphs 69 and 78)
2.2 The parties have 10 working days to try to agree a new bargaining unit or units, although they can agree to extend this period. If the agreed new unit overlaps with any outside bargaining units (ie has any workers in common with a unit where a different union is recognised for collective bargaining) then the CAC will take no further action.
If the new unit does not overlap with any outside bargaining units, then the CAC must issue a declaration that the union is recognised for the new unit. The method of bargaining applying to the old unit now applies to the new unit, subject to any modifications the CAC considers necessary.
If the new unit excludes any workers who were included in the original unit, then the CAC must also make a declaration that bargaining arrangements have ceased for those workers.
Parties do not agree a new bargaining unit (Paragraphs 70 and 79)
2.3 If the parties do not agree a new unit, the CAC has to decide whether the old unit is no longer appropriate (in the case of an employer’s notice under Scenario 2 of this Guide this issue has already been decided). If the unit is inappropriate, the CAC must decide what the new unit should be. In deciding whether or not the original unit is still appropriate, the CAC can only take account of:
• any organisational or structural changes in the employer’s business
• any changes in business activities
• any substantial changes in the numbers of workers
If the CAC decides that the bargaining unit is still appropriate, it will take no further action and the bargaining arrangements will continue.
If the CAC has decided the old unit is no longer appropriate, it must designate one or more new bargaining units. In doing so, it has to take into account the following factors:
• the need for the unit, or each of the units, to be compatible with effective management
• views of employer and union
• existing national and local bargaining arrangements
• desirability of avoiding small, fragmented bargaining units
• characteristics of workers in the proposed bargaining unit and any other employees the CAC considers being relevant
• location of workers
Of these factors, the first takes priority as the other factors cannot be considered where they conflict with the need for the unit(s) to be compatible with effective management.
Where the CAC decides that two or more new bargaining units are appropriate, it must ensure that no worker falls into both of them.
The CAC has 10 working days to make the decision, but this may be extended if the CAC informs the parties and give reasons.
Section 3 – determining a new bargaining unit
Consequences of CAC determining a new bargaining unit(s) (Paragraphs 82-84)
3.1 For the purposes of the procedures described in Sections 3 and 4, if the CAC has decided there are two or more appropriate bargaining units then each one must be considered separately.
When the new bargaining unit overlaps with an existing statutory outside bargaining unit (Paragraph 83)
3.2 If the new bargaining unit overlaps with an existing statutory outside bargaining unit (ie one for which statutory recognition was declared by the CAC, under Schedule A1, to a different union), then bargaining arrangements have to cease for all workers within:
• the original unit
• the new unit
• any part of the existing statutory outside unit which overlaps with the new unit
Bargaining arrangements will stop 65 working days from the day after the day of the CAC declaration, or if the CAC so decide, the next day after the day of the declaration
(NB for c) above, the CAC will issue a declaration ending bargaining arrangements for the whole of the outside unit (the ‘parent’ unit), and then will consider each parent unit in turn to identify the part of the unit which does not overlap (the ‘residual’ unit). For each residual unit the CAC will then issue a declaration that the outside union is recognised for collective bargaining. The bargaining arrangements for the residual unit will be the same as were used for the parent unit, but with any modifications as the CAC sees fit. The CAC will not issue a declaration if an application under Part III has also been received regarding the statutory outside unit.)
When the new bargaining unit overlaps with an existing voluntary outside bargaining unit (Paragraph 84)
3.3 If the new bargaining unit overlaps with an existing outside bargaining unit that was agreed on a voluntary basis, the bargaining arrangements cease for the new bargaining unit. But the voluntary arrangements continue unaffected. This means that those workers who are in both the outside unit and the new unit continue to be covered by the voluntary arrangement only. Bargaining arrangements for the original unit will stop 65 working days from the day after the day of the CAC declaration, or if the CAC so decide, the next day after the day of the declaration.
If the new unit excludes any workers who were included in the original unit, then the CAC must also make a declaration that bargaining arrangements have ceased for these workers. The CAC will inform the parties if any of these situations occur.
Section 4 – support for the new bargaining unit
Deciding whether support for the new bargaining unit needs to be assessed (Paragraphs 85-86)
4.1 If there are no overlaps, the CAC has to decide whether the differences between the original unit and the new unit are such that support for the union for the new unit needs to be assessed. If the CAC decides that support does not need to be assessed, it will issue a declaration that the union is recognised in respect of the new bargaining unit. This declaration takes the place of any earlier declaration of recognition for workers in the original unit. The method of collective bargaining for the original unit shall continue unless the CAC decides to modify it to take account of the changes in the bargaining unit.
4.2 If the CAC decides that the differences between the original unit and the new unit are such that the level of support needs to be reassessed, they will consider two tests. These are:
• Do at least 10% of the workers in the bargaining unit belong to the union? This check can take a number of forms. If confidentiality is not required or where, more usually, the parties agree in advance to provide lists on the basis of confidentiality, the check can take the form of a direct comparison of lists. In these circumstances the CAC case manager would produce a numerical report of the results of the comparison for the Panel (the names themselves will not be given to the Panel) and the parties will be asked to comment on the report and the admissibility test
• Are the majority of the workers in the bargaining unit likely to favour recognition? The parties can provide evidence as to whether or not the majority are likely to be in favour in any form available. A possible example would be a petition from workers. If confidentiality is required, the parties must agree in advance to their being provided on the basis of confidentiality. The value and weight to be attached to various forms of evidence may vary, depending, for example on the circumstances in which that evidence has been obtained, when it was obtained and the wording of the petition that may be submitted
The CAC’s consideration of the tests under paragraph 86 will be based on the best evidence available. If the CAC considers it necessary, it can require an employer to provide, to a CAC case manager, information concerning the workers in a bargaining unit and the likelihood of a majority of those workers being in favour of the union conducting collective bargaining on their behalf. The CAC can also, where it considers it necessary, require a union to provide to the case manager information concerning the union members in a bargaining unit and the likelihood of a majority of those workers being in favour of the union conducting collective bargaining on their behalf. If the CAC considers these steps necessary, it will specify to the parties what information it requires and the date by which it is to be supplied. Such requirement may include information as to the nature and number of employees in a bargaining unit, and as to the membership, subscriptions and rules of a union. The case manager may also require more information from either party as to the job titles of workers in the bargaining unit
Once the required information has been received the CAC case manager will compile a report and a copy of the report will be given to the Panel and to the parties. If either of the employer or the union fails to supply the information required by the CAC, then the report must mention that failure and the CAC can draw an inference against the party who has so failed
4.3 If the CAC panel decides that either of these tests is not met, the CAC must declare that the union is not recognised and inform the parties.
4.4 If the CAC is satisfied that both tests are met, it must decide whether a ballot is required.
Whether to call a Ballot (Paragraphs 87-89(3))
4.5 Unless the CAC panel is satisfied that the majority of the workers in the new bargaining unit belong to the union, it has to call a ballot. Where the union argues that it has a majority of the workers in the bargaining unit and the employer provides conflicting evidence to challenge the union’s membership figures, there may be an independent check carried out by a CAC case manager on the level of union membership in the bargaining unit. The check can take a number of forms. If confidentiality is not required or if the parties agree to provide lists on the basis of confidentiality, it could be a comparison of lists (where the decision would be based on the case managers’ report of the check; the names themselves will not be given to the panel) or detailed checks involving visits to employer or union premises. The parties will be asked to consent to any such check and will be informed of the results before any decision is taken.
4.6 The CAC’s consideration of whether there is majority union membership in the bargaining unit will be based on the best evidence available. If the CAC considers it necessary, it can require an employer to provide, to a CAC case manager, information concerning the workers in a bargaining unit. The CAC can also, where it considers it necessary, require a union to provide information concerning the union members in a bargaining unit. If the CAC considers these steps necessary, it will specify to the parties what information it requires and the date by which it is to be supplied.
4.7 Once the required information has been received the CAC case manager will compile a report and a copy of the report will be given to the Panel and to the parties. If either of the employer or the union fails to supply the information required by the CAC, then the report must mention that failure and the CAC can draw an inference against the party who has so failed.
4.8 If the majority of the workers in the bargaining unit are members of the union, the CAC must issue a declaration of recognition for the union without a ballot but see below.
4.9 However the CAC has to call a ballot if any of the following conditions apply:
a) If the CAC is satisfied that a ballot should be held in the interests of good industrial relations,
b) the CAC has evidence, which it considers to be credible, from a significant number of union members within the new bargaining unit that they do not want the union to conduct collective bargaining on their behalf,
c) Membership evidence regarding the circumstances in which workers joined the union or length of membership leads to doubts whether a significant number of union members in the bargaining unit want the union to conduct collective bargaining on their behalf.
4.10 While the CAC panel must consider any evidence that the parties bring to bear on these conditions, there is no obligation on the panel to seek such evidence. The CAC panel may call a hearing to determine whether any of these factors apply. This could be combined with the hearing on the level of union membership.
4.11 If the CAC decides that there is to be a ballot it will notify the parties. There is then a period of 10 working days during which the union may notify the CAC that it does not want the ballot to go ahead and that it wishes to withdraw. If the union withdraws, the CAC will issue a declaration that bargaining arrangements are to cease for the new bargaining unit.
4.12 If the union does not notify the CAC that it wishes to withdraw, then the CAC will arrange for a secret ballot to be held.
Holding the Ballot (Paragraphs 89(4)-89(8))
4.13 Assuming no notice to withdraw from the ballot is received from the union, the CAC panel appoints a qualified independent person (QIP) to conduct the ballot. The panel selects the QIP from those bodies specified in the Recognition and Derecognition Ballots (Qualified Persons) Order 2000 and (Amendment) Order 2002. While the QIP conducts the ballot, the CAC panel has to decide whether the ballot should be a workplace ballot or a postal ballot (or, if special factors apply, a combination of the two). The CAC panel will decide on the form of the ballot depending on the circumstances of the case. It is required to take into account the likelihood of the ballot being affected by unfairness or malpractice if it were conducted at a workplace, together with costs and practicality. It may also take into account any other matters it considers appropriate. These are likely to include the preferences of the parties. The case manager may visit the workplace before the decision on the form of ballot is decided to advise the Panel on the physical arrangements.
4.14 Special factors that would justify a combination of a workplace and postal ballot are those arising from the location of workers and the nature of the work, or other factors put to the panel by either party. Where a workplace ballot has been ordered and there will be workers who, for reasons relating to them as individuals (such as known sick absence, the taking of annual leave, maternity or paternity leave etc), will not be at work on the day of the ballot, the ballot arrangements may, at the CAC’s discretion, include provision for those workers to vote by post where a request for such is made far enough in advance of the ballot for this to be practicable.
4.15 The ballot must be held within 20 working days of the appointment of the QIP. Again, the CAC panel can extend this period.
4.16 Once the CAC has selected the QIP, the case manager will inform the parties of the QIPs name and contact details and the date of the QIPs appointment. The CAC letter will confirm that the ballot must now take place, will give details of the ballot timetable and will draw attention to the need to agree access arrangements (if this has not already been achieved) and the opportunity for the union to use the services of the QIP to circulate material to the workers in the bargaining unit (see below). A copy of the QIP’s estimate of costs will also be sent to both parties. Once the employer has been informed of these details by the CAC letter, the employer has five duties with which it must comply:
• to co-operate generally with the union and the QIP in connection with the ballot
• to give the union reasonable access to the workers in the bargaining unit to enable it to inform those workers of the object of the ballot and to seek their support and their opinions on the issues
What constitutes reasonable access, and the basis on which it should be given, is spelt out in greater detail in the Code of Practice on Access and Unfair Practices during Recognition and Derecognition Ballots. However the Schedule itself specifically provides that employers are taken to have breached this duty if they refuse a request for a meeting between the union and any workers in the bargaining unit without either they or their representative (other than one who has been invited to attend) being present and it is not reasonable in the circumstances for them to do so. The duty is also breached if the employer or a representative of the employer attends such a meeting without an invitation, or the employer seeks to record or otherwise be informed of the proceedings at any such meeting (or refuses to undertake not to seek to do so) unless this is reasonable in the circumstances.
• to pass names and addresses of workers in the bargaining unit to the CAC. The names and addresses must be given to the CAC within the period of 10 working days starting with the day after the employer was informed of the QIP’s name and ballot arrangements. After providing this initial list the employer must also pass to the CAC details of any workers joining or leaving the bargaining unit. The CAC case manager will then pass the names and addresses of workers to the QIP
• to refrain from making any offer to workers, or any individual worker, that induces, or is likely to induce them, not to attend a relevant meeting between the union and the workers unless it is reasonable in the circumstances (relevant meetings are those that are arranged under the access agreement or arranged as a result of a step ordered by the CAC in a remedial order (see paragraph 4.19)
• to refrain from taking or threatening any action against a worker because they attended or took part in a relevant meeting or they indicated their intention to do so
4.17 The union can use the QIP to distribute information from the union to the workers in the bargaining unit at their home addresses (providing the union bears the cost of sending the information), but neither the CAC nor the QIP can give the information on names and home addresses to the union. Equally neither the CAC nor the QIP can pass names of union members to the employer. If the union wishes the QIP to distribute information to the workers, it must ask the QIP directly. The CAC has no role in vetting or approving the content of any communication and cannot adjudicate on such a complaint unless it falls within the ambit of an unfair practice (paragraphs 4.20 – 4.22). Similarly, it is for the union to approach the employer with regard to access arrangements. The Panel may suggest to the employer (through the case manager) that it would be helpful to display a notice at the workplace about the ballot so that the workers in the bargaining unit are made aware of the arrangements.
4.18 Any complaint that the employer has not complied with any of the five duties must be made known to the CAC before the ballot has been held. Complaints regarding the employer’s compliance with the duties, or any complaints by the employer about lack of co-operation by the union, should be sent to the CAC case manager. As long as the ballot has not already been held the CAC panel will investigate the complaint, seeking advice from the QIP as appropriate. A hearing or, in some circumstances, a site visit may be needed. The CAC panel can extend the timetable for the ballot in these circumstances.
4.19 If the CAC panel decides that the employer has failed to perform any of the duties above, it can order the employer to remedy the failure within a set timescale. If the employer fails to remedy the failure the CAC can issue a declaration of recognition. Given the seriousness of this penalty, the panel will spell out the consequences of not complying with an order from the CAC when the order is made. The CAC panel can take into account all relevant circumstances including the behaviour of the union. Unfair Practices
4.20 Each of the union and employer, once informed by the CAC of the name and appointment date of the QIP and the balloting arrangements (see 4.16 above), must refrain from using any unfair practice. Either of the union and employer can complain to the CAC if they believe the other has used an unfair practice and the CAC must decide whether the complaint is ‘well founded’. A complaint will be well founded if the unfair practice was used and the CAC is satisfied that it changed or was likely to change a relevant worker’s intention to vote or abstain from voting, intention to vote a particular way or how he or she actually did vote.
4.21 The BEIS’s ‘Code of Practice on Access and Unfair Practices during Recognition or Derecognition ballots’ recommends steps that can assist good practice for both employers and unions and gives guidance on what activities should be avoided in order to minimise the disruption to ballots that can be caused by complaints to the CAC.
4.22 The Schedule lists unfair practices. The following acts by the employer and the union are unfair practices if they are used with a view to influencing the result of the ballot:
• Offers to pay, with money or to give money’s worth, for a relevant worker to vote in a particular way or to abstain
• Offers to pay, with money or to give money’s worth, a reward to a relevant worker but only if a specific declaration is achieved following the ballot (the union being declared recognised or the union being declared not recognised) – this offer must be “outcome specific” as opposed to being conditional on any developments resulting from the declaration
• The coercion or attempted coercion of relevant workers to discover whether he or she intends to vote or abstain or how they intend to vote or have voted
• Dismissal, or threats of dismissal, of a worker – note that this is not confined to those workers entitled to vote in the ballot
• Taking or threatening disciplinary action against a worker – again this is not confined to workers entitled to vote in the ballot
• Subjecting, or threatening to subject, a worker to any other detriment – again this is not confined to workers entitled to vote in the ballot; and
• Uses or attempts to use undue influence on a relevant worker
An unfair practices complaint must be made on or before the first working day after the date of the ballot or, if votes can be cast on more than one day such as in a postal ballot, the last of those days. Where a complaint is made after this period there is no provision in the Schedule for the CAC to consider whether one of the parties has used an unfair practice.
4.23 If an unfair practices complaint is made within the specified time, the CAC has 10 working days in which to decide whether the complaint is well founded, starting with the day following receipt of the complaint. The CAC can extend this period and if it does so it must give reasons to the parties. If at the beginning of this decision period the ballot has not begun, the CAC can postpone it by giving a notice to the parties and the QIP; the notice will say when the ballot will begin, and the new date must be after the end of the decision period.
4.24 If the CAC decides that the complaint is well founded (see 4.20 above) it will declare this finding and may then do one or both of the following: -
• Issue a remedial order telling the party what steps it must take in order to mitigate the effect of the unfair practice and when to take those steps by; or
• Give notice to the parties that a secret ballot will be held – in effect ordering a new ballot.
The CAC may make a remedial order and/or issue a ballot notice either at the same time as it declares the unfair practice has occurred or at any other time before it informs the parties of the ballot result and issues a declaration of recognition or non-recognition. The Schedule makes clear that the CAC can give more than one order under these provisions.
Circumstances in which the CAC can abandon a ballot and issue a declaration
4.25 In some circumstances where there have been serious failures by either the employer or the union, the CAC has the power to cancel a ballot and make a declaration that the union is, or is not, recognised. The CAC can consider taking this step in the following circumstances:
• If the CAC declares that an unfair practice complaint is well founded (see 4.20 above) and that the unfair practice consisted of, or included,
• the use of violence, or
• the dismissal of a union official
OR
• The CAC has issued an unfair practices remedial order and the party to whom it is issued fails to comply with it
OR
• The CAC, having issued an unfair practices remedial order to a party, then makes a further declaration (see 4.24 above) that a complaint that the same party used an unfair practice is well founded
In these cases of serious and/or repeated failures by the parties, if the failing party is the employer then the union can be declared recognised and if the failing party is the union then the CAC may declare the union is not recognised.
4.26 The power to cancel the ballot and make these declarations is in addition to the power to issue remedial orders and/or order a new ballot; there is no presumption that the power will therefore need to be used in every instance of repeated failures, this will be a question for the Panel to determine in the circumstances of the individual case.
4.27 Where the CAC declares that an unfair practices complaint is well founded and orders a fresh ballot - or where the CAC declares that the union is recognised or not recognised in the circumstances described in 4.25 above - the CAC will take steps to cancel the ‘original’ ballot. If that ballot is nonetheless held it will have no effect and any result that is reported by the QIP will not be acted on by the CAC or passed on to the parties.
4.28 If the CAC orders a fresh ballot in the circumstances described at 4.24 above then the following changes to usual ballot procedure will take effect:
• the notice period (for a union request to cease the ballot arrangements) is reduced to 5 day
• the Employer only needs to update the information on workers’ names and addresses rather than provide them afresh
• any remedial order given as a result of a failure to fulfil one of the employer’s duties or because of non-compliance by one of the parties with a unfair practice is carried over and must be acted on by the party concerned to the extent that the CAC will specify in a notice to the parties – it does not wither away just because the tainted ballot has been abandoned
• the cost of the fresh ballot will be borne by whoever the CAC decides, or in whatever proportions the CAC decides, it should be
4.29 Unless the circumstances in 4.28 d) apply the costs of the ballot are shared between the employer and the union on a 50/50 basis. The case manager will send both parties a copy of the estimate of costs that was received from the QIP and will ask that the QIP notify the CAC and each of the parties of any likely changes to that estimate, and the reasons for the changes, as soon as reasonably practicable. In general terms, workplace or combination ballots tend to be more expensive than postal ballots.
4.30 Following the ballot the QIP will send the employer and the union, subject to any CAC decision to the contrary (see 4.28 d) above, a demand for its costs. The demand will show the gross costs of the ballot and the share of the cost to be paid by the employer and the union. The employer and the union are then required to pay the QIP within 15 working days (starting with the day after the demand is received). If the employer or the union disputes the demand then it can appeal to an Employment Tribunal within 4 weeks, starting with the day after receipt of the demand. The Employment Tribunal will dismiss an appeal unless it is shown either that the gross costs of the ballot are too great or the share of the cost to be met by the appellant is too great. If the Tribunal allows an appeal, then it will also rectify the demand for costs accordingly. While there is an outstanding appeal against the costs, the demand from the QIP is not enforceable.
Result of ballot
4.31 Once the QIP has submitted a written report of the ballot result to the CAC it must be considered by the Panel. The CAC case manager will only be permitted to inform the parties of the ballot result once authorised to do so by the Panel. In normal circumstances this will be within 48 hours of completion of the balloting period.
4.32 In order for a trade union to be recognised for collective 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. After the ballot the CAC will either declare the union recognised or issue a declaration that the union is not recognised. If the CAC issues a declaration that the union is recognised as entitled to conduct collective bargaining on behalf of the bargaining unit, the method of collective bargaining will be the same as for the original unit, with any modifications as the CAC decides. If the support is insufficient the CAC must issue a declaration that the union is not recognised, and that bargaining arrangements in the new unit will cease to have effect. Following a declaration of non-recognition, the CAC cannot accept any applications from the union concerned in respect of the balloted bargaining unit or one substantially the same for three years.
Section 5 – withdrawing an application
Withdrawal of applications (Paragraph 93)
5.1 Applications can be withdrawn at any time, providing that none of the following has occurred:
• the CAC makes a declaration that the union is recognised for collective bargaining
• the CAC decides that the unit no longer exists
• the CAC makes a declaration that the union is not recognised for collective bargaining
• the union has notified the CAC that it does not want a ballot held
• the end of the notification period after the CAC has notified the parties that it has decided to hold a ballot
• the CAC makes a declaration that bargaining arrangements are to cease having decided a new unit is appropriate and the new unit contains at least one worker falling within a statutory outside bargaining unit (see paragraph 3.2)
Annex 1 - Outline of all the procedures under Schedule A1
While Part I of Schedule A1 deals with statutory recognition, applications can also be made under other Parts of the Schedule.
This note only gives a very brief outline of the processes under other parts of the Schedule. For more detailed information, you should consult the Trade Union and Labour Relations (Consolidation) Act 1992 (as amended by the Employment Relations Act 1999 and the Employment Relations Act 2004) available from the OPSI. Application forms for the following processes are available from the CAC.
Part II (agreements for recognition): applies where the union and employer have reached a voluntary agreement following a request by the union for statutory recognition. In other words, the parties have reached agreement and withdrawn from the statutory process (ie a semi-voluntary agreement). Where an application has already been submitted to the CAC by the union and an agreement is reached between the parties, both the employer and the union are required to notify the CAC that they no longer wish it to continue considering the application. When a semi-voluntary agreement has been reached, the parties can ask the CAC to specify the method of collective bargaining. Any method specified by the CAC will be legally binding unless both parties agree otherwise. The employer cannot unilaterally terminate an agreement under Part II for three years, but the union can end it at any time. [Note - Schedule A1 refers to this as “voluntary recognition”]
Part III (changes affecting bargaining unit): applies if, following statutory recognition, there is a change in the organisation, structure, or activities of the business, or a substantial change of the numbers employed which makes the bargaining unit inappropriate. Either party may make an application under Part III. If the CAC accepts the application, the parties can reach agreement on a new unit. If the parties fail to reach agreement, the CAC will consider whether the unit is still appropriate, and if not, decide what the new unit should be. Where the new unit overlaps with an existing bargaining unit, special provisions apply depending on the status of the overlapped bargaining unit. In addition, applications under Part III can be made by an employer on the grounds that the bargaining unit has ceased to exist. Applications under Part III can be made at any time after a declaration of recognition, provided that a method of conducting collective bargaining is in place.
Part IV (derecognition where recognition was achieved following a ballot): applies where an employer, or worker seeks to derecognise a union which was recognised under Part I. Statutory derecognition can only take place three years or more after recognition was granted. Either the employer or any worker in the bargaining unit can ask the union to end recognition arrangements. If the union does not agree, the CAC conducts tests similar to the Part I validity tests in reverse, and the question is settled by a ballot. The employer can also apply for derecognition on the grounds that the entire workforce has fallen below 21.
Part V (derecognition where recognition was achieved without a ballot): This applies where the union was granted recognition under Part I without a ballot. The main differences from Part IV are that only the employer can ask the union to end the recognition arrangements, and that the test for accepting the employer’s application is whether fewer than half the workers in the bargaining unit are members of the union. The question of derecognition is settled by a ballot, as with Part IV. Again, the employer cannot apply for three years after recognition was granted.
Part VI (derecognition where the union is not independent): If a non-independent union is voluntarily recognised for collective bargaining purposes, a worker or workers within the bargaining unit can apply to the CAC to have the bargaining arrangements ended. While the workers concerned can be backed by another union, that union cannot itself use this route. Again, the CAC applies some initial tests of admissibility, attempts to help the employer, union and worker to end the bargaining arrangements and arranges a ballot to take place if necessary. This process has to be halted if the non-independent union obtains a certificate of independence.
Part VII (loss of independence): If a union recognised under Part I of the Schedule loses its certificate of independence, then statutory recognition ceases.