Collective Bargaining

General

The right to collective bargaining is a recognised part of the right to join a trade union protected under the Human Rights Act. There is a statutory mechanism whereby trade unions may seek recognition from employers. Where it is recognised for collective bargaining either voluntarily or under the statutory provisions, further statutory rights and obligations apply in relation to information the employer is to give to the trade union and its obligation to negotiate

Voluntary recognition may be express or implied. The terms of the agreement for recognition must cover negotiation in relation to the specified matters. As long as the voluntary provisions apply, the statutory mechanism is not required or applicable.

The statutory mechanism is complex and procedural. The union must show the support of the majority of workers in the bargaining unit as defined. This may be shown through majority union membership or by means of an independent secret ballot.

Once recognition is granted, it lasts for at least three years unless there is a substantial change in the bargaining unit in the meantime. The process for derecognition is equally complex

There is a semi-voluntary recognition which may arise where statutory recognition procedures commence, and the parties reach an agreement for recognition in settlement.

Where a union is recognised the employer must provide information in connection with collective bargaining. Representatives of the union are deemed the authorised representatives for various other purposes including the transfer of undertakings, collective redundancies and occupational pension schemes.

Where an employer voluntarily agrees to undertake collective bargaining with a trade union, there is no requirement that the trade union represent any particular proportion of the employees in the workplace.

The default position is that the terms of collective bargaining recognition and negotiation are to be agreed between the union and employers.

Requirements for Collective Bargaining

It is possible in principle for unions to be recognised for more limited purposes than collective bargaining. In this case, certain further statutory rights in respect of unions recognised for collective bargaining, may not apply, including statutory information and consulting.

The statutory definition of collective bargaining covers the negotiations relating to matters including

• terms and conditions of employment
• engagement and non-engagement
• termination and suspension of employment
• allocation of work duties
• discipline
• union membership or non-membership
• the machinery of negotiation and consultation
• facilities and time off for trade union officials

There must be provision for negotiations rather than merely discussions and consultation.

Voluntary recognition agreements may be written or verbal or arise by custom and practice.

Statutory Procedure

Where a trade union cannot persuade an employer to recognise it for the purpose of negotiations, it may initiate the statutory procedure if it so qualifies in the circumstances. The procedures are complex and cumbersome. Employers with less than 21 employees are wholly excluded.

The union must have a certificate of independence from the certification officer. The employer must employ at least 21 union workers in Great Britain. The must be no existing recognition agreement. At least 10% of the workers in the bargaining unit must be union members. There must be no competing application in respect of the same or an overlapping unit. The must be no similar application within the last two years which did not proceed. The majority of workers must be likely to favour recognition.

An application for recognition is not permitted where the employer recognises another trade union. This trade union need not represent all employees.

There are a number of distinct phases

• written request to the employer’s requesting recognition negotiation;
• the employer must respond within 10 days;
• CAC notifies the employer and decides the admissibility of the application;
• the application must comply with the requisite criteria

The CAC will determine the bargaining unit unless the parties agree to it. It will consider whether the units proposed by the union is appropriate. The CAC re-checks whether the application qualifies after the unit is determined are agreed

The level of support for recognition is determined. If the majority of workers are union members, then these criteria are deemed to be fulfilled. If not, the CAC may order a ballot. Provided it is justified, it may determine

• that the ballot should be held in the interests of good industrial relations
• that there is evidence that a significant number of union members do not support recognition
• the membership evidence cast doubts on whether a significant number of union members in the bargaining unit support recognition

A ballot may be ordered in the above circumstances. CAC may order a workplace ballot as a postal ballot or a mixed ballot. The union may withdraw the application at this point.

The employer is obliged to cooperate generally with the union and the qualified independent person. It must give the union reasonable access to workers in the bargaining unit so as to seek their support and opinions. It must provide the CAC with the names of workers in the bargaining unit.

It must not offer inducements not to attend meetings and refrain from taking action against workers for attending or participating in union meetings. The union and employer must refrain from any unfair practices which might influence the result of the ballot. There is a code of practice in relation to what might constitute such practice.

The majority must be in favour of recognition on a turnout of at least 40% of the workers in the relevant bargaining unit.

If the ballot supports collective bargaining, the parties may agree on the method of collective bargaining. If they do not, CAC will seek to assist in agreement. If necessary, they may impose a model method of collective bargaining prescribed by statutory instrument. It is deemed to be an agreed method of collective bargaining.

What one party fails to implement the agreement or post-agreement obligations, the CAC may take the necessary steps.

Recognition

Where the union achieves recognition under the process, it is entitled to negotiate with the employer about pay, working time terms and conditions.

The statutory recognition lasts for two years although this may change if there are changes in the bargaining unit. There are provisions in relation to derecognition.

In all collective-bargaining, the employer must request disclose to representatives of a trade union, information necessary for the process of collective-bargaining or which should be disclosed in accordance with good industrial relations purposes for the purpose of collecting bargaining. ACAS has published a code of practice in relation to such information. It should be broadly the information which is relevant to the formulation presentation or pursuance of the claim or agreement.

The information need not be disclosed if it would

• contravene legislation
• breach a duty of confidence to a third party
• relates to an individual who is not specifically consented would cause substantial injury to the employer’s business
• was obtained for the purpose of legal proceedings
• is contrary to national security.

The duty is limited to information concerning workers and the subject matter for which the union is recognised.

If the employer does not disclose the information, a complaint may be made by the union to CAC. This may be referred to ACAS for conciliation and settlement. If it does not consider a settlement likely or the parties do not negotiate, CAC may determine the matter and make a declaration which is binding.

Collective agreements

Collective agreements are agreements or arrangements made by or on behalf of trade unions and employers or employers’ associations covering specified matters including in particular

• terms and conditions of employment
• engagement and non-engagement
• termination and suspension of employment
• discipline
• membership or non-membership of the union
• machinery for negotiation consultation and recognition
• allocation of work and duties

It is presumed by statute that collective agreements are not legally enforceable unless the statutory formalities are complied with.

Recognised trade unions may reach collective agreements in relation to bargaining. Where this is not possible, the CAC may impose a collective agreement which provides for mandatory mechanisms of bargaining. There is deemed to be a collective agreement in this regard and for this purpose notwithstanding the mandatory terms.

The terms of a collective agreement may be incorporated into a contract of employment in accordance with general contract law. Generally, incorporation will only occur in relation to specific terms suitable for incorporation in an individual contract of employment. They may continue to apply notwithstanding that the collective agreement ceases to apply or has been breached, unless by the terms which otherwise provide.

Historically collective agreements were assumed to be binding in honour only. In order to be legally enforceable statute provides that they must be in writing and contain a provision that the parties intend them to be legally binding. It is possible that parts only of the agreement are deemed to have legal force.

Incorporation on Individal Contract

The principles of interpretation of contracts generally, apply to collective agreements. They are to be interpreted with reference to the meaning which the document would convey to a reasonable person having the requisite background knowledge, reasonably available to parties in the situation in which there were at the time of the contract.

The provisions may be incorporated into an individual employment contract. The matter of incorporation must be considered in the circumstances of the individual employment contract. Matters will be more readily incorporated if they are appropriate to the subject matter of an individual contract. Matters of common concern/collective matters are less likely to be incorporated.