Annex 1 to chapter 1
annex 1
Statutory trade union recognition
Joint statement by TUC and CBI
Contents
1 The CBI and TUC are committed to achieving further improvements to Britain=s employee relations. We believe that harmonious relations between employers and employees are best built on a relationship of mutual trust and respect. We welcome the Government=s commitment to promoting partnership at work.
2 We have been discussing the Government=s proposal for statutory trade union recognition where there is majority support among the relevant workforce. These discussions have been aimed at identifying areas of agreement and understanding those of disagreement. Our objective is to improve industrial relations and to avoid unnecessary conflict. Employers and trade unions both have an interest in ensuring that any new legislation in this area is clear and workable. However, our starting positions differ. The TUC welcomes the Government=s manifesto commitment on this issue and has submitted its views in Your Voice At Work. The CBI does not agree in principle with statutory trade union recognition, and remains unconvinced that collective bargaining is practicable when one partner is unwilling.
Resolving disputes through conciliation
3 The TUC and the CBI both wish agreements on trade union recognition to be voluntary wherever possible. We are agreed that where the parties themselves cannot reach agreement, there should be a period for voluntary conciliation under the auspices of ACAS to explore the scope for agreement. ACAS currently deals with recognition disputes on a voluntary basis and we believe their valuable expertise should be retained under any new legislation. In 1996, ACAS dealt with 112 disputes over union recognition or de-recognition and in 57 per cent of those cases some form of recognition was agreed. Given the existence of a statutory fall-back, it is likely that the success of voluntary conciliation will improve.
4 We believe that the ACAS role in conciliation will ensure that relatively few cases go through all the stages of the statutory recognition procedure. However, where ACAS is not successful, alternative infrastructure is required to take the matter forward. We are both clear that different arrangements are needed from those in the 1975 legislation on union recognition. The CBI has not made a specific proposal but is committed to the introduction of an effective infrastructure. The TUC propose that a new Representation Agency should be set up to deal with union claims for recognition. For the remainder of this note, the infrastructure described shall be referred to as >the Agency=. This should have powers to refer a claim to ACAS in the first instance for voluntary conciliation. There would then be a period for conciliation, which could be extended by agreement, after which the matter would be referred back to the Agency for resolution if voluntary arrangements could not be agreed.
Making applications for recognition
5 Both the CBI and the TUC accept that there will be circumstances where it would not be appropriate for the Agency to proceed with applications for union recognition. We agree that the Agency should have powers not to proceed with claims under the statutory procedure which involve inter-union disputes, where the union had unreasonably refused to take part in ACAS conciliation, or where it appeared to be frivolous. The legislation should permit the possibility of joint union applications, while recognising the trend towards single table bargaining.
6 The CBI believes that a union claim for recognition should be accompanied by a demonstration of 30 per cent support from the employees to whom the claim relates. The TUC does not support this idea for a number of reasons, not least that the issue of support is inextricably tied up with the definition of the bargaining unit.
7 Both the TUC and the CBI agree that a union should not be permitted to re- submit a comparable claim for recognition to the Agency until at least three years after a previous application had failed. In the TUC=s view, this would not affect their point about majority membership (para 14).
8 There is agreement that the procedure should be open to all independent staff bodies. The TUC believes these should have a certificate of independence. The CBI believes that the procedure should be open to any genuinely independent staff body. It is also agreed that the existence of some other non-independent form of employee representation should not prevent a union seeking recognition under the statutory scheme. The CBI and TUC see no reason why non-union channels of representation cannot exist alongside trade union collective bargaining.
9 The CBI believes that a recognition procedure would have a disproportionate impact on small businesses and that a minimum threshold should apply. The TUC cannot support such a proposal as it would exclude significant and increasing numbers of employees from statutory rights to union recognition.
10 Time limits for each stage of the procedure for statutory recognition have been suggested by the TUC - a point which the CBI recognises.
11 TUC and CBI agree that where there was a dispute between two or more unions about a recognition claim, the Agency should have the power not to proceed with an application until the matter had been resolved. This would encourage unions to resolve their differences before submitting a claim to the Agency. There is agreement that it is for the TUC, rather than the legislation, to settle disputes involving its affiliates by recourse to its own established rules and procedures. Where a dispute involved a non-affiliate, the Agency could decline to deal with the application until the dispute had been resolved.
12 Both the CBI and the TUC agree that the determination of the bargaining unit is important for orderly collective bargaining. The CBI believes that bargaining units should be defined, as far as possible, according to existing business structures and that it should be for the employer to make a proposal based on the above.
13 The TUC believe a range of factors, including business structures, need to be taken into account. Where there is a dispute about the bargaining unit, the TUC believes that the Agency should make a ruling on what is most appropriate, each case being decided on its merits and with the Agency having discretion to act according to particular circumstances. The factors to be taken into account would include: the extent of shared interests and similar work; group awareness; the wishes of the workforce concerned; the organisation and location of the work; the relative financial autonomy of the group; and the need to avoid disrupting existing arrangements for collective bargaining. The CBI acknowledges the significance of these factors, but believes that the key consideration is the nature of the business. Both the TUC and CBI recognise that whereas this procedure does not relate to national industrial agreements, the framework is intended to be compatible with such agreements.
Assessing support for collective bargaining
14 Once the bargaining unit has been determined, the Agency would then have to assess the level of support for collective bargaining. The CBI believes there should in all cases be a requirement for a ballot and a majority of all relevant employees achieved before recognition is granted. The TUC also believes that the Agency should organise a ballot, except where a union has majority membership in the bargaining unit, in which case the TUC believes that the award of recognition rights should be automatic. Otherwise the test, in the TUC view, would be the majority of those voting.
15 Where a ballot is held, both the TUC and the CBI agree that the balloting constituency would be all workers in the bargaining unit, whether or not they were members of the union. We also believe the objective should be to ensure that ballots are fair and even-handed. The provision of some element of independent scrutiny would be important in ensuring the credibility of the process.
16 On de-recognition, the CBI think an employer should be able to apply for a ballot where it felt that support for previous statutory recognition had declined or in other appropriate circumstances. An employer would be required to demonstrate support from 30 per cent of the employees in the bargaining unit before a ballot could be held. Both the TUC and the CBI stress the need for ACAS conciliation in these instances, and the TUC stress the need for the status quo to operate while there is an application to change recognition arrangements. The CBI and the TUC agree that the three-year rule for re-balloting would apply to employers as well as unions.
The scope and application of the recognition award
17 The Labour Party document Building Prosperity - Flexibility, Efficiency and Fairness at Work suggested that a union that had obtained recognition rights under the new legislation would be entitled to bargain on the issues of pay, hours, holidays and training. The CBI believes that a statutory award should be restricted to pay, hours and holidays; training is not deemed a suitable collective bargaining issue, as it must relate specifically both to individual need and business practice. The TUC attaches importance to raising skill levels, as has been shown through the Bargaining For Skills initiative. They took the view that the list of topics was rather simplistic, though there might be a case for specifying some minimum list that must be subject to collective bargaining. They also suggested an alternative approach would be for the Agency to specify which matters the particular award covered, in which event there might need to be a revision of the statutory definition of recognition and collective bargaining.
18 Where there has been a recognition award, then there is an expectation that bargaining will take place and both the CBI and the TUC agree that there will need to be remedies available where an award has not been complied with. One approach would be for the Agency to develop a model procedure in order to facilitate effective bargaining. The TUC has no wish to see punitive sanctions for non-compliance, but believes there must be an effective remedy for workers who are denied the right to have a union negotiate on their behalf, perhaps involving the CAC.
19 There is also agreement that those involved should be free to engage in their functions in the statutory procedure without detriment.
20 Both the TUC and the CBI have considered the relationship of any new procedure with agreements with individual employees. The CBI is keen to protect the position of such individual agreements given their increasing prominence in areas such as remuneration, and believes that indivduals should have the right to agree their own terms and conditions. The TUC believes that individuals are best protected by collective agreements, giving them higher quality to their contracts of employment.
21 The TUC believes this issue raises fundamental questions about discrimination on the grounds of union membership and the ability of employers to offer financial incentives to employees to reject collective bargaining. In order to fulfil the Labour PartyÕs commitment to provide an entitlement not to be discriminated on the grounds of union membership, the TUC believes that an amendment to current law will be required.
22 There is no doubt that the new procedure would radically change the context in which recognition claims are prosecuted. The TUC has argued that the legal position should remain unaffected; however, it recognised that an effective procedure for dealing with union claims for recognition and ensuring awards are enforced will by itself avoid disputes by providing an alternative way of resolving the matter. CBI believes that it would be inappropriate for industrial action to take place with statutory procedures in place, and that the law should reflect this.
23 The CBI and TUC recognise that whereas there are some points of agreement, equally there are areas of disagreement. Nevertheless, we believe that the process of identifying these issues has been a step forward - and should be of value to the Government in its approach to the White Paper.
December 1997
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