By Sarah Veale, Institute of Employment Rights

12 June 2018

Legislation giving workers the right to have their union recognised by their employer exists but is weak and little used.

The Employment Relations Act 1999 (ERA) has a deep basic design flaw in that it only confers recognition of trade unions as legitimate representatives of workers after their employer has been given a number of opportunities to weaken their position.

Today there is a huge imbalance of power in the workplace. Only one in four workers has their working conditions set by collective bargaining, compared with three in four in the 1970s.

Workplaces are hostile environments for many working people. Workers need and deserve legal protections against having to accept inferior terms and conditions. They need strong trade unions to stand up to greedy and unprincipled employers.

Even where unions recruit more than half of the workers in a workplace and their members want their union to bargain on their behalf, there are many hurdles put in their way before they can get statutory recognition.

First, not only do they need majority support from the workforce, but where there is a recognition ballot the union has to secure a 40 per cent Yes vote before recognition can be granted. In other words, anyone who abstains in the ballot is counted as a vote against.

There is no right of access to the workplace for union officers until the recognition claim has been accepted by the Central Arbitration Committee (CAC), during which process the employer has had the opportunity to challenge the number of union members and object to the bargaining unit proposed by the union. Only at that point is the union allowed to distribute campaigning materials via a “qualified independent person.”

In theory unions that have more than 50 per cent membership in the bargaining unit will be granted recognition automatically. In practice, the employer can raise objections about the validity of union membership and other data and the CAC can decide to impose a ballot.

The Institute for Employment Rights (IER) and the TUC have been developing an entire new system of union representation, focusing on collective bargaining at sectoral level. This will have far greater penetration and coverage than the existing enterprise based system that comprises the ERA.

The new sectoral bargaining system needs to be supplemented by a new means of giving unions statutory recognition at enterprise level where that is still needed, for example in areas of the economy not covered by the sectoral bargaining arrangements.

The new system will regard unions as representative bodies regardless of the size of the company — the current system excludes enterprises employing fewer than 21 workers.

As long as the union, or unions, have 10 per cent support in the workplace they will be able to submit a claim for recognition.

The CAC and Acas will be given a duty to promote collective bargaining. Currently they are supposed to be “neutral.”

This presupposes an equality of status between employers and unions, whereas an unrecognised union that has no access to the workplace is likely to be in a weaker position than the employer.

The new system will be short and easy to understand. The current system is impenetrable in parts, even to experienced employment lawyers. It will be restrictive on employers in order to incentivise employers to recognise unions on a voluntary basis.

The new system will not allow a non-independent or sweetheart union to be used to block an application for recognition from an independent union.

The current system allows this, following last-minute representations by Rupert Murdoch during the passage of the Employment Relations Act through Parliament.

All unfair labour practices by the employer, for example, threatening redundancies, will be outlawed, with the burden of proof being on the employer to show that the practice complained of is not unfair.

There will be restrictions on derecognition, with awards lasting for a minimum of five years. Recognition will confer collective bargaining rights on a wide range of issues, including pay, hours, holidays, pensions, equal rights and training.

The new statutory recognition system will ensure that where unions have members they will be recognised by employers. Once a union can represent its members effectively in the workplace it will attract many more members. Once workers know that if they and their colleagues join a union it will be able to represent them, they will have a real incentive to join.

An incoming Labour government will introduce new legislation that genuinely encourages union recognition and sits alongside the new proposed sectoral level collective bargaining system.

It is not good enough simply to say that workers may join a trade union if they want to. Their union must be able to represent them and their interests in negotiations on their working conditions.

This article was originally published by the Morning Star

Sarah Veale of the Institute of Employment Rights will be discussing union recognition at a forthcoming IER event, Future of Labour Law: Progressive Rights Under a Progressive Government, on Thursday June 14 at Unite the Union, London from 9.30am-3pm. Read more and buy your tickets here.