Engaging positively with the process can bring long-term gains
It is often said that employers and unions get the relationship they deserve. But, for one side at least, the process of statutory recognition might leave them with a relationship they did not want at all.
The current climate, including the arrival of employment tribunal fees, gives trade unions every opportunity to recruit, in both the public and private sector. So, how should employers approach union recognition?
Bargaining unit
When a trade union wants to propose recognition to an employer, it must identify which unit of the workforce it wishes to represent ¬– this is the ‘bargaining unit’. Trade unions have considerable flexibility over this, but an employer needs to look at the proposed unit in terms of whether it is appropriate. For example, does the proposal reflect the way the business operates or does it cut across current organisational principles? There may be problems, for example, from a pay bargaining perspective where there is a common pay structure for all grades, but the union wishes to be recognised for only one site or function. Does the unit proposed reflect how locations operate and is it compatible with efficient management?
Support
It is fair to test the level of support for trade union recognition in the bargaining unit. If the union has shown 10 per cent support for recognition, and 50 per cent of the unit are its members, then it is probably time for an employer to negotiate recognition unless it wants to challenge the validity of the numbers. But, to be in a position to put forward a challenge, an employer needs to test the water with staff beforehand to find out whether the majority are likely to favour recognition or not.
If an employer believes there is not enough support for recognition among the unit’s workforce, then it can force a ballot. If the result shows the majority of votes are in favour, and those voting represent at least 40 per cent of those in the bargaining unit, then the employer has to recognise the trade union. Before pushing the matter, employers should consider whether a ballot would clear the air and promote good industrial relations. Alternatively, if members of other unions oppose recognition, or there is evidence of malpractice in getting people to join the union, a ballot might be essential. Forcing a ballot is not straightforward and should not be adopted lightly.
If there is a ballot, employers should not coerce or threaten employees who are voting, subject them to any detriment or apply undue influence in the voting process. The same goes for the union side.
Perspective
Employers should remember that nothing lasts forever. It is possible to derecognise a trade union after three years if the employer can show there is staff support for it. Equally, if a union tried and failed to get recognition, it can have another go in three years' time. And employers should not assume that union recognition is a bad thing – there may be long term gains in accepting it, so employers should engage with the process.
They should also try to understand what is fuelling staff concerns, if a trade union with no previous involvement in the organisation is now saying it hits the limited level of support needed. Has the company been doing things differently? Can it engage with staff to get a better understanding? Could there be an alternative route for the staff to get what they want, but they don't know what it is or how to find it?
If a trade union really has support and fits the legislative requirements, it may be best to look to reach an agreement rather than being resistant and creating future employee relation issues. And not all unions are the same – some staff may already be members of another union which might be a better fit for the organisation than the one looking for recognition. Remember – if an organisation has a recognised union, another one cannot supplant it.
Martin Chitty is an employment partner at Wragge Lawrence Graham & Co
For more employment law articles, visit HR-inform
