Contact: Louise Merrell; Contact: Clarkslegal LLP (Reading, England)
An independent trade union seeking to be recognised by an employer may apply for statutory recognition from the Central Arbitration Committee (CAC).
However, a trade union is prevented from seeking recognition where there is already a recognition agreement in place which entitles another trade union to ‘collectively bargain’ on behalf of any workers in the bargaining unit.
With this in mind, an employer may prevent a union from obtaining statutory recognition if it has voluntarily recognised another union ( sometimes known as a “sweetheart union”) for collective bargaining purposes provided that agreement covers at least one of the workers in the bargaining unit. There has been much debate on this topic, particularly around the fairness of agreements which give the sweetheart union only limited collective bargaining rights.
‘Collective bargaining’ is defined in section 178(1) TULRCA and includes, for example, negotiations relating to facilities for officials of trade unions. Therefore an independent trade union seeking statutory recognition covering a wide range of issues such as negotiations on pay, hours, holiday and working conditions (and who may have the support of the bargaining unit) could be denied recognition by virtue of an existing agreement with a sweetheart union which only allows for negotiations over facilities for union officials.
The CAC last year decided that the relevant UK legislation regarding statutory recognition is in breach of Article 11 of the European Convention of Human Rights (which recognises the right of freedom of association with others, including the right to form and to join trade unions). However it held that pursuant to the Human Rights Act 1998, the legislation must be read and given effect in a way which is compatible with convention rights (so far as is possible to do so) and that this meant the CAC could read words into it to make it a requirement that any existing collective bargaining agreement must be in respect of pay, hours and holiday.
However the High Court has now upheld a judicial review of the CAC’s decision. It agreed that the legislation is in breach of Article 11 as it believes that collective bargaining is meaningless if it does not engage in some meaningful way with the terms and conditions of employment but it said that reading such words into it was against the express will of parliament and that the interpretative powers in the Human Rights Act cannot be used to change the substance of a provision completely. It said that the CAC should have given effect to paragraph 35 in accordance with its terms even if that meant that there was a violation of Article 11.
The High Court has withheld its final order to allow the union some time to consider whether it wishes to apply for a declaration that domestic law is incompatible with European law in this respect. The application must be made by mid February. If a declaration of incompatibility is made, Government will need to consider amendments to the legislation to bring it in line with Article 11.
