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Statutory Regulation and Employment RelationsThe Impact of Statutory Trade Union Recognition

Sian MooreUniversity of the West of England, UK

Sonia McKayLondon Metropolitan University, UK

with

Sarah VealeTrades Union Congress, UK

© Sian Moore, Sonia McKay with Sarah Veale 2013

All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission.

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in accordance with the Copyright, Designs and Patents Act 1988.

First published 2013 byPALGRAVE MACMILLAN

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ISBN 978-1-349-43832-7 ISBN 978-1-137-02380-3 (eBook)DOI 10.1057/9781137023803

Softcover reprint of the hardcover 1st edition 2013 978-1-137-02379-7

v

Contents

List of Tables viii

List of Figures ix

Acknowledgements x

List of Abbreviations xi

Introduction 1

1 Locating the 2000 Statutory Recognition Procedure 9The right to union recognition 10The history of statutory intervention 13The 1999 Act and statutory recognition 16The access and unfair practices provisions 20Comparing legislative systems 23Design or operation? – the flaws in the procedure 27

When a majority is not enough 27Restrictions on collective bargaining 31Legalism – an increasing focus within the cases 32Cases getting longer to complete 35

Keeping the judges out – the fear of judicial review 36Conclusion 41

2 A Legislative Prompt? The TUC Perspective on the 2000 Recognition Procedure 42Discussions between the TUC and the government 45The ‘Fairness at work’ White Paper 50

TUC response to the White Paper 52CBI reaction to the White Paper 58

Third round of discussions between the TUC and the government 59The Employment Relations Bill 62The outcome – has statutory recognition been worth the fight? 64

3 Third Time Lucky? – The Operation and Outcomes of the Statutory Recognition Procedure 71The level of applications 72

vi Contents

Applications accepted and rejected under the statutory procedure 75Establishing the bargaining unit 82The granting of automatic recognition 88Ballots 93

The ballot period 96The method of bargaining 97Derecognition 101The shadow effect? 106Conclusion 108

4 Challenging Recognition – The Legitimacy of Employer Behaviour 110Pre-empting recognition 111

Establishing alternative channels of representation 111Employer-defined representation 113Employer contestation within the statutory procedure 116

Testing support 116Stalling the process 117Exploiting technicalities 118Influencing CAC discretion 119Challenging likely support 120Contesting the bargaining unit 125Manipulating the bargaining unit 127Promoting a ballot 130Ballots 136

Conclusion 140

5 Organising for Recognition – Union Strategies 142Shaping union strategy – the influence of the statutory procedure 143Workplace mobilisation and union strategy – is there a convergence? 149

Recruitment and organising strategies and the limits of voluntarism 149Union strategy and workplace mobilisation 152Promoting collective identity 157Union organising 158The key role of activists 164

The limits of voluntarism? 170Conclusion 175

Contents vii

6 Be Careful What You Wish for – Unfair Practices and the Law 177The early experiences of unfair practices, 2000–2003 177Calls for changes to the law 182What the unfair practices law achieved 188Union busters, threats of closure and intimidation 192What is unfair about unfair practices? 202Complaints reaching the CAC – problems with the legislation 204Conclusion 206

7 The Fragmentation of Representation – ‘Contract-based Recognition’ 208The impossibility of national bargaining units? 209Privatisation and outsourcing – contract-based recognition and the contradictions of capitalism 214TUPE and the complexity of representation 227Temporary and agency workers 232Conclusion 237

The Future for Statutory Recognition 239

Notes 246

Bibliography 251

Index of cases 257

Index 262

viii

List of Tables

I.1 Case studies of recognition 53.1 Number of cases and recognition awards 723.2 Rejected applications, 2000–2011/12 773.3 Decisions on the bargaining unit 833.4 Determination of the bargaining unit 843.5 CAC ballots where union had 50%+ on application 913.6 Recognition ballots, 2000–2011/12 953.7 Relationship between union membership and

support in ballot 963.8 CAC determinations on methods 993.9 Requirements for majority membership 1065.1 Distribution of unions by membership, 2010 1435.2 Trade union use of the statutory procedure 1455.3 Significance of securing new recognition agreements

in 2000 and 2010 1505.4 The case studies 1535.5 Voluntary recognition, 2000–2010 1726.1 Recognition complaints where unfair practices

were alleged – pre-2004 1806.2 Formal complaints of unfair practices taken to the CAC 1906.3 Examples of employer practices post the 2004 reform 1946.4 Examples of union practices post the 2004 reform 195

ix

List of Figures

1.1 The statutory recognition process 243.1 Total applications, acceptances and recognitions –

June 2000–March 2012 733.2 Proportion of applications resulting in recognition,

June 2000–March 2012 753.3 Proportion of applications accepted by the CAC,

2000–2011/12 763.4 Number of applications, recognitions without a ballot and

ballots, 2000–2011/12 943.5 Proportion of successful statutory recognition ballots,

2000–2011/12 945.1 Recognition cases received by Acas, 1997–2012 1745.2 Recognition as a proportion of all Acas collective

disputes, 1998–2012 1747.1 Average size of the bargaining unit, 2000–2011/12 2097.2 Proportion of bargaining units with less than

200 workers, 2000–2011/12 2107.3 Applications by sector, 2000–2011/12 216

x

Acknowledgements

We are extremely grateful to all the union activists and officers who spared time to be interviewed for the book. Particular thanks are due to Simon Gouldstone, the Chief Executive of the Central Arbitration Committee, for his assistance and patience in answering queries and providing information and we are also grateful to those CAC panel members who talked to us.

Max Watson, Jawad Botmeh and Joe Thomas-Bohl provided research support and contributed to the findings, although any mistakes in the analysis and interpretation are our own.

We acknowledge the support of the Leverhulme Trust for the research, which was dependent upon a Leverhulme Fellowship.

Figure 1.1 is reproduced with permission of Routledge. It originally appeared as Figure 2.1: page 15 in Moore, S. (2004) ‘Union mobiliza-tion and employer counter-mobilization in the statutory recognition process’, in Kelly, J. and Willman, P. (eds) Union organisation and activity. London: Routledge.

xi

List of Abbreviations

ACAS Advisory, Conciliation and Arbitration ServiceAPEX Association of Professional, Executive, Clerical and

Computer Staff (now part of the GMB)AEEU Amalgamated Engineering and Electrical Union (now part

of Unite the Union)AUT Association of University Teachers (now UCU)BAJ British Association of JournalistsBALPA British Airline Pilots’ AssociationBECTU Broadcasting, Entertainment, Cinematograph and Theatre

UnionBFAWU Bakers, Food and Allied Workers UnionBIS The Department for Business Innovation and Skills BPA Boots Pharmacists’ Association CAC Central Arbitration CommitteeCATU Ceramic and Allied Trades Union (now part of Unity)CBI Confederation of British IndustryCO Certification OfficerCWU Communication Workers UnionDEFRA Department for Environment, Food and Rural AffairsDTI Department of Trade and Industry (subsequently BIS)EEF Engineering Employers FederationEHRC Equality and Human Rights CommissionERA99 Employment Relations Act 1999ERA2004 Employment Relations Act 2004ERS Electoral Reform ServicesEU European UnionGMB General Municipal and Boilermakers UnionGPMU Graphical, Paper and Media Union (now part of Unite the

Union)ICR Industrial Cases ReportsILO International Labour OrganizationIPA Independent Pilots AssociationIRA1971 Industrial Relations Act 1971IRLR Industrial Relations Law ReportsISTC Iron and Steel Trades Confederation (now part of

Community)

xii List of Abbreviations

JNB Joint Negotiating BodyKFAT National Union of Knitwear, Footwear and Apparel Trades

(now part of Community)MSF Manufacturing Science Finance (now part of Unite the

Union)NACODS National Association of Colliery Overmen, Deputies and

ShotfirersNASUWT National Association of Schoolmasters Union of Women

TeachersNATFHE National Association of Teachers in Further and Higher

Education (now part of UCU)NLRA National Labor Relations ActNLRB National Labor Relations BoardNUJ National Union of JournalistsNUM National Union of MineworkersNUMAST National Union of Marine, Aviation and Shipping Transport

Officers (now Nautilus)NUT National Union of TeachersPCS Public and Commercial Services UnionPDAU Pharmacists’ Defence Association UnionPOA Prison Officers AssociationQIP Qualified Independent PersonRMT National Union of Rail, Maritime and Transport WorkersSATA Supervisory, Administrative and Technical Association

(part of USDAW)TBG The Burke GroupTGWU Transport and General Workers Union (now part of Unite

the Union)TSSA Transport Salaried Staff AssociationTUC Trades Union CongressTULRCA Trade Union and Labour Relations (Consolidation) Act

1992TUPE Transfer of Undertakings (Protection of Employment)

Regulations UCATT Union of Construction, Allied Trades and TechniciansUCU University and College UnionUIU United and Independent UnionURTU United Road Transport UnionUSDAW Union of Shop, Distributive and Allied WorkersWIRS Workplace Industrial Relations Survey (now WERS)