Employment Update: Collective bargaining

17 March 2008

An ‘appropriate bargaining unit’ may be spread over many sites.

Since 2005, trade unions have had a statutory right to request recognition from an employer to be entitled to conduct collective bargaining on behalf of a group of workers. The procedure for applying for recognition is set out in Schedule A1 to TULRCA 1992. Any disputes on that procedure that may arise between the employer and the union applying for recognition are referred, in the first instance, to the Central Arbitration Committee (CAC). There is a right of appeal from the CAC to the High Court, which recently had to consider the interesting case of R (ex p Cable & Wireless) v CAC and Communication Workers Union.

The question in issue was - what is an 'appropriate bargaining unit’ for the purposes of collective bargaining recognition under the statutory provisions in Sch A1?

The union had applied for 'all UK field service employees except managers' to be recognised as a bargaining unit. These amounted to 370 people, 7% of the total workforce, some engineers some not, and spread over 20 sites. They did however form a management unit, being one of 29 different 'directorates' within the company, each having their own management team.

Para 19B of Sch A1 says that one of the factors to be taken into account when considering what is an appropriate bargaining unit is 'the desirability of avoiding small fragmented bargaining units'.

Nevertheless the CAC had decided that this was an appropriate unit and the High Court agrees. The unit had a stability and occupational identity and so would not divide the work force up into groups that competed with each other. It was an appropriate bargaining unit.

Points to note:

  • It is fair to say that, since 2005, it seems that employers and trade unions are, in the main, resolving issues of union recognition between themselves. There have not been many cases referred to the CAC. This makes it even more interesting when we do get a CAC decision. It helps us to advise clients as to what the outcome might be if they needed to refer a question for CAC adjudication. The High Court confirms that once the union has suggested a bargaining unit that is compatible with effective management, it is not the CAC’s job to go further and decide whether what was proposed was the most effective bargaining unit. Employers should not leave it to the CAC to do their negotiating for them but should concentrate their efforts on reaching agreement with the union so that an application to the CAC becomes unnecessary.

  • It is interesting to note that the CAC accepts that scattered geographical location may now be unimportant when looking at work 'units'. Also that, when considering whether a group of workers might be ‘fragmented’ as a bargaining unit, the CAC will pay heed to the fact that that group has been put together as a management unit.

  • Also worth noting is that the High Court says (yet again) that it is very unlikely to overturn what has been decided by the CAC. When faced with a union request, employers should first try to negotiate a solution and, if that fails, ensure that they present their case as well as possible to the CAC. The High Court will not consider an appeal unless the CAC has ‘acted irrationally’ or made an error of law.