All workers have the right to belong to a trade union. But what are trade unions, and do employers have to deal with them if they don’t want to?
What, exactly, is a trade union?
A trade union is a voluntary and democratic association of workers formed to protect and advance their interests. In return for a monthly membership subscription, unions will seek better pay and conditions for staff and represent their members within the workplace. A significant benefit for members is free legal advice and assistance if their union considers that they have a good claim to bring in an employment tribunal.
How popular are they?
Trade union membership in the British economy stands at 6.6m out of a workforce of nearly 28m, down from a peak of 13.2m in 1979. The distribution of membership is uneven: it is concentrated in the public sector (civil service, health, education and local government) and certain parts of the private sector like retail, distribution, social care and manufacturing. They also cover areas that one might not associate with trade union membership: the Professional Footballers Association is a trade union that seems to have been somewhat successful at securing generous pay for its members!
Are they regulated?
Yes, heavily, primarily by the Trade Union and Labour Relations (Consolidation) Act 1992, which sets out how they are organised, the rights of their officers and their members and limits what they can do. For instance, one of the ultimate steps a trade union can take is to call its members to take strike action. Although sometimes seen as something like a human right, it can be financially crippling for a firm, so the 1992 Act lays down some stringent legal steps a union must take before doing this (in the form of a secret postal ballot and a series of notices to the employer). For this reason, industrial action is often accompanied by complex legal arguments.
Can we stop employees from joining a union and organising in the workplace?
Trade union membership is a legal right, and taking action against someone for being a union member is a form of unlawful discrimination. What's more, firms can't offer inducements to staff to stay out of a trade union or give up their union-based rights. However, engaging in trade union activities is different: legal protection extends only to activities carried out at an appropriate time, like outside work-time or within work-time with an employer's agreement.
If a trade union wants to negotiate with us, do we have to?
Only if they are 'recognised' for collective bargaining purposes. Collective bargaining means the union and employer negotiating on behalf of a group of workers, typically over pay, but it could be any workplace matter. Public sector unions often collectively bargain for vast numbers of similar workers across whole sectors. Still, it is much more typical for a union to negotiate with employers singly in the private sector. Some employers will voluntarily recognise a trade union, seeing in the arrangement a way of managing the workforce's expectations more straightforwardly and involving a stakeholder whom the staff can trust as being 'on their side'. Sometimes employers inherit recognition arrangements under transfer regulations when they buy a business. Recognised unions also have a statutory consultative role, which employers can find convenient (see below).
We have a voluntary recognition agreement with a union, so do we have to keep it?
No, you can de-recognise this union simply by telling them. Often there will be a collective recognition agreement that sets out how negotiations are conducted and any workplace facilities a union is granted. However, a union cannot enforce a collective agreement unless, unusually, the agreement is expressed to be legally enforceable by the parties.
Does this mean that we can disregard terms agreed through collective bargaining?
No, contractual terms incorporated into employment contracts by a collective bargain are enforceable by the employee like all other terms. Therefore, they can be varied only by agreement (on changing contracts, see our Newsletter dated 14 May 2021).
Can a union force us to recognise them?
Only if they use the statutory recognition procedure in the 1992 Act, however, this is a complex process involving an application to a special statutory body, the Central Arbitration Committee. There is a minimum membership requirement, and then the union has to win a ballot if they haven't achieved 50 per cent membership. Often this is a hard-fought battle to win over the workforce as the stakes are high on both sides. If the employer has resisted the application and lost, it is then stuck with recognition: it can't simply de-recognise the union.
Does a recognised trade union have any statutory roles?
Yes. Whether or not the union got there by voluntary recognition or by the statutory process, recognised trade unions are the bodies you must consult in two key areas: mass redundancies (when making 20 or more redundant at a similar time) and when you are transferring a business. In these instances, employers can find the presence of the union useful as they then have an experienced, ready-made body with which to consult. Further, union members have a right to be accompanied by a trade union officer at workplace grievance and disciplinary hearings.
If you would like advice and assistance on any legal matter involving trade unions, we shall be pleased to help.
