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April 03 2019
By Sam Murray-Hinde

Sam is a Partner in the Employment Team at legal firm Howard Kennedy. More details are here


Working with trade unions: Making it work

There are many things operators must bear in mind when working with trade unions. Manage it right, and the relationship can be positive

The relationship between transport operators and trade unions has often been tricky, to say the least. Although strike activity generally has been declining in recent years, the transport sector accounts for nearly 70% of the working days lost to industrial disputes across the UK.  

Relationship between operators and unions can be constructive

If this were a marriage, it's fair to say that the counsellors would have been called in long ago. But it doesn't have to be that way. 

Although businesses should expect trade unions to represent their members' interests robustly, the relationship can be constructive if managed well.

Recognising a union

A trade union can make a request at any time that it should be recognised by the employer for collective bargaining purposes. 

The union must identify the employees whom it will be representing (often called the bargaining unit). At this point, an employer has three options: Grant the request, refuse the initial request but agree to negotiate about recognition terms or refuse the request.  

If the request is refused, the trade union can apply to the Central Arbitration Committee (CAC) for statutory recognition, so that if the CAC is satisfied that the trade union fulfils the relevant criteria, the employer will be forced to recognise the trade union for the purposes of negotiations about pay, benefits and other key terms. 

In some cases, the CAC will order a secret ballot at the employer's workplace to ascertain the level of support for the trade union.

Negotiating terms

It's worth taking a pragmatic stance on recognition requests. If the union already enjoys support among employees, refusing the request and going through the CAC procedure may serve only to alienate staff and generate negative media coverage. For example, a long-running recognition dispute between the Boots chain and its pharmacy staff has led to critical coverage in the national press. 

Trade unions have become increasingly savvy about using social media for campaigning purposes. The ballot process inevitably involves some disruption to the business and the business will need to be careful to comply with the detailed code of practice setting out how the ballot and campaign should be conducted. 

So long as recognising the trade union won't cut across any existing arrangement with unions and the union can show strong support in the workplace, it may be more sensible to focus on negotiating the terms of the recognition agreement (and trying to build in as much flexibility for the employer as possible). 

This doesn't stop the union going to the CAC if agreement can't be reached, but it may well start things off on a more positive footing and narrow the issues in dispute.

Keep it legal

Trade union representatives have quite extensive protection in employment law, including paid time off to carry out their duties, rights to be given relevant information and protection against being subjected to detriments or dismissed because of their trade union activities.  

Employers must be mindful of special category data

As these workers will be some of the most clued-up and motivated to pursue a claim if things turn sour, it's particularly important to comply with these requirements. 

Information about trade union membership and activities is treated as special category data under the GDPR and is subject to additional protections, so employers must be mindful of this and ensure that such data is processed lawfully and in accordance with the employer's privacy notice. 

Negotiating with the union

If the business is seeking to make changes which are covered by the recognition agreement – or the compulsory recognition terms – the business will need to prepare carefully for negotiations with the trade union, including:

  • Preparing a robust business case, setting out the reasons for the changes sought and the consequences of not making them e.g. potential redundancies
  • Ensuring that the necessary information is provided to workplace trade union representatives to enable them to carry out their roles
  • Considering what the business' opening position could be and what potential concessions could be offered in order to secure agreement. It's important to recognise that some give and take will be necessary in order to secure an agreement and to keep something up your sleeve; employees may lose confidence in the trade union if they do not appear to be successful in negotiating better terms and this may encourage unrest and dissatisfaction. 
  • Ensuring that the business understands the union's decision-making structure and processes and, importantly, has some understanding of the personalities and politics involved. The union may be concerned about setting precedents which will affect other negotiations, and internal politics may play a significant role too. The more intelligence a business can glean about these factors and how they may influence the negotiations, the better the chances of securing a favourable outcome
  • Ensuring that the business considers the position of non-union employees affected by the negotiations and communicates with them. While the outcome of collective bargaining and any ballots will bind them, they may be dissatisfied.

While employers should never expect trade unions to be pushovers, with careful planning and management the relationship can be constructive rather than destructively adversarial.



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