Nature of Trade Unions
The law on trade unions was consolidated in 1992 and has been amended a number of occasions since then.
A trade union is an organisation (whether temporary or permanent) which consists wholly or mainly of workers of one or more descriptions and whose principal purposes include the regulation of relations between workers of that description or those descriptions and employers or employers’ associations.
This covers a federated group of trade unions provided that they consist mainly of unions or representatives and their purposes are in the above categories.
For the above purposes, a worker is defined in the same broad manner as under most employment protection legislation. It includes primarily employees but also certain other persons under a contract for services personally for another who is not a professional client. It includes officers of a government department,
Trade unions have a quasi-legal identity. They can enter contracts, sue and be sued. They can be prosecuted. A trade union is not unlawful simply because its purposes are in restraint of trade. The assets of a trade union are vested in its trustees.
Certain rights depend on the trade union being independent. A trade union is independent if it is not under the control of an employer or subject to interference by an employer (by means of financial or other support means or other effective control. Accordingly, many staff association are not traded unions.
Certain rights accrue only to a trade union which is independent such as those relating to
- protection from dismissal on the grounds of trade union activity and membership
- negotiating collective agreements modifying working time
- rights to information in relation to collective bargaining
- rights to consultation in health and safety
Members
A trade union must maintain a register of members which must be kept up-to-date. It must maintain and keep proper accounting records and accounting systems. It must return an annual return with the Certification Officer in relation to its financial affairs. It must furnish statements to its members annually.
The legislation on trade union political funds has been subject to amendments with changes of government over many years. Historically, many trade unions were affiliated with the Labour Party.
The legislation sets out political objectives to which restrictions apply. This includes contributions to a political party. Such expenditure may be undertaken only out of a political fund. Political funds are subject to regulation. The trade union must pass a political resolution approving the political objectives in order to establish a physical fun. Members may object and be exempted from contributing to the fund.
Persons have a right not be excluded from membership other than on limited grounds. They include not qualifying for membership and misconduct
Trade union membership terms are determined by the relevant union rulebook. There are statutory modifications.
The may be disciplinary sanctions applicable to breach of trade union rules. However certain activities may not be the subject of discipline including failure to support or participate in strike activity.
Trade unions are subject to the duties in the Equality Act 2010 not to discriminate against members.
Recognition of Trade Unions
A union may request recognition. If the employer agrees to recognise it and is willing to negotiate the union may be thereby recognised. If the employer refuses to recognise the union, the CAC may consider the matter. It may consider the support for recognition in the employment and may direct a recognition ballot.
There is no obligation to recognise a Trade Union. Recognition has the advantage of providing contact point in negotiating terms, conditions and other matters with employees.
A trade Union is recognised when an employer agrees to negotiate with it in relation to pay and conditions for particular workers. Trade unions will generally use voluntary means to gain recognition.
ACAS is an independent public body which provides impartial information and advise on labour and trade union issues.
A trade union can also apply for statutory recognition where the employer and associated employers employ 21 people or more. The union may apply to the Central Arbitration Committee (CAC) which is an independent State body. Each panel contains one employer and one workforce representative. Independent trade unions only can claim recognition. This is a trade union which is not controlled by the employer and is financially independent.
The process for statutory recognition of a trade union is as follows. A request is made to the employer who has 10 days to respond. If application is accepted the employer and union have 20 days (which may be extended) to agree particulars. If agreement cannot be achieved, the matter may be referred to the CAC. The CAC may decide whether to make a declaration of recognition or hold a ballot of workers in the relevant units. They will make a recognition declaration if a majority of workers are members of the union. Otherwise it will call a ballot.
If the ballot is held, the CAC will appoint a qualified independent person to conduct it. The union needs the support of a majority of those voting in order to be recognised and at least 40% of those entitled to vote. If an application fails, the union must wait 3 years before making a new application.
Where the CAC declare that unions must be recognised, certain consequences follow. The unions are entitled to conduct collective bargaining on pay and certain employment conditions. The employer must negotiate on the means for carrying out collective bargaining. Either party can apply to CAC for assistance if no agreement is reached. CAC is entitled to lay down legally binding terms if no agreement is reached. These terms can be modified voluntarily by employer and Trade Union. The term of the agreement are legally binding on employer and employee and can be enforced as breach of contract
Once a trade union is recognised the recognition agreement may be terminated at any time by both parties. The employer may not terminate for a period of 3 years. If difficulties arise it is possible to apply to CAC for assistance by way of conciliation.
There are procedures for derecognition of trade unions. These apply if the employer has less that 21 workers or here is no longer enough support. Application can be made to the CAC. If the number of employees falls below 21 derecognition will be more or less automatic. In circumstances based on the union not having enough support, certain procedures apply. A ballot must generally be held.
Trade Union Rights
Employees have the right not to be penalised on the grounds of trade union membership or non-membership. Employers may not refuse to employ an individual because he/she is not a trade union member. They may not refuse to employ a member because he/she does not belong to a particular trade union. Employees may not be dismissed or penalised because he/she belongs to a trade union or refuses to join one. An employer may not campaign unfairly against a workforce decision to recognise a trade union (e.g. by offering more inducements or sanctions).
Members of a recognised trade union have right to reasonable time off to take part in union activity and training. Industrial action does not count as union “activity”.
A trade union official may be a full time official or an employee who has been appointed to represent its members in the workplace. Employers must allow a trade union representative reasonable time off to carry out their duties. These include meetings with the employer to discuss conditions, accompanying employees to disciplinary and grievance hearings and for training for union related duties.
Union Learning Representatives (ULR) have the same status as shop stewards and must be allowed time off to discharge their duties. ULR are representatives of the union that provide advice to union members about training, educational and development needs. They are elected in accordance with union rules. They have right to reasonable paid time off to undertake relevant training regarding the needs of union members and to provide information and advice.
Collective bargaining agreements between employers and trade unions may set out the procedures and arrangements for bargaining including who the relevant parties are, consultation, disclosures, information, conduct and negotiations, arrangements for deadlock, deduction of union contributions and redundancies. Collective bargaining agreements may cover pay arrangements and other terms of employment. Collective bargaining agreements are not usually legally binding but parts can be incorporated in individuals’ contracts of employments and be thereby enforceable.
Apart from the above there are legal requirements for employee’s representatives in various areas including heath and safety representatives, pension trustees, members of work council in larger companies and representatives in the cases of redundancies and transfers.
