Guide to Code 1 - The Recognition of Trade Unions

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Guide to the Codes of Practice - Employment Relations (Jersey) Law, 2007

The Codes of Practice that support the law were published on 21st December 2007 and came into effect on 15th February 2008. To assist our clients we have provided guides to the codes.

This guide explains the main provisions of Code 1 – The Recognition of Trade Unions and, in the appendices, provides model procedures or arrangements for access prior to a ballot; a ballot procedure; a recognition agreement.

The Social Security Minister has approved three Codes of Practice that are admissible in evidence and may be taken into account by the Employment Tribunal or a court in determining any question arising in respect of the Employment Relations (Jersey) Law 2007.

Code 1 – The Recognition of Trade Unions – purpose: to facilitate the resolution of disputes in relation to union recognition.

Recognition: To obtain legal status a trade union must be registered in accordance with the law. A union can be registered, but this does not necessarily mean it is recognised by an employer. A union is recognised where it is agreed that the employer and union will engage in collective bargaining for any purposes.

Employers and employees may agree whatever arrangements for recognising trade unions for collective bargaining that they find suitable. JACS is willing and able to assist organisations with voluntary recognition arrangements. If it does not prove possible to reach voluntary agreement, then a dispute as to whether the Code of Practice is being observed may be referred to the Jersey Employment Tribunal (the Tribunal) providing:

· The union fulfils criteria for its recognition as set out in the code, and

· The employer has employed an average of at least 21 employees in the 13 weeks immediately preceding the day on which the dispute arises.

The Tribunal:

· May declare whether a union should be recognised by the employer for the purposes of collective bargaining in relation to pay, hours of work or holidays only.

· May specify a method by which collective bargaining should be carried out, which then becomes legally enforceable.

Both JACS and the Tribunal are anxious to encourage voluntary settlement of statutory recognition wherever possible. Parties are therefore encouraged to seek JACS involvement whenever this could be helpful, at any stage of the application process.

Stage 1: Initial application

If informal discussions between the union and the employer do not succeed, the union may submit a formal request to the employer. In order for the application to be valid, it must:

· Be in writing and dated.

· Identify the union (or unions) making the request and the ’bargaining unit’ (the group of employees) to which it relates.

· Be authorised by a "trade union official" who is an officer of the union or of a branch or section of the union, or a representative elected or appointed in accordance with the rules of the union to represent some or all of its members.

· Specify the issues in relation to which collective bargaining is being sought.

· Give details of the number of employees in the proposed bargaining unit whom the union claims to be members of the union.

· Include a copy of the union’s certificate of registration (where applicable).

Stage 2: Negotiation

The employer has twenty working days in which to respond. If the employer rejects the specific request made, but expresses a willingness to negotiate over either the extent of recognition granted or the definition of the bargaining unit, JACS is available to assist the parties. JACS will expect to establish a clear timetable for negotiations at the very outset.

Stage 3: Application to the Tribunal

If there is a failure to agree then, as a last resort, application can be made to the Tribunal to determine when union recognition should be granted. Union recognition depends upon the following key criteria:

The bargaining unit - An appropriate bargaining unit has been identified or agreed

The wishes of the employees – The majority of employees within that bargaining unit want the union to be recognised by the employer.

A. The bargaining unit

If the union and the employer have already agreed on a bargaining unit, the application proceeds to stage B. Where no agreement has been reached, both sides may agree to seek an order from the Tribunal as to whether the union’s proposed bargaining unit is compatible with effective management. For the purposes of such an application (and only for such purposes) the union shall be taken to fulfil the criteria for recognition if:

· The union’s proposed bargaining unit is compatible with the effective management of the employer’s business, and

· There are no employees within the bargaining unit in respect of whom the employer already recognises one or more trade unions for the purposes of collective bargaining.

Where both sides do not agree to seek an order from the Tribunal then the union and employer shall seek to determine whether the majority of the employees within the union’s proposed bargaining unit support recognition via a "recognition ballot". If that is established, then in any reference subsequently brought before the Tribunal it shall remain open to the employer to argue that the union should not be recognised because the bargaining unit is not appropriate.

JACS can often help the parties agree a bargaining unit. Even where the employer does not accept the principle of recognition, it may be possible to agree what the appropriate bargaining unit would be if recognition were to be granted.

The question of whether a given bargaining unit is compatible with effective management depends on a range of factors. These include:

· the description of employees covered by the bargaining unit

· whether the employer is structured in such a way as to allow the employees covered by the bargaining unit to be treated as a distinct group

· the desirability of avoiding small, fragmented bargaining units within an undertaking.

The fact that the bargaining unit proposed by the union is not optimal from the employer’s point of view does not prevent it from being compatible with effective management.

B. The wishes of the employees

Once the bargaining unit is agreed, then unless the employer and union can agree recognition, the level of support from the employees must be established.

An employer should only be required to recognise a trade union where it can be clearly demonstrated that the majority of the employees within the bargaining unit want the union to be recognised by the employer.

Recognition based on percentage of union membership.

If the union can demonstrate that more than 50% of the employees in the bargaining unit are members of the union then the union will have met this criterion and the parties should proceed to negotiate a recognition agreement (see below).

In showing levels of union membership, a union is not required to disclose the individual names of members to the employer. Where the union’s claimed membership level is not accepted by the employer, then JACS can be asked by the union to verify the level of membership based on information given in confidence by the union. If JACS is satisfied that the union has demonstrated the appropriate level of membership, then the union will be taken to have done so for all purposes.

Recognition Ballots

If union membership is below 50%, then a ballot should be held to determine whether the union should be recognised.

If a ballot is needed, the union should write to the employer asking that a ballot be organised; the employer should agree to the request and work with the union to ensure that a fair ballot is held.

Campaigning by either party in the run up to a recognition ballot is permitted providing that both the union and the employer respect the right of employees to vote as they wish. Neither side should threaten employees with any penalty for failing to vote in a particular way, or give any personal incentive for doing so, nor should any employee be coerced into disclosing how they have voted, or intend to vote.

Access prior to the Ballot

To avoid disputes, a formal access agreement governing how the union will be permitted access to the workforce for the duration of the balloting process should be agreed. When the union has made a written request for a ballot, then:

· the employer should respond within 10 working days by inviting the union to a meeting to discuss arrangements for the ballot and, in particular, the issue of access.

· This meeting should usually take place within a further 10 working days.

The access agreement should reflect local circumstances and cover:

· who will have access to the employees in the bargaining unit

· where, when, for how long access will be granted

· in what form will this access is to be provided.

Each side must bear its own costs in relation to the production and distribution of written materials.

JACS has developed a model access agreement based on the minimum principles set out in the Code of Practice.

Conduct of a Recognition Ballot

The union and employer should agree on the date of the ballot, which should normally take place within 15 working days of the end of the access agreement or, where no agreement is reached, within 15 working days after the breakdown of talks aimed at agreeing access.

Voting eligibility

The ballot will only be valid if all employees employed in the bargaining unit are entitled to vote and given an appropriate opportunity to do so in secret.

In most cases a ballot should take place at the workplace. In exceptional circumstances, the union and employer may agree that the ballot should take place by post, or by a combination of the two.

JACS has developed model arrangements for the conduct of a ballot based on the minimum principles set out in the Code of Practice.

Ballot result.

If:

· more than 50% of those entitled to vote have done so, and

· more than 50% of those voting in the ballot vote in favour of recognition

then the union should be granted recognition.

The Recognition Agreement

If the result of the process is that the union should be recognised for a particular bargaining unit then the parties will need to reach a framework agreement covering the method by which collective bargaining will be conducted and the scope of any agreement reached.

JACS has developed a model "Recognition Agreement" based on the minimum principles set out in the Code of Practice.

De-recognition

If the trade union no longer fulfils the criteria for recognition, the employer may feel it appropriate to de-recognise the union. The onus is on the employer to show the reasons why it believes that the union should be derecognised. However, a union that has fulfilled the criteria for recognition shall not be de-recognised for a period of at least three years following the initial granting of recognition.

De-recognition may be considered appropriate:

· because of changes in the levels of union membership, or

· because organisational changes mean that the composition of the original bargaining unit has changed significantly, or

· because the bargaining unit is no longer compatible with the effective management of the undertaking.

If an employer wishes to derecognise a union, the employer should notify the union of this intention. Should the union contest the employer’s claim then the union may submit a request for continued recognition following the same procedure and timescales as described above for the initial request for recognition.

Until this procedure has been completed, the employer shall continue to recognise the union and the union shall continue to be regarded as fulfilling the criteria for recognition.

Failure to meet recognition criteria

A union which has applied for recognition but which has failed to meet the necessary criteria shall not be regarded as fulfilling those criteria until a period of at least one year has elapsed since the initial application was made to the employer.

Joint Recognition

It will be appropriate, in certain cases, for an employer to recognise more than one union in relation to the same bargaining unit. Where this is the case, it is the responsibility of the unions concerned to act jointly in relation to collective bargaining matters. Where they choose to act jointly then references in the Code to ’the union’ will be taken to include references to ’the unions’ and references to the union fulfilling or not fulfilling the criteria for recognition will be taken to be references to each of the unions fulfilling or not fulfilling those criteria, although the membership of the unions may be combined for the purposes of recognition.

References to the Jersey Employment Tribunal

If there is a dispute about whether the code of practice is being followed, the parties may agree to seek an appropriate order from the Tribunal. Such a course of action should normally be seen as a last resort to be undertaken only when attempts to reach an agreement on the issue in question have failed.

If both sides do not agree to the reference, then one side may seek a declaration from the Tribunal. If the result is that the Tribunal declares that the employer should recognise the union, then recognition shall be granted. There should be no attempt by the employer to derecognise the union for at least three years.

If however the Tribunal declares that the union is not entitled to recognition then the union will not be taken as fulfilling the criteria for recognition for at least one year following the declaration.

Where a trade union does not meet the criteria set out in the code, or the employer does not employ 21 or more employees, the Tribunal does not have jurisdiction to make declarations in regard to disputes about union recognition.

Model procedures for: an access agreement prior to a ballot; the ballot procedure; a recognition agreement are appended.

JACS/February 2008

Appendix 1: Access arrangements leading up to a recognition ballot

Appendix 2: Ballot procedure (Trade Union recognition)

Appendix 3: Recognition agreement

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