Trade unions can only negotiate with employers on the employees' behalf (known as collective bargaining) if the trade union is recognised by the employer. In order to seek such recognition, the trade union must first fulfil the following criteria:
- the organisation must employ at least 21 people; and
- the union must have at least 10% membership and the majority of the workers in the bargaining unit (those employees who will be represented by the union) are likely to favour recognition of the union.
Often an independent trade union and an employer will negotiate amongst themselves for the trade union to become recognised. If it is agreed at this stage it is known as voluntary recognition. This is the quickest and easiest way to achieve recognition but will require an agreement to be reached between the union and the employer.
If the union is unable to achieve voluntary recognition they may decide to follow the statutory procedure available under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA) in order to seek statutory recognition.
The union must first make a formal request to the employer for recognition, the employer then has 10 working days in which to respond; this is known as the "first period". In the event that the employer states during this period that they are willing to negotiate, there will be a "second period" lasting 20 working days, during which the parties can negotiate with the assistance of the Central Arbitration Committee (CAC). This gives the parties a second chance to reach an agreement voluntarily. If the parties can agree the bargaining unit and recognition of the union during this time, then the statutory procedure need not continue.
However, if the employer rejects the formal request, then the trade union may make an application for recognition to CAC.
The CAC will then decide whether to accept the application based on whether:
- the union had made a valid formal request for recognition to the employer initially;
- the application accurately shows the position reached between the union and employer;
- the application is made using the correct CAC form;
- the union provides the employer with notice of the application; and
- the CAC must be satisfied that at least 10% of the workers in the bargaining unit are members of the union and that a majority of members support the union conducting collective bargaining on their behalf.
If the CAC accepts the union's application for recognition, then no further application can be accepted from that union in relation to the same bargaining unit for another 3 years.
Trade unions should ensure they try to negotiate on a voluntary basis with the employer to avoid making unnecessary applications. Before considering embarking on the statutory procedure, trade unions should check that the bargaining unit has not made an application for recognition within the previous 3 years.