A historical push for statutory recognition

In unexpected news last week, a third sector care provider, Cornerstone, put an end to a voluntary recognition agreement with Unison after 24 years, de-recognising them for collective bargaining purposes. This happened just days before scheduled pay discussions were due to begin with Acas.

In response to the de-recognition, Unison have taken an unprecedented step in announcing their intention to apply for statutory recognition through the Central Arbitration Committee (CAC). If a union is unable to agree voluntary recognition then they can apply to the CAC for statutory recognition which, if granted, compels the employer to recognise the union for collective bargaining purposes.

A union can apply for statutory recognition if:

  • At least 10% of the workers in the bargaining unit are members of the union; and
  • The majority of workers in the bargaining unit are likely to favour recognition of the union.

If all the requirements of the application process are complied with, the CAC will review the application and, if accepted, will firstly consider whether the majority of workers in the bargaining unit are union members. If this is the case, then the CAC can make an order for recognition without a formal ballot. However, if there is doubt over whether a majority of workers within the bargaining unit are union members, then a secret ballot will be held. Even if a majority are members, the CAC can order a ballot if they think that it is in the interests of good industrial relations, or if there is evidence that the members do not want the union bargaining on their behalf.

To win recognition through the ballot, the union needs to win support from:

• A majority of the workers voting (i.e. a majority of those who actually voted), and
• At least 40% of the workers constituting the bargaining unit (i.e. 40% of the workers entitled to vote).

In practice, the statutory recognition process is hugely complicated and is usually a last resort for unions. Another element of Unison’s challenge is that Cornerstone are not prepared to acknowledge the 6 month notice period within the voluntary agreement. While it is a tenet of contract law to infer reasonable notice, there is no case law on this specific issue so it will be interesting to see the result of this challenge.

If Unison are successful in gaining statutory recognition, it will be the first time in history within Scotland that a third sector employer has been forced to recognise a union. We will provide further updates on this as the case unfolds, so please watch this space.

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