You may have seen in the press a couple of weeks ago how the Court of Appeal dismissed a case brought by the Independent Workers Union of Great Britain – the IWGB - which had been seeking to be recognised for the purposes of collective bargaining by the University of London. Personnel Today covered the case which centred on the fact that another union, Unison, is already recognised by the university for collective bargaining. Why is it in the news? Well that's because if the IWGB had won it would have represented a significant change in UK law and that's why the press has been tracking the case since it kicked off back in 2017 when the union applied to the CAC for recognition. The union lost there and it has lost at every stage since which means the status quo is maintained which means voluntary agreements with friendly unions can continue to serve employers well. We will come onto the case itself in a minute but first some background.
Most union recognition agreements in the UK are voluntary and the UK legislation is drafted in a way designed to ring-fence existing voluntary arrangements to prevent them from being undermined by another union’s request for recognition. It means there's scope for employers to block statutory recognition requests from particular unions under so-called 'sweetheart' deals which create a barrier, effectively, blocking requests from other, perhaps more militant, unions. In this case Unison was already recognised whilst the IWGB was looking to move in. The IWGB argued that is unfair and a breach of human rights law – the right to freedom of association under Article 11 of the European Convention of Human Rights.
So what did the Court of Appeal decide? Well they rejected that argument – that's the good news – but they did recognise that the way the UK's legislation is drafted means there is a 'lacuna' in the legislation, a lack of any mechanism for the derecognition of a voluntary agreement with the incumbent trade union which would allow space for the insurgent union to come in. They actually didn't rule on that point, but they did flag it up. That situation, they said, would be especially problematic where support for the incumbent union had fallen away so they no longer represented the majority of workers in the bargaining unit but the insurgent union did. So that's a problem, potentially, leaving the door open for a future challenge in the courts should that situation arise. So let's get a view on this. Jon Coley has been looking at the judgement and in particular that loophole which was flagged by one of the judges. Jon joined me by video-link from Birmingham and I put it to him that it is, potentially, an area for a future challenge:
Jon Coley: “That’s absolutely right, Joe. It’s an interesting paragraph, you can skip through the whole judgement and go to paragraph 68 if you're so inclined. It's an interesting comment made by the judge and actually we saw it in practice recently. Trade unions, theoretically, are suppose to be prevented from recruiting each others members and actively seeking to solicit each others members but we did have a situation for a client recently where they had a recognition agreement with a particular trade union which had reached a deal with them overpay, but the members weren't happy. Another trade union came in, recruited the majority of the membership on the basis that they believed the existing trade union was not militant enough and was not pushing the company hard enough. They then tried to seek recognition but, of course, the employer, given what we've just spoken about, could block them because they had an existing agreement with the trade union with whom they had reached a deal over pay, albeit that trade union had very few members left now because it all migrated to the other trade union. Now, in the passage in the judgement the Court of Appeal do say that they would like to look at those circumstances quite seriously again because there may be a breach of an Article 11 right where there is, effectively, a very low membership of a trade union which the employer has recognised and a very high membership of another trade union which has no means of seeking recognition with the employer because it is effectively blocked by the union with very little membership.”
Joe Glavina: “So I can imagine a situation down the line where an employer sees support within the bargaining unit moving away from the incumbent recognised union and towards the insurgent union that is wanting to muscle in, and so the risk of a challenge arises. Is there anything the employer can do to pre-empt that?
Jon Coley: “I think in that situation, Joe, the employer is in a very insidious position. There is one of three things I would suggest. Firstly, they should speak to the existing union that they've got the relationship with and see what that union itself can do to bring pressure to stop the other trade union effectively undermining the collective bargaining. I think it is arguably in breach of the Bridlington Agreement which the unions have signed up to and, therefore, the TUC could get involved to stop the union's poaching each other's members. If so inclined then the company could seek to reach some sort of agreement with the other insurgent trade union but I think that's probably deeply unattractive not least in circumstances where that trade union sought to undermine the one that's in place and to undermine the pay deal that had been reached and/or, thirdly, to work with the existing trade union to see what it can do to win back members and to shore it up and that may be giving it a couple of early wins, access to the employees to shore up the membership or other strategies which the current partner trade union can effectively think to deploy."
If you'd like to read the judgement in that case for yourself you can. It is the Court of Appeal's decision in IWGB v University of London and others. As Jon said, it is paragraph 68 that is of most interest we think.
- Link to case report: IWGB v University of London and others (Court of Appeal)