Recognising and derecognising a trade union

Following a request for statutory derecognition, the Industrial Court may call for a secret ballot to determine whether or not collective bargaining arrangements should end.

Once the Industrial Court has told you and the union - 'the parties' - in writing that there will be a ballot, the parties should negotiate and agree access arrangements for the union during the ballot period and send a copy of the access agreements to the Industrial Court case manager.

Where necessary, the Industrial Court may arrange a hearing on access so that it can determine an access arrangement.

The form of ballot

The Industrial Court has to decide whether the ballot should be a workplace ballot, a postal ballot or a combination of the two.

The Industrial Court decision will depend on factors such as:

• costs and practicality
• the preference of the parties
• the chance of the ballot being affected by unfairness or malpractice if it were conducted at a workplace

Conduct in the run up to and during a recognition ballot

If it decides to hold a ballot, the Industrial Court will appoint a qualified independent person (QIP) to conduct it within 20 working days of being appointed - although the Industrial Court has discretion to choose a longer period.

The QIP will come from a body specified in legislation.

You must:

• Co-operate generally with the union and QIP relating to the ballot.
• Not make an offer to a worker or workers that induces them not attending a relevant meeting between the union and the workers.
• Not take or threaten to take any action against a worker because they attended or took part in a relevant meeting or they indicated their intention to do so.
• Give the union reasonable access to the workers in the bargaining unit in accordance with the code of practice on access and unfair practices during recognition and derecognition ballots.
• Pass names and addresses of workers in the bargaining unit to the Industrial Court within ten working days, starting with the day after you were informed of the QIP's name and ballot arrangements. You must also give the Industrial Court details of any workers joining or leaving the bargaining unit.

If it is found that you have failed to comply with any of the duties above, the Industrial Court can order you to remedy the failure within a set timescale. If you fail to remedy the failure, the Industrial Court can refuse your application for derecognition.

During the balloting period, the union is entitled to access the workers belonging to the bargaining unit. Both you and the union must not, at this time, use 'unfair practices' to influence the ballot result.

Examples of unfair practices include offering money to a worker to vote in a particular way and dismissing - or threatening to dismiss or take disciplinary action against - a worker for voting in the ballot.

Unfair practices complaints

An unfair practices complaint must be made on - or before - the first working day after the date of the ballot or - if votes can be cast on more than one day such as in a postal ballot - the last of those days.

Following a valid complaint, the Industrial Court normally has ten working days in which to decide whether the complaint is well founded, starting with the day following receipt of the complaint.

If the Industrial Court decides that the complaint is well founded, it will declare this finding and may then issue a remedial order telling the party what steps it must take in order to mitigate the effect of the unfair practice and when to take those steps by, and/or give notice to the parties that a secret ballot will be held - in effect ordering a new ballot.

Circumstances where a ballot may be abandoned

In some circumstances, the Industrial Court has the power to cancel a ballot and:

• if the party concerned is you, refuse your application for derecognition
• if the party concerned is the union, issue a declaration that collective bargaining is to end

These circumstances are where the Industrial Court:

• declares that both an unfair practice complaint is well founded and the unfair practice consisted of - or included - the use of violence or the dismissal of a union official
• has issued to a party an unfair practices remedial order but the party fails to comply with it
• having issued an unfair practices remedial order to a party, declares that a complaint that the same party used an unfair practice is well founded

If the 'failing' party is you, the applicant worker and/or the union may enforce obedience to the law.

Where it orders a fresh ballot, refuses your application or declares an unfair practice complaint as well founded, the Industrial Court will:

• Take steps to cancel the 'original' ballot. If that ballot is held anyway, the result will not have any effect.
• If a fresh ballot is held, make certain changes to the usual ballot procedure.

Informing the parties of the result of the recognition ballot

The Industrial Court will inform the parties of the ballot result and its consequences.

In order for collective bargaining arrangements to end as the result of a ballot, a majority of those voting, and at least 40 per cent of the workers in the bargaining unit, must vote in favour of ending those arrangements.

If you fail to get the necessary support, you must wait three years before making a new application involving the same - or substantially the same - bargaining unit.

If the union is derecognised as a result of the ballot, the Industrial Court will declare that the bargaining arrangements are to cease to have effect on a specified date.

The Industrial Court cannot accept any applications for statutory recognition from the union in respect of that bargaining unit - or one substantially the same - if the union makes the application within three years of the day after that on which the Industrial Court issued its declaration.