Recognising and derecognising a trade union
Statutory recognition of a trade union - recognition ballots
Once the Industrial Court accepts an application and the bargaining unit has been agreed on or decided, the Industrial Court panel has to decide whether to call a ballot on union recognition.
Industrial Court's decision on whether or not to hold a recognition ballot
The main test is the level of union membership in the bargaining unit. If the Industrial Court panel is not satisfied that the majority of the workers in the bargaining unit belong to the union making the application, it has to call a ballot on union recognition.
If necessary, the Industrial Court panel can require:
- you to provide information concerning the workers in a bargaining unit
- the union to provide information concerning the union members in a bargaining unit
Using this information, the Industrial Court case manager will compile a report and send a copy to you, the panel and the union.
If either you or the union fail to supply the information required by the Industrial Court, the report must mention that failure and this could influence the panel's decision.
On receiving the report, the Industrial Court will then decide whether to make a declaration of recognition or hold a ballot of workers in the bargaining unit.
Generally, if the report shows that a majority of the workers in the bargaining unit are union members, the Industrial Court will make a declaration of recognition. If not, it will call a ballot.
However, the Industrial Court may still call a ballot - even if there is majority union membership - if:
- it is satisfied that holding a ballot would be in the interests of good industrial relations
- it believes it has credible evidence from a significant number of union members in the bargaining unit that they do not want the union to conduct collective bargaining on their behalf
- there is evidence relating to how workers joined the union or their length of membership that leads the Industrial Court to doubt whether a significant number of union members in the bargaining unit want the union to conduct collective bargaining on their behalf
Within ten days of the parties receiving notification of the ballot from the Industrial Court, you may - in agreement with the union - notify the Industrial Court that you no longer wish a ballot to be held.
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 a discretion to choose a longer period.
The QIP will come from a body specified in legislation.
- 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 to attend 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 10 working days, starting with the day after you were told 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 these requirements, 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 issue a declaration of recognition.
During the balloting period, the union is entitled to access the workers belonging to the proposed bargaining unit. Both you and the union must not, at this time, use 'unfair practices' to influence the ballot result.
Unfair practices can include:
- providing incentives for members to vote a certain way
- threatening disciplinary action if a certain result is not achieved
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 after it received 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, 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 make a declaration that the union is - or is not - recognised.
These circumstances are where the Industrial Court:
- declares that an unfair practice complaint is well founded and that the unfair practice consisted of - or included - the use of violence or the dismissal of a union official
- has issued an unfair practices remedial order and the party to whom it is issued fails to comply with it
- having issued an unfair practices remedial order to a party, makes a further declaration that a complaint that the same party used an unfair practice is well founded
If the 'failing' party is you, the Industrial Court can declare the union recognised. If the failing party is the union, the Industrial Court may declare the union not recognised.
Where it orders a fresh ballot - or declares that the union is recognised or not recognised - 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 usual ballot procedure.
Informing the parties of the result of the recognition ballot
The Industrial Court informs both parties of the ballot result and its consequences.
To be recognised, the union needs the support of a majority of those voting and at least 40 per cent of those entitled to vote.
If the union fails to get the necessary support, it must wait three years before making a new application involving the same - or substantially the same - bargaining unit.
Once you have recognised a union, the collective bargaining process can begin and you have certain legal obligations towards the union and its members. See the consequences of trade union recognition.
Requests for costs for recognition ballots
Following the ballot, the QIP will normally send you and the union a demand for its costs.
The demand will show the gross costs of the ballot and the share of the cost to be paid by you and the union.
Both parties must pay the QIP within 15 working days, starting with the day after they receive the demand.
If you dispute the demand, you can appeal to an industrial tribunal within four weeks, starting with the day after you receive the demand.
For your appeal to succeed, you must show that the gross costs of the ballot are too great or your share of the costs is too great.
Industrial Court028 9025 7599