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14th January 1972
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Which of the following most accurately describes the problem?

matters By John Darker, AMBIM

The In Relations Act 12, bargaining units

NEW MACHINERY is proposed under the Industrial Relations Act for determining the bargaining structure and recognition rights when these cannot be settled by voluntary agreement between the parties. In contentious cases the CIR can be brought in to make recommendations on an appropriate bargaining unit for a particular group of employees and whether there should be a sole bargaining agent for that unit.

In Section 44 of the Act there are six essential definitions in describing the new law on sole bargaining agents:— I. A "bargaining unit" means, in the Act's words, "those employees or descriptions of employees of an employer, or of two or more associated employers, in relation to whom collective bargaining, in respect of such matters as are not dealt with under more extensive bargaining arrangements, is, or could appropriately be, carried on by an organization of workers or a joint negotiating panel, or partly by an organization of workers and partly by a joint negotiating panel 2. "'Negotiating rights' means rights, recognized by an employer or by two or more associated employers, to participate, on behalf of all or some of the employees comprised in a bargaining unit, with a view to the conclusion or modification of one or more collective agreements.

3. " 'Sole bargaining agent', in relation to a bargaining unit, means the organization of workers or joint negotiating panel having negotiating rights in relation to that unit to the exclusion, of all other organizations of workers and joint negotiating panels, except in respect of matters which are dealt with under more extensive bargaining arrangements.

Negotiating panel 4. "'Joint negotiating panel' means a body consisting of representatives of two or more organizations of workers which is established for purposes of collective bargaining and is authorized by or on behalf of those organizations to enter into collective agreements on their behalf.

5. " 'Joint negotiating panel of trade unions' means a joint negotiating panel where all the organizations of workers represented on it are trade unions.

6. "'More extensive bargaining arrangements', in relation to any particular employees or descriptions of employees of an employer, or of two or more associated employers, means arrangements for collective bargaining in respect of matters common to those employees or descriptions of employees and to other employees or descriptions of employees, whether of the same employer or employers or of one or more different employers."

The distinction between a "joint negotiating panel" and a "joint negotiating panel of trade unions" is specially significant. It should also be noted that in addition to terms and conditions of employment, the nature of the work and training, experience and qualifications required, are relevant factors in determining bargaining units.

Two questions Two questions must be answered in the affirmative in considering whether a basic bargaining unit of workers can and should be recognized. If a basic bargaining unit can be defined and it can reasonably be represented by a sole negotiator the employer must consider what organization or groups of organizations should speak for these workers. It would then be necessary to decide the terms of reference of the negotiators, bearing in mind the existence and status of larger negotiating bodies whose decisions may affect workers within the defined bargaining unit.

There are a number of references to bargaining units in the Act and the problems likely to be dealt with are in Sections 45-50. For example, in S. 45(2) the Secretary of State, an employer or associated employers, an employer or employers in conjunction with one or more unions, are all empowered to apply to the NIRC, setting in train involved inquiries that may lead to definition and recognition of a sole bargaining agent. The unregistered association of workers, ie major unions representing at the present time about seven out of every 10 trade Unionists, have no standing in this matter.

The Secretary of State could not just make an application about a sole bargaining agency to the NIRC. Before doing so he must consult with the employer or employers involved and also any organization or workers, or joint negotiating panels, already in existence. Equally, if any of the other parties wished to make an application they must first give notice of intention to the Secretary of State. His staff, at the appropriate level, would give advice and assistance as seemed necessary to promote agreement on a sole bargaining agent.

The Secretary of State has direct access to the CIR at any time. While the discussions are proceeding any of the parties inay ask the NIRC to pass the application to the CIR for full examination. S.47(1) envisages the possibility of a settlement being reached after the issue has been sent forward to the CIR, and provides for the withdrawal of the reference.

The NIRC will not normally authorize any examination of a bid for sole bargaining agency rights if a thorough examination of the matter has been made in the past two years by the CIR, though Section 46(2) could justify reconsideration after a shorter period.

Source of wisdom The CIR, as the principal source of wisdom on industrial relations, has much discretion in looking at claims for representation. For example, it may wish to extend the scope of a reference by the Industrial Court. If the CIR felt it to be advantageous to make the bargaining arrangements apply to associated employers it could so recommend to the Industrial Court, at the same time giving notice to the parties affected.

If such an extended reference is made by the CIR anyone claiming to be affected may apply to the Industrial Court to consider whether it is necessary or expedient. The Industrial Court has power to accept the CIR's recommendations or to qualify them. If no one objects within two weeks of the proposed reference extension the Industrial Court must accept the CIR's proposals.

When the CIR has investigated any dispute about a bargaining unit it will report to the Industrial Court paying attention to the extent to which different groups of employees in that unit have common interests having regard to their work, training, experience or other qualifications.

For sole bargaining agency bids the CIR's report must consider: (i) whether the organization of workers or joint panel has (or would have) the support of a substantial proportion of the employees in the bargaining unit; (ii) whether it has (or would have) resources and organization enabling it effectively to represent the employees in the unit; (iii) for a joint negotiating panel, whether each organization of workers on it has (or would have) the support of a substantial proportion of the employees in the unit or section of it, and resources and organization enabling effective participation in the panel's work.

Organizations of workers which are held to be dominated by the employer(s) may not be recommended by the CIR as a sole bargaining agent or as a member of a joint negotiating panel. The CIR will seek to recommend arrangements in accordance with the general wishes of the unit's employees and which are likely to promote a satisfactory and lasting settlement of the dispute.

Official guide

The official guide to the Act says the CIR can attach conditions to its recommendations. It may require the sole bargaining agent to make a sufficient number of trained officials available to carry an collective bargaining effectively; or to indertake not to claim sole bargaining ights for another bargaining unit in the ;ame undertaking.

There are many areas ih this country where trade union district officials are ;pread rather thinly. It is comparatively rare 'or a large union to have specialist staff lealing almost exclusively with road ransport workers, as Mr Alan Law does in he Midlands. The qualifications of trade 'Mon negotiators may be substantially .aised as a result of the Act and if they are Jetter paid and have fewer, more closely lefined, duties, both employers and workers nay be better served.

The CIR is likely to take into account ndustry-wide or company-wide negotiating tgreernents since the terms and conditions )f employment of many workers depend )artly on negotiations with an individual amployer and partly on industry-wide igreements. (The pay minimum laid down )), the Road Haulage Wages Council is )ften used as a platform on which local tgreements based on productivity, length of ervice or whatever are superimposed.)

3argaining agent

The CIR may say that the recommended rargaining agent shall not have exclusive iegotiating rights for the recommended )argaining unit for matters dealt with under nore extensive bargaining arrangements. It likely that in many industries the CIR will ay that the sole bargaining agency can only tave exclusive negotiating rights for those erms and conditions which are negotiated vithin the firm.

After consideration, the CIR reports to he Industrial Court, sending copies to the .ecretary of State and to the parties to the ispute. While, normally, the report would ecommend that a particular organization of torkers (whether registered or not) or a )int panel of such workers should be :cognized by the employer as the sole argaining unit, the C1R does not have to lake such a recommendation.

This matter will be further pursued next


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