Today, June 6th, marks the twentieth anniversary of the introduction of the third statutory union recognition procedure in Britain. The anniversary offers a good opportunity to assess exactly how it has fared and who has fared better or worse because of it. 

As part of Tony Blair and New Labour’s “fairness not favours” approach to unions, the Employment Relations Act 1999 introduced the procedure which was came into effect on June 6th, 2000. In the manifesto for the 1997 general election, and after much union lobbying to get it there, the Labour Party pledged to introduce a legal guarantee such that “where a majority of the relevant workforce votes in a ballot for the union to represent them, the union should be recognised.” This pledge was maintained in the Labour government’s 1998 White Paper Fairness at Work. 

But by the time the Employment Relations Act 1999 was passed, a series of caveats and qualifications had been introduced at the behest of the Confederation of British Industry (CBI). Gone was the simplicity of ‘where a majority wants it’ – in its place were new thresholds and riders on the determination of the bargaining unit being in accordance with effective management.

Meanwhile, ‘sweetheart’ union recognitions deals would be allowed to stymie applications for statutory union recognition, a parallel procedure for union derecognition was created, and non-votes would effectively be counted as no votes in ballots for union recognition – a simple majority voting for recognition must also equate to at least 40% of all those entitled to vote.

All this was a great disappointment to the unions but Tony Blair had maintained his promise, writing in the Murdoch-owned Times on 31 March 1997 that “the changes that we do propose would [still] leave British law the most restrictive on trade unions in the Western world.”     

So, despite being stronger than the first two procedures from the 1970s, the omens were not good for how effective this new procedure would prove to be. Sadly but predictably, this has proven to be the case – despite an initial burst of applications and successes. In 1997, 37% of all employees had their pay determined by the best available proxy for union recognition, a collective agreement. In 1999, this was 36% and by 2019 it had fallen to 27%. 

The number of applications to the body that administers the statutory procedure, the Central Arbitration Committee (CAC), has not quite reached 1,200 by the twentieth anniversary. Originally, the CAC had expected 150 applications per year.

Nonetheless, of these actual applications less than 350 have led to awards of statutory union recognition, whether by the automatic or balloting routes, and less than 250 applications have led to voluntary union recognition agreements. In other words, the success rate – at best – has only been 50%.

Of course, there are also the 3,000-odd new union recognition agreements that have been signed since 2000 in the shadow of the law – voluntary agreements without involving an application but where employers knew unions had the recourse to make an application. The relative insignificance of this seemingly large number of new voluntary agreements is highlighted by the aforementioned drop in the extent of workers covered by union recognition.  

Indeed, unions have found that after the initial flush of success where they were able to pick off the low-hanging fruit, the procedure, whether used or not, was just not robust enough to deal with recalcitrant employers. Once they had made an application, employers’ behaviour is little regulated – making it easy to put pressure on workers to ensure the union doesn’t win the ballot. 

But this outcome is not just down to the lack of teeth of the statutory union recognition procedure itself, important though that is. The are two main other reasons.

The first is that what employers do prior to a union making an application for statutory union recognition is hardly regulated at all. Whether by means of union substitution (like staff councils, employee opinion surveys) or union suppression (intimidating union activists, threatening redundancies), employers can stop unions from even getting to the point of being able to make an accepted application – let alone a successful application.

The second is that there is not the wider array of necessary supports for unions in public policy and regulation. For example, there is no obligation upon any employer that wins a public tender or receives a government financial subsidy to recognise a union. In short, unions are either, at best, studiously ignored or, at worst, viciously maligned.

Maybe this is what explains why the Tories have never sought to abolish the third statutory union recognition procedure embodied in the Employment Relations Act 1999, despite their various anti-union reforms. Twenty years have demonstrated that the procedure is no great friend to labour and no great threat to capital.