Working with trade unions

Why do HR professionals need to work effectively with trade unions?

There are three key reasons: 

• Individuals in the UK have the legal right to be accompanied in certain situations by a trade union representative – whether or not the organisation recognises a trade union (see below for definition of what ‘recognition’ means). Where an organisation does recognise unions individuals have a legal right to be collectively consulted in various employment situations. These are: 

1. 1. collective redundancies 
   2. transfers of business ownership 
   3. certain changes to pension schemes 
   4. health and safety 

• We talk a lot about encouraging employee voice within HR. Often trade unions will be the most effective form of collective employee voice. Where unions are recognised in a workplace, they will typically have the trust of their membership and can act as a powerful feedback mechanism. 
• Business objectives and employee interests or preferences can sometimes come into conflict (change initiatives, business restructuring and reward management being three typical areas). Having an effective system to manage such conflict can help the business process be implemented more effectively and with greater employee acceptance. 

 

The role of trade unions 

Trade unions’ main role is to represent their members’ interests. While this is often seen in the press as being primarily about pay and conditions, they can and have been involved in many other important areas of organisational life, from environmental concerns, to health and safety, to redundancy programmes and welfare benefits. Union representatives can represent members at all stages of grievance and disciplinary procedures. Their existence is a recognition of both the underlying power imbalance between employers and employees and the fact that business interests are not always the same as employees’ interests.  

The aim of trade unions is not to disrupt business, although this most gains attention in the media and can concern HR professionals. It’s in the interests of trade unions to contribute to organisational success which in turn can provide job security for their members. Effective processes for information, consultation and negotiation, together with an honest approach and an understanding that there will be differences in opinion on occasions, can help to minimise the risk of disruption. 

More information on trade unions, their history, background and role can be found in the CIPD factsheet on Trade Unions. 

 

Trade union recognition 

Where an organisation has a formal relationship with a trade union (or unions) this is referred to as trade union recognition. There is normally some form of agreement between the business and the relevant unions that sets down the role or scope. Where a union believes it represents a section of the workforce, but an organisation does not wish to enter into a recognition agreement, the union can apply for Statutory Recognition. This can be a time-consuming and expensive, and if the union is successful it does not start the relationship well so a voluntary recognition agreement is recommended wherever possible. 

If your organisation does recognise a union(s), then collective bargaining can take place (see below). Elected representatives of the union are also entitled to reasonable time off to carry out their trade union role. Some of this is paid (for example to attend meetings with management, or to undertake training to carry out their representative role) and some unpaid (such as meetings with trade union colleagues). Full details of what qualifies and how to determine what is reasonable can be found in the Acas Code of Practice on time off for trade union duties and activities including guidance on time off for union learning representatives. 

How to build effective relationships with trade unions

Trust and communication 

As with other employment relationships, a degree of mutual trust between senior management, HR, other managers and trade union representatives is key to ensuring that discussions are productive. HR has historically taken a lead role in promoting this relationship and it can be developed by using similar approaches to other areas of HR such as engagement and employee voice. 

There also needs to be an acceptance that there will be times when viewpoints differ and that concerns raised by trade union representatives on behalf of their membership about managerial proposals and initiatives are legitimate (even if the business disagrees with the concern). Mutual respect for each party’s viewpoint and a willingness to engage in constructive dialogue to resolve issues is essential. This may include taking more of a partnership approach (see below) and discussing proposals in advance.  

When dealing with trade unions, HR is likely to be the principal point of contact either with:  

• local representatives (often referred to as ‘shop stewards’): employees who have been elected as the representative by union members within the business and who carry out their union duties in addition to their paid job); or  
• full-time officers: employees of the trade union who may be dealing with members in a number of different organisations.  

We often talk about the psychological contract between employer and employee – the unwritten expectations around behaviour that create mutual trust and confidence. Working with a trade union can be seen as developing a collective psychological contract; essentially, the employment relations climate in an organisation. Every organisation will have its own such climate, which will depend on business context, culture and history, and it is important for HR professionals to be aware of these factors. 

Recognition and partnership agreements  

In workplaces where one or more unions are officially recognised, recognition agreements will be negotiated. These operate as a contract between the employer and the union, and authorise the union to negotiate on pay and working conditions on behalf of its members. This process is known as collective bargaining (see below).  

A recognition agreement sets out a framework for positive industrial relations within the organisation and, at the least, covers the objectives, scope, basic principles and general purpose of the agreement and the union(s) that are recognised. Other matters will include the freedom to consult, negotiate and hold meetings, facilities offered and time off to undertake union activities. It will also cover any arrangements for joint negotiating and consultation committees. 

Some organisations take a partnership approach to working with their recognised trade unions. Some may go further and have a formal partnership agreement. These agreements will lay down the principles upon which the employer bases its relationships with unions, focussing on working together to promote effective partnership working. For example, in addition to the formal means of consultation and negotiation, the agreement may acknowledge some key principles and benefits for working together effectively, such as communication and encouraging addressing issues at the earliest opportunity on an informal basis.  

Whether or not your business looks to develop a partnership approach and/or agreement will depend on its own circumstances and the approach of your recognised trade unions, but it can be an effective way to build and manage a relationship. Even if an organisation doesn’t have a formal partnership arrangement in place, it can still follow the general principles of such a productive approach. These include a focus on joint working, collaboration and mutuality. 

Supporting managers and senior leaders 

It’s important that both senior and people managers play a visible role in developing effective relationships with trade union representatives and full-time officials. HR professionals can assist in numerous ways, including: 

• Developing a ‘business case’ for senior managers, including points raised in the CIPD report on Collective Employee Voice and Acas publications such as Trade Union Representation in the Workplace. You can also point out positive potential outcomes in terms of employee engagement/morale, more effective change management approaches and better performance.  
  
  
• Stressing that unions are a legitimate stakeholder in the workplace and that their point of view needs to be considered. They are not a ‘threat’ or ‘the enemy’ but mutual co-operation can help to build a wider positive employment relations climate and boost engagement. 
  
  
• Developing HR’s own expertise and employment relations skills.  
  
  
• Working with managers to deal with day to day issues involving unions and supporting them to build up their working relationship with local representatives. This may require HR professionals to be more involved in operational matters, but from a supportive position (something which fits effectively with idea of a Business Partner). 
  
  
• Training managers (where appropriate) on issues such as tactics and negotiation techniques, although coaching/mentoring is often more effective in building relationships with trade union representatives. 

Collective bargaining and negotiating with trade unions 

Where an organisation recognises a trade union(s) it will normally agree with the union the scope of negotiations. For example, a union may be recognised for a particular business unit, or location, or a particular group of workers. Negotiations will then take place on issues around pay, terms and conditions and any other areas which form part of the agreement (for example, agreeing a procedure for appealing against a salary grading).  

Employers must not offer inducements to recognised union members to discourage them from negotiating terms and conditions through collective bargaining, nor threaten detrimental treatment or dismissal for refusing an inducement.  

Collective bargaining means that agreements reached are the result of genuine negotiation (see below on negotiating and avoiding industrial action). Managers and HR professionals’ objectives should be to achieve solutions which meet the objectives of the business but are also felt ‘fair’ by union representatives and members of staff.  

Collective agreements 

A collective agreement is any agreement made by one or more trade unions or employers' associations resulting from a collective bargaining process. Collective agreements can relate to duties and terms and conditions of employment (including pay, hours and holidays). Physical working conditions, redundancy terms, termination or suspension of employment or disciplinary matters may also be covered. 

Agreements reached through collective bargaining apply to all staff in the bargaining unit regardless of whether they are union members or not (unless individuals have agreed to be exempt from the collective process). So, an agreement with your recognised trade union to increase wage rates by 5% means all relevant staff receive the pay rise, not just those who are in the union.   

Some collective agreements are negotiated on a sector or industry wide basis. In this case an individual employer may not necessarily participate in the negotiations – they, along with others in the industry, will agree to abide by negotiations carried out on their behalf. In such situations, common terms and conditions are agreed with trade unions representing workers across the whole sector. Employers can usually agree with their local unions to enhance terms beyond national agreements but cannot to go below them. While such sectoral agreements are less common these days outside the public sector, some businesses still retain them.  

The terms of a collective agreement dealing with terms and conditions of employment (such as pay) will be incorporated into employees’ contracts. The terms of collective agreements governing the relationship between employers and unions (such as a dispute procedure) will not be incorporated into the contracts unless this is expressly agreed. 

In the UK, all employment contracts must specify any collective agreements affecting employees’ terms and conditions. Employers must inform employees of any collective agreement affecting them, including informing new employees in their written particulars of employment at the outset. Where TUPE transfers have occurred, the new employer must honour the incorporated terms of the transferred employees’ contracts but will not be bound by future changes to collective agreements which are not yet implemented. 

For more information, visit the UK government guidance on Working with trade unions and the Acas Code of Practice on disclosure of information to trade unions for collective bargaining purposes. 

Making Information and Consultation more effective 

UK employers have a statutory obligation to consult with employees on certain issues, including certain collective consultations with recognised trade unions or employee representatives. This covers a redundancy situation or when transferring staff under the TUPE regulations.  

Getting constructive feedback on proposals is always helpful, especially if it comes from staff who may have to implement or who are affected by the proposals. This enables potential problems to be addressed in advance and gives management the opportunity for informed feedback from employees ‘on the ground’. While some companies have active employee representation without trade unions, for many, union involvement can be a positive. Unions can often voice concerns that staff members may be reluctant to, while trained and experienced union representatives can also help ensure responses are focused around issues rather than simply an emotional reaction.  

It's worth reading the case study of Nat West Bank for some examples of how a business and trade union have ensured a useful and constructive consultation process, even in situations where there have been disagreements.   

Consultation and communication 

Some businesses, particularly larger ones, will have formal consultative arrangements with trade union representatives. Where these exist, it is important to make them effective, for example by: 

• Having a clear understanding of what issues can and can’t be discussed and how they are to be dealt with 
• Following up on agreed actions 
• Being honest in the relationship – which may mean being clear why actions haven’t been taken or why a particular approach is not possible. 

In other businesses, consultation may be less formal but it is still important to follow similar principles. 

Messages to staff should be consistent across all of an organisation’s voice and information and consultation arrangements. This means ensuring that staff receive similar messages whether this is individually or collectively, or in a formal setting, or via less formal channels, and whether they are union members or not. HR need to work closely with marketing/internal communications staff to ensure that information and communication approaches provide reliable and coherent information to all employees, as ‘mixed messaging’ can be one of the main causes of disputes and conflict. 

Make sure there is an agreed rationale for setting up a formal consultation forum and agree its key aims with employee representatives. A forum can include trade union and non-trade union representatives.  

HR professionals should consider how to develop effective personal relationships with local trade union representatives. This allows HR to gather ‘intelligence’ about issues that may exist in the workforce, and to develop solutions that avoid or minimise the scope for conflict. Such ‘off the record’ discussions can also be useful in exploring the reaction to different business options. Developing this sort of relationship can take time and requires both sides to operate in good faith, but can be a very helpful and practical way to develop HR expertise in managing collective working relationships. 

Handling negotiations and avoiding industrial action 

Negotiation of agreed solutions is key to an effective working relationship with trade unions. Unions do not want to strike or take other action any more than businesses want it, but if the sentiment is strong enough among their membership, action may result. 

There are six principles to effective negotiation for an HR professional:  

1. Be clear about what you ultimately want to achieve from the negotiation. For example, proposed changes to shift patterns or working hours to extend the hours that customers are able to contact you, means the ultimate objective is better customer service, not a specific shift or work pattern. A cost effective solution that achieves this is the key aim, even if it is different to what you first proposed. 
2. Be flexible and look for areas to create mutual gain. A win-win approach is always more effective than creating a win-lose position which will damage long-term relationships. 
3. Compromise is not a weakness. It is a recognition that there are different points of view and that agreement on a way forward is always better than imposing a solution on unwilling staff. 
4. Listen carefully. Not only will you fully understand concerns but you will also be able to learn where compromise and mutual gain are possible. 
5. Balance the long-term relationship with trade unions with the specific proposal. If something is seen as ‘business-critical’ then it may be necessary to accept a short-term setback in the relationship with union representatives to get it through. If not, then jeopardising goodwill is likely to lead to a hardening of attitudes the next time you have an issue to negotiate. It’s always better to spend the time working towards an acceptable agreement if possible, and/or being creative and offering something in return on other terms and conditions if the proposal is accepted. 
6. Have a fallback position. What will you do if the negotiations fail? Will you withdraw the proposal or seek to impose it? What are the implications of either approach? 

Be aware that the trade union officials will have considered all of this from their own perspective and will have prepared accordingly, so it is essential that you do the same. 

The overwhelming majority of negotiations will result in some form of agreement. The reasons why, in a small minority of cases, agreement cannot be reached include: 

• The sides being too far apart to allow for mutual gains. For example, in the above scenario if either side considered certain suggested changes to the shift pattern to be unacceptable and were unwilling to move on this point.  
• A ‘take it or leave it’ approach to a negotiation. 
• A lack of trust that the ‘other side’ will deliver its side of the agreement.  

Where agreement cannot be reached, there are a number of steps that can be taken: 

• Bring in an external, impartial third party mediator or conciliator such as Acas, who can often find a way forward where the parties appear to be deadlocked. The Acas toolkit on collective conciliation has some useful resources.
• Take time out to review positions and develop revised proposals. 
• Implement the fall-back position. Bear in mind for a trade union, the fall-back position may be some form of industrial action. 

Industrial action 

Industrial action is not defined in law but amounts to concerted action taken to put pressure on an employer. This occurs when a trade union and its members can’t resolve an issue with the employer through negotiation. 

There can sometimes be low-level or ‘unofficial’ industrial action which is not sanctioned by the union and is unlawful. This is sometimes called unprotected industrial action. Unofficial action where the union has not properly authorised the action may mean employees have no right to claim unfair dismissal unless the principal reason for the dismissal was related to certain protected matters (such as jury service, family, health and safety, working time, protected disclosure and/or flexible working matters). 

Unions and employees who participate in industrial action can be protected from sanctions from the employer if the action complies with complex, strict legal considerations about balloting and notification making it official industrial action (also known as protected action). The precedent set by the Supreme Court in Mercer v Secretary of State for Business and Trade also states that detriment short of dismissal, that is imposed on a striking worker, is also unlawful.  

Official industrial action means that the union has complied with these requirements and employees are protected, for example, from unfair dismissal. Unions must ballot their affected members (by post) and achieve a majority vote for action where at least 50% of the eligible members have voted (as outlined by the Acas Code of Practice: Industrial action ballots and notice to employers). While this is a steep threshold, if it is met it indicates a high degree of dissatisfaction in your workforce with the proposals and so needs to be taken seriously. 

It is often the case that the issues in dispute are resolved after a successful vote for industrial action as it strengthens the trade union’s position. However, if matters are not resolved, the union may give notice of the action they intend to take. 

Official industrial action generally takes one of two forms: 

• Strike: where workers withdraw their labour on specific dates and/or for specific periods (such as a 24 hour strike every Monday) 
• Action short of strike: this can include picketing, overtime bans, refusing to undertake duties outside of their specific role or not covering for absent colleagues. Historically this was known as ‘working to rule’.  

A less common type of industrial action is when an employer stops their employees from working or coming back to work during a dispute, called a ‘lock out’.  

There are numerous legal issues around industrial action, including: 

• Compliance with all the rules on balloting 
• Notice of action and the roles of pickets 
• The effect on employment rights of staff who take industrial action 
• Pay deductions and how to handle them 
• Non-victimisation of those involved – or not involved – in the action. 

It’s not possible within this guide to cover all these areas in detail, but if you are faced with industrial action you should make sure that you are aware of what both you and the trade union can and can’t do. In particular the issue of pay deductions for ‘action short of strike’ can be especially complex and, if handled badly, can expose you to claims for unlawful deduction of wages. 

As with many areas of HR, just because a course of action is legal does not mean that it should be followed. You should ask yourself whether taking a particular step will aid or hinder resolution of the issue, as well as longer-term employment relations. It’s worth remembering that industrial action is a last resort and most issues are resolved by negotiation.  

The idea of people in a business as a team where all have a common purpose and objective is one that has grown in prominence in the last 30 years. However, it might be better to recognise that conflict is an inherent part of the employment relationship, including potentially at a collective level. Sometimes there will be divergences in view which need to be managed. Where trade unions are recognised the most productive approach is to develop effective working relationships. HR professionals need to ensure a positive joint working ethos is cascaded throughout the organisation, so that managers at all levels approach working relationships with representatives in a constructive way and build trust.  

Top tips for managing relationships with trade unions 

1. Treat unions as a key stakeholder in your business, with a legitimate viewpoint and interests 
2. Seek to understand their viewpoint – consider the cultural, historical and business reasons why a proposal might not be welcomed 
3. Separate strategy from tactics (both from a business and a trade union perspective) 
4. Be willing to negotiate and compromise to achieve your strategy 
5. Don’t allow emotion to cloud your judgment (especially in a dispute) 
6. Develop informal and trustworthy relationships with trade union representatives