Although wide-ranging changes to the rules on trade union action are currently going through Parliament, the complicated process whereby an independent trade union can apply to the Central Arbitration Committee (CAC) for statutory recognition for collective bargaining purposes remains unchanged. 

The CAC will only award statutory recognition if:

  • a majority of workers in the bargaining unit already belong to the union; or  
  • the union wins majority support for recognition in a secret ballot of all workers in the bargaining unit and that majority is at least 40 per cent of those entitled to vote.

Although the first, non-ballot method, is known as "automatic recognition", there is an important initial stage where the CAC decides whether the application is admissible. This is designed to weed out weak applications. The CAC has to be satisfied that at least 10% of the workers in the union's proposed bargaining unit are members of the union and that a majority of workers within the bargaining unit are "likely to support" recognition of the union.

The CAC generally regards the "majority are likely to favour" test as a hypothetical rather than mathematical one – the union does not have to show an actual majority. However, tangible evidence is needed. For example, in USDAW v Pearsalls Ltd the CAC rejected an application for recognition of all non-managerial employees at one site because the majority test was not met. Although over 40% of the 170 workers in the proposed bargaining unit had signed a petition in favour of recognition, and another four workers were members of the union (and so assumed by the CAC to support recognition), there were six individuals who had signed a document saying they did not understand the implications of signing the petition. This was sufficient for the application to fail.

In this case, as the trade union's application was not accepted at the initial stage, it could make another one. It is only once the application is accepted by the CAC, and the application then fails, or the union loses the ballot, that it is prevented from re-applying for three years.