‘Gig economy’ is the new buzz phrase. Even the government used it last week when announcing the Taylor review into modern working practices. Many are fans of the flexibility it provides but others – including some of the UK’s biggest trade unions – are keen to ensure that new ways of working do not mean the abandonment of old rights.
In the last few weeks a certain cycle food courier firm is reported to have received a request for trade union recognition from the Independent Workers Union of Great Britain (IWUGB).
Although recognition isn’t required for the union to sponsor litigation, to influence how the new age of work develops recognition will likely be the aim of many forward-thinking trade unions. But how do rights to union recognition work, and what do they mean for businesses and workers at the forefront of the gig economy?
A UK trade union can make a request for recognition for the purposes of collective bargaining on behalf of some or all workers engaged by a particular business. Worker status is important here; unions can’t seek recognition in relation to independent contractors.
There are two routes to recognition: voluntary and statutory. Voluntary recognition is flexible and entered into by agreement between the union and the business concerned. It can be terminated relatively easily and, generally speaking, will not have any legal force between union and business.
The statutory process is formal and complex. If recognition is imposed following a formal statutory request it will last for a period of three years and is capable of a greater level of enforcement by either side.
Perhaps oddly, the workers play very little role in the request if it is done on a voluntary basis. If a statutory process is followed a workplace ballot can be ordered to confirm the level of support for the request. Such a ballot will generally take place where union membership is less than 50% of the group for which the union is seeking recognition.
There are a number of challenges inherent in either a voluntary or statutory process for both union and employer. Often there is dispute in respect of which recognition is sought. A union will be motivated to choose a group where support is high, but an employer will need to make sure the group makes sense from a business perspective. The union’s proposed group may artificially enlarge a naturally smaller group with common interests, or focus on a small group artificially when a larger group have things in common.
In the food courier case the request is limited to giggers in a particular London borough. If they are no different to those in other London boroughs then the appropriateness of that group may be questioned. If a statutory process is being followed this dispute can be determined by the Central Arbitration Committee (CAC). If the discussions are proceeding on a voluntary basis then the parties will need to reach agreement themselves.
Other common areas of dispute include 1) will the union have the right to negotiate a wide variety of matters, or be limited to certain key terms of employment such as pay, working time and holiday; and 2) how much paid time off work will reps be given to carry out their union duties?
As the way in which businesses and working individuals interact changes we may see an increase in requests for trade union recognition. In part that may be to protect worker rights, but it may also be a fight for union survival in an age that differs significantly from their industrial heritage. If trade unions are to remain relevant in the gig economy they will need to convince workers that representation can deliver real benefits. To do that they will need to work with business to preserve both rights and flexibility.
Tom Kerr Williams is director (solicitor) at PwC
