The Smell of Bullshit part 12: union membership

Somebody on the Lush international forum has just said that Lush UK contracts state that union membership is void. I haven’t seen a Lush contract and I have no idea what the exact wording is, or what Lush might mean by that (if their contracts do indeed say something like that). So let’s just go over the law as it applies to trade union membership in the UK. Again, as in previous blog posts, I must point out that Lush is not above the law.

This is what the Government says about trade union membership.

You have the right to:

  • choose to join or not join a union
  • decide to leave or remain a member of a union
  • belong to the union you choose, even if it’s not the one your employer negotiates with on pay, terms and conditions
  • belong to more than one union

Your employer isn’t allowed to:

  • offer you a benefit to leave a trade union
  • threaten to treat you unfairly if you don’t leave a union

An employer or employment agency isn’t allowed to insist that you:

  • join or leave a trade union
  • leave one union for another

Your employer isn’t allowed to dismiss you or choose you for redundancy because you:

  • are or want to be a union member
  • aren’t or don’t want to be a union member
  • took part or wanted to take part in union activities

Your employer mustn’t treat you unfavourably (for example refusing you promotion or training opportunities) if you:

  • join a union
  • take part in its meetings
  • leave a union

So, no employer can treat you unfavourably because you are a union member. If they do, you might have grounds for a tribunal, and your union would assist you with that.

And let’s have a look at what the law says.

137 Refusal of employment on grounds related to union membership.

(1)It is unlawful to refuse a person employment—
(a)because he is, or is not, a member of a trade union, or
(b)because he is unwilling to accept a requirement—
(i)to take steps to become or cease to be, or to remain or not to become, a member of a trade union, or
(ii)to make payments or suffer deductions in the event of his not being a member of a trade union.
(2)A person who is thus unlawfully refused employment has a right of complaint to an employment tribunal.
(3)Where an advertisement is published which indicates, or might reasonably be understood as indicating—
(a)that employment to which the advertisement relates is open only to a person who is, or is not, a member of a trade union, or
(b)that any such requirement as is mentioned in subsection (1)(b) will be imposed in relation to employment to which the advertisement relates,
a person who does not satisfy that condition or, as the case may be, is unwilling to accept that requirement, and who seeks and is refused employment to which the advertisement relates, shall be conclusively presumed to have been refused employment for that reason.
(4)Where there is an arrangement or practice under which employment is offered only to persons put forward or approved by a trade union, and the trade union puts forward or approves only persons who are members of the union, a person who is not a member of the union and who is refused employment in pursuance of the arrangement or practice shall be taken to have been refused employment because he is not a member of the trade union.
(5)A person shall be taken to be refused employment if he seeks employment of any description with a person and that person—
(a)refuses or deliberately omits to entertain and process his application or enquiry, or
(b)causes him to withdraw or cease to pursue his application or enquiry, or
(c)refuses or deliberately omits to offer him employment of that description, or
(d)makes him an offer of such employment the terms of which are such as no reasonable employer who wished to fill the post would offer and which is not accepted, or
(e)makes him an offer of such employment but withdraws it or causes him not to accept it.
(6)Where a person is offered employment on terms which include a requirement that he is, or is not, a member of a trade union, or any such requirement as is mentioned in subsection (1)(b), and he does not accept the offer because he does not satisfy or, as the case may be, is unwilling to accept that requirement, he shall be treated as having been refused employment for that reason.

(8)The provisions of this section apply in relation to an employment agency acting, or purporting to act, on behalf of an employer as in relation to an employer.

Refusal of service of employment agency on grounds related to union membership.

(1)It is unlawful for an employment agency to refuse a person any of its services—
(a)because he is, or is not, a member of a trade union, or
(b)because he is unwilling to accept a requirement to take steps to become or cease to be, or to remain or not to become, a member of a trade union.
(2)A person who is thus unlawfully refused any service of an employment agency has a right of complaint to an employment tribunal.
(3)Where an advertisement is published which indicates, or might reasonably be understood as indicating—
(a)that any service of an employment agency is available only to a person who is, or is not, a member of a trade union, or
(b)that any such requirement as is mentioned in subsection (1)(b) will be imposed in relation to a service to which the advertisement relates,
a person who does not satisfy that condition or, as the case may be, is unwilling to accept that requirement, and who seeks to avail himself of and is refused that service, shall be conclusively presumed to have been refused it for that reason.
(4)A person shall be taken to be refused a service if he seeks to avail himself of it and the agency—
(a)refuses or deliberately omits to make the service available to him, or
(b)causes him not to avail himself of the service or to cease to avail himself of it, or
(c)does not provide the same service, on the same terms, as is provided to others.
(5)Where a person is offered a service on terms which include a requirement that he is, or is not, a member of a trade union, or any such requirement as is mentioned in subsection (1)(b), and he does not accept the offer because he does not satisfy or, as the case may be, is unwilling to accept that requirement, he shall be treated as having been refused the service for that reason.

145AInducements relating to union membership or activities

(1)A worker has the right not to have an offer made to him by his employer for the sole or main purpose of inducing the worker—
(a)not to be or seek to become a member of an independent trade union,
(b)not to take part, at an appropriate time, in the activities of an independent trade union,
(c)not to make use, at an appropriate time, of trade union services, or
(d)to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.
(2)In subsection (1) “an appropriate time” means—
(a)a time outside the worker’s working hours, or
(b)a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union or (as the case may be) make use of trade union services.
(3)In subsection (2) “working hours”, in relation to a worker, means any time when, in accordance with his contract of employment (or other contract personally to do work or perform services), he is required to be at work.
(4)In subsections (1) and (2)—
(a)“trade union services” means services made available to the worker by an independent trade union by virtue of his membership of the union, and
(b)references to a worker’s “making use” of trade union services include his consenting to the raising of a matter on his behalf by an independent trade union of which he is a member.
(5)A worker or former worker may present a complaint to an employment tribunal on the ground that his employer has made him an offer in contravention of this section.
145BInducements relating to collective bargaining(1)A worker who is a member of an independent trade union which is recognised, or seeking to be recognised, by his employer has the right not to have an offer made to him by his employer if—
(a)acceptance of the offer, together with other workers’ acceptance of offers which the employer also makes to them, would have the prohibited result, and
(b)the employer’s sole or main purpose in making the offers is to achieve that result.
(2)The prohibited result is that the workers’ terms of employment, or any of those terms, will not (or will no longer) be determined by collective agreement negotiated by or on behalf of the union.
(3)It is immaterial for the purposes of subsection (1) whether the offers are made to the workers simultaneously.
(4)Having terms of employment determined by collective agreement shall not be regarded for the purposes of section 145A (or section 146 or 152) as making use of a trade union service.
(5)A worker or former worker may present a complaint to an employment tribunal on the ground that his employer has made him an offer in contravention of this section.

(1)worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of—
(a)preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so,
(b)preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, F15…
[F16(ba)preventing or deterring him from making use of trade union services at an appropriate time, or penalising him for doing so, or]
F16(c)compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.
(2)In subsection [F17(1)]F17“an appropriate time” means—
(a)a time outside the [F18worker’s]F18 working hours, or
(b)a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union [F19or (as the case may be) make use of trade union services]F19;
and for this purpose “working hours”, in relation to [F20a worker]F20, means any time when, in accordance with his contract of employment [F21(or other contract personally to do work or perform services)]F21, he is required to be at work.
[F22(2A)In this section—
(a)“trade union services” means services made available to the worker by an independent trade union by virtue of his membership of the union, and
(b)references to a worker’s “making use” of trade union services include his consenting to the raising of a matter on his behalf by an independent trade union of which he is a member.
(2B)If an independent trade union of which a worker is a member raises a matter on his behalf (with or without his consent), penalising the worker for that is to be treated as penalising him as mentioned in subsection (1)(ba).
(2C)A worker also has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place because of the worker’s failure to accept an offer made in contravention of section 145A or 145B.
(2D)For the purposes of subsection (2C), not conferring a benefit that, if the offer had been accepted by the worker, would have been conferred on him under the resulting agreement shall be taken to be subjecting him to a detriment as an individual (and to be a deliberate failure to act).]
F22(3)[F12A worker]F12 also has the right not to [F23be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place] for [F14the sole or main purpose]F14 of enforcing a requirement (whether or not imposed by [F24a contract of employment]F24 or in writing) that, in the event of his not being a member of any trade union or of a particular trade union or of one of a number of particular trade unions, he must make one or more payments.
(4)For the purposes of subsection (3) any deduction made by an employer from the remuneration payable to [F20a worker]F20 in respect of his employment shall, if it is attributable to his not being a member of any trade union or of a particular trade union or of one of a number of particular trade unions, be treated as [F25a detriment to which he has been subjected as an individual by an act of his employer taking place] for [F14the sole or main purpose]F14 of enforcing a requirement of a kind mentioned in that subsection.
(5)[F26A worker or former worker]F26 may present a complaint to an industrial tribunal on the ground that [F27he has been subjected to a detriment]by his employer in contravention of this section.
[F28(5A)This section does not apply where—
(a)the worker is an employee; and
(b)the detriment in question amounts to dismissal.]

Some of that looks quite complicated but in a nutshell, no employer can treat a worker unfavourably because they are in a union. No employer can try to compel a worker to leave or to not join a union. No employer can treat a worker unfavourably or punish them for seeking advice or assistance from a union on a matter for which it is reasonable to seek union advice. You cannot be disciplined for being in a union. You cannot be refused work for being in a union. You cannot be sacked for being in a union, and you cannot be selected for redundancy because you are in a union. If any employer tries any of those things on with you because you are in a union, get help from your union. If any employer tries any of those things on with you because you are thinking about joining a union, join the union and get their help.

Click this link to find out which union is right for you. And here is a list of unions. If you work for Lush, USDAW is probably the relevant union for you to join. You can join online right now!

So, those are your individual rights. But the power of unions comes from strength in numbers. It’s much easier to treat one person badly when that one person is scared to stand up for their rights. It’s much harder to treat 500 people badly when those 500 people aren’t prepared to put up for it. If you haven’t seen the film Made in Dagenham, you really should.

Since 2000, new legislation came into force about how employers must recognise unions for collective bargaining. What does the law say?

The statutory procedure may only be used in respect of employers with at least 21 employees. In making an application to the Central Arbitration Committee, the union must show that it has at least 10% membership within the proposed bargaining unit and that a majority of workers in the proposed bargaining unit are likely to favour recognition. Joint applications by two or more unions are permissible if they show that the unions will cooperate effectively and, if the employer wishes, conduct single-table bargaining.

 

Lush has at least 21 employees. What else?

Disagreements between employers and unions on scope of the proposed bargaining unit will be determined by the CAC, taking account of a range of factors and subject to the overriding need for it to be “compatible with effective management”.

The CAC will then decide whether a ballot is needed. If the CAC is satisfied that a majority of the workers in the bargaining unit belong to the union making the application, it will issue a declaration of recognition without a ballot unless it considers holding a ballot would be “in the interests of good industrial relations” or if there are doubts whether a significant number of union members want the union to bargain on their behalf. Where there is less than 50% membership in the bargaining unit, the CAC is required to order a secret ballot, to be conducted by a qualified independent person.

If a majority of the workers voting and at least 40% of those eligible to vote support the union in a ballot, the CAC must issue a declaration that the union is recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.

Bargaining units aren’t always straightforward. For a big employer like a city council, there might be several bargaining units – one for the social work department, one for education, one for the housing department etc. For one independent shop, which only has one outlet, that would be one bargaining unit. For an organisation like Lush, manufacturing might be one bargaining unit, retail might be another, etc. If Lush and the union couldn’t agree on how to set up the bargaining units, the CAC would decide. Now here comes the good bit.

If the CAC is satisfied that a majority of the workers in the bargaining unit belong to the union making the application, it will issue a declaration of recognition without a ballot unless it considers holding a ballot would be “in the interests of good industrial relations” or if there are doubts whether a significant number of union members want the union to bargain on their behalf. Where there is less than 50% membership in the bargaining unit, the CAC is required to order a secret ballot, to be conducted by a qualified independent person.

If a majority of the workers voting and at least 40% of those eligible to vote support the union in a ballot, the CAC must issue a declaration that the union is recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.

This means that if a majority of the people in the bargaining unit are members of the union, the employer must recognise the union. Majority doesn’t have to mean 3/4 or 2/3 – it means 50% + 1. On the other hand, if less than half of the workers in that bargaining unit are members of the union, at least 40% of them must vote for the union to be recognised, and if they do, the employer must recognise the union. If a bargaining unit was “the Lush factory” and it had 200 employees, and 101 of those employees were in a union, Lush would be obliged to recognise that union. If only 99 of those employees were in a union, but 39.6 (let’s call it 40) of them voted for union recognition, Lush would be obliged to recognise the union for collective bargaining. Lush would not have the option to not recognise the union, they would be legally required to do so.

There’s lots of information here about recognition procedures, but don’t worry too much about that for now. When things get to that stage, the union will help. There’s info here about the types of recognition, but again, unions will help. Most unions are used to dealing with intransigent employers.

Remember, even if you work for an employer, such as Lush, which does not recognise trade unions, if you are a member of a union, you have a legal right to be accompanied by a union steward to any disciplinary or grievance hearing.

And remember, you cannot be disciplined, punished, threatened or treated unfavourably for joining a union, for encouraging or assisting others to join, or for seeking recognition for your union.

So, what should you do now? You should join the most apppropriate union for your employer/workplace. You should encourage everyone else to join as well. You should contact your union for assistance if you get any hassle for any of that. And you should think about why any employer would want you not to have the support and protection a union provides.

 

 

 

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7 thoughts on “The Smell of Bullshit part 12: union membership

  1. I honestly believe that this blog and it’s brave comments will change the terrible practices of this company sometime soon.
    This cannot continue and the sooner that this is widespread the sooner those that are brainwashed will see the non bubble addled truth

  2. Well, it would be nice to think so. But I’m not so hopeful. I think the only thing that will change Lush’s alleged dodgy practices is for them to be so widely publicised that they face legal action and have to change. And as for how they treat their staff, well, the staff have to be empowered to sort that out themselves, which is why I strongly advise them to join the appropriate union and get help.

  3. Excellent blog post, as always. I am aware of some of what is being said here as being true. I know that some senior managers in Lush are vocally anti union and have tried to stop unions attending meetings with their members. PLEASE employees of Lush – join a union. Be active, be part of something positive – help yourself and your colleagues. We need trade unionism more than ever.

  4. I cannot recommend USDAW enough. Don’t be afraid – current employees please join today. If Lush truly care about ethical business they will ditch their 1970s views of Trade Unions and get on board with what ethical practice actually means. Of course, whilst the current leader is in situ it may not happen soon as I believe he is a complete bigot (as are several of his sycophant circle) but one can only hope.

  5. Having had a Lush contract I can assure you that the word union is not mentioned anywhere. If it is supposed to be mentioned I’m sure, in true Lush style, they would just assume it didn’t apply to them and leave it out.

  6. Pingback: The Smell of Bullshit: the comments post | Mitherings from Morningside

  7. Pingback: The Smell of Bullshit, part 23: stories from a former Lush employee | Mitherings from Morningside

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