Employment (Trade Union Recognition) Regulations 2023 (the “Regulations”)

On Thursday, 26^th January 2023, the Minister responsible for employment in Gibraltar published the Employment (Trade Union Recognition) Regulations 2023. 

The Regulations came into operation on the abovementioned date of publication.

The timing of the Regulations may come as no surprise to readers who will be aware that in recent weeks, Morrisons, Gibraltar’s largest supermarket, had threatened to suspend its recognition of the trade union representing its employees.

On the 28^th of January, trade union members employed by Morrison’s voted overwhelmingly to take strike action after rejecting a 2.4% pay rise. 

What is the purpose of Regulations?

In essence, before publication of the Regulations, employers could threaten not to recognise trade unions and as a result, there was little protection for concerned employees who were hoping to have trade union representation in respect of pay rises and other pertinent employment matters.

The Regulations permit trade unions representing employees to make an application on behalf of its trade union members to the Director of Employment, who will then, in turn (subject to certain conditions being satisfied) make an order for statutory recognition of the trade union, therefore forcing the hand of the employer refusing to recognise the trade union.

How can Trade Unions be recognised under the Regulations?    

Under regulation 5 of the Regulations, where an employer refuses to grant recognition to a trade union pursuant to regulation 4 of the Regulations … the trade union may apply to the Director of Employment for a statutory recognition order directing the employer to recognise the trade union. 

The application for statutory recognition can may made, so long as the following requirements are fulfilled [by the trade union]:

The trade union must have already made a formal request for recognition to the employer, which must:

• be in writing;
• identifies the trade union and the bargaining unit;
• state that the request is made pursuant to these Regulations;

Furthermore, for the application to be valid, the employer must employ a minimum of 21 employees or at least an average of 21 employees in the 13 weeks ending with the day in which the application is received by the Director of Employment.

Lastly, the trade union must have at least 15 percent membership of the bargaining unit.

“Bargaining unit” for the purposes of the Regulation’s means the group of employees concerned.

Powers of the Director of Employment under the Regulations

On application from the trade union [as mentioned above], the Director of Employment must –

• where the trade union has the support of at least 50 percent of employees in the bargaining unit, issue an order that the trade union be granted recognition [my emphasis added] to undertake collective bargaining; or
• where it appears that the trade union has less than 50 percent support, organise and supervise a secret ballot [my emphasis added] in the bargaining unit pursuant to regulation 6.

The Director of Employment must determine the application for statutory recognition within 30 working days of receipt OR, in exceptional circumstances, extend for a further 30 working days [60 working days].

Before making such an order, the Director of Employment must consider:

• the need for the bargaining unit to be compatible with effective management;
• the views of the employer and the trade union; and
• the desirability of avoiding small fragmented bargaining units within an undertaking.

Secret Ballot

As mentioned above, where the trade union has less than 50% support of employees in the bargaining unit, the Director of Employment has to call a secret ballot, if –

• the Director of Employment is satisfied that a secret ballot must be held in the interests of good industrial relations;
• the Director of Employment has evidence, which it considers credible, from at least a corresponding percentage of employees to those supporting union recognition in the bargaining unit that they do not want the trade union to conduct collective bargaining on their behalf; or
• membership evidence regarding the circumstances in which employees joined the trade union or length of membership leads to doubts whether there are a significant number of trade union members in the bargaining unit.

Where the secret ballot is held, it must be conducted by a “qualified independent person” appointed by the Director of Employment.  A person is considered a qualified independent person where –

“there are no grounds for believing either that the person will carry out any conferred functions in relation to the secret ballot otherwise than competently and that the person’s independence in relation to the secret ballot might reasonably be called into question.”

The secret ballot must be conducted within 20 working days [commencing the day after the independent person is appointed] or another longer period as directed by the Director of Employment.

It shall be conducted either:

(a) at a workplace decided by the Director of Employment;

(b) by post; or

(c) by a combination of the methods described in paragraphs (a) and (b).

Costs for conducting the secret ballot are divided equally between the employer and the trade union.

Once the secret ballot is held, the qualified independent person, must as soon as reasonably practicable, inform the employer and the trade union of the result of the secret ballot.

For more information and/or legal advice in respect of Employment law (or, more specifically, the above article), feel free to contact our employment law team:

E: aplows@prtlawyers.com

T: +350 225 02275

Readers can find the Regulations referred to within this article here.

Please note that the information and any commentary on the law contained in this article is only intended as a general statement and is provided for information purposes only and no action should be taken in reliance on it without specific legal advice. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequence of relying on it, is assumed by the author. Further, this article note is not intended to amount to legal advice, reflects only the author’s views and is not intended to reflect the views of PEREZ RODRIGUEZ TRENADO LLP or any other entity associated with or connected with the author and/or PEREZ RODRIGUEZ TRENADO LLP.