In Akinosun (on behalf of General & Health Workers Union) v The Certification Officer the Employment Appeal Tribunal (Mr Justice Langstaff – President) upheld the refusal of the Certification Officer to list GAHWU as a trade union (from which follow a number of legal consequences, including the possibility of recognition for collective bargaining). The decision came down to the interpretation of the statutory definition of a trade union.
Section 1 of the Trade Union and Labour Relations Consolidation Act 1992 is headed “Meaning of Trade Union” and states:
In this Act a trade union means an organisation, whether temporary or permanent…which consists wholly or mainly of workers of one or more descriptions and whose principal purposes include the regulation of relations between workers of that description or those descriptions and employers or employers associations…
Section 2 of the Act provides that the Certification Officer must keep a list of trade unions. It is a question of fact whether or not an organisation fits the description of a trade union. It follows that if the purposes of the organisation do not include the regulation of relations between workers and employers then the Certification Officer cannot certify the organisation as a trade union, notwithstanding any declaration which may have been made. Further, a union carries out collective work for its members. Therefore an organisation which exists to provide representation at internal hearings would not, for that reason alone, be a union.
Mr Akinosun and Mr Adelaja were directors of a company called ERRAS Ltd (an acronym for Employment Rights Representation and Advisory Services), which offered representation to health workers, at a fee. No one from ERRAS could accompany workers at grievance or disciplinary hearings – it not being a union – which was a bit of a gap in the service offered. They therefore set up the General and Health Workers Union (GAHWU), with which they shared an office and facilities with the intention, they said, of the administration of the union being taken over by elected officers, once the union had some members. At the time of the original application GAHWU did not yet have any members, but the CO overlooked that although it could have been a ground for refusal, as he anticipated that it could soon be remedied and a new application would follow. However, he concluded that the real reason for the formation of GAHWU was to promote the commercial benefit of ERRAS rather than for the regulation of relations between workers and employees. Further, while it might in future become a trade union – it was not one yet, and the main function it would perform would be individual, rather than collective.
Mr Justice Langstaff summarised the problem succinctly: “…the question of whether a trade union is a trade union cannot be answered by answering a different question – whether it will or might be reasonable to think it will become a trade union”.