There is increasing discussion about a new rugby players union in England. Leicester and England prop Ellis Genge is at the heart of a new plan to “shake up the rugby scene”, after being disappointed at the advice given to players over measures taken by clubs as a result of the Coronavirus crisis. He has the support of other players, too, though it is not clear how many.

Genge explained his views on this week’s episode of the Rugby Union Weekly podcast, and it is well worth a listen. He spoke passionately about looking out for players’ best interests and about changing the way they conduct their affairs, particularly with clubs.

Chief among his concerns is the fact that the Rugby Players Association (“RPA”), the existing players’ trade union, is funded in the most part by the RFU and Premiership Rugby (“PRL”). Though RPA members pay subscription fees, these make up a very small proportion (approximately 7.6% based on the RPA’s 2018 Annual Return) of the organisation’s total funding. Genge, rightly, feels the RPA is somewhat compromised by virtue of this arrangement – it “can’t bite the hand that feeds”. There is a clear conflict of interest, and a lack of independence.

Genge insists that he is not “making a new RPA” and praises the work they do for player welfare, but wants to ensure that players can get strong, independent advice from business and legal professionals.

This article will explain the legal requirements of becoming a trade union and will consider the legal challenges that a new players’ union might face in asserting itself, particularly as regards collective bargaining. These challenges may not necessarily be seen as problems by Genge and his fellow players, as they may not intend for the union to have such a broad function, but they are, nonetheless, important considerations. The commercial potential of a new union will also be discussed.

1. Establishing a Trade Union

For the purposes of English labour law, a “trade union” is defined by s.1(a) of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) as:

…an organisation (whether temporary or permanent)—

(a) 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… (Emphasis Added)

This definition has been subject to interpretation. The term “organisation” has been taken as implying that the group of workers must have a degree of form and structure. Features such as a name, a constitution, rules, meetings, minutes, an office, property and funding would point towards a group of workers being an “organisation” Frost v Clarke & Smith Manufacturing Co Ltd [1973] IRLR 216.

The “regulation of relations between workers…and employers” has also been considered judicially. The Employment Appeal Tribunal held in Akinosun v the Certification Officer that this requires an organisation to show that “a principal purpose of the organisation is collective in nature”. In that case, an organisation which did not have such a purpose but existed to provide representation at internal hearings “would not, purely by reason of that alone, be a trade union”. An organisation may have multiple purposes but there must be a collective, rather than individual, element to the organisation’s work in regulating the relationship between workers and employers. In other words, the organisation must be involved in regulating the relations between two sides of the industry generally, not only by supporting individuals. A trade union may not be registered as a company under the Companies Act 2006 (s.10(3) TULRCA).

Why is this important? Having the status of a “trade union” affords more rights to individual workers against their employers and is necessary to use the statutory collective bargaining procedures. It also allows the organisation to be listed by the “Certification Officer”, a pre-requisite for obtaining certain tax reliefs and a certificate of independence (see 2, below).

Formally existing as a trade union would also enable the union to strike effectively. Employees can be protected against dismissal under ss.238-238A TULRCA in certain circumstances, even where they are not trade union members, but a pre-requisite for such protection is that the industrial action is not “unofficial”. To not be “unofficial”, the industrial action must be authorised or endorsed by a trade union. Of course, there are many other legal hurdles to organising industrial action but existing as a trade union in the terms of TULRCA would make it a viable option. A new union might wish to organise industrial action, or a strike, in particular to pressure the clubs/PRL/RFU to recognise the union for the purposes of collective bargaining (see 3, below). Genge and co should therefore take care to ensure that any new organisation is legally a trade union.

2. Independence

In addition to being a trade union at law, the new players’ union may wish to be “independent” (s.5 TULRCA). Independence from the clubs and the RFU seems, understandably, to be a key priority in the players’ vision. If a trade union is listed, and meets the statutory test for independence, it can be given a certificate of independence. This has various advantages, both for the union and its potential members.

Every worker has, as against their employer, the right to join and participate in the affairs of an independent union, by virtue of the protections against dismissal (s.152 TULRCA) and subjection to inducements/detriment (ss.145A, 145B & 146 TULRCA) as a result of such activities. This effectively confers on independent unions the right to recruit members – as workers cannot lawfully be dismissed or otherwise subjected to detriment for getting involved. This could be crucial in the context of a new rugby players’ union, as players may be reluctant to join a new union for fear of retribution by their clubs. Independence would protect them, subject to the relevant sections of TULRCA.

Moreover, only an independent union may apply to be recognised for the purposes of the statutory collective bargaining procedures (para 6, Sched A1 TULRCA), which could be crucial if clubs are unwilling to negotiate with them (see 3, below). Only independent unions may effectively bargain away the right to strike, too (s.180 TULRCA). As such, there is clear value in being an “independent trade union”.

It is worth noting, however, the (limited) protections available to individuals even where the trade union is not independent under TULRCA. Section 137 prevents employers from refusing to employ someone on the basis of their union membership and, under ss.10-13 of the Employment Relations Act 1999, every worker has the right to be accompanied to grievance and disciplinary hearings by a union official.

So, what does “independence” mean? Section 5 TULRCA defines an “independent trade union” as a trade union which:

(a) is not under the domination or control of an employer or group of employers or of one or more employers’ associations, and

(b) is not liable to interference by an employer or any such group or association (arising out of the provision of financial or material support or by any other means whatsoever) tending towards such control (Emphasis Added)

This may require objective consideration of all the circumstances, where the union is not clearly controlled by an employer or group of employers. Relevant factors include the union’s history, the scope of its membership base, its organisation and structure, the strength and source of its finance and its negotiating record (Blue Circle Staff Association v Certification Officer [1977] IRLR 20).

It is suggested that the RPA is unlikely to be considered independent on such an analysis, given that over 90% of its funding comes from the PRL and the RFU (the group of employers and the ‘rule-makers’). It is what commentators refer to as a ‘sweetheart union’. Any new players’ union will need to take heed of the above criteria and, primarily, source alternative funding.

3. Collective Bargaining

If the new players’ union wishes to conduct collective bargaining with Premiership clubs (and/or PRL and/or the RFU), it will need to be “recognised”. Under s.178 TULRCA, “collective bargaining” means negotiations relating to or connected with matters such as the terms and conditions of employment, the allocation of work, discipline, and the machinery for negotiation including as to recognition. “Recognition” means “the recognition of the union by an employer, or two or more associated employers, to any extent for the purpose of collective bargaining” (s.178(3)).

Recognition may be voluntary or involuntary. If the Premiership clubs (PRL) and/or the RFU want to recognise a new players’ union, they are free to do so. It seems unlikely that they would, given the existence and role of the RPA, though a new union might be able to force their hand. However, under a voluntary arrangement, they would also (prima facie) be free to de-recognise the union at will.

If there is no voluntary recognition of the union, the union may seek to make use of the statutory recognition procedure, under Schedule A1 TULRCA. This makes it more difficult for the union to be de-recognised, but it may only enable collective bargaining as to pay, hours and holiday.

There are various requirements that must be satisfied to make use of this. If the union makes a request for recognition to an employer in respect of a “bargaining unit” (i.e. group of employees), and the employer refuses to agree, the union may apply to the Central Arbitration Committee (“CAC”), to make a declaration as to recognition. For such an application to be admissible, there must be a minimum of 10% of the workers in the “bargaining unit” who are members of the union and a majority that are in favour of recognition. Crucially, there must be no other union recognised by the employer (para 35 Sched A1 TULRCA), irrespective of its independence or representativity. This would be a significant obstacle for a new players’ union, as the clubs, PRL and the RFU already recognise the RPA.

If no agreement can be reached on de-recognition, which would likely be the case in relation to the RPA owing to its links with PRL/the RFU, there is a statutory de-recognition process. However, it is cumbersome and must be initiated by an individual – meaning that, in the rugby scenario, one player would have to take it upon themselves to start the process. A majority of individuals in the “bargaining unit” would need to support de-recognition in a ballot, too. In the context of non-independent unions (sweetheart unions), this area of law has been strongly criticised as infringing the right to freedom of association (Art.11 ECHR) – see The Pharmacists’ Defence Association Union v Boots Management Services Ltd and Bogg and Dukes (2017) ‘Article 11 ECHR and the right to collective bargaining: Pharmacists’ Defence Association Union v Boots Management Services Ltd.’ In the PDAU v Boots case, it took eight years for the PDAU to obtain recognition.

In light of this analysis, it is clear that a new rugby players’ union would face significant challenges in relation to collective bargaining. Indeed, it may be that it would be unable to collectively bargain on behalf of the players at all – at least for the foreseeable future.

As noted above, it would be possible for a new trade union to strike to try to obtain (voluntary) recognition, but the additional requirements created by the Trade Union Act 2016 for such action to be lawful have made this more difficult. There would also be serious questions of players missing out on pay and being sued for damages for breach of contract. There would be significant risks involved and, from the tone of media reports to date, I am not suggesting that this is likely.

4. The Wider Potential of a Union

Modern trade unions have multiple functions, going far beyond collective bargaining and the calling of industrial action. They may provide a range of services including legal advice, investment advice, investment opportunities, pension funds, insurance policies and representation. The Professional Footballers’ Association (“PFA”) is a good example of a modern trade union in action – a glance at its website reveals that the services it provides players are wide-ranging and more than hints at the model that Genge and co may be seeking to emulate.

The PFA also has a controlling interest in PFA Enterprises Ltd, its commercial arm. It looks after the PFA’s commercial interests as well as those of individual members, with various partner businesses providing services ranging from exclusive car deals to financial and legal advice. According to the PFA website, its Commercial Department also sources player appearances and deals with the Press Association, which provides employment for over 120 former PFA members.

From listening to and reading Ellis Genge’s comments, it seems that this commercial route is one which the new union would seek to take. Indeed, Genge has referred to support from friend James King, a venture capitalist. If it remains strongly independent from the clubs and their connected parties, such an organisation could be a promising way for players to maximise their earning capacity through investment and business opportunities, without worrying about the implications for the salary cap, and to have access to high quality advice. In this respect, the clubs might actually welcome the move. It might even reduce inflationary pressure in the wage market. Players, too, will be more likely to buy in and pay the necessary subscription fees if they know that they will (a) be provided with an excellent and full service to support their careers, and (b) receive a return on their investment, be it in the form of shares, a pension, or benefits in kind.

The RPA does appear to have a commercial arm – it has a controlling interest in RPA Management Ltd – but it is not entirely clear what its role is, nor the extent to which it enables players commercially.

Conclusion

The proposed new union for professional rugby players is an exciting idea. It reveals a belief within the player pool that there is more to be gained from the game commercially, be it directly or indirectly. It also suggests that there are areas in which players need further support. If it comes to fruition, it may help to attract greater investment to the sport generally and could see a revolution in the power held by professional rugby players.

Nonetheless, the above analysis demonstrates that its potential as a traditional trade union will be limited, owing to the obstacles to recognition and, thus, collective bargaining – at least in the short- to medium-term. On the other hand, there is significant room for growth as regards the broader services that a new union could offer, in what has been described as “supply side trade unionism” (Ewing).

However, to maximise its potential and to offer protection to prospective members, the new union should ensure that it meets the statutory definition of an “independent trade union”. This will require the union to have as one its purposes – factually, not just nominally – the regulation of relations between the players (collectively) and the clubs, PRL and the RFU. This would not restrict the commercial prospects of the organisation but would empower the players to the greatest extent possible.

Whether or not such a union will be compatible with the RPA remains to be seen. It is possible to foresee a new player-led and independently funded union winning the support of the majority of players and eventually superseding the RPA. Might it even bring about a comprehensive collective bargaining agreement for rugby, akin to those seen in American sports? For now, we are a long, long way away from that; but it does seem that change is on the horizon.