Statutory trade union recognition
We gave full details of the changes to the statutory trade union recognition procedure in our Guide to the Employment Relations Act 2004 (“the Act”) which was published in December 2004 (see Circular Letter 230 of 2004). The Guide also outlined the likely impact of them.
Briefly, from 1 October 2005, the most significant of the amendments to the procedure made by the Act will come into force. They impose new duties on the parties during the ballot stage (for both recognition and derecognition claims) by inserting additional provisions into Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 as follows:
• a duty on employers to refrain from offering inducements to and to refrain from threatening to take action against employees for attending a union meeting held in the ballot period (section 9 of the Act inserting new paragraphs 26(4A) - 26(4C) into Schedule A1)
• a definition of conduct which will be deemed to be a breach of the employer’s duty to give the union access to the workforce in the bargaining unit during the ballot period (section 9 inserting new paragraph 26(4D) into Schedule A1) and
• a definition of conduct during the ballot period which, on the part of the employer and/or the union, will be classified as an “unfair practice” (section 10 of the Act inserting new paragraphs 27A - 27F into Schedule A1).
For a full analysis of the changes, see the Guide.
Transitional arrangements
The new duties apply from 1 October 2005. They apply to cases that have already been accepted by the CAC, unless by that date the CAC has already informed the parties (under paragraph 25(9)) of Schedule A1) of the arrangements for a ballot.
Revised Code of Practice
The revised Code of Practice, which has been given the new title ‘Code of Practice: access and unfair practices during recognition and derecognition ballots’, is available online at http://dtiinfo1.dti.gov.uk/er/er_act_2004.htm
Industrial action law
The Act also included significant changes to the law on industrial action ballots and ballot notices, intended to simplify the provisions. Again, full details of the changes were set out in our Guide to the Act but, briefly, they entail changing the specified information the union is required to give the employer in notices of an intention to hold a ballot for industrial action and the union’s notice of when the action will take place.
Previously, the notice had to contain such information in the union’s possession as would help the employer make plans and bring information to those of its employees who it was reasonable for the union to believe would be entitled to vote in the ballot. Section 22 of the Act replaces this last requirement so that the notice must now contain information in the form of specified lists of categories and numbers of employees at each workplace. It also permits unions to refer to those who pay their union dues by check-off.
Whilst the information the union supplies must be as accurate as is reasonably practicable in the light of the information in its possession at the time, there is a significant limitation on this requirement. Information is only treated as being in the possession of the union if it is held, for union purposes, in a document (which includes in electronic form) in the possession or under the control of an officer or employee of the union. This limitation effectively restricts the required information to that held centrally or regionally and excludes information held only by a shop steward or by a union branch.
Transitional provisions
The changes apply to notices that are given on or after 1 October 2005.
Revised Code of Practice
The ‘Code of Practice on industrial action notices and ballots’ has been revised in the light of the changes made by the Act. It is available online at http://dtiinfo1.dti.gov.uk/er/er_act_2004.htm