What is a 'pre-existing' agreement?

In order to qualify as a ‘pre-existing’ agreement, it must:

• be in writing;

• be made before you receive a valid employee request triggering the statutory negotiating process;

• cover all employees in your company, from the most senior to the most junior. You can achieve this by using more than one agreement (for example, one for production workers, one for staff/management, or separate agreements for separate sites, etc);

• set out how you will give information to your employees or their representatives and consult with them about it; and

• be approved by the workforce.

The law is not clear on how you can demonstrate that your employees have approved the agreement (or agreements if more than one) but the following is likely to be acceptable:

• a simple majority in a ballot;

• signatures from a majority of your employees; or

• approval by employee representatives who represent a majority of the workforce.

Note, though, that if you rely on a number of agreements to make up a composite ‘pre-existing’ agreement, they must all meet the qualifying criteria. A fault with one means all the agreements lose this status.