Postal votes for workers absent from ballot at workplace

60.     Clause 7 amends paragraphs 25 and 117 of Schedule A1. Paragraph 25 applies where the CAC arranges to hold a ballot on union recognition. Paragraph 25(4) provides that the ballot must be conducted, depending on the CAC's preference, at a workplace, by post or by a combination of these methods. The CAC's decision on the form of the ballot must take into account:

• the likelihood of the ballot being affected by unfairness or malpractice if it were conducted at a workplace or workplaces;

• costs and practicality; and

• such other matters as the CAC considers appropriate

61.     The CAC may not decide that the ballot is to be conducted by a combination of postal and workplace voting unless special factors make this appropriate. Paragraph 117 mirrors these provisions in the case of ballots on derecognition.

62.     Clause 7 amends the provisions of these paragraphs to allow workers who are allotted a vote at the workplace to vote by post if they are unable for personal reasons to attend their workplace on the day of the ballot.

63.     Subsection (1) of clause 7 inserts a new sub-paragraph (6A) into paragraph 25. Where the CAC decides that the ballot must be conducted (in whole or in part) at the workplace, new subparagraph (6A) enables it to require arrangements to be made to allow workers who are would unable to vote at the workplace for reasons relating to themselves as individuals (for example illness, leave etc.) to vote by post.

64.     Subsection (2) of clause 7 inserts new sub-paragraph (8A) into paragraph 117, and allows for postal votes in similar circumstances when the CAC decides that a ballot on derecognition must be conducted wholly or in part at the workplace.

65.     In combination, the paragraphs inserted by subsections (1) and (2) make clear that a ballot should not be considered to be a combination ballot solely because the CAC makes arrangements, in accordance with the paragraphs, under which a worker or workers voting in a workplace ballot will receive a postal vote.

Application where agreement does not cover pay, hours and holidays

66.     Clause 8 clarifies that a union may apply to the CAC when any one or more of the "core bargaining" topics are not included in the pre-existing agreement.

67.     Where the CAC declares a union recognised, it is for collective bargaining on pay, hours and holidays (although the parties may vary this by agreement). These three items are regarded as the "core" issues for collective bargaining. Under paragraphs 35 and 44 of the Schedule, an application to the CAC for recognition is inadmissible or invalid if the applicant union is already recognised under a collective agreement covering any of the workers in the proposed bargaining unit and that agreement covers pay or hours or holidays. There has been some confusion over the meaning of these paragraphs in the 1992 Act. It has been contended that they imply that the CAC may only accept an application in these circumstances where the existing agreement covers none of pay, hours or holidays. An alternative view is that an application would be admissible if the collective agreement already in force covered one or more (but not all) of pay, hours and holidays. Clause 8 provides that in such circumstances a union's application to the CAC is admissible if the collective agreement already in force does not cover all of pay, hours and holidays. Accordingly the CAC will be able to proceed with an application if the existing collective agreement only covers one or two of the matters (or none) but not if it covers all three.

Employer's notice to end bargaining arrangements

68.     Clause 9 amends those provisions in Part IV of Schedule A1 which deal with an employer's notice under paragraph 99 of the Schedule that he wishes the bargaining arrangements which are the result of an earlier declaration of statutory recognition by the CAC to cease to have effect. Such notice may be given if the employer believes that he, taken with any associated employer(s), employed an average of fewer than 21 workers in a given 13 week period, and if three years have passed since the CAC awarded recognition. The CAC must decide if such a notice complies with the requirements of paragraph 99(3). These are that the notice:

• identifies the bargaining arrangements;

• specifies the period of 13 weeks in question;

• states the date on which the notice is given;

• is given within 5 working days of the day after the day on which the specified 13 week period ends;

• states that the employer, taken with an associated employers, employed an average of fewer than 21 workers in the specified 13-week period; and

• states that the bargaining arrangements are to cease to have effect on a date at least 35 days later than the day after the date on which the notice has been given.

69.     If the notice complies with the above the bargaining arrangements will cease to have effect on the day stated unless the union makes an application to the CAC under paragraph 101 of the Schedule, asking it to decide whether the period of 13 weeks specified by the employer in fact ended within three years of the CAC's declaration and whether it is correct that the employer and any associated employers, employed an average of fewer than 21 workers in the specified 13-week period. If the CAC accepts this application by the union, it must allow both union and employer to put their views on the questions to be decided and reach a decision about them. If the CAC decides that the employer's notice is correct and three years have passed since its declaration, then the bargaining arrangements will cease to have effect on the termination date. If the CAC finds that the employer's notice has been given within three years of its declaration, or that the notice is not correct, the employer's notice is treated as though it had not been given.

70.     Currently, an application by the union under paragraph 101 to challenge the employer's notice cannot be accepted by the CAC if within the period of three years prior to that application the CAC has accepted an application:

• by the union under paragraph 101; or

• by the employer or a worker or workers under paragraph 106, 107, 112 or 128, that the bargaining arrangements should cease to have effect.

and the two applications are in respect of the same bargaining unit. This has the effect that if the union has successfully challenged an employer's notice to end bargaining arrangements or has won a derecognition ballot in the previous three years, it cannot challenge a further application by the employer under paragraph 99, thus allowing the union to be derecognised without having an opportunity to put its views before the CAC.

71.     Clause 9 rectifies this anomaly by providing that a previous relevant application (either a challenging application by the union, or an application to have bargaining arrangements ended by the employer or worker(s)) does not render an application by the union under paragraph 101 inadmissible. The clause also provides that any unsuccessful application or notice to derecognise the union by the employer or a worker (or workers) renders any further such applications inadmissible for a period of three years.

72.     Clause 9(4) inserts a new paragraph 99A which provides that a derecognition notice given by the employer under paragraph 99 is invalidated if a relevant application or earlier notice relating to the same bargaining unit was given within three years prior to the date on which the current derecognition notice is given, that relevant application was accepted by the CAC, or the CAC decided that that notice complied with paragraph 99(3). A relevant application is an application for derecognition made by the employer under paragraph 106, 107 or 128, or an application by a worker (or workers) under paragraph 112.

73.     Subsections (1) to (3) and (5) of clause 9 make consequential amendments to paragraphs 99 and 100.

74.     Subsection 9(6) removes the bars on a union's application in response to an employer's notice contained in paragraph 101(4) and (5). These paragraphs previously had the effect that a union could not make an application to the CAC under paragraph 101 (such an application requests the CAC to decide whether the employer's notice that he no longer employs an average of 21 or more workers is correct) if:

• the CAC had accepted an application by the employer or worker(s) to derecognise the union in respect of the same bargaining unit; or

• the CAC had accepted a similar previous application by the union under paragraph 101

within the three years prior to the date of the union's application.

75.     Subsection (7) of clause 9 inserts new sub-paragraphs into paragraph 103 to ensure that a derecognition notice by the employer under paragraph 99 shall be treated as given for the purposes of deciding the admissibility of derecognition applications by the employer or worker(s) under paragraphs 106, 107, 112 and 128 or for deciding the validity of later notices under paragraph 99 even though it is not treated as being given for other purposes.

76.     Subsection (8) of clause 9 amends paragraphs 109, 113 and 130 of the Schedule. It has the effect that if there is a derecognition application by the employer or worker(s) under paragraphs106, 107, 112 or 128 and within the three years prior to the date of the application a notice under paragraph 99 was given which the CAC decided complied with paragraph 99(3) the CAC must not accept the derecognition application.

77.     Subsection (9) provides that an application by the union(s) under paragraph 101 in the three years prior to the date of a derecognition application under paragraph 106, 107, 112 or 128 does not render that later application inadmissible.

Appeals against demands for costs

78.     Clause 10 inserts a new paragraph 165A into the Schedule. It provides a right of appeal for the union(s) and/or employer against a demand for costs from a qualified independent person for the conduct of a ballot, or from an appointed person for sending information to the relevant workers.

79.     New paragraph 165A provides that the recipient of a demand under paragraph 19E(3) (for the costs of sending information), paragraph 28(4) (for the costs of a ballot on recognition) or paragraph 120(4) (for the costs of a ballot on derecognition) may appeal against the demand to an employment tribunal within four weeks of receiving it. The employment tribunal must dismiss the appeal unless it is shown that the amount demanded is too great, or the amount specified as the share of the costs to be borne by a particular recipient is too great.

80.     New paragraph 165A(6) provides that if an appeal is allowed, the tribunal must rectify that demand and the rectified demand shall have effect as though it were the original demand. New paragraph 165A(7) provides that a demand for costs is not enforceable until an appeal has been withdrawn or determined, but that after that time it shall be enforceable.

Power to amend Schedule A1 of the 1992 Act

81.     Clause 11 amends paragraph 166 of the Schedule. At present paragraph 166 contains limited powers for the Secretary of State to amend paragraphs 22 and 87 of the Schedule, by order, if the CAC informs the Secretary of State that either of these paragraphs has an unsatisfactory effect.

82.     Clause 11 widens the scope of paragraph 166, by giving the Secretary of State a general power to amend any provision of the Schedule, if requested to do so by the CAC.

83.     Subsection (2) of clause 11 replaces paragraphs 166(1) and (2) and inserts new paragraphs 16(2A) and 16(2B).

84.     New sub-paragraphs 166(1) and (2) provide for the CAC to ask the Secretary of State to amend any provision of the Schedule if they consider that it has an unsatisfactory effect and should be amended. The Secretary of State may seek to rectify the problem either by using powers she already has to amend the Schedule where the provision is among those to which the powers apply, or, if the existing powers do not apply to the provision, by using the new power in sub-paragraph 166(2)(b).

85.     New sub-paragraph (2A) clarifies that the Secretary of State has a discretion to amend the Schedule in any way and not just in a way suggested by the CAC. New sub-paragraph (2B) makes clear that the Secretary of State may use her existing powers to amend the Schedule, mentioned in new sub-paragraph (2)(a), without the need for any representation from the CAC.

86.     This clause will not alter the requirement in paragraph 166 that any change to the Schedule, whether under the specific or general power, must be by means of an order that is approved by both Houses of Parliament.

Means of communicating with workers

87.     Clause 12 inserts a new paragraph 166A in Schedule A1.

88.     New paragraph 166A(1) provides that paragraph 166A applies in relation to any provision of paragraph 19D(2), paragraph 26(4) or paragraph 118(4). These paragraphs require the employer to provide the names and home addresses of workers for the purposes of their being sent information by the union, or for the purposes of a ballot on recognition or derecognition.

89.     Paragraph 166A gives the Secretary of State an order-making power to provide that the employer must give to the CAC, in addition to the workers' home addresses, an address of a specified kind, which may include any address or number to which information can be sent by any means. Such an order must be made by statutory instrument and approved by both Houses of Parliament. The power contained in this clause will enable the Secretary of State to provide that employers must give the CAC addresses for workers which enable communication or voting in ballots to take place by other means as well as by post (see also commentary on clause 41).

Power to make provision about the effect of amalgamations etc.

90.     Clause 13 inserts new paragraphs 169A, 169B and 169C into the Schedule. Paragraph 169A provides an order-making power for the Secretary of State to make provision for any case where anything has been done under or for the purposes of the Schedule by or in relation to a union and that union amalgamates or transfers all or any of its engagements. For example, such an order may specify what will happen to an award of recognition where the union(s) in respect of which the award was made merges with another union or unions. The term "transfer of engagements" also covers the case where a union breaks up with the result that a section that was formerly a part of it becomes a union in its own right.

91.     New paragraph 169A(2) has the effect that an order under this paragraph may make provision for cases where an amalgamated union, or union to which engagements have been transferred, does not have a certificate of independence.

92.     New paragraph 169B contains a similar order-making power for the Secretary of State to make provision for any case where anything has been done under the purposes of the Schedule by or in relation to a group of workers and the employer of any of those workers is no longer their employer, by reason of a business transfer or otherwise.

93.     New paragraph 169C provides that an order under new paragraphs 169A or 169B must be approved by both Houses of Parliament.

Information about union membership and employment in bargaining unit

94.     Clause 14 inserts a new paragraph 170A into the Schedule. The new paragraph provides a power for the CAC to require the employer, the union(s) and applicant workers to give it specified information to help inform its decisions under the Schedule. It also specifies the CAC's processes in handling and making use of such information.

95.     New paragraph 170A(1) provides that the CAC may exercise the powers if it considers it necessary to do so to enable or assist it to exercise any of its functions under the Schedule.

96.     New paragraphs 170A(2) and (3) provide that the CAC may require an employer, a union or an applicant worker to give the CAC case manager specified information about:

• the workers in a specified bargaining unit;

• union membership among those workers;

• the likelihood of a majority of those workers being in favour of recognition of a union(s) on their behalf; or,

• the likelihood of a majority of those workers being in favour of having bargaining arrangements ended.

97.     New paragraph 170A(5) provides that the recipient of a requirement from the CAC must provide, within the specified period, as much of the specified information as is in his possession.

98.     New paragraph 170A(6) provides that the CAC case manager must prepare a report from the information supplied to him and submit this to the CAC. Under new paragraph 170A(8) he must also give a copy of this report to the employer, the union(s) and, if appropriate, the applicant worker(s).

99.     New paragraph 170A(7) provides that if an employer, union or worker fails to comply with a requirement the case manager's report must mention this failure and the CAC may draw an inference against the party concerned. New paragraph 170A(9) defines the terms "applicant worker", "CAC case manager" and "specified" for the purposes of paragraph 170A.

"Pay" and other matters subject to collective bargaining

100.     Clause 15 inserts new paragraph 171A into the Schedule. A CAC declaration of recognition is for collective bargaining on pay, hours and holidays. Paragraph 171A(1) clarifies that for the purposes of the Schedule, the definition of "pay" does not include any matters relating to a worker's membership of an occupational or personal pension scheme, his rights under that scheme, or his employer's contributions to it.

101.     New paragraphs 171A(2) to (4) permit the Secretary of State, by order, to amend relevant parts of the Schedule to add matters relating to pensions to the "core" bargaining topics of pay, hours and holidays. New paragraph 171A(5) allows the order to deem that the inclusion of pensions as a topic for collective bargaining shall have effect with regard to declarations of recognition and methods of collective bargaining already awarded under the Schedule.

102.     New paragraph 171A(7) provides that any order made by the Secretary of State under the paragraph must be approved by both Houses of Parliament.

Information required by Acas for ballots and ascertaining union membership

103.     Clause 16 inserts a new section 210A in the 1992 Act. Subsections (1) and (2) of the new section have the effect that where Acas is exercising its function to give assistance for the purpose of bringing about the settlement of a trade dispute, and the dispute is a recognition dispute, the parties to the dispute may jointly request Acas to hold a ballot of the workers involved or to ascertain their union membership.

104.      Subsection (4) of the new section provides that if such a request is made Acas, has the power to require the parties to the dispute to give it, within a specified period, such information as it may specify about the workers involved in the dispute. However, under subsection (5), Acas may only use the power only where it considers this is necessary to enable it to exercise its function to bring about a settlement and to assist it to comply with the parties' request for a ballot.

105.     Subsection (6) of the new section provides that the recipient of a requirement from Acas must provide, within the specified period, as much of the specified information as is in his possession. Subsection (7) of the new section provides that a request for Acas to conduct a ballot or ascertain union membership may be withdrawn by any party to the dispute at any time and that, if this occurs, Acas is to take no further steps to conduct the ballot or ascertain union membership. Under subsection (8), Acas is also required not to take those further steps if a party fails to comply with subsection (6). Subsection (9) provides that Acas is not required to comply with any request made under the new section.

106.     Subsection (10) defines the terms "party", "recognition dispute", "specified" and "workers" for the purposes of the new section.

PART TWO: INDUSTRIAL ACTION LAW

Ballots and Notices

107.     Sections 226 to 235 of the 1992 Act contain provisions relating to industrial action ballots and the ballot and industrial action notices that unions are required to give to employers. The Government introduced a number of changes to the provisions, including sections 226A and 234A dealing with notices, in the 1999 Act.

108.     A trade union that organises industrial action would, in the absence of statutory provision to the contrary be liable under the common law for the civil wrong of inducing a breach of contract. However, the 1992 Act protects unions from the legal liability that would otherwise result if certain conditions are satisfied. One of these is that before inducing its members to take part in industrial action, the union must have held a properly conducted secret ballot of the members it is likely to induce to take part. Other conditions are that the union must give the employers concerned advance notice in writing of the ballot and of the industrial action. Generally, the "ballot notice" has to describe which employees the union believes will be entitled to vote in the ballot, and the "industrial action notice" has to describe which employees the union intends to induce to take part in the industrial action.

109.     The review of the 1999 Act and consultation process found that, following the amendments, these provisions of the 1992 Act were generally working well. However, the judgment in the case of National Union of Rail, Maritime and Transport Workers v London Underground Limited [2001] IRLR 228 highlighted a difficulty with the way in which information required to be given in ballot and industrial action notices should be presented. Further, the case of National Union of Rail, Maritime and Transport Workers v Midland Mainline Ltd [2001] IRLR 813 revealed that there was a lack of clarity as to the union members to whom the union was required to give an entitlement to vote in an industrial action ballot. Clauses 17, 18 and 20 address these matters.

Information about employees to be balloted on industrial action

110.     Clause 17 amends section 226A of the 1992 Act, which specifies the information required to be contained in a "ballot notice".

111.     Section 226A currently requires a union conducting an industrial action ballot to provide each employer the union reasonably believes to employ members who will be entitled to vote with a notice stating that it intends to hold a ballot and the starting date of the ballot. As the section is at present, the notice is also required to contain information in the union's possession that would help the employer to make plans and bring information to the attention of the employees the union intends to ballot, and has to include information, if the union has it, as to the number of employees involved, their category of work and workplace. The notice must be received by the employer at least 7 days before the starting date of the ballot.

112.     Additionally, the union has to ensure that each employer concerned receives a sample voting paper at least 3 days before the starting date of the ballot.

113.     Clause 17 is intended to simplify the requirements of section 226A by making changes to the information the union is required to supply. The changes make it desirable, in the interests of clarity, to restructure the provisions of the section and the clause therefore does so.

114.     Subsection (2) of the clause contains an amendment that is consequential on the insertion into section 226A of the new subsection (2E) by subsection (4) of the clause. The new subsection (2E) relates to the requirement to provide an employer concerned with a sample voting paper and makes no substantive legal change to the requirement.

115.     Subsection (3) of the clause substitutes for the current subsection (2)(c) of section 226A a new subsection (2)(c). The substitution has the effect that the information unions are required to include in the notice must contain the lists and figures mentioned respectively in new subsections (2A) and (2B) inserted into section 226A by subsection (4) of the clause. The intention is to reduce the uncertainty currently present in section 226A by making the information that the union must supply specific and removing the need for the union to determine what information has to be given by reference to what would help the employer to make plans and bring information to the attention of those to be balloted.

116.     Subsection (4) of the clause adds new subsections (2A) to (2H) to section 226A. New subsections (2A) and (2B), taken with the new subsection (2)(c), change the information required to be given by the current subsections (2)(c) and (3A) of section 226A.

117.     The effect of new subsection (2A) is that the notice must contain a list of the categories to which the "employees concerned" (that is to say, the employees of the employer who the union reasonably believes will be entitled to vote in the ballot) belong and a list of the workplaces at which they work.

118.     The effect of new subsection (2B) is that the notice must contain figures showing the total number of the employees concerned, the number of them in each category in the list of categories given in accordance with the new section (2A), and the number of them that work at each workplace in the list of workplaces given in accordance with the new subsection (2A).

119.     New subsection (2C) contains a new requirement that the lists and figures the union supplies are to be as accurate as reasonably practicable in the light of the information in the possession of the union.

120.     New subsection (2D) has the effect that for this purpose information is regarded as being in the possession of the union only if it is held, for union purposes, in a document (including an electronic document) and is in the possession or under the control of a union officer or an employee of the union. The effect is that information held only by branch officials or other lay representatives of the union is not in the union's possession for the purpose of subsection (2C).

121.     New subsection (2F) repeats the substance of the current subsection (3A)(b) of section 226A by ensuring that the section does not require the notice to name the employees concerned.

122.     New subsection (2G) defines the term "employees concerned" to mean those employees who the union reasonably believes will be entitled to vote in the ballot.

123.     New subsection (2H) defines the term "workplace" in relation to an employee, so making section 226A more precise.

124.     Subsection (5) of the clause omits the current subsections of section 226A that are superseded by the clause, while subsection (6) makes a change to a reference in section 226A(5) that is consequential on the insertion of new subsections (2A) to (2H).