Employment Relations Bill

House of Commons

Session 2003 - 04
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Other Bills before Parliament

Employment Relations Bill

Employment Relations Bill
Part 1 — Union recognition
1

A
Bill
[AS AMENDED IN STANDING COMMITTEE D]
To
Amend the law relating to the recognition of trade unions and the taking of
industrial action; to make provision about means of voting in ballots under the
Trade Union and Labour Relations (Consolidation) Act 1992; to amend
provisions of that Act relating to rights of members and non-members of trade
unions and to make other provision about rights of trade union members,
employees and workers; to make further provision concerning the
enforcement of legislation relating to minimum wages; to make further
provision about proceedings before and appeals from the Certification Officer;
to make further provision about the amalgamation of trade unions; to make
provision facilitating the administration of trade unions and the carrying out
by them of their functions; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Part 1
Union recognition
1
Application for decision on whether proposed bargaining unit is appropriate
(1)
In paragraph 11(2) of Schedule A1 to the 1992 Act (application to CAC where
employer fails to respond to or rejects request for recognition), for paragraph
5
(a) substitute—
“(a)
whether the proposed bargaining unit is
appropriate;”.
(2)
In paragraph 12(2) of that Schedule (application to CAC where negotiations
with employer fail), for paragraph (a) substitute—
10
“(a)
whether the proposed bargaining unit is
appropriate;”.

Bill 61 53/3

Employment Relations Bill
Part 1 — Union recognition
2

2
Power of the CAC to end period for agreement on bargaining unit
(1)
Paragraph 18 of Schedule A1 to the 1992 Act (appropriate bargaining unit) is
amended as follows.
(2)
In sub-paragraph (2), after “is” insert “(subject to any notice under sub-
paragraph (3), (4) or (5))”.
5
(3)
After that sub-paragraph add—
“(3)
If, during the appropriate period, the CAC concludes that there is no
reasonable prospect of the parties’ agreeing an appropriate
bargaining unit before the time when (apart from this sub-
paragraph) the appropriate period would end, the CAC may, by a
10
notice given to the parties, declare that the appropriate period ends
with the date of the notice.
(4)
If, during the appropriate period, the parties apply to the CAC for a
declaration that the appropriate period is to end with a date
(specified in the application) which is earlier than the date with
15
which it would otherwise end, the CAC may, by a notice given to the
parties, declare that the appropriate period ends with the specified
date.
(5)
If the CAC has declared under sub-paragraph (4) that the
appropriate period ends with a specified date, it may before that date
20
by a notice given to the parties specify a later date with which the
appropriate period ends.
(6)
A notice under sub-paragraph (3) must contain reasons for reaching
the conclusion mentioned in that sub-paragraph.
(7)
A notice under sub-paragraph (5) must contain reasons for the
25
extension of the appropriate period.”
3
Duty of employer to supply information to union
After paragraph 18 of Schedule A1 to the 1992 Act insert—
“18A  (1)
This paragraph applies if the CAC accepts an application under
paragraph 11(2) or 12(2).
30
      (2)
Within 5 working days starting with the day after that on which the
CAC gives the employer notice of acceptance of the application, the
employer must supply the following information to the union (or
unions) and the CAC—
(a)
a list of the categories of worker in the proposed bargaining
35
unit,
(b)
a list of the workplaces at which the workers in the proposed
bargaining unit work, and
(c)
the number of workers the employer reasonably believes to
be in each category at each workplace.
40
      (3)
The lists and numbers supplied under this paragraph must be as
accurate as is reasonably practicable in the light of the information in
the possession of the employer at the time when he complies with
sub-paragraph (2).
      (4)
The lists and numbers supplied to the union (or unions) and to the
45
CAC must be the same.

Employment Relations Bill
Part 1 — Union recognition
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      (5)
In this paragraph “workplace” in relation to a worker means—
(a)
if the person works at or from a single set of premises, those
premises, and
(b)
in any other case, the premises with which the worker’s
employment has the closest connection.”
5
4
Determination of appropriate bargaining unit
For paragraph 19 of Schedule A1 to the 1992 Act substitute—
“19   (1)
This paragraph applies if—
(a)
the CAC accepts an application under paragraph 11(2) or
12(2),
10
(b)
the parties have not agreed an appropriate bargaining unit at
the end of the appropriate period (defined by paragraph 18),
and
(c)
at the end of that period either no request under paragraph
19A(1)(b) has been made or such a request has been made but
15
the condition in paragraph 19A(1)(c) has not been met.
      (2)
Within the decision period, the CAC must decide whether the
proposed bargaining unit is appropriate.
      (3)
If the CAC decides that the proposed bargaining unit is not
appropriate, it must also decide within the decision period a
20
bargaining unit which is appropriate.
      (4)
The decision period is—
(a)
the period of 10 working days starting with the day after that
with which the appropriate period ends, or
(b)
such longer period (so starting) as the CAC may specify to the
25
parties by notice containing reasons for the extension.
19A   (1)
This paragraph applies if—
(a)
the CAC accepts an application under paragraph 11(2) or
12(2),
(b)
during the appropriate period (defined by paragraph 18), the
30
CAC is requested by the union (or unions) to make a decision
under this paragraph, and
(c)
the CAC is, either at the time the request is made or at a later
time during the appropriate period, of the opinion that the
employer has failed to comply with the duty imposed by
35
paragraph 18A.
      (2)
Within the decision period, the CAC must decide whether the
proposed bargaining unit is appropriate.
      (3)
If the CAC decides that the proposed bargaining unit is not
appropriate, it must also decide within the decision period a
40
bargaining unit which is appropriate.
      (4)
The decision period is—
(a)
the period of 10 working days starting with the day after the
day on which the request is made, or
(b)
such longer period (so starting) as the CAC may specify to the
45
parties by notice containing reasons for the extension.

Employment Relations Bill
Part 1 — Union recognition
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19B   (1)
This paragraph applies if the CAC has to decide whether a
bargaining unit is appropriate for the purposes of paragraph 19(2) or
(3) or 19A(2) or (3).
      (2)
The CAC must take these matters into account—
(a)
the need for the unit to be compatible with effective
5
management;
(b)
the matters listed in sub-paragraph (3), so far as they do not
conflict with that need.
      (3)
The matters are—
(a)
the views of the employer and of the union (or unions);
10
(b)
existing national and local bargaining arrangements;
(c)
the desirability of avoiding small fragmented bargaining
units within an undertaking;
(d)
the characteristics of workers falling within the bargaining
unit under consideration and of any other employees of the
15
employer whom the CAC considers relevant;
(e)
the location of workers.
      (4)
In taking an employer’s views into account for the purpose of
deciding whether the proposed bargaining unit is appropriate, the
CAC must take into account any view the employer has about any
20
other bargaining unit that he considers would be appropriate.
      (5)
The CAC must give notice of its decision to the parties.”
5
Union communications with workers after acceptance of application
(1)
After paragraph 19B of Schedule A1 to the 1992 Act (which is inserted by
section 4) insert—
25
“Union communications with workers after acceptance of application
19C   (1)
This paragraph applies if the CAC accepts an application under
paragraph 11(2) or 12(2) or (4).
      (2)
The union (or unions) may apply to the CAC for the appointment of
a suitable independent person to handle communications during the
30
initial period between the union (or unions) and the relevant
workers.
      (3)
In the case of an application under paragraph 11(2) or 12(2), the
relevant workers are—
(a)
in relation to any time before an appropriate bargaining unit
35
is agreed by the parties or decided by the CAC, those falling
within the proposed bargaining unit, and
(b)
in relation to any time after an appropriate bargaining unit is
so agreed or decided, those falling within the bargaining unit
agreed or decided upon.
40
      (4)
In the case of an application under paragraph 12(4), the relevant
workers are those falling within the bargaining unit agreed by the
parties.
      (5)
The initial period is the period starting with the day on which the
CAC informs the parties under sub-paragraph (7)(b) and ending
45
with the first day on which any of the following occurs—

Employment Relations Bill
Part 1 — Union recognition
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(a)
the application under paragraph 11 or 12 is withdrawn;
(b)
the CAC gives notice to the union (or unions) of a decision
under paragraph 20 that the application is invalid;
(c)
the CAC notifies the union (or unions) of a declaration issued
under paragraph 19F(5) or 22(2);
5
(d)
the CAC informs the union (or unions) under paragraph
25(9) of the name of the person appointed to conduct a ballot.
      (6)
A person is a suitable independent person if—
(a)
he satisfies such conditions as may be specified for the
purposes of paragraph 25(7)(a) by an order under that
10
provision, or is himself specified for those purposes by such
an order, and
(b)
there are no grounds for believing either that he will carry out
any functions arising from his appointment otherwise than
competently or that his independence in relation to those
15
functions might reasonably be called into question.
      (7)
On an application under sub-paragraph (2) the CAC must as soon as
reasonably practicable—
(a)
make such an appointment as is mentioned in that sub-
paragraph, and
20
(b)
inform the parties of the name of the person appointed and
the date of his appointment.
      (8)
The person appointed by the CAC is referred to in paragraphs 19D
and 19E as “the appointed person”.
19D   (1)
An employer who is informed by the CAC under paragraph
25
19C(7)(b) must comply with the following duties (so far as it is
reasonable to expect him to do so).
      (2)
The duties are—
(a)
to give to the CAC, within the period of 10 working days
starting with the day after that on which the employer is
30
informed under paragraph 19C(7)(b), the names and home
addresses of the relevant workers;
(b)
if the relevant workers change as a result of an appropriate
bargaining unit being agreed by the parties or decided by the
CAC, to give to the CAC, within the period of 10 working
35
days starting with the day after that on which the bargaining
unit is agreed or the CAC’s decision is notified to the
employer, the names and home addresses of those who are
now the relevant workers;
(c)
to give to the CAC, as soon as reasonably practicable, the
40
name and home address of any worker who joins the
bargaining unit after the employer has complied with
paragraph (a) or (b);
(d)
to inform the CAC, as soon as reasonably practicable, of any
worker whose name has been given to the CAC under
45
paragraph (a), (b) or (c) and who ceases to be a relevant
worker (otherwise than by reason of a change mentioned in
paragraph (b)).
      (3)
Nothing in sub-paragraph (2) requires the employer to give
information to the CAC after the end of the initial period.
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Employment Relations Bill
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      (4)
As soon as reasonably practicable after the CAC receives any
information under sub-paragraph (2), it must pass it on to the
appointed person.
19E   (1)
During the initial period, the appointed person must if asked to do
so by the union (or unions) send to any worker—
5
(a)
whose name and home address have been passed on to him
under paragraph 19D(4), and
(b)
who is (so far as the appointed person is aware) still a
relevant worker,

any information supplied by the union (or unions) to the appointed
10
person.
      (2)
The costs of the appointed person shall be borne—
(a)
if the application under paragraph 19C was made by one
union, by the union, and
(b)
if that application was made by more than one union, by the
15
unions in such proportions as they jointly indicate to the
appointed person or, in the absence of such an indication, in
equal shares.
      (3)
The appointed person may send to the union (or each of the unions)
a demand stating his costs and the amount of those costs to be borne
20
by the recipient.
      (4)
In such a case the recipient must pay the amount stated to the person
sending the demand and must do so within the period of 15 working
days starting with the day after that on which the demand is
received.
25
      (5)
In England and Wales, if the amount stated is not paid in accordance
with sub-paragraph (4) it shall, if a county court so orders, be
recoverable by execution issued from that court or otherwise as if it
were payable under an order of that court.
      (6)
Where an amount is recoverable under sub-paragraph (5) execution
30
may be carried out, to the same extent and in the same manner as if
the union were a body corporate, against any property held in trust
for the union other than protected property as defined in section
23(2).
      (7)
References to the costs of the appointed person are to—
35
(a)
the costs wholly, exclusively and necessarily incurred by the
appointed person in connection with handling during the
initial period communications between the union (or unions)
and the relevant workers,
(b)
such reasonable amount as the appointed person charges for
40
his services, and
(c)
such other costs as the union (or unions) agree.
19F   (1)
If the CAC is satisfied that the employer has failed to fulfil a duty
mentioned in paragraph 19D(2), and the initial period has not yet
ended, the CAC may order the employer—
45
(a)
to take such steps to remedy the failure as the CAC considers
reasonable and specifies in the order, and
(b)
to do so within such period as the CAC considers reasonable
and specifies in the order;

Employment Relations Bill
Part 1 — Union recognition
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and in this paragraph a “remedial order” means an order under this
sub-paragraph.
      (2)
If the CAC is satisfied that the employer has failed to comply with a
remedial order and the initial period has not yet ended, the CAC
must as soon as reasonably practicable notify the employer and the
5
union (or unions) that it is satisfied that the employer has failed to
comply.
      (3)
A remedial order and a notice under sub-paragraph (2) must draw
the recipient’s attention to the effect of sub-paragraphs (4) and (5).
      (4)
Sub-paragraph (5) applies if—
10
(a)
the CAC is satisfied that the employer has failed to comply
with a remedial order,
(b)
the parties have agreed an appropriate bargaining unit or the
CAC has decided an appropriate bargaining unit,
(c)
in the case of an application under paragraph 11(2) or 12(2),
15
the CAC, if required to do so, has decided under paragraph
20 that the application is not invalid, and
(d)
the initial period has not yet ended.
      (5)
The CAC may issue a declaration that the union is (or unions are)
recognised as entitled to conduct collective bargaining on behalf of
20
the workers constituting the bargaining unit.”
(2)
In each of paragraphs 22(1)(a) and 23(1)(a) of Schedule A1 to the 1992 Act
(procedure when CAC proceeds with an application in accordance with
paragraph 20 or 21), after “or 21” insert “(and makes no declaration under
paragraph 19F(5))”.
25
(3)
In paragraph 26 of that Schedule (duties of employer where ballot on union
recognition is to be held), in sub-paragraph (4)(c), for “(a) or (b) but” substitute
“19D or paragraph (a) or (b) of this sub-paragraph and”.
(4)
In that paragraph, after sub-paragraph (4) insert—
    “(4A)
Sub-paragraph (4)(a) does not apply to names and addresses that the
30
employer has already given to the CAC under paragraph 19D.
    (4B)
Where (because of sub-paragraph (4A)) the employer does not have
to comply with sub-paragraph (4)(a), the reference in sub-paragraph
(4)(b) to the time when the employer complied with sub-paragraph
(4)(a) is to be read as a reference to the time when the employer is
35
informed under paragraph 25(9).
     (4C)
If—
(a)
a person was appointed on an application under paragraph
19C, and
(b)
the person appointed to conduct the ballot is not that person,
40

the CAC must, as soon as is reasonably practicable, pass on to the
person appointed to conduct the ballot the names and addresses
given to it under paragraph 19D.”
(5)
In that paragraph, in sub-paragraph (6) for “given under sub-paragraph (5)”
substitute “passed on to him under paragraph 19D or this paragraph”.
45