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Employment Relations Bill


Employment Relations Bill
Part 6 — Miscellaneous

40

 

election of that description is to be conducted by such one or more permissible

means as the responsible person determines.

(2)   

A “permissible means” is a means of voting that the order provides is

permissible for that description of ballot or election.

(3)   

“The responsible person” is a person specified, or of a description specified, by

5

the order.

(4)   

An order under this section may—

(a)   

include provision about the determinations that may be made by the

responsible person, including provision requiring specified factors to

be taken into account, or specified criteria to be applied, in making a

10

determination;

(b)   

allow the determination of different means of voting for voters in

different circumstances;

(c)   

allow a determination to be such that voters have a choice of means of

voting.

15

(5)   

The means that an order specifies as permissible means must, in the case of any

description of ballot or election, include (or consist of) postal voting.

(6)   

An order under this section may—

(a)   

include supplemental, incidental and consequential provisions;

(b)   

make different provision for different cases or circumstances.

20

(7)   

An order under this section may—

(a)   

modify the provisions of the 1992 Act;

(b)   

exclude or apply (with or without modifications) any provision of that

Act;

(c)   

make provision as respects any ballot or election conducted by

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specified means which is similar to any provision of that Act relating to

ballots or elections.

(8)   

The power to make an order under this section is exercisable by statutory

instrument.

(9)   

No order may be made under this section unless a draft of the order has been

30

laid before Parliament and approved by a resolution of each House.

(10)   

The Secretary of State shall not make an order under this section which

provides that a means of voting is permissible for a description of ballot or

election unless he considers—

(a)   

that a ballot or election of that description conducted by that means

35

could, if particular conditions were satisfied, meet the required

standard; and

(b)   

that, in relation to any ballot or election of that description held after the

order comes into force, the responsible person will not be permitted to

determine that that means must or may be used by any voters unless he

40

has taken specified factors into account or applied specified criteria.

(11)   

In specifying in an order under this section factors to be taken into account or

criteria to be applied by the responsible person, the Secretary of State must

have regard to the need for ballots and elections to meet the required standard.

(12)   

For the purposes of subsections (10) and (11) a ballot or election meets “the

45

required standard” if it is such that—

 

 

Employment Relations Bill
Part 7 — Supplementary provisions

41

 

(a)   

those entitled to vote have an opportunity to do so;

(b)   

votes cast are secret;

(c)   

the risk of any unfairness or malpractice is minimised.

(13)   

In this section “specified” means specified in an order under this section.

46      

Provision of money for trade union modernisation

5

(1)   

Before section 117 of the 1992 Act (and before the cross-heading immediately

preceding that section) insert—

“Union modernisation

116A Provision of money for union modernisation

(1)   

The Secretary of State may provide money to a trade union to enable or

10

assist it to do any or all of the following—

(a)   

improve the carrying out of any of its existing functions;

(b)   

prepare to carry out any new function;

(c)   

increase the range of services it offers to persons who are or may

become members of it;

15

(d)   

prepare for an amalgamation or the transfer of any or all of its

engagements;

(e)   

ballot its members (whether as a result of a requirement

imposed by this Act or otherwise).

(2)   

No money shall be provided to a trade union under this section unless

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at the time when the money is provided the union has a certificate of

independence.

(3)   

Money may be provided in such a way as the Secretary of State thinks

fit (whether as grants or otherwise) and on such terms as he thinks fit

(whether as to repayment or otherwise).”

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(2)   

In section 118 of that Act (federated trade unions), after subsection (7) add—

“(8)   

In the application of section 116A to a federated trade union, subsection

(2) of that section shall be omitted.”

Part 7

Supplementary provisions

30

47      

Meaning of “the 1992 Act”

In this Act “the 1992 Act” means the Trade Union and Labour Relations

(Consolidation) Act 1992 (c. 52).

48      

Minor and consequential amendments and repeals

(1)   

Schedule 1 (which makes minor and consequential amendments) has effect.

35

(2)   

The enactments specified in Schedule 2 are hereby repealed to the extent

specified there.

 

 

Employment Relations Bill
Part 7 — Supplementary provisions

42

 

49      

Corresponding provision for Northern Ireland

An Order in Council under paragraph 1(1) of the Schedule to the Northern

Ireland Act 2000 (c. 1) (legislation for Northern Ireland during suspension of

devolved government) which contains a statement that it is made only for

purposes corresponding to those of this Act (other than sections 35 to 37)—

5

(a)   

shall not be subject to paragraph 2 of that Schedule (affirmative

resolution of both Houses of Parliament), but

(b)   

shall be subject to annulment in pursuance of a resolution of either

House of Parliament.

50      

Citation, commencement and extent

10

(1)   

This Act may be cited as the Employment Relations Act 2004.

(2)   

This section and sections 34, 35, 47 and 49 shall come into force on the day on

which this Act is passed.

(3)   

The other provisions of this Act shall not come into force until such day as the

Secretary of State may by order made by statutory instrument appoint, and

15

different days may be appointed for different purposes.

(4)   

An order under subsection (3) may contain such transitional provisions and

savings as the Secretary of State considers necessary or expedient in connection

with the coming into force of any of the provisions of this Act.

(5)   

Subject to subsections (6) and (7), this Act extends to England and Wales and

20

to Scotland.

(6)   

Any amendment by this Act of an enactment (including an enactment

contained in Northern Ireland legislation) has the same extent as the enactment

amended.

(7)   

Sections 35 and 49 extend to Northern Ireland only.

25

 

 

Employment Relations Bill
Schedule 1 — Minor and consequential amendments

43

 

Schedules

Schedule 1

Section 48(1)

 

Minor and consequential amendments

Agricultural Wages Act 1948

1          

In section 15A of the Agricultural Wages Act 1948 (c. 47) (disclosure of

5

information obtained by officers acting for the purposes of the 1998 Act),

after subsection (5) insert—

“(5A)   

Nothing in this section prevents a disclosure in accordance with

section 16A of the National Minimum Wage Act 1998.”

Agricultural Wages (Regulation) (Northern Ireland) Order 1977

10

2          

In Article 11A of the Agricultural Wages (Regulation) (Northern Ireland)

Order 1977 (S.I. 1977/2151, N.I. 22) (disclosure of information obtained by

officers acting for the purposes of the 1998 Act), after paragraph (5) add—

“(6)   

Nothing in this Article prevents a disclosure in accordance with

section 16A of the National Minimum Wage Act 1998.”

15

The 1992 Act

3          

In section 19 of the 1992 Act (application of certain provisions relating to

friendly societies to trade unions), omit subsection (4).

4          

In section 41(3) of the 1992 Act (date of next re-examination of

superannuation scheme where exemption revoked by Certification Officer),

20

for “(1)(b)” substitute “(2)”.

5          

In section 54(3) of the 1992 Act (time limit for applications under section 55

or 56 of that Act), for “No such application” substitute “Where an election

has been held, no application under those sections with respect to that

election”.

25

6          

In section 146 of the 1992 Act (action short of dismissal on grounds related

to union membership or activities), in each of subsections (1), (3) and (4), for

“the purpose” substitute “the sole or main purpose”.

7          

In section 148 of the 1992 Act (consideration of complaint), in subsection (1),

for “the purpose” substitute “what was the sole or main purpose”.

30

8          

In section 150 of the 1992 Act (awards against third parties), in subsection

(1)(a), for “the purpose” substitute “the sole or main purpose”.

9     (1)  

Section 155 of the 1992 Act (matters to be disregarded in assessing

contributory fault) is amended as follows.

 

 

Employment Relations Bill
Schedule 1 — Minor and consequential amendments

44

 

      (2)  

In subsection (2), omit the word “or” at the end of paragraph (b) and at the

end of paragraph (c) insert “, or

(d)   

not to make use of services made available by any trade

union or by a particular trade union or by one of a number of

particular trade unions.”

5

      (3)  

After that subsection insert—

“(2A)   

Conduct or action of the complainant shall be disregarded in so far

as it constitutes acceptance of or failure to accept an offer made in

contravention of section 145A or 145B.”

10         

In section 161(3) of the 1992 Act (application for interim relief), for “section

10

152(1)(a) or (b)” substitute “section 152(1)(a), (b) or (ba), or on section

152(1)(bb) otherwise than in relation to an offer made in contravention of

section 145A(1)(d),”.

11         

In section 233 of the 1992 Act (calling of industrial action with the support of

a ballot), in subsection (3)(b), for “take place” substitute “begin”.

15

12         

In section 263A of the 1992 Act (proceedings of the Central Arbitration

Committee under Schedule A1), after subsection (7) add—

“(8)   

The reference in subsection (1) to the Committee’s functions under

Schedule A1 does not include a reference to its functions under

paragraph 166 of that Schedule.”

20

13    (1)  

Section 284 of the 1992 Act (share fishermen) is amended as follows.

      (2)  

After “the employee” insert “(or, in the case of sections 145A to 151, the

worker)”.

      (3)  

For “sections 146 to 151 (action short of dismissal)” substitute “sections 145A

to 151 (inducements and detriment)”.

25

14    (1)  

Section 285 of the 1992 Act (employment outside Great Britain) is amended

as follows.

      (2)  

In subsection (1), for “sections 146 to 151 (action short of dismissal)”

substitute “sections 145A to 151 (inducements and detriment)”.

      (3)  

After that subsection insert—

30

“(1A)   

Sections 145A to 151 do not apply to employment where under his

contract personally to do work or perform services a worker who is

not an employee works outside Great Britain.”

      (4)  

In subsection (2)—

(a)   

for “subsection (1)” substitute “subsections (1) and (1A)”; and

35

(b)   

in paragraph (c), after “as the case may be,” insert “the worker or”.

15         

In section 286(1) of the 1992 Act (provisions that may be disapplied in

relation to prescribed descriptions of employment), for “sections 146 to 151

(action short of dismissal)” substitute “sections 145A to 151 (inducements

and detriment)”.

40

16         

In section 288(1)(b) of the 1992 Act (provisions restricting rights to bring

proceedings to be void), omit sub-paragraph (ii) and the word “or”

immediately preceding it.

17    (1)  

Section 292 of the 1992 Act (death of employee or employer) is amended as

follows.

45

 

 

Employment Relations Bill
Schedule 1 — Minor and consequential amendments

45

 

      (2)  

Omit subsection (1)(a).

      (3)  

After subsection (1) insert—

“(1A)   

This section also has effect in relation to sections 145A to 151 so far as

those sections confer rights on workers or make provision in

connection therewith.”

5

      (4)  

In subsections (2) to (4), after “employee”, wherever occurring, insert “or

worker”.

      (5)  

In subsection (4), after “subsection (1)” insert “or (1A)”.

18         

In section 296 of the 1992 Act (meaning of “worker” and related expressions),

in subsection (3), for “68(11)” substitute “68(4)”.

10

19         

In section 299 of the 1992 Act (index of defined expressions), omit the entry

relating to “place of work (in Part V)”.

20    (1)  

Schedule A1 to the 1992 Act (union recognition) is amended as follows.

      (2)  

In paragraph 2 (interpretation of Part 1), after sub-paragraph (3) insert—

“(3A)      

References to an appropriate bargaining unit’s being decided by

15

the CAC are to a bargaining unit’s being decided by the CAC to be

appropriate under paragraph 19(2) or (3) or 19A(2) or (3).”

      (3)  

In paragraph 16(1) (point after which application may not be withdrawn), in

paragraph (a), after “paragraph” insert “19F(5) or”.

      (4)  

In paragraph 17(3) (final event before which notice to cease consideration of

20

application may be given)—

(a)   

in paragraph (a), after “paragraph” insert “19F(5) or”; and

(b)   

in the words after paragraph (b), for “24(5)” substitute “24(6)”.

      (5)  

In each of paragraphs 20(1)(b) and 21(1)(b) (application of paragraphs 20

and 21), after “appropriate period” insert “(defined by paragraph 18)”.

25

      (6)  

In paragraph 28 of Schedule A1 to the 1992 Act (costs of a recognition ballot),

after sub-paragraph (6) insert—

“(6A)      

Where an amount is recoverable from a union under sub-

paragraph (6) execution may be carried out, to the same extent and

in the same manner as if the union were a body corporate, against

30

any property held in trust for the union other than protected

property as defined in section 23(2).”

      (7)  

In paragraph 32 (procedure where method of collective bargaining not

carried out), in sub-paragraph (2), for “parties” substitute “employer or the

union (or unions)”.

35

      (8)  

In paragraph 37 (applications by more than one union under paragraph 11

or 12), in sub-paragraph (3)(b), for “11(4)” substitute “12(4)”.

      (9)  

In paragraph 38 (admissibility of other relevant applications), in sub-

paragraph (1)(d), after “paragraph” insert “19F(5),”.

     (10)  

In paragraph 46 (invalidity of application where worker falls within another

40

relevant bargaining unit), in sub-paragraph (1)(d), after “paragraph” insert

“19F(5),”.

     (11)  

In paragraph 51 (competing applications), in sub-paragraph (2)(b), after “19”

insert “or 19A”.

     (12)  

In paragraph 52 (agreements for recognition), in sub-paragraph (3)—

45

 

 

Employment Relations Bill
Schedule 1 — Minor and consequential amendments

46

 

(a)   

in paragraph (f), after “paragraph”, where it first occurs, insert

“19F(5) or”; and

(b)   

in paragraph (h), for “24(5)” substitute “24(6)”.

     (13)  

In paragraph 83 (duties of the CAC where it decides new unit contains at

least one worker falling within a statutory outside bargaining unit), in sub-

5

paragraph (8), for “(1)(a)” substitute “(2)(a)”.

     (14)  

In paragraph 89(5) of that Schedule (application of paragraphs 26 to 29), for

the words from “but as if” onwards substitute “but as if—

(a)   

references to the bargaining unit were references to the

new unit, and

10

(b)   

paragraph 26(4A) to (4C), and the references in paragraph

26(4) and (6) to paragraph 19D, were omitted.”

     (15)  

In paragraph 93 (withdrawal of applications), in sub-paragraph (1)(c), for

“83(1)” substitute “83(2)”.

     (16)  

In paragraph 120 of that Schedule (costs of a derecognition ballot), after sub-

15

paragraph (6) insert—

“(6A)      

Where an amount is recoverable from a union under sub-

paragraph (6) execution 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

20

property as defined in section 23(2).”

     (17)  

In paragraph 122(1) (first case in which Part 5 applies), in paragraph (a), after

“paragraph” insert “19F(5) or”.

     (18)  

In paragraph 123(1) (second case in which Part 5 applies), in paragraph (a),

after “paragraph” insert “19F(5) or”.

25

Employment Tribunals Act 1996

21         

In section 10(1) of the Employment Tribunals Act 1996 (c. 17) (action taken

for purpose of safeguarding national security), for paragraph (a)

substitute—

“(a)   

section 145A, 145B or 146 of the Trade Union and Labour

30

Relations (Consolidation) Act 1992 (inducements and

detriments in respect of trade union membership etc.),”.

22         

In section 18 of that Act (conciliation), in subsection (1)(b), after “138,” insert

“145A, 145B,”.

23         

In section 30(2) of that Act (matters which may be included in procedural

35

rules for Employment Appeal Tribunal) omit paragraph (e).

24         

In section 36 of that Act (enforcement of decisions of Employment Appeal

Tribunal) omit subsections (1) to (3).

Employment Rights Act 1996

25         

In section 92 of the Employment Rights Act 1996 (c. 18) (right to written

40

statement of reasons for dismissal), in subsection (6), for paragraph (c)

substitute—

“(c)   

in relation to an employee who is employed under a limited-

term contract which terminates by virtue of the limiting event

 

 

 
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