|
| |
|
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 |
| |
(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 |
| |
(b) | allow the determination of different means of voting for voters in |
| |
| |
(c) | allow a determination to be such that voters have a choice of means of |
| |
| 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 |
| |
| |
(c) | make provision as respects any ballot or election conducted by |
| 25 |
specified means which is similar to any provision of that Act relating to |
| |
| |
(8) | The power to make an order under this section is exercisable by statutory |
| |
| |
(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 |
| |
| |
(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— |
| |
|
| |
|
| |
|
(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— |
| |
| |
| 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 |
| |
| 15 |
(d) | prepare for an amalgamation or the transfer of any or all of its |
| |
| |
(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 |
| 20 |
at the time when the money is provided the union has a certificate of |
| |
| |
(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).” |
| 25 |
(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.” |
| |
| |
| 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 |
| |
| |
|
| |
|
| |
|
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 |
| |
| |
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 |
| |
(6) | Any amendment by this Act of an enactment (including an enactment |
| |
contained in Northern Ireland legislation) has the same extent as the enactment |
| |
| |
(7) | Sections 35 and 49 extend to Northern Ireland only. |
| 25 |
|
| |
|
| |
|
| |
| |
| |
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 |
| |
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 |
| |
| 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. |
| |
|
| |
|
| |
|
(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 |
| |
| |
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 |
| |
| |
(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 |
| |
| |
(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.” |
| |
| |
(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 |
| |
| 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 |
| |
| 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 |
| |
| 5 |
(4) | In subsections (2) to (4), after “employee”, wherever occurring, insert “or |
| |
| |
(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 |
| |
| 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 |
| |
| |
(11) | In paragraph 51 (competing applications), in sub-paragraph (2)(b), after “19” |
| |
| |
(12) | In paragraph 52 (agreements for recognition), in sub-paragraph (3)— |
| 45 |
|
| |
|
| |
|
(a) | in paragraph (f), after “paragraph”, where it first occurs, insert |
| |
| |
(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 |
| |
| 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 |
| |
“(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) |
| |
| |
“(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 |
| |
| |
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) |
| |
| |
“(c) | in relation to an employee who is employed under a limited- |
| |
term contract which terminates by virtue of the limiting event |
| |
|
| |
|