Employment Relations Bill

House of Commons

Session 2003 - 04
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Other Bills before Parliament

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
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(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
20
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).”
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.”
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
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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
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      (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.
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Employment Relations Bill
Schedule 1 — Minor and consequential amendments
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      (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)”.
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      (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)”.
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      (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
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(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