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| "154 | Disapplication of qualifying period and upper age limit for unfair dismissal |
Sections 108(1) and 109(1) of the Employment Rights Act 1996 (qualifying period and upper age limit for unfair dismissal protection) do not apply to a dismissal which by virtue of section 152 or 153 is regarded as unfair for the purposes of Part 10 of that Act.".'.
Additional duties on employers informed of ballots
Ms Secretary Hewitt
NC5
To move the following Clause:—'(1) Paragraph 26 of Schedule A1 to the 1992 Act (duties of employer informed of requirement to arrange ballot on recognition etc) is amended in accordance with subsections (2) to (4).
(2) In sub-paragraph (1) for "three" substitute "five".
(3) After sub-paragraph (4) insert—
| "(4ZA) | The fourth duty is to refrain from making any offer to any or all of the workers constituting the bargaining unit which— |
(a) has or is likely to have the effect of inducing any or all of them not to attend any relevant meeting between the union (or unions) and the workers constituting the bargaining unit, and
(b) is not reasonable in the circumstances.
| (4ZB) | The fifth duty is to refrain from taking or threatening to take any action against a worker solely or mainly on the grounds that he— |
(a) attended or took part in any relevant meeting between the union (or unions) and the workers constituting the bargaining unit, or
(b) indicated his intention to attend or take part in such a meeting.
| (4ZC) | A meeting is a relevant meeting in relation to a worker for the purposes of sub-paragraph (4ZA) and (4ZB) if— |
(a) it is organised in accordance with any agreement reached concerning the second duty or as a result of a step ordered to be taken under paragraph 27 to remedy a failure to comply with that duty, and
(b) it is one which the employer is, by such an agreement or order as is mentioned in paragraph (a), required to permit the worker to attend.
| (4ZD) | Without prejudice to the generality of the second duty imposed by this paragraph, an employer is to be taken to have failed to comply with that duty if— |
(a) he refuses a request for a meeting between the union (or unions) and any or all of the workers constituting the bargaining unit to be held in the absence of the employer or any representative of his (other than one who has been invited to attend the meeting) and it is not reasonable in the circumstances for him to do so,
(b) he or a representative of his attends such a meeting without having been invited to do so,
(c) he seeks to record or otherwise be informed of the proceedings at any such meeting and it is not reasonable in the circumstances for him to do so, or
(d) he refuses to give an undertaking that he will not seek to record or otherwise be informed of the proceedings at any such meeting unless it is reasonable in the circumstances for him to do either of those things.
| (4ZE) | The fourth and fifth duties do not confer any rights on a worker; but that does not affect any other right which a worker may have." |
(4) For sub-paragraph (8) substitute—
| "(8) | Each of the powers specified in sub-paragraph (9) shall be taken to include power to issue Codes of Practice— |
(a) about reasonable access for the purposes of sub-paragraph (3), and
(b) about the fourth duty imposed by this paragraph.
| (9) | The powers are— |
(a) the power of ACAS under section 199(1);
(b) the power of the Secretary of State under section 203(1)(a)."
(5) In paragraph 27(1) of that Schedule (remedial order in case of employer's failure to comply with duties under paragraph 26) for "three duties imposed" substitute "duties imposed on him".
(6) Paragraph 118 of that Schedule (duties of employer informed of requirement to arrange ballot on derecognition etc) is amended in accordance with subsections (6) to (8).
(7) In sub-paragraph (1) for "three" substitute "five".
(8) After sub-paragraph (4) insert—
| "(4A) | The fourth duty is to refrain from making any offer to any or all of the workers constituting the bargaining unit which— |
(a) has or is likely to have the effect of inducing any or all of them not to attend any relevant meeting between the union (or unions) and the workers constituting the bargaining unit, and
(b) is not reasonable in the circumstances.
| (4B) | The fifth duty is to refrain from taking or threatening to take any action against a worker solely or mainly on the grounds that he— |
(a) attended or took part in any relevant meeting between the union (or unions) and the workers constituting the bargaining unit, or
(b) indicated his intention to attend or take part in such a meeting.
| (4C) | A meeting is a relevant meeting in relation to a worker for the purposes of sub-paragraph (4A) and (4B) if— |
(a) it is organised in accordance with any agreement reached concerning the second duty or as a result of a step ordered to be taken under paragraph 119 to remedy a failure to comply with that duty, and
(b) it is one which the employer is, by such an agreement or order as is mentioned in paragraph (a), required to permit the worker to attend.
| (4D) | Without prejudice to the generality of the second duty imposed by this paragraph, an employer is to be taken to have failed to comply with that duty if— |
(a) he refuses a request for a meeting between the union (or unions) and any or all of the workers constituting the bargaining unit to be held in the absence of the employer or any representative of his (other than one who has been invited to attend the meeting) and it is not reasonable in the circumstances for him to do so,
(b) he or a representative of his attends such a meeting without having been invited to do so,
(c) he seeks to record or otherwise be informed of the proceedings at any such meeting and it is not reasonable in the circumstances for him to do so, or
(d) he refuses to give an undertaking that he will not seek to record or otherwise be informed of the proceedings at any such meeting unless it is reasonable in the circumstances for him to do either of those things.
| (4E) | The fourth and fifth duties do not confer any rights on a worker; but that does not affect any other right which a worker may have." |
(9) For sub-paragraph (8) substitute—
| "(8) | Each of the powers specified in sub-paragraph (9) shall be taken to include power to issue Codes of Practice— |
(a) about reasonable access for the purposes of sub-paragraph (3), and
(b) about the fourth duty imposed by this paragraph.
| (9) | The powers are— |
(a) the power of ACAS under section 199(1);
(b) the power of the Secretary of State under section 203(1)(a)."
(10) In paragraph 119(1) of that Schedule (remedial order in case of employer's failure to comply with duties under paragraph 118) for "three duties imposed" substitute "duties imposed on him".'.
Unfair practices in relation to recognition ballots
Ms Secretary Hewitt
NC6
To move the following Clause:—'After paragraph 27 of Schedule A1 to the 1992 Act insert—
| "27A (1) | Each of the parties informed by the CAC under paragraph 25(9) must refrain from using any unfair practice. |
| (2) | A party uses an unfair practice if, with a view to influencing the result of the ballot, the party— |
(a) offers anything to a worker entitled to vote in the ballot in return for the worker's agreement to vote in a particular way or to abstain from voting,
(b) coerces or attempts to coerce a worker entitled to vote in the ballot to disclose—
| (i) | whether he intends to vote or to abstain from voting in the ballot, or |
| (ii) | how he intends to vote, or how he has voted, in the ballot, |
(c) dismisses or threatens to dismiss a worker,
(d) takes or threatens to take disciplinary action against a worker,
(e) subjects or threatens to subject a worker to any other detriment, or
(f) uses or attempts to use undue influence on a worker entitled to vote in the ballot.
| (3) | The duty imposed by this paragraph does not confer any rights on a worker; but that does not affect any other right which a worker may have. |
| (4) | Each of the following powers shall be taken to include power to issue Codes of Practice about unfair practices for the purposes of this paragraph— |
(a) the power of ACAS under section 199(1);
(b) the power of the Secretary of State under section 203(1)(a).
| 27B | (1) | A party may complain to the CAC that another party has failed to comply with paragraph 27A. |
| (2) | A complaint under sub-paragraph (1) must be made on or before the first working day after— |
(a) the date of the ballot, or
(b) if the ballot is held on more than one day, the last date on which votes can be cast in the ballot.
| (3) | Within the decision period the CAC must decide whether the complaint is well-founded. |
| (4) | A complaint is well-founded if— |
(a) the CAC finds that the party complained against used an unfair practice, and
(b) the CAC is satisfied that the use of that practice changed or was likely to change, in the case of a worker entitled to vote in the ballot—
| (i) | his intention to vote or to abstain from voting, |
| (ii) | his intention to vote in a particular way, or |
| (iii) | how he voted. |
| (5) | The decision period is— |
(a) the period of 10 working days starting with the day after that on which the complaint under sub-paragraph (1) was received by the CAC, or
(b) such longer period (so starting) as the CAC may specify to the parties by a notice containing reasons for the extension.
| (6) | If, at the beginning of the decision period, the ballot has not begun, the CAC may by notice to the parties and the qualified independent person postpone the date on which it is to begin until a date which falls after the end of the decision period. |
| 27C | (1) | The Secretary of State may by order make provision about the consequences of a decision that a complaint under paragraph 27B is well-founded. |
| (2) | An order under this paragraph may, in particular— |
(a) amend this Schedule;
(b) apply any provision of this Schedule with such modifications as may be specified in the order;
(c) confer functions on the CAC;
(d) make provision about the arrangement and conduct of further ballots;
(e) include supplementary or incidental provisions;
(f) make different provision for different cases or circumstances.
| (3) | An order under this paragraph shall be made by statutory instrument. |
| (4) | No such order shall be made unless a draft of it has been laid before Parliament and approved by a resolution of each House of Parliament.".'. |
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| ©Parliamentary copyright 2004 | Prepared 29 Mar 2004 |