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PART IV |
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DERECOGNITION: GENERAL |
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Introduction |
| | 71. - (1) This Part of this Schedule applies if the CAC has issued a declaration that a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of a bargaining unit.
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(2) In such a case references in this Part of this Schedule to the bargaining arrangements are to the declaration and to the provisions relating to the collective bargaining method.
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(3) For this purpose the provisions relating to the collective bargaining method are-
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(a) the parties' agreement as to the method by which collective bargaining is to be conducted, |
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(b) anything effective as, or as if contained in, a legally enforceable contract and relating to the method by which collective bargaining is to be conducted, or |
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(c) any provision of Part III of this Schedule that a method of collective bargaining is to have effect. |
| | 72. - (1) This Part of this Schedule also applies if-
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(a) the parties have agreed that a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of a bargaining unit, |
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(b) the CAC has specified to the parties under paragraph 43(2) the method by which they are to conduct collective bargaining, and |
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(c) the parties have not agreed in writing to replace the method or that paragraph 43(3) shall not apply. |
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(2) In such a case references in this Part of this Schedule to the bargaining arrangements are to-
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(a) the parties' agreement mentioned in sub-paragraph (1)(a), and |
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(b) anything effective as, or as if contained in, a legally enforceable contract by virtue of paragraph 43. |
| | 73. For the purposes of this Part of this Schedule the relevant date is the date of the expiry of the period of 3 years starting with-
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(a) the date of the CAC's declaration (where this Part applies by virtue of paragraph 71); |
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(b) the date of the parties' agreement mentioned in paragraph 72(1)(a) (where this Part applies by virtue of paragraph 72). |
| | 74. References in this Part of this Schedule to the parties are to the employer and the union (or unions) concerned.
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Employer employs fewer than 21 workers |
| | 75. - (1) This paragraph applies if-
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(a) after the relevant date the employer gives to the union (or each of the unions) a written notice complying with sub-paragraph (2), and |
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(b) the employer, taken with any associated employer or employers, employed an average of fewer than 21 workers in the period of 13 weeks ending with the day preceding that on which the notice is given. |
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(2) A notice complies with this sub-paragraph if it-
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(a) identifies the bargaining arrangements, |
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(b) states the date on which the notice is given, |
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(c) states that the employer, taken with any associated employer or employers, employed an average of fewer than 21 workers in the period of 13 weeks ending with the day preceding that on which the notice is given, and |
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(d) states that the bargaining arrangements are to cease to have effect on a date which is specified in the notice and which falls after the end of the period of 35 working days starting with the day on which the notice is given. |
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(3) If the union does not (or unions do not) apply to the CAC under paragraph 76 the bargaining arrangements shall cease to have effect on the date specified under sub-paragraph (2)(d).
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(4) To find the average number of workers employed by the employer, taken with any associated employer or employers, in the period of 13 weeks ending with the day preceding that on which the notice is given-
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(a) take the number of workers employed in each of the 13 weeks (including workers not employed for the whole of the week); |
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(b) aggregate the 13 numbers; |
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(c) divide the aggregate by 13. |
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(5) For the purposes of sub-paragraph (1)(b), any worker employed by an associated company incorporated outside Great Britain must be ignored in relation to a week unless the whole or any part of that week fell within a period during which he ordinarily worked in Great Britain.
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(6) For the purposes of sub-paragraph (5), a worker who is employed on board a ship registered in the United Kingdom shall be treated as ordinarily working in Great Britain unless-
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(a) the ship is registered at a port outside Great Britain, |
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(b) the employment is wholly outside Great Britain, or |
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(c) the worker is not ordinarily resident in Great Britain. |
| | 76. - (1) This paragraph applies if-
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(a) a notice is given which purports to be given under paragraph 75, and |
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(b) within the period of 10 working days starting with the day on which the notice is given, the union makes (or unions make) an application to the CAC for a decision whether paragraph 75(1)(b) is fulfilled or whether the notice is given in accordance with paragraph 75 (or both those questions). |
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(2) An application to the CAC is not admissible unless-
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(a) it is made in such form as the CAC specifies, and |
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(b) it is supported by such documents as the CAC specifies. |
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(3) An application to the CAC is not admissible unless the union gives (or unions give) to the employer-
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(a) notice of the application, and |
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(b) a copy of the application and any documents supporting it. |
| | 77. - (1) The CAC must give notice to the parties of receipt of an application under paragraph 76.
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(2) Within the acceptance period the CAC must decide whether the application is admissible within the terms of paragraph 76.
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(3) In deciding whether an application is admissible the CAC must consider any evidence which it has been given by the employer or the union (or unions).
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(4) If the CAC decides that the application is not admissible-
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(a) the CAC must give notice of its decision to the parties, |
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(b) the CAC must not accept the application, |
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(c) no further steps are to be taken under this Part of this Schedule, and |
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(d) the bargaining arrangements shall cease to have effect on the date specified under paragraph 75(2)(d). |
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(5) If the CAC accepts an application it must give notice of the acceptance to the parties.
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(6) The acceptance period is-
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(a) the period of 10 working days starting with the day the CAC receives the application, or |
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(b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension. |
| | 78. - (1) If the CAC accepts an application it-
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(a) must give the employer and the union (or unions) an opportunity to put their views on the question whether paragraph 75(1)(b) is fulfilled or whether the notice is given in accordance with paragraph 75 (or both those questions); |
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(b) must decide the question (or questions) within the decision period and must give reasons for the decision. |
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(2) If the CAC decides that paragraph 75(1)(b) is fulfilled and that the notice is given in accordance with paragraph 75, the bargaining arrangements shall cease to have effect on the termination date.
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(3) If the CAC decides that paragraph 75(1)(b) is not fulfilled or that the notice is not given in accordance with paragraph 75, the notice shall be treated as not having been given.
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(4) The decision period is-
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(a) the period of 10 working days starting with the day the CAC gives notice of acceptance of the application, or |
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(b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension. |
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(5) The termination date is the later of-
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(a) the date specified under paragraph 75(2)(d), and |
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(b) the day after the last day of the decision period. |
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Employer's request to end arrangements |
| | 79. - (1) This paragraph and paragraphs 80 to 84 apply if after the relevant date the employer requests the union (or each of the unions) to agree to end the bargaining arrangements.
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(2) The request is not valid unless it-
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(b) identifies the bargaining arrangements, and |
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(c) states that it is made under this Schedule. |
| | 80. - (1) If before the end of the first period the parties agree to end the bargaining arrangements no further steps are to be taken under this Part of this Schedule in relation to the request.
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(2) Sub-paragraph (3) applies if before the end of the first period-
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(a) the union informs the employer that the union does not accept the request but is willing to negotiate, or |
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(b) the unions inform the employer that the unions do not accept the request but are willing to negotiate. |
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(3) The parties may in the second period conduct negotiations with a view to agreeing to end the bargaining arrangements.
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(4) If such an agreement is made in the second period no further steps are to be taken under this Part of this Schedule in relation to the request.
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(5) The employer and the union (or unions) may request ACAS to assist in conducting the negotiations.
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(6) The first period is the period of 10 working days starting with the day after-
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(a) the day on which the union receives the request, or |
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(b) the last day on which any of the unions receives the request. |
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(7) The second period is-
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(a) the period of 28 days starting with the day after that on which the first period ends, or |
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(b) such longer period (so starting) as the parties may from time to time agree. |
| | 81. - (1) This paragraph applies if-
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(a) before the end of the first period the union fails (or unions fail) to respond to the request, or |
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(b) before the end of the first period the union informs the employer that it does not (or unions inform the employer that they do not) accept the request (without indicating a willingness to negotiate). |
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(2) The employer may apply to the CAC for the holding of a secret ballot to decide whether the bargaining arrangements should be ended.
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| | 82. - (1) This paragraph applies if -
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(a) the union informs (or unions inform) the employer under paragraph 80(2), and |
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(b) no agreement is made in the second period. |
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(2) The employer may apply to the CAC for the holding of a secret ballot to decide whether the bargaining arrangements should be ended.
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(3) But no application may be made if within the period of 10 working days starting with the day after that on which the union informs (or unions inform) the employer under paragraph 80(2) the union proposes (or unions propose) that ACAS be requested to assist in conducting the negotiations and the employer rejects the proposal.
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| | 83. - (1) An application to the CAC under paragraph 81 or 82 is not admissible unless-
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(a) it is made in such form as the CAC specifies, and |
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(b) it is supported by such documents as the CAC specifies. |
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(2) An application to the CAC under paragraph 81 or 82 is not admissible unless the employer gives to the union (or each of the unions)-
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(a) notice of the application, and |
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(b) a copy of the application and any documents supporting it. |
| | 84. - (1) An application under paragraph 81 or 82 is not admissible unless the CAC decides that-
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(a) at least 10 per cent of the workers constituting the bargaining unit favour an end of the bargaining arrangements, and |
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(b) a majority of the workers constituting the bargaining unit would be likely to favour an end of the bargaining arrangements. |
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(2) The CAC must give reasons for the decision.
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| | 85. - (1) The CAC must give notice to the parties of receipt of an application under paragraph 81 or 82.
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(2) Within the acceptance period the CAC must decide whether-
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(a) the request is valid within the terms of paragraph 79, and |
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(b) the application is admissible within the terms of paragraphs 83 and 84. |
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(3) In deciding those questions the CAC must consider any evidence which it has been given by the employer or the union (or unions).
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(4) If the CAC decides that the request is not valid or the application is not admissible-
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(a) the CAC must give notice of its decision to the parties, |
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(b) the CAC must not accept the application, and |
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(c) no further steps are to be taken under this Part of this Schedule. |
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(5) If the CAC decides that the request is valid and the application is admissible it must-
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(a) accept the application, and |
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(b) give notice of the acceptance to the parties. |
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(6) The acceptance period is-
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(a) the period of 10 working days starting with the day the CAC receives the application, or |
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(b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension. |
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Workers' request to end arrangements |
| | 86. - (1) A worker or workers falling within the bargaining unit may after the relevant date apply to the CAC to have the bargaining arrangements ended.
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(2) An application is not admissible unless-
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(a) it is made in such form as the CAC specifies, and |
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(b) it is supported by such documents as the CAC specifies. |
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(3) An application is not admissible unless the worker gives (or workers give) to the employer and to the union (or each of the unions)-
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(a) notice of the application, and |
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(b) a copy of the application and any documents supporting it. |
| | 87. - (1) An application under paragraph 86 is not admissible unless the CAC decides that-
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(a) at least 10 per cent of the workers constituting the bargaining unit favour an end of the bargaining arrangements, and |
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(b) a majority of the workers constituting the bargaining unit would be likely to favour an end of the bargaining arrangements. |
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(2) The CAC must give reasons for the decision.
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| | 88. - (1) The CAC must give notice to the worker (or workers), the employer and the union (or unions) of receipt of an application under paragraph 86.
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(2) Within the acceptance period the CAC must decide whether the application is admissible within the terms of paragraphs 86 and 87.
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(3) In deciding whether the application is admissible the CAC must consider any evidence which it has been given by the employer, the union (or unions) or any of the workers falling within the bargaining unit.
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(4) If the CAC decides that the application is not admissible-
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(a) the CAC must give notice of its decision to the worker (or workers), the employer and the union (or unions), |
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(b) the CAC must not accept the application, and |
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(c) no further steps are to be taken under this Part of this Schedule. |
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(5) If the CAC decides that the application is admissible it must-
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(a) accept the application, and |
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(b) give notice of the acceptance to the worker (or workers), the employer and the union (or unions). |
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(6) The acceptance period is-
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(a) the period of 10 working days starting with the day the CAC receives the application, or |
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(b) such longer period (so starting) as the CAC may specify to the worker (or workers), the employer and the union (or unions) by notice containing reasons for the extension. |
| | 89. - (1) If the CAC accepts the application, in the negotiation period the CAC must help the employer, the union (or unions) and the worker (or workers) with a view to-
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(a) the employer and the union (or unions) agreeing to end the bargaining arrangements, or |
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(b) the worker (or workers) withdrawing the application. |
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(2) The negotiation period is-
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(a) the period of 28 days starting with the day the CAC gives notice of acceptance of the application, or |
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(b) such longer period (so starting) as the CAC may decide with the consent of the worker (or workers), the employer and the union (or unions). |
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Ballot on derecognition |
| | 90. - (1) This paragraph applies if the CAC accepts an application under paragraph 81 or 82.
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(2) This paragraph also applies if-
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(a) the CAC accepts an application under paragraph 86, and |
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(b) in the period mentioned in paragraph 89(1) there is no agreement or withdrawal as there described. |
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(3) The CAC must arrange for the holding of a secret ballot in which the workers constituting the bargaining unit are asked whether the bargaining arrangements should be ended.
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(4) The ballot must be conducted by a qualified independent person appointed by the CAC.
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(5) The ballot must be conducted within-
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(a) the period of 28 days starting with the day after that on which the qualified independent person is appointed, or |
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(b) such longer period (so starting) as the CAC may decide. |
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(6) The ballot must be conducted-
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(a) at a workplace or workplaces decided by the CAC, or |
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depending on the CAC's preference.
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(7) In deciding how the ballot is to be conducted the CAC must take into account-
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(a) the likelihood of the ballot being affected by unfairness or malpractice if it were conducted at a workplace or workplaces; |
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(b) costs and practicality; |
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(c) such other matters as the CAC considers appropriate. |
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(8) A person is a qualified independent person if-
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(a) he satisfies such conditions as may be specified for the purposes of this paragraph by order of the Secretary of State or is himself so specified, and |
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(b) there are no grounds for believing either that he will carry out any functions conferred on him in relation to the ballot otherwise than competently or that his independence in relation to the ballot might reasonably be called into question. |
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(9) An order under sub-paragraph (8)(a) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
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(10) As soon as is reasonably practicable after the CAC has decided to arrange for the holding of a ballot it must inform the employer and the union (or unions)-
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(b) of the name of the person appointed to conduct the ballot and the date of his appointment; |
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(c) of the period within which the ballot must be conducted; |
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(d) whether the ballot is to be conducted by post or at a workplace or workplaces; |
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(e) of the workplace or workplaces concerned (if the ballot is to be conducted at a workplace or workplaces). |
| | 91. - (1) An employer who is informed by the CAC under paragraph 90(10) must comply with the following three duties.
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(2) The first duty is to co-operate generally, in connection with the ballot, with the union (or unions) and the person appointed to conduct the ballot; and the second and third duties are not to prejudice the generality of this.
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(3) The second duty is to give to the union (or unions) such access to the workers constituting the bargaining unit as is reasonable to enable the union (or unions) to inform the workers of the object of the ballot and to seek their support and their opinions on the issues involved.
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(4) The third duty is to do the following (so far as it is reasonable to expect the employer to do so)-
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(a) to give to the CAC, within the period of 10 working days starting with the day the employer is informed under paragraph 90(10), the names and home addresses of the workers constituting the bargaining unit; |
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(b) to give to the CAC, as soon as is reasonably practicable, the name and home address of any worker who joins the unit after the employer has complied with paragraph (a); |
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(c) to inform the CAC, as soon as is reasonably practicable, of any worker whose name has been given to the CAC under paragraph (a) or (b) but who ceases to be within the unit. |
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(5) As soon as is reasonably practicable after the CAC receives any information under sub-paragraph (4) it must pass it on to the person appointed to conduct the ballot.
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(6) If asked to do so by the union (or unions) the person appointed to conduct the ballot must send to any worker-
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(a) whose name and home address have been given under sub-paragraph (5), and |
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(b) who is still within the unit (so far as the person so appointed is aware), |
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any information supplied by the union (or unions) to the person so appointed.
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(7) The duty under sub-paragraph (6) does not apply unless the union bears (or unions bear) the cost of sending the information.
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(8) Each of the following powers shall be taken to include power to issue Codes of Practice about reasonable access for the purposes of sub-paragraph (3)-
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(a) the power of ACAS under section 199(1); |
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(b) the power of the Secretary of State under section 203(1)(a). |
| | 92. - (1) If the CAC is satisfied that the employer has failed to fulfil any of the three duties imposed by paragraph 91, and the ballot has not been held, the CAC may order the employer-
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(a) to take such steps to remedy the failure as the CAC considers reasonable and specifies in the order, and |
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(b) to do so within such period as the CAC considers reasonable and specifies in the order. |
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(2) If-
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(a) the ballot has been arranged in consequence of an application under paragraph 81 or 82, |
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(b) the CAC is satisfied that the employer has failed to comply with an order under sub-paragraph (1), and |
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(c) the ballot has not been held, |
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the CAC may refuse the application.
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(3) If-
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(a) the ballot has been arranged in consequence of an application under paragraph 86, and |
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(b) the ballot has not been held, |
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an order under sub-paragraph (1), on being recorded in the county court, may be enforced in the same way as an order of that court.
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(4) If the CAC refuses an application under sub-paragraph (2) it shall take steps to cancel the holding of the ballot; and if the ballot is held it shall have no effect.
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| | 93. - (1) This paragraph applies if the holding of a ballot has been arranged under paragraph 90(3), whether or not it has been cancelled.
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(2) The gross costs of the ballot shall be borne-
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(a) as to half, by the employer, and |
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(b) as to half, by the union (or unions). |
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(3) If there is more than one union they shall bear their half of the gross costs-
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(a) in such proportions as they jointly indicate to the person appointed to conduct the ballot, or |
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(b) in the absence of such an indication, in equal shares. |
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(4) The person appointed to conduct the ballot may send to the employer and the union (or each of the unions) a written demand stating-
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(a) the gross costs of the ballot, and |
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(b) the amount of the gross costs to be borne by the recipient. |
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(5) 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 21 days starting with the day the demand is received.
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(6) In England and Wales, if the amount stated is not paid in accordance with sub-paragraph (5) 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.
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(7) References to the costs of the ballot are to-
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(a) the costs wholly, exclusively and necessarily incurred in connection with the ballot by the person appointed to conduct it, |
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(b) such reasonable amount as the person appointed to conduct the ballot charges for his services, and |
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(c) such other costs as the employer and the union (or unions) agree. |
| | 94. - (1) As soon as is reasonably practicable after the CAC is informed of the result of a ballot by the person conducting it, the CAC must act under this paragraph.
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(2) The CAC must inform the employer and the union (or unions) of the result of the ballot.
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(3) If the result is that the proposition that the bargaining arrangements should be ended is supported by-
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(a) a majority of the workers voting, and |
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(b) at least 40 per cent of the workers constituting the bargaining unit, |
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the CAC must issue a declaration that the bargaining arrangements are to cease to have effect on a date specified by the CAC in the declaration.
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(4) If the result is otherwise the CAC must refuse the application under paragraph 81, 82 or 86.
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(5) If a declaration is issued under sub-paragraph (3) the bargaining arrangements shall cease to have effect accordingly.
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(6) The Secretary of State may by order amend sub-paragraph (3) so as to specify a different degree of support; and different provision may be made for different circumstances.
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(7) An order under sub-paragraph (6) shall be made by statutory instrument.
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(8) 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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