Power of the CAC to extend notification period

57.     Clause 6 amends paragraph 24 of Schedule A1. Paragraph 24 applies where the CAC gives notice under paragraph 22(3) or 23(2) that it intends to arrange for the holding of a secret ballot to determine whether the workers in the bargaining unit want the union(s) to be recognised to conduct collective bargaining on their behalf.

58.     Paragraph 24(5) provides a fixed time period in which the union(s) alone or the union(s) and employer jointly may notify the CAC that they do not wish the CAC to arrange a ballot.

59.     Clause 6 replaces paragraph 24(5) with new paragraphs 24(5), (6) and (7) to give the CAC the ability to extend the notification period on the request of both parties to give the parties more time to try to reach a voluntary agreement on recognition.

Postal votes for workers absent from ballot at workplace

60.     Clause 7 amends paragraphs 25 and 117 of Schedule A1. Paragraph 25 applies where the CAC arranges to hold a ballot on union recognition. Paragraph 25(4) provides that the ballot must be conducted, depending on the CAC's preference, at a workplace, by post or by a combination of these methods. The CAC's decision on the form of the ballot must take into account:

• the likelihood of the ballot being affected by unfairness or malpractice if it were conducted at a workplace or workplaces;

• costs and practicality; and

• such other matters as the CAC considers appropriate

61.     The CAC may not decide that the ballot is to be conducted by a combination of postal and workplace voting unless special factors make this appropriate. Paragraph 117 mirrors these provisions in the case of ballots on derecognition.

62.     Clause 7 amends the provisions of these paragraphs to allow workers who are allotted a vote at the workplace to vote by post if they are unable for personal reasons to attend their workplace on the day of the ballot.

63.     Subsection (1) of clause 7 inserts a new sub-paragraph (6A) into paragraph 25. Where the CAC decides that the ballot must be conducted (in whole or in part) at the workplace, new subparagraph (6A) enables it to require arrangements to be made to allow workers who are would unable to vote at the workplace for reasons relating to themselves as individuals (for example illness, leave etc.) to vote by post.

64.     Subsection (2) of clause 7 inserts new sub-paragraph (8A) into paragraph 117, and allows for postal votes in similar circumstances when the CAC decides that a ballot on derecognition must be conducted wholly or in part at the workplace.

65.     In combination, the paragraphs inserted by subsections (1) and (2) make clear that a ballot should not be considered to be a combination ballot solely because the CAC makes arrangements, in accordance with the paragraphs, under which a worker or workers voting in a workplace ballot will receive a postal vote.

Additional duties on employers informed of ballots

66.     Clause 8 places new duties on employers who have been informed by the CAC under paragraph 25(9) of Schedule A1 that a ballot is required. At present, an employer who is so informed must comply with three duties. The first duty is to co-operate generally, in connection with the ballot, with the union (or unions) and with the person appointed to conduct the ballot. The second duty is to give the union (or unions) such access to the workers in the bargaining unit as is reasonable to enable the union to inform the workers of the purpose of the ballot and to seek their support and their opinions on the issues involved. The third duty is to supply to the CAC the names and home addresses of the workers in the bargaining unit, and to update that information when workers leave or join the bargaining unit.

67.     Subsection (3) of clause 8 amends paragraph 26 of Schedule A1 to the 1992 Act by inserting new paragraphs 26(4A) to 26(4E). Paragraphs 26(4A) and 26(4B) introduce two new duties in addition to the three duties mentioned above. Paragraph 26(4A) places a fourth duty on the employer to refrain from making an offer to any or all of the workers in the bargaining unit which has the effect, or is likely to have the effect, of inducing any or all of those workers not to attend a relevant meeting, unless that offer is reasonable in the circumstances. Paragraph 26(4B) places a fifth duty on the employer not to take or threaten to take action against a worker solely or mainly because that worker attended or took part in a relevant meeting or because that worker indicated that he intended to attend or to take part in such a meeting.

68.     Paragraph 26(4C) defines a relevant meeting as one which is organised either in accordance with an access agreement reached in relation to the employer's duty to provide reasonable access, or as a result of an order of the CAC under paragraph 27 of the Schedule (where the CAC is satisfied that the employer has failed to comply with one of his duties) and further is a meeting which the employer is required to allow the worker in question to attend under the terms of the agreement or the order.

69.     Paragraph 26(4D) makes provision in relation to the second duty (to provide reasonable access to the union) under paragraph 26(3) of Schedule A1 by making clear that an employer will have failed to comply with that duty if:

• he unreasonably refuses a request for a meeting between the union (or unions) and any of the workers in the bargaining unit to take place without the employer or a representative of his being present; or

• he or a representative of his attends such a meeting without having been invited to do so; or

• he seeks to record or otherwise be informed of what occurred at the meeting, unless it is reasonable in the circumstances for him to do so; or

• he refuses to give an undertaking that he will not seek to record or be informed of the proceeding unless it is reasonable for him to do so in the circumstances.

70.     This paragraph does not affect the generality of the second duty under paragraph 26(3); an employer could fail to comply with that duty even where he complies with paragraph 26(4D).

71.     Paragraph 26(4E) makes clear that the fourth and fifth duties do not confer new rights on workers, but also do not affect any other right a worker may have.

72.     Subsection (4) makes it clear that Acas (under its powers under section 199(1) of the 1992 Act) and the Secretary of State (under her powers under section 203(1)(a) of the same Act) can issue Codes of Practice in respect of both the second and fourth duties on the employer.

73.     Sections (6) to (10) make amendments with the same effect to paragraphs 118 and 119 of the Schedule, which deal with the duties on employers informed of ballots pursuant to an application for derecognition of a union (or unions).

Unfair practices in relation to recognition ballots

74.     Clause 9 inserts new paragraphs 27A, 27B and 27C into Schedule A1 of the 1992 Act.

75.     Paragraph 27A requires each of the parties informed by the CAC under paragraph 25(9) that a ballot is to held must refrain from using any unfair practice. Paragraph 27A(2) provides that a party uses an unfair practice if it does any of the following with a view to influencing the outcome of the ballot:

• offers anything to a worker in the bargaining unit in return for that voter agreeing to vote in a particular way or to abstain from voting in the ballot;

• coerces or attempts to coerce a worker in the bargaining unit to reveal how he intends to vote or did actually vote, or whether he intends to vote at all;

• dismisses or threatens to dismiss a worker;

• takes or threatens to take disciplinary action against a worker;

• subjects or threatens to subject a worker to any other detriment;

• uses or attempts to use undue influence on a worker in the bargaining unit

76.     Paragraph 27A(3) makes it clear that this paragraph does not confer any new rights on a worker but does not affect any other right a worker may have.

77.     Paragraph 27A(4) provides that Acas and the Secretary of State may issue Codes of Practice for the purposes of this paragraph in accordance with their powers under sections 199(1) and 203(1)(a) of the 1992 Act respectively.

78.     Paragraph 27B sets out that a party (a union or an employer who is informed of a ballot by the CAC) may complain to the CAC if it considers that another party has used an unfair practice. The complaint must be made within one working day of the last date on which votes can be cast in the ballot (or within one working day of the ballot if it took place on a single day). The CAC has 10 working days (or such longer period as the CAC may specify in a notice to the parties containing its reasons for extending the period) in which to decide whether a complaint is well-founded. Under paragraph 27B(4) a complaint is well-founded if the following two conditions are both met:

• the CAC finds that the party complained against did use an unfair practice

• the CAC is satisfied that the use of that unfair practice changed or was likely to change to the voting intentions (in terms of how he would vote or whether he would vote at all) or the voting behaviour (in terms of how he voted or whether he voted at all) of a worker in the bargaining unit.

79.     Under paragraph 27B(6) if the ballot has not yet begun when the CAC comes to consider a complaint the CAC may postpone the ballot until a date after the end of the decision period. If it does so, the CAC must inform the parties and the qualified independent person of this by notice.

80.     Paragraph 27C contains an order-making power for the Secretary of State to provide by order what the consequences of a decision by the CAC that a complaint of an unfair practice is well-founded may be.

Application where agreement does not cover pay, hours and holidays

81.     Clause 10 clarifies that a union may apply to the CAC when any one or more of the "core bargaining" topics are not included in the pre-existing agreement.

82.     Where the CAC declares a union recognised, it is for collective bargaining on pay, hours and holidays (although the parties may vary this by agreement). These three items are regarded as the "core" issues for collective bargaining. Under paragraphs 35 and 44 of the Schedule, an application to the CAC for recognition is inadmissible or invalid if the applicant union is already recognised under a collective agreement covering any of the workers in the proposed bargaining unit and that agreement covers pay or hours or holidays. There has been some confusion over the meaning of these paragraphs in the 1992 Act. It has been contended that they imply that the CAC may only accept an application in these circumstances where the existing agreement covers none of pay, hours or holidays. An alternative view is that an application would be admissible if the collective agreement already in force covered one or more (but not all) of pay, hours and holidays. Clause 10 provides that in such circumstances a union's application to the CAC is admissible if the collective agreement already in force does not cover all of pay, hours and holidays. Accordingly the CAC will be able to proceed with an application if the existing collective agreement only covers one or two of the matters (or none) but not if it covers all three.

Employer's notice to end bargaining arrangements

83.     Clause 11 amends those provisions in Part IV of Schedule A1 which deal with an employer's notice under paragraph 99 of the Schedule that he wishes the bargaining arrangements which are the result of an earlier declaration of statutory recognition by the CAC to cease to have effect. Such notice may be given if the employer believes that he, taken with any associated employer(s), employed an average of fewer than 21 workers in a given 13 week period, and if three years have passed since the CAC awarded recognition. The CAC must decide if such a notice complies with the requirements of paragraph 99(3). These are that the notice:

• identifies the bargaining arrangements;

• specifies the period of 13 weeks in question;

• states the date on which the notice is given;

• is given within 5 working days of the day after the day on which the specified 13 week period ends;

• states that the employer, taken with an associated employers, employed an average of fewer than 21 workers in the specified 13-week period; and

• states that the bargaining arrangements are to cease to have effect on a date at least 35 days later than the day after the date on which the notice has been given.

84.     If the notice complies with the above the bargaining arrangements will cease to have effect on the day stated unless the union makes an application to the CAC under paragraph 101 of the Schedule, asking it to decide whether the period of 13 weeks specified by the employer in fact ended within three years of the CAC's declaration and whether it is correct that the employer and any associated employers, employed an average of fewer than 21 workers in the specified 13-week period. If the CAC accepts this application by the union, it must allow both union and employer to put their views on the questions to be decided and reach a decision about them. If the CAC decides that the employer's notice is correct and three years have passed since its declaration, then the bargaining arrangements will cease to have effect on the termination date. If the CAC finds that the employer's notice has been given within three years of its declaration, or that the notice is not correct, the employer's notice is treated as though it had not been given.

85.     Currently, an application by the union under paragraph 101 to challenge the employer's notice cannot be accepted by the CAC if within the period of three years prior to that application the CAC has accepted an application:

• by the union under paragraph 101; or

• by the employer or a worker or workers under paragraph 106, 107, 112 or 128, that the bargaining arrangements should cease to have effect.

and the two applications are in respect of the same bargaining unit. This has the effect that if the union has successfully challenged an employer's notice to end bargaining arrangements or has won a derecognition ballot in the previous three years, it cannot challenge a further application by the employer under paragraph 99, thus allowing the union to be derecognised without having an opportunity to put its views before the CAC.

86.     Clause 11 rectifies this anomaly by providing that a previous relevant application (either a challenging application by the union, or an application to have bargaining arrangements ended by the employer or worker(s)) does not render an application by the union under paragraph 101 inadmissible. The clause also provides that any unsuccessful application or notice to derecognise the union by the employer or a worker (or workers) renders any further such applications inadmissible for a period of three years.

87.     Clause 11(4) inserts a new paragraph 99A which provides that a derecognition notice given by the employer under paragraph 99 is invalidated if a relevant application or earlier notice relating to the same bargaining unit was given within three years prior to the date on which the current derecognition notice is given, that relevant application was accepted by the CAC, or the CAC decided that that notice complied with paragraph 99(3). A relevant application is an application for derecognition made by the employer under paragraph 106, 107 or 128, or an application by a worker (or workers) under paragraph 112.

88.     Subsections (1) to (3) and (5) of clause 11 make consequential amendments to paragraphs 99 and 100.

89.     Subsection (6) removes the bars on a union's application in response to an employer's notice contained in paragraph 101(4) and (5). These paragraphs previously had the effect that a union could not make an application to the CAC under paragraph 101 (such an application requests the CAC to decide whether the employer's notice that he no longer employs an average of 21 or more workers is correct) if:

• the CAC had accepted an application by the employer or worker(s) to derecognise the union in respect of the same bargaining unit; or

• the CAC had accepted a similar previous application by the union under paragraph 101

within the three years prior to the date of the union's application.

90.     Subsection (7) of clause 11 inserts new sub-paragraphs into paragraph 103 to ensure that a derecognition notice by the employer under paragraph 99 shall be treated as given for the purposes of deciding the admissibility of derecognition applications by the employer or worker(s) under paragraphs 106, 107, 112 and 128 or for deciding the validity of later notices under paragraph 99 even though it is not treated as being given for other purposes.

91.     Subsection (8) of clause 11 amends paragraphs 109, 113 and 130 of the Schedule. It has the effect that if there is a derecognition application by the employer or worker(s) under paragraphs 106, 107, 112 or 128 and within the three years prior to the date of the application a notice under paragraph 99 was given which the CAC decided complied with paragraph 99(3) the CAC must not accept the derecognition application.

92.     Subsection (9) provides that an application by the union(s) under paragraph 101 in the three years prior to the date of a derecognition application under paragraph 106, 107, 112 or 128 does not render that later application inadmissible.

Unfair practice in relation to derecognition ballots

93.     Clause 12 inserts new paragraphs 119A to C into Schedule A1. These provisions are identical to those contained in clause 9 save that they relate to unfair practices in relation to derecognition ballots. In particular, the provisions:

• create a duty on the parties to refrain from unfair practices;

• set out how complaints of unfair practices are to be handled; and

• create a power for the Secretary of State to provide by order for the consequences of a decision that a complaint of unfair practice is well-founded in respect of ballot on derecognition of a union held in accordance with paragraph 118 of the Schedule.

Appeals against demands for costs

94.     Clause 13 inserts a new paragraph 165A into the Schedule. It provides a right of appeal for the union(s) and/or employer against a demand for costs from a qualified independent person for the conduct of a ballot, or from an appointed person for sending information to the relevant workers.

95.     New paragraph 165A provides that the recipient of a demand under paragraph 19E(3) (for the costs of sending information), paragraph 28(4) (for the costs of a ballot on recognition) or paragraph 120(4) (for the costs of a ballot on derecognition) may appeal against the demand to an employment tribunal within four weeks of receiving it. The employment tribunal must dismiss the appeal unless it is shown that the amount demanded is too great, or the amount specified as the share of the costs to be borne by a particular recipient is too great.

96.     New paragraph 165A(6) provides that if an appeal is allowed, the tribunal must rectify that demand and the rectified demand shall have effect as though it were the original demand. New paragraph 165A(7) provides that a demand for costs is not enforceable until an appeal has been withdrawn or determined, but that after that time it shall be enforceable.

Power to amend Schedule A1 of the 1992 Act

97.     Clause 14 amends paragraph 166 of the Schedule. At present paragraph 166 contains limited powers for the Secretary of State to amend paragraphs 22 and 87 of the Schedule, by order, if the CAC informs the Secretary of State that either of these paragraphs has an unsatisfactory effect.

98.     Clause 14 widens the scope of paragraph 166, by giving the Secretary of State a general power to amend any provision of the Schedule, if requested to do so by the CAC.

99.     Subsection (2) of clause 14 replaces paragraphs 166(1) and (2) and inserts new paragraphs 166(2A) and 166(2B).

100.     New sub-paragraphs 166(1) and (2) provide for the CAC to ask the Secretary of State to amend any provision of the Schedule if they consider that it has an unsatisfactory effect and should be amended. The Secretary of State may seek to rectify the problem either by using powers she already has to amend the Schedule where the provision is among those to which the powers apply, or, if the existing powers do not apply to the provision, by using the new power in sub-paragraph 166(2)(b).

101.     New sub-paragraph (2A) clarifies that the Secretary of State has a discretion to amend the Schedule in any way and not just in a way suggested by the CAC. New sub-paragraph (2B) makes clear that the Secretary of State may use her existing powers to amend the Schedule, mentioned in new sub-paragraph (2)(a), without the need for any representation from the CAC.

102.     This clause will not alter the requirement in paragraph 166 that any change to the Schedule, whether under the specific or general power, must be by means of an order that is approved by both Houses of Parliament.

Means of communicating with workers

103.     Clause 15 inserts a new paragraph 166A in Schedule A1.

104.     New paragraph 166A(1) provides that paragraph 166A applies in relation to any provision of paragraph 19D(2), paragraph 26(4) or paragraph 118(4). These paragraphs require the employer to provide the names and home addresses of workers for the purposes of their being sent information by the union, or for the purposes of a ballot on recognition or derecognition.

105.     Paragraph 166A gives the Secretary of State an order-making power to provide that the employer must give to the CAC, in addition to the workers' home addresses, an address of a specified kind, which may include any address or number to which information can be sent by any means. Such an order must be made by statutory instrument and approved by both Houses of Parliament. The power contained in this clause will enable the Secretary of State to provide that employers must give the CAC addresses for workers which enable communication or voting in ballots to take place by other means as well as by post (see also commentary on clause 50).

Unfair practices: power to make provision about periods before notice of ballot

106.     Clause 16 inserts a new paragraph 166B into Schedule A1 of the 1992 Act. This paragraph provides an order-making power for the Secretary of State to prohibit employers and unions from using specified unfair practices during a specified period. Paragraph 166B(1) sets out that the Secretary of State may provide by order that employers and unions are prohibited from using practices which are specified as unfair practices in relation to particular kinds of application under Schedule A1. Such an order may also set out a specific period in which this prohibition will apply.

107.     Paragraph 166B(2) provides that an order may make provision for the consequences of using a prohibited practice, including provision which modifies the effect of an existing provision of the Schedule which deal with the situation where a prohibited practice is used.

108.     Paragraph 166B(3) makes clear that an order by the Secretary of State can confer functions on the CAC.

109.     Paragraph 166B(4) sets out that an order may contain provisions which extend either or both the power of Acas under section 199(1) of the 1992 Act, or the power of the Secretary of State under section 203(1)(a) of that Act, to issue Codes of Practice in relation to the provisions laid down in the order.

110.     Paragraph 166B(8) provides a definition of the term "specified", which is to mean specified in an order under this paragraph.

Power to make provision about effect of amalgamations etc.

111.     Clause 17 inserts new paragraphs 169A, 169B and 169C into the Schedule. Paragraph 169A provides an order-making power for the Secretary of State to make provision for any case where anything has been done under or for the purposes of the Schedule by or in relation to a union and that union amalgamates or transfers all or any of its engagements. For example, such an order may specify what will happen to an award of recognition where the union(s) in respect of which the award was made merges with another union or unions. The term "transfer of engagements" also covers the case where a union breaks up with the result that a section that was formerly a part of it becomes a union in its own right.

112.     New paragraph 169A(2) has the effect that an order under this paragraph may make provision for cases where an amalgamated union, or union to which engagements have been transferred, does not have a certificate of independence.

113.     New paragraph 169B contains a similar order-making power for the Secretary of State to make provision for any case where anything has been done under the purposes of the Schedule by or in relation to a group of workers and the employer of any of those workers is no longer their employer, by reason of a business transfer or otherwise.

114.     New paragraph 169C provides that an order under new paragraphs 169A or 169B must be approved by both Houses of Parliament.