Trade Union Workplace Access Rights 

The ERA 2025 will introduce the right for unions to make workplace access requests to employers. The access requested can be either physical entry into a workplace or for a right to communicate with workers (including by way of digital communication). The purposes for which access can be requested is for a trade union to meet, support, represent, recruit or organise workers or to facilitate collect bargaining. Organising industrial action is excluded.  

The employer may then grant or refuse the request. If the employer and the union agree the terms of an access agreement, they must jointly notify the CAC that an access agreement has been reached. If the employer does not respond or if the employer and the union do not reach agreement on the terms of access within a set negotiation period, then the union can make an application to the CAC, which will have the power to specify the terms on which access will be allowed. If the employer responds to the union’s request, but no agreement is reached, the employer also has a right to apply to the CAC. 

In making determinations, the CAC must have regard to the access principles. In broad terms, the access principles provide that union officials should be allowed access in any manner that does not unreasonably interfere with an employer’s business, and employers should take reasonable steps to facilitate access. Access should only be refused if it is reasonable in all the circumstances to do so. 

Access agreements can be enforced by means of an application to the CAC by either the employer or the union. The deadline for an application is 3 months. If the CAC upholds an application, it can order an employer to take steps to ensure that access takes place in accordance with the access agreement. If the employer breaches the agreement again within 12 months of the CAC decision, the union can make a further application to the CAC, and the CAC can then impose a fine. Conversely, if the CAC determines that a union has breached an access agreement and the CAC subsequently upholds a further application by the employer about conduct by the union that took place within 12 months of the CAC decision, the CAC has the power to fine the union. Access agreements are conclusively presumed not to be legally enforceable contracts.  

The recently closed consultation on access agreements sets out more detail on the way in which the government proposes access rights will operate in practice. The proposals include details of the information to be included in access requests and responses; a timetable allowing 5 working days for the employer to respond to a request; a negotiation period of 15 days; and a deadline of 25 days (from the date of the union’s request) for either party to complain to the CAC. The consultation also canvassed views on a possible exemption for employers with fewer than 21 workers; whether access agreements should expire automatically after 2 years; whether the CAC should have discretion to refuse access where another union is already recognised; whether access should take place on a weekly basis; whether unions should be required to give at least 2 days’ notice of access; and the level of fines the CAC should be empowered to impose, with a proposed maximum of £75,000 with the possibility of £150,000 for repeated breaches.  

 

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