Access all areas - which method to choose?

Trade Union Recognition (Method of Collective Bargaining) Order

The Department of Trade and Industry has now completed public consultation on two key aspects of the recognition legislation. These will now come into force with the new statutory right to trade union recognition on 6 June 2000.

Code of Practice

The first is the Code of Practice on Access to Workers during Recognition and Derecognition ballots. The second is the Method which the Central Arbitration Committee (CAC) may prescribe when recognition is granted or agreed but the parties cannot agree on a method of collective bargaining.

Access arrangements The right of access only arises once the CAC has given notification that a ballot will take place. This is at an advanced stage of the procedure after the union has been required to show 10 per cent membership in the bargaining unit and that it is likely to secure majority support for recognition. It has no right of access to assist with that part of the process.

The access period should begin as soon as notification of the ballot is given, not when the ballot has commenced and preparations for access should begin as soon as possible. The employer should agree to a request from the union for a meeting at an early date to discuss proposed access arrangements.

The Code recommends establishing a written agreement including the union's programme for access and a mechanism for resolving disputes. It suggests that the union should put its proposals to management who should respond within two working days and, if the proposals are rejected, propose alternative arrangements.

The employer should provide information about methods of communicating with the workforce. The employer's own plans to communicate with the workforce are relevant. There appears to be an acceptance that where the employer engages in a concerted campaign, the union's rights to access should be increased to counter-balance this. The Code expressly states that the names of the individuals to be balloted should not be disclosed to the union without the individual's consent: a striking contrast to the former provisions on unions providing lists of names to employers on industrial action ballots. 
There is a danger that employers will prevaricate in an attempt to delay access or even delay the ballot.

Access in operation The Code suggests that contact with workers while the actual ballot takes place should be confined to encouraging workers to vote. This overlooks that the employer has the advantage of full access to the workers at all times, from well before the ballot, whereas the union has only the limited access afforded by the legislation.

The document acknowledges that access should generally be at the workplace, but it is a cause of concern that it envisages circumstances where employers may use health and safety or security reasons to require that access take place away from the workplace, without preventing the employer from holding similar events at the workplace.

Paid officials as well as lay officials of the union should be granted access. The number of officials granted access should be proportionate to the scale and nature of the activities or events organised within the agreed access programme.

If the employer traditionally communicates through mass meetings on site, the union should be afforded similar facilities. The access should generally be during working time and workers should be permitted time off.

The access agreement should establish limits on the duration and frequency of the union's activities. The Code suggests as a minimum the union should be allowed: 

• one meeting of 30 minutes duration for each 10 days of the ballot; and 
• individual surgeries of up to 15 minutes each "where...appropriate".

Workers should be permitted paid time off to attend. If the employer organises mass meetings, the union should be entitled to hold the same number.

The Code lacks safeguards to ensure that the meetings are private and the employer does not keep records of those who attend, nor discourage attendance. Nor does it prevent employers from holding individual meetings with members.

The legislation gives the union the right to send written information to the independent person conducting the ballot who must then distribute it to the workers being balloted. The Code suggests that, in addition, the union be given a notice board, somewhere to leave leaflets and access to internal communications systems, including e-mail, with workers being permitted to access the union's web-site.

There must also be arrangements for communicating with "non-typical workers" such as shift workers, part-time workers, homeworkers, those on maternity, parental or sick leave and those at other work locations.

The employer is to provide the union with appropriate accommodation for meetings. 
Enforcing access The Code stresses the need for co-operation and to avoid acrimonious situations. However, there is a need for diligent enforcement to ensure the employer does not use delay as a means of frustrating access. There should be strict deadlines and prompt enforcement. The Code appears to allow employers to deny access where the union has "acted unreasonably". If the Code has been breached by the employer, the CAC has the power to grant recognition to the Union without a ballot.

The document could do more to redress the imbalance which arises from the employer's unfettered access to the workers and more to protect workers against interference with their right to participate in the process and vote freely without pressure from the employer.

Method of Collective Bargaining

The statutory Method concerns the situation where the CAC has awarded recognition to the union under the statutory procedure, but where the employer and the union fail to agree a method of bargaining between themselves or have failed to follow an agreed method. It may also apply where there has been agreed recognition following an application under the statutory procedure, but there has been no agreement on a method of bargaining or a failure to follow the agreed method.

The most significant aspect of this part of the legislation is that the method is to be legally binding unless both parties agree otherwise. It is a contract between the union and the employer which can be enforced by applying to the court for an order for specific performance. This means an order requiring a party to carry out its obligations under the contract. If it fails to do so, it will be in contempt of court.

The proposed method The method will cover only bargaining on pay, hours and holidays. It will give exclusive bargaining rights to the recognised unions.

The procedure is the establishment of a Joint Negotiating Body with equal numbers of union and employer representatives. Each of the recognised unions must have at least one member on the Body and may include paid officials of the union. The employer's representatives should have authority to take final decisions for the employer on the issues discussed.

The proposal envisages an annual bargaining round with a claim put forward by the union, followed by counter proposals and meetings of the JNB in a fairly rigid framework. If no agreement is reached at the end of the process the parties may voluntarily refer the matter to ACAS.

There is no formal "status quo" clause, but the Method does suggest that the employer shall not vary pay, hours or holidays unless it has first discussed its proposals with the union. An employer is not prevented from entering into personal contracts with individual employees.

The members of the JNB are to be given paid time off to attend the JNB and prepare the union's claim and the employer must provide facilities for meetings of the union side of the JNB and also a room, secure cabinet and typing facilities for the union.

It remains to be seen how frequently the CAC is required formally to exercise its powers to impose the Method, but it will also be interesting to see the extent to which the Method becomes a benchmark for voluntary agreements between unions and employers.