An update of trade union law

Following a review of the 1999 Employment Relations Act, a new and updated version of the legislation has just received royal assent.

A few of the measures of the 2004 Act - which is mainly concerned with collective labour law and trade union rights - came into force on 1 October, but the rest will take effect by April 2005.

A solicitor from Thompsons' Employment Rights Unit in London, takes a brief look at the new Act.

Part 1: Union Recognition

Appropriate bargaining unit The Central Arbitration Committee (CAC) now has 10 days to decide whether the union's bargaining unit is appropriate before coming to its own decision. If it does, it has to consider whether the proposed unit is 'compatible with effective management' and also take the views of the employer into account.

The parties have 20 days to try to reach agreement, but the CAC can now shorten - or extend - that period.

Employers must give the union and the CAC a list of the categories of workers in that unit, a list of their workplaces and an estimate of the numbers employed. If the employer fails to do that, the union can ask the CAC to make a decision before the end of the 20-day period.

The CAC can now require the employer, the union and applicant workers to provide information about the union membership of workers in a specified bargaining unit and the likelihood of them voting for recognition (or de-recognition).

Union communication - Unions can now communicate with workers in the bargaining unit once the CAC accepts their application via a 'suitable, independent person'.

The employer then has to provide the names and home addresses of all the relevant workers in that unit.

CAC-arranged ballot - The CAC now has greater discretion to assess the evidence (which has to be credible) from a significant number of union members saying that they do not want the union to bargain collectively for them before arranging a ballot.

The CAC can now give the two parties more time to reach a voluntary agreement on recognition by extending the notification period.

The CAC can now allow workers to vote by post if they cannot get to work on the day of the ballot.

Employers are not allowed to induce a worker not to go to a meeting, nor to threaten action against anyone who attends.

Both employers and unions must refrain from using unfair practices (such as offering money or threatening to dismiss a worker) to influence the outcome of the vote.

Admissability of application - The Act clarifies that the CAC can proceed with an application for recognition, even if there is an existing agreement that covers one or two of the three 'core bargaining' topics of pay, hours or holidays.

The Secretary of State, however, now has the power to amend the legislation to include pensions within the 'core bargaining' topics.

Notice to end bargaining - A union can now challenge an employer's application to end bargaining arrangements, even if it did so successfully within the last three years.

Part 2 : Industrial Action

Unions now have to provide a list of the categories of employees who they reasonably believe will be entitled to vote, and their workplaces. They also have to provide the total number of employees concerned, the number in each category and the number in each workplace.

Unions must provide an explanation of how the figures were calculated and should be as accurate as possible, based on information held by a union officer or employee (but not a branch official).

Unions no longer have to supply employers with a list of names of the employees they believe are entitled to vote.

Ballots and notices - The members entitled to vote are those that the union rea-sonably believes it will induce to take part in the action.

Unions no longer lose their protection against legal liability if they fail to ballot a few members whom they subsequently try to induce to take part.

The notice must contain figures showing the total number of affected employees, the number of them in each category and the number of them at each workplace.

Protection for strikers - The length of the protected period against dismissal for taking strike action is increased from 8 to 12 weeks. Locked-out days will extend the period. 
The date of dismissal is clarified as the date on which notice is given or, if no notice was given, the effective date of termination.

Conciliation or mediation meetings should be attended by an 'appropriate person' representing each party who should co-operate with the proceedings and put in place any actions agreed.

Part 3: Individual Rights

Inducements, detriments and dismissals - Subsequent to the decision of the European Court of Human Rights in Wilson v Palmer, workers now have protection against being offered inducements not to join (or leave) a union, not to take part in its activities and not to make use of its services. They also have protection against being induced to opt out of a collective agreement.

The right not to suffer a detri-ment due to union membership or activities is extended from employees to workers.

It is now automatically unfair to dismiss an employee for making use of trade union 
services 'at an appropriate time' or because the employee failed to accept one of the inducements outlined above.

These sections all came into effect on 1 October 2004.

Exclusion and expulsion - Trade unions are now entitled to exclude or expel individuals for political behaviour which is incompatible with membership of a union, including membership of a political party.

Other rights The burden of proof now lies with the employer in cases of employees dismissed or selected for redundancy on TU grounds.

Workers must be allowed to choose the person accompanying them to a disciplinary or grievance hearing. The companion is now allowed to address the hearing on more than one occasion and respond to points put forward. This section is now in force.

The employment appeal tribunal now has jurisdiction to hear appeals against tribunal decisions relating to the right to be accompanied. This section is now in force.

Employees now have a qualified right not to be subjected to a detriment as a result of doing jury service.

Employees dismissed for a reason connected with a flexible working application can complain of unfair dismissal despite being involved in industrial action. They do not need 1 year's qualifying service.

Parts 4, 5 and 6

Part 4 introduces measures to improve the enforcement regime of the national minimum wage.

Part 5 introduces measures to give the Certification Officer greater powers to strike out weak or vexatious claims.

Part 6 exempts the position of union president from the need for a vote if that person already holds that post (or any union post) in accordance with the union's rules and it is less than 5 years since they were elected.

Part 6 also gives the Secretary of State the power to include non-postal methods of voting in statutory union elections and ballots, as well as make funds available to independent trade unions to modernise their operations.