On 26 June, the DTR issued a new draft Code of Practice on Industrial Action Ballots and Notices to Employers. This was following a consultation exercise which many Unions will have participated in. The new Code of Practice, together with the corresponding provisions in Schedule 3 to the Employment Relations Act 1999, are scheduled to come into force on 18th September 2000.
As with the previous code, the new Code of Practice does not of itself impose any legal obligations and a failure to observe its provisions is not sufficient grounds alone for a legal challenge. However, all the provisions of the code are admissible in evidence and are to be taken into account in proceedings before any Court where they are relevant.
Paragraphs 6 and 7 of the Code set out a requirement for agreed procedures, whether formal or otherwise, which might lead to the resolution of a dispute without the need for industrial action to be completed and for consideration to be given to other means of dispute resolution, such as seeking assistance from ACAS. This requirement mirrors the provisions of the old Code, but may well be more relevant now because, under Section 16 and schedule 5 to the Employment Relations Act, one of the factors to be taken into account in deciding whether the dismissal of a striking worker is unfair after the initial 8 week protection is whether the employer or the Union has complied with any collective or other agreement and/or unreasonably refused a request for conciliation.
Preparing for industrial action ballot
Paragraphs 8 to 36 deal with the preparation of an industrial action ballot. The old requirements relating to a scrutineer and distribution of ballot papers are essentially tracked into the new code.
However, in line with Schedule 3 to the 1999 Act, the obligation on Unions to provide employers with the names of individuals to be balloted or called upon to take part in industrial action is removed. Instead a Union is now obliged to provide "such information in a Union's possession as would help the employer to make plans and bring information to the attention of the employees to be balloted" This expressly does not require the Union to provide the names of individuals, but does require information on the number, category or workplace of the employees concerned when this information is in the Union's possession.
However, paragraph 14 of the new Code sets out examples of the type of information required:
"...for example, [information] as appropriate, to enable him [the employer] to warn his customers of the possibility of disruption so that they can make alternative arrangements or to take steps to ensure the health and safety of his employees or the public or to safe guard equipment which might otherwise suffer damage or be shut down or left without supervision..."
The examples given above could well serve as a checklist for employers and if insufficient information is given to enable them fully to address each of these issues, employers may well seek to challenge the validity of the ballot. It is extremely unhelpful for the Code to contain such open ended examples and hopefully they will not be taken as examples of the information which is legally required.
The notification of intention to ballot must be received by the employer no later than the seventh day before the opening day of the ballot, as previously. Again, sample voting papers must be received by the employer not later than the third day before the opening day of the ballot.
Paragraphs 22 and 23 then set out the changes introduced by the new section 232 (a) and 232 (b) of the 1992 Act. This means that small accidental failures to comply with the requirements of the entitlement to vote, dispatch of the voting papers, giving the members the opportunity to vote by post and balloting merchant seamen or overseas members will be disregarded if, taken together, they are on a scale unlikely to affect the ballot's results.
Paragraphs 24 and 25 then deals with the simplified requirements for a separate workplace ballots. There are three situations in which no separate work place ballots are required: first, where there is at least one member of the Union who is "affected" by the dispute at the workplace of each member entitled to vote; secondly, where the workers have one or a number of common occupations, regardless of whether or not they are employed by one or a number of employers; and thirdly, where entitlement to vote is restricted to all the members of the Union employed by a particular employer (or employers).
Provisions relating to balloting methods and voting papers are largely replicated.
However, the form of wording which must appear on every voting paper is now slightly different to take into account the change in the law relating to industrial action and unfair dismissal. The new wording is:
"If you take part in a strike or other industrial action, you may be in breach of your Contract of Employment. However, if you are dismissed for taking part in a strike or other industrial action which is called officially and is otherwise lawful, the dismissal will be unfair if it takes place fewer than eight weeks after you started taking part in the action, and depending upon the circumstances may be unfair if it takes place later".
The ballot itself and afterwards
The requirements in relation to checking voting papers for return and ensuring secrecy of voting, for counting votes and announcing details of the results are largely unchanged.
Paragraph 50 deals with the situation where a Union decides to authorise or endorse industrial action and the need for the employer to receive, no less then seven days before the day specified in the notice, the date on which the workers are intending to take part in continuous action or the first date in discontinuous action.
The new code fails to take account of the amended Section 234 of the 1992 Act which provides for a ballot to continue to be effective until up to eight weeks after the date of the ballot where there is an agreement between the Union and the member's employer.
Paragraph 53 of the new Code, however, deals with agreements under the amended Section 234 (7B) of the 1992 Act, where Unions can agree with employers that industrial action will cease to be authorised from a specified date, and that it may be authorised again from a fresh date, in which case the Union does not have to serve a request for a seven day notice relating to Industrial Action.