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Employment Relations Act 2004

Type Public General Act
Publication 2004-09-16
State In force
Department Statute Law Database
Source legislation.gov.uk
Reform history JSON API

Part 1 — Union recognition

Application for decision on whether proposed bargaining unit is appropriate

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(a) whether the proposed bargaining unit is appropriate;

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(a) whether the proposed bargaining unit is appropriate;

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Power of the CAC to end period for agreement on bargaining unit

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(3) If, during the appropriate period, the CAC concludes that there is no reasonable prospect of the parties' agreeing an appropriate bargaining unit before the time when (apart from this sub-paragraph) the appropriate period would end, the CAC may, by a notice given to the parties, declare that the appropriate period ends with the date of the notice. (4) If, during the appropriate period, the parties apply to the CAC for a declaration that the appropriate period is to end with a date (specified in the application) which is earlier than the date with which it would otherwise end, the CAC may, by a notice given to the parties, declare that the appropriate period ends with the specified date. (5) If the CAC has declared under sub-paragraph (4) that the appropriate period ends with a specified date, it may before that date by a notice given to the parties specify a later date with which the appropriate period ends. (6) A notice under sub-paragraph (3) must contain reasons for reaching the conclusion mentioned in that sub-paragraph. (7) A notice under sub-paragraph (5) must contain reasons for the extension of the appropriate period.

Duty of employer to supply information to union

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After paragraph 18 of Schedule A1 to the 1992 Act insert—

(18A) (1) This paragraph applies if the CAC accepts an application under paragraph 11(2) or 12(2). (2) Within 5 working days starting with the day after that on which the CAC gives the employer notice of acceptance of the application, the employer must supply the following information to the union (or unions) and the CAC— (a) a list of the categories of worker in the proposed bargaining unit, (b) a list of the workplaces at which the workers in the proposed bargaining unit work, and (c) the number of workers the employer reasonably believes to be in each category at each workplace. (3) The lists and numbers supplied under this paragraph must be as accurate as is reasonably practicable in the light of the information in the possession of the employer at the time when he complies with sub-paragraph (2). (4) The lists and numbers supplied to the union (or unions) and to the CAC must be the same. (5) For the purposes of this paragraph, the workplace at which a worker works is— (a) if the person works at or from a single set of premises, those premises, and (b) in any other case, the premises with which the worker’s employment has the closest connection.

Determination of appropriate bargaining unit

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For paragraph 19 of Schedule A1 to the 1992 Act substitute—

(19) (1) This paragraph applies if— (a) the CAC accepts an application under paragraph 11(2) or 12(2), (b) the parties have not agreed an appropriate bargaining unit at the end of the appropriate period (defined by paragraph 18), and (c) at the end of that period either no request under paragraph 19A(1)(b) has been made or such a request has been made but the condition in paragraph 19A(1)(c) has not been met. (2) Within the decision period, the CAC must decide whether the proposed bargaining unit is appropriate. (3) If the CAC decides that the proposed bargaining unit is not appropriate, it must also decide within the decision period a bargaining unit which is appropriate. (4) The decision period is— (a) the period of 10 working days starting with the day after that with which the appropriate period ends, or (b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension. (19A) (1) This paragraph applies if— (a) the CAC accepts an application under paragraph 11(2) or 12(2), (b) during the appropriate period (defined by paragraph 18), the CAC is requested by the union (or unions) to make a decision under this paragraph, and (c) the CAC is, either at the time the request is made or at a later time during the appropriate period, of the opinion that the employer has failed to comply with the duty imposed by paragraph 18A. (2) Within the decision period, the CAC must decide whether the proposed bargaining unit is appropriate. (3) If the CAC decides that the proposed bargaining unit is not appropriate, it must also decide within the decision period a bargaining unit which is appropriate. (4) The decision period is— (a) the period of 10 working days starting with the day after the day on which the request is made, or (b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension. (19B) (1) This paragraph applies if the CAC has to decide whether a bargaining unit is appropriate for the purposes of paragraph 19(2) or (3) or 19A(2) or (3). (2) The CAC must take these matters into account— (a) the need for the unit to be compatible with effective management; (b) the matters listed in sub-paragraph (3), so far as they do not conflict with that need. (3) The matters are— (a) the views of the employer and of the union (or unions); (b) existing national and local bargaining arrangements; (c) the desirability of avoiding small fragmented bargaining units within an undertaking; (d) the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; (e) the location of workers. (4) In taking an employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that he considers would be appropriate. (5) The CAC must give notice of its decision to the parties.

Union communications with workers after acceptance of application

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(19C) (1) This paragraph applies if the CAC accepts an application under paragraph 11(2) or 12(2) or (4). (2) The union (or unions) may apply to the CAC for the appointment of a suitable independent person to handle communications during the initial period between the union (or unions) and the relevant workers. (3) In the case of an application under paragraph 11(2) or 12(2), the relevant workers are— (a) in relation to any time before an appropriate bargaining unit is agreed by the parties or decided by the CAC, those falling within the proposed bargaining unit, and (b) in relation to any time after an appropriate bargaining unit is so agreed or decided, those falling within the bargaining unit agreed or decided upon. (4) In the case of an application under paragraph 12(4), the relevant workers are those falling within the bargaining unit agreed by the parties. (5) The initial period is the period starting with the day on which the CAC informs the parties under sub-paragraph (7)(b) and ending with the first day on which any of the following occurs— (a) the application under paragraph 11 or 12 is withdrawn; (b) the CAC gives notice to the union (or unions) of a decision under paragraph 20 that the application is invalid; (c) the CAC notifies the union (or unions) of a declaration issued under paragraph 19F(5) or 22(2); (d) the CAC informs the union (or unions) under paragraph 25(9) of the name of the person appointed to conduct a ballot. (6) A person is a suitable independent person if— (a) he satisfies such conditions as may be specified for the purposes of paragraph 25(7)(a) by an order under that provision, or is himself specified for those purposes by such an order, and (b) there are no grounds for believing either that he will carry out any functions arising from his appointment otherwise than competently or that his independence in relation to those functions might reasonably be called into question. (7) On an application under sub-paragraph (2) the CAC must as soon as reasonably practicable— (a) make such an appointment as is mentioned in that sub-paragraph, and (b) inform the parties of the name of the person appointed and the date of his appointment. (8) The person appointed by the CAC is referred to in paragraphs 19D and 19E as “the appointed person”. (19D) (1) An employer who is informed by the CAC under paragraph 19C(7)(b) must comply with the following duties (so far as it is reasonable to expect him to do so). (2) The duties are— (a) to give to the CAC, within the period of 10 working days starting with the day after that on which the employer is informed under paragraph 19C(7)(b), the names and home addresses of the relevant workers; (b) if the relevant workers change as a result of an appropriate bargaining unit being agreed by the parties or decided by the CAC, to give to the CAC, within the period of 10 working days starting with the day after that on which the bargaining unit is agreed or the CAC’s decision is notified to the employer, the names and home addresses of those who are now the relevant workers; (c) to give to the CAC, as soon as reasonably practicable, the name and home address of any worker who joins the bargaining unit after the employer has complied with paragraph (a) or (b); (d) to inform the CAC, as soon as reasonably practicable, of any worker whose name has been given to the CAC under paragraph (a), (b) or (c) and who ceases to be a relevant worker (otherwise than by reason of a change mentioned in paragraph (b)). (3) Nothing in sub-paragraph (2) requires the employer to give information to the CAC after the end of the initial period. (4) As soon as reasonably practicable after the CAC receives any information under sub-paragraph (2), it must pass it on to the appointed person. (19E) (1) During the initial period, the appointed person must if asked to do so by the union (or unions) send to any worker— (a) whose name and home address have been passed on to him under paragraph 19D(4), and (b) who is (so far as the appointed person is aware) still a relevant worker, any information supplied by the union (or unions) to the appointed person. (2) The costs of the appointed person shall be borne— (a) if the application under paragraph 19C was made by one union, by the union, and (b) if that application was made by more than one union, by the unions in such proportions as they jointly indicate to the appointed person or, in the absence of such an indication, in equal shares. (3) The appointed person may send to the union (or each of the unions) a demand stating his costs and the amount of those costs to be borne by the recipient. (4) In such a case the recipient must pay the amount stated to the person sending the demand and must do so within the period of 15 working days starting with the day after that on which the demand is received. (5) In England and Wales, if the amount stated is not paid in accordance with sub-paragraph (4) it shall, if a county court so orders, be recoverable by execution issued from that court or otherwise as if it were payable under an order of that court. (6) Where an amount is recoverable under sub-paragraph (5) execution may be carried out, to the same extent and in the same manner as if the union were a body corporate, against any property held in trust for the union other than protected property as defined in section 23(2). (7) References to the costs of the appointed person are to— (a) the costs wholly, exclusively and necessarily incurred by the appointed person in connection with handling during the initial period communications between the union (or unions) and the relevant workers, (b) such reasonable amount as the appointed person charges for his services, and (c) such other costs as the union (or unions) agree. (19F) (1) If the CAC is satisfied that the employer has failed to fulfil a duty mentioned in paragraph 19D(2), and the initial period has not yet ended, the CAC may order the employer— (a) to take such steps to remedy the failure as the CAC considers reasonable and specifies in the order, and (b) to do so within such period as the CAC considers reasonable and specifies in the order; and in this paragraph a “remedial order” means an order under this sub-paragraph. (2) If the CAC is satisfied that the employer has failed to comply with a remedial order and the initial period has not yet ended, the CAC must as soon as reasonably practicable notify the employer and the union (or unions) that it is satisfied that the employer has failed to comply. (3) A remedial order and a notice under sub-paragraph (2) must draw the recipient’s attention to the effect of sub-paragraphs (4) and (5). (4) Sub-paragraph (5) applies if— (a) the CAC is satisfied that the employer has failed to comply with a remedial order, (b) the parties have agreed an appropriate bargaining unit or the CAC has decided an appropriate bargaining unit, (c) in the case of an application under paragraph 11(2) or 12(2), the CAC, if required to do so, has decided under paragraph 20 that the application is not invalid, and (d) the initial period has not yet ended. (5) The CAC may issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit.

(4F) Sub-paragraph (4)(a) does not apply to names and addresses that the employer has already given to the CAC under paragraph 19D. (4G) Where (because of sub-paragraph (4F)) the employer does not have to comply with sub-paragraph (4)(a), the reference in sub-paragraph (4)(b) to the time when the employer complied with sub-paragraph (4)(a) is to be read as a reference to the time when the employer is informed under paragraph 25(9). (4H) If— (a) a person was appointed on an application under paragraph 19C, and (b) the person appointed to conduct the ballot is not that person, the CAC must, as soon as is reasonably practicable, pass on to the person appointed to conduct the ballot the names and addresses given to it under paragraph 19D.

Circumstances in which the CAC must arrange a ballot

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(b) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

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(b) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the new bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

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Power of the CAC to extend notification period

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In paragraph 24 of Schedule A1 to the 1992 Act (notification to halt arrangements for ballot), for sub-paragraph (5) substitute—

(5) The notification period is, in relation to notification by the union (or unions)— (a) the period of 10 working days starting with the day on which the union (or last of the unions) receives the CAC’s notice under paragraph 22(3) or 23(2), or (b) such longer period so starting as the CAC may specify to the parties by notice. (6) The notification period is, in relation to notification by the union (or unions) and the employer— (a) the period of 10 working days starting with the day on which the last of the parties receives the CAC’s notice under paragraph 22(3) or 23(2), or (b) such longer period so starting as the CAC may specify to the parties by notice. (7) The CAC may give a notice under sub-paragraph (5)(b) or (6)(b) only if the parties have applied jointly to it for the giving of such a notice.

Postal votes for workers absent from ballot at workplace

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(6A) If the CAC decides that the ballot must (in whole or in part) be conducted at a workplace (or workplaces), it may require arrangements to be made for workers— (a) who (but for the arrangements) would be prevented by the CAC’s decision from voting by post, and (b) who are unable, for reasons relating to those workers as individuals, to cast their votes in the ballot at the workplace (or at any of them), to be given the opportunity (if they request it far enough in advance of the ballot for this to be practicable) to vote by post; and the CAC’s imposing such a requirement is not to be treated for the purposes of sub-paragraph (6) as a decision that the ballot be conducted as mentioned in sub-paragraph (4)(c).

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