One of the aims of the Employment Rights Bill is to update trade union legislation and look to create a new partnership between business, trade unions and workers. All employers need to understand the changes and how these will affect them, particularly those that are not unionised.
What's changing?
Information: At the time of issuing the employment contract (and at “other specified times”, yet to be clarified), an employer will have to inform employees about their right to join a union. It's thought that this will also need to set out the protections against the refusal of employment, unlawful inducements, detriments and dismissal because of trade union membership. More detail on the ‘what, when and how’ is to be set out in regulations. An employer's failure to comply can give rise to an award of between 2 to 4 weeks' pay.
Access agreements: Unions will be able to make a request to an employer for physical access to its workplace and to communicate with its workers (subject to data protection laws) in order to “meet, support, represent, recruit or organise workers” and “facilitate collective bargaining”. There is a question mark over whether unions will have sufficient resources to make full use of this right, which may result in a more targeted approach in terms of relevant sectors, business size and existing support.
There is a process that the parties need to follow to achieve an access agreement and where the employer doesn't engage or the parties fail to reach an agreement, the union can apply to the Central Arbitration Committee ("CAC") for it to determine the request. There is a presumption of access and in practice it will be difficult for an employer to oppose a request. At the moment, there is nothing to suggest that multiple unions cannot make requests to the same employer. However, this may well be a factor that the CAC takes into account when it is asked to determine requests. It is also assumed that if a union is later recognised by an employer, this will have an impact on any access agreements with other unions, insofar as these affect the workers in the relevant bargaining unit.
As access agreements will not have legal force, any complaints of breaches, to include interference by a third party, complaints are to the CAC. Repeated breaches can result in a fine and it's intended that regulations will set out a minimum amount, with a maximum cap. The actual fine awarded will take into account the nature and circumstances of the breach.
Recognition: the current statutory regime is complex and the changes will make it easier for unions to obtain recognition for the purpose of collective bargaining where there is no recognition agreement (voluntary or otherwise) already in place in respect of its proposed bargaining union.
There are certain conditions that need to be met for a union to request recognition (to include that the employer has at least 21 workers on the day it receives the request), but it no longer needs to show that 10% of the proposed bargaining unit are union members. This is being replaced with a “percentage test”, which will be anywhere between 2-10%. Further, all references to the need for a union to demonstrate that there is likely to be majority support for recognition are to be removed. And where the CAC holds a ballot to determine whether recognition should be granted, the need for a 40% support threshold of eligible workers voting in favour is being replaced with a simple majority.
No doubt unions would obtain an access agreement as a first step to build up support, before approaching an employer seeking recognition.
Unfair practices: currently, both sides are prevented from using unfair practices to influence workers from the point the CAC notifies them that it intends to conduct a ballot on recognition to the point that ballot closes. This period is going to be extended so that unfair practices are prohibited from the day the CAC accepts an application for recognition (and throughout the recognition process). Employers will be prevented from hiring workers into the proposed bargaining unit for the purpose of diluting trade union membership and/or support. Those hired during the recognition process will not count towards the number of workers in the bargaining unit and will not be allowed to vote.
Complaints about the use of unfair practices can be made within 5-working days of the ballot closes, rather than within 1-working day as currently provided. The parties will also be expected to discuss and prepare for the union to have access to the workplace earlier on in the process, rather than leaving this until the point the CAC indicates its intention to ballot.
Right to time off for union duties: where a union has recognition, its officials have a statutory right to paid time off to carryout union duties (and also unpaid time off for union activities, not including industrial action). This right is being extended so that, where it's requested, an employer also has to provide “such accommodation and facilities (…) as is reasonable”. A complaint to an Employment Tribunal for a refusal to grant time off will also be allowed on the grounds that an employer has failed, unreasonably, to provide the requested accommodation and facilities.
Equality reps: this is a new statutory role which will have the same rights to time off. Its purpose, amongst other things, is to promote the value of equality in the workplace and to consult with the employer on equality matters.
Practical steps
These changes will impact more greatly on non-unionised employers. Those employers should be considering what mechanisms/committees they have in place allowing for employee engagement (and also the general feeling amongst the workforce) and the likelihood /risk of being approached by unions seeking access and/or recognition. It is often better to work with a friendly union (that also has the support of workers) to put in place an access agreement and/or a voluntary recognition agreement on agreed terms, than have these imposed as a result of CAC processes.
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