Employment Relations Act 1999 (c. 26)

(The document as of February, 2008)

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(a) take the number of workers employed in each of the 13 weeks (including workers not employed for the whole of the week);

(b) aggregate the 13 numbers;

(3) For the purposes of sub-paragraph (1)(a) any worker employed by an associated company incorporated outside Great Britain must be ignored unless the day the request was made fell within a period during which he ordinarily worked in Great Britain.

(4) For the purposes of sub-paragraph (1)(b) any worker employed by an associated company incorporated outside Great Britain must be ignored in relation to a week unless the whole or any part of that week fell within a period during which he ordinarily worked in Great Britain.

(5) For the purposes of sub-paragraphs (3) and (4) a worker who is employed on board a ship registered in the register maintained under section 8 of the Merchant Shipping Act 1995 shall be treated as ordinarily working in Great Britain unless--

(a) the ship's entry in the register specifies a port outside Great Britain as the port to which the vessel is to be treated as belonging,

(b) the employment is wholly outside Great Britain, or

(6) The Secretary of State may by order--

(a) provide that sub-paragraphs (1) to (5) are not to apply, or are not to apply in specified circumstances, or

(b) vary the number of workers for the time being specified in sub-paragraph (1);

and different provision may be made for different circumstances.

(7) An order under sub-paragraph (6)--

(a) shall be made by statutory instrument, and

(b) may include supplementary, incidental, saving or transitional provisions.

(8) No such order shall be made unless a draft of it has been laid before Parliament and approved by a resolution of each House of Parliament.

8 The request is not valid unless it--

(a) is in writing,

(b) identifies the union or unions and the bargaining unit, and

9 The Secretary of State may by order made by statutory instrument prescribe the form of requests and the procedure for making them; and if he does so the request is not valid unless it complies with the order.

Parties agree

10 (1) If before the end of the first period the parties agree a bargaining unit and that the union is (or unions are) to be recognised as entitled to conduct collective bargaining on behalf of the unit, no further steps are to be taken under this Part of this Schedule.

(2) If before the end of the first period the employer informs the union (or unions) that the employer does not accept the request but is willing to negotiate, sub-paragraph (3) applies.

(3) The parties may conduct negotiations with a view to agreeing a bargaining unit and that the union is (or unions are) to be recognised as entitled to conduct collective bargaining on behalf of the unit.

(4) If such an agreement is made before the end of the second period no further steps are to be taken under this Part of this Schedule.

(5) The employer and the union (or unions) may request ACAS to assist in conducting the negotiations.

(6) The first period is the period of 10 working days starting with the day after that on which the employer receives the request for recognition.

(7) The second period is--

(a) the period of 20 working days starting with the day after that on which the first period ends, or

(b) such longer period (so starting) as the parties may from time to time agree.

Employer rejects request

11 (1) This paragraph applies if--

(a) before the end of the first period the employer fails to respond to the request, or

(b) before the end of the first period the employer informs the union (or unions) that the employer does not accept the request (without indicating a willingness to negotiate).

(2) The union (or unions) may apply to the CAC to decide both these questions--

(a) whether the proposed bargaining unit is appropriate or some other bargaining unit is appropriate;

(b) whether the union has (or unions have) the support of a majority of the workers constituting the appropriate bargaining unit.

Negotiations fail

12 (1) Sub-paragraph (2) applies if--

(a) the employer informs the union (or unions) under paragraph 10(2), and

(b) no agreement is made before the end of the second period.

(2) The union (or unions) may apply to the CAC to decide both these questions--

(a) whether the proposed bargaining unit is appropriate or some other bargaining unit is appropriate;

(b) whether the union has (or unions have) the support of a majority of the workers constituting the appropriate bargaining unit.

(3) Sub-paragraph (4) applies if--

(a) the employer informs the union (or unions) under paragraph 10(2), and

(b) before the end of the second period the parties agree a bargaining unit but not that the union is (or unions are) to be recognised as entitled to conduct collective bargaining on behalf of the unit.

(4) The union (or unions) may apply to the CAC to decide the question whether the union has (or unions have) the support of a majority of the workers constituting the bargaining unit.

(5) But no application may be made under this paragraph if within the period of 10 working days starting with the day after that on which the employer informs the union (or unions) under paragraph 10(2) the employer proposes that ACAS be requested to assist in conducting the negotiations and--

(a) the union rejects (or unions reject) the proposal, or

(b) the union fails (or unions fail) to accept the proposal within the period of 10 working days starting with the day after that on which the employer makes the proposal.

Acceptance of applications

13 The CAC must give notice to the parties of receipt of an application under paragraph 11 or 12.

14 (1) This paragraph applies if--

(a) two or more relevant applications are made,

(b) at least one worker falling within one of the relevant bargaining units also falls within the other relevant bargaining unit (or units), and

(2) A relevant application is an application under paragraph 11 or 12.

(3) In relation to a relevant application, the relevant bargaining unit is--

(a) the proposed bargaining unit, where the application is under paragraph 11(2) or 12(2);

(b) the agreed bargaining unit, where the application is under paragraph 12(4).

(4) Within the acceptance period the CAC must decide, with regard to each relevant application, whether the 10 per cent test is satisfied.

(5) The 10 per cent test is satisfied if members of the union (or unions) constitute at least 10 per cent of the workers constituting the relevant bargaining unit.

(6) The acceptance period is--

(a) the period of 10 working days starting with the day after that on which the CAC receives the last relevant application, or

(b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension.

(7) If the CAC decides that--

(a) the 10 per cent test is satisfied with regard to more than one of the relevant applications, or

(b) the 10 per cent test is satisfied with regard to none of the relevant applications,

the CAC must not accept any of the relevant applications.

(8) If the CAC decides that the 10 per cent test is satisfied with regard to one only of the relevant applications the CAC--

(a) must proceed under paragraph 15 with regard to that application, and

(b) must not accept any of the other relevant applications.

(9) The CAC must give notice of its decision to the parties.

(10) If by virtue of this paragraph the CAC does not accept an application, no further steps are to be taken under this Part of this Schedule in relation to that application.

15 (1) This paragraph applies to these applications--

(a) any application with regard to which no decision has to be made under paragraph 14;

(b) any application with regard to which the CAC must proceed under this paragraph by virtue of paragraph 14.

(2) Within the acceptance period the CAC must decide whether--

(a) the request for recognition to which the application relates is valid within the terms of paragraphs 5 to 9, and

(b) the application is made in accordance with paragraph 11 or 12 and admissible within the terms of paragraphs 33 to 42.

(3) In deciding those questions the CAC must consider any evidence which it has been given by the employer or the union (or unions).

(4) If the CAC decides that the request is not valid or the application is not made in accordance with paragraph 11 or 12 or is not admissible--

(a) the CAC must give notice of its decision to the parties,

(b) the CAC must not accept the application, and

(5) If the CAC decides that the request is valid and the application is made in accordance with paragraph 11 or 12 and is admissible it must--

(a) accept the application, and

(b) give notice of the acceptance to the parties.

(6) The acceptance period is--

(a) the period of 10 working days starting with the day after that on which the CAC receives the application, or

(b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension.

Withdrawal of application

16 (1) If an application under paragraph 11 or 12 is accepted by the CAC, the union (or unions) may not withdraw the application--

(a) after the CAC issues a declaration under paragraph 22(2), or

(b) after the union (or the last of the unions) receives notice under paragraph 22(3) or 23(2).

(2) If an application is withdrawn by the union (or unions)--

(a) the CAC must give notice of the withdrawal to the employer, and

(b) no further steps are to be taken under this Part of this Schedule.

Notice to cease consideration of application

17 (1) This paragraph applies if the CAC has received an application under paragraph 11 or 12 and--

(a) it has not decided whether the application is admissible, or

(b) it has decided that the application is admissible.

(2) No further steps are to be taken under this Part of this Schedule if, before the final event occurs, the parties give notice to the CAC that they want no further steps to be taken.

(3) The final event occurs when the first of the following occurs--

(a) the CAC issues a declaration under paragraph 22(2) in consequence of the application;

(b) the last day of the notification period ends;

and the notification period is that defined by paragraph 24(5) and arising from the application.

Appropriate bargaining unit

18 (1) If the CAC accepts an application under paragraph 11(2) or 12(2) it must try to help the parties to reach within the appropriate period an agreement as to what the appropriate bargaining unit is.

(2) The appropriate period is--

(a) the period of 20 working days starting with the day after that on which the CAC gives notice of acceptance of the application, or

(b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension.

19 (1) This paragraph applies if--

(a) the CAC accepts an application under paragraph 11(2) or 12(2), and

(b) the parties have not agreed an appropriate bargaining unit at the end of the appropriate period.

(2) The CAC must decide the appropriate bargaining unit within--

(a) the period of 10 working days starting with the day after that on 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.

(3) In deciding the appropriate bargaining unit 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 (4), so far as they do not conflict with that need.

(4) The matters are--

(a) the views of the employer and of the union (or unions);

(b) existing national and local bargaining arrangements;

(d) the characteristics of workers falling within the proposed bargaining unit and of any other employees of the employer whom the CAC considers relevant;

(e) the location of workers.

(5) The CAC must give notice of its decision to the parties.

Union recognition

20 (1) This paragraph applies if--

(a) the CAC accepts an application under paragraph 11(2) or 12(2),

(b) the parties have agreed an appropriate bargaining unit at the end of the appropriate period, or the CAC has decided an appropriate bargaining unit, and

(2) Within the decision period the CAC must decide whether the application is invalid within the terms of paragraphs 43 to 50.

(3) In deciding whether the application is invalid, the CAC must consider any evidence which it has been given by the employer or the union (or unions).

(4) If the CAC decides that the application is invalid--

(a) the CAC must give notice of its decision to the parties,

(b) the CAC must not proceed with the application, and

(5) If the CAC decides that the application is not invalid it must--

(a) proceed with the application, and

(b) give notice to the parties that it is so proceeding.

(6) The decision period is--

(a) the period of 10 working days starting with the day after that on which the parties agree an appropriate bargaining unit or the CAC decides an appropriate bargaining unit, or

(b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension.

21 (1) This paragraph applies if--

(a) the CAC accepts an application under paragraph 11(2) or 12(2),

(b) the parties have agreed an appropriate bargaining unit at the end of the appropriate period, or the CAC has decided an appropriate bargaining unit, and

(2) This paragraph also applies if the CAC accepts an application under paragraph 12(4).

(3) The CAC must proceed with the application.

22 (1) This paragraph applies if--

(a) the CAC proceeds with an application in accordance with paragraph 20 or 21, and

(b) the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union (or unions).

(2) The CAC must 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.

(3) But if any of the three qualifying conditions is fulfilled, instead of issuing a declaration under sub-paragraph (2) the CAC must give notice to the parties that it intends to arrange for the holding of a secret ballot in which the workers constituting the bargaining unit are asked whether they want the union (or unions) to conduct collective bargaining on their behalf.

(4) These are the three qualifying conditions--

(a) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(b) a significant number of the union members within the bargaining unit inform the CAC that they do not want the union (or unions) to conduct collective bargaining on their behalf;

(c) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf.

(5) For the purposes of sub-paragraph (4)(c) membership evidence is--

(a) evidence about the circumstances in which union members became members;

(b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

23 (1) This paragraph applies if--

(a) the CAC proceeds with an application in accordance with paragraph 20 or 21, and

(b) the CAC is not satisfied that a majority of the workers constituting the bargaining unit are members of the union (or unions).

(2) The CAC must give notice to the parties that it intends to arrange for the holding of a secret ballot in which the workers constituting the bargaining unit are asked whether they want the union (or unions) to conduct collective bargaining on their behalf.

24 (1) This paragraph applies if the CAC gives notice under paragraph 22(3) or 23(2).

(2) Within the notification period--

(a) the union (or unions), or

(b) the union (or unions) and the employer,

may notify the CAC that the party making the notification does not (or the parties making the notification do not) want the CAC to arrange for the holding of the ballot.

(3) If the CAC is so notified--

(a) it must not arrange for the holding of the ballot,

(b) it must inform the parties that it will not arrange for the holding of the ballot, and why, and

(4) If the CAC is not so notified it must arrange for the holding of the ballot.

(5) The notification period is the period of 10 working days starting--

(a) for the purposes of sub-paragraph (2)(a), 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) for the purposes of sub-paragraph (2)(b), with that day or (if later) the day on which the employer receives the CAC's notice under paragraph 22(3) or 23(2).

25 (1) This paragraph applies if the CAC arranges under paragraph 24 for the holding of a ballot.

(2) The ballot must be conducted by a qualified independent person appointed by the CAC.

(3) The ballot must be conducted within--

(a) the period of 20 working days starting with the day after that on which the qualified independent person is appointed, or

(b) such longer period (so starting) as the CAC may decide.

(4) The ballot must be conducted--

(a) at a workplace or workplaces decided by the CAC,

(b) by post, or

depending on the CAC's preference.

(5) In deciding how the ballot is to be conducted the CAC must take into account--

(a) the likelihood of the ballot being affected by unfairness or malpractice if it were conducted at a workplace or workplaces;

(b) costs and practicality;

(6) The CAC may not decide that the ballot is to be conducted as mentioned in sub-paragraph (4)(c) unless there are special factors making such a decision appropriate; and special factors include--

(a) factors arising from the location of workers or the nature of their employment;

(b) factors put to the CAC by the employer or the union (or unions).

(7) A person is a qualified independent person if--

(a) he satisfies such conditions as may be specified for the purposes of this paragraph by order of the Secretary of State or is himself so specified, and

(b) there are no grounds for believing either that he will carry out any functions conferred on him in relation to the ballot otherwise than competently or that his independence in relation to the ballot might reasonably be called into question.

(8) An order under sub-paragraph (7)(a) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(9) As soon as is reasonably practicable after the CAC is required under paragraph 24 to arrange for the holding of a ballot it must inform the parties--

(a) that it is so required;

(b) of the name of the person appointed to conduct the ballot and the date of his appointment;

(d) whether the ballot is to be conducted by post or at a workplace or workplaces;

(e) of the workplace or workplaces concerned (if the ballot is to be conducted at a workplace or workplaces).

26 (1) An employer who is informed by the CAC under paragraph 25(9) must comply with the following three duties.

(2) The first duty is to co-operate generally, in connection with the ballot, with the union (or unions) and the person appointed to conduct the ballot; and the second and third duties are not to prejudice the generality of this.

(3) The second duty is to give to the union (or unions) such access to the workers constituting the bargaining unit as is reasonable to enable the union (or unions) to inform the workers of the object of the ballot and to seek their support and their opinions on the issues involved.

(4) The third duty is to do the following (so far as it is reasonable to expect the employer to do so)--

(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 25(9), the names and home addresses of the workers constituting the bargaining unit;

(b) to give to the CAC, as soon as is reasonably practicable, the name and home address of any worker who joins the unit after the employer has complied with paragraph (a);

(c) to inform the CAC, as soon as is reasonably practicable, of any worker whose name has been given to the CAC under paragraph (a) or (b) but who ceases to be within the unit.

(5) As soon as is reasonably practicable after the CAC receives any information under sub-paragraph (4) it must pass it on to the person appointed to conduct the ballot.

(6) If asked to do so by the union (or unions) the person appointed to conduct the ballot must send to any worker--

(a) whose name and home address have been given under sub-paragraph (5), and

(b) who is still within the unit (so far as the person so appointed is aware),

any information supplied by the union (or unions) to the person so appointed.

(7) The duty under sub-paragraph (6) does not apply unless the union bears (or unions bear) the cost of sending the information.

(8) Each of the following powers shall be taken to include power to issue Codes of Practice about reasonable access for the purposes of sub-paragraph (3)--

(a) the power of ACAS under section 199(1);

(b) the power of the Secretary of State under section 203(1)(a).

27 (1) If the CAC is satisfied that the employer has failed to fulfil any of the three duties imposed by paragraph 26, and the ballot has not been held, 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.

(2) If the CAC is satisfied that the employer has failed to comply with an order under sub-paragraph (1), and the ballot has not been held, the CAC may issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.

(3) If the CAC issues a declaration under sub-paragraph (2) it shall take steps to cancel the holding of the ballot; and if the ballot is held it shall have no effect.

28 (1) This paragraph applies if the holding of a ballot has been arranged under paragraph 24 whether or not it has been cancelled.

(2) The gross costs of the ballot shall be borne--

(a) as to half, by the employer, and

(b) as to half, by the union (or unions).

(3) If there is more than one union they shall bear their half of the gross costs--

(a) in such proportions as they jointly indicate to the person appointed to conduct the ballot, or

(b) in the absence of such an indication, in equal shares.

(4) The person appointed to conduct the ballot may send to the employer and the union (or each of the unions) a demand stating--

(a) the gross costs of the ballot, and

(b) the amount of the gross costs to be borne by the recipient.

(5) 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.

(6) In England and Wales, if the amount stated is not paid in accordance with sub-paragraph (5) 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.

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