New Employment Relations Bill published

In early December 2003, the UK government published its latest Employment Relations Bill. The main aim of the new legislation is to amend the statutory trade union recognition procedure established by the Employment Relations Act 1999. Other key provisions will make changes to the existing law on ballots for industrial action and empower the government to make regulations on employee information and consultation.

On 2 December 2003, the UK government introduced the Employment Relations Bill in the House of Commons. This article summarises the background to the legislation, its key provisions and the reaction from employers and trade unions.

Background

The new legislation follows a Department of Trade and Industry (DTI) review of the operation of the Employment Relations Act 1999 (UK9912145F), focusing in particular on the experience to date of the Act’s trade union recognition procedure (UK0201171F) and proposals for its amendment.

The government initiated the review in July 2002 (UK0208101N). The Trades Union Congress (TUC) put forward proposals for a wide range of amendments to the existing legislation (UK0211103N), while the Confederation of British Industry (CBI) argued that changes would be premature and unnecessary. In February 2003, the government published its interim conclusions for consultation (UK0303102N). The final conclusions, published alongside the new Bill, reaffirm the government’s rejection of calls for major changes to the Employment Relations Act but proposed a series of detailed amendments to improve its operation.

Key provisions

The Bill’s most notable provisions include:

• allowing the distribution of written trade union material to workers covered by recognition claims at an earlier stage in the process, and enabling the secretary of state to add pensions to the current three core topics for collective bargaining under a statutory recognition award (pay, hours and holidays) at a future stage;
• establishing a new legal right for union members to use their union’s services, and explicitly prohibiting inducements or bribes being made to union members to forgo union rights. These changes are in response to the July 2002 ruling of the European Court of Human Rights in the case of Wilson, the National Union of Journalists and others v the United Kingdom (UK0211103N);
• simplifying the legal requirements concerning industrial action ballots and notices to employers, and exempting any days in which employees are locked-out by their employer from the eight-week period during which they are protected from dismissal;
• clarifying the law on the right to be accompanied at disciplinary or grievance hearings (UK0010195F) so as to set out the circumstances in which the person accompanying the employee is allowed to address the hearing;
• enabling the secretary of state for trade and industry to make regulations regarding the right of employees, or their representatives, to be informed and consulted by their employer. The regulations to be made under this power will implement EU Directive 2002/14/EC) (EU0204207F), which establishes a general framework for informing and consulting employees in the European Community; and
• removing the requirement (which predates the 1999 Act) for union presidents to be elected by a secret postal ballot of the entire membership, provided they are already elected members of the union executive, and introducing a power to allow the secretary of state to include non-postal methods of balloting in statutory union elections and ballots.

Commenting on the legislation, employment relations minister Gerry Sutcliffe said: 'The Bill is founded on the principles of better regulation and will build on the success of the framework of employment rights and union recognition procedures of previous legislation. Since we proposed the right to recognition, employers and unions have reached more than 1,000 voluntary recognition agreements. Cases under the current law are decided in less than half the time than under the 1970s procedure, and legal challenges and inter-union disputes are rare.'

On information and consultation, Mr Sutcliffe said: 'I want to see an end to the climate where people only hear out of the blue about job losses from the media or by text message. I want to see a 'no surprises' culture at work where employers and employees discuss common ground and find solutions to mutual problems.'

The government has also indicated that it will be bringing forward amendments to the Bill to:

• allow unions to expel or exclude racist activists and others whose political behaviour is incompatible with trade union membership; and
• strengthen the protection against dismissal of workers on strike.

Employer and trade union reaction

John Cridland, the CBI’s deputy director-general, commented that: 'The government’s rejection of union calls for a major review of the existing act is a victory for common sense. It would have been entirely wrong to start unpicking the current legislation which is still new and actually appears to be working quite well.'

TUC general secretary Brendan Barber said that the Bill 'contains many useful measures pressed for by unions but it does not go far enough ... Perhaps the most important omission is the promised sanction against unfair labour practices during union recognition campaigns. Without this protection, anti-union companies will be able to continue to scare, bully and frighten employees away from voting for union protection at work.'

Commentary

It was widely expected that the government’s review of the 1999 Employment Relations Act would result in only limited proposals for change and, to the CBI’s satisfaction, so it has proved. On the vast majority of issues, the final conclusions of the review confirm the government’s initial assessment as set out in the February 2003 consultation document.

The TUC will be seeking to secure amendments to the Bill as it progresses through Parliament. Among the key union objectives which have not been incorporated in the Bill are extending the recognition legislation to companies employing fewer than 21 workers (the current threshold), modifying the voting rules so that abstentions do not count as votes against recognition, and abolishing the eight-week time limit on protection against dismissal for workers taking part in a lawful strike (UK0309104F).

As regards the inclusion in the Bill of powers for the government to make regulations on information and consultation, explanatory notes issued by the DTI state that the powers under section 2(2) of the European Communities Act 1972, which are usually used for regulations implementing EU Directives, are 'not considered sufficiently wide to cover all aspects of the proposed regulations'. However, this seems unlikely to imply a major change in approach from the draft Regulations published in July (UK0307106F), nor that the final regulations will contain more onerous information and consultation requirements than those of the Directive itself. (Mark Hall, IRRU)