Means of communicating with workers

110.     Section 16 inserts a new paragraph 166A in Schedule A1.

111.     Paragraph 166A(1) provides that paragraph 166A applies in relation to any provision of paragraph 19D(2), paragraph 26(4) or paragraph 118(4). These paragraphs require the employer to provide the names and home addresses of workers for the purposes of their being sent information by the union, or for the purposes of a ballot on recognition or derecognition.

112.     Paragraph 166A gives the Secretary of State an order-making power to provide that the employer must give to the CAC, in addition to the workers' home addresses, an address of a specified kind, which may include any address or number to which information can be sent by any means. Such an order must be made by statutory instrument and approved by both Houses of Parliament. The power contained in this section will enable the Secretary of State to provide that employers must give the CAC addresses for workers which enable communication or voting in ballots to take place by other means as well as by post (see also commentary on section 54).

Unfair practices: power to make provision about periods before notice of ballot

113.     Section 17 inserts a paragraph 166B into Schedule A1 to the 1992 Act. This paragraph provides an order-making power for the Secretary of State to prohibit employers and unions from using specified unfair practices during a specified period. Paragraph 166B(1) sets out that the Secretary of State may provide by order that employers and unions are prohibited from using practices which are specified as unfair practices in relation to particular kinds of application under Schedule A1. Such an order may also set out a specific period in which this prohibition will apply.

114.     Paragraph 166B(2) provides that an order may make provision for the consequences of using a prohibited practice, including provision which modifies the effect of an existing provision of the Schedule which deals with the situation where a prohibited practice is used.

115.     Paragraph 166B(3) makes clear that an order by the Secretary of State can confer functions on the CAC.

116.     Paragraph 166B(4) sets out that an order may contain provisions which extend either or both the power of Acas under section 199(1) of the 1992 Act, or the power of the Secretary of State under section 203(1)(a) of that Act, to issue Codes of Practice in relation to the provisions laid down in the order.

117.     Paragraph 166B(8) provides a definition of the term "specified", which is to mean specified in an order under this paragraph.

Power to make provision about effect of amalgamations etc.

118.     Section 18 inserts paragraphs 169A, 169B and 169C into the Schedule. Paragraph 169A provides an order-making power for the Secretary of State to make provision for any case where anything has been done under or for the purposes of the Schedule by or in relation to a union and that union amalgamates or transfers all or any of its engagements. For example, such an order may specify what will happen to an award of recognition where the union(s) in respect of which the award was made merges with another union or unions. The term "transfer of engagements" also covers the case where a union breaks up with the result that a section that was formerly a part of it becomes a union in its own right.

119.     Paragraph 169A(2) has the effect that an order under this paragraph may make provision for cases where an amalgamated union, or union to which engagements have been transferred, does not have a certificate of independence.

120.     Paragraph 169B contains a similar order-making power for the Secretary of State to make provision for any case where anything has been done under the purposes of the Schedule by or in relation to a group of workers and the employer of any of those workers is no longer their employer, by reason of a business transfer or otherwise.

121.     Paragraph 169C provides that an order under paragraphs 169A or 169B must be approved by both Houses of Parliament.

Information about union membership and employment in bargaining unit

122.     Section 19 inserts a paragraph 170A into the Schedule. The new paragraph provides a power for the CAC to require the employer, the union(s) and applicant workers to give to a CAC case manager specified information to help inform its decisions under the Schedule. It also specifies the CAC's processes in handling and making use of such information.

123.     Paragraph 170A(1) provides that the CAC may exercise the powers if it considers it necessary to do so to enable or assist it to exercise any of its functions under the Schedule.

124.     Paragraphs 170A(2) and (3) provide that the CAC may require an employer, a union or an applicant worker to give the CAC case manager specified information about:

• the workers in a specified bargaining unit;

• union membership among those workers;

• the likelihood of a majority of those workers being in favour of recognition of a union(s) on their behalf; or,

• the likelihood of a majority of those workers being in favour of having bargaining arrangements ended.

125.     Paragraph 170A(5) provides that the recipient of a requirement from the CAC must provide, within the specified period, as much of the specified information as is in his possession.

126.     Paragraph 170A(6) provides that the CAC case manager must prepare a report from the information supplied to him and submit this to the CAC. Under new paragraph 170A(8) he must also give a copy of this report to the employer, the union(s) and, if appropriate, the applicant worker(s).

127.     Paragraph 170A(7) provides that if an employer, union or worker fails to comply with a requirement the case manager's report must mention this failure and the CAC may draw an inference against the party concerned. Paragraph 170A(9) defines the terms "applicant worker", "CAC case manager" and "specified" for the purposes of paragraph 170A.

"Pay" and other matters subject to collective bargaining

128.     Section 20 inserts paragraph 171A into the Schedule. A CAC declaration of recognition is for collective bargaining on pay, hours and holidays. Paragraph 171A(1) clarifies that for the purposes of the Schedule, the definition of "pay" does not include any matters relating to a worker's membership of an occupational or personal pension scheme, his rights under that scheme, or his employer's contributions to it.

129.     Paragraphs 171A(2) to (4) permit the Secretary of State, by order, to amend relevant parts of the Schedule to add matters relating to pensions to the "core" bargaining topics of pay, hours and holidays. New paragraph 171A(5) allows the order to deem that the inclusion of pensions as a topic for collective bargaining shall have effect with regard to declarations of recognition and methods of collective bargaining already awarded under the Schedule.

130.     Paragraph 171A(7) provides that any order made by the Secretary of State under the paragraph must be approved by both Houses of Parliament.

Information required by Acas for ballots and ascertaining union membership

131.     Section 21 inserts a new section 210A in the 1992 Act. Subsections (1) and (2) of the new section have the effect that where Acas is exercising its function to give assistance for the purpose of bringing about the settlement of a trade dispute, and the dispute is a recognition dispute, the parties to the dispute may jointly request Acas to hold a ballot of the workers involved or to ascertain their union membership.

132.      Subsection (4) of the new section provides that if such a request is made, Acas has the power to require the parties to the dispute to give it, within a specified period, such information as it may specify about the workers involved in the dispute. However, under subsection (5), Acas may use the power only where it considers this is necessary to enable it to exercise its function to bring about a settlement and to assist it to comply with the parties' request for a ballot.

133.     Subsection (6) of the new section provides that the recipient of a requirement from Acas must provide, within the specified period, as much of the specified information as is in his possession. Subsection (7) of the new section provides that a request for Acas to conduct a ballot or ascertain union membership may be withdrawn by any party to the dispute at any time and that, if this occurs, Acas is to take no further steps to conduct the ballot or ascertain union membership. Under subsection (8), Acas is also required not to take those further steps if a party fails to comply with subsection (6). Subsection (9) provides that Acas is not required to comply with any request made under the new section.

134.     Subsection (10) defines the terms "party", "recognition dispute", "specified" and "workers" for the purposes of the new section.

PART TWO: INDUSTRIAL ACTION LAW

Ballots and Notices

135.     Sections 226 to 235 of the 1992 Act contain provisions relating to industrial action ballots and the ballot and industrial action notices that unions are required to give to employers. The Government introduced a number of changes to the provisions, including sections 226A and 234A dealing with notices, in the 1999 Act.

136.     A trade union that organises industrial action would, in the absence of statutory provision to the contrary, be liable under the common law for the civil wrong of inducing a breach of contract. However, the 1992 Act protects unions from the legal liability that would otherwise result if certain conditions are satisfied. One of these is that before inducing its members to take part in industrial action, the union must have held a properly conducted secret ballot of the members it is likely to induce to take part. Other conditions are that the union must give the employers concerned advance notice in writing of the ballot and of the industrial action. Generally, the "ballot notice" has to describe which employees the union believes will be entitled to vote in the ballot, and the "industrial action notice" has to describe which employees the union intends to induce to take part in the industrial action.

137.     The review of the 1999 Act and consultation process found that, following the amendments, these provisions of the 1992 Act were generally working well. However, the judgment in the case of National Union of Rail, Maritime and Transport Workers v London Underground Limited [2001] IRLR 228 highlighted a difficulty with the way in which information required to be given in ballot and industrial action notices should be presented. Further, the case of National Union of Rail, Maritime and Transport Workers v Midland Mainline Ltd [2001] IRLR 813 revealed that there was a lack of clarity as to the union members to whom the union was required to give an entitlement to vote in an industrial action ballot. Sections 22, 23 and 25 address these matters.

Information about employees to be balloted on industrial action

138.     Section 22 amends section 226A of the 1992 Act, which specifies the information required to be contained in a "ballot notice".

139.     Section 226A currently requires a union conducting an industrial action ballot to provide each employer the union reasonably believes to employ members who will be entitled to vote with a notice stating that it intends to hold a ballot and the starting date of the ballot. As the section is at present, the notice is also required to contain information in the union's possession that would help the employer to make plans and bring information to the attention of the employees the union intends to ballot, and has to include information, if the union has it, as to the number of employees involved, their category of work and workplace. The notice must be received by the employer at least 7 days before the starting date of the ballot.

140.     Additionally, the union has to ensure that each employer concerned receives a sample voting paper at least 3 days before the starting date of the ballot.

141.     Section 22 simplifies the requirements of section 226A by making changes to the information the union is required to supply. The changes make it desirable, in the interests of clarity, to restructure the provisions of the section and the section therefore does so.

142.     Subsection (2) contains an amendment that is consequential on section 226A(2F), which is inserted by subsection (4). The new subsection (2F) relates to the requirement to provide an employer concerned with a sample voting paper and makes no substantive legal change to the requirement.

143.     Subsection (3) replaces the current subsection (2)(c) of section 226A. New subsection (2)(c)(i) has the effect that the information unions are required to include in the notice must contain the lists and figures mentioned, respectively, in new subsections (2A) and (2B) inserted into section 226A by subsection (4), and an explanation of how the figures were arrived at. New subsection (2)(c)(ii) provides that where some or all of the affected employees are employees from whose wages the employer makes deductions representing payments to the union, then the notices must contain either the lists, figures and explanation mentioned in subsection (2)(c)(i) or the information mentioned in new subsection (2C). The intention is to reduce the uncertainty currently present in section 226A by making the information that the union must supply specific and removing the need for the union to determine what information has to be given by reference to what would help the employer to make plans and bring information to the attention of those to be balloted. The provisions also allow unions to meet their obligations under section 226A by referring in the notice to union members who pay their union subscription through deductions from pay (a practice known as "check-off").

144.     Subsection (4) adds new subsections (2A) to (2I) to section 226A. New subsections (2A) and (2B), taken with the new subsection (2)(c), change the information required to be given by the current subsections (2)(c) and (3A) of section 226A.

145.     The effect of new subsection (2A) is that the notice must contain a list of the categories to which the "employees concerned" (that is to say, the employees of the employer who the union reasonably believes will be entitled to vote in the ballot) belong and a list of the workplaces at which they work.

146.     The effect of new subsection (2B) is that the notice must contain figures showing the total number of the employees concerned, the number of them in each category in the list of categories given in accordance with the new section (2A), and the number of them that work at each workplace in the list of workplaces given in accordance with the new subsection (2A).

147.     New subsection (2C) contains the requirements that must be met if the notice, as permitted by subsection (2)(c)(ii), provides information in relation to employees from whose wages the employer makes deductions representing payments to the union. The effect is that the information so provided must enable the employer readily to deduce the total number of the employees concerned, the categories of employee to which the employees concerned belong and the number of them in each of those categories, and the workplaces at which the employees concerned work and the number of them who work at each of these workplaces.

148.     New subsection (2D) contains a new requirement that the lists and figures the union supplies are to be as accurate as reasonably practicable in the light of the information in the possession of the union.

149.     New subsection (2E) has the effect that for this purpose information is regarded as being in the possession of the union only if it is held, for union purposes, in a document (including an electronic document) and is in the possession or under the control of a union officer or an employee of the union. The effect is that information held only by branch officials or other lay representatives of the union is not in the union's possession for the purpose of subsection (2D).

150.     New subsection (2G) repeats the substance of the current subsection (3A)(b) of section 226A by ensuring that the section does not require the notice to name the employees concerned.

151.     New subsection (2H) defines the term "employees concerned" to mean those employees who the union reasonably believes will be entitled to vote in the ballot.

152.     New subsection (2I) defines the term "workplace" in relation to an employee, so making section 226A more precise.

153.     Subsection (5) omits the current subsections of section 226A that are superseded by the section, while subsection (6) makes a change to a reference in section 226A(5) that is consequential on the insertion of new subsections (2A) to (2I).

Entitlement to vote in ballot on industrial action

154.     Section 23 amends section 227(1) of the 1992 Act. The amendment clarifies that the members to whom the union must accord an entitlement to vote in an industrial action ballot are all those it is reasonable for the union to believe will be induced by it to take part in the action. This resolves the issue that arose in the Midland Mainline case (see above at paragraph 137) by putting it beyond doubt that the union does not have to give such an entitlement to members who might take part even though not induced to do so by the union.

Inducement of members not accorded entitlement to vote

155.     Section 24 amends section 232B of the 1992 Act and inserts a new provision into section 62 of that Act.

156.     The organisation of an industrial action ballot can be complicated and can sometimes involve many thousands of people. Under the 1992 Act as it stood before the changes made by the 1999 Act, the whole ballot could be invalidated if a union committed minor errors in determining who was eligible to vote, or failed to send ballot papers to all those required to be given an entitlement to vote.

157.     The 1999 Act inserted section 232B, which provides that such errors are to be disregarded as long as they are accidental and on a scale unlikely to affect the outcome of the ballot. The 1999 Act also inserted section 232A, which defines the circumstances in which a union that induces members to take industrial action who should have been given an entitlement to vote but were not, loses its protection against legal liability. The dispensation for accidental failures in section 232B does not presently refer expressly to the purpose of section 232A but in P (a minor) v National Association of Schoolmasters/Union of Women Teachers [2003] 2 AC 663, the House of Lords nevertheless held on the facts of the case that it did apply indirectly.

158.     Section 24(1)(a) amends section 232B to ensure, in the interests of clarity, that where a union's failure to comply with the requirements of the 1992 Act is currently covered by the dispensation for accidental failures, and that failure would otherwise result in a failure to comply with section 232A, the latter failure is also to be disregarded. The main effect is that where a union accidentally fails to ballot an insignificant number of those it intends to induce to take part in industrial action, the union will not lose its protections against legal action because it induces them to take part in the action. The amendment confirms the judgment of the House of Lords in P v NASUWT (see above at paragraph 157) by making the position clear on the face of the legislation.

159.     Section 24(1)(b) corrects a drafting error in section 232B. Section 230(2B) has the effect that where merchant seamen are entitled to vote in an industrial action ballot and are on a ship or outside Great Britain, special arrangements for enabling them to vote apply. Section 232B should have referred to section 230(2B) but refers instead to section 230(2A). The error was identified in P v NASUWT.

160.     Section 24(2) inserts a new paragraph into section 62(2) of the 1992 Act. Section 62 of the 1992 Act gives union members a right to take legal action against their union if they are likely to be or have been induced to take part in industrial action and certain of the balloting requirements contained in sections 226 to 234 of the 1992 Act have been contravened. The effect of the new subsection is to include section 232A in the list of requirements contravention of which gives union members the right to take such legal action.

Information about employees to be contained in notice of industrial action

161.     Section 25 amends section 234A of the 1992 Act, which specifies the information required to be contained in an "industrial action notice".

162.     Section 234A currently requires a union to provide each employer the union reasonably believes to employ members who will be induced to take part in the proposed industrial action with a notice. The notice must state whether the action is intended to be continuous or discontinuous and give, in the first case, the date on which it is intended to start and, in the second, the dates on which it is intended to take place.

163.     As the section is at present, the notice is also required to contain information in the union's possession that would help the employer to make plans and bring information to the attention of the employees the union intends to induce and has to include information, if the union has it, as to the number of employees involved, their category of work and workplace. The notice must be received by the employer at least 7 days before the first date on which the industrial action is intended to take place.

164.     Section 25 simplifies the requirements of section 234A by making changes to the information the union is required to supply. The changes, which are similar to those made by section 22 in relation to the requirement to give employers a ballot notice, make it desirable, in the interests of clarity, to restructure the provisions of the section and the section therefore does so.

165.     Subsection (2) replaces the current subsection (3)(a) of section 234A. New subsection (3)(a)(i) has the effect that the information unions are required to include in the notice must contain the lists and figures mentioned respectively in new subsections (3A) and (3B) inserted into section 234A by subsection (3). It also provides that the notice must contain an explanation of how the figures are arrived at. New subsection (3)(a)(ii) provides that where some or all of the affected employees are employees from whose wages the employer makes deductions representing payments to the union, then the notices must contain either the lists, figures and explanation mentioned in subsection (3)(a)(i) or the information mentioned in new subsection (3C). The intention is to reduce the uncertainty currently present in section 234A by making the information that the union must supply specific and removing the need for the union to determine what information has to be given by reference to what would help the employer to make plans and bring information to the attention of those the union intends to induce to take part in the industrial action. The provisions also allow for unions to meet their obligations under section 234A by referring in the notice to union members through deductions from pay (a practice known as "check-off").

166.     Subsection (3) adds new subsections (3A) to (3F) to section 234A. New subsections (3A) and (3B), taken with the new subsection (2)(a), change the information required to be given by the current subsections (3)(a) and (5A) of section 234A. The effect of new subsection (3A) is that the notice must contain a list of the categories to which the "affected employees" (that is to say, the employees of the employer who the union reasonably believes will be induced to take part in the industrial action) belong and a list of the workplaces at which they work. The effect of new subsection (3B) is that the notice must contain figures showing the total number of the affected employees, the number of them in each category in the list of categories given in accordance with the new subsection (3A), and the number of them that work at each workplace in the list of workplaces given in accordance with that subsection.

167.     New subsection (3C) contains the requirements that must be met if the notice, as permitted by subsection (3)(c)(ii), refers to affected employees that are employees from whose wages the employer makes deductions representing payments to the union, as permitted in subsection (3)(a)(ii). The effect is that the information provided in this way must enable the employer readily to deduce the total number of the affected employees, the categories of employee to which the affected employees belong and the number of the affected employees in each of those categories, and the workplaces at which the affected employees work and the number of them who work at each of these workplaces.

168.     New subsection (3D) contains a new requirement that the lists and figures the union supplies are to be as accurate as reasonably practicable in the light of the information in the possession of the union.

169.     New subsection (3E) has the effect that for this purpose information is regarded as being in the possession of the union only if it is held, for union purposes, in a document (including an electronic document) and is in the possession or under the control of a union officer or an employee of the union. The effect is that information held only by branch officials or other lay representatives of the union is not in the union's possession for the purpose of subsection (3C).

170.     New subsection (3F) repeats the substance of the current subsection (5A)(b) of section 234A and ensures that the section does not require the notice to name the affected employees.

171.     Subsection (4) amends subsection (5) of section 234A. This subsection defines which employees are covered in principle by the notice and sets out the circumstances in which their inducement by the union to take part in industrial action is covered by the notice. At present the employees covered are the "affected employees" but this term relies on the reasonable belief of the union as to those who will be induced and its use in subsection (5) therefore leads to an imprecise result. Subsection (4) has the effect that the employees covered will be those falling within a category and employed at a workplace specified in the notice. This test is clear and objective.

172.     Subsection (5) substitutes for the present subsection (5A) of section 234A new subsections (5B), (5C) and (5D).

173.     New subsection (5B) defines a "notified category of employee" and a "notified workplace" for the purpose of the notice. A notified category of employee means a category of employee that is listed in the notice or, where the notice contains the information mentioned in subsection (3C), a category of employee that the employer can readily deduce from the notice is a category of employee to which some or all of the affected employees belong, at the time the employer receives the notice. A notified workplace means a workplace that is listed in the notice or, where the notice contains the information mentioned in subsection (3C), a workplace that the employer can readily deduce from the notice is the workplace at which some or all of the affected employees work, at the time the employer receives the notice.

174.     New subsection (5C) defines the term "affected employees" to mean those employees who the union reasonably believes will be induced to take part in the industrial action.

175.     New subsection (5D) defines the term "workplace" in relation to an employee, so making section 234A more precise.

176.     Subsection (6) contains a consequential amendment to a reference in section 234A(8).