Office of Public Sector Information
PART 1 continued
(1) Paragraph 166 of Schedule A1 to the 1992 Act (power of Secretary of State to amend that Schedule) is amended as follows.
(2) For sub-paragraphs (1) and (2) substitute—
“(1) This paragraph applies if the CAC represents to the Secretary of State that a provision of this Schedule has an unsatisfactory effect and should be amended.
(2) The Secretary of State, with a view to rectifying the effect—
(a) may amend the provision by exercising (if applicable) any of the powers conferred on him by paragraphs 7(6), 29(5), 121(6), 166A, 166B, 169A, 169B and 171A, or
(b) may amend the provision by order in such other way as he thinks fit.
(2A) The Secretary of State need not proceed in a way proposed by the CAC (if it proposes one).
(2B) Nothing in this paragraph prevents the Secretary of State from exercising any of the powers mentioned in sub-paragraph (2)(a) in the absence of a representation from the CAC.”
(3) In sub-paragraph (3), for “this paragraph” substitute “sub-paragraph (2)(b)”.
After paragraph 166 of Schedule A1 to the 1992 Act insert—
“166A (1) This paragraph applies in relation to any provision of paragraph 19D(2), 26(4) or 118(4) which requires the employer to give to the CAC a worker’s home address.
(2) The Secretary of State may by order provide that the employer must give to the CAC (in addition to the worker’s home address) an address of a specified kind for the worker.
(3) In this paragraph “address” includes any address or number to which information may be sent by any means.
(4) An order under this paragraph may—
(a) amend this Schedule;
(b) include supplementary or incidental provision (including, in particular, provision amending paragraph 19E(1)(a), 26(6)(a) or 118(6)(a));
(c) make different provision for different cases or circumstances.
(5) An order under this paragraph shall be made by statutory instrument.
(6) 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.”
After paragraph 166A of Schedule A1 to the 1992 Act (which is inserted by section 16) insert—
“166B (1) The Secretary of State may by order provide that, during any period beginning and ending with the occurrence of specified events, employers and unions to which the order applies are prohibited from using such practices as are specified as unfair practices in relation to an application under this Schedule of a specified description.
(2) An order under this paragraph may make provision about the consequences of a contravention of any prohibition imposed by the order (including provision modifying the effect of any provision of this Schedule in the event of such a contravention).
(3) An order under this paragraph may confer functions on the CAC.
(4) An order under this paragraph may contain provision extending for the purposes of the order either or both of the following powers to issue Codes of Practice—
(a) the power of ACAS under section 199(1);
(b) the power of the Secretary of State under section 203(1)(a).
(5) An order under this paragraph may—
(a) include supplementary or incidental provisions (including provision amending this Schedule), and
(b) make different provision for different cases or circumstances.
(6) An order under this paragraph shall be made by statutory instrument.
(7) No such order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.
(8) In this paragraph “specified” means specified in an order under this paragraph.”
After paragraph 169 of Schedule A1 to the 1992 Act insert—
169A (1) The Secretary of State may by order make provision for any case where—
(a) an application has been made, a declaration has been issued, or any other thing has been done under or for the purposes of this Schedule by, to or in relation to a union, or
(b) anything has been done in consequence of anything so done,
and the union amalgamates or transfers all or any of its engagements.
(2) An order under this paragraph may, in particular, make provision for cases where an amalgamated union, or union to which engagements are transferred, does not have a certificate of independence.
169B (1) The Secretary of State may by order make provision for any case where—
(a) an application has been made, a declaration has been issued, or any other thing has been done under or for the purposes of this Schedule in relation to a group of workers, or
(b) anything has been done in consequence of anything so done,
and the person who was the employer of the workers constituting that group at the time the thing was done is no longer the employer of all of the workers constituting that group (whether as a result of a transfer of the whole or part of an undertaking or business or otherwise).
(2) In this paragraph “group” includes two or more groups taken together.
169C (1) An order under paragraph 169A or 169B may—
(a) amend this Schedule;
(b) include supplementary, incidental, saving or transitional provisions;
(c) make different provision for different cases or circumstances.
(2) An order under paragraph 169A or 169B shall be made by statutory instrument.
(3) 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.”
After paragraph 170 of Schedule A1 to the 1992 Act insert—
170A (1) The CAC may, if it considers it necessary to do so to enable or assist it to exercise any of its functions under this Schedule, exercise any or all of the powers conferred in sub-paragraphs (2) to (4).
(2) The CAC may require an employer to supply the CAC case manager, within such period as the CAC may specify, with specified information concerning either or both of the following—
(a) the workers in a specified bargaining unit who work for the employer;
(b) the likelihood of a majority of those workers being in favour of the conduct by a specified union (or specified unions) of collective bargaining on their behalf.
(3) The CAC may require a union to supply the CAC case manager, within such period as the CAC may specify, with specified information concerning either or both of the following—
(a) the workers in a specified bargaining unit who are members of the union;
(b) the likelihood of a majority of the workers in a specified bargaining unit being in favour of the conduct by the union (or by it and other specified unions) of collective bargaining on their behalf.
(4) The CAC may require an applicant worker to supply the CAC case manager, within such period as the CAC may specify, with specified information concerning the likelihood of a majority of the workers in his bargaining unit being in favour of having bargaining arrangements ended.
(5) The recipient of a requirement under this paragraph must, within the specified period, supply the CAC case manager with such of the specified information as is in the recipient’s possession.
(6) From the information supplied to him under this paragraph, the CAC case manager must prepare a report and submit it to the CAC.
(7) If an employer, a union or a worker fails to comply with sub-paragraph (5), the report under sub-paragraph (6) must mention that failure; and the CAC may draw an inference against the party concerned.
(8) The CAC must give a copy of the report under sub-paragraph (6) to the employer, to the union (or unions) and, in the case of an application under paragraph 112 or 137, to the applicant worker (or applicant workers).
(9) In this paragraph—
“applicant worker” means a worker who—
falls within a bargaining unit (“his bargaining unit”) and
has made an application under paragraph 112 or 137 to have bargaining arrangements ended;
“the CAC case manager” means the member of the staff provided to the CAC by ACAS who is named in the requirement (but the CAC may, by notice given to the recipient of a requirement under this paragraph, change the member of that staff who is to be the CAC case manager for the purposes of that requirement);
“collective bargaining” is to be construed in accordance with paragraph 3; and
“specified” means specified in a requirement under this paragraph.”
After paragraph 171 of Schedule A1 to the 1992 Act insert—
171A (1) In this Schedule “pay” does not include terms relating to a person’s membership of or rights under, or his employer’s contributions to—
(a) an occupational pension scheme (as defined by section 1 of the Pension Schemes Act 1993), or
(b) a personal pension scheme (as so defined).
(2) The Secretary of State may by order amend sub-paragraph (1).
(3) The Secretary of State may by order—
(a) amend paragraph 3(3), 54(4) or 94(6)(b) by adding specified matters relating to pensions to the matters there specified to which negotiations may relate;
(b) amend paragraph 35(2)(b) or 44(2)(b) by adding specified matters relating to pensions to the core topics there specified.
(4) An order under this paragraph may—
(a) include supplementary, incidental, saving or transitional provisions including provision amending this Schedule, and
(b) make different provision for different cases.
(5) An order under this paragraph may make provision deeming—
(a) the matters to which any pre-commencement declaration of recognition relates, and
(b) the matters to which any pre-commencement method of collective bargaining relates,
to include matters to which a post-commencement declaration of recognition or method of collective bargaining could relate.
(6) In sub-paragraph (5)—
“pre-commencement declaration of recognition” means a declaration of recognition issued by the CAC before the coming into force of the order,
“pre-commencement method of collective bargaining” means a method of collective bargaining specified by the CAC before the coming into force of the order,
and references to a post-commencement declaration of recognition or method of collective bargaining shall be construed accordingly.
(7) An order under this paragraph shall be made by statutory instrument; and 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.”
After section 210 of the 1992 Act insert—
(1) This section applies where ACAS is exercising its functions under section 210 with a view to bringing about a settlement of a recognition dispute.
(2) The parties to the recognition dispute may jointly request ACAS or a person nominated by ACAS to do either or both of the following—
(a) hold a ballot of the workers involved in the dispute;
(b) ascertain the union membership of the workers involved in the dispute.
(3) In the following provisions of this section references to ACAS include references to a person nominated by ACAS; and anything done by such a person under this section shall be regarded as done in the exercise of the functions of ACAS mentioned in subsection (1).
(4) At any time after ACAS has received a request under subsection (2), it may require any party to the recognition dispute—
(a) to supply ACAS with specified information concerning the workers involved in the dispute, and
(b) to do so within such period as it may specify.
(5) ACAS may impose a requirement under subsection (4) only if it considers that it is necessary to do so—
(a) for the exercise of the functions mentioned in subsection (1); and
(b) in order to enable or assist it to comply with the request.
(6) The recipient of a requirement under this section must, within the specified period, supply ACAS with such of the specified information as is in the recipient’s possession.
(7) A request under subsection (2) may be withdrawn by any party to the recognition dispute at any time and, if it is withdrawn, ACAS shall take no further steps to hold the ballot or to ascertain the union membership of the workers involved in the dispute.
(8) If a party to a recognition dispute fails to comply with subsection (6), ACAS shall take no further steps to hold the ballot or to ascertain the union membership of the workers involved in the dispute.
(9) Nothing in this section requires ACAS to comply with a request under subsection (2).
(10) In this section—
“party”, in relation to a recognition dispute, means each of the employers, employers' associations and trade unions involved in the dispute;
“a recognition dispute” means a trade dispute between employers and workers which is connected wholly or partly with the recognition by employers or employers' associations of the right of a trade union to represent workers in negotiations, consultations or other procedures relating to any of the matters mentioned in paragraphs (a) to (f) of section 218(1);
“specified” means specified in a requirement under this section; and
“workers” has the meaning given in section 218(5).”
Employment Relations Act 2004