Statutory Instrument 1999 No. 2790 (N.I. 9)

      The Employment Relations (Northern Ireland) Order 1999


      © Crown Copyright 1999

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STATUTORY INSTRUMENTS


1999 No. 2790 (N.I. 9)

NORTHERN IRELAND

The Employment Relations (Northern Ireland) Order 1999

  Made 12th October 1999 
  Laid before Parliament 26th October 1999 
  Coming into operation on days to be appointed under Article 1(2)


ARRANGEMENT OF ORDER

Introduction
1. Title and commencement.
2. Interpretation.
Trade Unions
3. Collective bargaining: recognition.
4. Detriment related to trade union membership.
5. Blacklists.
6. Ballots and notices.
7. Training.
8. Unfair dismissal connected with recognition: interim relief.
Leave for family reasons, etc.
9. Maternity and parental leave.
10. Time-off for dependants.
11. Consequential amendments.
Disciplinary and grievance hearings
12. Right to be accompanied.
13. Complaint to industrial tribunal.
14. Detriment and dismissal.
15. Interpretation.
16. Contracting out and conciliation.
17. National security employees.
Other rights of individuals
18. Unfair dismissal of striking workers.
19. Collective agreements: detriment and dismissal.
20. Agreement to exclude dismissal rights.
21. Part-time work: discrimination.
22. Part-time work: code of practice.
23. Code of practice: supplemental.
24. Power to confer rights on individuals.
The Industrial Court, the Agency, Commissioners and Certification Officer
25. The Industrial Court.
26. The Agency: general duty.
27. Abolition of Commissioners.
28. The Certification Officer for Northern Ireland.
Miscellaneous
29. Partnerships at work.
30. Employment agencies.
31. Employment rights: employment outside Northern Ireland.
32. Unfair dismissal: special and additional awards.
33. Indexation of amounts, etc.
34. Guarantee payments.
35. Articles 32 to 34: consequential.
36. Compensatory awards, etc.: removal of limits in certain cases.
37. Transfer of undertakings.
38. National security.
General
39. Orders and regulations.
40. Repeals.

SCHEDULES:

  Schedule 1 -  Collective bargaining: recognition.

  Schedule 2 -  Union membership: detriment.

  Schedule 3 -  Ballots and notices.

  Schedule 4 -  Leave for family reasons, etc.
 Part I -  Maternity leave and parental leave.
 Part II -  Time off for dependants.
 Part III -  Consequential amendments.

  Schedule 5 -  Unfair dismissal of striking workers.

  Schedule 6 -  The Certification Officer.

  Schedule 7 -  Employment agencies.

  Schedule 8 -  National security.

  Schedule 9 -  Repeals.

At the Court at Buckingham Palace, the 12th day of October 1999

Present,

The Queen's Most Excellent Majesty in Council

Whereas this Order is made only for purposes corresponding to those of the Employment Rights Act 1999 (other than sections 22, 27, 39 and 40):

     Now, therefore, Her Majesty, in exercise of the powers conferred by paragraph 1 of Schedule 1 to the Northern Ireland Act 1974 (as modified by section 46(2) of the said Act of 1999) and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows: - 

Introduction

Title and commencement
    
1.  - (1) This Order may be cited as the Employment Relations (Northern Ireland) Order 1999.

    (2) This Order shall come into operation on such day or days as the Department may by order appoint.

Interpretation
    
2.  - (1) The Interpretation Act (Northern Ireland) 1954 shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.

    (2) In this Order - 

    "the Department" means the Department of Economic Development;

    "the Employment Rights Order" means the Employment Rights (Northern Ireland) Order 1996;

    "the Trade Union and Labour Relations Order" means the Trade Union and Labour Relations (Northern Ireland) Order 1995.

Trade Unions

Collective bargaining: recognition
    
3.  - (1) The Trade Union and Labour Relations Order shall be amended as follows.

    (2) After Part IV there shall be inserted - 



    (3) Immediately before Schedule 2 there shall be inserted the Schedule set out in Schedule 1 to this Order.

Detriment related to trade union membership
    
4. Schedule 2 shall have effect.

Blacklists
    
5.  - (1) The Department may make regulations prohibiting the compilation of lists which - 

    (2) The Department may make regulations prohibiting - 

    (3) Regulations under this Article may, in particular - 

    (4) Regulations under this Article creating an offence may not provide for it to be punishable - 

    (5) In this Article - 

    (6) Subject to paragraph (5), expressions used in this Article and in the Trade Union and Labour Relations Order have the same meaning in this Article as in that Order.

Ballots and notices
    
6. Schedule 3 shall have effect.

Training
    
7.  - (1) In Part IVA of the Trade Union and Labour Relations Order (collective bargaining: recognition) as inserted by Article 3, there shall be inserted after Article 44A - 

    (2) In Article 149(2) of the Trade Union and Labour Relations Order after "1(2)," there shall be inserted "44B(9),".

Unfair dismissal connected with recognition: interim relief
    
8. In Articles 163(1)(b) and 164(1) of the Employment Rights Order (interim relief) after "136(1)" there shall be inserted "or in paragraph 161(2) of Schedule 1A to the Trade Union and Labour Relations Order".

Leave for family reasons, etc.

Maternity and parental leave
    
9. The provisions set out in Part I of Schedule 4 shall be substituted for Part IX of the Employment Rights Order.

Time-off for dependants
    
10. The provisions set out in Part II of Schedule 4 shall be inserted after Article 85 of the Employment Rights Order.

Consequential amendments
    
11. Part III of Schedule 4 (which makes amendments consequential on Articles 9 and 10) shall have effect.

Disciplinary and grievance hearings

Right to be accompanied
    
12.  - (1) This Article applies where a worker - 

    (a) is required or invited by his employer to attend a disciplinary or grievance hearing, and

    (b) reasonably requests to be accompanied at the hearing.

    (2) Where this Article applies the employer must permit the worker to be accompanied at the hearing by a single companion who - 

    (a) is chosen by the worker and is within paragraph (3),

    (b) is to be permitted to address the hearing (but not to answer questions on behalf of the worker), and

    (c) is to be permitted to confer with the worker during the hearing.

    (3) A person is within this paragraph if he is - 

    (a) employed by a trade union of which he is an official within the meaning of the Trade Union and Labour Relations Order,

    (b) an official of a trade union (within that meaning) whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker's companion at disciplinary or grievance hearings, or

    (c) another of the employer's workers.

    (4) If - 

    (a) a worker has a right under this Article to be accompanied at a hearing,

    (b) his chosen companion will not be available at the time proposed for the hearing by the employer, and

    (c) the worker proposes an alternative time which satisfies paragraph (5),

the employer must postpone the hearing to the time proposed by the worker.

    (5) An alternative time must - 

    (a) be reasonable, and

    (b) fall before the end of the period of five working days beginning with the first working day after the day proposed by the employer.

    (6) An employer shall permit a worker to take time off during working hours for the purpose of accompanying another of the employer's workers in accordance with a request under paragraph (1)(b).

    (7) Articles 92(3) and (4), 93, 95 and 247(1) of the Employment Rights Order (time off for carrying out trade union duties) shall apply in relation to paragraph (6) as they apply in relation to Article 92(1) of that Order.

Complaint to industrial tribunal
    
13.  - (1) A worker may present a complaint to an industrial tribunal that his employer has failed, or threatened to fail, to comply with Article 12(2) or (4).

    (2) A tribunal shall not consider a complaint under this Article in relation to a failure or threat unless the complaint is presented - 

    (3) Where a tribunal finds that a complaint under this Article is well-founded it shall order the employer to pay compensation to the worker of an amount not exceeding two weeks' pay.

    (4) Chapter IV of Part I of the Employment Rights Order (calculation of a week's pay) shall apply for the purposes of paragraph (3); and in applying that Chapter the calculation date shall be taken to be - 

    (5) The limit in Article 23(1) of the Employment Rights Order (maximum amount of week's pay) shall apply for the purposes of paragraph (3).

    (6) No award shall be made under paragraph (3) in respect of a claim which is made in the course of a claim for unfair dismissal if the tribunal makes a supplementary award under Article 162A(2) of the Employment Rights Order (internal appeal procedures).

Detriment and dismissal
    
14.  - (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that he - 

    (2) Article 71 of the Employment Rights Order shall apply in relation to contraventions of paragraph (1) as it applies in relation to contraventions of certain Articles of that Order.

    (3) A worker who is dismissed shall be regarded for the purposes of Part XI of the Employment Rights Order as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that he - 

    (4) Articles 140 and 141 of that Order (qualifying period of employment and upper age limit) shall not apply in relation to paragraph (3).

    (5) Articles 163 to 167 of that Order (interim relief) shall apply in relation to dismissal for the reason specified in paragraph (3)(a) or (b) as they apply in relation to dismissal for a reason specified in Article 163(1)(b) of that Order.

    (6) In the application of Chapter II of Part XI of that Order in relation to paragraph (3), a reference to an employee shall be taken as a reference to a worker.

Interpretation
    
15.  - (1) In Articles 12 to 14 and this Article "worker" means an individual who is - 

    (2) In paragraph (1) "agency worker" means an individual who - 

and, for the purposes of Articles 12 to 14, both the agent and the principal are employers of an agency worker.

    (3) In paragraph (1) "home worker" means an individual who - 

and, for the purposes of Articles 12 to 14, the person mentioned in sub-paragraph (a) is the home worker's employer.

    (4) For the purposes of Article 12 a disciplinary hearing is a hearing which could result in - 

    (5) For the purposes of Article 12 a grievance hearing is a hearing which concerns the performance of a duty by an employer in relation to a worker.

    (6) For the purposes of Article 12(5)(b) a working day is a day other than - 

Contracting out and conciliation
    
16. Articles 12 to 15 shall be treated as provisions of Chapter I of Part VI of the Employment Rights Order for the purposes of - 

National security employees
    
17. Articles 12 to 15 shall not apply in relation to a person employed for the purposes of - 

Unfair dismissal of striking workers
    
18. Schedule 5 shall have effect.

Collective agreements: detriment and dismissal
    
19.  - (1) The Department may make regulations about cases where a worker - 

on the grounds that he refuses to enter into a contract which includes terms which differ from the terms of a collective agreement which applies to him.

    (2) The regulations may make provision which applies only in specified classes of case.

    (3) In this Article - 

    (4) The payment of higher wages or higher rates of pay or overtime or the payment of any signing on or other bonuses or the provision of other benefits having a monetary value to other workers employed by the same employer shall not constitute a detriment to any worker not receiving the same or similar payments or benefits within the meaning of paragraph (1)(a) so long as - 

Agreement to exclude dismissal rights
    
20.  - (1) In Article 240 of the Employment Rights Order (fixed-term contracts) paragraph (1) (agreement to exclude unfair dismissal provisions) shall be omitted; and paragraphs (2) to (5) shall have effect in consequence.

    (2) In Articles 68(4), 69(2), 70(2), 70A(2) and 70B(2) of that Order - 

    (3) In Article 68A(4) of that Order the words from ", unless" to the end shall be omitted.

    (4) In Schedule 2 to the Shops (Sunday Trading &.) (Northern Ireland) Order 1997, paragraph 11(5) shall be omitted.

    (5) In - 

the words from "except" to the end shall be omitted.

    (6) Article 240(1) of the Employment Rights Order does not prevent Part XI of that Order from applying to a dismissal which is regarded as unfair by virtue of Article 131 or 135 of that Order (pregnancy and childbirth, and assertion of statutory right).

Part-time work: discrimination
    
21.  - (1) The Department shall make regulations for the purpose of securing that persons in part-time employment are treated, for such purposes and to such extent as the regulations may specify, no less favourably than persons in full-time employment.

    (2) The regulations may - 

    (3) The regulations may - 

    (4) Without prejudice to the generality of this Article the regulations may make any provision which appears to the Department to be necessary or expedient - 

    (5) Regulations under this Article which create an offence - 

Part-time work: code of practice
    
22.  - (1) The Department may issue codes of practice containing guidance for the purpose of - 

    (2) The Department may revise a code and issue the whole or part of the revised code.

    (3) A person's failure to observe a provision of a code does not make him liable to any proceedings.

    (4) A code - 

Code of practice: supplemental
    
23.  - (1) Before issuing or revising a code of practice under Article 22 the Department shall consult such persons as it considers appropriate.

    (2) Before issuing a code the Department shall - 

    (3) If, having followed the procedure under paragraph (2), the Department decides to issue a code, the Department shall lay a draft code before the Assembly.

    (4) If the draft code is approved by resolution of the Assembly, the Department shall issue the code in the form of the draft.

    (5) In this Article and Article 22(3) and (4) - 

Power to confer rights on individuals
    
24.  - (1) This Article applies to any right conferred on an individual against an employer (however defined) under any of the following - 

    (2) The Department may by order make provision which has the effect of conferring any such right on individuals who are of a specified description.

    (3) The reference in paragraph (2) to individuals includes a reference to individuals expressly excluded from exercising the right.

    (4) An order under this Article may - 

    (5) An order under this Article may make provision in such way as the Department thinks fit, whether by amending statutory provisions or otherwise.

    (6) Article 250(4) of the Employment Rights Order (which is superseded by this Article) shall be omitted.

    (7) Any order made or having effect as if made under Article 250(4), so far as effective immediately before the coming into operation of this Article, shall have effect as if made under this Article.

The Industrial Court, the Agency, Commissioners and Certification Officer

The Industrial Court
    
25. For Articles 91 and 92 of the Industrial Relations (Northern Ireland) Order 1992 there shall be substituted - 

The Agency: general duty
    
26. In Article 83(1) of the Industrial Relations (Northern Ireland) Order 1992 (general duty of the Agency) the words from ", in particular" to the end shall be omitted.

Abolition of Commissioners
    
27.  - (1) These offices shall cease to exist - 

    (2) In the Trade Union and Labour Relations Order these provisions shall cease to have effect - 

    (3) In Article 11A of the Industrial Relations (Northern Ireland) Order 1992 (statement to members of union following annual return) in the third paragraph of paragraph (6)(a) (application for assistance from the Northern Ireland Commissioner for the Rights of Trade Union Members) for the words from "may" to "case," there shall be substituted "should".

The Certification Officer for Northern Ireland
    
28. Schedule 6 shall have effect.

Miscellaneous

Partnerships at work
    
29.  - (1) The Department may spend money or provide money to other persons for the purpose of encouraging and helping employers (or their representatives) and employees (or their representatives) to improve the way they work together.

    (2) Money may be provided in such way as the Department thinks fit (whether as grants or otherwise) and on such terms as it thinks fit (whether as to repayment or otherwise).

Employment agencies
    
30. Schedule 7 shall have effect.

Employment rights: employment outside Northern Ireland
    
31.  - (1) For Article 239 of the Employment Rights Order substitute - 

    (2) In Article 242 of that Order (mariners) after paragraph (6) insert - 

Unfair dismissal: special and additional awards
    
32.  - (1) Articles 151(4)(b), 152(2) and (3) and 159 of the Employment Rights Order (which require, or relate to, the making of special awards by industrial tribunals in unfair dismissal cases) shall cease to have effect.

    (2) In Article 151(3)(b) of the Employment Rights Order (amount of additional award) for "the appropriate amount" there shall be substituted "an amount not less than twenty-six nor more than fifty-two weeks' pay"; and paragraphs (5) and (6) of Article 151 shall cease to have effect.

    (3) In Article 15 of the Employment Rights (Dispute Resolution) (Northern Ireland) Order 1998 paragraph (1) shall cease to have effect.

Indexation of amounts, etc.
    
33.  - (1) This Article applies to the sums specified in the following provisions - 

    (2) If the retail prices index for September of a year is higher or lower than the index for the previous September, the Department shall as soon as practicable make an order in relation to each sum mentioned in paragraph (1) - 

by the same percentage as the amount of the increase or decrease of the index.

    (3) In making the calculation required by paragraph (2) the Department shall - 

    (4) For the sum specified in Article 158(1) of the Employment Rights Order (unfair dismissal: limit of compensatory award) there shall be substituted the sum of £50,000 (subject to paragraph (2) above).

    (5) In this Article "the retail prices index" means - 

    (6) An order under this Article shall be laid before the Assembly after being made.

Guarantee payments
    
34. For Article 63(7) of the Employment Rights Order (guarantee payments: limits) there shall be substituted - 

Articles 32 to 34: consequential
    
35.  - (1) Articles 23(2) to (4), 154(2), 158(2) and 231(2) of the Employment Rights Order (which confer power to increase sums) shall cease to have effect.

    (2) An increase effected, before Article 33 comes into operation, by virtue of a provision repealed by this Article shall continue to have effect notwithstanding this Article (but subject to Article 33(2) and (4)).

Compensatory awards, etc.: removal of limits in certain cases
    
36.  - (1) After Article 158(1) of the Employment Rights Order (limit of compensatory award etc.) there shall be inserted - 

    (2) Article 162B of that Order (power to specify method of calculation of compensation where dismissal a result of protected disclosure) shall cease to have effect.

Transfer of undertakings
    
37.  - (1) This Article applies where regulations under section 2(2) of the European Communities Act 1972 (general implementation of Treaties) make provision for the purpose of implementing, or for a purpose concerning, a Community obligation of the United Kingdom which relates to the treatment of employees on the transfer of an undertaking or business or part of an undertaking or business.

    (2) The Department may by regulations make the same or similar provision in relation to the treatment of employees in circumstances other than those to which the Community obligation applies (including circumstances in which there is no transfer, or no transfer to which the Community obligation applies).

    (3) Regulations under this Article shall be subject to negative resolution.

National security
    
38. Schedule 8 shall have effect.

General

Orders and regulations
    
39.  - (1) An order or regulations to which this paragraph applies shall - 

    (a) be laid before the Assembly as soon as may be after it is made;

    (b) come into operation on such date as may be specified therein; and

    (c) cease to have effect on the expiration of a period of six months from the date on which it came into operation unless, before the expiration of that period, it is approved by a resolution of the Assembly.

    (2) Paragraph (1) applies to - 

    (a) regulations under Article 5, 19 or 21;

    (b) an order under Article 24.

    (3) Regulations and orders under this Order may contain incidental, supplementary, transitional or saving provisions.

Repeals
    
40. The statutory provisions mentioned in Schedule 9 are repealed (or revoked) to the extent specified in column 3 of that Schedule.


A.K. Galloway
Clerk of the Privy Council


SCHEDULES


SCHEDULE 1
Article 3.


COLLECTIVE BARGAINING: RECOGNITION


The Schedule to be inserted immediately before Schedule 2 to the Trade Union and Labour Relations Order is as follows - 





SCHEDULE 2
Article 4.


UNION MEMBERSHIP: DETRIMENT


Introduction

     1. The Employment Rights Order shall be amended as provided in this Schedule.

Detriment

     2.  - (1) Article 73 (action short of dismissal on grounds related to union membership or activities) shall be amended as follows.

    (2) In paragraph (1) for "have action short of dismissal taken against him as an individual by his employer" substitute "be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place".

    (3) In paragraph (3) for "have action short of dismissal taken against him" substitute "be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place".

    (4) In paragraph (4) for "action short of dismissal taken against him" substitute "a detriment to which he has been subjected as an individual by an act of his employer taking place".

    (5) After paragraph (5) insert - 

        " (6) For the purposes of this Article and Article 74, detriment is detriment short of dismissal.".

Complaints to industrial tribunal

     3.  - (1) Article 74 shall be amended as follows.

    (2) In paragraph (1) for "action has been taken against him" substitute "he has been subjected to a detriment".

    (3) In paragraph (2)(a) for the words from "action to which" to "those actions" substitute "act or failure to which the complaint relates or, where that act or failure is part of a series of similar acts or failures (or both) the last of them".

    (4) After paragraph (2) insert - 

        " (3) For the purposes of paragraph (2) - 

      (a) where an act extends over a period, the reference to the date of the act is a reference to the last day of that period;

      (b) a failure to act shall be treated as done when it was decided on.

        (4) For the purposes of paragraph (3), in the absence of evidence establishing the contrary an employer shall be taken to decide on a failure to act - 

      (a) when he does an act inconsistent with doing the failed act; or

      (b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.".

    Consideration of complaint

     4.  - (1) Article 75 shall be amended as follows.

    (2) In paragraph (1) for "action was taken against the complainant" substitute "he acted or failed to act".

    (3) In paragraph (2) for "action was taken by the employer or the purpose for which it was taken" substitute "the employer acted or failed to act, or the purpose for which he did so".

    (4) In paragraph (3) - 

    (a) for "action was taken by the employer against the complainant" substitute "the employer acted or failed to act";

    (b) for the words from "took the action" to "would take" substitute "acted or failed to act, unless it considers that no reasonable employer would act or fail to act in the way concerned".

    (5) For paragraph (4) substitute - 

        " (4) Where the tribunal determines that - 

      (a) the complainant has been subjected to a detriment by an act or deliberate failure to act by his employer; and

      (b) the act or failure took place in consequence of a previous act or deliberate failure to act by the employer,

    sub-paragraph (a) of paragraph (3) is satisfied if the purpose mentioned in that sub-paragraph was the purpose of the previous act or failure.".

Remedies

     5. In Article 76 for "action" there shall be substituted "act or failure" - 

    (a) in paragraphs (1), (2) and (3)(a) and (b); and

    (b) in paragraph (6), in the first place where "action" occurs.

    Awards against third parties

     6. In Article 77(1) - 

    (a) in sub-paragraph (a) for "action has been taken against the complainant by his employer" there shall be substituted "the complainant has been subjected to detriment by an act or failure by his employer taking place";

    (b) in sub-paragraph (b) for "take the action" there shall be substituted "act or fail to act in the way".



SCHEDULE 3
Article 6.


BALLOTS AND NOTICES


Introduction

     1. The Trade Union and Labour Relations Order shall be amended as provided by this Schedule.

Support of ballot

     2.  - (1) Article 104 (requirement of ballot before action by trade union) shall be amended as follows.

    (2) In paragraph (3) (industrial action to be regarded as having support of ballot only if certain conditions are fulfilled) in sub-paragraph (a)(ii) for "113" substitute "112", omit the word "and" at the end of sub-paragraph (b), and after sub-paragraph (b) insert - 

      " (bb) Article 115A does not prevent the industrial action from being regarded as having the support of the ballot; and".

    (3) In paragraph (4) for "109(1)" substitute "109(3)".

    (4) After paragraph (4) insert - 

        " (4A) If the requirements of Article 113fall to be satisfied in relation to an employer, as respects that employer industrial action shall not be regarded as having the support of a ballot unless those requirements are satisfied in relation to that employer.".

Documents for employers

     3.  - (1) Article 105 (notice of ballot and sample voting paper for employers) shall be amended as follows.

    (2) In paragraph (2)(c) (notice of ballot must describe employees entitled to vote) for "describing (so that he can readily ascertain them) the employees of the employer" substitute "containing such information in the union's possession as would help the employer to make plans and bring information to the attention of those of his employees".

    (3) After paragraph (3) insert - 

        " (3A) These rules apply for the purposes of sub-paragraph (c) of paragraph (2) - 

      (a) if the union possesses information as to the number, category or work-place of the employees concerned, a notice must contain that information (at least);

      (b) if a notice does not name any employees, that fact shall not be a ground for holding that it does not comply with sub-paragraph (c) of paragraph (2).

        (3B) In paragraph (3) references to employees are to employees of the employer concerned.".

Entitlement to vote

     4. In Article 108 (entitlement to vote in ballot) paragraph (2) (position where member is denied entitlement to vote) shall be omitted.

Separate workplace ballots

     5. The following shall be substituted for Article 109 (separate workplace ballots) - 

    " Separate workplace ballots
         109.  - (1) Subject to paragraph (2), this Article applies if the members entitled to vote in a ballot by virtue of Article 108 do not all have the same workplace.

        (2) This Article does not apply if the union reasonably believes that all those members have the same workplace.

        (3) Subject to Article 109A, a separate ballot shall be held for each workplace; and entitlement to vote in each ballot shall be accorded equally to, and restricted to, members of the union who - 

      (a) are entitled to vote by virtue of Article 108; and

      (b) have that workplace.

        (4) In this Article and Article 109A "workplace" in relation to a person who is employed means - 

      (a) if the person works at or from a single set of premises, those premises; and

      (b) in any other case, the premises with which the person's employment has the closest connection.

    Separate workplaces: single and aggregate ballots
         109A.  - (1) Where Article 109(3) would require separate ballots to be held for each workplace, a ballot may be held in place of some or all of the separate ballots if one of paragraphs (2) to (4) is satisfied in relation to it.

        (2) This paragraph is satisfied in relation to a ballot if the workplace of each member entitled to vote in the ballot is the workplace of at least one member of the union who is affected by the dispute.

        (3) This paragraph is satisfied in relation to a ballot if entitlement to vote is accorded to, and limited to, all the members of the union who - 

      (a) according to the union's reasonable belief have an occupation of a particular kind or have any of a number of particular kinds of occupation; and

      (b) are employed by a particular employer, or by any of a number of particular employers, with whom the union is in dispute.

        (4) This paragraph is satisfied in relation to a ballot if entitlement to vote is accorded to, and limited to, all the members of the union who are employed by a particular employer, or by any of a number of particular employers, with whom the union is in dispute.

        (5) For the purposes of paragraph (2) the following are members of the union affected by a dispute - 

      (a) if the dispute relates (wholly or partly) to a decision which the union reasonably believes the employer has made or will make concerning a matter specified in paragraph (1)(a), (b) or (c) of Article 127 (meaning of "trade dispute"), members whom the decision directly affects;

      (b) if the dispute relates (wholly or partly) to a matter specified in paragraph (1)(d) of that Article, members whom the matter directly affects;

      (c) if the dispute relates (wholly or partly) to a matter specified in paragraph (1)(e) of that Article, persons whose membership or non-membership is in dispute;

      (d) if the dispute relates (wholly or partly) to a matter specified in paragraph (1)(f) of that Article, officials of the union who have used or would use the facilities concerned in the dispute".

    Voting

     6.  - (1) Article 110 (voting) shall be amended as follows.

    (2) After paragraph (3) (voting paper must ask whether voter is prepared to take part in a strike or industrial action short of a strike) insert - 

        " (3A) For the purposes of paragraph (3) an overtime ban and a call-out ban constitute industrial action short of a strike.".

    (3) At the end of the statement in paragraph (5) (statement that industrial action may be a breach of employment contract to be set out on every voting paper) insert - 

      " However, if you are dismissed for taking part in strike or other industrial action which is called officially and is otherwise lawful, the dismissal will be unfair if it takes place fewer than eight weeks after you started taking part in the action, and depending on the circumstances may be unfair if it takes place later.".

    (4) In the definition of "strike" in Article 129 (interpretation) after "means" there shall be inserted "(except for the purposes of Article 110(3))".

Conduct of ballot: merchant seamen

     7. In Article 111 (conduct of ballot) for paragraphs (3) and (4) there shall be substituted - 

        " (3) Paragraph (4) applies to a merchant seaman if the trade union reasonably believes that - 

      (a) he will be employed in a ship either at sea or at a place outside Northern Ireland at some time in the period during which votes may be cast; and

      (b) it will be convenient for him to receive a voting paper and to vote while on the ship or while at a place where the ship is rather than in accordance with paragraph (2).

        (4) Where this paragraph applies to a merchant seaman he shall, if it is reasonably practicable - 

      (a) have a voting paper made available to him while on the ship or while at a place where the ship is; and

      (b) be given an opportunity to vote while on the ship or while at a place where the ship is.".

    Inducement

     8. After Article 115 insert - 

    " Inducement of member denied entitlement to vote
         115A. Industrial action shall not be regarded as having the support of a ballot if the following conditions apply in the case of any person - 

      (a) he was a member of the trade union at the time when the ballot was held;

      (b) it was reasonable at that time for the trade union to believe he would be induced to take part or, as the case may be, to continue to take part in the industrial action;

      (c) he was not accorded entitlement to vote in the ballot; and

      (d) he was induced by the trade union to take part or, as the case may be, to continue to take part in the industrial action.".

    Disregard of certain failures

     9. After Article 115A there shall be inserted - 

    " Small accidental failures to be disregarded
         115B.  - (1) If - 

      (a) in relation to a ballot there is a failure (or there are failures) to comply with a provision mentioned in paragraph (2) or with more than one of those provisions; and

      (b) the failure is accidental and on a scale which is unlikely to affect the result of the ballot or, as the case may be, the failures are accidental and taken together are on a scale which is unlikely to affect the result of the ballot,

    the failure (or failures) shall be disregarded.

        (2) The provisions are Article 108(1), Article 111(2) and Article 111(4).".

Period of ballot's effectiveness

     10. In Article 117 (period after which ballot ceases to be effective) for paragraph (1) there shall be substituted - 

        " (1) Subject to the following provisions, a ballot ceases to be effective for the purposes of Article 116(3)(b) in relation to industrial action by members of a trade union at the end of the period, beginning with the date of the ballot - 

      (a) of four weeks; or

      (b) of such longer duration not exceeding eight weeks as is agreed between the union and the members' employer.".

    Notice of industrial action

     11.  - (1) Article 118 (notice to employers of industrial action) shall be amended as follows.

    (2) In paragraph (3)(a) (notice relating to industrial action must describe employees intended to take part in industrial action) for "describes (so that he can readily ascertain them) the employees of the employer who" substitute "contains such information in the union's possession as would help the employer to make plans and bring information to the attention of those of his employees whom".

    (3) After paragraph (5) insert - 

        " (5A) These rules apply for the purposes of sub-paragraph (a) of paragraph (3) - 

      (a) if the union possesses information as to the number, category or work-place of the employees concerned, a notice must contain that information (at least);

      (b) if a notice does not name any employees, that fact shall not be a ground for holding that it does not comply with sub-paragraph (a) of paragraph (3).".

    (4) In paragraph (7) - 

    (a) insert at the beginning the words "Subject to paragraphs (7A) and (7B),"; and

    (b) in sub-paragraph (a) the words "otherwise than to enable the union to comply with a court order or an undertaking given to a court" shall cease to have effect.

    (5) After paragraph (7) insert - 

        " (7A) Paragraph (7) shall not apply where industrial action ceases to be authorised or endorsed in order to enable the union to comply with a court order or an undertaking given to a court.

        (7B) Paragraph (7) shall not apply where - 

      (a) a union agrees with an employer, before industrial action ceases to be authorised or endorsed, that it will cease to be authorised or endorsed with effect from a date specified in the agreement ("the suspension date") and that it may again be authorised or endorsed with effect from a date not earlier than a date specified in the agreement ("the resumption date");

      (b) the action ceases to be authorised or endorsed with effect from the suspension date; and

      (c) the action is again authorised or endorsed with effect from a date which is not earlier than the resumption date or such later date as may be agreed between the union and the employer.".

    (6) In paragraph (9) for "paragraph (7)" substitute "paragraphs (7) to (7B)".



SCHEDULE 4
Articles 9, 10 and 11.


LEAVE FOR FAMILY REASONS, ETC.




PART I

MATERNITY LEAVE AND PARENTAL LEAVE NEW PART IX OF EMPLOYMENT RIGHTS ORDER



    " PART IX



    CHAPTER I

    MATERNITY LEAVE

    Ordinary maternity leave
         103.  - (1) An employee may, provided that she satisfies any conditions which may be prescribed, be absent from work at any time during an ordinary maternity leave period.

        (2) An ordinary maternity leave period is a period calculated in accordance with regulations made by the Department.

        (3) Regulations under paragraph (2) - 

      (a) shall secure that no ordinary maternity leave period is less than 18 weeks;

      (b) may allow an employee to choose, subject to any prescribed restrictions, the date on which an ordinary maternity leave period starts.

        (4) Subject to Article 106, an employee who exercises her right under paragraph (1) - 

      (a) is entitled to the benefit of the terms and conditions of employment which would have applied if she had not been absent,

      (b) is bound by any obligations arising under those terms and conditions (except in so far as they are inconsistent with paragraph (1)), and

      (c) is entitled to return from leave to the job in which she was employed before her absence.

        (5) In paragraph (4)(a) "terms and conditions of employment" - 

      (a) includes matters connected with an employee's employment whether or not they arise under her contract of employment, but

      (b) does not include terms and conditions about remuneration.

        (6) The Department may make regulations specifying matters which are, or are not, to be treated as remuneration for the purposes of this Article.

        (7) An employee's right to return under paragraph (4)(c) is a right to return - 

      (a) with her seniority, pension rights and similar rights as they would have been if she had not been absent (subject to paragraph 5 of Schedule 5 to the Social Security (Northern Ireland) Order 1989 (equal treatment under pension schemes: maternity)), and

      (b) on terms and conditions not less favourable than those which would have applied if she had not been absent.

    Compulsory maternity leave
         104.  - (1) An employer shall not permit an employee who satisfies prescribed conditions to work during a compulsory maternity leave period.

        (2) A compulsory maternity leave period is a period calculated in accordance with regulations made by the Department.

        (3) Regulations under paragraph (2) shall secure - 

      (a) that no compulsory leave period is less than two weeks, and

      (b) that every compulsory maternity leave period falls within an ordinary maternity leave period.

        (4) Subject to paragraph (5), any provision of or made under the Health and Safety at Work (Northern Ireland) Order 1978 shall apply in relation to the prohibition under paragraph (1) as if it were imposed by regulations under Article 17 of that Order.

        (5) Article 31(1)(c) of the 1978 Order shall not apply in relation to the prohibition under paragraph (1); and an employer who contravenes that paragraph shall be - 

      (a) guilty of an offence, and

      (b) liable on summary conviction to a fine not exceeding level 2 on the standard scale.

    Additional maternity leave
         105.  - (1) An employee who satisfies prescribed conditions may be absent from work at any time during an additional maternity leave period.

        (2) An additional maternity leave period is a period calculated in accordance with regulations made by the Department.

        (3) Regulations under paragraph (2) may allow an employee to choose, subject to prescribed restrictions, the date on which an additional maternity leave period ends.

        (4) Subject to Article 106, an employee who exercises her right under paragraph (1) - 

      (a) is entitled, for such purposes and to such extent as may be prescribed, to the benefit of the terms and conditions of employment which would have applied if she had not been absent,

      (b) is bound, for such purposes and to such extent as may be prescribed, by obligations arising under those terms and conditions (except in so far as they are inconsistent with paragraph (1)), and

      (c) is entitled to return from leave to a job of a prescribed kind.

        (5) In paragraph (4)(a) "terms and conditions of employment" - 

      (a) includes matters connected with an employee's employment whether or not they arise under her contract of employment, but

      (b) does not include terms and conditions about remuneration.

        (6) The Department may make regulations specifying matters which are, or are not, to be treated as remuneration for the purposes of this Article.

        (7) The Department may make regulations making provision, in relation to the right to return under paragraph (4)(c), about - 

      (a) seniority, pension rights and similar rights;

      (b) terms and conditions of employment on return.

    Redundancy and dismissal
         106.  - (1) Regulations under Article 103 or 105 may make provision about redundancy during an ordinary or additional maternity leave period.

        (2) Regulations under Article 103 or 105 may make provision about dismissal (other than by reason of redundancy) during an ordinary or additional maternity leave period.

        (3) Regulations made by virtue of paragraph (1) or (2) may include - 

      (a) provision requiring an employer to offer alternative employment;

      (b) provision for the consequences of failure to comply with the regulations (which may include provision for a dismissal to be treated as unfair for the purposes of Part XI).

        (4) Regulations under Article 105 may make provision - 

      (a) for Article 105(4)(c) not to apply in specified cases, and

      (b) about dismissal at the conclusion of an additional maternity leave period.

    Articles 103 to 105: supplemental
         107.  - (1) Regulations under Article 103, 104 or 105 may - 

      (a) make provision about notices to be given, evidence to be produced and other procedures to be followed by employees and employers;

      (b) make provision for the consequences of failure to give notices, to produce evidence or to comply with other procedural requirements;

      (c) make provision for the consequences of failure to act in accordance with a notice given by virtue of sub-paragraph (a);

      (d) make special provision for cases where an employee has a right which corresponds to a right under this Chapter and which arises under her contract of employment or otherwise;

      (e) make provision modifying the effect of Chapter IV of Part I (calculation of a week's pay) in relation to an employee who is or has been absent from work on ordinary or additional maternity leave;

      (f) make provision applying, modifying or excluding a statutory provision, in such circumstances as may be specified and subject to any conditions specified, in relation to a person entitled to ordinary, compulsory or additional maternity leave.

        (2) In Articles 103 to 105 "prescribed" means prescribed by regulations made by the Department.



    CHAPTER II

    PARENTAL LEAVE

    Entitlement to parental leave
         108.  - (1) The Department shall make regulations entitling an employee who satisfies specified conditions - 

      (a) as to duration of employment, and

      (b) as to having, or expecting to have, responsibility for a child,

    to be absent from work on parental leave for the purpose of caring for a child.

        (2) The regulations shall include provision for determining - 

      (a) the extent of an employee's entitlement to parental leave in respect of a child;

      (b) when parental leave may be taken.

        (3) Provision under paragraph (2)(a) shall secure that where an employee is entitled to parental leave in respect of a child he is entitled to a period or total period of leave of at least three months; but this paragraph is without prejudice to any provision which may be made by regulations for cases in which - 

      (a) a person ceases to satisfy conditions under paragraph (1);

      (b) an entitlement to parental leave is transferred.

        (4) Provision under paragraph (2)(b) may, in particular, refer to - 

      (a) a child's age, or

      (b) a specified period of time starting from a specified event.

        (5) Regulations under paragraph (1) may - 

      (a) specify things which are, or are not, to be taken as done for the purpose of caring for a child;

      (b) require parental leave to be taken as a single period of absence in all cases or in specified cases;

      (c) require parental leave to be taken as a series of periods of absence in all cases or in specified cases;

      (d) require all or specified parts of a period of parental leave to be taken at or by specified times;

      (e) make provision about the postponement by an employer of a period of parental leave which an employee wishes to take;

      (f) specify a minimum or maximum period of absence which may be taken as part of a period of parental leave;

      (g) specify a maximum aggregate of periods of parental leave which may be taken during a specified period of time.

    Rights during and after parental leave
         109.  - (1) Regulations under Article 108 shall provide - 

      (a) that an employee who is absent on parental leave is entitled, for such purposes and to such extent as may be prescribed, to the benefit of the terms and conditions of employment which would have applied if he had not been absent,

      (b) that an employee who is absent on parental leave is bound, for such purposes and to such extent as may be prescribed, by any obligations arising under those terms and conditions (except in so far as they are inconsistent with Article 108(1)), and

      (c) that an employee who is absent on parental leave is entitled, subject to Article 110(1), to return from leave to a job of such kind as the regulations may specify.

        (2) In paragraph (1)(a) "terms and conditions of employment" - 

      (a) includes matters connected with an employee's employment whether or not they arise under a contract of employment, but

      (b) does not include terms and conditions about remuneration.

        (3) Regulations under Article 108 may specify matters which are, or are not, to be treated as remuneration for the purposes of paragraph (2)(b).

        (4) The regulations may make provision, in relation to the right to return mentioned in paragraph (1)(c), about - 

      (a) seniority, pension rights and similar rights;

      (b) terms and conditions of employment on return.

    Special cases
         110.  - (1) Regulations under Article 108 may make provision - 

      (a) about redundancy during a period of parental leave;

      (b) about dismissal (other than by reason of redundancy) during a period of parental leave.

        (2) Provision by virtue of paragraph (1) may include - 

      (a) provision requiring an employer to offer alternative employment;

      (b) provision for the consequences of failure to comply with the regulations (which may include provision for a dismissal to be treated as unfair for the purposes of Part XI).

        (3) Regulations under Article 108 may provide for an employee to be entitled to choose to exercise all or part of his entitlement to parental leave - 

      (a) by varying the terms of his contract of employment as to hours of work, or

      (b) by varying his normal working practice as to hours of work,

    in a way specified in or permitted by the regulations for a period specified in the regulations.

        (4) Provision by virtue of paragraph (3) - 

      (a) may restrict an entitlement to specified circumstances;

      (b) may make an entitlement subject to specified conditions (which may include conditions relating to obtaining the employer's consent);

      (c) may include consequential provision.

        (5) Regulations under Article 108 may make provision permitting all or part of an employee's entitlement to parental leave in respect of a child to be transferred to another employee in specified circumstances.

        (6) The reference in Article 109(1)(c) to absence on parental leave includes, where appropriate, a reference to a continuous period of absence attributable partly to maternity leave and partly to parental leave.

        (7) Regulations under Article 108 may provide for specified provisions of the regulations not to apply in relation to an employee if any provision of his contract of employment - 

      (a) confers an entitlement to absence from work for the purpose of caring for a child, and

      (b) incorporates or operates by reference to all or part of a collective agreement, or workforce agreement, of a kind specified in the regulations.

    Supplemental
         111.  - (1) Regulations under Article 108 may, in particular - 

      (a) make provision about notices to be given and evidence to be produced by employees to employers, by employers to employees, and by employers to other employers;

      (b) make provision requiring employers or employees to keep records;

      (c) make provision about other procedures to be followed by employees and employers;

      (d) make provision (including provision creating criminal offences) specifying the consequences of failure to give notices, to produce evidence, to keep records or to comply with other procedural requirements;

      (e) make provision specifying the consequences of failure to act in accordance with a notice given by virtue of sub-paragraph (a);

      (f) make special provision for cases where an employee has a right which corresponds to a right conferred by the regulations and which arises under his contract of employment or otherwise;

      (g) make provision applying, modifying or excluding a statutory provision, in such circumstances as may be specified and subject to any conditions specified, in relation to a person entitled to parental leave.

        (2) The regulations may make provision modifying the effect of Chapter IV of Part I (calculation of a week's pay) in relation to an employee who is or has been absent from work on parental leave.

        (3) Without prejudice to the generality of Article 108, the regulations may make any provision which appears to the Department to be necessary or expedient - 

      (a) for the purpose of implementing Council Directive 96/34/EC on the framework agreement on parental leave, or

      (b) for the purpose of dealing with any matter arising out of or related to the United Kingdom's obligations under that Directive.

    Complaint to industrial tribunal
         112.  - (1) An employee may present a complaint to an industrial tribunal that his employer - 

      (a) has unreasonably postponed a period of parental leave requested by the employee, or

      (b) has prevented or attempted to prevent the employee from taking parental leave.

        (2) An industrial tribunal shall not consider a complaint under this Article unless it is presented - 

      (a) before the end of the period of three months beginning with the date (or last date) of the matters complained of, or

      (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

        (3) Where an industrial tribunal finds a complaint under this Article well-founded it - 

      (a) shall make a declaration to that effect, and

      (b) may make an award of compensation to be paid by the employer to the employee.

        (4) The amount of compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to - 

      (a) the employer's behaviour, and

      (b) any loss sustained by the employee which is attributable to the matters complained of.".



PART II

TIME OFF FOR DEPENDANTS PROVISIONS TO BE INSERTED AFTER ARTICLE 85 OF THE EMPLOYMENT RIGHTS ORDER

    " Dependants

    Time off for dependants
         85A.  - (1) An employee is entitled to be permitted by his employer to take a reasonable amount of time off during the employee's working hours in order to take action which is necessary - 

      (a) to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted,

      (b) to make arrangements for the provision of care for a dependant who is ill or injured,

      (c) in consequence of the death of a dependant,

      (d) because of the unexpected disruption or termination of arrangements for the care of a dependant, or

      (e) to deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him.

        (2) Paragraph (1) does not apply unless the employee - 

      (a) tells his employer the reason for his absence as soon as reasonably practicable, and

      (b) except where paragraph (a) cannot be complied with until after the employee has returned to work, tells his employer for how long he expects to be absent.

        (3) Subject to paragraphs (4) and (5), for the purposes of this Article "dependant" means, in relation to an employee - 

      (a) a spouse,

      (b) a child,

      (c) a parent,

      (d) a person who lives in the same household as the employee, otherwise than by reason of being his employee, tenant, lodger or boarder.

        (4) For the purposes of paragraph (1)(a) or (b) "dependant" includes, in addition to the persons mentioned in paragraph (3), any person who reasonably relies on the employee - 

      (a) for assistance on an occasion when the person falls ill or is injured or assaulted, or

      (b) to make arrangements for the provision of care in the event of illness or injury.

        (5) For the purposes of paragraph (1)(d) "dependant" includes, in addition to the persons mentioned in paragraph (3), any person who reasonably relies on the employee to make arrangements for the provision of care.

        (6) A reference in this Article to illness or injury includes a reference to mental illness or injury.

    Complaint to industrial tribunal
         85B.  - (1) An employee may present a complaint to an industrial tribunal that his employer has unreasonably refused to permit him to take time off as required by Article 85A.

        (2) An industrial tribunal shall not consider a complaint under this Article unless it is presented - 

      (a) before the end of the period of three months beginning with the date when the refusal occurred, or

      (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

        (3) Where an industrial tribunal finds a complaint under paragraph (1) well-founded, it - 

      (a) shall make a declaration to that effect, and

      (b) may make an award of compensation to be paid by the employer to the employee.

        (4) The amount of compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to - 

      (a) the employer's default in refusing to permit time off to be taken by the employee, and

      (b) any loss sustained by the employee which is attributable to the matters complained of.".



PART III

CONSEQUENTIAL AMENDMENTS

The Employment Rights (Northern Ireland) Order 1996 (NI 16)

     1. In Article 8(3) after sub-paragraph (b) insert "or".

     2. In Article 21(5)(b) for head (i) substitute - 

        " (i) where the day before that on which the suspension begins falls during a period of ordinary or additional maternity leave, the day before the beginning of that period,".

     3. After Article 70B insert - 

    " Leave for family and domestic reasons
         70C.  - (1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done for a prescribed reason.

        (2) A prescribed reason is one which is prescribed by regulations made by the Department and which relates to - 

      (a) pregnancy, childbirth or maternity,

      (b) ordinary, compulsory or additional maternity leave,

      (c) parental leave, or

      (d) time off under Article 85A.

        (3) A reason prescribed under this Article in relation to parental leave may relate to action which an employee takes, agrees to take or refuses to take under or in respect of a collective or workforce agreement".

     4. In Article 71(1) for "or 70A" substitute ", 70A or 70C".

     5. In Articles 120(1)(c) and 121(3)(b) after "childbirth" insert "or on parental leave".

     6. In Article 124(4)(b) for "maternity leave period" substitute "ordinary or additional maternity leave period".

     7. In Article 130(6) for "Paragraphs (4) and (5) are" substitute "Paragraph (4) is".

     8. For Article 131 substitute - 

    " Leave for family reasons
         131.  - (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if - 

      (a) the reason or principal reason for the dismissal is of a prescribed kind, or

      (b) the dismissal takes place in prescribed circumstances.

        (2) In this Article "prescribed" means prescribed by regulations made by the Department.

        (3) A reason or set of circumstances prescribed under this Article must relate to - 

      (a) pregnancy, childbirth or maternity,

      (b) ordinary, compulsory or additional maternity leave,

      (c) parental leave, or

      (d) time off under Article 85A;

    and it may also relate to redundancy or other factors.

        (4) A reason or set of circumstances prescribed under paragraph (1) satisfies paragraph (3)(c) if it relates to action which an employee - 

      (a) takes,

      (b) agrees to take, or

      (c) refuses to take,

    under or in respect of a collective or workforce agreement which deals with parental leave.

        (5) Regulations under this Article may apply any statutory provision, in such circumstances as may be specified and subject to any conditions specified, in relation to persons regarded as unfairly dismissed by reason of this Article".

     9. In Articles 143(2) and 144(2) for sub-paragraph (a) substitute - 

      " (a) Article 131 applies;".

     10. In Article 143(2) after sub-paragraph (cc) insert - 

      " (ccc) Article 135 applies in relation to time off under Article 85A;".

     11. In Article 144(2) after sub-paragraph (c) insert - 

      " (cc) Article 135 applies in relation to time off under Article 85A;".

     12. In Article 152(1)(b) for "to 162" substitute "and 161".

     13. In Article 237(2) - 

    (a) after sub-paragraph (aa) insert - 

      " (ab) Article 70C;";

    (b) in sub-paragraph (b) for "83 to 85" substitute "83 to 85B".

     14. In Article 243(1) after "Article 70," insert "Article 70C,".

     15. In Article 244(2) - 

    (a) in sub-paragraph (b) for "and 70" substitute ", 70 and 70C";

    (b) in sub-paragraph (c) for "83 to 85" substitute "83 to 85B";

    (c) in sub-paragraph (g) for head (i) substitute - 

        " (i) by Article 131, 132, 132A(d) or 134, or by Article 135 in its application in relation to time off under Article 85A,".

     16. In Article 251 - 

    (a) at the beginning of paragraph (1) insert "Subject to paragraph (1A),";

    (b) after paragraph (1) insert - 

        " (1A) Regulations under Article 70C, 103, 104, 105, 108 or 131 shall - 

      (a) be laid before the Assembly as soon as may be after they are made;

      (b) come into operation on such date as may be specified therein; and

      (c) cease to have effect on the expiration of a period of six months from the date on which they came into operation unless, before the expiration of that period, they are approved by a resolution of the Assembly.".



SCHEDULE 5
Article 18.


UNFAIR DISMISSAL OF STRIKING WORKERS


     1. The Employment Rights Order shall be amended as provided by this Schedule.

     2. In Article 137, in paragraph (1)(c) for "(7)" substitute "(7A)" and after paragraph (7) insert - 

        " (7A) This paragraph applies if - 

      (a) the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the reason mentioned in Article 144A (participation in official industrial action), and

      (b) paragraph (3), (4) or (5) of that Article applies to the dismissal.".

     3. In Articles 140(3) and 141(2) at the end add

           " or

      (j) Article 144A applies".

     4. In Article 144 after paragraph (2) insert - 

        " (2A) This Article does not apply in relation to an employee who is regarded as unfairly dismissed by virtue of Article 144A.".

     5. In Article 144(8) after "this Article" insert "or Article 144A".

     6. After Article 144 insert - 

    " Participation in official industrial action
         144A.  - (1) For the purposes of this Article an employee takes protected industrial action if he commits an act which, or a series of acts each of which, he is induced to commit by an act which by virtue of Article 97 of the Trade Union and Labour Relations Order is not actionable in tort.

        (2) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if - 

      (a) the reason (or, if more than one, the principal reason) for the dismissal is that the employee took protected industrial action, and

      (b) paragraph (3), (4) or (5) applies to the dismissal.

        (3) This paragraph applies to a dismissal if it takes place within the period of eight weeks beginning with the day on which the employee started to take protected industrial action.

        (4) This paragraph applies to a dismissal if - 

      (a) it takes place after the end of that period, and

      (b) the employee had stopped taking protected industrial action before the end of that period.

        (5) This paragraph applies to a dismissal if - 

      (a) it takes place after the end of that period,

      (b) the employee had not stopped taking protected industrial action before the end of that period, and

      (c) the employer had not taken such procedural steps as would have been reasonable for the purposes of resolving the dispute to which the protected industrial action relates.

        (6) In determining whether an employer has taken those steps regard shall be had, in particular, to - 

      (a) whether the employer or a union had complied with procedures established by any applicable collective or other agreement;

      (b) whether the employer or a union offered or agreed to commence or resume negotiations after the start of the protected industrial action;

      (c) whether the employer or a union unreasonably refused, after the start of the protected industrial action, a request that conciliation services be used;

      (d) whether the employer or a union unreasonably refused, after the start of the protected industrial action, a request that mediation services be used in relation to procedures to be adopted for the purposes of resolving the dispute.

        (7) In determining whether an employer has taken those steps no regard shall be had to the merits of the dispute.

        (8) For the purposes of this Article no account shall be taken of the repudiation of any act by a trade union as mentioned in Article 21A of the Industrial Relations (Northern Ireland) Order 1992 in relation to anything which occurs before the end of the next working day (within the meaning of Article 143) after the day on which the repudiation takes place.

        (9) In relation to a complaint under Article 145 that a dismissal was unfair by virtue of this Article - 

      (a) no order shall be made under Article 147 (reinstatement or re-engagement) until after the conclusion of protected industrial action by any employee in relation to the relevant dispute,

      (b) regulations under Article 9 of the Industrial Tribunals (Northern Ireland) Order 1996 may make provision about the adjournment and renewal of applications (including provision requiring adjournment in specified circumstances), and

      (c) regulations under Article 11 of that Order may require a pre-hearing review to be carried out in specified circumstances.".



SCHEDULE 6
Article 28.


THE CERTIFICATION OFFICER


Introduction

     1. The Industrial Relations (Northern Ireland) Order 1992 shall be amended as provided by paragraphs 2 to 5.

Offenders

     2.  - (1) Article 13C (application to Certification Officer or court for declaration of breach of duty to secure positions not held by certain offenders) shall be amended as follows.

    (2) In paragraph (2) (Certification Officer's powers and duties) insert before sub-paragraph (a) - 

      " (aa) shall make such enquiries as he thinks fit,".

    (3) In paragraph (2)(a) (duty to give opportunity to be heard where Certification Officer considers it appropriate) omit ", where he considers it appropriate,".

    (4) Omit paragraphs (3) and (4) (different applications in respect of the same matter).

    (5) After paragraph (5) insert - 

        " (5A) Where the Certification Officer makes a declaration he shall also, unless he considers that it would be inappropriate, make an order imposing on the trade union a requirement to take within such period as maybe specified in the order such steps to remedy the declared failure as may be so specified.

        (5B) The following provisions have effect if a person applies to the Certification Officer under this Article in relation to an alleged failure - 

      (a) that person may not apply to the High Court under this Article in relation to that failure;

      (b) on an application by a different person to the High Court under this Article in relation to that failure, the court shall have due regard to any declaration, order, observations or reasons made or given by the Certification Officer regarding that failure and brought to the court's notice.

        (5C) The following provisions have effect if a person applies to the High Court under this Article in relation to an alleged failure - 

      (a) that person may not apply to the Certification Officer under this Article in relation to that failure;

      (b) on an application by a different person to the Certification Officer under this Article in relation to that failure, the Certification Officer shall have regard to any declaration, order, observations or reasons made or given by the court regarding that failure and brought to the Certification Officer's notice.".

    (6) In paragraph (6) (entitlement to enforce order) after "been made" insert "under paragraph (5) or (5A)".

    (7) After paragraph (6) insert - 

        " (7) Where the Certification Officer requests a person to furnish information to him in connection with enquiries made by him under this Article, he shall specify the date by which that information is to be furnished and, unless he considers that it would be inappropriate to do so, shall proceed with his determination of the application notwithstanding that the information has not been furnished to him by the specified date.

        (8) A declaration made by the Certification Officer under this Article may be relied on as if it were a declaration made by the High Court.

        (9) An order made by the Certification Officer under this Article may be enforced in the same way as an order of the High Court.".

Accounting records

     3.  - (1) Article 37 (remedy for failure to comply with request for access to accounting records) shall be amended as follows.

    (2) In paragraph (7) (application to the court) for the words "for an order under this Article; and where, on such an application" substitute "or to the Certification Officer; and where, on an application to it" and for "that person" substitute "the applicant".

    (3) After paragraph (7) insert - 

        " (7A) On an application to him the Certification Officer shall - 

      (a) make such enquiries as he thinks fit, and

      (b) give the applicant and the trade union an opportunity to be heard.

        (7B) Where the Certification Officer is satisfied that the claim is well-founded he shall make such order as he considers appropriate for ensuring that the applicant - 

      (a) is allowed to inspect the records requested,

      (b) is allowed to be accompanied by an accountant when making the inspection of those records, and

      (c) is allowed to take, or is supplied with, such copies of, or of extracts from, the records as he may require.

        (7C) In exercising his functions under this Article the Certification Officer shall ensure that, so far as is reasonably practicable, an application made to him is determined within six months of being made.".

    (4) In paragraph (8) (court's power to grant interlocutory relief) after "an application" insert "to it".

    (5) After paragraph (8) insert - 

        " (8A) Where the Certification Officer requests a person to furnish information to him in connection with enquiries made by him under this Article, he shall specify the date by which that information is to be furnished and, unless he considers that it would be inappropriate to do so, shall proceed with his determination of the application notwithstanding that the information has not been furnished to him by the specified date.

        (8B) An order made by the Certification Officer under this Article may be enforced in the same way as an order of the High Court.

        (8C) If a person applies to the High Court under this Article in relation to an alleged failure he may not apply to the Certification Officer under this Article in relation to that failure.

        (8D) If a person applies to the Certification Officer under this Article in relation to an alleged failure he may not apply to the High Court under this Article in relation to that failure.".

Procedure before, and appeals from, Certification Officer

     4.  - (1) Article 70 (procedure before, and appeals from, Certification Officer) shall be amended as follows.

    (2) In paragraph (1) omit the words from "and, without prejudice" to the end.

    (3) After paragraph (1) insert - 

        " (1A) He shall in particular make provision about the disclosure, and restriction of the disclosure, of the identity of an individual who has made or is proposing to make any such application or complaint.

        (1B) Provision under paragraph (1A) shall be such that if the application or complaint relates to a trade union - 

      (a) the individual's identity is disclosed to the union unless the Certification Officer thinks the circumstances are such that it should not be so disclosed;

      (b) the individual's identity is disclosed to such other persons (if any) as the Certification Officer thinks fit.".

    (4) After paragraph (3) insert - 

        " (4) An appeal lies to the Court of Appeal on any question of law arising in proceedings before or arising from any decision of the Certification Officer under - 

      (a) Article 13C or 37 of this Order;

      (b) Article 5, Article 22, Part V, Article 84 or Part VIA of the Trade Union and Labour Relations (Northern Ireland) Order 1995.".

     5. After Article 70 there shall be inserted - 

    " Vexatious litigants
         70A.  - (1) The Certification Officer may refuse to entertain any application or complaint made to him under a provision of - 

      (a) this Order; or

      (b) Parts II to VIA of the Trade Union and Labour Relations (Northern Ireland) Order 1995,

    by a vexatious litigant.

        (2) The Certification Officer must give reasons for such a refusal.

        (3) Paragraph (1) does not apply to a complaint under Article 12E(1)(b) or to an application under Article 5 or 6 or paragraph 30 of Schedule 1.

        (4) For the purposes of paragraph (1) a vexatious litigant is a person who is the subject of - 

      (a) an order which is made under section 32 of the Judicature (Northern Ireland) Act 1978,

      (b) an order which is made under section 33(1) of the Employment Tribunals Act 1996 and which remains in force,

      (c) a civil proceedings order or an all proceedings order which is made under section 42(1) of the Supreme Court Act 1981 and which remains in force, or

      (d) an order which is made under section 1 of the Vexatious Actions (Scotland) Act 1898.

    Vexatious litigants: applications disregarded
         70B.  - (1) For the purposes of a relevant enactment an application to the Certification Officer shall be disregarded if - 

      (a) it was made under a provision mentioned in the relevant enactment, and

      (b) it was refused by the Certification Officer under Article 70A(1).

        (2) The relevant enactments are - 

      (a) Articles 13C(5B) and 37(8D); and

      (b) Articles 6(8), 23(8), 46A(10), 56(8) and 90A(14) of the Trade Union and Labour Relations (Northern Ireland) Order 1995.".

     6. The Trade Union and Labour Relations Order shall be amended as provided by the following provisions of this Schedule.

Register of members

     7. In Article 3 (duty to maintain register of members' names and addresses) the second sentence of paragraph (6) (application to Certification Officer does not prevent application to High Court) shall be omitted.

     8. In Article 4 (securing confidentiality of register during ballots) the second sentence of paragraph (6) (application to Certification Officer does not prevent application to High Court) shall be omitted.

     9.  - (1) Article 5 (application to Certification Officer for declaration of breach of duty regarding register of members' names and addresses) shall be amended as follows.

    (2) In paragraph (2)(b) (duty to give opportunity to be heard where Certification Officer considers it appropriate) omit "where he considers it appropriate,".

    (3) After paragraph (5) insert - 

        " (5A) Where the Certification Officer makes a declaration he shall also, unless he considers that to do so would be inappropriate, make an enforcement order, that is, an order imposing on the union one or both of the following requirements - 

      (a) to take such steps to remedy the declared failure, within such period, as may be specified in the order;

      (b) to abstain from such acts as may be so specified with a view to securing that a failure of the same or a similar kind does not occur in future.

        (5B) Where an enforcement order has been made, any person who is a member of the union and was a member at the time it was made is entitled to enforce obedience to the order as if he had made the application on which the order was made.".

    (4) After paragraph (8) insert - 

        " (9) A declaration made by the Certification Officer under this Article may be relied on as if it were a declaration made by the High Court.

        (10) An enforcement order made by the Certification Officer under this Article may be enforced in the same way as an order of the High Court.

        (11) The following provisions have effect if a person applies under Article 6 in relation to an alleged failure - 

      (a) that person may not apply under this Article in relation to that failure;

      (b) on an application by a different person under this Article in relation to that failure, the Certification Officer shall have due regard to any declaration, order, observations or reasons made or given by the High Court regarding that failure and brought to the Certification Officer's notice.".

     10.  - (1) Article 6 (application to High Court for declaration of breach of duty regarding register of members' names and addresses) shall be amended as follows.

    (2) Omit paragraph (2) (position where application in respect of the same matter has been made to Certification Officer).

    (3) After paragraph (7) insert - 

        " (8) The following provisions have effect if a person applies under Article 5 in relation to an alleged failure - 

      (a) that person may not apply under this Article in relation to that failure;

      (b) on an application by a different person under this Article in relation to that failure, the High Court shall have due regard to any declaration, order, observations or reasons made or given by the Certification Officer regarding that failure and brought to the court's notice.".

    Elections

     11. In Article 21 (remedy for failure to comply with the duty regarding elections) the second sentence of paragraph (1) (application to Certification Officer does not prevent application to court) shall be omitted.

     12.  - (1) Article 22 (application to Certification Officer for declaration of breach of duty regarding elections) shall be amended as follows.

    (2) In paragraph (2)(b) (duty to give opportunity to be heard where Certification Officer considers it appropriate) omit "where he considers it appropriate,".

    (3) After paragraph (5) insert - 

        " (5A) Where the Certification Officer makes a declaration he shall also, unless he considers that to do so would be inappropriate, make an enforcement order, that is, an order imposing on the union one or more of the following requirements - 

      (a) to secure the holding of an election in accordance with the order;

      (b) to take such other steps to remedy the declared failure as may be specified in the order;

      (c) to abstain from such acts as may be so specified with a view to securing that a failure of the same or a similar kind does not occur in future.

      The Certification Officer shall in an order imposing any such requirement as is mentioned in sub-paragraph (a) or (b) specify the period within which the union is to comply with the requirements of the order.

        (5B) Where the Certification Officer makes an order requiring the union to hold a fresh election, he shall (unless he considers that it would be inappropriate to do so in the particular circumstances of the case) require the election to be conducted in accordance with the requirements of this Part and such other provisions as may be made by the order.

        (5C) Where an enforcement order has been made - 

      (a) any person who is a member of the union and was a member at the time the order was made, or

      (b) any person who is or was a candidate in the election in question,

    is entitled to enforce obedience to the order as if he had made the application on which the order was made.".

    (4) After paragraph (7) insert - 

        " (8) A declaration made by the Certification Officer under this Article may be relied on as if it were a declaration made by the High Court.

        (9) An enforcement order made by the Certification Officer under this Article may be enforced in the same way as an order of the High Court.

        (10) The following provisions have effect if a person applies under Article 23 in relation to an alleged failure - 

      (a) that person may not apply under this Article in relation to that failure;

      (b) on an application by a different person under this Article in relation to that failure, the Certification Officer shall have due regard to any declaration, order, observations or reasons made or given by the High Court regarding that failure and brought to the Certification Officer's notice.".

     13.  - (1) Article 23 (application to High Court for declaration of failure to comply with requirements regarding elections) shall be amended as follows.

    (2) Omit paragraph (2) (position where application in respect of the same matter has been made to the Certification Officer).

    (3) After paragraph (7) insert - 

        " (8) The following provisions have effect if a person applies under Article 22 in relation to an alleged failure - 

      (a) that person may not apply under this Article in relation to that failure;

      (b) on an application by a different person under this Article in relation to that failure, the High Court shall have due regard to any declaration, order, observations or reasons made or given by the Certification Officer regarding that failure and brought to the court's notice.".

    Application of funds for political objects

     14. After Article 46 there shall be inserted - 

    " Application of funds in breach of Article 45
         46A.  - (1) A person who is a member of a trade union and who claims that it has applied its funds in breach of Article 45 may apply to the Certification Officer for a declaration that it has done so.

        (2) On an application under this Article the Certification Officer - 

      (a) shall make such enquiries as he thinks fit,

      (b) shall give the applicant and the union an opportunity to be heard,

      (c) shall ensure that, so far as is reasonably practicable, the application is determined within six months of being made,

      (d) may make or refuse the declaration asked for,

      (e) shall, whether he makes or refuses the declaration, give reasons for his decision in writing, and

      (f) may make written observations on any matter arising from, or connected with, the proceedings.

        (3) If he makes a declaration he shall specify in it - 

      (a) the provisions of Article 45 breached, and

      (b) the amount of the funds applied in breach.

        (4) If he makes a declaration and is satisfied that the union has taken or agreed to take steps with a view to - 

      (a) remedying the declared breach, or

      (b) securing that a breach of the same or any similar kind does not occur in future,

    he shall specify those steps in making the declaration.

        (5) If he makes a declaration he may make such order for remedying the breach as he thinks just under the circumstances.

        (6) Where the Certification Officer requests a person to furnish information to him in connection with enquiries made by him under this Article, he shall specify the date by which that information is to be furnished and, unless he considers that it would be inappropriate to do so, shall proceed with his determination of the application notwithstanding that the information has not been furnished to him by the specified date.

        (7) A declaration made by the Certification Officer under this Article may be relied on as if it were a declaration made by the High Court.

        (8) Where an order has been made under this Article, any person who is a member of the union and was a member at the time it was made is entitled to enforce obedience to the order as if he had made the application on which the order was made.

        (9) An order made by the Certification Officer under this Article may be enforced in the same way as an order of the High Court.

        (10) If a person applies to the Certification Officer under this Article in relation to an alleged breach he may not apply to the High Court in relation to the breach; but nothing in this paragraph shall prevent such a person from exercising any right to appeal against or challenge the Certification Officer's decision on the application to him.

        (11) If - 

      (a) a person applies to the High Court in relation to alleged breach, and

      (b) the breach is one in relation to which he could have made an application to the Certification Officer under this Article,

    he may not apply to the Certification Officer under this Article in relation to the breach.".

Political ballot rules

     15. In Article 54 (remedy for failure to comply with political ballot rules) the second sentence of paragraph (1) (application to Certification Officer does not prevent application to High Court) shall be omitted.

     16.  - (1) Article 55 (application to Certification Officer for declaration of failure to comply with political ballot rules) shall be amended as follows.

    (2) In paragraph (2)(b) (duty to give opportunity to be heard where Certification Officer considers it appropriate) omit "where he considers it appropriate,".

    (3) After paragraph (5) insert - 

        " (5A) Where the Certification Officer makes a declaration he shall also, unless he considers that to do so would be inappropriate, make an enforcement order, that is, an order imposing on the union one or more of the following requirements - 

      (a) to secure the holding of a ballot in accordance with the order;

      (b) to take such other steps to remedy the declared failure as may be specified in the order;

      (c) to abstain from such acts as may be so specified with a view to securing that a failure of the same or a similar kind does not occur in future.

      The Certification Officer shall in an order imposing any such requirement as is mentioned in sub-paragraph (a) or (b) specify the period within which the union must comply with the requirements of the order.

        (5B) Where the Certification Officer makes an order requiring the union to hold a fresh ballot, he shall (unless he considers that it would be inappropriate to do so in the particular circumstances of the case) require the ballot to be conducted in accordance with the union's political ballot rules and such other provisions as may be made by the order.

        (5C) Where an enforcement order has been made, any person who is a member of the union and was a member at the time the order was made is entitled to enforce obedience to the order as if he had made the application on which the order was made.".

    (4) After paragraph (7) insert - 

        " (8) A declaration made by the Certification Officer under this Article may be relied on as if it were a declaration made by the High Court.

        (9) An enforcement order made by the Certification Officer under this Article may be enforced in the same way as an order of the High Court.

        (10) The following provisions have effect if a person applies under Article 56 in relation to a matter - 

      (a) that person may not apply under this Article in relation to that matter;

      (b) on an application by a different person under this Article in relation to that matter, the Certification Officer shall have due regard to any declaration, order, observations or reasons made or given by the High Court regarding that matter and brought to the Certification Officer's notice.".

     17.  - (1) Article 56 (application to court for declaration of failure to comply with political ballot rules) shall be amended as follows.

    (2) Omit paragraph (2) (position where application in respect of the same matter has been made to Certification Officer).

    (3) After paragraph (7) insert - 

        " (8) The following provisions have effect if a person applies under Article 55 in relation to a matter - 

      (a) that person may not apply under this Article in relation to that matter;

      (b) on an application by a different person under this Article in relation to that matter, the High Court shall have due regard to any declaration, order, observations or reasons made or given by the Certification Officer regarding that matter and brought to the court's notice.".

    Political fund

     18.  - (1) Article 57 (rules as to political fund) shall be amended as follows.

    (2) After paragraph (2) insert - 

        " (2A) On a complaint being made to him the Certification Officer shall make such enquiries as he thinks fit.".

    (3) After paragraph (3) insert - 

        " (3A) Where the Certification Officer requests a person to furnish information to him in connection with enquiries made by him under this Article, he shall specify the date by which that information is to be furnished and, unless he considers that it would be inappropriate to do so, shall proceed with his determination of the application notwithstanding that the information has not been furnished to him by the specified date.".

Employers' associations

     19.  - (1) In Article 72(2) (provisions about application of funds for political objects to apply to unincorporated employers' associations) at the beginning insert "Subject to paragraphs (3) to (6),".

    (2) After Article 72(2) insert - 

 

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