In the latest of our articles taking an in-depth look at aspects of the Employment Rights Bill (ERB) we focus on the provisions which strengthen and simplify the law on trade union organising and recognition, which include:

• Introducing a duty on employers to inform workers of their right to join a trade union.
• Strengthening trade unions’ right of access to the workplace.
• Simplifying the statutory trade union recognition process.
• Introducing new rights and protections for trade unions representatives.

Right to statement of trade union rights

The ERB will place a duty on employers to give workers a written statement that the worker has the right to join a trade union, to be given at the same time as the statement of employment particulars under s.1 Employment Rights Act. Regulations may provide for the statement to be provided at other times, the information that must be included in the statement, the form of the statement and the manner in which it must be given.

Right of trade unions to access workplaces

Trade unions will be given the right to request access (physical entry) to a workplace for their officials for ‘access purposes’. The access purposes are to meet, represent, recruit or organise workers (whether or not they are members of a trade union) and to facilitate collective bargaining. There will then be a process for the employer to respond within a specified timeframe, and a specified negotiation period. If the employer does not respond or the employer and the union are unable to agree an access agreement within the negotiation period, the Central Arbitration Committee (CAC) may decide whether the officials are to have access and on what terms. Such determination must be consistent with the access principles that:

• Officials of a listed trade union should be able to access a workplace for any of the access purposes in any manner that does not unreasonably interfere with the employer’s business.
• An employer should take reasonable steps to facilitate access by officials of a listed trade union to a workplace.
• Access should be refused entirely only where it is reasonable in all the circumstances to do so.

The CAC will have powers to enforce access agreements.

Simplification of statutory trade union recognition

Currently, a tribunal making an application to an employer for statutory trade union recognition must meet a number of thresholds in respect of union membership and support for recognition within the proposed bargaining unit. The ERB will reduce or remove some of these thresholds.

Under the existing law, the CAC must be satisfied that at least 10% of the workers in the union’s proposed bargaining unit are members of the union and that a majority of workers within the bargaining unit are likely to support recognition of the union. The ERB will permit regulations to lower the 10% threshold to between 2% and 10% and will remove the requirement for a union to demonstrate that there is likely to be majority support for trade union recognition.

Once an appropriate bargaining unit has been agreed or decided, if the CAC is not satisfied that a majority of workers in the bargaining unit are members of the union it will arrange for a secret ballot to be held. It may order a ballot in any event. The CAC must issue a declaration that the union is recognised as entitled to conduct collective bargaining on behalf of the workers in the bargaining unit if the union is supported by:

• A majority of the workers voting; and
• At least 40% of the workers in the bargaining unit.

The ERB will remove the 40% support threshold from recognition ballots.

Overall, the proposed changes should make it easier for trade unions to gain recognition. However, the government is consulting on proposals to go further. On 21 October 2024, the Department for Business and Trade published its consultation “Making Work Pay: creating a modern framework for industrial relations” which seeks views on proposals regarding unfair practices during trade union recognition, in particular:

• Extending the application of the Code of Practice: Access and unfair practices during recognition and derecognition ballots. Due to concern that the limit on the period for which the Code applies means that employers can engage in unfair practices during the earlier stages of the recognition process, the government proposes extending the application of the Code from the CAC’s acceptance of the union’s application for recognition.
• Capping the number of workers in a bargaining unit during the recognition process. The definition of unfair practices does not include practices that could affect the integrity of the recognition process itself. The government is considering options to prevent mass recruitment into a bargaining unit to reduce the percentage of union membership. This is a practice which has been alleged by the GMB union in its attempts to gain recognition by Amazon but there is no real evidence that it is a widespread issue.
• Time limit on reaching a voluntary access agreement. Once the CAC has given notice of its intention to hold a recognition ballot, the employer and union need to prepare for access by the union to workers in the proposed bargaining unit. The government is proposing a window of 20 working days for access negotiations to conclude after which the CAC will intervene to adjudicate unless both parties request a delay of up to ten working days.
• Unfair practice claims. The parties may complain to the CAC if they believe the other has failed to comply with the duty to refrain from unfair practices. The government is considering options to amend the statutory test applied by the CAC, its preferred option being that it should be sufficient to show that unfair practices have occurred without requiring a further test as to the effect, or likely effect, on votes.
• Extending the time limit for complaints about unfair practices. The government is proposing to extend the time limit for a complaint relating to unfair practices from the first working day after the closure of the recognition ballot to three months after closure of the ballot.

Introducing new rights and protections for trade unions representatives

The ERB will extend rights to reasonable paid time off during working hours and to facilities to equality representatives of recognised unions. The right to time off is for the purposes of

• Carrying out activities for the purpose of promoting the value of equality in the workplace.
• Arranging learning or training on matters relating to equality in the workplace.
• Providing information, advice or support to qualifying members of the trade union in relation to matters relating to equality in the workplace.
• Consulting with the employer on matters relating to equality in the workplace.
• Obtaining and analysing information relating to equality in the workplace.
• Preparing for any of the things mentioned above.

Click below to read our earlier articles:

• The Employment Rights Bill 2024: The most extensive overhaul of workers’ rights in generations?
• The Future of Work: insights into the new Employment Rights Bill: #1: Making unfair dismissal a day one right
• The Future of Work: Insights into the new Employment Rights Bill: #2: A new era of protection against harassment in the workplace
• The Future of Work: Insights into the new Employment Rights Bill: #3: Impact on contractual change and redundancy exercises
• The Future of Work: Insights into the new Employment Rights Bill: #4 Hospitality & leisure focus

Useful links

• Employment Rights Bill
• Plan to make work pay
• Next steps to make work pay
• Making work pay: creating a modern framework for industrial relations

Share this post with your LinkedIn network: https://www.linkedin.com/sharing/share-offsite/?url=https://blogs.dlapiper.com/beaware/the-future-of-work-insights-into-the-new-employment-rights-bill-5-trade-union-recognition-and-organising/