Government announces review of Employment Relations Act

The
Government has announced that it is to review the operation of the statutory
union recognition and de-recognition procedures in the Employment Relations Act
1999.  The review will also look at the
operation of the other provisions of the Act.

The
review will be carried out by the DTI through full public consultation.  The DTI says it will complete the task to a
timetable which will enable any legislative recommendations which the review
may make to be introduced within the lifetime of this Parliament.

The
review will cover all aspects of the Employment Relations Act 1999 outlined in
the table below.

SCHEDULE
OF SUBJECTS COVERED IN THE EMPLOYMENT RELATIONS ACT 1999

COMMENTS

Law
relating to Trade Unions, Collective Bargaining and Rights to Representation

statutory
trade union recognition  (section 1, 5
and 6, schedule 1)

discrimination
on grounds of trade union membership and activities (section 2, schedule 2)

 

regulation-making
power to prohibit trade union blacklists (section 3)

 

aspects
of industrial action law 
(section 4, schedule 3)

 dismissal of striking workers  (section 16, schedule 5)

right
to be accompanied
(sections 10 – 15)

collective
agreements: detriment and dismissal
(section 17)

Centre-piece
provision of the ERA. Independent trade unions may apply to the CAC for an
employer with at least 21 workers to recognise it for the purposes of
collective bargaining.

These
provisions made it unlawful for employers to discriminate by omission.  The recent judgment of the European Court
of Human Rights about the “Wilson and Palmer” cases has particular relevance
to the underlying law in this area. It also has relevance to section 17 of
the Act – see below.

Enabling
power to allow the issuing of regulations outlawing the compilation,
distribution and use of lists of trade unionists, drawn up for the purpose of
discrimination in relation to the recruitment or treatment of workers.

These
provisions sought to clarify and simplify the complicated law regarding
ballots and notices without changing the essential features of the 80s and
90s reforms.

This
provided extra protection against dismissal for employees during the first 8
weeks of lawfully organised official industrial action. 

Right
for workers to be accompanied at certain disciplinary and grievance hearings
by a fellow employee or a trade union official.

Regulation-making
power to provide protection against dismissal or detriment for refusing to
opt out of a collective agreement.

Industrial
Relations Institutions

re-modelling
the Central  

      Arbitration Committee (CAC)

     (sections 24, 25)

widening
the quasi-judicial role of

      the Certification Officer  (section

      29, schedule 6)

re-defining
the Advisory Conciliation and Arbitration Service’s (ACAS’s) general duty

(section 26)

changes
to the reporting years for ACAS and the CAC
(section 27)

abolishing
the offices of Commissioner for the Rights of Trade Union Members, and the
Commissioner for Protection Against Unlawful Industrial Action
(section
28)

To
carry out its major new role in determining claims made under the statutory
recognition procedure.

Important
additional role to hear complaints against unions for breach of statute and
breach of rule.

Minor
adjustment to the general duty.

Reporting
period changed from calendar to financial year.

Role
of both offices ended.

Family
Friendly Policies

       
maternity and parental leave        

   (sections 7, 9, schedule 4)

unpaid
time off for urgent family reasons
(sections 8, 9, schedule 4)

 

These
provisions extended  (mainly via
regulation making power)  existing
maternity rights and established (again via a regulation making power) a new
entitlement to 3 months’ parental leave. These provisions, and the right to
unpaid time off for urgent family reasons, have been reviewed in the Green
Paper “Work and Parents: competitiveness and choice”, with changes introduced
in the Employment Act 2002.

Other

fixed
term contracts
(section 18)

This
covered the prohibition of waivers for unfair dismissal.  More wide-ranging changes to the law on
fixed term work were introduced subsequently in the Employment Act 2002 and
subsequent regulations.

         
regulation-making power to

           ensure part-time workers
receive  

           no less favourable treatment than

           full-timers (sections 19 – 21)

Following
full public consultation implementing regulations were made in 2000, with
subsequent small amendments.

National
minimum wage (NMW):
residential members from religious communities and
Inland Revenue enforcement (sections 22, 39)

Relates
only to exempting residential members from religious communities from the
minimum wage, and empowering the Inland Revenue to use tax and other
information to enforce the minimum wage.

employment
status
: regulation-

      making power (section 23)

Regulation
making power to extend employment rights to workers not currently covered. A
discussion document looking at the issue of employment status was published
in July 2002 as part of a separate review.

    Partnership Fund (section 30)

This
gave the authority to establish the Fund. 
The operation of the Fund is being separately reviewed.

employment
agency regulation  

      (section 31, schedule 7)             

Various
provisions including extension of order –making power to regulate employment
agencies, widening prohibition on agencies charging workers, and extension of
powers of inspectors. This area is the subject of a separate review, with
further consultations expected to commence shortly.

employment
outside GB
(section

32)

This
was a minor change removing 
restrictions on the application of certain employment rights to those
who ordinarily work in GB.

compensatory
awards for unfair

dismissal
(sections 33 – 37)

This
increased the limit on compensatory awards for unfair dismissal to £50,000,
plus rationalisation and indexation of other awards.

       

          
TUPE (section 38)

Widening
of the possible scope of TUPE regulations to cover employees involved in
business transfers outside the scope of EU Acquired Rights Directive. This
area has already been reviewed. An announcement on TUPE reform is due to be
made soon.

dismissal
of school staff (
section 40)

This
section brought the qualifying period for claiming unfair dismissal for this
group of staff into line with that for other staff.

security
and intelligence services
  

      (section 41, schedule 8)                   

Allowed
this particular group of workers access to tribunals to make complaints about
breaches of employment law.

Source:
DTI

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