(1) An LME order may include a prohibition, restriction or requirement (each a “measure”) if, and only if, the measure falls within subsection (2) or (3) (or both).
(2) A measure falls within this subsection if it is for the purpose of—
(a) preventing or reducing the risk of the respondent not complying with any requirement imposed by or under the relevant enactment, or
(b) bringing to the attention of persons likely to be interested in the matter—
(i) the existence of the LME order,
(ii) the circumstances in which it was made, and
(iii) any action taken (or not taken) by the respondent in order to comply with the order.
(3) A measure falls within this subsection if it is specified, or is of a description specified, in regulations made by the Secretary of State.
(4) Regulations under subsection (3) are subject to the affirmative resolution procedure.
(5) Where an LME order includes a measure for the purpose mentioned in subsection (2)(a), the order must set out how the measure is expected to achieve that purpose.
(6) In this section “the relevant enactment” means the enactment under which the labour market offence concerned has been or is being committed.
(1) An LME order has effect for the period specified in the LME order.
(2) The maximum period for which an LME order may have effect is two years.
(3) An LME order may not be made against an individual who is under the age of 18.
(4) If a court makes an LME order, the court may also—
(a) release the respondent from any LME undertaking given in relation to the labour market offence concerned;
(b) discharge any other LME order which is in force against the respondent and which was made by—
(i) that court, or
(ii) any other court in the same part of the United Kingdom as that court.
(1) On an application under this section, the appropriate court may by order vary or discharge an LME order.
(2) An application for the variation or discharge of an LME order may be made by—
(a) the respondent, or
(b) the Secretary of State.
(3) An application for an order under this section is—
(a) in England and Wales, to be made by complaint;
(b) in Northern Ireland, to be made by complaint under Part 8 of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)).
(4) In this section “the appropriate court”—
(a) in the case of an LME order made in England and Wales (whether made under section 123 or 125), means a magistrates’ court;
(b) in the case of an LME order made in Scotland, means the sheriff or a summary sheriff;
(c) in the case of an LME order made in Northern Ireland, means a court of summary jurisdiction.
(1) A respondent may appeal against—
(a) the making of an LME order under section 123;
(b) the making of, or refusal to make, an order under section 128.
(2) An appeal under subsection (1) is to be made—
(a) where the order was made or refused by a magistrates’ court in England and Wales, to the Crown Court;
(b) where the order was made or refused by the sheriff or a summary sheriff, to the Sheriff Appeal Court;
(c) where the order was made or refused by a court of summary jurisdiction in Northern Ireland, to a county court.
(3) On an appeal under subsection (1), the court hearing the appeal—
(a) may make such orders as may be necessary to give effect to its determination of the appeal, and
(b) may also make any incidental or consequential orders that appear to it to be just and reasonable.
(4) An LME order that has been varied by virtue of subsection (3) remains an order of the court that first made it for the purposes of section 128.
(5) A respondent may appeal against the making of an LME order under section 125 as if the order were a sentence passed on the respondent for the labour market offence.
(1) This section applies where a person is proposing to exercise—
(a) any enforcement function of the Secretary of State;
(b) any power of an enforcement officer, other than a power by virtue of section 116 (power to bring proceedings in employment tribunal).
(2) The person must, if required to do so, produce identification showing that the person is authorised to exercise that function.
(1) A warrant under section 98 or 102 may be executed by any enforcement officer.
(2) A warrant under section 98 or 102 may authorise persons to accompany any enforcement officer who is executing it.
(3) A person authorised under subsection (2) to accompany an enforcement officer may exercise any power conferred by this Part which the officer may exercise as a result of the warrant.
(4) But the person may exercise such a power only in the company of, and under the supervision of, an enforcement officer.
(5) Schedule 8 contains further provision about—
(a) applications for warrants under section 98 or 102, and
(b) warrants issued under section 98 or 102.
(6) The entry of premises under a warrant issued under section 98 or 102 is unlawful unless it complies with the provisions of Part 3 of that Schedule (execution of warrants).
(1) Nothing in this Part requires a person to produce any document, or provide any information, which the person would be entitled to refuse to produce or provide—
(a) in proceedings in the High Court on the grounds of legal professional privilege, or
(b) in proceedings in the Court of Session on the grounds of confidentiality of communications.
(2) In subsection (1) “communications” means—
(a) communications between a professional legal adviser and the adviser’s client, or
(b) communications made in connection with or in contemplation of legal proceedings or for the purposes of those proceedings.
(1) This section applies where a person provides information in response to a requirement under section 96.
(2) In any criminal proceedings against the person—
(a) no evidence relating to the information may be adduced by or on behalf of the prosecution, and
(b) no question relating to the information may be asked by or on behalf of the prosecution.
(3) Subsection (2) does not apply if, in the proceedings—
(a) evidence relating to the information is adduced by or on behalf of the person providing it, or
(b) a question relating to the information is asked by or on behalf of that person.
(4) Subsection (2) does not apply if the proceedings are for—
(a) an offence under section 140 (providing false information or documents);
(b) an offence under section 5 of the Perjury Act 1911 (false statutory declarations and other false statements without oath);
(c) an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements and declarations);
(d) an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (S.I. 1979/1714 (N.I. 19)) (false statutory declarations and other false unsworn statements).
134 Information relating to the intelligence services, etc
(1) A power conferred by section 96 or 97 may not be exercised in relation to a person serving in an intelligence service unless the Secretary of State certifies that the condition in subsection (3) is met in relation to the power.
(2) A power of entry conferred by this Part may not be exercised in relation to any premises (or any part of premises) used for the purposes of an intelligence service unless the Secretary of State certifies that the condition in subsection (3) is met in relation to the power.
(3) The condition in this subsection is met in relation to a power if the Secretary of State is satisfied that the exercise of the power will not be contrary to the public interest or prejudicial to—
(a) national security,
(b) the prevention or detection of serious crime, or
(c) the economic well-being of the United Kingdom.
(4) A certificate issued under this section in relation to a power may impose conditions on the exercise of the power.
(5) Except as provided for by subsection (1), nothing in this Part requires any person to—
(a) produce any document containing intelligence service information, or
(b) provide any information that is intelligence service information.
(6) For the purposes of this section—
(a) “crime” means conduct which—
(i) constitutes a criminal offence, or
(ii) is, or corresponds to, any conduct which, if it all took place in any one part of the United Kingdom, would constitute a criminal offence;
(b) crime is “serious” if—
(i) the offence which is or would be constituted by the conduct is an offence for which the maximum sentence (in any part of the United Kingdom) is imprisonment for three years or more, or
(ii) the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose;
(c) “intelligence service information” means information obtained directly or indirectly from, or that relates to, an intelligence service or a person acting on behalf of an intelligence service.
(1) In this section—
“civil proceedings function” means a function under or by virtue of section 116 or 117 (powers in relation to civil proceedings);
“enforcement function” means—
an enforcement function of the Secretary of State, or
a power of an enforcement officer (other than a power by virtue of section 116);
“enforcing authority” means the Secretary of State or an enforcement officer.
(2) A person may disclose information to an enforcing authority if the disclosure is made for the purposes of the exercise of an enforcement function or a civil proceedings function.
(3) Information obtained by an enforcing authority in connection with the exercise of an enforcement function or a civil proceedings function—
(a) may be used by an enforcing authority in connection with the exercise of an enforcement function or civil proceedings function;
(b) may be used by the Secretary of State in connection with a function of the Secretary of State under this Part.
(4) The Secretary of State may disclose to a person any information obtained by an enforcing authority in connection with the exercise of an enforcement function or a civil proceedings function if the disclosure is made for a purpose connected with an enforcement function or civil proceedings function or a function of the Secretary of State under this Part.
(5) The Secretary of State may disclose to a person specified in Schedule 9 information obtained in connection with the exercise of an enforcement function or a civil proceedings function if the disclosure is made for the purposes of the exercise of a function of the person.
(6) The Secretary of State may by regulations amend Schedule 9.
(7) Regulations under subsection (6) are subject to the affirmative resolution procedure.
(8) Sections 136 to 138 contain further provision about disclosure of information under this section.
136 Disclosure of information: supplementary provision
(1) A disclosure of information which is authorised by section 135 does not breach—
(a) an obligation of confidence owed by the person making the disclosure, or
(b) any other restriction on the disclosure of information (however imposed).
(2) But nothing in section 135 authorises either of the following—
(a) the making of a disclosure which would contravene the data protection legislation (but in determining whether a disclosure would do so, the power conferred by that section is to be taken into account);
(b) the making of a disclosure which is prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016.
(3) In subsection (2) “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).
(4) Section 135 does not limit the circumstances in which information may be disclosed apart from that section.
(1) HMRC information may not be disclosed by an enforcing authority without authorisation from the Commissioners for His Majesty’s Revenue and Customs (“the Commissioners”).
(2) If an enforcing authority has disclosed HMRC information to a person, that person may not further disclose that information without authorisation from the Commissioners.
(3) Subsections (1) and (2) do not apply to national minimum wage information.
(4) If a person contravenes subsection (1) or (2) by disclosing revenue and customs information relating to a person whose identity—
(a) is specified in the disclosure, or
(b) can be deduced from it,
section 19 of the Commissioners for Revenue and Customs Act 2005 (wrongful disclosure) applies in relation to that disclosure as it applies in relation to a disclosure of such information in contravention of section 20(9) of that Act.
(5) In this section—
“enforcing authority” has the same meaning as in section 135;
“HMRC information” means information disclosed to an enforcing authority under section 135 by the Commissioners or a person acting on behalf of the Commissioners;
“national minimum wage information” means information obtained by an enforcing authority for the purposes of enforcing any provision of the National Minimum Wage Act 1998;
“revenue and customs information relating to a person” has the meaning given by section 19(2) of the Commissioners for Revenue and Customs Act 2005.
138 Restriction on disclosure of intelligence service information
(1) Section 135(2) does not authorise a person to disclose information to an enforcing authority where—
(a) the person is serving in an intelligence service, or
(b) the information is intelligence service information.
But this does not affect the disclosures which a person serving in an intelligence service may make in accordance with intelligence service disclosure arrangements (see subsection (4)).
(2) Intelligence service information may not be disclosed by an enforcing authority without authorisation from the appropriate service chief.
(3) If an enforcing authority has disclosed intelligence service information to a person, that person may not further disclose that information without authorisation from the appropriate service chief.
(4) In this section—
“appropriate service chief” means—
the Director-General of the Security Service, in the case of information obtained from, or relating to, that Service or a person acting on its behalf;
the Chief of the Secret Intelligence Service, in the case of information obtained from, or relating to, that Service or a person acting on its behalf;
the Director of GCHQ, in the case of information obtained from, or relating to, GCHQ or a person acting on its behalf;
“enforcing authority” has the same meaning as in section 135;
“intelligence service disclosure arrangements” means—
arrangements made by the Director-General of the Security Service under section 2(2)(a) of the Security Service Act 1989 about the disclosure of information by that Service;
arrangements made by the Chief of the Intelligence Service under section 2(2)(a) of the Intelligence Services Act 1994 about the disclosure of information by that Service;
arrangements made by the Director of GCHQ under section 4(2)(a) of that Act about the disclosure of information by GCHQ;
“intelligence service information” means information obtained directly or indirectly from, or that relates to, an intelligence service or a person acting on behalf of an intelligence service.
(1) A person in relation to whom an LME order is made commits an offence if the person, without reasonable excuse, fails to comply with the order.
(2) A person guilty of an offence under this section is liable—
(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine, or both;
(b) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum, or both;
(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum, or both;
(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine, or both.
140 Offence of providing false information or documents
(1) A person commits an offence if—
(a) the person produces, or knowingly causes or allows to be produced, any information or document in response to a requirement reasonably made by a person in the exercise of a power conferred by this Part,
(b) the information or document is false in a material respect, and
(c) the person knows that it is or is reckless as to whether it is.
(2) A person guilty of an offence under this section is liable—
(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the maximum term for summary offences or a fine, or both;
(b) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding level 5 on the standard scale, or both;
(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale, or both.
(3) In subsection (2)(a) “the maximum term for summary offences” means—
(a) in the case of an offence committed before the time when section 281(5) of the Criminal Justice Act 2003 comes into force, 6 months;
(b) in the case of an offence committed after that time, 51 weeks.
141 Providing false information or documents: national security etc defence
(1) A person in relation to whom a certificate is issued by the Secretary of State for the purposes of this section is not liable for the commission of an offence under section 140 (offence of providing false information or documents).
(2) The Secretary of State may issue a certificate in relation to a person for the purposes of this section only if satisfied that it is necessary for the person to engage in conduct amounting to such an offence—
(a) in the interests of national security,
(b) for the purposes of preventing or detecting serious crime, or
(c) in the interests of the economic well-being of the United Kingdom.
(3) A certificate under this section may be revoked by the Secretary of State at any time.
(4) For the purposes of subsection (2)(b)—
(a) “crime” means conduct which—
(i) constitutes a criminal offence, or
(ii) is, or corresponds to, any conduct which, if it all took place in any one part of the United Kingdom, would constitute a criminal offence, and
(b) crime is “serious” if—
(i) the offence which is or would be constituted by the conduct is an offence for which the maximum sentence (in any part of the United Kingdom) is imprisonment for three years or more, or
(ii) the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose.
(1) A person commits an offence if the person—
(a) intentionally obstructs a person who is acting in the exercise of an enforcement function, or
(b) without reasonable excuse, fails to comply with any requirement imposed by a person who is acting in the exercise of an enforcement function.
(2) In subsection (1) “enforcement function” means—
(a) an enforcement function of the Secretary of State, or
(b) a power of an enforcement officer, other than a power by virtue of section 116 (power to bring proceedings in employment tribunal).
(3) A person guilty of an offence under this section is liable—
(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the maximum term for summary offences or a fine, or both;
(b) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding level 5 on the standard scale, or both;
(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale, or both.
(4) In subsection (3)(a) “the maximum term for summary offences” means—
(a) in the case of an offence committed before the time when section 281(5) of the Criminal Justice Act 2003 comes into force, 6 months;
(b) in the case of an offence committed after that time, 51 weeks.
(5) Nothing in this section requires a person to answer any question or give any information if to do so might incriminate that person.
(1) The Secretary of State may by regulations make provision requiring a relevant person, or a relevant person of a specified description, to pay a charge as a means of recovering any enforcement costs incurred in relation to the person.
(2) For the purposes of this section—
“enforcement costs”, in relation to a relevant person, means any costs incurred in connection with the exercise of an enforcement function of the Secretary of State in relation to the person;
“relevant person” means a person who has failed to comply with any relevant labour market legislation;
“specified” means specified in the regulations.
(3) Regulations under this section may—
(a) provide that the amount of a charge is—
(i) a fixed amount, or
(ii) an amount calculated by reference to an hourly rate;
(b) provide for the amount of the charge to be determined by the Secretary of State in accordance with the regulations.
(4) The regulations may in particular—
(a) provide that the amount of a charge is to be determined by the Secretary of State in accordance with a scheme made and published by the Secretary of State, and
(b) make provision about such schemes, including the principles governing such schemes.
(5) The provision that may be made by regulations under this section includes, among other things—
(a) provision for charges to be payable only in specified circumstances;
(b) provision about reductions, exemptions and waivers;
(c) provision about how and when charges are to be paid;
(d) provision about the collection or recovery of payments;
(e) provision for the charging of interest on unpaid charges;
(f) provision about the resolution of disputes relating to the payment of charges, including provision for the making of appeals to a court or tribunal.
(6) Regulations under this section are subject to the negative resolution procedure.
(1) If an offence under this Part committed by a body corporate is proved—
(a) to have been committed with the consent or connivance of an officer of the body, or
(b) to be attributable to any neglect on the part of such an officer,
the officer, as well as the body corporate, is guilty of the offence and liable to be proceeded against and punished accordingly.
(2) In subsection (1) “officer”, in relation to a body corporate, means—
(a) a director, manager, secretary or other similar officer of the body;
(b) a person purporting to act in any such capacity.
(3) If the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with the member’s functions of management as if the member were a director of the body corporate.
(1) If an offence under this Part committed by a partner (“P”) of a partnership which is not regarded as a legal person is shown—
(a) to have been committed with the consent or connivance of another partner, or
(b) to be attributable to any neglect on the part of another partner,
that other partner, as well as P, is guilty of the offence and liable to be proceeded against and punished accordingly.
(2) Proceedings for an offence under this Part alleged to have been committed by a partnership which is regarded as a legal person may be brought against the partnership in the firm name.
(3) For the purposes of such proceedings—
(a) rules of court relating to the service of documents have effect as if the partnership were a body corporate, and
(b) the following provisions apply as they apply in relation to a body corporate—
(i) section 33 of the Criminal Justice Act 1925 and Schedule 3 to the Magistrates’ Courts Act 1980;
(ii) sections 34(2), 66(6AA) and 72D(2) of the Criminal Procedure (Scotland) Act 1995;
(iii) section 18 of the Criminal Justice Act (Northern Ireland) 1945 (c. 15 (N.I.)) and Schedule 4 to the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)).
(4) A fine imposed on a partnership on its conviction of an offence under this Part is to be paid out of the funds of the partnership.
(5) If an offence under this Part committed by a partnership is proved—
(a) to have been committed with the consent or connivance of a partner, or
(b) to be attributable to any neglect on the part of a partner,
the partner, as well as the partnership, is guilty of the offence and liable to be proceeded against and punished accordingly.
(6) In subsections (1) and (5) “partner” includes a person purporting to act as a partner.
(7) For the purposes of this section a partnership is, or is not, “regarded as a legal person” if it is, or is not, so regarded under the law of the country or territory under which it was formed.
146 Application of this Part to unincorporated associations
(1) In a case falling within subsection (2), an unincorporated association is to be treated as a legal person for the purposes of this Part.
(2) A case falls within this subsection if it relates to a labour market offence for which it is possible to bring proceedings against an unincorporated association in the name of the association.
(3) Proceedings for an offence under this Part alleged to have been committed by an unincorporated association may be brought against the association in the name of the association.
(4) For the purposes of such proceedings—
(a) rules of court relating to the service of documents have effect as if the association were a body corporate, and
(b) the following provisions apply as they apply in relation to a body corporate—
(i) section 33 of the Criminal Justice Act 1925 and Schedule 3 to the Magistrates’ Courts Act 1980;
(ii) sections 34(2), 66(6AA) and 72D(2) of the Criminal Procedure (Scotland) Act 1995;
(iii) section 18 of the Criminal Justice Act (Northern Ireland) 1945 (c. 15 (N.I.)) and Schedule 4 to the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)).
(5) A fine imposed on the association on its conviction of an offence under this Part is to be paid out of the funds of the association.
(6) If an offence under this Part committed by an unincorporated association is proved—
(a) to have been committed with the consent or connivance of an officer of the association, or
(b) to be attributable to any neglect on the part of such an officer,
the officer, as well as the association, is guilty of the offence and liable to be proceeded against and punished accordingly.
(7) In subsection (6) “officer”, in relation to any association, means—
(a) an officer of the association or a member of its governing body;
(b) a person purporting to act in such a capacity.
147 Application of this Part to the Crown and Parliament
(1) Subject to the provisions of section 134 and this section, this Part is binding on the Crown and applies in relation to any Crown premises as it applies in relation to any other premises.
(2) In this section “Crown premises” means premises held, or used, by or on behalf of the Crown.
(3) No contravention by the Crown of any provision made by this Part is to make the Crown criminally liable; but the High Court or, in Scotland, the Court of Session may declare unlawful any act or omission of the Crown which constitutes such a contravention.
(4) Despite subsection (3), the provisions of this Part apply to persons in the public service of the Crown as they apply to other persons.
(5) If the Secretary of State certifies that it appears appropriate in the interests of national security that powers of entry conferred by this Part should not be exercisable in relation to Crown premises specified in the certificate, those powers are not exercisable in relation to those premises.
(6) No power of entry conferred by this Part may be exercised in relation to—
(a) land belonging to His Majesty in right of His private estates, or
(b) premises occupied for the purposes of either House of Parliament.
(7) In subsection (6)(a), the reference to His Majesty’s private estates is to be read in accordance with section 1 of the Crown Private Estates Act 1862.
(1) The following are abolished—
(a) the Gangmasters and Labour Abuse Authority;
(b) the Director of Labour Market Enforcement.
(2) Accordingly—
(a) in the Gangmasters (Licensing) Act 2004, omit section 1 (the Gangmasters and Labour Abuse Authority);
(b) in Part 1 of the Immigration Act 2016 (labour market and illegal working), omit section 1 (Director of Labour Market Enforcement).
(1) Schedule 10 contains consequential amendments relating to this Part.
(2) Part 1 of Schedule 11 contains provision for the making of schemes for the transfer of staff, property, rights and liabilities from the Gangmasters and Labour Abuse Authority and the Director of Labour Market Enforcement to the Secretary of State.
(3) Part 2 of that Schedule contains other transitional and saving provision for the purposes of this Part.
150 Meaning of “non-compliance with relevant labour market legislation”
(1) For the purposes of this Part, each of the following constitutes “non-compliance with relevant labour market legislation”—
(a) failure to comply with any requirement, restriction or prohibition imposed by or under a provision of relevant labour market legislation;
(b) breach of a condition of a licence granted under section 7 of the Gangmasters (Licensing) Act 2004;
(c) the commission of a labour market offence.
(2) For the purposes of this Part, any requirement to pay a relevant sum within the meaning of Part 2A of the Employment Tribunals Act 1996 is to be treated as a requirement imposed by or under that Part; and a reference to enforcing that Part is to be read accordingly.
(1) In this Part—
“the Advisory Board” means the Advisory Board established under section 93;
“ancillary offence”, in relation to an offence under any provision of relevant labour market legislation, means—
an offence of attempting or conspiring to commit such an offence;
an offence under Part 2 of the Serious Crime Act 2007 in relation to such an offence;
an offence of inciting a person to commit such an offence;
an offence of aiding, abetting, counselling or procuring the commission of such an offence;
“business” includes—
a trade or profession, and
any activity carried on by a body of persons (whether corporate or unincorporated);
“employee” means an individual who is an employee within the meaning of section 230(1) of the Employment Rights Act 1996 or Article 3(1) of the Employment Rights (Northern Ireland) Order 1996 (S.I. 1996/1919 (N.I. 16));
“employer” has the meaning given by subsection (2);
“employers’ association” has the same meaning as in the Trade Union and Labour Relations (Consolidation) Act 1992 (see section 122 of that Act);
“enactment” means an enactment whenever passed or made, and includes—
an enactment contained in subordinate legislation,
an enactment contained in, or in an instrument made under, a Measure or Act of the National Assembly for Wales or an Act of Senedd Cymru,
an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament, and
an enactment contained in, or in an instrument made under, Northern Ireland legislation;
“enforcement function”, in relation to the Secretary of State, has the meaning given by section 91;
“enforcement officer” has the meaning given by section 90(3);
“GCHQ” has the same meaning as in the Intelligence Services Act 1994;
“intelligence service” means—
the Security Service;
the Secret Intelligence Service;
GCHQ;
“labour market offence” means—
an offence under any provision of relevant labour market legislation, or
an ancillary offence relating to such an offence;
“the liable party”, in relation to a notice of underpayment, has the meaning given by section 103(1);
“LME order” has the meaning given by section 123(2);
“LME undertaking” has the meaning given by section 119(3);
“non-compliance with relevant labour market legislation” has the meaning given by section 150; and any reference to a failure to comply with relevant labour market legislation is to be read accordingly;
“notice of underpayment” has the meaning given by section 103(2);
“premises” has the meaning given by subsection (3);
“the relevant day”, in relation to a notice of underpayment, has the meaning given by section 103(1);
“relevant labour market legislation” means the labour market legislation listed in Part 1 of Schedule 7;
“respondent”, in relation to an LME order, has the meaning given by section 123(2);
“statutory pay provision” has the meaning given by section 103(7);
“subject”, in relation to an LME undertaking, has the meaning given by section 119(3);
“subordinate legislation” has the meaning given by section 21(1) of the Interpretation Act 1978;
“trade union” has the same meaning as in the Trade Union and Labour Relations (Consolidation) Act 1992 (see section 1 of that Act);
“underpaid individual”, in relation to a notice of underpayment, has the meaning given by section 103(1);
“worker” (except in section 102) has the meaning given by subsection (5).
(2) In this Part “employer” means any of the following—
(a) an employer within the meaning of section 230(4) of the Employment Rights Act 1996 or Article 3(4) of the Employment Rights (Northern Ireland) Order 1996 (S.I. 1996/1919 (N.I. 16));
(b) a person who is an employer for the purposes of Part 4A of the Employment Rights Act 1996 in relation to a worker mentioned in section 43K(2) of that Act;
(c) a person who is an employer for the purposes of Part 5A of the Employment Rights (Northern Ireland) Order 1996 in relation to a worker mentioned in Article 67K(2) of that Order;
(d) a person who is the principal for the purposes of section 47A or 63A of the Employment Rights Act 1996 or Article 70A or 91A of the Employment Rights (Northern Ireland) Order 1996 (right to time off for young person for study or training);
(e) a person who is—
(i) an employer for the purposes of Chapter 3 or 4 of Part 2A of the Employment Rights Act 1996 (zero hours workers) by virtue of section 27BJ(7) or (as the case may be) 27BP(8) of that Act,
(ii) an employer in relation to a zero hours arrangement within the meaning of Part 2A of that Act (see section 27BZ2(1) of that Act), or
(iii) an employer in relation to a non-contractual zero hours arrangement within the meaning of Article 59A of the Employment Rights (Northern Ireland) Order 1996;
(f) in relation to an individual who is an agency worker within the meaning of Part 2A of the Employment Rights Act 1996—
(i) a person who is the hirer within the meaning of any Part of Schedule A1 to that Act (agency workers: guaranteed hours and rights relating to shifts);
(ii) a work-finding agency within the meaning of Schedule A1 to that Act (see section 27BV(4) of that Act);
(iii) a relevant person within the meaning of section 47I of that Act (agency workers and Schedule A1 rights);
(g) in relation to an individual who is an agency worker within the meaning of the Agency Workers Regulations 2010 (S.I. 2010/93) or the Agency Workers Regulations (Northern Ireland) 2011 (S.R. (N.I.) 2011 No. 350)—
(i) the hirer within the meaning of the relevant Regulations;
(ii) (where the worker is not actually employed by the temporary work agency) the temporary work agency within the meaning of the relevant Regulations;
(h) in relation to an individual seeking to be employed by a person as a worker, that person.
(3) In this Part “premises” includes any place and, in particular, includes—
(a) any vehicle, vessel, aircraft or hovercraft;
(b) any tent or movable structure;
(c) any offshore installation;
(d) any renewable energy installation.
(4) In subsection (3)—
“offshore installation” has the same meaning as in the Mineral Workings (Offshore Installations) Act 1971;
“renewable energy installation” has the meaning given by section 104 of the Energy Act 2004.
(5) In this Part “worker” means any of the following—
(a) a worker within the meaning of section 230(3) of the Employment Rights Act 1996 or Article 3(3) of the Employment Rights (Northern Ireland) Order 1996 (S.I. 1996/1919 (N.I. 16));
(b) an individual who is not a worker as defined by section 230(3) of the Employment Rights Act 1996 but who is a worker for the purposes of Part 4A of that Act (see section 43K(1) of that Act);
(c) an individual who is not a worker as defined by Article 3(3) of the Employment Rights (Northern Ireland) Order 1996 but who is a worker for the purposes of Part 5A of that Order (see Article 67K(1) of that Order);
(d) an individual who—
(i) is a worker for the purposes of Chapter 3 or 4 of Part 2A of the Employment Rights Act 1996 (zero hours workers) by virtue of section 27BJ(7) or (as the case may be) 27BP(8) of that Act,
(ii) works under a zero hours arrangement within the meaning of Part 2A of that Act (see section 27BZ2(1) of that Act), or
(iii) works under a non-contractual zero hours arrangement within the meaning of Article 59A of the Employment Rights (Northern Ireland) Order 1996;
(e) an individual who is an agency worker within the meaning of Part 2A of the Employment Rights Act 1996;
(f) an individual who is an agency worker within the meaning of the Agency Workers Regulations 2010 (S.I. 2010/93) or the Agency Workers Regulations (Northern Ireland) 2011 (S.R. (N.I.) 2011 No. 350);
(g) an individual seeking to be employed by a person as a worker.
Schedule 12 makes amendments for the purpose of increasing time limits for making claims in employment tribunals in Great Britain (and, in certain cases, industrial tribunals in Northern Ireland) from three months to six months.
153 Orders and regulations under Employment Rights Act 1996: procedure
In section 236 of the Employment Rights Act 1996 (orders and regulations), after subsection (4) insert—
(4A) A statutory instrument containing an order or regulations under this Act to which subsection (3) applies may include an order or regulations under this Act to which subsection (3) would not otherwise apply.
(4B) In such a case, the statutory instrument is to be proceeded with as if all of the orders and regulations contained in it were orders or regulations to which subsection (3) applies.
(1) The Secretary of State may by regulations make provision that is consequential on any provision made by this Act.
(2) The power to make regulations under this section may, in particular, be exercised by amending, repealing, revoking or otherwise modifying any provision made by or under primary legislation passed before, or in the same session of Parliament as, this Act.
(3) In this section “primary legislation” means—
(a) an Act of Parliament;
(b) a Measure or Act of the National Assembly for Wales or an Act of Senedd Cymru;
(c) an Act of the Scottish Parliament;
(d) Northern Ireland legislation.
(4) Regulations under this section that amend or repeal any primary legislation are subject to the affirmative resolution procedure.
(5) Any other regulations under this section are subject to the negative resolution procedure.
155 Power to make transitional or saving provision
(1) The Secretary of State may by regulations make such transitional or saving provision as the Secretary of State considers appropriate in connection with the coming into force of any provision of this Act.
(2) Regulations under this section may (among other things)—
(a) make provision in addition to, or different from, that made by this Act;
(b) make any adaptations of any provisions of this Act brought into force that appear to be appropriate in consequence of other provisions of this Act not yet having come into force.
(1) Any power of the Secretary of State or the Welsh Ministers to make regulations under this Act is exercisable by statutory instrument.
(2) For provision about the making of regulations under this Act by the Scottish Ministers, see section 27 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10) (which provides for such regulations to be made by Scottish statutory instrument).
(3) Regulations under this Act may—
(a) make different provision for different purposes or different areas;
(b) contain supplementary, incidental, consequential, transitional or saving provision.
(4) Subsection (3) does not apply to regulations under section 159 (see instead subsection (4) of that section).
(5) Where regulations under this Act are subject to the “negative resolution procedure”—
(a) in the case of regulations of the Secretary of State, the statutory instrument containing the regulations is subject to annulment in pursuance of a resolution of either House of Parliament;
(b) in the case of regulations of the Welsh Ministers, the statutory instrument containing the regulations is subject to annulment in pursuance of a resolution of Senedd Cymru;
(c) in the case of regulations of the Scottish Ministers, the regulations are subject to the negative procedure (see section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10)).
(6) Where regulations under this Act are subject to the “affirmative resolution procedure”—
(a) in the case of regulations of the Secretary of State, the regulations may not be made unless a draft of the statutory instrument containing them has been laid before Parliament and approved by a resolution of each House of Parliament;
(b) in the case of regulations of the Welsh Ministers, the regulations may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, Senedd Cymru;
(c) in the case of regulations of the Scottish Ministers, the regulations are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10)).
(7) Any provision that may be included by a person in an instrument under this Act subject to the negative resolution procedure may be made by the person by regulations subject to the affirmative resolution procedure.
There is to be paid out of money provided by Parliament—
(a) any expenditure incurred under or by virtue of this Act by a person holding office under His Majesty or by a government department, and
(b) any increase attributable to this Act in the sums payable under any other Act out of money so provided.
(1) Except as set out below—
(a) Parts 1, 2 and 4 of this Act extend to England and Wales and Scotland;
(b) in Part 3—
(i) Chapter 1 extends to England and Wales;
(ii) Chapter 2 extends to England and Wales and Scotland;
(iii) Chapter 3 extends to England and Wales, Scotland and Northern Ireland;
(c) Part 5 and this Part extend to England and Wales, Scotland and Northern Ireland.
(2) Sections 12 and 13 (statutory sick pay in Northern Ireland) extend to Northern Ireland only.
(3) Section 32 (public sector outsourcing: protection of workers) extends to England and Wales, Scotland and Northern Ireland.
(4) Except as set out in subsection (5), an amendment, repeal or revocation made by this Act has the same extent within the United Kingdom as the provision amended, repealed or revoked.
(5) In Schedule 12 (increase in time limits for making claims)—
(a) the amendments made by paragraph 9(3) and (4) extend to Northern Ireland only;
(b) the amendments made by paragraphs 10, 12 and 13 extend to England and Wales and Scotland only.
(1) The following provisions of this Act come into force on the day on which this Act is passed—
(a) section 19 (review of extent of right to time off for public duties);
(b) section 37 (guidance about the employment of children on heritage railways);
(c) section 78 (repeal of provision about minimum service levels);
(d) sections 154 to 158, this section and section 160.
(2) The following provisions of this Act come into force at the end of the period of two months beginning with the day on which this Act is passed—
(a) section 61 (political funds: requirement to pass political resolution);
(b) section 62 (requirement to contribute to political fund);
(c) section 63 (deduction of trade union subscriptions from wages in public sector);
(d) section 66 (facility time: publication requirements and reserve powers);
(e) section 67 (blacklists: additional powers);
(f) section 69 (industrial action ballots: support thresholds);
(g) section 70 (industrial action ballots: information to be included in notices to employers);
(h) section 71 (industrial action ballots: information to be included on voting paper);
(i) section 72 (period after which industrial action ballot ceases to be effective);
(j) section 73 (electronic balloting);
(k) section 74 (notice to employers of industrial action);
(l) section 75 (union supervision of picketing);
(m) section 80 (union annual returns: removal of provision about political expenditure);
(n) section 82 (Certification Officer: removal of investigatory powers);
(o) section 83 (Certification Officer: powers to be exercised only on application);
(p) section 84 (Certification Officer: removal of power to impose financial penalties);
(q) section 86 (Certification Officer: appeals to the Employment Appeal Tribunal);
(r) section 87 (employment outside Great Britain);
(s) section 89 (devolved Welsh authorities).
(3) The other provisions of this Act come into force in accordance with regulations made by the Secretary of State.
(4) Regulations under subsection (3) may make different provision for different purposes or different areas.
(5) In deciding whether and when to make regulations under subsection (3) bringing section 68 (industrial action ballots: turnout threshold) into force for any purpose, the Secretary of State must have regard to what effect any provision made after this Act is passed for industrial action ballots to be conducted otherwise than by post has had, or is expected to have, on the proportion of those eligible to vote in such ballots doing so.
(6) The Secretary of State may not make regulations under subsection (3) bringing section 68 into force for any purpose unless the Secretary of State has laid before Parliament a statement as to how the Secretary of State has had regard to any such effect.
(7) In subsection (5) “industrial action ballot” means a ballot for the purposes of section 226 of the Trade Union and Labour Relations (Consolidation) Act 1992 (ballots on industrial action).
Schedule 2 Consequential amendments relating to sections 1 to 5
Section 6
Employment Tribunals Act 1996
2 The Employment Tribunals Act 1996 is amended as follows.
3 (1) Section 12A (financial penalties) is amended as follows.
(2) In subsection (11), in the definition of “employer”, after paragraph (a) insert—
in relation to a right conferred by Chapter 3 or 4 of Part 2A, or section 47H, of the Employment Rights Act 1996, includes a person who is an employer by virtue of section 27BJ(7) or (as the case may be) 27BP(8) of that Act;
in relation to a right conferred by Part 1 or 2 of Schedule A1 to the Employment Rights Act 1996, or Chapter 6 of Part 2A of that Act so far as relating to Part 1 of Schedule A1 to that Act, includes the hirer within the meaning of the relevant Part of that Schedule;
in relation to a right conferred by Part 1, 2 or 3 of Schedule A1 to the Employment Rights Act 1996, includes (where it would not otherwise do so) the work-finding agency within the meaning of the relevant Part of that Schedule;
in relation to a right conferred by section 47I of the Employment Rights Act 1996, includes (where it would not otherwise do so) a person who is a relevant person within the meaning of that section;
.
(3) In that subsection, in the definition of “worker”, for the words from “includes” to the end of the definition substitute
—
includes an individual seeking to be employed by a person as a worker;
in relation to a right conferred by Chapter 3 or 4 of Part 2A, or section 47H, of the Employment Rights Act 1996, includes an individual who is a worker by virtue of section 27BJ(7) or (as the case may be) 27BP(8) of that Act;
in relation to a right conferred by—
Part 1, 2 or 3 of Schedule A1 to the Employment Rights Act 1996,
Chapter 6 of Part 2A of that Act so far as relating to Part 1 of Schedule A1 to that Act, or
includes (where it would not otherwise do so) an agency worker within the meaning of Part 2A of that Act (see section 27BV of that Act).
4 (1) Section 16 (power to provide for recoupment of benefits) is amended as follows.
(2) In subsection (1), after paragraph (d) insert—
(da) payments under section 27BP(1) of, or paragraph 22(1) of Schedule A1 to, the Employment Rights Act 1996,
.
(3) At the end insert—
(7) In the application of this section to payments which are the subject of proceedings under Chapter 2, 3 or 4 of Part 2A of the Employment Rights Act 1996, or Chapter 6 of Part 2A of that Act so far as relating to Chapter 2 of that Part, and which are compensation for loss of wages (see subsection (1)(a))—
(a) references to an employer are to be read as if they were references to an employer within the meaning of the relevant Chapter of that Part;
(b) references to an employee are to be read as if they were references to a worker within the meaning of the relevant Chapter of that Part.
(8) In the application of this section to payments which are the subject of proceedings under Part 1, 2 or 3 of Schedule A1 to the Employment Rights Act 1996, or Chapter 6 of Part 2A of that Act so far as relating to Part 1 of that Schedule, and which are compensation for loss of wages (see subsection (1)(a))—
(a) references to an employer are to be read as if they were references to a hirer or (as the case may be) a work-finding agency within the meaning of the relevant Part of that Schedule;
(b) references to an employee are to be read as if they were references to an agency worker within the meaning of Part 2A of that Act.
(9) In the application of this section to payments under Part 5 of the Employment Rights Act 1996 (see subsection (1)(c)(i)) by virtue of section 47H of that Act—
(a) references to an employer are to be read as if they were references to an employer within the meaning of that section;
(b) references to an employee are to be read as if they were references to a worker within the meaning of that section.
(10) In the application of this section to payments under Part 5 of the Employment Rights Act 1996 (see subsection (1)(c)(i)) by virtue of section 47I of that Act—
(a) references to an employer are to be read as if they were references to a relevant person within the meaning of that section;
(b) references to an employee are to be read as if they were references to an agency worker within the meaning of Part 2A of that Act.
(11) In the application of this section to payments under section 27BP(1) of the Employment Rights Act 1996 (see subsection (1)(da))—
(a) references to an employer are to be read as if they were references to an employer within the meaning of Chapter 4 of Part 2A of that Act;
(b) references to an employee are to be read as if they were references to a worker within the meaning of that Chapter.
(12) In the application of this section to payments under paragraph 22(1) of Schedule A1 to the Employment Rights Act 1996 (see subsection (1)(da))—
(a) references to an employer are to be read as if they were references to a work-finding agency within the meaning of Part 2A of that Act;
(b) references to an employee are to be read as if they were references to an agency worker within the meaning of that Part.
5 In section 18 (conciliation: relevant proceedings), in subsection (1)(b)—
(a) after “23,” insert “27BG, 27BN, 27BT, 27BY(5),”;
(b) after “177 of” insert “, or paragraph 8, 9, 19 or 26 of Schedule A1 to,”.
Employment Rights Act 1996
6 The Employment Rights Act 1996 is amended as follows.
7 In section 27 (meaning of “wages” for purposes of Part 2 of the Act), in subsection (1)—
(a) after the paragraph (ce) inserted by the Neonatal Care (Leave and Pay) Act 2023 insert—
(cf) a payment under section 27BP(1) of this Act (payment for a cancelled, moved or curtailed shift),
;
(b) after paragraph (cf) (inserted by paragraph (a)) insert—
(cg) a payment under paragraph 22(1) of Schedule A1 to this Act (agency workers: payment for a cancelled, moved or curtailed shift),
;
(c) renumber the paragraph (ce) inserted by the Employment (Allocation of Tips) Act 2023 as paragraph (ch).
8 In section 27A (exclusivity terms unenforceable in zero hours contracts), omit subsections (1) and (2).
9 In section 27B (power to make further provision in relation to zero hours workers)—
(a) omit subsection (4);
(b) in subsection (6)(a) and (b) (inserted by section 8), for “prescribed” substitute “specified”;
(c) omit subsections (7) and (8).
10 After section 47G insert—
Zero hours workers and similar
47H (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by the worker’s employer done on the ground that the worker—
(a) accepted, or proposed to accept, an offer from the employer to vary the worker’s terms and conditions of employment or to enter into a new worker’s contract made in compliance (or purported compliance) with the duty imposed by section 27BA(1),
(b) rejected, or proposed to reject, an offer from the employer to vary the worker’s terms and conditions of employment or to enter into a new worker’s contract made in compliance (or purported compliance) with the duty imposed by section 27BA(1),
(c) declined to work a shift (or part of a shift) on the basis of a reasonable belief that the employer failed to comply with a duty imposed by section 27BJ or 27BK in relation to the shift,
(d) brought proceedings against the employer under—
(i) section 27BG,
(ii) section 27BN,
(iii) section 27BT, or
(iv) section 27BY(5), or
(e) alleged the existence of any circumstance which would constitute a ground for bringing any proceedings within paragraph (d) (whether or not the worker referred to the possibility of bringing such proceedings).
(2) The reference in subsection (1)(b) to a worker who rejected an offer includes a reference to a worker who is to be treated as having rejected an offer (see section 27BE(7)).
(3) It is immaterial for the purposes of subsection (1)(d) or (e) whether or not the proceedings were, or would have been, well-founded provided that the worker acted in good faith in bringing the proceedings or alleging the existence of the circumstance.
(4) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by the worker’s employer done on the ground that—
(a) the duty imposed by section 27BA(1) applies to the employer in relation to the worker and a particular reference period, or
(b) the employer believes that that duty so applies.
(5) This section does not apply where—
(a) the worker is an employee, and
(b) the detriment in question amounts to dismissal within the meaning of Part 10.
(6) References to “worker” and “employer” in this section, section 48(1BA) and section 49 so far as relating to a complaint under section 48(1BA) are to be read with the modifications set out in—
(a) section 27BJ(7), in connection with a complaint of detriment in contravention of this section relating to a duty imposed by section 27BJ or 27BK;
(b) section 27BP(8), in connection with a complaint of detriment in contravention of this section relating to a duty imposed by section 27BP(1) or 27BR(2).
(7) In this section “reference period” has the same meaning as in Chapter 2 of Part 2A (see section 27BA(4)).
11 After section 47H (inserted by paragraph 10) insert—
Agency workers and Schedule A1 rights
47I (1) An agency worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by a relevant person done on the ground that the agency worker—
(a) accepted, or proposed to accept, an offer to enter into a worker’s contract made in compliance (or purported compliance) with the duty imposed by paragraph 1(1) of Schedule A1,
(b) rejected, or proposed to reject, an offer to enter into a worker’s contract made in compliance (or purported compliance) with the duty imposed by paragraph 1(1) of Schedule A1,
(c) declined to work a shift (or part of a shift) on the basis of a reasonable belief that there had been a failure to comply with a duty imposed by paragraph 14 or 15 of Schedule A1 in relation to the shift,
(d) brought proceedings under—
(i) paragraph 8 or 9 of Schedule A1,
(ii) paragraph 19 of Schedule A1,
(iii) paragraph 26 of Schedule A1, or
(iv) section 27BY(5), or
(e) alleged the existence of any circumstance which would constitute a ground for bringing any proceedings within paragraph (d) (whether or not the agency worker referred to the possibility of bringing such proceedings).
(2) The reference in subsection (1)(b) to an agency worker who rejected an offer includes a reference to an agency worker who is to be treated as having rejected an offer (see paragraph 6(5) of Schedule A1).
(3) It is immaterial for the purposes of subsection (1)(d) or (e) whether or not the proceedings were, or would have been, well-founded provided that the agency worker acted in good faith in bringing the proceedings or alleging the existence of the circumstance.
(4) An agency worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by a relevant person done on the ground that—
(a) the duty imposed by paragraph 1(1) of Schedule A1 applies in relation to the agency worker and a particular reference period, or
(b) the relevant person believes that that duty so applies.
(5) This section does not apply where—
(a) the worker is an employee of the relevant person, and
(b) the detriment in question amounts to dismissal within the meaning of Part 10.
(6) For the purposes of this section, a person is a “relevant person”, in relation to an agency worker, if the person is (or has been)—
(a) a work-finding agency with which the agency worker has a worker’s contract or an arrangement by virtue of which the agency worker is (or is to be) supplied to work for and under the supervision and direction of another person;
(b) a person for and under the supervision and direction of whom the agency worker is (or is to be) supplied to work;
(c) a person who is (or is to be) involved in the supply of the agency worker to a person falling within paragraph (b) or the payment of the agency worker for work done for such a person.
(7) In this section—
“agency worker” has the same meaning as in Part 2A (see section 27BV);
“reference period” has the same meaning as in Part 1 of Schedule A1 (see paragraph 1(4));
“work-finding agency” has the same meaning as in Part 2A (see section 27BV).
12 (1) Section 48 (enforcement) is amended as follows.
(2) After subsection (1B) insert—
(1BA) A worker may present a complaint to an employment tribunal that the worker has been subjected to a detriment in contravention of section 47H.
(3) After subsection (1BA) (inserted by sub-paragraph (2)) insert—
(1BB) An agency worker (within the meaning of Part 2A) may present a complaint to an employment tribunal that the agency worker has been subjected to a detriment in contravention of section 47I.
(4) In subsection (2), for “or (1B)” substitute “, (1B) or (1BA)”.
(5) After subsection (2A) insert—
(2B) On a complaint under subsection (1BB) it is for the relevant person (within the meaning of section 47I) to show the ground on which any act, or deliberate failure to act, was done.
(6) In subsection (4), in the words after paragraph (b), after “hirer” insert “, or a relevant person (within the meaning of section 47I),”.
(7) In subsection (6), after “49” insert “, except so far as relating to an alleged detriment in contravention of section 47I,”.
13 (1) Section 49 (remedies) is amended as follows.
(2) In subsection (1), for “or (1B)” substitute “, (1B) or (1BA)”.
(3) After subsection (1A) insert—
(1B) Where an employment tribunal finds a complaint under section 48(1BB) well-founded, the tribunal—
(a) must make a declaration to that effect, and
(b) may make an award of compensation to be paid by the relevant person (within the meaning of section 47I) to the complainant in respect of the act or failure to act to which the complaint relates.
(4) In subsection (2), for “and (6)” substitute “, (6), (7) and (7A)”.
(5) In that subsection, after “(7A)” insert “and (7B)”.
(6) After subsection (7) insert—
(7A) Where—
(a) the complaint is made under section 48(1BA),
(b) the detriment to which the worker is subjected is the termination of the worker’s contract, and
(c) that contract is not a contract of employment,
any compensation must not exceed the compensation that would be payable under Chapter 2 of Part 10 if the worker had been an employee and had been dismissed for a reason specified in section 104BA.
(7) After subsection (7A) (inserted by sub-paragraph (6)) insert—
(7B) Where—
(a) the complaint is made under section 48(1BB),
(b) the detriment to which the agency worker is subjected is the termination of a worker’s contract between the agency worker and the relevant person, and
(c) that contract is not a contract of employment,
any compensation must not exceed the compensation that would be payable under Chapter 2 of Part 10 if the agency worker had been an employee and had been dismissed for a reason specified in section 104BB (and “agency worker” and “relevant person” have the same meaning in this subsection as in section 47I).
14 After section 104B insert—
Guaranteed hours
104BA (1) An employee who is dismissed is to be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee—
(a) accepted, or proposed to accept, an offer from the employer to vary the employee’s terms and conditions of employment or to enter into a new contract of employment made in compliance (or purported compliance) with the duty imposed by section 27BA(1), or
(b) rejected, or proposed to reject, an offer from the employer to vary the employee’s terms and conditions of employment or to enter into a new contract of employment made in compliance (or purported compliance) with the duty imposed by section 27BA(1).
(2) The reference in subsection (1)(b) to an employee who rejected an offer includes a reference to an employee who is to be treated as having rejected an offer (see section 27BE(7)).
(3) An employee who is dismissed is also to be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee—
(a) brought proceedings against the employer under section 27BG(4), (5) or (7)(b) or 27BY(5), or
(b) alleged the existence of any circumstance which would constitute a ground for bringing such proceedings (whether or not the employee referred to the possibility of bringing such proceedings).
(In relation to other proceedings under section 27BG, see section 104.)
(4) It is immaterial for the purposes of subsection (3) whether or not the proceedings were, or would have been, well-founded provided that the employee acted in good faith in bringing the proceedings or alleging the existence of the circumstance.
(5) An employee who is dismissed is also to be regarded for the purposes of this Part as unfairly dismissed if—
(a) the duty imposed by section 27BA(1) applies to the employee’s employer in relation to the employee and a particular reference period, or the employer believes that that duty so applies, and
(b) the reason (or, if more than one, the principal reason) for the dismissal is that the employer sought to avoid the necessity of complying with that duty in relation to the employee and that reference period.
(6) In this section, “reference period” has the same meaning as in Chapter 2 of Part 2A (see section 27BA(4)).
15 After section 104BA (inserted by paragraph 14) insert—
Guaranteed hours: agency workers
104BB (1) An employee who is dismissed by a relevant person (who is their employer) is to be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee—
(a) accepted, or proposed to accept, an offer to enter into a worker’s contract made in compliance (or purported compliance) with the duty imposed by paragraph 1(1) of Schedule A1, or
(b) rejected, or proposed to reject, an offer to enter into a worker’s contract made in compliance (or purported compliance) with the duty imposed by paragraph 1(1) of Schedule A1.
(2) The reference in subsection (1)(b) to an employee who rejected an offer includes a reference to an employee who is to be treated as having rejected an offer (see paragraph 6(5) of Schedule A1).
(3) An employee who is dismissed by a relevant person (who is their employer) is also to be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee—
(a) brought proceedings against the employer under paragraph 9(1) or (2) of Schedule A1, or
(b) alleged the existence of any circumstance which would constitute a ground for bringing such proceedings (whether or not the employee referred to the possibility of bringing such proceedings).
(In relation to other proceedings under paragraph 9 of Schedule A1, see section 104.)
(4) It is immaterial for the purposes of subsection (3) whether or not the proceedings were, or would have been, well-founded provided that the employee acted in good faith in bringing the proceedings or alleging the existence of the circumstance.
(5) An employee who is dismissed by a relevant person (who is their employer) is also to be regarded for the purposes of this Part as unfairly dismissed if—
(a) the duty imposed by paragraph 1(1) of Schedule A1 applies in relation to the employee and a particular reference period, or the employer believes that that duty so applies, and
(b) the reason (or, if more than one, the principal reason) for the dismissal is that the employer sought to avoid the necessity of that duty having to be complied with in relation to the employee and the reference period.
(6) In this section—
“reference period” has the same meaning as in Part 1 of Schedule A1 (see paragraph 1(4));
“relevant person” means a person falling within subsection (6)(a) or (c) of section 47I.
16 In section 105 (redundancy)—
(a) after subsection (7B) insert—
(7BZA) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was—
(a) the reason specified in subsection (1)(a) or (5) of section 104BA,
(b) the reason specified in subsection (1)(b) of that section (read with subsection (2) of that section), or
(c) the reason specified in subsection (3) of that section (read with subsection (4) of that section).
;
(b) after subsection (7BZA) (inserted by paragraph (a)) insert—
(7BZB) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was—
(a) the reason specified in subsection (1)(a) or (5) of section 104BB,
(b) the reason specified in subsection (1)(b) of that section (read with subsection (2) of that section), or
(c) the reason specified in subsection (3) of that section (read with subsection (4) of that section).
17 In section 108 (qualifying period of employment), in subsection (3)—
(a) after paragraph (gh) insert—
(gha) any of the following provisions of section 104BA applies—
(i) subsection (1)(a) or (5),
(ii) subsection (1)(b) (read with subsection (2) of that section), or
(iii) subsection (3) (read with subsection (4) of that section),
;
(b) after paragraph (gha) (inserted by paragraph (a)) insert—
(ghb) any of the following provisions of section 104BB applies—
(i) subsection (1)(a) or (5),
(ii) subsection (1)(b) (read with subsection (2) of that section), or
(iii) subsection (3) (read with subsection (4) of that section),
.
18 In section 184 (debts to which Part 12 of the Act (insolvency of employers) applies), in subsection (2), before paragraph (a) insert—
(za) a payment under section 27BP(1) or paragraph 22(1) of Schedule A1,
.
19 In section 192 (armed forces), in subsection (2)(e), after “103” insert “, 104BA, 104BB”.
20 (1) Section 194 (House of Lords staff) is amended as follows.
(2) After subsection (2)(a) insert—
(aza) Part 2A, apart from Chapter 1 of that Part,
.
(3) In subsection (2)(c), for “and 47E” substitute “, 47E and 47H”.
21 (1) Section 195 (House of Commons staff) is amended as follows.
(2) After subsection (2)(a) insert—
(aza) Part 2A, apart from Chapter 1 of that Part,
.
(3) In subsection (2)(c), for “and 47E” substitute “, 47E and 47H”.
22 (1) Section 199 (mariners) is amended as follows.
(2) In subsection (8), for paragraph (b) substitute—
(b) Part 2,
(bza) Part 2A, apart from Chapter 1 of that Part,
(bzb) Parts 2B, 3 and 5,
.
(3) After subsection (8) insert—
(9) In the application of subsection (7) to the provisions mentioned in subsection (8)(bza), the reference in subsection (7)(b) to a contract of employment is to be read as a reference to a worker’s contract.
23 In section 200 (police officers), in subsection (1)—
(a) after “8 to 10,” insert “Chapters 2 to 4 of Part 2A,”;
(b) after “47C,” insert “47H,”.
24 (1) Section 202 (national security restrictions on disclosure of information) is amended as follows.
(2) In subsection (2), after paragraph (a) insert—
(aa) Chapters 2 to 6 of Part 2A (including Schedule A1),
.
(3) In subsection (2)(b), for “and 47C” substitute “, 47C, 47H and 47I”.
(4) In subsection (2)(g)(i)—
(a) for “or 103” substitute “, 103, 104BA or 104BB”;
(b) after “application” insert “in relation to rights conferred by Chapters 2 to 6 of Part 2A (including Schedule A1) or”.
(5) In subsection (2)(g)(ii), for “or (6)” substitute “, (6), (7BZA) or (7BZB)”.
25 (1) Section 205 (remedy for infringement of certain rights) is amended as follows.
(2) In subsection (1), after “section 8,” insert “Chapters 2 to 4 of Part 2A,”.
(3) After subsection (1A) insert—
(1B) In relation to the rights conferred by—
(a) Chapters 2 to 4 of Part 2A, and
(b) section 47H,
the reference in subsection (1) to an employee has effect as a reference to a worker, read (where relevant) in accordance with section 27BJ(7) or 27BP(8) (as the case may be).
(4) After subsection (2) insert—
(3) The remedy of an agency worker (within the meaning of Part 2A) for infringement of any of the rights conferred by Parts 1 to 3 of Schedule A1 and section 47I is, where provision is made for a complaint to an employment tribunal, by way of such a complaint and not otherwise.
26 (1) Section 206 (institution or continuance of tribunal proceedings) is amended as follows.
(2) In subsection (2), after paragraph (a) insert—
(aa) Chapters 2 to 6 of Part 2A (including Schedule A1),
.
(3) After subsection (9) insert—
(10) In the application of this section and section 207 in relation to Chapter 2, 3 or 4 of Part 2A, or Chapter 6 of Part 2A so far as relating to Chapter 2 of that Part, references to an employee are to be read as if they were references to a worker within the meaning of the relevant Chapter of that Part.
(11) In the application of this section and section 207 in relation to Chapter 3 or 4 of Part 2A, references to an employer are to be read as if they were references to an employer within the meaning of the relevant Chapter of that Part.
(12) In the application of this section and section 207 in relation to Chapter 5 of Part 2A (including Schedule A1), or Chapter 6 of Part 2A so far as relating to Part 1 of Schedule A1—
(a) references to an employer are to be read as if they were references to—
(i) a hirer, or
(ii) a work-finding agency, and
(b) references to an employee are to be read as if they were references to an agency worker,
within the meaning of Chapter 5 of Part 2A (including Schedule A1).
(13) In the application of this section and section 207 in relation to section 47H—
(a) references to an employer are to be read as if they were references to an employer within the meaning of that section;
(b) references to an employee are to be read as if they were references to a worker within the meaning of that section.
(14) In the application of this section and section 207 in relation to section 47I—
(a) references to an employer are to be read as if they were references to a relevant person within the meaning of that section;
(b) references to an employee are to be read as if they were references to an agency worker within the meaning of Part 2A.
27 In section 225 (calculation date for purposes of working out a week’s pay), before subsection (1) insert—
(A1) Where the calculation is for the purposes of section 27BI, the calculation date is—
(a) where the complaint is under section 27BG(1), (2), (3) or (7), the latest day of the reference period to which the complaint relates on which the worker was employed by the employer under a worker’s contract;
(b) where the complaint is under section 27BG(8)—
(i) the date on which the complaint was presented to the employment tribunal, or
(ii) if the worker was not employed by the employer under a worker’s contract on that date, the latest day before that date on which the worker was so employed.
(B1) Where the calculation is for the purposes of section 27BI as applied by section 27BY(6)(a) in relation to a complaint under section 27BY(5), the calculation date is the latest day of the reference period to which the complaint relates on which the worker was employed by the employer under a worker’s contract.
28 In section 227 (maximum amount of week’s pay), in subsection (1), before paragraph (zza) insert—
(zzza) an award of compensation under section 27BI(1)(b),
.
29 In section 235 (definitions for purposes of the Act)—
(a) in subsection (1), in paragraph (b) of the definition of “week”, after “86” insert “and paragraph 11 of Schedule A1”;
(b) in subsection (2A) (definition of “limited-term contract”), after “contract of employment” insert “or other worker’s contract”;
(c) in subsection (2B) (definition of “limiting event”), in the words before paragraph (a), after “contract of employment” insert “or other worker’s contract”.
30 In section 236 (orders and regulations), in subsection (3) (regulations subject to affirmative procedure)—
(a) after “27B,” insert “27BA(3)(a)(ii) or (d), (6) or (16), 27BB(2), (5) or (9)(c), 27BD(6), 27BJ(1)(b), (2)(a) or (4), 27BK(3), 27BP(1), (2)(c), (3)(a), (6) or (9), 27BR(1)(c), 27BU(2), 27BZ,”;
(b) after “209,” insert “or under paragraph 1(3)(b), (6) or (11), 2(2), (5) or (7)(c), 5(6), 12(1), 13(3), 14(2), 15(3), 16(4), 22(1), (3) or (5), 24(1)(c) or (2), 26(9), 27(2) or 28(2) of Schedule A1,”.
Schedule 3 Minor and consequential amendments relating to section 25
Section 25(5)
Power to make further consequential amendments
5 (1) The provision that may be made under section 154 (power to make consequential amendments) by any regulations that amend a relevant provision in consequence of the repeal of section 124 of the Employment Rights Act 1996 by section 25(3) includes (among other things)—
(a) provision amending section 34 of the Employment Relations Act 1999 for the purpose of applying that section to a relevant sum;
(b) provision conferring power on the Secretary of State by regulations to vary a relevant limit, in the same manner and to the same extent as the power conferred by section 15 of the Enterprise and Regulatory Reform Act 2013 to vary the limit imposed by section 124(1) of the Employment Rights Act 1996 (but see sub-paragraph (4));
(c) provision that is consequential on provision within paragraph (a) or (b).
(2) For the purposes of this paragraph—
(a) “relevant provision” means—
(i) a provision listed in sub-paragraph (3), or
(ii) any other provision that limits the amount of compensation payable by virtue of the provision by reference to the limit imposed by section 124 of the Employment Rights Act 1996;
(b) “relevant sum” means a sum specified in a relevant provision, in consequence of the repeal of that section, for the purposes of limiting the amount of compensation payable by virtue of the provision;
(c) “relevant limit” means a limit on the amount of compensation payable by virtue of a relevant provision that is specified in the provision in consequence of that repeal;
(d) the reference in sub-paragraph (1)(b) to section 15 of the Enterprise and Regulatory Reform Act 2013 is a reference to that section as it had effect immediately before the coming into force of paragraph 3.
(3) The provisions referred to in sub-paragraph (2)(a)(i) (each of which limits the amount of compensation payable by virtue of the provision by reference to the limit imposed by section 124 of the Employment Rights Act 1996) are—
(a) section 67 of the Trade Union and Labour Relations (Consolidation) Act 1992 (right not to be unjustifiably disciplined by trade union: remedies for infringement);
(b) section 140 of that Act (remedies for refusal of employment, etc on grounds related to union membership);
(c) section 176 of that Act (right not to be excluded or expelled from trade union: remedies);
(d) paragraph 160 of Schedule A1 to that Act (trade union recognition: enforcement of right not to be subjected to detriment);
(e) section 49 of the Employment Rights Act 1996 (protection from suffering detriment in employment: remedies), so far as relating to subsection (5A), (7), (7A) or (7B) of that section;
(f) section 24 of the National Minimum Wage Act 1998 (enforcement of right not to be subjected to detriment), so far as relating to employment tribunals in Great Britain;
(g) section 56 of the Pensions Act 2008 (pension scheme membership: enforcement of right not to be subjected to detriment);
(h) regulation 4 of the Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 (S.I. 2015/2021) (enforcement of right not to be subjected to detriment);
(i) regulation 9 of the Exclusivity Terms for Zero Hours Workers (Unenforceability and Redress) Regulations 2022 (S.I. 2022/1145) (enforcement of right not to be subjected to detriment).
(4) The power that may be conferred by provision made by virtue of sub-paragraph (1)(b) includes power to specify different amounts in relation to different descriptions of persons by whom compensation is payable by virtue of a relevant provision.
(5) The power to make regulations under section 154 is to be regarded as including power to make provision amending section 49(7A) or (7B) of the Employment Rights Act 1996, as inserted by paragraph 13 of Schedule 2, in consequence of the repeal of section 124 of the Employment Rights Act 1996 regardless of whether that repeal comes into force before or after the day on which that paragraph is brought into force for any purpose.
Schedule 5 Seafarers’ wages and working conditions
Section 56
Amendment of Seafarers’ Wages Act 2023
1 The Seafarers’ Wages Act 2023 (“the Act”) is amended in accordance with paragraphs 2 to 23.
Part 1 of the Act: relevant services
2 For the italic heading before section 1 substitute—
Part 1
Relevant services
.
3 In section 1 (services to which this Act applies)—
(a) for the heading substitute “Relevant services”;
(b) in subsection (1), for “This Act applies to” substitute “In this Act, “relevant service” means”;
(c) in subsection (2), for “this Act does not apply to” substitute ““relevant service” does not include”;
(d) for subsection (4) substitute—
(4) In this Act, “ship”—
(a) includes—
(i) any kind of vessel used in navigation, and
(ii) hovercraft;
(b) includes a ship which is registered in a State other than the United Kingdom.
Chapter 1 of Part 2 of the Act: non-qualifying seafarers
4 After section 1 insert—
Part 2
Remuneration of seafarers
Chapter 1
Non-qualifying seafarers
.
5 In section 2 (non-qualifying seafarers), in paragraph (a), for “service to which this Act applies” substitute “relevant service”.
Chapter 2 of Part 2 of the Act: national minimum wage equivalence declarations
6 For the italic heading before section 3 substitute—
Chapter 2
National minimum wage equivalence declarations
.
7 In section 3 (request for declaration)—
(a) in the heading, after “for” insert “equivalence”;
(b) in subsection (1)—
(i) for “Act applies” substitute “Chapter applies (see subsection (4A))”;
(ii) at the end insert “(see section 19 for the meaning of “relevant year”)”;
(c) after subsection (4) insert—
(4A) This Chapter applies to a relevant service, subject to provision made by remuneration regulations in reliance on section 4A(6).
;
(d) omit subsections (5) and (6).
8 In section 4 (nature of declaration)—
(a) in the heading, after “of” insert “equivalence”;
(b) after subsection (5) insert—
(5A) For the meaning of “UK work”, see section 19.
(5B) For the meaning of “national minimum wage equivalent”, see section 4D(1).
;
(c) omit subsections (6) to (10).
Chapters 3 and 4 of Part 2 of the Act: remuneration regulations and declarations
9 After section 4 insert—
Chapter 3 Remuneration regulations and declarations
Remuneration regulations
Remuneration regulations
4A (1) Regulations may specify requirements relating to the remuneration of non-qualifying seafarers in respect of their work carried out in relation to the provision of a relevant service (whether or not in the territorial waters of the United Kingdom).
(2) In this Act, regulations under subsection (1) are referred to as “remuneration regulations”.
(3) Remuneration regulations may relate to remuneration in respect of only some of the work carried out in relation to the provision of a relevant service, and may frame such provision by reference to the waters in which the work is carried out or in any other way.
(4) Remuneration regulations may apply to—
(a) all relevant services, or
(b) one or more relevant services of a specified description.
(5) For the purposes of subsection (4)(b), a service may be described by reference to (among other things) the route operated by the service.
(6) Remuneration regulations may provide that Chapter 2 does not apply to any extent to a relevant service to which the regulations apply.
Remuneration declarations
Request for remuneration declaration
4B (1) Subsection (2) applies where a harbour authority has reasonable grounds to believe that ships providing a service to which remuneration regulations apply will enter, or have entered, its harbour on at least—
(a) 120 occasions, or
(b) if remuneration regulations specify a higher number in relation to services of a specified description and the service is of that description, that higher number of occasions,
during a relevant year (see section 19 for the meaning of “relevant year”).
(2) The harbour authority must, within such period as is determined by regulations under this subsection, request that the operator of the service provide the authority with a remuneration declaration in respect of the service for the relevant year.
(3) The duty under subsection (2) is subject to any direction given by the Secretary of State under section 16(1)(a).
(4) A harbour authority which fails to comply with subsection (2) is guilty of an offence and liable on summary conviction—
(a) in England and Wales, to a fine, or
(b) in Scotland and Northern Ireland, to a fine not exceeding level 5 on the standard scale.
Nature of remuneration declaration
4C (1) A remuneration declaration in respect of a service for a relevant year is a declaration within any of subsections (2) to (5).
(2) A declaration is within this subsection if it is provided before the beginning of the relevant year and it is to the effect that—
(a) in the relevant year there will be no non-qualifying seafarers working on ships providing the service, or
(b) in the relevant year non-qualifying seafarers working on ships providing the service will be remunerated in respect of their work in relation to the service in accordance with the remuneration regulations that apply in relation to them.
(3) A declaration is within this subsection if it is provided during the relevant year and it is to the effect that—
(a) in what remains of the relevant year there will be no non-qualifying seafarers working on ships providing the service, or
(b) in what remains of the relevant year non-qualifying seafarers working on ships providing the service will be remunerated in respect of their work in relation to the service in accordance with the remuneration regulations that apply in relation to them.
(4) A declaration is within this subsection if it is provided during the relevant year and it is to the effect that—
(a) in so much of the relevant year as has already occurred—
(i) there have been no non-qualifying seafarers working on ships providing the service, or
(ii) non-qualifying seafarers working on ships providing the service have been remunerated in respect of their work in relation to the service in accordance with the remuneration regulations that apply in relation to them, and
(b) in what remains of the relevant year—
(i) there will be no non-qualifying seafarers working on ships providing the service, or
(ii) non-qualifying seafarers working on ships providing the service will be remunerated in respect of their work in relation to the service in accordance with the remuneration regulations that apply in relation to them.
(5) A declaration is within this subsection if it is provided after the end of the relevant year and it is to the effect that—
(a) in the relevant year there were no non-qualifying seafarers working on ships providing the service, or
(b) in the relevant year non-qualifying seafarers working on ships providing the service were remunerated in respect of their work in relation to the service in accordance with the remuneration regulations that apply in relation to them.
Chapter 4 Chapters 2 and 3: supplementary regulations
Regulations about national minimum wage equivalent etc
4D (1) For the purposes of this Part, the national minimum wage equivalent is an hourly rate specified in regulations.
(2) Regulations may make provision for determining for the purposes of this Part—
(a) the hourly rate at which a non-qualifying seafarer is remunerated in any period in respect of any work, and
(b) whether, or the extent to which, a non-qualifying seafarer’s work in relation to a relevant service is UK work.
(3) Regulations under subsection (2)(a) may in particular make—
(a) any provision referred to in section 2(2) to (6) of the National Minimum Wage Act 1998;
(b) provision relating to currency conversion.
(4) Subsection (5) applies for the purposes of—
(a) section 4, and
(b) remuneration regulations that are framed by reference to the national minimum wage equivalent.
(5) The Secretary of State must in making regulations under this section seek to secure that a non-qualifying seafarer is remunerated at a rate equal to the national minimum wage equivalent only if their remuneration is in all the circumstances broadly equivalent to the remuneration they would receive if they qualified for the national minimum wage.
Part 3 of the Act: seafarers’ working conditions
10 After section 4D (inserted by paragraph 9 of this Schedule) insert—
Part 3 Seafarers’ working conditions
Safe working regulations
Safe working regulations
4E (1) In this Part, “seafarer” means a person who works on a ship providing a relevant service.
(2) Regulations may specify conditions relating to the working pattern and rest requirements of seafarers who carry out work relating to the provision of a relevant service, including conditions about—
(a) their maximum periods of work in a specified period;
(b) their minimum periods of rest in a specified period.
(3) Regulations may make provision for the purpose of managing and mitigating risks arising from fatigue suffered by seafarers when carrying out their work relating to the provision of a relevant service.
(4) Regulations under subsection (3) may, among other things—
(a) require the operator of a relevant service to produce a plan to manage and mitigate risks arising from fatigue suffered by seafarers when carrying out their work relating to the provision of the service (a “fatigue management plan”);
(b) make provision about the contents of such a plan by reference to a specified document as amended from time to time.
(5) Regulations may make provision for and in connection with the training of seafarers who carry out work relating to the provision of a relevant service, for the purpose of ensuring—
(a) the safety of the ship on which they work,
(b) the safety of things on the ship, or
(c) the health or safety of persons on the ship.
(6) In this Act, regulations under subsection (2), (3) or (5) are referred to as “safe working regulations”.
(7) Safe working regulations may impose requirements on the operator of a relevant service.
(8) Safe working regulations may apply to—
(a) all relevant services, or
(b) one or more relevant services of a specified description.
(9) For the purposes of subsection (8)(b), a service may be described by reference to (among other things) the route operated by the service.
Safe working declarations
Request for safe working declaration
4F (1) Subsection (2) applies where a harbour authority has reasonable grounds to believe that ships providing a service to which safe working regulations apply will enter, or have entered, its harbour on at least—
(a) 120 occasions, or
(b) if safe working regulations specify a higher number in relation to services of a specified description and the service is of that description, that higher number of occasions,
during a relevant year (see section 19 for the meaning of “relevant year”).
(2) The harbour authority must, within such period as is determined by regulations under this subsection, request that the operator of the service provide the authority with a safe working declaration in respect of the service for the relevant year.
(3) The duty under subsection (2) is subject to any direction given by the Secretary of State under section 16(1)(a).
(4) A harbour authority which fails to comply with subsection (2) is guilty of an offence and liable on summary conviction—
(a) in England and Wales, to a fine, or
(b) in Scotland and Northern Ireland, to a fine not exceeding level 5 on the standard scale.
Nature of safe working declaration
4G (1) A safe working declaration in respect of a service for a relevant year is a declaration within any of subsections (2) to (5).
(2) A declaration is within this subsection if it is provided before the beginning of the relevant year and it is to the effect that the safe working conditions will be met in relation to the service in the relevant year.
(3) A declaration is within this subsection if it is provided during the relevant year and it is to the effect that the safe working conditions will be met in relation to the service in what remains of the relevant year.
(4) A declaration is within this subsection if it is provided during the relevant year and it is to the effect that—
(a) the safe working conditions have been met in relation to the service in so much of the relevant year as has already occurred, and
(b) the safe working conditions will be met in relation to the service in what remains of the relevant year.
(5) A declaration is within this subsection if it is provided after the end of the relevant year and it is to the effect that the safe working conditions were met in relation to the service in the relevant year.
(6) For the purposes of this section the safe working conditions are met in relation to a service at a particular time if at that time—
(a) the service is operated in compliance with regulations under section 4E(2) or (3) that apply to the service,
(b) the service is operated in compliance with a fatigue management plan that is required for the service by regulations under section 4E(3) (see section 4E(4)), and
(c) the service is operated in compliance with regulations under section 4E(5) that apply to the service.
(7) References in subsection (6) to the operation of a service include references to its operation outside the territorial waters of the United Kingdom.
Part 4 of the Act: enforcement of Parts 2 and 3
11 After section 4G (inserted by paragraph 10 of this Schedule) insert—
Part 4
Enforcement of Parts 2 and 3
Offence of operating service inconsistently with declaration
.
12 In section 5 (offence of operating service inconsistently with declaration)—
(a) in subsection (1)—
(i) for “service to which this Act applies” substitute “relevant service”;
(ii) in paragraph (a), for “an equivalence declaration” substitute “a declaration”;
(b) in subsections (2), (3) and (4), omit “equivalence”.
13 (1) Section 6 (imposition of surcharges: failure to provide declaration in time) is amended as follows.
(2) In subsection (1)(a)—
(a) for “service to which this Act applies” substitute “relevant service”;
(b) for “an equivalence declaration” substitute “a declaration”.
(3) In subsection (1)(b), for “an equivalence declaration” substitute “the requested declaration”.
(4) In subsection (2)(b)(ii), for “an equivalence declaration” substitute “the requested declaration”.
(5) In subsection (3)(b)(ii), for “an equivalence declaration” substitute “the requested declaration”.
(6) In subsection (5)(a), for “an equivalence declaration” substitute “the requested declaration”.
(7) In subsection (5)(b), for “section 4(4) or (5).” substitute
—
(i) section 4(4) or (5),
(ii) section 4C(4) or (5), or
(iii) section 4G(4) or (5),
(whichever applies).
(8) In subsection (6)—
(a) for “an equivalence declaration” substitute “a declaration”;
(b) in the definition of “prescribed period”, for “3(5)(a)” substitute “16A(1)(a)”;
(c) in the definition of “prescribed form and manner”, for “3(5)(b) and (c)” substitute “16A(1)(b) and (c)”.
14 In section 7 (imposition of surcharges: in-year declaration that is prospective only), in subsection (1)—
(a) in paragraph (a)—
(i) for “service to which this Act applies” substitute “relevant service”;
(ii) for “an equivalence declaration” substitute “a declaration”;
(b) in paragraph (b), for “3(5)” substitute “16A(1)”;
(c) in paragraph (c), for the words from “within subsection (3)” to the end substitute
—
(i) within subsection (3) of section 4 (and not also within subsection (4) of that section),
(ii) within subsection (3) of section 4C (and not also within subsection (4) of that section), or
(iii) within subsection (3) of section 4G (and not also within subsection (4) of that section),
(whichever applies).
15 (1) Section 8 (imposition of surcharges: operating inconsistently with declaration) is amended as follows.
(2) In subsection (1)(a)—
(a) for “service to which this Act applies” substitute “relevant service”;
(b) for “an equivalence declaration” substitute “a declaration”.
(3) In subsection (3), after “equivalence declaration” insert “, remuneration declaration or safe working declaration (as the case may be)”.
(4) In subsection (4)(a)—
(a) for “service to which this Act applies” substitute “relevant service”;
(b) for “an equivalence declaration” substitute “a declaration”.
(5) In subsection (6), after “equivalence declaration” insert “, remuneration declaration or safe working declaration (as the case may be)”.
16 In section 11 (refusal of harbour access for failure to pay surcharge), in subsection (1), for “service to which this Act applies” substitute “relevant service”.
17 (1) Section 12 (provision of information by operators) is amended as follows.
(2) In subsection (1)—
(a) for “service to which this Act applies” substitute “relevant service”;
(b) in paragraphs (a) and (b), for “an equivalence declaration” substitute “a declaration”.
(3) In subsection (2)—
(a) in paragraph (b), at the beginning insert “for the purposes of Part 2,”;
(b) after paragraph (b) insert—
(c) for the purposes of Part 3—
(i) information relating to the working pattern, working conditions or training of persons working on ships providing the service;
(ii) a fatigue management plan produced by the operator of the service (see section 4E(4)(a)).
(4) In subsection (5), for “service to which this Act applies” substitute “relevant service”.
18 In section 13 (provision of information by harbour authorities), in subsection (2)(b), omit “equivalence”.
19 In section 14 (inspections), in subsection (2)—
(a) in paragraph (a), for “service to which this Act applies” substitute “relevant service”;
(b) in paragraphs (a) and (b), for “an equivalence declaration” substitute “a declaration”.
Part 5 of the Act: general and final provisions
20 After section 15 insert—
Part 5
General and final provisions
.
21 After section 16 insert—
Regulations about declarations
16A (1) Regulations may make provision—
(a) as to the period within which declarations are to be provided;
(b) as to the wording of declarations and the form in which they are to be provided;
(c) as to the manner in which declarations are to be provided.
(2) Regulations under subsection (1)(b) may specify a single form combining different kinds of declarations (but a requirement to provide a declaration in such a form does not require an operator of a service to provide a declaration which a harbour authority has not requested the operator to provide).
22 In section 17 (regulations)—
(a) in the heading, at the end insert “: general”;
(b) in subsection (2)(a), for sub-paragraph (i) (but not the “or” after it) substitute—
(i) relevant service,
.
23 (1) Section 19 (general interpretation) is amended as follows.
(2) After the definition of “the data protection legislation” insert—
“declaration” (without more) means—
an equivalence declaration,
a remuneration declaration, or
a safe working declaration;
.
(3) Omit the definition of “national minimum wage equivalent”.
(4) In the definition of “operator”, for “service to which this Act applies” substitute “relevant service”.
(5) After the definition of “operator” insert—
“relevant service” has the meaning given by section 1;
.
(6) In the definition of “relevant year”, for “has the meaning given by section 3(6);” substitute
means—
the period of 12 months beginning with a date specified in regulations, and
each successive period of 12 months;
.
(7) After the definition of “relevant year” insert—
“remuneration declaration” has the meaning given by section 4C(1);
“remuneration regulations” has the meaning given by section 4A(2);
“safe working declaration” has the meaning given by section 4G(1);
“safe working regulations” has the meaning given by section 4E(6);
.
(8) In the definition of “UK work”, for “has the meaning given by section 4(10)” substitute “means work which is carried out in the United Kingdom or its territorial waters”.
Amendment of title of the Act
24 (1) The Seafarers’ Wages Act 2023 may be cited as the Seafarers (Wages and Working Conditions) Act 2023.
(2) For the words “Seafarers’ Wages Act 2023” wherever they occur in any enactment substitute “Seafarers (Wages and Working Conditions) Act 2023”.
Section 60
Part 1 Introduction
1 Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 is amended in accordance with Parts 2 to 5 of this Schedule.
2 Part 6 of this Schedule contains consequential amendments to the Employment Relations Act 2004.
Part 2 Recognition
Meaning of “the application day”
3 In paragraph 2 (interpretation of Part 1 of Schedule A1), after sub-paragraph (5) insert—
(6) In relation to an application under paragraph 11 or 12, a reference to the application day is to the day on which the CAC receives the application.
Acceptance of applications
4 After paragraph 13 insert—
13A (1) This paragraph applies if—
(a) the CAC has received an application under paragraph 11 or 12, and
(b) it has given notice to the employer under paragraph 13 of receipt of the application.
(2) The employer must comply with the following duties (so far as it is reasonable to expect the employer to do so).
(3) The duties are—
(a) to give to the CAC, within the relevant period, the specified information in relation to each of the relevant workers;
(b) if the relevant workers change as a result of an appropriate bargaining unit being agreed by the parties or decided by the CAC, to give to the CAC, within the relevant period, the specified information in relation to each of those who are now the relevant workers;
(c) to take reasonable steps to ensure that the information given to the CAC under paragraph (a) or (b) does not include any information relating to an individual who is not a relevant worker;
(d) to inform the CAC, as soon as reasonably practicable, of any worker in relation to whom information has been given to the CAC under paragraph (a) or (b) and who ceases to be a relevant worker (otherwise than by reason of a change mentioned in paragraph (b)).
(4) The relevant period is—
(a) in the case of the duty in sub-paragraph (3)(a)—
(i) the period of 5 working days starting with the day after that on which notice was given to the employer of receipt of the application, or
(ii) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension;
(b) in the case of the duty in sub-paragraph (3)(b)—
(i) the period of 5 working days starting with the day after that on which the bargaining unit is agreed or the CAC’s decision is notified to the employer, or
(ii) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension.
(5) The specified information, in relation to a relevant worker, is—
(a) the worker’s name;
(b) the worker’s date of birth;
(c) the category of worker to which the relevant worker belongs.
(6) In the case of an application under paragraph 11(2) or 12(2), the relevant workers are—
(a) in relation to any time before an appropriate bargaining unit is agreed by the parties or decided by the CAC, those falling within the proposed bargaining unit, and
(b) in relation to any time after an appropriate bargaining unit is so agreed or decided, those falling within the bargaining unit agreed or decided upon,
but excluding any worker who joined the bargaining unit after the application day.
(7) In the case of an application under paragraph 12(4), the relevant workers are those falling within the bargaining unit agreed by the parties, excluding any worker who joined the bargaining unit after the application day.
13B (1) Sub-paragraph (2) applies if—
(a) the CAC is satisfied that the employer has failed to fulfil a duty mentioned in paragraph 13A(3), and
(b) the application under paragraph 11 or 12 is in progress.
(2) The CAC may order the employer—
(a) to take such steps to remedy the failure as the CAC considers reasonable and specifies in the order, and
(b) to do so within such period as the CAC considers reasonable and specifies in the order;
and in this paragraph a “remedial order” means an order under this sub-paragraph.
(3) If—
(a) the CAC is satisfied that the employer has failed to comply with a remedial order, and
(b) the application under paragraph 11 or 12 is in progress,
the CAC must, as soon as reasonably practicable, notify the employer and the union (or unions) that it is satisfied that the employer has failed to comply.
(4) A remedial order and a notice under sub-paragraph (3) must draw the recipient’s attention to the effect of sub-paragraphs (5) and (6).
(5) Sub-paragraph (6) applies if—
(a) the CAC is satisfied that the employer has failed to comply with a remedial order,
(b) the application under paragraph 11 or 12 is in progress,
(c) the parties have agreed an appropriate bargaining unit or the CAC has decided an appropriate bargaining unit, and
(d) in the case of an application under paragraph 11(2) or 12(2), the CAC, if required to do so, has decided under paragraph 20 that the application is not invalid.
(6) The CAC may issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit.
(7) For the purposes of this paragraph, an application under paragraph 11 or 12 is in progress if none of the following has occurred—
(a) the withdrawal of the application;
(b) the CAC giving notice of a decision under paragraph 14(7) which precludes it from accepting the application;
(c) the CAC giving notice under paragraph 15(4)(a) in relation to the application;
(d) the CAC giving notice to the union (or unions) of a decision under paragraph 20 that the application is invalid;
(e) the CAC giving notice to the union (or unions) of a declaration issued under paragraph 13B(6), 19F(5), 19K(4) or (5), 19P(4) or (5), 22(2) or 27(2) in relation to the application;
(f) the holding of any ballot arising from the application.
5 (1) Paragraph 14 (acceptance of applications: multiple applications) is amended as follows.
(2) After sub-paragraph (1) insert—
(1A) For the purposes of sub-paragraph (1)(b), any worker who joined any of the relevant bargaining units after the application day is to be disregarded.
(3) In sub-paragraph (4), for “10 per cent test” substitute “required percentage test”.
(4) In sub-paragraph (5)—
(a) for “10 per cent test” substitute “required percentage test”;
(b) for “at least 10 per cent” substitute “at least the required percentage (see paragraph 171B)”.
(5) After sub-paragraph (5) insert—
(5A) For the purposes of sub-paragraph (5), any worker who joined the relevant bargaining unit after the application day is to be disregarded.
(6) In sub-paragraph (7)—
(a) in paragraph (a), for “10 per cent test” substitute “required percentage test”;
(b) in paragraph (b), for “10 per cent test” substitute “required percentage test”.
(7) In sub-paragraph (8), for “10 per cent test” substitute “required percentage test”.
Withdrawal of application
6 In paragraph 16 (withdrawal of application), in sub-paragraph (1)(a), for “19F(5)” substitute “13B(6), 19F(5), 19K(4) or (5), 19P(4) or (5)”.
Notice to cease consideration of application
7 In paragraph 17 (notice to cease consideration of application), in sub-paragraph (3)(a), for “19F(5)” substitute “13B(6), 19F(5), 19K(4) or (5), 19P(4) or (5)”.
Communication with workers through independent person after application
8 (1) Paragraph 19C (appointment of independent person to handle communications between union and workers) is amended as follows.
(2) After sub-paragraph (2) insert—
(2A) An application under sub-paragraph (2) is valid only if it is made before the end of the period of 5 working days starting with the day after the day on which the CAC gives the union (or unions) notice under paragraph 15(5) that the application mentioned in sub-paragraph (1) is accepted.
(3) In sub-paragraph (5)(c), for “19F(5)” substitute “13B(6), 19F(5), 19K(4) or (5), 19P(4) or (5)”.
(4) In sub-paragraph (7), for “an application” substitute “a valid application”.
Access agreements
9 After paragraph 19F insert—
Access agreements
19G (1) This paragraph applies if—
(a) the CAC accepts an application under paragraph 11(2) or 12(2) or (4), and
(b) the application is in progress.
(2) The union (or unions) may, by giving notice to the CAC and the employer within the access request period, request access to the relevant workers in connection with the application.
(3) In the case of an application under paragraph 11(2) or 12(2), the relevant workers are—
(a) in relation to any time before an appropriate bargaining unit is agreed by the parties or decided by the CAC, those falling within the proposed bargaining unit, and
(b) in relation to any time after an appropriate bargaining unit is so agreed or decided, those falling within the bargaining unit agreed or decided upon.
(4) In the case of an application under paragraph 12(4), the relevant workers are those falling within the bargaining unit agreed by the parties.
(5) The access request period is the period of 5 working days starting with the day after the day on which the CAC gives the union (or unions) notice under paragraph 15(5) that the application is accepted.
(6) For the purposes of this paragraph and paragraphs 19H to 19K, an application under paragraph 11 or 12 is in progress if none of the following has occurred—
(a) the withdrawal of the application;
(b) the CAC giving notice to the union (or unions) of a decision under paragraph 20 that the application is invalid;
(c) the CAC giving notice to the union (or unions) of a declaration issued under paragraph 13B(6), 19F(5), 19K(4) or (5), 19P(4) or (5), 22(2) or 27(2) in relation to the application;
(d) the holding of any ballot arising from the application.
19H (1) This paragraph applies if—
(a) the CAC accepts an application under paragraph 11(2) or 12(2) or (4),
(b) the union requests (or unions request) access to the relevant workers under paragraph 19G(2) in connection with the application, and
(c) the application is in progress.
(2) The CAC must try to help the parties to reach agreement within the negotiation period as to terms on which the union is (or unions are) to have access to the relevant workers.
(3) The negotiation period is, subject to any notice under sub-paragraph (4) or (6)—
(a) the period of 20 working days starting with the day after the day on which the CAC gives the union (or unions) notice under paragraph 15(5) that the application is accepted, or
(b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension.
(4) If, during the negotiation period, the CAC concludes that there is no reasonable prospect of the parties’ agreeing terms on which the union is (or unions are) to have access to the relevant workers before the time when (apart from this sub-paragraph) the negotiation period would end, the CAC may, by a notice given to the parties, declare that the negotiation period ends with the date of the notice.
(5) A notice under sub-paragraph (4) must contain reasons for reaching the conclusion mentioned in that sub-paragraph.
(6) If, during the negotiation period, the parties apply to the CAC for a declaration that the negotiation period is to end with a date (specified in the application) which is earlier or later than the date with which it would otherwise end, the CAC may, by a notice given to the parties, declare that the negotiation period ends with the specified date.
19I (1) This paragraph applies if—
(a) the CAC accepts an application under paragraph 11(2) or 12(2) or (4),
(b) the union requests (or unions request) access to the relevant workers under paragraph 19G(2) in connection with the application,
(c) the parties have not within the negotiation period agreed terms on which the union is (or unions are) to have access to the relevant workers, and
(d) the application is in progress.
(2) Within the adjudication period, the CAC must—
(a) decide the terms on which the union is (or unions are) to have access to the relevant workers, or
(b) decide that the union is (or unions are) not to have access to the relevant workers.
(3) The adjudication period is—
(a) the period of 10 working days starting with the day after the day with which the negotiation period ends, or
(b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension.
(4) Any terms decided by the CAC must be terms that the CAC regards as allowing such access to the relevant workers as is reasonable to enable the union (or unions) to—
(a) inform the workers of the object of the application or any ballot arising from it, and
(b) seek their support and their opinions on the issues involved.
19J (1) This paragraph applies if—
(a) an access agreement is entered into, and
(b) the application under paragraph 11 or 12 is in progress.
(2) “Access agreement” means—
(a) terms on which the union is (or unions are) to have access to the relevant workers and which are agreed between the parties under paragraph 19H during the negotiation period, or
(b) terms on which the union is (or unions are) to have access to the relevant workers and which are decided by the CAC under paragraph 19I,
and such an agreement is “entered into” when the terms are so agreed or decided.
(3) The parties must comply with the access agreement.
(4) The employer must refrain from making any offer to any or all of the relevant workers which—
(a) has or is likely to have the effect of inducing any or all of them not to attend any relevant meeting between the union (or unions) and the relevant workers, and
(b) is not reasonable in the circumstances.
(5) The employer must refrain from taking, or threatening to take, any action against a worker solely or mainly on the grounds that the worker—
(a) attended or took part in any relevant meeting between the union (or unions) and the relevant workers, or
(b) indicated an intention to attend or take part in such a meeting.
(6) In the case of an application under paragraph 11(2) or 12(2), the relevant workers are—
(a) in relation to any time before an appropriate bargaining unit is agreed by the parties or decided by the CAC, those falling within the proposed bargaining unit, and
(b) in relation to any time after an appropriate bargaining unit is so agreed or decided, those falling within the bargaining unit agreed or decided upon.
(7) In the case of an application under paragraph 12(4), the relevant workers are those falling within the bargaining unit agreed by the parties.
(8) A meeting is a relevant meeting in relation to a worker for the purposes of sub-paragraphs (4) and (5) if—
(a) it is organised in accordance with an access agreement or as a result of a step ordered to be taken under paragraph 19K to remedy a failure to comply with the duty in sub-paragraph (3), and
(b) it is one which the employer is, by such an agreement or order as is mentioned in paragraph (a), required to permit the worker to attend.
(9) The duties imposed by sub-paragraphs (4) and (5) do not confer any rights on a worker; but that does not affect any other right which a worker may have.
(10) Any provision of an access agreement that would require personal data relating to any of the relevant workers to be disclosed to any person who is not an appointed person is of no effect for the purposes of this Part of this Schedule.
(11) In sub-paragraph (10)—
(a) “appointed person” means—
(i) a person appointed to handle communications under paragraph 19C, or
(ii) a person appointed to conduct a ballot under paragraph 25;
(b) “personal data” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).
(12) An access agreement is to be conclusively presumed not to have been intended by the parties to be a legally enforceable contract; and, accordingly, where an access agreement is, or is part of, a collective agreement, section 179(2) and (3)(a) do not apply to the access agreement.
19K (1) Sub-paragraph (2) applies if—
(a) the CAC is satisfied that a party has failed to fulfil any of the duties imposed on that party by paragraph 19J, and
(b) the application under paragraph 11 or 12 is in progress.
(2) The CAC may order the party—
(a) to take such steps to remedy the failure as the CAC considers reasonable and specifies in the order, and
(b) to do so within such period as the CAC considers reasonable and specifies in the order.
(3) Sub-paragraphs (4) and (5) apply if—
(a) the CAC is satisfied that a party has failed to comply with an order under sub-paragraph (2),
(b) the application under paragraph 11 or 12 is in progress,
(c) the parties have agreed an appropriate bargaining unit or the CAC has decided an appropriate bargaining unit, and
(d) in the case of an application under paragraph 11(2) or 12(2), the CAC, if required to do so, has decided under paragraph 20 that the application is not invalid.
(4) If the party that has failed to comply is the employer, the CAC may issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.
(5) If the party that has failed to comply is a union, the CAC may issue a declaration that the union is (or unions are) not entitled to be so recognised.
19L (1) Each of the powers specified in sub-paragraph (2) is to be taken to include power to issue Codes of Practice about any matter relating to requests for access under paragraph 19G(2), including (among other things)—
(a) what access is reasonable for the purposes of paragraph 19I(4);
(b) the duty in paragraph 19J(4).
(2) The powers are—
(a) the power of ACAS under section 199(1);
(b) the power of the Secretary of State under section 203(1)(a).
Unfair practices
10 After paragraph 19L (inserted by paragraph 9 of this Schedule) insert—
Unfair practices
19M (1) Each of the parties informed by the CAC under paragraph 15(5) that an application under paragraph 11 or 12 is accepted must refrain from using any unfair practice in relation to the application.
(2) A party uses an unfair practice if, with a view to influencing the outcome of the application, the party does any of the following—
(a) dismisses, or threatens to dismiss, a worker;
(b) takes, or threatens to take, disciplinary action against a worker;
(c) subjects, or threatens to subject, a worker to any other detriment;
(d) offers to pay money, or give money’s worth, to a relevant worker in return for the worker’s agreement to vote in a particular way, or to abstain from voting, in a relevant ballot;
(e) makes an outcome-specific offer to a relevant worker;
(f) coerces, or attempts to coerce, a relevant worker to disclose—
(i) whether the worker intends to vote, or to abstain from voting, in any relevant ballot, or
(ii) how the worker intends to vote, or has voted, in any relevant ballot;
(g) uses, or attempts to use, undue influence on a relevant worker.
(3) In sub-paragraph (2)—
(a) “relevant ballot” means any ballot that is or may be held in which workers are asked whether they want the union (or unions) to conduct collective bargaining on their behalf, and
(b) “relevant worker” means any worker who is or would be entitled to vote in a relevant ballot.
(4) For the purposes of sub-paragraph (2)(e) an “outcome-specific offer” is an offer to pay money, or give money’s worth, which—
(a) is conditional on the issuing by the CAC of a declaration that—
(i) the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of a bargaining unit, or
(ii) the union is (or unions are) not entitled to be so recognised, and
(b) is not conditional on anything which is done or occurs as a result of the declaration in question.
(5) The duty imposed by this paragraph does not confer any rights on a worker; but that does not affect any other right which a worker may have.
(6) Each of the following powers is to be taken to include power to issue Codes of Practice about unfair practices for the purposes of this paragraph—
(a) the power of ACAS under section 199(1);
(b) the power of the Secretary of State under section 203(1)(a).
19N (1) A party may complain to the CAC that another party has failed to comply with paragraph 19M.
(2) A complaint under sub-paragraph (1) may not be made after—
(a) the application under paragraph 11 or 12 is withdrawn;
(b) the CAC gives notice to the union (or unions) of a decision under paragraph 20 that the application is invalid;
(c) the CAC notifies the union (or unions) of a declaration issued under paragraph 13B(6), 19F(5), 19K(4) or (5), 19P(4) or (5), 22(2) or 27(2) in relation to the application;
(d) if the CAC informs the union (or unions) under paragraph 25(9) of a ballot in relation to the application, the fifth working day after—
(i) the date of the ballot, or
(ii) if votes may be cast in the ballot on more than one day, the last of those days.
(3) Within the decision period the CAC must decide whether the complaint is well-founded.
(4) A complaint is well-founded if the CAC finds that the party complained against used an unfair practice.
(5) The decision period is—
(a) the period of 10 working days starting with the day after the day on which the complaint under sub-paragraph (1) was received by the CAC, or
(b) such longer period (so starting) as the CAC may specify to the parties by a notice containing reasons for the extension.
19O (1) This paragraph applies if the CAC decides that a complaint under paragraph 19N is well-founded.
(2) The CAC must, as soon as is reasonably practicable, issue a declaration to that effect.
(3) The CAC may order the party concerned to take any action specified in the order within such period as may be so specified.
(4) Sub-paragraph (5) applies if—
(a) the parties have agreed an appropriate bargaining unit or the CAC has decided an appropriate bargaining unit, and
(b) the CAC has at any time informed the union (or unions) under paragraph 25(9) of a ballot in relation to the application (including a ballot that was cancelled or is ineffective).
(5) The CAC may give notice to the employer and to the union (or unions) that it intends to arrange for the holding of a secret ballot in which the workers constituting the bargaining unit, other than those who joined the bargaining unit after the application day, are asked whether they want the union (or unions) to conduct collective bargaining on their behalf.
(6) The CAC may make an order under sub-paragraph (3), or give a notice under sub-paragraph (5), either at the same time as it issues the declaration under sub-paragraph (2) or at any other time before any of the following occurs—
(a) the withdrawal of the application under paragraph 11 or 12;
(b) the CAC giving notice to the union (or unions) of a decision under paragraph 20 that the application is invalid;
(c) the CAC notifying the union (or unions) of a declaration issued under paragraph 13B(6), 19F(5), 19K(4) or (5), 19P(4) or (5), 22(2) or 27(2) in relation to the application;
(d) if the CAC informs the union (or unions) under paragraph 25(9) of a ballot in relation to the application, the CAC acting under paragraph 29 in relation to the ballot.
(7) The action specified in an order under sub-paragraph (3) must be such as the CAC considers reasonable in order to mitigate the effect of the failure of the party concerned to comply with the duty imposed by paragraph 19M.
(8) The CAC may make more than one order under sub-paragraph (3).
19P (1) Sub-paragraphs (4) to (6) apply if—
(a) the CAC issues a declaration under paragraph 19O(2) that a complaint that a party has failed to comply with paragraph 19M is well-founded,
(b) the application under paragraph 11 or 12 has not been withdrawn,
(c) the parties have agreed an appropriate bargaining unit or the CAC has decided an appropriate bargaining unit,
(d) in the case of an application under paragraph 11(2) or 12(2), the CAC, if required to do so, has decided under paragraph 20 that the application is not invalid,
(e) the CAC has not notified the union (or unions) of a declaration issued under paragraph 13B(6), 19F(5), 19K(4) or (5), 19P(4) or (5), 22(2) or 27(2) in relation to the application, and
(f) sub-paragraph (2) or (3) applies.
(2) This sub-paragraph applies if the declaration states that the unfair practice used consisted of or included—
(a) the use of violence, or
(b) the dismissal of a union official.
(3) This sub-paragraph applies if the CAC has made an order under paragraph 19O(3) and—
(a) it is satisfied that the party subject to the order has failed to comply with it, or
(b) it makes another declaration under paragraph 19O(2) in relation to a complaint against that party.
(4) If the party that has failed to comply is the employer, the CAC may issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.
(5) If the party that has failed to comply is a union, the CAC may issue a declaration that the union is (or unions are) not entitled to be so recognised.
(6) The powers conferred by this paragraph are in addition to those conferred by paragraph 19O.
Powers of CAC on proceeding with application
11 (1) Paragraph 22 (powers of CAC where majority of workers are members of union) is amended as follows.
(2) In sub-paragraph (1)(a), for “19F(5)” substitute “13B(6), 19F(5), 19K(4) or (5) or 19P(4) or (5)”.
(3) After sub-paragraph (1) insert—
(1A) For the purposes of sub-paragraph (1)(b), any worker who joined the bargaining unit after the application day is to be disregarded.
(4) In sub-paragraph (3), after “bargaining unit” insert “, other than those who joined the bargaining unit after the application day,”.
(5) After sub-paragraph (4) insert—
(4A) For the purposes of sub-paragraph (4)(b) and (c), evidence from or relating to a worker who joined the bargaining unit after the application day is to be disregarded.
12 (1) Paragraph 23 (CAC to order ballot where majority of workers are not members of union) is amended as follows.
(2) In sub-paragraph (1)(a), for “19F(5)” substitute “13B(6), 19F(5), 19K(4) or (5) or 19P(4) or (5)”.
(3) After sub-paragraph (1) insert—
(1A) For the purposes of sub-paragraph (1)(b), any worker who joined the bargaining unit after the application day is to be disregarded.
(4) In sub-paragraph (2), after “bargaining unit” insert “, other than those who joined the bargaining unit after the application day,”.
Ballots
13 (1) Paragraph 24 (notice of holding of ballot) is amended as follows.
(2) In sub-paragraph (1), after “paragraph” insert “19O(5),”.
(3) In sub-paragraph (5)—
(a) before paragraph (a) insert—
(za) in the case of notice given under paragraph 19O(5), the period of 5 working days starting with the day on which the union (or the last of the unions) receives that notice,
;
(b) in paragraph (a)—
(i) at the beginning insert “in the case of notice given under paragraph 22(3) or 23(2),”;
(ii) for the words from “the CAC’s notice” to the end substitute “that notice”;
(c) in paragraph (b), for “so starting” substitute “starting with the day mentioned in paragraph (za) or (a) (as the case may be)”.
(4) In sub-paragraph (6)—
(a) before paragraph (a) insert—
(za) in the case of notice given under paragraph 19O(5), the period of 5 working days starting with the day on which the union (or the last of the unions) receives that notice,
;
(b) in paragraph (a)—
(i) at the beginning insert “in the case of notice given under paragraph 22(3) or 23(2),”;
(ii) for the words from “the CAC’s notice” to the end substitute “that notice”;
(c) in paragraph (b), for “so starting” substitute “starting with the day mentioned in paragraph (za) or (a) (as the case may be)”.
14 In paragraph 25 (rules relating to ballot), after sub-paragraph (1) insert—
(1A) A worker who joined the bargaining unit after the application day is not eligible to vote in the ballot.
15 (1) Paragraph 26 (duties of employer in relation to ballot) is amended as follows.
(2) In sub-paragraph (1), omit “five”.
(3) In sub-paragraph (2)—
(a) for “The first duty is to” substitute “The employer must”;
(b) for “the second and third duties are not” substitute “no other duty of the employer under this Part of this Schedule is”.
(4) Omit sub-paragraph (3).
(5) In sub-paragraph (4)—
(a) in the words before paragraph (a), for “The third duty is to” substitute “The employer must”;
(b) in paragraph (a)—
(i) for “to give” substitute “give”;
(ii) for “constituting the bargaining unit” substitute “eligible to vote in the ballot”;
(c) omit paragraph (b);
(d) in paragraph (c)—
(i) for “to inform” substitute “inform”;
(ii) omit “or (b)”.
(6) After sub-paragraph (4) insert—
(4ZA) If the ballot is being held by virtue of paragraph 19O(5), the duty under sub-paragraph (4)(a) is limited to—
(a) giving the CAC the names and home addresses of any workers eligible to vote in the ballot which have not previously been given to it in accordance with that duty;
(b) informing the CAC of any change to the name or home address of a worker whose name and home address have previously been given to the CAC in accordance with that duty;
(c) informing the CAC of any worker whose name had previously been given to it in accordance with that duty who has ceased to be within the bargaining unit.
(7) Omit sub-paragraphs (4A) to (4E), (4G), (8) and (9).
16 After paragraph 27 insert—
27ZA (1) This paragraph applies if—
(a) the union has (or unions have) been informed of a ballot under paragraph 25(9), and
(b) the CAC issues a declaration under paragraph 19K.
(2) If the ballot has not been held, the CAC must take steps to cancel it.
(3) If the ballot is held, it is to have no effect.
27ZB (1) This paragraph applies if—
(a) the union has (or unions have) been informed of a ballot under paragraph 25(9),
(b) a complaint is made under paragraph 19N, and
(c) the ballot did not begin before the beginning of the decision period referred to in paragraph 19N(5).
(2) The CAC may by notice to the parties and the qualified independent person postpone the date on which the ballot is to begin until a date which falls after the end of the decision period.
27ZC (1) This paragraph applies if—
(a) the union has (or unions have) been informed of a ballot under paragraph 25(9),
(b) the CAC issues a declaration that a complaint under paragraph 19N is well-founded, and
(c) the CAC—
(i) gives a notice under paragraph 19O(5), or
(ii) issues a declaration under paragraph 19P(4) or (5).
(2) If the ballot has not been held, the CAC must take steps to cancel it.
(3) If the ballot is held, it is to have no effect.
27ZD (1) This paragraph applies if—
(a) the CAC gives a notice under paragraph 19O(5), and
(b) the CAC has previously made an order under paragraph 27(1) in relation to a cancelled or ineffective ballot in connection with the application to which the notice relates.
(2) The order has effect, to the extent that the CAC specifies in a notice to the parties, as if it were made for the purposes of the ballot to which the notice under paragraph 19O(5) relates.
17 Omit paragraphs 27A to 27F (unfair practices during ballot).
18 (1) Paragraph 28 (costs of ballot) is amended as follows.
(2) After sub-paragraph (1) insert—
(1A) If the ballot is one to which a notice under paragraph 19O(5) relates, the gross costs of the ballot are to be borne by such of the parties and in such proportions as the CAC may determine.
(3) In sub-paragraph (2), for “The gross costs” substitute “If the ballot is one to which a notice under paragraph 22(3) or 23(2) relates, the gross costs”.
(4) In sub-paragraph (4), for “the employer and the union (or each of the unions)” substitute “the party or parties required to bear the costs”.
19 (1) Paragraph 29 (result of ballot) is amended as follows.
(2) For sub-paragraphs (1) and (1A) substitute—
(1) The CAC must act under this paragraph as soon as reasonably practicable after—
(a) the CAC is informed of the result of a ballot by the person conducting it, and
(b) the complaint period ends.
(1ZA) The complaint period is the period of 5 working days starting with the day after—
(a) the date of the ballot, or
(b) if votes may be cast in the ballot on more than one day, the last of those days.
(1A) The duty in sub-paragraph (1) does not apply—
(a) if a complaint is made under paragraph 19N, on or before the day on which the CAC decides whether the complaint is well-founded;
(b) if the CAC gives a notice under paragraph 19O(5).
(3) For sub-paragraph (3) substitute—
(3) If the result is that the union is (or unions are) supported by a majority of the workers voting, the CAC must issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.
(4) Omit sub-paragraphs (5) to (7).
General provisions about admissibility of applications
20 (1) Paragraph 35 (admissibility of applications: existing collective agreement) is amended as follows.
(2) After sub-paragraph (1) insert—
(1A) For the purposes of sub-paragraph (1), any worker who joined the relevant bargaining unit after the application day is to be disregarded.
(3) After sub-paragraph (5) insert—
(5A) In applying sub-paragraph (1) an agreement for recognition (the agreement in question) must be ignored if—
(a) the union recognised under the agreement in question does not have (or none of the unions recognised under the agreement in question has) a certificate of independence,
(b) the union (or unions) making the application under paragraph 11 or 12 made the application before the end of the period of reflection, and
(c) the agreement in question was entered into during the restricted period.
(5B) The period of reflection is the period of 20 working days starting with the first day after the end of—
(a) the first period referred to in paragraph 10(6), in the case of an application under paragraph 11, or
(b) the second period referred to in paragraph 10(7), in the case of an application under paragraph 12.
(5C) The restricted period is the period—
(a) starting with the day on which the employer receives a valid request for recognition under paragraph 4, and
(b) ending with the day on which the CAC makes a decision under paragraph 15.
21 In paragraph 36 (admissibility of applications: minimum support), for sub-paragraph (1) substitute—
(1) An application under paragraph 11 or 12 is not admissible unless the CAC decides that members of the union (or unions) constitute at least the required percentage (see paragraph 171B) of the workers constituting the relevant bargaining unit.
(1A) For the purposes of sub-paragraph (1), any worker who joined the relevant bargaining unit after the application day is to be disregarded.
22 (1) Paragraph 38 (admissibility of applications: overlapping bargaining unit) is amended as follows.
(2) In sub-paragraph (1)(d)—
(a) for “19F(5),” substitute “13B(6), 19F(5), 19K(4) or (5), 19P(4) or (5),”;
(b) omit “27D(3), 27D(4),”.
(3) After sub-paragraph (2) insert—
(2A) For the purposes of sub-paragraph (2)(a), any worker who joined the relevant bargaining unit or the bargaining unit referred to in sub-paragraph (1) after the application day is to be disregarded.
23 In paragraph 39 (admissibility of applications: same bargaining unit), in sub-paragraph (5), after “40” insert “, 40A”.
24 In paragraph 40 (admissibility of applications: union not entitled to be recognised), in sub-paragraph (1)—
(a) for “27D(4)” substitute “19K(5), 19P(5)”;
(b) omit the words from “; and this is so” to the end.
25 After paragraph 40 insert—
40A (1) This paragraph applies if the CAC issues a declaration under paragraph 81E(5), 81J(5) or 29(4) (where it applies by virtue of paragraph 89(5)) that a union is (or unions are) not entitled to be recognised as entitled to conduct collective bargaining on behalf of a bargaining unit.
(2) An application under paragraph 11 or 12 is not admissible if—
(a) the application is made within the period of 3 years starting with the day after the day on which the declaration was issued,
(b) the relevant bargaining unit is the same or substantially the same as the bargaining unit mentioned in sub-paragraph (1), and
(c) the application is made by the union (or unions) which made the application leading to the declaration.
(3) The relevant bargaining unit is—
(a) the proposed bargaining unit, where the application is under paragraph 11(2) or 12(2);
(b) the agreed bargaining unit, where the application is under paragraph 12(4).
26 In paragraph 41 (admissibility of applications: union required to cease bargaining arrangements), in sub-paragraph (1)—
(a) for “119D(4), 119H(5)” substitute “116E(5), 116K(5)”;
(b) for “the ballot concerned is arranged” substitute “the declaration is issued”.
General provisions about validity of applications
27 (1) Paragraph 44 (validity of applications: existing collective agreement) is amended as follows.
(2) After sub-paragraph (1) insert—
(1A) For the purposes of sub-paragraph (1), any worker who joined the relevant bargaining unit after the application day is to be disregarded.
(3) After sub-paragraph (5) insert—
(6) In applying sub-paragraph (1) an agreement for recognition (the agreement in question) must be ignored if—
(a) the union recognised under the agreement in question does not have (or none of the unions recognised under the agreement in question has) a certificate of independence,
(b) the union (or unions) making the application under paragraph 11 or 12 made the application before the end of the period of reflection, and
(c) the agreement in question was entered into during the restricted period.
(7) The period of reflection is the period of 20 working days starting with the first day after the end of—
(a) the first period referred to in paragraph 10(6), in the case of an application under paragraph 11, or
(b) the second period referred to in paragraph 10(7), in the case of an application under paragraph 12.
(8) The restricted period is the period—
(a) starting with the day on which the employer receives a valid request for recognition under paragraph 4, and
(b) ending with the day on which the CAC makes a decision under paragraph 20.
28 For paragraph 45 (validity of applications: minimum support) substitute—
45 (1) The application in question is invalid unless the CAC decides that members of the union (or unions) constitute at least the required percentage (see paragraph 171B) of the workers constituting the relevant bargaining unit.
(2) For the purposes of sub-paragraph (1), any worker who joined the relevant bargaining unit after the application day is to be disregarded.
29 (1) Paragraph 46 (validity of applications: overlapping bargaining unit) is amended as follows.
(2) In sub-paragraph (1)(d)—
(a) for “19F(5),” substitute “13B(6), 19F(5), 19K(4) or (5), 19P(4) or (5),”;
(b) omit “27D(3), 27D(4),”.
(3) After sub-paragraph (2) insert—
(3) For the purposes of sub-paragraph (2)(a), any worker who joined the relevant bargaining unit or the bargaining unit referred to in sub-paragraph (1) after the application day is to be disregarded.
30 In paragraph 47 (validity of applications: same bargaining unit), in sub-paragraph (3), after “48” insert “, 48A”.
31 In paragraph 48 (validity of applications: union not entitled to be recognised), in sub-paragraph (1)—
(a) for “27D(4)” substitute “19K(5), 19P(5)”;
(b) omit the words from “; and this is so” to the end.
32 After paragraph 48 insert—
48A (1) This paragraph applies if the CAC issues a declaration under paragraph 81E(5), 81J(5) or 29(4) (where it applies by virtue of paragraph 89(5)) that a union is (or unions are) not entitled to be recognised as entitled to conduct collective bargaining on behalf of a bargaining unit.
(2) The application in question is invalid if—
(a) the application is made within the period of 3 years starting with the date of the declaration,
(b) the relevant bargaining unit is the same or substantially the same as the bargaining unit mentioned in sub-paragraph (1), and
(c) the application is made by the union (or unions) which made the application leading to the declaration.
33 In paragraph 49 (validity of applications: union required to cease bargaining arrangements), in sub-paragraph (1)—
(a) for “119D(4), 119H(5)” substitute “116E(5), 116K(5)”;
(b) for “the ballot concerned is arranged” substitute “the declaration is issued”.
Competing applications
34 In paragraph 51 (competing applications), in sub-paragraph (2)(c), for “10 per cent test” substitute “required percentage test”.
Voluntary recognition
35 In paragraph 52 (voluntary recognition), in sub-paragraph (3)(f), for “19F(5)” substitute “13B(6), 19F(5), 19K(4) or (5), 19P(4) or (5)”.
Part 3 Changes affecting bargaining unit after recognition
Changes relevant to appropriateness of bargaining unit
36 (1) Paragraph 67 (admissibility of applications: employer or union believes bargaining unit no longer appropriate) is amended as follows.
(2) In sub-paragraph (2)(c), at the end insert “(but see sub-paragraph (3)).”
(3) After sub-paragraph (2) insert—
(3) In a case where the application was received by the CAC before the end of the period of 3 years starting with the day on which the declaration referred to in paragraph 64(1)(a) was issued, the CAC must disregard the matter specified in sub-paragraph (2)(c).
37 (1) Paragraph 70 (determination of bargaining unit by CAC) is amended as follows.
(2) In sub-paragraph (3)(c), at the end insert “(but see sub-paragraph (3A)).”
(3) After sub-paragraph (3) insert—
(3A) In a case where the application was received by the CAC before the end of the period of 3 years starting with the day on which the declaration referred to in paragraph 64(1)(a) was issued, the CAC may not take into account the matter specified in sub-paragraph (3)(c).
38 In paragraph 75 (questions for CAC to decide where employer believes bargaining unit has ceased to exist), in sub-paragraph (3)(c), at the end insert “(but see paragraph 77(4A)).”
39 In paragraph 77 (CAC’s decision as to appropriateness of bargaining unit, etc), after sub-paragraph (4) insert—
(4A) In a case where the copy of the notice given to the CAC by the employer under paragraph 74(1) was received by the CAC before the end of the period of 3 years starting with the day on which the declaration referred to in paragraph 64(1)(a) was issued, in deciding whether the original unit is no longer appropriate the CAC must disregard the matter specified in paragraph 75(3)(c).
Access agreements
40 After paragraph 81 insert—
Access agreements
81A (1) This paragraph applies if—
(a) the CAC accepts an application under paragraph 66 or 75, and
(b) the application is in progress.
(2) The union (or unions) may, by giving notice to the CAC and the employer within the access request period, request access to the relevant workers in connection with the application.
(3) The relevant workers are—
(a) in relation to any time before the CAC decides that a bargaining unit other than the original unit is an appropriate bargaining unit, the workers constituting the original unit, and
(b) in relation to any time after the CAC decides that a bargaining unit other than the original unit is an appropriate bargaining unit, the workers constituting the new unit (see paragraph 82(4)).
(4) But, where there is more than one new unit, references to the relevant workers are references to the workers constituting each new unit separately.
(5) The access request period is the period of 5 working days starting with the day after the day on which the CAC gives the union (or unions) notice under paragraph 68(5) or 76(5) that the application is accepted.
(6) For the purposes of this paragraph and paragraphs 81B to 81E, an application under paragraph 66 or 75 is in progress if none of the following has occurred—
(a) the withdrawal of the application;
(b) the CAC issuing a declaration under paragraph 69(3), 78(3), 81E(4) or (5) or 81J(4) or (5) in relation to the application;
(c) the CAC notifying the union (or unions) of its decision under paragraph 77(2) or 77(3);
(d) in relation to the new unit (or, if there is more than one, all of the new units)—
(i) the CAC issuing a declaration under paragraph 83(2), 85(2), 86(3) or 87(2), or under paragraph 27(2) (where it applies by virtue of paragraph 89(5)),
(ii) the union (or unions) notifying the CAC under paragraph 89(1), or
(iii) the holding of any ballot arising from the application.
81B (1) This paragraph applies if—
(a) the CAC accepts an application under paragraph 66 or 75,
(b) the union requests (or unions request) access to the relevant workers under paragraph 81A(2) in connection with the application, and
(c) the application is in progress.
(2) The CAC must try to help the parties to reach agreement within the negotiation period as to terms on which the union is (or unions are) to have access to the relevant workers.
(3) The negotiation period is, subject to any notice under sub-paragraph (4) or (6)—
(a) the period of 20 working days starting with the day after the day on which the CAC gives the union (or unions) notice under paragraph 68(5) or 76(5) that the application is accepted, or
(b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension.
(4) If, during the negotiation period, the CAC concludes that there is no reasonable prospect of the parties’ agreeing terms on which the union is (or unions are) to have access to the relevant workers before the time when (apart from this sub-paragraph) the negotiation period would end, the CAC may, by a notice given to the parties, declare that the negotiation period ends with the date of the notice.
(5) A notice under sub-paragraph (4) must contain reasons for reaching the conclusion mentioned in that sub-paragraph.
(6) If, during the negotiation period, the parties apply to the CAC for a declaration that the negotiation period is to end with a date (specified in the application) which is earlier or later than the date with which it would otherwise end, the CAC may, by a notice given to the parties, declare that the negotiation period ends with the specified date.
81C (1) This paragraph applies if—
(a) the CAC accepts an application under paragraph 66 or 75,
(b) the union requests (or unions request) access to the relevant workers under paragraph 81A(2) in connection with the application,
(c) the parties have not within the negotiation period agreed terms on which the union is (or unions are) to have access to the relevant workers, and
(d) the application is in progress.
(2) Within the adjudication period, the CAC must—
(a) decide the terms on which the union is (or unions are) to have access to the relevant workers, or
(b) decide that the union is (or unions are) not to have access to the relevant workers.
(3) The adjudication period is—
(a) the period of 10 working days starting with the day after the day with which the negotiation period ends, or
(b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension.
(4) Any terms decided by the CAC must be terms that the CAC regards as allowing such access to the relevant workers as is reasonable to enable the union (or unions) to—
(a) inform the workers of the object of the application or any ballot arising from it, and
(b) seek their support and their opinions on the issues involved.
81D (1) This paragraph applies if—
(a) an access agreement is entered into, and
(b) the application under paragraph 66 or 75 is in progress.
(2) “Access agreement” means—
(a) terms on which the union is (or unions are) to have access to the relevant workers and which are agreed between the parties under paragraph 81B during the negotiation period, or
(b) terms on which the union is (or unions are) to have access to the relevant workers and which are decided by the CAC under paragraph 81C,
and such an agreement is “entered into” when the terms are so agreed or decided.
(3) The parties must comply with the access agreement.
(4) The employer must refrain from making any offer to any or all of the relevant workers which—
(a) has or is likely to have the effect of inducing any or all of them not to attend any relevant meeting between the union (or unions) and the relevant workers, and
(b) is not reasonable in the circumstances.
(5) The employer must refrain from taking, or threatening to take, any action against a worker solely or mainly on the grounds that the worker—
(a) attended or took part in any relevant meeting between the union (or unions) and the relevant workers, or
(b) indicated an intention to attend or take part in such a meeting.
(6) The relevant workers are—
(a) in relation to any time before the CAC decides that a bargaining unit other than the original unit is an appropriate bargaining unit, the workers constituting the original unit, and
(b) in relation to any time after the CAC decides that a bargaining unit other than the original unit is an appropriate bargaining unit, the workers constituting the new unit (see paragraph 82(4)).
(7) But, where there is more than one new unit, references to the relevant workers are references to the workers constituting each new unit separately.
(8) A meeting is a relevant meeting in relation to a worker for the purposes of sub-paragraphs (4) and (5) if—
(a) it is organised in accordance with an access agreement or as a result of a step ordered to be taken under paragraph 81E to remedy a failure to comply with the duty in sub-paragraph (3), and
(b) it is one which the employer is, by such an agreement or order as is mentioned in paragraph (a), required to permit the worker to attend.
(9) The duties imposed by sub-paragraphs (4) and (5) do not confer any rights on a worker; but that does not affect any other right which a worker may have.
(10) Any provision of an access agreement that would require personal data relating to any of the relevant workers to be disclosed to any person other than a person appointed to conduct a ballot under paragraph 25 (where it applies by virtue of paragraph 89(4)) is of no effect for the purposes of this Part of this Schedule.
(11) “Personal data” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).
(12) An access agreement is to be conclusively presumed not to have been intended by the parties to be a legally enforceable contract; and, accordingly, where an access agreement is, or is part of, a collective agreement, section 179(2) and (3)(a) do not apply to the access agreement.
81E (1) Sub-paragraph (2) applies if—
(a) the CAC is satisfied that a party has failed to fulfil any of the duties imposed on that party by paragraph 81D, and
(b) the application under paragraph 66 or 75 is in progress.
(2) The CAC may order the party—
(a) to take such steps to remedy the failure as the CAC considers reasonable and specifies in the order, and
(b) to do so within such period as the CAC considers reasonable and specifies in the order.
(3) Sub-paragraphs (4) and (5) apply if—
(a) the CAC is satisfied that a party has failed to comply with an order under sub-paragraph (2),
(b) the application under paragraph 66 or 75 is in progress, and
(c) the CAC has given notice under paragraph 70 or 79 of a decision as to the bargaining unit which is (or units which are) appropriate (each, a “new unit”).
(4) If the party that has failed to comply is the employer, the CAC may issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the new unit or units.
(5) If the party that has failed to comply is a union, the CAC may issue a declaration that the union is (or unions are) not entitled to be so recognised.
81F (1) Each of the powers specified in sub-paragraph (2) is to be taken to include power to issue Codes of Practice about any matter relating to requests for access under paragraph 81A(2), including (among other things)—
(a) what access is reasonable for the purposes of paragraph 81C(4);
(b) the duty in paragraph 81D(4).
(2) The powers are—
(a) the power of ACAS under section 199(1);
(b) the power of the Secretary of State under section 203(1)(a).
Unfair practices
41 After paragraph 81F (inserted by paragraph 40 of this Schedule) insert—
Unfair practices
81G (1) Each of the parties informed by the CAC under paragraph 68(5) or 76(5) that an application under paragraph 66 or 75 is accepted must refrain from using any unfair practice in relation to the application.
(2) A party uses an unfair practice if, with a view to influencing the outcome of the application, the party does any of the following—
(a) dismisses, or threatens to dismiss, a worker;
(b) takes, or threatens to take, disciplinary action against a worker;
(c) subjects, or threatens to subject, a worker to any other detriment;
(d) offers to pay money, or give money’s worth, to a relevant worker in return for the worker’s agreement to vote in a particular way, or to abstain from voting, in a relevant ballot;
(e) makes an outcome-specific offer to a relevant worker;
(f) coerces, or attempts to coerce, a relevant worker to disclose—
(i) whether the worker intends to vote, or to abstain from voting, in any relevant ballot, or
(ii) how the worker intends to vote, or has voted, in any relevant ballot;
(g) uses, or attempts to use, undue influence on a relevant worker.
(3) In sub-paragraph (2)—
(a) “relevant ballot” means any ballot that is or may be held in which workers are asked whether they want the union (or unions) to conduct collective bargaining on their behalf, and
(b) “relevant worker” means any worker who is or would be entitled to vote in a relevant ballot.
(4) For the purposes of sub-paragraph (2)(e) an “outcome-specific offer” is an offer to pay money, or give money’s worth, which—
(a) is conditional on the issuing by the CAC of a declaration that—
(i) the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of a bargaining unit, or
(ii) the union is (or unions are) not entitled to be so recognised, and
(b) is not conditional on anything which is done or occurs as a result of the declaration in question.
(5) The duty imposed by this paragraph does not confer any rights on a worker; but that does not affect any other right which a worker may have.
(6) Each of the following powers is to be taken to include power to issue Codes of Practice about unfair practices for the purposes of this paragraph—
(a) the power of ACAS under section 199(1);
(b) the power of the Secretary of State under section 203(1)(a).
81H (1) A party may complain to the CAC that another party has failed to comply with paragraph 81G.
(2) A complaint under sub-paragraph (1) may not be made after a conclusion event occurs.
(3) The following are conclusion events—
(a) the withdrawal of the application under paragraph 66 or 75;
(b) the CAC issuing a declaration under paragraph 69(3), 78(3), 81E(4) or (5) or 81J(4) or (5) in relation to the application;
(c) the CAC notifying the union (or unions) of its decision under paragraph 77(2) or 77(3);
(d) if the CAC has given notice under paragraph 70 or 79 of a decision as to the bargaining unit which is (or units which are) appropriate (each, a “new unit”), any of the following occurring in relation to the new unit (or, if there is more than one, all of the new units)—
(i) the CAC issuing a declaration under paragraph 83(2), 85(2), 86(3) or 87(2), or under paragraph 27(2) (where it applies by virtue of paragraph 89(5));
(ii) the union (or unions) notifying the CAC under paragraph 89(1);
(iii) the post-ballot complaint period having ended.
(4) The post-ballot complaint period is, in relation to any ballot held arising from the application, the period of 5 working days after—
(a) the date of the ballot, or
(b) if votes may be cast in the ballot on more than one day, the last of those days.
(5) Within the decision period the CAC must decide whether the complaint is well-founded.
(6) A complaint is well-founded if the CAC finds that the party complained against used an unfair practice.
(7) The decision period is—
(a) the period of 10 working days starting with the day after the day on which the complaint under sub-paragraph (1) was received by the CAC, or
(b) such longer period (so starting) as the CAC may specify to the parties by a notice containing reasons for the extension.
81I (1) This paragraph applies if the CAC decides that a complaint under paragraph 81H is well-founded.
(2) The CAC must, as soon as is reasonably practicable, issue a declaration to that effect.
(3) The CAC may order the party concerned to take any action specified in the order within such period as may be so specified.
(4) Sub-paragraph (5) applies if—
(a) the CAC has given notice under paragraph 70 or 79 of a decision as to the bargaining unit which is (or units which are) appropriate (each, a “new unit”), and
(b) the CAC has at any time informed the union (or unions) under paragraph 25(9) (where it applies by virtue of paragraph 89(4)) of a ballot in relation to the application (including a ballot that was cancelled or is ineffective).
(5) The CAC may give notice to the employer and to the union (or unions) that it intends to arrange for the holding of a secret ballot (or secret ballots) in which the workers constituting the new unit (or each of the new units) are asked whether they want the union (or unions) to conduct collective bargaining on their behalf.
(6) The CAC may make an order under sub-paragraph (3), or give a notice under sub-paragraph (5), either at the same time as it issues the declaration under sub-paragraph (2) or at any other time before any of the following occurs—
(a) the withdrawal of the application under paragraph 66 or 75;
(b) the CAC issuing a declaration under paragraph 69(3), 78(3), 81E(4) or (5) or 81J(4) or (5) in relation to the application;
(c) the CAC notifying the union (or unions) of its decision under paragraph 77(2) or 77(3);
(d) in relation to the new unit (or, if there is more than one, all of the new units)—
(i) the CAC issuing a declaration under paragraph 83(2), 85(2), 86(3) or 87(2), or under paragraph 27(2) (where it applies by virtue of paragraph 89(5)),
(ii) the union (or unions) notifying the CAC under paragraph 89(1), or
(iii) if the CAC informs the union (or unions) under paragraph 25(9) (where it applies by virtue of paragraph 89(4)) of any ballot arising from the application, the CAC acting under paragraph 29 (where it applies by virtue of paragraph 89(5)) in relation to the ballot.
(7) The action specified in an order under sub-paragraph (3) must be such as the CAC considers reasonable in order to mitigate the effect of the failure of the party concerned to comply with the duty imposed by paragraph 81G.
(8) The CAC may make more than one order under sub-paragraph (3).
81J (1) Sub-paragraphs (4) to (6) apply if—
(a) the CAC issues a declaration under paragraph 81I(2) that a complaint that a party has failed to comply with paragraph 81G is well-founded,
(b) the application under paragraph 66 or 75 has not been withdrawn,
(c) the CAC has given notice under paragraph 70 or 79 of a decision as to the bargaining unit which is (or units which are) appropriate (each, a “new unit”),
(d) the CAC has not issued a declaration under paragraph 69(3), 78(3), 81E(4) or (5) or 81J(4) or (5) in relation to the application,
(e) the CAC has not notified the union (or unions) of its decision under paragraph 77(2) or 77(3),
(f) in relation to the new unit (or, if there is more than one, all of the new units), neither of the following has occurred—
(i) the CAC issuing a declaration under paragraph 83(2), 85(2), 86(3) or 87(2), or under paragraph 27(2) (where it applies by virtue of paragraph 89(5)), or
(ii) the union (or unions) notifying the CAC under paragraph 89(1), and
(g) sub-paragraph (2) or (3) applies.
(2) This sub-paragraph applies if the declaration states that the unfair practice used consisted of or included—
(a) the use of violence, or
(b) the dismissal of a union official.
(3) This sub-paragraph applies if the CAC has made an order under paragraph 81I(3) and—
(a) it is satisfied that the party subject to the order has failed to comply with it, or
(b) it makes another declaration under paragraph 81I(2) in relation to a complaint against that party.
(4) If the party that has failed to comply is the employer, the CAC may issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the new unit or units.
(5) If the party that has failed to comply is a union, the CAC may issue a declaration that the union is (or unions are) not entitled to be so recognised.
(6) The powers conferred by this paragraph are in addition to those conferred by paragraph 81I.
Powers of CAC where CAC decides new unit appropriate
42 (1) Paragraph 86 (new bargaining unit: assessment of support) is amended as follows.
(2) For sub-paragraph (2) substitute—
(2) The CAC must decide whether members of the union (or unions) constitute at least the required percentage (see paragraph 171B) of the workers constituting the new unit.
(3) In sub-paragraph (3), for “one or both of the questions in the negative” substitute “that members of the union (or unions) do not constitute at least the required percentage of the workers constituting the new unit”.
43 In paragraph 87 (powers of CAC where majority of workers are members of union), for sub-paragraph (1) substitute—
(1) This paragraph applies if, following a decision under paragraph 86(2), the CAC is satisfied that a majority of workers constituting the new unit are members of the union (or unions).
44 In paragraph 88 (powers of CAC where majority of workers are not members of union), for sub-paragraph (1) substitute—
(1) This paragraph applies if—
(a) the CAC decides under paragraph 86(2) that members of the union (or unions) constitute at least the required percentage of the workers constituting the new unit, but
(b) the CAC is not satisfied that a majority of workers constituting the new unit are members of the union (or unions).
45 (1) Paragraph 89 (ballots) is amended as follows.
(2) In sub-paragraph (4), at the end insert “, but as if paragraph 25(1A) were omitted.”
(3) In sub-paragraph (5)—
(a) omit the “and” at the end of paragraph (a);
(b) after paragraph (a) insert—
(aa) references to provisions of paragraphs 19G to 19P were references to the corresponding provisions of paragraphs 81A to 81J,
(ab) the duty in paragraph 26(4) included—
(i) a duty to give to the CAC, as soon as is reasonably practicable, the name and home address of any worker who joins the bargaining unit after the employer has complied with paragraph 26(4)(a), and
(ii) a duty to inform the CAC, as soon as is reasonably practicable, of any worker whose name has been given to the CAC under that duty and who ceases to be within the bargaining unit, and
;
(c) in paragraph (b), for “26(4F) to (4H)” substitute “26(4F) and (4H)”.
(4) In sub-paragraph (8), for “or 27D(3)” substitute “, 81E(4) or 81J(4)”.
(5) In sub-paragraph (9), for “27D(4)” substitute “81E(5) or 81J(5)”.
Withdrawal of application
46 In paragraph 93 (withdrawal of application), in sub-paragraph (1)(a), for “or 78(3)” substitute “, 78(3), 81E(4) or (5) or 81J(4) or (5)”.
Part 4 Derecognition
Access agreements
47 After paragraph 116 insert—
Access agreements
116A (1) This paragraph applies if—
(a) the CAC accepts an application under paragraph 106, 107 or 112, and
(b) the application is in progress.
(2) The union (or unions) may, by giving notice to the CAC and the employer within the access request period, request access to the workers constituting the bargaining unit in connection with the application.
(3) The access request period is the period of 5 working days starting with the day after the day on which the CAC gives the union (or unions) notice under paragraph 111(5) or 115(5) that the application is accepted.
(4) For the purposes of this paragraph and paragraphs 116B to 116E, an application under paragraph 106, 107 or 112 is in progress if none of the following has occurred—
(a) in the case of an application under paragraph 106 or 107, the withdrawal of the application;
(b) in the case of an application under paragraph 112, an agreement or withdrawal as described in paragraph 116(1);
(c) the CAC refusing the application under paragraph 116E(4)(a), 116K(4)(a) or (6) or 119(2);
(d) the CAC notifying the union (or unions) of a declaration issued under paragraph 116E(5) or 116K(5) in relation to the application;
(e) the holding of any ballot arising from the application.
116B (1) This paragraph applies if—
(a) the CAC accepts an application under paragraph 106, 107 or 112,
(b) the union requests (or unions request) access to the workers constituting the bargaining unit under paragraph 116A(2) in connection with the application, and
(c) the application is in progress.
(2) The CAC must try to help the parties to reach agreement within the negotiation period as to terms on which the union is (or unions are) to have access to the workers.
(3) The negotiation period is, subject to any notice under sub-paragraph (4) or (6)—
(a) the period of 20 working days starting with the day after the day on which the CAC gives the union (or unions) notice under paragraph 111(5) or 115(5) that the application is accepted, or
(b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension.
(4) If, during the negotiation period, the CAC concludes that there is no reasonable prospect of the parties’ agreeing terms on which the union is (or unions are) to have access to the workers before the time when (apart from this sub-paragraph) the negotiation period would end, the CAC may, by a notice given to the parties, declare that the negotiation period ends with the date of the notice.
(5) A notice under sub-paragraph (4) must contain reasons for reaching the conclusion mentioned in that sub-paragraph.
(6) If, during the negotiation period, the parties apply to the CAC for a declaration that the negotiation period is to end with a date (specified in the application) which is earlier or later than the date with which it would otherwise end, the CAC may, by a notice given to the parties, declare that the negotiation period ends with the specified date.
116C (1) This paragraph applies if—
(a) the CAC accepts an application under paragraph 106, 107 or 112,
(b) the union requests (or unions request) access to the workers constituting the bargaining unit under paragraph 116A(2) in connection with the application,
(c) the parties have not within the negotiation period agreed terms on which the union is (or unions are) to have access to the workers, and
(d) the application is in progress.
(2) Within the adjudication period, the CAC must—
(a) decide the terms on which the union is (or unions are) to have access to the workers, or
(b) decide that the union is (or unions are) not to have access to the workers.
(3) The adjudication period is—
(a) the period of 10 working days starting with the day after the day with which the negotiation period ends, or
(b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension.
(4) Any terms decided by the CAC must be terms that the CAC regards as allowing such access to the workers constituting the bargaining unit as is reasonable to enable the union (or unions) to—
(a) inform the workers of the object of the application or any ballot arising from it, and
(b) seek their support and their opinions on the issues involved.
116D (1) This paragraph applies if—
(a) an access agreement is entered into, and
(b) the application under paragraph 106, 107 or 112 is in progress.
(2) “Access agreement” means—
(a) terms on which the union is (or unions are) to have access to the workers constituting the bargaining unit and which are agreed between the parties under paragraph 116B during the negotiation period, or
(b) terms on which the union is (or unions are) to have access to the workers constituting the bargaining unit and which are decided by the CAC under paragraph 116C,
and such an agreement is to be treated as “entered into” when the terms are so agreed or decided.
(3) The parties must comply with the access agreement.
(4) The employer must refrain from making any offer to any or all of the workers constituting the bargaining unit which—
(a) has or is likely to have the effect of inducing any or all of them not to attend any relevant meeting between the union (or unions) and the workers constituting the bargaining unit, and
(b) is not reasonable in the circumstances.
(5) The employer must refrain from taking, or threatening to take, any action against a worker solely or mainly on the grounds that the worker—
(a) attended or took part in any relevant meeting between the union (or unions) and the workers constituting the bargaining unit, or
(b) indicated an intention to attend or take part in such a meeting.
(6) A meeting is a relevant meeting in relation to a worker for the purposes of sub-paragraphs (4) and (5) if—
(a) it is organised in accordance with an access agreement or as a result of a step ordered to be taken under paragraph 116E to remedy a failure to comply with the duty in sub-paragraph (3), and
(b) it is one which the employer is, by such an agreement or order as is mentioned in paragraph (a), required to permit the worker to attend.
(7) The duties imposed by sub-paragraphs (4) and (5) do not confer any rights on a worker; but that does not affect any other right which a worker may have.
(8) Any provision of an access agreement that would require personal data relating to any of the relevant workers to be disclosed to a person other than a person appointed under paragraph 117 to conduct a ballot is of no effect for the purposes of this Part of this Schedule.
(9) “Personal data” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).
(10) An access agreement is to be conclusively presumed not to have been intended by the parties to be a legally enforceable contract; and, accordingly, where an access agreement is, or is part of, a collective agreement, section 179(2) and (3)(a) do not apply to the access agreement.
116E (1) Sub-paragraph (2) applies if—
(a) the CAC is satisfied that a party has failed to fulfil any of the duties imposed on that party by paragraph 116D, and
(b) the application under paragraph 106, 107 or 112 is in progress.
(2) The CAC may order the party—
(a) to take such steps to remedy the failure as the CAC considers reasonable and specifies in the order, and
(b) to do so within such period as the CAC considers reasonable and specifies in the order.
(3) Sub-paragraphs (4) and (5) apply if—
(a) the CAC is satisfied that a party has failed to comply with an order under sub-paragraph (2), and
(b) the application under paragraph 106, 107 or 112 is in progress.
(4) If the party that has failed to comply is the employer, the CAC may—
(a) refuse the employer’s application under paragraph 106 or 107;
(b) order the employer to refrain from any campaigning in relation to an application under paragraph 112.
(5) If the party that has failed to comply is a union, the CAC may issue a declaration that the bargaining arrangements are to cease to have effect; and the bargaining arrangements cease to have effect accordingly.
116F (1) This paragraph applies if the CAC has made an order under paragraph 116E(4)(b) in relation to an application under paragraph 112.
(2) The worker making the application (or each of the workers making the application) and the union (or each of the unions) are entitled to enforce obedience to the order.
(3) The order may be enforced—
(a) in England and Wales, in the same way as an order of the county court;
(b) in Scotland, in the same way as an order of the sheriff.
116G (1) Each of the powers specified in sub-paragraph (2) is to be taken to include power to issue Codes of Practice about any matter relating to requests for access under paragraph 116A(2), including (among other things)—
(a) what access is reasonable for the purposes of paragraph 116C(4);
(b) the duty in paragraph 116D(4).
(2) The powers are—
(a) the power of ACAS under section 199(1);
(b) the power of the Secretary of State under section 203(1)(a).
Unfair practices
48 After paragraph 116G (inserted by paragraph 47 of this Schedule) insert—
Unfair practices
116H (1) Each of the parties informed by the CAC under paragraph 111(5) or 115(5) that an application under paragraph 106, 107 or 112 is accepted must refrain from using any unfair practice in relation to the application.
(2) A party uses an unfair practice if, with a view to influencing the outcome of the application, the party does any of the following—
(a) dismisses, or threatens to dismiss, a worker;
(b) takes, or threatens to take, disciplinary action against a worker;
(c) subjects, or threatens to subject, a worker to any other detriment;
(d) offers to pay money, or give money’s worth, to a relevant worker in return for the worker’s agreement to vote in a particular way, or to abstain from voting, in a relevant ballot;
(e) makes an outcome-specific offer to a relevant worker;
(f) coerces, or attempts to coerce, a relevant worker to disclose—
(i) whether the worker intends to vote, or to abstain from voting, in any relevant ballot, or
(ii) how the worker intends to vote, or has voted, in any relevant ballot;
(g) uses, or attempts to use, undue influence on a relevant worker.
(3) In sub-paragraph (2)—
(a) “relevant ballot” means any ballot that is or may be held in which workers are asked whether the bargaining arrangements should be ended, and
(b) “relevant worker” means any worker who is or would be entitled to vote in a relevant ballot.
(4) For the purposes of sub-paragraph (2)(e) an “outcome-specific offer” is an offer to pay money, or give money’s worth, which—
(a) is conditional on—
(i) the issuing by the CAC of a declaration that the bargaining arrangements are to cease to have effect, or
(ii) the refusal by the CAC of an application under paragraph 106, 107 or 112, and
(b) is not conditional on anything which is done or occurs as a result of that declaration, or, as the case may be, of that refusal.
(5) For the purposes of this paragraph and paragraphs 116I to 116K as they apply in relation to an application under paragraph 112, references to a party are to be read as including references to the worker or workers making the application.
(6) The duty imposed by this paragraph does not confer any rights on a worker; but that does not affect any other right which a worker may have.
(7) Each of the following powers is to be taken to include power to issue Codes of Practice about unfair practices for the purposes of this paragraph—
(a) the power of ACAS under section 199(1);
(b) the power of the Secretary of State under section 203(1)(a).
116I (1) A party may complain to the CAC that another party has failed to comply with paragraph 116H.
(2) A complaint under sub-paragraph (1) may not be made after—
(a) in the case of an application under paragraph 106 or 107, the application is withdrawn;
(b) in the case of an application under paragraph 112, an agreement or withdrawal as described in paragraph 116(1);
(c) the CAC refuses the application under paragraph 116E(4)(a), 116K(4)(a) or (6) or 119(2);
(d) the CAC notifies the union (or unions) of a declaration issued under paragraph 116E(5) or 116K(5) in relation to the application;
(e) if the CAC informs the union (or unions) under paragraph 117(11) of a ballot, the fifth working day after—
(i) the date of the ballot, or
(ii) if votes may be cast in the ballot on more than one day, the last of those days.
(3) Within the decision period the CAC must decide whether the complaint is well-founded.
(4) A complaint is well-founded if the CAC finds that the party complained against used an unfair practice.
(5) The decision period is—
(a) the period of 10 working days starting with the day after the day on which the complaint under sub-paragraph (1) was received by the CAC, or
(b) such longer period (so starting) as the CAC may specify to the parties by a notice containing reasons for the extension.
116J (1) This paragraph applies if the CAC decides that a complaint under paragraph 116I is well-founded.
(2) The CAC must, as soon as is reasonably practicable, issue a declaration to that effect.
(3) The CAC may order the party concerned to take any action specified in the order within such period as may be so specified.
(4) Sub-paragraph (5) applies if the CAC has at any time informed the union (or unions) under paragraph 117(11) of a ballot in relation to the application (including a ballot that was cancelled or is ineffective).
(5) The CAC may make arrangements for the holding of a secret ballot in which the workers constituting the bargaining unit are asked whether the bargaining arrangements should be ended.
(6) The CAC may make an order under sub-paragraph (3), or make arrangements under sub-paragraph (5), either at the same time as it issues the declaration under sub-paragraph (2) or at any other time before any of the following occurs—
(a) in the case of an application under paragraph 106 or 107, the withdrawal of the application;
(b) in the case of an application under paragraph 112, an agreement or withdrawal as described in paragraph 116(1);
(c) the CAC refusing the application under paragraph 116E(4)(a), 116K(4)(a) or (6) or 119(2);
(d) the CAC notifying the union (or unions) of a declaration issued under paragraph 116E(5) or 116K(5) in relation to the application;
(e) if the CAC informs the union (or unions) under paragraph 117(11) of a ballot, the CAC acting under paragraph 121 in relation to the ballot.
(7) The action specified in an order under sub-paragraph (3) must be such as the CAC considers reasonable in order to mitigate the effect of the failure of the party concerned to comply with the duty imposed by paragraph 116H.
(8) The CAC may make more than one order under sub-paragraph (3).
116K (1) Sub-paragraphs (4) to (7) apply if—
(a) the CAC issues a declaration under paragraph 116J(2) that a complaint that a party has failed to comply with paragraph 116H is well-founded,
(b) the application under paragraph 106, 107 or 112 has not been withdrawn or, in the case of an application under paragraph 112, there has been no agreement as described in paragraph 116(1),
(c) the CAC has not refused the application under paragraph 116E(4)(a), 116K(4)(a) or (6) or 119(2),
(d) the CAC has not notified the union (or unions) of a declaration issued under paragraph 116E(5) or 116K(5) in relation to the application, and
(e) sub-paragraph (2) or (3) applies.
(2) This sub-paragraph applies if the declaration states that the unfair practice used consisted of or included—
(a) the use of violence, or
(b) the dismissal of a union official.
(3) This sub-paragraph applies if the CAC has made an order under paragraph 116J(3) and—
(a) it is satisfied that the party subject to the order has failed to comply with it, or
(b) it makes another declaration under paragraph 116J(2) in relation to a complaint against that party.
(4) If the party that has failed to comply is the employer, the CAC may—
(a) refuse the employer’s application under paragraph 106 or 107;
(b) order the employer to refrain from any campaigning in relation to an application under paragraph 112.
(5) If the party that has failed to comply is a union, the CAC may issue a declaration that the bargaining arrangements are to cease to have effect on a date specified by the CAC in the declaration; and the bargaining arrangements cease to have effect accordingly.
(6) If the party that has failed to comply is the worker making an application under paragraph 112 (or any of the workers making an application under paragraph 112), the CAC may refuse the application.
(7) The powers conferred by this paragraph are in addition to those conferred by paragraph 116J.
116L (1) This paragraph applies if the CAC has made an order against the employer under paragraph 116J(3) or 116K(4)(b) in relation to an application under paragraph 112.
(2) The worker making the application (or each of the workers making the application) and the union (or each of the unions) are entitled to enforce obedience to the order.
(3) The order may be enforced—
(a) in England and Wales, in the same way as an order of the county court;
(b) in Scotland, in the same way as an order of the sheriff.
Ballots
49 (1) Paragraph 117 (ballots: general) is amended as follows.
(2) In sub-paragraph (1), for “This paragraph” substitute “Sub-paragraph (3)”.
(3) In sub-paragraph (2), for “This paragraph” substitute “Sub-paragraph (3)”.
(4) In sub-paragraph (4), for “The ballot” substitute “A ballot arranged under sub-paragraph (3), or under paragraph 116J(5),”.
50 (1) Paragraph 118 (duties of employer in relation to ballot) is amended as follows.
(2) In sub-paragraph (1), omit “five”.
(3) In sub-paragraph (2)—
(a) for “The first duty is to” substitute “The employer must”;
(b) for “the second and third duties are not” substitute “no other duty of the employer under this Part of this Schedule is”.
(4) Omit sub-paragraph (3).
(5) In sub-paragraph (4)—
(a) in the words before paragraph (a), for “The third duty is to” substitute “The employer must”;
(b) in paragraph (a), for “to give” substitute “give”;
(c) in paragraph (b), for “to give” substitute “give”;
(d) in paragraph (c), for “to inform” substitute “inform”.
(6) After sub-paragraph (4) insert—
(4ZA) If the ballot is arranged under paragraph 116J(5), the duty under sub-paragraph (4)(a) is limited to—
(a) giving the CAC the names and home addresses of any workers in the bargaining unit which have not previously been given to it in accordance with that duty;
(b) giving the CAC the names and home addresses of those workers who have joined the bargaining unit since the employer last gave the CAC information in accordance with that duty;
(c) informing the CAC of any change to the name or home address of a worker whose name and home address have previously been given to the CAC in accordance with that duty;
(d) informing the CAC of any worker whose name had previously been given to it in accordance with that duty who has ceased to be within the bargaining unit.
(7) Omit sub-paragraphs (4A) to (4E), (8) and (9).
51 In paragraph 119 (breach of paragraph 118), after sub-paragraph (4) insert—
(5) If—
(a) the ballot has been arranged in consequence of an application under paragraph 112,
(b) the CAC has made an order against the employer under sub-paragraph (1), and
(c) the ballot has not been held,
the worker making the application (or each of the workers making the application) and the union (or each of the unions) are entitled to enforce obedience to the order.
(6) The order may be enforced—
(a) in England and Wales, in the same way as an order of the county court;
(b) in Scotland, in the same way as an order of the sheriff.
52 After paragraph 119 insert—
119ZA (1) This paragraph applies if—
(a) the union has (or unions have) been informed of a ballot under paragraph 117(11), and
(b) the CAC refuses an application or issues a declaration under paragraph 116E.
(2) If the ballot has not been held, the CAC must take steps to cancel it.
(3) If the ballot is held, it is to have no effect.
119ZB (1) This paragraph applies if—
(a) the union has (or unions have) been informed of a ballot under paragraph 117(11),
(b) a complaint is made under paragraph 116I, and
(c) the ballot did not begin before the beginning of the decision period referred to in paragraph 116I(5).
(2) The CAC may by notice to the parties and the qualified independent person postpone the date on which the ballot is to begin until a date which falls after the end of the decision period.
(3) In relation to an application under paragraph 112, “the parties” includes the worker or workers making the application.
119ZC (1) This paragraph applies if—
(a) the union has (or unions have) been informed of a ballot under paragraph 117(11),
(b) the CAC issues a declaration that a complaint under paragraph 116I is well-founded, and
(c) the CAC—
(i) makes arrangements under paragraph 116J(5),
(ii) refuses under paragraph 116K(4)(a) or (6) an application under paragraph 106, 107 or 112, or
(iii) issues a declaration under paragraph 116K(5).
(2) If the ballot has not been held, the CAC must take steps to cancel it.
(3) If the ballot is held, it is to have no effect.
119ZD (1) This paragraph applies if—
(a) the CAC makes arrangements under paragraph 116J(5), and
(b) the CAC has previously given an order under paragraph 119(1) in relation to a cancelled or ineffective ballot in connection with the application to which the notice relates.
(2) The order has effect, to the extent that the CAC specifies in a notice to the parties, as if it were made for the purposes of the ballot for which arrangements are made under paragraph 116J(5).
(3) In relation to an application under paragraph 112, “the parties” includes the worker or workers making the application.
53 Omit paragraphs 119A to 119I (unfair practices during ballot).
54 (1) Paragraph 120 (costs of ballot) is amended as follows.
(2) In sub-paragraph (1), after “paragraph” insert “116J(5) or”.
(3) After sub-paragraph (1) insert—
(1A) If the holding of the ballot is arranged under paragraph 116J(5), the gross costs of the ballot are to be borne by such of the parties and in such proportions as the CAC may determine.
(1B) In relation to an application under paragraph 112, “the parties” includes the worker or workers making the application.
(4) In sub-paragraph (2), for “The gross costs” substitute “If the holding of the ballot is arranged under paragraph 117(3), the gross costs”.
(5) In sub-paragraph (4), for “the employer and the union (or each of the unions)” substitute “the party or parties required to bear the costs”.
55 In paragraph 121 (result of ballot), for sub-paragraphs (1) and (1A) substitute—
(1) The CAC must act under this paragraph as soon as reasonably practicable after—
(a) the CAC is informed of the result of a ballot by the person conducting it, and
(b) the complaint period ends.
(1ZA) The complaint period is the period of 5 working days starting with the day after—
(a) the date of the ballot, or
(b) if votes may be cast in the ballot on more than one day, the last of those days.
(1A) The duty in sub-paragraph (1) does not apply—
(a) if a complaint is made under paragraph 116I, on or before the day on which the CAC decides whether the complaint is well-founded;
(b) if the CAC makes arrangements under paragraph 116J(5).
Derecognition where recognition automatic
56 In paragraph 122 (derecognition where recognition automatic on agreed terms), in sub-paragraph (1)(a)—
(a) for “19F(5),” substitute “13B(6), 19F(5), 19K(4), 19P(4),”;
(b) for “, 27(2) or 27D(3)” substitute “or 27(2)”.
57 In paragraph 123 (derecognition where recognition automatic on specified terms), in sub-paragraph (1)(a)—
(a) for “19F(5),” substitute “13B(6), 19F(5), 19K(4), 19P(4),”;
(b) for “, 27(2) or 27D(3)” substitute “or 27(2)”.
58 In paragraph 124 (derecognition where recognition automatic following changes to bargaining unit), in sub-paragraph (1), after “paragraph” insert “81E(4), 81J(4) or”.
59 After paragraph 132 insert—
Access agreements
132A Paragraphs 116A to 116E apply if the CAC accepts an application under paragraph 128 (as well as in the cases mentioned in paragraph 116A(1)), as if—
(a) the references in paragraphs 116A(1) and (4), 116B(1)(a), 116C(1)(a), 116D(1)(b) and 116E(1)(b) and (3)(b) to paragraph 106, 107 or 112 were to paragraph 106, 107, 112 or 128;
(b) the references in paragraphs 116A(3) and 116B(3)(a) to paragraph 111(5) or 115(5) were to paragraph 111(5), 115(5) or 132(5);
(c) the references in paragraphs 116A(4)(a) and 116E(4)(a) to paragraph 106 or 107 were to paragraph 106, 107 or 128.
60 After paragraph 132A (inserted by paragraph 59 of this Schedule) insert—
Unfair practices
132B Paragraphs 116H to 116K apply if the CAC accepts an application under paragraph 128 (as well as in the cases mentioned in paragraph 116H), as if—
(a) the references in paragraphs 116H(1) and (4)(a)(ii) and 116K(1)(b) to paragraph 106, 107 or 112 were to paragraph 106, 107, 112 or 128;
(b) the reference in paragraph 116H(1) to paragraph 111(5) or 115(5) were to paragraph 111(5), 115(5) or 132(5);
(c) the references in paragraphs 116I(2)(a), 116J(6)(a) and 116K(4)(a) to paragraph 106 or 107 were to paragraph 106, 107 or 128.
61 (1) Paragraph 133 (ballot on derecognition) is amended as follows.
(2) In sub-paragraph (1), for “and (2)” substitute “, (2) and (4)”.
(3) In sub-paragraph (2)—
(a) in paragraph (a), for “references in paragraphs 119(2)(a) and 119D(3)” substitute “reference in paragraph 119(2)(a)”;
(b) in paragraph (b), for “119A(3)(a)(ii), 119E(1)(b)” substitute “119ZC(1)(c)(ii)”.
Derecognition where union not independent
62 After paragraph 146 insert—
Access agreements
146A Paragraphs 116A to 116F apply if the CAC accepts an application under paragraph 137 (as well as in the cases mentioned in paragraph 116A(1)), as if—
(a) the references in paragraphs 116A(1) and (4), 116B(1)(a), 116C(1)(a), 116D(1)(b) and 116E(1)(b) and (3)(b) to paragraph 106, 107 or 112 were to paragraph 106, 107, 112 or 137;
(b) the references in paragraphs 116A(4)(b), 116E(4)(b) and 116F(1) to paragraph 112 were to paragraph 112 or 137;
(c) the references in paragraphs 116A(3) and 116B(3)(a) to paragraph 111(5) or 115(5) were to paragraph 111(5), 115(5) or 141(5);
(d) the reference in paragraph 116A(4)(b) to paragraph 116(1) were to paragraph 116(1), 142(1) or 145(3).
63 After paragraph 146A (inserted by paragraph 62 of this Schedule) insert—
Unfair practices
146B Paragraphs 116H to 116L apply if the CAC accepts an application under paragraph 137 (as well as in the cases mentioned in paragraph 116H), as if—
(a) the references in paragraphs 116H(1) and (4)(a)(ii) and 116K(1)(b) to paragraph 106, 107 or 112 were to paragraph 106, 107, 112 or 137;
(b) the reference in paragraph 116H(1) to paragraph 111(5) or 115(5) were to paragraph 111(5), 115(5) or 141(5);
(c) the references in paragraphs 116H(5), 116I(2)(b), 116J(6)(b), 116K(1)(b), (4)(b) and (6) and 116L(1) to paragraph 112 were to paragraph 112 or 137;
(d) the references in paragraphs 116I(2)(b) and 116J(6)(b) to paragraph 116(1) were to paragraph 116(1), 142(1) or 145(3).
64 (1) Paragraph 147 (ballot on derecognition) is amended as follows.
(2) In sub-paragraph (1), for “and (2)” substitute “, (2) and (4)”.
(3) In sub-paragraph (2)—
(a) in paragraph (a), for “references in paragraphs 119H(1) and 119I(1)(a)” substitute “reference in paragraph 119(5)(a)”;
(b) in paragraph (b), for “119A(3)(a)(ii), 119E(1)(b)” substitute “119ZC(1)(c)(ii)”;
(c) after paragraph (c) insert—
(d) the reference in paragraph 119ZA(1)(b) to the CAC refusing an application included a reference to it being required to give notice under paragraph 146(5).
Part 5 Meaning of “the required percentage”
65 After paragraph 171A insert—
“The required percentage”
171B (1) In this Schedule, “the required percentage” means 10%.
(2) The Secretary of State may by regulations amend this paragraph so that the required percentage is a percentage—
(a) not greater than 10%, and
(b) not less than 2%.
(3) Regulations under sub-paragraph (2)—
(a) are to be made by statutory instrument;
(b) may include supplementary, incidental, saving or transitional provision, including provision amending this Schedule;
(c) may make different provision for different cases.
(4) A statutory instrument containing regulations under sub-paragraph (2) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
Part 6 Consequential amendments
66 (1) The Employment Relations Act 2004 is amended as follows.
(2) In section 9—
(a) omit subsections (1) to (4);
(b) in subsection (5), for “that Schedule” substitute “Schedule A1 to the 1992 Act”;
(c) omit subsections (6) to (9).
(3) Omit section 10.
(4) Omit section 13.
(5) In paragraph 23 of Schedule 1—
(a) in sub-paragraph (10), omit paragraph (b) (and the “and” before it);
(b) in sub-paragraph (11), omit paragraph (b) (and the “and” before it);
(c) in sub-paragraph (13), omit paragraph (b) (and the “and” before it);
(d) in sub-paragraph (14), omit paragraph (b) (and the “and” before it);
(e) omit sub-paragraph (19);
(f) in sub-paragraph (26), omit paragraph (a) (and the “and” after it);
(g) in sub-paragraph (27), omit paragraph (a) (and the “and” after it).
Schedule 7 Legislation subject to enforcement under Part 5
Section 90(1)
Part 1 Relevant labour market legislation
Employment Agencies Act 1973
1 The Employment Agencies Act 1973 (employment agencies and employment businesses).
2 Regulations under section 5 of that Act (conduct of employment agencies and businesses).
Employment Tribunals Act 1996
13 Part 2A of the Employment Tribunals Act 1996 (financial penalties for failure to pay sums ordered to be paid or settlement sums).
National Minimum Wage Act 1998
14 Section 1 of the National Minimum Wage Act 1998 (entitlement to the national minimum wage).
15 Regulations under section 9 of that Act (duty of employers to keep records).
16 Section 10 of that Act (worker’s right of access to records).
17 Regulations under section 12 of that Act (employer to provide worker with national minimum wage statement).
18 Section 17 of that Act (non-compliance: worker entitled to additional remuneration).
19 Section 23 of that Act (right not to suffer detriment).
20 Section 31 of that Act (offences).
Gangmasters (Licensing) Act 2004
22 Section 6 of the Gangmasters (Licensing) Act 2004 (prohibition of unlicensed activities).
23 Rules under section 8 of that Act (power to make rules in connection with licensing of persons acting as gangmasters).
24 Section 9 of that Act (modification, revocation or transfer of licence).
25 Sections 12 and 13 of that Act (offences).
26 The references in paragraphs 22 and 25 to the Gangmasters (Licensing) Act 2004 are to that Act only so far as it applies in relation to England and Wales and Scotland.
Fraud Act 2006
27 Section 1 of the Fraud Act 2006, so far as relating to an offence which—
(a) is committed under the law of England and Wales by virtue of section 4 of that Act (fraud by abuse of position), and
(b) is committed in relation to a worker.
Modern Slavery Act 2015
28 Section 1 of the Modern Slavery Act 2015 (offence of slavery, servitude and forced or compulsory labour).
29 Sections 2 and 4 of that Act (human trafficking), so far as relating to an offence—
(a) which is committed in relation to a worker, or
(b) which is otherwise committed in circumstances where subsection (2) of section 3 of that Act applies.
30 (1) Part 2 of that Act (prevention orders), so far as relating to—
(a) the making of orders under that Part on the application of the Secretary of State,
(b) offences committed in relation to orders made under that Part on such an application, or
(c) offences committed in relation to orders within sub-paragraph (2).
(2) An order is within this sub-paragraph if—
(a) the order was made under section 14 of that Act following—
(i) the conviction of the defendant of a relevant offence, or
(ii) a finding of a kind mentioned in section 14(1)(b) or (c) of that Act in connection with a relevant offence, and
(b) the prosecution resulted from an investigation conducted by or on behalf of the Secretary of State.
(3) In sub-paragraph (2) “relevant offence” means—
(a) an offence under section 1 of the Modern Slavery Act 2015;
(b) an offence under section 2 or 4 of that Act falling within paragraph 29;
(c) an ancillary offence relating to an offence within paragraph (a) or (b).
33 Sections 119 to 129 and 139 (LME undertakings and orders).
34 Sections 140 and 142 (offences relating to Part 5).
Part 2 Power to amend Part 1
35 (1) The Secretary of State may by regulations amend Part 1 of this Schedule in order to—
(a) add an enactment to the list of legislation in that Part, or
(b) vary a reference to an enactment in that list.
(2) Regulations under this paragraph may add an enactment only if it relates to—
(a) rights or entitlements conferred on employees or workers;
(b) the treatment of employees or workers;
(c) requirements, restrictions or prohibitions imposed on employers;
(d) trade unions, employers’ associations, industrial action or labour relations.
(3) Regulations under this paragraph may not add an enactment that deals with a transferred matter, or vary a reference to such an enactment, without the consent of the appropriate Northern Ireland department.
(4) For the purposes of sub-paragraph (3)—
“the appropriate Northern Ireland department”, in relation to an enactment that deals with a transferred matter, means the Northern Ireland department which has responsibility for that matter;
“deals with” is to be read in accordance with section 98(2) and (3) of the Northern Ireland Act 1998;
“transferred matter” has the meaning given by section 4(1) of that Act.
(5) Regulations under this paragraph may amend any of the following provisions in consequence of an amendment of Part 1 of this Schedule—
(a) section 91 (enforcement functions of Secretary of State);
(b) section 92 (delegation of functions);
(c) section 103 (power to give notice of underpayment);
(d) section 150 (meaning of “non-compliance with relevant labour market legislation”).
(6) Regulations under this paragraph that add an enactment which—
(a) confers a right or entitlement to the payment of any sum to an individual, or
(b) prohibits or restricts the withholding of payment of any sum to an individual,
may provide that a notice of underpayment relating to sums due under or by virtue of the enactment may relate to sums becoming due before the coming into force of the regulations.
(7) Regulations under this paragraph are subject to the affirmative resolution procedure.