The Employment Relations (Northern Ireland) Order 1999

Article 6.

SCHEDULE 3 BALLOTS AND NOTICES

Introduction

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

Support of ballot

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

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

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

(3) In paragraph (4) for “109(1)” substitute “109(3)”.

(4) After paragraph (4) insert—

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

Documents for employers

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

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

(3) After paragraph (3) insert—

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

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

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

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

Entitlement to vote

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

Separate workplace ballots

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

“Separate workplace ballots

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

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

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

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

(b) have that workplace.

(4) In this Article and Article 109A “workplace” in relation to a person who is employed means—

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

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

Separate workplaces: single and aggregate ballots

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

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

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

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

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

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

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

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

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

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

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

Voting

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

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

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

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

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

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

Conduct of ballot: merchant seamen

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

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

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

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

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

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

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

Inducement

8.  After Article 115 insert—

“Inducement of member denied entitlement to vote

115A.   Industrial action shall not be regarded as having the support of a ballot if the following conditions apply in the case of any person—

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

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

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

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

Disregard of certain failures

9.  After Article 115A there shall be inserted—

“Small accidental failures to be disregarded

115B.— (1) If—

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

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

the failure (or failures) shall be disregarded.

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

Period of ballot’s effectiveness

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

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

(a) of four weeks; or

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

Notice of industrial action

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

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

(3) After paragraph (5) insert—

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

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

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

(4) In paragraph (7)—

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

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

(5) After paragraph (7) insert—

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

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

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

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

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

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