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The Employment Relations (Northern Ireland) Order 2004

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This is the original version (as it was originally made).

Unfair practices in relation to recognition ballots

10.  After paragraph 27 of Schedule 1A to the 1995 Order insert—

27A.(1) Each of the parties informed by the Court under paragraph 25(9) must refrain from using any unfair practice.

(2) A party uses an unfair practice if, with a view to influencing the result of the ballot, the party—

(a)offers to pay money or give money’s worth to a worker entitled to vote in the ballot in return for the worker’s agreement to vote in a particular way or to abstain from voting,

(b)makes an outcome-specific offer to a worker entitled to vote in the ballot;

(c)coerces or attempts to coerce a worker entitled to vote in the ballot to disclose—

(i)whether he intends to vote or to abstain from voting in the ballot, or

(ii)how he intends to vote, or how he has voted, in the ballot,

(d)dismisses or threatens to dismiss a worker,

(e)takes or threatens to take disciplinary action against a worker,

(f)subjects or threatens to subject a worker to any other detriment, or

(g)uses or attempts to use undue influence on a worker entitled to vote in the ballot.

(3) For the purposes of sub-paragraph (2)(b) an “outcome-specific offer” is an offer to pay money or give money’s worth which—

(a)is conditional on the issuing by the Court of a declaration that—

(i)the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the 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.

(4) 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.

(5) Each of the following powers shall be taken to include power to issue Codes of Practice about unfair practices for the purposes of this paragraph—

(a)the power of the Agency under Article 90 of the 1992 Order;

(b)the power of the Department under Article 95 of that Order.

27B.(1) A party may complain to the Court that another party has failed to comply with paragraph 27A.

(2) A complaint under sub-paragraph (1) must be made on or before the first working 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.

(3) Within the decision period the Court must decide whether the complaint is well-founded.

(4) A complaint is well-founded if—

(a)the Court finds that the party complained against used an unfair practice, and

(b)the Court is satisfied that the use of that practice changed or was likely to change, in the case of a worker entitled to vote in the ballot—

(i)his intention to vote or to abstain from voting,

(ii)his intention to vote in a particular way, or

(iii)how he voted.

(5) The decision period is—

(a)the period of 10 working days starting with the day after that on which the complaint under sub-paragraph (1) was received by the Court, or

(b)such longer period (so starting) as the Court may specify to the parties by a notice containing reasons for the extension.

(6) If, at the beginning of the decision period, the ballot has not begun, the Court may by notice to the parties and the qualified independent person postpone the date on which it is to begin until a date which falls after the end of the decision period.

27C.(1) This paragraph applies if the Court decides that a complaint under paragraph 27B is well-founded.

(2) The Court must, as soon as is reasonably practicable, issue a declaration to that effect.

(3) The Court may do either or both of the following—

(a)order the party concerned to take any action specified in the order within such period as may be so specified, or

(b)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 are asked whether they want the union (or unions) to conduct collective bargaining on their behalf.

(4) The Court may give an order or a notice under sub-paragraph (3) either at the same time as it issues the declaration under sub-paragraph (2) or at any other time before it acts under paragraph 29.

(5) The action specified in an order under sub-paragraph (3)(a) shall be such as the Court considers reasonable in order to mitigate the effect of the failure of the party concerned to comply with the duty imposed by paragraph 27A.

(6) The Court may give more than one order under sub-paragraph (3)(a).

27D.(1) This paragraph applies if the Court issues a declaration under paragraph 27C(2) and 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.

(2) This paragraph also applies if the Court has made an order under paragraph 27C(3)(a) 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 27C(2) in relation to a complaint against that party.

(3) If the party concerned is the employer, the Court may issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.

(4) If the party concerned is a union, the Court may issue a declaration that the union is (or unions are) not entitled to be so recognised.

(5) The powers conferred by this paragraph are in addition to those conferred by paragraph 27C(3).

27E.(1) This paragraph applies if the Court issues a declaration that a complaint under paragraph 27B is well-founded and—

(a)gives a notice under paragraph 27C(3)(b), or

(b)issues a declaration under paragraph 27D.

(2) If the ballot in connection with which the complaint was made has not been held, the Court shall take steps to cancel it.

(3) If that ballot is held, it shall have no effect.

27F.(1) This paragraph applies if the Court gives a notice under paragraph 27C(3)(b).

(2) Paragraphs 24 to 29 apply in relation to that notice as they apply in relation to a notice given under paragraph 22(3) or 23(2) but with the modifications specified in sub-paragraphs (3) to (6).

(3) In each of sub-paragraphs (5)(a) and (6)(a) of paragraph 24 for “10 working days” substitute “5 working days”.

(4) An employer’s duty under paragraph (a) of paragraph 26(4) is limited to—

(a)giving the Court 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 Court the names and home addresses of those workers who have joined the bargaining unit since he last gave the Court information in accordance with that duty;

(c)informing the Court of any change to the name or home address of a worker whose name and home address have previously been given to the Court in accordance with that duty; and

(d)informing the Court 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.

(5) Any order given under paragraph 27(1) or 27C(3)(a) for the purposes of the cancelled or ineffectual ballot shall have effect (to the extent that the Court specifies in a notice to the parties) as if it were made for the purposes of the ballot to which the notice under paragraph 27C(3)(b) relates.

(6) The gross costs of the ballot shall be borne by such of the parties and in such proportions as the Court may determine and, accordingly, sub-paragraphs (2) and (3) of paragraph 28 shall be omitted and the reference in sub-paragraph (4) of that paragraph to the employer and the union (or each of the unions) shall be construed as a reference to the party or parties which bear the costs in accordance with the Court’s determination..

(2) In paragraph 29 of that Schedule (duties of the Court when informed of result of ballot), after sub-paragraph (1) insert—

(1A) The duty in sub-paragraph (1) does not apply if the Court gives a notice under paragraph 27C(3)(b)..

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