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Employment Relations Act 2004

Employer’s notice to end bargaining arrangements

88.Section 12 amends those provisions in Part IV of Schedule A1 which deal with an employer’s notice under paragraph 99 of the Schedule that he wishes the bargaining arrangements (that are the result of an earlier declaration of statutory recognition by the CAC) to cease to have effect. Such notice may be given if both the employer believes that he, taken with any associated employer(s), employed an average of fewer than 21 workers in a given 13 week period and three years have passed since the CAC awarded recognition. The CAC must decide if such a notice complies with the requirements of paragraph 99(3). These are that the notice:

  • identifies the bargaining arrangements;

  • specifies the period of 13 weeks in question;

  • states the date on which the notice is given;

  • is given within 5 working days of the day after the day on which the specified 13-week period ends;

  • states that the employer, taken with any associated employers, employed an average of fewer than 21 workers in the specified 13-week period; and

  • states that the bargaining arrangements are to cease to have effect on a date at least 35 days later than the day after the date on which the notice has been given.

89.If the notice complies with the above the bargaining arrangements will cease to have effect on the day stated unless the union makes an application to the CAC under paragraph 101 of the Schedule, asking it to decide whether the period of 13 weeks specified by the employer in fact ended on or after the expiry of three years starting with the date of the CAC’s declaration of recognition and whether it is correct that the employer, and any associated employers, employed an average of fewer than 21 workers in the specified 13-week period. If the CAC accepts this application by the union, it must allow both union and employer to put their views on the questions to be decided and reach a decision about them. If the CAC decides that the employer’s notice is correct and three years have passed since its declaration, then the bargaining arrangements will cease to have effect on the termination date. If the CAC finds that the employer’s notice has been given within three years of its declaration, or that the notice is not correct, the employer’s notice is treated as though it had not been given.

90.Currently, an application by the union under paragraph 101 to challenge the employer’s notice cannot be accepted by the CAC if within the period of three years prior to that application the CAC has accepted an application

  • by the union under paragraph 101, or

  • by the employer or a worker or workers under paragraph 106, 107, 112 or 128, that the bargaining arrangements should cease to have effect.

and the two applications are in respect of the same bargaining unit. This has the effect that if the union has successfully challenged an employer’s notice to end bargaining arrangements or has won a derecognition ballot in the previous three years, it cannot challenge a further application by the employer under paragraph 99, thus allowing the union to be derecognised without having an opportunity to put its views before the CAC.

91.Section 12 rectifies this anomaly by providing that a previous relevant application (either a challenging application by the union, or an application to have bargaining arrangements ended by the employer or worker(s)) does not render an application by the union under paragraph 101 inadmissible. The section also provides that any unsuccessful application or notice to derecognise the union by the employer or a worker (or workers) renders any further such applications inadmissible for a period of three years.

92.Section 12(4) inserts paragraph 99A which provides that a derecognition notice given by the employer under paragraph 99 is invalidated if a relevant application or earlier notice relating to the same bargaining unit was given within three years prior to the date on which the current derecognition notice is given, that relevant application was accepted by the CAC, or the CAC decided that that notice complied with paragraph 99(3). A relevant application is an application for derecognition made by the employer under paragraph 106, 107 or 128, or an application by a worker (or workers) under paragraph 112.

93.Subsections (1) to (3) and (5) make consequential amendments to paragraphs 99 and 100.

94.Subsection (6) removes the bars (which are explained in paragraph 90 above) on a union’s application in response to an employer’s notice contained in paragraph 101(4) and (5). These paragraphs restricted a union’s ability to challenge an employer’s notice to end bargaining arrangements.

95.Subsection (7) inserts new sub-paragraphs into paragraph 103 to ensure that a derecognition notice by the employer under paragraph 99 shall be treated as given for the purposes of deciding the admissibility of derecognition applications by the employer or worker(s) under paragraphs 106, 107, 112 and 128 or for deciding the validity of later notices under paragraph 99 even though it is not treated as being given for other purposes.

96.Subsection (8) amends paragraphs 109, 113 and 130 of the Schedule. It has the effect that if there is a derecognition application by the employer or worker(s) under paragraphs 106, 107, 112 or 128 and within the three years prior to the date of the application a notice under paragraph 99 was given which the CAC decided complied with paragraph 99(3) the CAC must not accept the derecognition application.

97.Subsection (9) ensures that an application by the union(s) under paragraph 101 in the three years prior to the date of a derecognition application under paragraph 106, 107, 112 or 128 does not render that later application inadmissible.

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