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Employment Relations Act 2004

Determination of appropriate bargaining unit

30.Sections 1 and 4 clarify how an appropriate bargaining unit is to be determined by the CAC. Section 2 provides a power for the CAC to reduce the 20-day negotiation period for the parties to agree a bargaining unit. Section 3 imposes a duty on the employer to supply information to the union(s) to assist with this process.

31.Section 1 amends paragraphs 11(2) and 12(2) of Schedule A1, under which a union may make an application to the CAC where the employer refuses or fails to respond to a request for recognition (paragraph 11(2)), or where negotiations with the employer fail (paragraph 12(2)).

32.The union(s) may currently ask the CAC to decide whether the union’s proposed bargaining unit or some other bargaining unit is appropriate, and whether the union(s) have the support of a majority of the workers in the appropriate bargaining unit. Section 1 clarifies that unions may apply to the CAC to decide only whether the union’s proposed bargaining unit is appropriate and whether the union(s) have the support of a majority of the workers in the appropriate bargaining unit. Section 1, together with section 4, ensures that the CAC first considers the union’s proposed bargaining unit. Only if it decided that this unit is not appropriate will it move on to decide a unit which is appropriate.

33.Sections 2 to 4 apply where the CAC accepts a union’s application for recognition (under paragraph 11(2) or 12(2)). The next stage is for the parties to try to agree a bargaining unit. Paragraph 18(2) of Schedule A1 provides that the parties, with the CAC’s assistance, will have 20 days (or some other longer period specified by the CAC) to try to reach agreement. This is called the “appropriate period”.

34.Section 2 amends paragraph 18.

35.Subsection (3) inserts sub-paragraphs (3) to (7) into paragraph 18. Sub-paragraphs (3) and (4) permit the CAC, where it sees no reasonable prospect of the parties reaching an agreement, or on the request of both parties, to shorten the appropriate period.

36.Sub-paragraph (5) allows the CAC to extend the period, where it has previously reduced it at the parties’ request under sub-paragraph (4). This allows the parties more time to try to reach an agreement if needed.

37.Sub-paragraphs (6) and (7) oblige the CAC to state the reason(s) respectively why it considers that the parties have no reasonable prospect of reaching an agreement on the bargaining unit and for extending the period under sub-paragraph (5).

38.Section 3 inserts paragraph 18A into Schedule A1. It requires the employer to supply information to the union and to the CAC about the workers in the union’s proposed bargaining unit.

39.Paragraph 18A(2) provides that the information must be supplied to the union and CAC, within 5 working days of the day after the CAC gives notice of its acceptance of the union’s application. It makes clear that the information to be supplied by the employer is:

  • a list of the categories of worker in the proposed bargaining unit;

  • a list of the workplaces at which the workers in the proposed bargaining unit work; and

  • the number of workers the employer reasonably believes to be in each category at each workplace in the proposed bargaining unit.

40.Paragraph 18A(3) obliges the employer to ensure that the information supplied is as accurate as reasonably practicable, given the information he possesses at the time. Paragraph 18A(4) requires that the lists supplied to the union(s) and the CAC are the same.

41.Section 4 replaces paragraph 19 of Schedule A1. The new provisions set out the way in which the CAC will determine the appropriate bargaining unit where the parties have failed to reach agreement. It clarifies that the CAC, when deciding the bargaining unit, must first consider the bargaining unit proposed by the union (the “proposed” bargaining unit). If the CAC does not consider the unit proposed by the union to be appropriate, it must decide a unit which is appropriate. The CAC has 10 days (or an extended period) to make this determination.

42.The new paragraph 19 applies if:

  • the CAC has accepted a union’s application;

  • the parties have not yet agreed an appropriate bargaining unit; and

  • either no request has been made under paragraph 19A by the union or, if that request has been made, the CAC is not of the opinion that the employer has failed to comply with the duty imposed by paragraph 18A.

43.Paragraph 18A, as explained above, requires the employer to supply the CAC and the union with information about the workers in the union’s proposed bargaining unit. If the new paragraph 19 applies, then the CAC must decide, within the decision period, whether the union’s proposed bargaining unit is appropriate. In deciding whether the proposed bargaining unit is appropriate, the CAC must take into account the factors listed in paragraphs 19B(2), (3) and (4). Paragraphs 19B(3)(a) and 19B(4) make clear that the views of the employer must be considered and set out how these views will be taken into account. It provides that the CAC, in deciding whether the union’s proposed bargaining unit is appropriate, must take into account any view the employer expresses about an alternative unit(s).

44.Additionally, new paragraph 19A permits the CAC, where so requested by the union(s), to move to decide the bargaining unit before the expiration of the 20-day negotiation period, if the employer fails to provide the information required under the new paragraph 18A inserted by section 3. Thus, where an employer fails to provide information that may assist agreement on the bargaining unit, the union(s) may request a move to the determination of the bargaining unit and prevent unnecessary delay to the process. New sub-paragraphs 19A(2) to (4) mirror the provisions of paragraph 19 setting out the order of the CAC’s decision-making and the period within which it must decide.

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