Introductory
Title and commencement
1.—(1) This Order may be cited as the Industrial Relations (Northern Ireland) Order 1987.
(2) This Order shall come into operation on such day or days as the Head of the Department may by order appoint.
(3) An order under paragraph (2) may contain such transitional and supplemental provisions as appear to the Head of the Department to be necessary or expedient.
(4) Without prejudice to paragraph (3)—
(a)an order under paragraph (2) bringing Article 5 into operation may provide that, for such period as may be specified in the order, Article 22A of the No. 1 Order (as substituted by Article 5) shall have effect as if Article 22A(3)(c) applied only to a union membership agreement taking effect in relation to the employees in question after 3rd May 1982; and
(b)an order under paragraph (2) bringing Article 11 into operation may make corresponding provision in respect of Article 33(6) of the No. 2 Order (as substituted by Article 11).
(5) This Order shall be construed as one with the Industrial Relations (Northern Ireland) Orders 1976 to 1982 and those Orders and this Order may be cited together as the Industrial Relations (Northern Ireland) Orders 1976 to 1987.
Interpretation
2.—(1) The Interpretation Act (Northern Ireland)[1954 c. 33 (N.I.)] 1954 shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.
(2) Without prejudice to the generality of Article 1(5), the provisions of Articles 2(2) to (9) and 3 of the Industrial Relations (Northern Ireland) Order[1976 NI 16] 1976 and of Article 2(2) of the Industrial Relations (No. 2) (Northern Ireland) Order[1976 NI 28] 1976, in so far as those provisions relate to the definition or interpretation of words or expressions used in those Orders and in this Order, shall apply for the purposes of this Order as they apply for the purposes of those Orders.
Employee involvement
Employee involvement
3.—(1) In Article 243(5) of the Companies (Northern Ireland) Order[1986 NI 6] 1986 (matters to be dealt with in directors' report) for the words “and IV” there shall be substituted the words “IV and V” and at the end there shll be added the words “and th involvemnt of employees in th affairs, policy and performance of the company”.
(2) At the end of Schedule 7 of that Order there shall be added—
“PART VEMPLOYEE INVOLVEMENT
11.—(1) This part applies to the director’s report where the average number of persons employed by the company in each week during the financial year exceeded 250.
(2) That average number is the quotient derived by dividing by the number of weeks in the financial year the number derived by ascertaining, in relation to each of those weeks, the number of persons who, under contracts of service, were employed in the week (whether throughout it or not) by the company, and adding up the numbers ascertained.
(3) The directors' report shall in that case contain a statement describing the action that has been taken during the financial year to intorduce, maintain or develop arrangements aimed at—
(a)providing employees systematically with information on matters of concern to them as employees;
(b)consulting employees or their representatives on a regular basis so that the views of employees can be taken into account in making decisions which are likely to affect their interests;
(c)encouraging the involvement of employees in the company’s performance through an employees' share scheme or by some other means;
(d)achieving a common awareness on the part of all employees of the financial and economic factors affecting the performance of the company.
(4) In sub-paragraph (3) “employee” does not include a person employed to work wholly or mainly outside the United Kingdom; and for the purposes of sub-paragraph (2) no regard is to be had to such a person.”.
Unfair dismissal
Compensation for certain dismissals
4. The provisions of Schedule 1 shall have effect for the purpose of enabling the Department to make payments towards compensating individuals who in certain past cases have been dismissed for failure to conform to the requirements of a union membership agreement.
Meaning of unfair dismissal
5.—(1) In Article 22 of the No. 1 Order for paragraphs (3) to (11) there shall be substituted—
“(3) Where the employer has fulfilled the requirements of paragraph (1), then, subject to Articles 22A to 23 and to Article 14 of the No. 2 Order, the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case.
(4) In this Article, in relation to an employee—
(a)“capability” means capability assessed by reference to skill, aptitude, health or any other physical or mental quality;
(b)“qualifications” means any degree, diploma or other academic, technical or professional qualification relevant to the position which the employee held.”.
(2) For Articles 22A and 23 of the No. 1 Order there shall be substituted—
“Dismissal relating to trade union membership
22A.—(1) Subject to paragraph (3), the dismissal of an employee by an employer shall be regarded for the purposes of this Order as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee—
(a)was, or proposed to become, a member of an independent trade union; or
(b)had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time; or
(c)was not a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, or had refused or proposed to refuse to become or remain a member.
(2) In paragraph (1) “an appropriate time”, in relation to an employee taking part in the activities of a trade union, means a time which either—
(a)is outside his working hours; or
(b)is a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in those activities; and in this paragraph “working hours”, in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work.
(3) Subject to the following provisions of this Article, the dismissal of an employee by an employer shall be regarded for the purposes of this Order as having been fair if—
(a)it is the practice, in accordance with a union membership agreement, for employees of the employer who are of the same class as the dismissed employee to belong to a specified independent trade union, or to one of a number of specified independent trade unions; and
(b)the reason (or, if more than one, the principal reason) for the dismissal was that the employee was not, or had refused or proposed to refuse to become or remain, a member of a union in accordance with the agreement; and
(c)the union membership agreement had been approved in relation to employees of that class in accordance with Article 22B through a ballot held within the period of five years ending with the time of dismissal.
(4) Paragraph (3) shall not apply if the employee genuinely objects on grounds of conscience or other deeply-held personal conviction to being a member of any trade union whatsoever or of a particular trade union.
(5) Paragraph (3) shall not apply if the employee—
(a)has been among those employees of the employer who belong to the class to which the union membership agreement relates since before the agreement had the effect of requiring them to be or become members of a trade union; and
(b)has not at any time while the agreement had that effect been a member of a trade union in accordance with the agreement.
(6) Paragraph (3) shall not apply if—
(a)the union membership agreement took effect after 3rd May 1982 in relation to the employees of the employer who are of the same class as the dismissed employee; and
(b)the employee was entitled to vote in the ballot through which the agreement was approved in accordance with Article 22B or, if there have been two or more such ballots, in the first of them; and
(c)the employee has not at any time since the day on which that ballot was held been a member of a trade union in accordance with the agreement.
(7) Paragraph (3) shall not apply if the dismissal was from employment in respect of which, at the time of dismissal, either—
(a)there was in force a declaration made on a complaint presented by the employee under Article 6 of the Industrial Relations (Northern Ireland) Order[1982 NI 8] 1982 (unreasonable exclusion or expulsion from trade union); or
(b)proceedings on such a complaint were pending before an industrial tribunal, unless the employee has at any time during the period beginning with the date of the complaint under Article 6 and ending with the effective date of termination been, or failed through his own fault to become, a member of a trade union in accordance with the union membership agreement.
(8) In any case where neither paragraph (4) nor paragraph (7) has the effect of displacing paragraph (3) and the employee—
(a)holds qualifications which are relevant to the employment in question;
(b)is subject to a written code which governs the conduct of those persons who hold those qualifications; and
(c)has—
(i)been expelled from a trade union for refusing to take part in a strike or other industrial action; or
(ii)refused to become or remain a member of a trade union, paragraph (3) shall not apply if the reason (or, if more than one, the principal reason) for his refusal was, in a case falling within sub-paragraph (c)(i), that his taking the action in question would be in breach of the code or, in a case falling within sub-paragraph (c)(ii), that if he became, or as the case may be remained, a member he would be required to take part in a strike, or other industrial action, which would be in breach of that code.
(9) For the purposes of paragraphs (3)(c) and (6)(c), where votes in a ballot may be cast on more than one day, the ballot shall be treated as held on the last of those days.
(10) For the purposes of paragraph (3) a union shall be treated as specified for the purposes of or in relation to a union membership agreement (in a case where it would not otherwise be so treated) if—
(a)the Agency has made a recommendation under Article 7(1) for recognition of that union covering the employee in question; or
(b)the Agency is exercising, or has been requested to exercise, its powers under Article 7 in relation to a dispute relating to or connected with recognition of that union covering that employee and the dispute has not been settled or otherwise disposed of by the Agency under that Article.
(11) For the purposes of paragraphs (3) and (7) the reference to the time of the dismissal shall, in a case where the dismissal was with notice, be construed as a reference to the time when the notice was given.
(12) For the purposes of paragraph (7) an employee shall be taken to have failed through his own fault to become a member of a trade union only if the tribunal is satisfied that the fact that he is not a member is attributable to his failure to apply (or re-apply) for membership or to his failure to accept an offer of membership.
(13) Where the employer of any employees changes in such circumstances that the employees' period of continuous employment is not broken, this Article and Article 22B shall have effect as if any reference to the employees of any class of the later employer included a reference to the employees of that class of the former employer.
(14) Where the reason, or one of the reasons, for the dismissal of an employee was—
(a)his refusal, or proposed refusal, to comply with a requirement (whether or not imposed by his contract of employment or in writing) that, in the event of his failure to become or his ceasing to remain a member of any trade union or of a particular trade union or of one of a number of particular trade unions, he must make one or more payments; or
(b)his objection, or proposed objection, (however expressed) to the operation of a provision (whether or not forming part of his contract of employment or in writing) under which, in the event mentioned in sub-paragraph (a), his employer is entitled to deduct one or more sums from the remuneration payable to him in respect of his employment, that reason shall be treated as falling within paragraph (1)(c) and (3)(b).
(15) References in this Article and Article 22B to a trade union include references to a branch or section of a trade union, unless the context otherwise requires.
Ballots as to union membership agreements
22B.—(1) Subject to the following provisions of this Article, a union membership agreement shall be taken for the purposes of Article 22A(3)(c) to have been approved in relation to the employees of any class of an employer if a ballot has been held on the question whether the agreement should apply in relation to them and either—
(a)not less than 80 per cent. of those entitled to vote; or
(b)not less than 85 per cent. of those who voted, voted in favour of the agreement’s application.
(2) Paragraph (1)(b) shall not apply if the agreement—
(a)has not previously been approved in accordance with this Article in relation to the employer’s employees of the class in question; and
(b)came into force in relation to them after 3rd May 1982.
(3) The persons entitled to vote in a ballot under this Article, in relation to the application of a union membership agreement to the employees of any class of an employer, shall be all those employees who belong to that class and who—
(a)in the case of a ballot in which votes may only be cast on one day, are in the employment of the employer on that day; or
(b)in any other case, are in that employment on the qualifying day.
(4) “Qualifying day” means the day specified as such by the person conducting the ballot; but no day shall be specified which—
(a)falls after the last of the days on which votes may be cast in the ballot; or
(b)is so long before that date as to be unreasonable in relation to that ballot.
(5) A ballot under this Article shall be so conducted as to secure that, so far as reasonably practicable, all those entitled to vote—
(a)have an opportunity of voting, and of doing so in secret; and
(b)in a case which does not fall within paragraph (3)(a), know, before they cast their votes, which day has been specified as the qualifying day.
(6) In determining for the purposes of paragraph (3) whether a person belongs to a class of employees, any restriction of the class by reference to membership (or objection to membership) of a trade union shall be disregarded.
(7) An agreement shall not be taken for the purposes of Article 22A(3)(c) to have been approved through a ballot of the employees of any class of an employer if since it was held another ballot of those employees has been held under this Article and both—
(a)less than 80 per cent. of those entitled to vote; and
(b)less than 85 per cent. of those who voted, voted in favour of the agreement’s application.
(8) Paragraph (7) shall not affect the determination in any case of the question whether the condition in paragraph (2)(a) is satisfied.
Dismissal on ground of redundancy
22C. Where the reason or principal reason for the dismissal of an employee was that he was redundant, but it is shown that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by him and who have not been dismissed by the employer, and either—
(a)that the reason (or, if more than one, the principal reason) for which he was selected for dismissal was one of those specified in Article 22A(1); or
(b)that he was selected for dismissal in contravention of a customary arrangement or agreed procedure relating to redundancy and there were no special reasons justifying a departure from that arrangement or procedure in his case, then, for the purposes of this Order, the dismissal shall be regarded as unfair.
Dismissal in connection with a lock-out, strike or other industrial action
23.—(1) The provisions of this Article shall have effect in relation to an employee (the “complainant”) who claims that he has been unfairly dismissed by his employer where at the date of dismissal—
(a)the employer was conducting or instituting a lock-out; or
(b)the complainant was taking part in a strike or other industrial action.
(2) In such a case an industrial tribunal shall not determine whether the dismissal was fair or unfair unless it is shown—
(a)that one or more relevant employees of the same employer have not been dismissed; or
(b)that any such employee has, before the expiry of the period of three months beginning with that employee’s date of dismissal, been offered re-engagement and that the complainant has not been offered re-engagement.
(3) Where it is shown that the condition referred to in paragraph (2)(b) is fulfilled, the provisions of Articles 22 to 22C and of Article 14 of the No. 2 Order shall have effect as if in those Articles for any reference to the reason or principal reason for which the complainant was dismissed there were substituted a reference to the reason or principal reason for which he has not been offered re-engagement.
(4) Article 59(5) shall apply in relation to a complaint to which paragraph (3) applies as if—
(a)for the references to three months there were substituted, in each case, a reference to six months; and
(b)as if for the reference to the effective date of termination there were substituted a reference to the complainant’s date of dismissal.
(5) In this Article—
(a)“date of dismissal” means—
(i)where the employee’s contract of employment was terminated by notice, the date on which the employer’s notice was given; and
(ii)in any other case, the effective date of termination;
(b)“relevant employees” means—
(i)in relation to a lock-out, employees who were directly interested in the dispute in contemplation or furtherance of which the lock-out occurred; and
(ii)in relation to a strike or other industrial action, those employees at the establishment who were taking part in the action at the complainant’s date of dismissal;
“establishment”, in head (ii), meaning that establishment of the employer at or from which the complainant works; and
(c)any reference to an offer of re-engagement is a reference to an offer (made either by the original employer or by a successor of that employer or an associated employer) to re-engage an employee, either in the job which he held immediately before the date of dismissal or in a different job which would be reasonably suitable in his case.”.
Basic award
6.—(1) In Article 34 of the No. 1 Order (calculation of basic award) after paragraph (5) there shall be inserted—
“(5A) Where the dismissal is to be regarded as unfair by virtue of Article 22A or 22C(a), the amount of the basic award (before any reduction under the following provisions of this Article or Article 35) shall not be less than £2,200.
(5B) The Department may by order increase or further increase the minimum award provided for by paragraph (5A).”.
(2) The following provisions of Article 35, namely—
(a)paragraph (6) (reduction of award where complainant contributed to his own dismissal, except in cases of redundancy), and
(b)in paragraph (6B) (reduction of award where justified by complainant’s conduct, other than conduct taken into account under paragraph (6)) the words from “other” to “paragraph (6)”, shall cease to have effect; and after paragraph (6B) there shall be inserted—
“(6C) Paragraph (6B) shall not apply where the reason or principal reason for the dismissal was that the employee was redundant unless the dismissal is to be regarded as unfair by virtue of Article 22C(a), and in that event shall apply only to so much of the basic award as is payable because of paragraph (5A) of Article 34.”.
New special award
7.—(1) In Article 32(2)(b) of the No. 1 Order (additional compensation to be awarded where order under Article 31 not complied with unless it was not practicable for the employer to comply) for the word “unless” there shall be substituted the words “except in a case in which the dismissal is to be regarded as unfair by virtue of Article 22A or 22C(a) or in which”.
(2) For Article 33 (which provides that compensation for unfair dismissal shall consist of a basic award and a compensatory award) there shall be substituted—
“Compensation for unfair dismissal
33. Where a tribunal makes an award of compensation for unfair dismissal under Article 32(2)(a) or (5) the award shall consist of—
(a)a basic award (calculated in accordance with Articles 34 and 35); and
(b)a compensatory award (calculated in accordance with Article 36); and
(c)where the dismissal is to be regarded as unfair by virtue of Article 22A or 22C(a), a special award (calculated in accordance with Article 37A); but paragraph (c) shall not apply unless the complainant requested the tribunal to make an order under Article 31, and shall not in any event apply in a case within Article 34(2).”.
(3) After Article 37 of the No. 1 Order there shall be inserted—
“Calculation of special award
37A.—(1) Subject to the following provisions of this Article, the amount of the special award shall be—
(a)one week’s pay multiplied by 104; or
(b)£11,000; whichever is the greater, but shall not exceed £22,000.
(2) If the award of compensation is made under Article 32(2)(a) then, unless the employer satisfies the tribunal that it was not practicable to comply with the preceding order under Article 31, the amount of the special award shall be increased to—
(a)one week’s pay multiplied by 156; or
(b)£16,500; whichever is the greater, but subject to the following provisions of this Article.
(3) In a case where the amount of the basic award is reduced under Article 34(6), the amount of the special award shall be reduced by the same fraction.
(4) Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the special award to any extent, the tribunal shall reduce or further reduce that amount accordingly.
(5) Where the tribunal finds that the complainant has unreasonably—
(a)prevented an order under Article 31 from being complied with; or
(b)refused an offer by the employer (made otherwise than in compliance with such an order) which if accepted would have the effect of reinstating the complainant in his employment in all respects as if he had not been dismissed; the tribunal shall reduce or further reduce the amount of the special award to such extent as it considers just and equitable having regard to that finding.
(6) Where the employer has engaged a permanent replacement for the complainant, the tribunal shall not take that fact into account in determining, for the purposes of paragraph (2), whether it was practicable to comply with an order under Article 31 unless the employer shows that it was not practicable for him to arrange for the complainant’s work to be done without engaging a permanent replacement.
(7) The Department may by order increase any of the sums of £11,000, £22,000 and £16,500 specified in paragraphs (1) and (2), or any of those sums as from time to time increased under this paragraph.”.
Reduction of compensation: matters to be disregarded
8. After Article 33 of the No. 1 Order there shall be inserted—
“Reduction of compensation: matters to be disregarded
33A.—(1) This Article applies in any case where a tribunal makes an award of compensation for unfair dismissal under Article 32(2)(a) or (5) and the dismissal is to be regarded as unfair by virtue of Article 22A or 22C(a).
(2) In such a case the tribunal, in considering whether it would be just and equitable to reduce, or further reduce, the amount of any part of the award, shall disregard any conduct or action of the complainant in so far as it constitutes—
(a)a breach, or proposed breach, of any requirement falling within paragraph (3);
(b)a refusal, or proposed refusal, to comply with a requirement of a kind mentioned in Article 22A(14)(a); or
(c)an objection, or proposed objection, (however expressed) to the operation of a provision of a kind mentioned in Article 22A(14)(b).
(3) A requirement falls within this paragraph if it is imposed on the complainant in question by or under any arrangement or contract of employment or other agreement and requires him—
(a)to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions;
(b)to cease to be, or refrain from becoming, a member of any trade union or of a particular trade union or of one of a number of particular trade unions; or
(c)not to take part in the activities of any trade union or of a particular trade union or of one of a number of particular trade unions.”.
Awards against third parties
9. For Article 38A of the No. 1 Order (contribution in respect of compensation) there shall be substituted—
“Awards against third parties
38A.—(1) If in proceedings before an industrial tribunal on a complaint against an employer under Article 29 either the employer or the complainant claims—
(a)that the employer was induced to dismiss the complainant by pressure which a trade union or other person exercised on the employer by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so; and
(b)that the pressure was exercised because the complainant was not a member of any trade union or of a particular trade union or of one of a number of particular trade unions, the employer or the complainant may request the tribunal to direct that the person who he claims exercised the pressure be joined as a party to the proceedings.
(2) A request under paragraph (1) shall be granted if it is made before the hearing of the complaint begins, but may be refused if it is made after that time; and no such request may be made after the tribunal has made an order under Article 31 or an award under Article 32(5).
(3) Where a person has been joined as a party to proceedings before an industrial tribunal by virtue of paragraph (1) and the tribunal—
(a)makes an award of compensation under Article 32(2)(a) or (b) or (5); but
(b)finds that the claim mentioned in paragraph (1) is well-founded, the award may be made against that person instead of against the employer, or partly against that person and partly against the employer, as the tribunal may consider just and equitable in the circumstances.”.
Interim relief
10.—(1) For paragraph (1) of Article 39 of the No. 1 Order (interim relief where employee alleges unfair dismissal for union membership or activities) there shall be substituted—
“(1) An employee who presents a complaint to an industrial tribunal under Article 29 alleging that the dismissal is to be regarded as unfair by virtue of Article 22A may apply to the tribunal for an order under the following provisions of this Article.”.
(2) In paragraph (3) of Article 39 for the words from “, at least” onwards there shall be substituted
“give at the appropriate time—
(a)to the employer; and
(b)in the case of an Article 38A request made at least three days before the date of the hearing, to the person to whom the request relates, a copy of the application and certificate (if any) together with notice of the date, time and place of the hearing.
(3A) In paragraph (3)—
“appropriate time” means—
(a)in relation to sub-paragraph (a), not later than seven days before the date of the hearing;
(b)in relation to sub-paragraph (b), as soon as reasonably practicable; and
“Article 38A request” means a request made under Article 38A(1) for the tribunal to direct a person to be joined as a party to the proceedings.”.
Action short of dismissal
Action relating to trade union membership
11. For Article 33 of the No. 2 Order (trade union membershop and activities) there shall be substituted—
“Trade union membership and activities
33.—(1) Subject to the following provisions of this Article, every employee shall have the right not to have action (short of dismissal) taken against him as an individual by his employer for the purpose of—
(a)preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so; or
(b)preventing or deterring him from taking part in the activities of an independent trade union at any appropriate time, or penalising him for doing so; or
(c)compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.
(2) Every employee shall also have the right not to have action (short of dismissal) taken against him for the purpose of enforcing a requirement (whether or not imposed by his contract of employment or in writing) that, in the event of his failure to become or his ceasing to remain a member of any trade union or of a particular trade union or of one of a number of particular trade unions, he must make one or more payments.
(3) For the purposes of this Article, any deduction made by an employer from the remuneration payable to an employee of his in respect of that employee’s employment shall, if the deduction is attributable to the employee’s failure to become or his ceasing to remain a member of any trade union or of a particular trade union or of one of a number of particular trade unions, be treated as if it were action (short of dismissal) taken against the employee for the purpose of enforcing a requirement of a kind mentioned in paragraph (2).
(4) In this Article “appropriate time”, in relation to an employee taking part in any activities of a trade union, means time which either—
(a)is outside his working hours; or
(b)is a time within his working hours at which, in accordance with arrangements agreed with, or consent given by his employer, it is permissible for him to take part in those activities; and in this paragraph “working hours”, in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work.
(5) Where it is the practice, in accordance with a union membership agreement, for the employees of any class of an employer to belong to a specified independent trade union, or to one of a number of specified independent trade unions, then—
(a)subject to paragraph (6), the right conferred on employees of that class by virtue of paragraph (1)(b) in relation to a union’s activities shall extend to activities on the employer’s premises only if the union is a specified union; and
(b)employees of that class shall not have the right conferred by virtue of paragraph (1)(c) or (2) except in respect of action which, if it amounted to dismissal from employment to which Article 20 of the No. 1 Order applies, would be regarded as unfair by reason of Article 22A of that Order.
(6) A union membership agreement having effect in relation to the employees of any class of an employer shall be disregarded for the purposes of the application of paragraph (5)(a) to those employees unless the agreement has, for the purposes of Article 22A(3)(c) of the No. 1 Order, been approved in relation to them in accordance with Article 22B of that Order through a ballot held within the period of five years ending with the date on which the action in question occurred.
(7) For the purposes of this Article a trade union shall be taken to be specified for the purposes of, or in relation to, a union membership agreement if—
(a)the Agency has made a recommendation under Article 7 of the No. 1 Order for recognition of that union covering the employee in question; or
(b)the Agency is exercising, or has been requested to exercise, its powers under Article 7 of the No. 1 Order in relation to a dispute relating to or connected with recognition of that union covering that employee and the dispute has not been settled or otherwise disposed of by the Agency under that Article.
(8) In this Article references to a trade union include references to a branch or section of a trade union.”.
Awards against third parties
12. For Article 36A of the No. 2 Order (contribution in respect of compensation) there shall be substituted—
“Awards against third parties
36A.—(1) Where—
(a)a complaint is presented to an industrial tribunal under Article 34 on the ground that action has been taken against the complainant by his employer for the purpose of compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions, and
(b)either the employer or the complainant claims in proceedings before the tribunal that the employer was induced to take the action by pressure which a trade union or other person exercised on the employer by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so, the employer or the complainant may request the tribunal to direct that the person who he claims exercised the pressure be joined as a party to the proceedings.
(2) A request under paragraph (1) shall be granted if it is made before the hearing of the complaint begins, but may be refused if it is made after that time; and no such request may be made after the tribunal has made a declaration under Article 34(3).
(3) Where a person has been joined as a party to proceedings before an industrial tribunal by virtue of paragraph (1), and the tribunal—
(a)makes an award of compensation, but
(b)finds that the claim mentioned in paragraph (1) is well-founded, the award may be made against that person instead of against the employer, or partly against that person and partly against the employer, as the tribunal may consider just and equitable in the circumstances.”.
Union membership or recognition requirements in contracts
Prohibition on union membership requirements
13.—(1) Any term or condition of a contract for the supply of goods or services is void in so far as it purports—
(a)to require that the whole, or some part, of the work done for the purposes of the contract is to be done only by persons who are not members of trade unions or not members of a particular trade union; or
(b)to require that the whole, or some part, of such work is to be done only by persons who are members of trade unions or members of a particular trade union.
(2) A person contravenes this paragraph if, on the ground of union membership, he—
(a)fails, in a case where he maintains (in whatever form) a list of approved suppliers of goods or services or a list of persons from whom tenders for the supply of goods or services may be invited, to include the name of a particular person in that list;
(b)terminates a contract for the supply of goods or services; or
(c)does, in relation to a proposed contract for the supply of goods or services, any of the acts mentioned in paragraph (3).
(3) The acts are—
(a)excluding a particular person from the group of persons from whom tenders for the supply of the goods or services are invited;
(b)failing to permit a particular person to submit such a tender;
(c)otherwise determining not to enter into a contract with a particular person for the supply of the goods or services.
(4) For the purposes of paragraph (2)(a), a person (the “first person”) fails to include the name of another person (the “supplier”) in a list, on the ground of union membership, if the ground, or one of the grounds, for failing to include his name is either—
(a)that, if the supplier were to enter into a contract with the first person for the supply of goods or services, work to be done for the purposes of the contract would, or would be likely to, be done by persons who were not members of trade unions or of a particular trade union; or
(b)that, if the supplier were to enter into such a contract, work to be done for the purposes of the contract would, or would be likely to, be done by persons who were members of trade unions or of a particular trade union.
(5) For the purposes of paragraph (2)(b), a person terminates a contract on the ground of union membership if the ground, or one of the grounds, for terminating it is either—
(a)that work done, or to be done, for the purposes of the contract has been, or is likely to be, done by persons who are not members of trade unions or of a particular trade union; or
(b)that work done, or to be done, for the purposes of the contract has been, or is likely to be, done by persons who are members of trade unions or of a particular trade union.
(6) For the purposes of paragraph (2)(c), a person does an act on the ground of union membership if the ground, or one of the grounds, on which he does that act is either—
(a)that, if the proposed contract were entered into with the person referred to in paragraph (3), work to be done for the purposes of the contract would, or would be likely to, be done by persons who are not members of trade unions or of a particular trade union; or
(b)that, if the proposed contract were entered into with that person, work to be done for the purposes of the contract would, or would be likely to, be done by persons who are members of trade unions or of a particular trade union.
(7) Paragraph (2) does not create an offence but the obligation to comply with it is a duty owed to each of the following—
(a)in a case falling within paragraph (2)(a), the person referred to in paragraph (4) as the supplier;
(b)in a case falling within paragraph (2)(b), any other party to the contract;
(c)in a case falling within paragraph (2)(c), the person referred to in paragraph (3); and
(d)in any case, any other person who may be adversely affected by its contravention; and any breach of that duty shall be actionable accordingly (subject to the defences and other incidents applying to actions for breach of statutory duty).
Prohibition on union recognition requirements
14.—(1) Any term or condition of a contract for the supply of goods or services is void in so far as it purports to require any party to the contract—
(a)to recognise one or more trade unions (whether or not named in the contract) for the purpose of negotiating on behalf of workers, or any class of worker, employed by him; or
(b)to negotiate or consult with, or with any official of, one or more trade unions (whether or not so named).
(2) A person contravenes this paragraph if, on the ground of union exclusion, he acts in a manner falling within paragraph (2)(a), (b) or (c) of Article 13.
(3) For the purposes of paragraph (2), a person acts on the ground of union exclusion if the ground or one of the grounds for his action is that the person against whom it is taken does not, or is not likely to, recognise, negotiate or consult as mentioned in paragraph (1).
(4) Paragraph (2) does not create an offence but the obligation to comply with it is a duty owed to each of the following—
(a)the person against whom the action is taken; and
(b)any other person who may be adversely affected by the contravention, and any breach of that duty shall be actionable accordingly (subject to the defences and other incidents applying to actions for breach of statutory duty).
Pressure to impose union membership or recognition requirements
15.—(1) Nothing in Article 64 of the No. 1 Order shall prevent an act being actionable in tort in any case where a person induces, or attempts to induce, another—
(a)to incorporate in a contract to which that other person is a party, or proposed contract to which that other person intends to be a party, any term or condition which is, or would be, void by virtue of Article 13(1) or 14(1); or
(b)to contravene Article 13(2) or 14(2); and the act constitutes, or is one of a number of acts which together constitute, the inducement or attempted inducement.
(2) Nothing in Article 64 of the No. 1 Order shall prevent an act which interferes with the supply (whether or not under a contract) of goods or services, or can reasonably be expected to have such an effect, being actionable in tort in any case where paragraph (3) is satisfied and one of the facts relied upon for the purpose of establishing liability is that any person has—
(a)induced another to break a contract of employment or interfered or induced another to interfere with its performance; or
(b)threatened that a contract of employment under which he or another is employed will be broken or its performance interfered with, or that he will induce another to break a contract of employment or to interfere with its performance.
(3) This paragraph is satisfied if—
(a)the reason, or one of the reasons, for doing the act is that work done or to be done in connection with the supply of the goods or services in question has been, or is likely to be, done by persons (other than persons employed by the relevant employer) who are not members of trade unions or of a particular trade union;
(b)the reason, or one of the reasons, for doing the act is that such work has been, or is likely to be, done by persons (other than persons employed by the relevant employer) who are members of trade unions or of a particular trade union; or
(c)the supplier of the goods or services in question is not the relevant employer and the reason, or one of the reasons, for doing the act is that the supplier does not, or is not likely to, recognise, negotiate or consult as mentioned in Article 14.
(4) In paragraph (3) “the relevant employer” means the employer under the contract of employment mentioned in paragraph (2).
Proceedings involving trade unions and employers' associations
Capacity of trade unions and unincorporated employers' associations to sue and be sued
16.—(1) A trade union and an unincorporated employers' association shall be capable of suing and being sued in its own name, whether in proceedings relating to property or founded on contract or tort or any other cause of action whatsoever.
(2) Any judgment, order or award made in proceedings of any description brought against a trade union or an unincorporated employers' association shall be enforceable, by way of enforcement order under the Judgments Enforcement (Northern Ireland) Order[1981 NI 6] 1981, punishment for contempt or otherwise, against any property held in trust for the trade union or employers' association to the like extent and in the like manner as if the trade union or employers' association were a body corporate.
(3) Article 113 of the Judgments Enforcement (Northern Ireland) Order[1981 NI 6] 1981 (sequestration order against company in contempt) shall apply to a trade union and an unincorporated employers' association as it applies to a company.
Actions in tort against trade unions
17.—(1) Section 4 of the Trade Disputes Act[1906 c. 47] 1906 (immunity for trade unions within the meaning of that Act from certain actions in tort) shall cease to have effect.
(2) Where proceedings in tort are brought against a trade union—
(a)on a ground specified in paragraph (1)(a) or (b) of Article 64 of the No. 1 Order; or
(b)in respect of an agreement or combination by two or more persons to do or to procure the doing of an act which, if it were done without any such agreement or combination, would be actionable in tort on such a ground; then, for the purpose of determining in those proceedings whether the union is liable in respect of the act in question, that act shall be taken to have been done by the union if, but only if, it was authorised or endorsed by a responsible person.
(3) For the purposes of this Article but subject to paragraph (4), an act shall not be taken to have been authorised or endorsed by a responsible person unless it was authorised or, as the case may be, endorsed—
(a)by the principal executive committee;
(b)by any other person who is empowered by the rules to authorise or, as the case may be, endorse acts of the kind in question;
(c)by the president or general secretary;
(d)by any other official who is an employed official; or
(e)by any committee of the union to whom an employed official regularly reports.
(4) An act shall not be taken, by virtue of paragraph (3)(d) or (e) to have been authorised or endorsed by a responsible person if—
(a)that person was, at the time in question, prevented by the rules from authorising or endorsing acts of the kind in question; or
(b)the act has been repudiated by the principal executive committee or by the president or general secretary.
(5) For the purposes of paragraph (4)(b), an act shall not be treated as repudiated unless—
(a)it is repudiated as soon as is reasonably practicable after the purported authorisation or endorsement of the act has come to the knowledge of the principal executive committee or, as the case may be, of the president or general secretary; and
(b)the person who purported to authorise or endorse the act has been notified in writing and without delay that it has been repudiated.
(6) An act shall not be treated as repudiated, notwithstanding paragraph (5), if at any time after the union concerned purported to repudiate it the principal executive committee or president or general secretary has behaved in a manner which is inconsistent with the purported repudiation.
(7) In this Article—
“general secretary” means the official of the union concerned who holds the office of general secretary or, where there is no such office, who holds the office which is equivalent, or the nearest equivalent, to that of general secretary;
“official” means an official of the union concerned; and “employed official” means, in relation to that union, an official who is employed by it;
“president” means the official of the union concerned who holds the office of president or, where there is no such office, who holds the office which is equivalent, or the nearest equivalent, to that of president;
“principal executive committee” means the principal committee of the union concerned exercising executive functions, by whatever name it is known;
“rules” means the written rules of the union and any other written provisions forming part of the contract between a member and the other members.
(8) Where, for the purpose of any proceedings, an act is by virtue of this Article taken to have been done by a trade union nothing in this Article shall affect the liability of any other person in those or any other proceedings in respect of that act.
Limit on damages awarded against trade unions in actions in tort
18.—(1) Subject to paragraph (2), in any proceedings in tort brought against a trade union the amount which may be awarded against the union by way of damages in those proceedings shall not exceed the appropriate limit.
(2) Paragraph (1) does not apply to any proceedings—
(a)for any of the following resulting in personal injury to any person, that is to say negligence, nuisance or breach of duty; or
(b)without prejudice to sub-paragraph (a), for breach of duty in connection with the ownership, occupation, possession, control or use of property (whether real or personal).
(3) The appropriate limit is—
(a)£10,000, if the union has less than 5,000 members;
(b)£50,000, if it has 5,000 or more members but less than 25,000 members;
(c)£125,000, if it has 25,000 or more members but less than 100,000 members; and
(d)£250,000, if it has 100,000 or more members.
(4) The Department may by order vary any of the sums for the time being specified in paragraph (3).
(5) An order under paragraph (4)—
(a)shall come into operation on such date as is specified in the order and shall be laid before the Assembly as soon as may be after it is made but shall cease to have effect upon the expiration of a period of six months from the date on which it comes into operation unless, before the expiration of that period, it is approved by a resolution of the Assembly;
(b)may make such transitional provision as the Department considers appropriate.
(6) In this Article—
“duty” means a duty imposed by any rule of law or by or under any statutory provision; and
“personal injury” includes any disease and any impairment of a person’s physical or mental condition.
(7) In calculating for the purposes of this Article the number of members which a trade union has—
(a)there shall be included members outside Northern Ireland; and
(b)in any case where a trade union consists wholly or mainly of organisations or representatives of organisations, the members of those organisations shall be treated as members of the union.
Recovery of sums awarded in proceedings involving trade unions and employers' associations
19.—(1) Where in any proceedings an amount is awarded by way of damages, costs or expenses—
(a)against a trade union or employers' association;
(b)against trustees in whom property is vested in trust for a trade union or employers' association, in their capacity as such and otherwise than in respect of a breach of trust on their part; or
(c)against members or officials of a trade union or employers' association on behalf of themselves and all of the members of the union or association; no part of that amount shall be recoverable by enforcement against any protected property.
(2) In this Article “protected property” means any property—
(a)belonging to the trustees concerned otherwise than in their capacity as such;
(b)belonging to any member of the union or association concerned otherwise than jointly or in common with the other members;
(c)belonging to any official of the union or association concerned who is neither a member nor such a trustee;
(d)comprised in a political fund of the union concerned; or
(e)comprised in a provident benefits fund of the union concerned.
(3) In paragraph (2)—
“political fund” means a fund which is a political fund for the purposes of section 3 of the Trade Union Act[1913 c. 30] 1913 and which is (and was at the time when the act in respect of which the proceedings are brought was done) subject to rules of the union which prevent property which is or has been comprised in the fund from being used for financing strikes or other industrial action;
“provident benefits” includes any payment, expressly authorised by the rules of the union, which is made to a member during sickness or incapacity from personal injury or while out of work, or to an aged member by way of superannuation, or to a member who has met with an accident or has lost his tools by fire or theft, and includes a payment in discharge or aid of funeral expenses on the death of a member or the wife of a member, or as provision for the children of a deceased member; and
“provident benefits fund” means a separate fund which is maintained in accordance with the rules of the union for the purpose only of providing provident benefits.
Trade disputes
Meaning of “trade dispute”
20.—(1) Article 3 of the No. 1 Order (meaning of “trade dispute”) shall have effect subject to the following provisions of this Article.
(2) In the opening words of paragraph (1) (which define a “trade dispute” for the purposes of the No. 1 Order by reference to the parties to the dispute and its connection with certain matters)—
(a)after the word “Order” there shall be inserted the words “(except part II)”;
(b)for the words “between employers and workers” there shall be substituted “between workers and their employer”;
(c)the words “, or between workers and workers,” shall be omitted; and
(d)for the words “is connected with” there shall be substituted “relates wholly or mainly to”.
(3) In paragraph (2) (which extends the definition to certain disputes with a Minister of the Crown who does not employ the workers in question) for the words “employer and those workers” there shall be substituted “those workers and their employer”.
(4) In paragraph (3) (which extends the definition to disputes relating to matters occurring outside Northern Ireland) for the words “occurring outside Northern Ireland” there shall be substituted “occurring outside the United Kingdom, so long as the person or persons whose actions in the United Kingdom are said to be in contemplation or furtherance of a trade dispute relating to matters occurring outside the United Kingdom are likely to be affected in respect of one or more of the matters specified in paragraph (1) by the outcome of that dispute”.
(5) Paragraph (4) (which provides that a dispute with a trade union or employers' association is necessarily to be treated as a dispute to which workers or, as the case may be, employers are a party) shall cease to have effect.
(6) In paragraph (6) for the definition of “worker” there shall be substituted—
““worker”, in relation to a dispute with an employer, means—
(a)a worker employed by that employer; or
(b)a person who has ceased to be employed by that employer where—
(i)his employment was terminated in connection with the dispute; or
(ii)the termination of his employment was one of the circumstances giving rise to the dispute.”.
(7) The amendments made by this Article do not affect the question whether an act done by a person is done by him in contemplation or furtherance of a dispute, whether he is a party to the dispute or not.
(8) In part II of the No. 1 Order after Article 19 there shall be inserted an Article 19A in the same terms as Article 3(1) to (6) of that Order before the amendment of that Article by this Article but with the substitution in paragraph (1) for the words “In this Order” of the words “In this part”.
Repeal of Article 64(2) of the No. 1 Order
21. In Article 64 of the No. 1 Order (acts in contemplation or furtherance of trade disputes) paragraph (2) shall cease to have effect.
Periods of continuous employment
Computation of period of continuous employment
22.—(1) References in any provision of—
(a)the Act of 1965; or
(b)the Industrial Relations (Northern Ireland) Orders 1976 to 1987, to a period of continuous employment are, except where provision is expressly made to the contrary, to a period computed in accordance with the provisions of this Article and Schedule 1 to the Act of 1965.
(2) In computing an employee’s period of continuous employment any question arising as to—
(a)whether the employee’s employment is of a kind counting towards a period of continuous employment; or
(b)whether periods (consecutive or otherwise) are to be treated as forming a single period of continuous employment, shall be determined in accordance with Schedule 1 to the Act of 1965 (that is to say, week by week), but the length of an employee’s period of employment shall be computed in months and years of twelve months in accordance with the following rules.
(3) Subject to the following provisions of this Article, an employee’s period of continuous employment for the purposes of any provision mentioned in paragraph (1) begins with the day on which he starts work and ends with the day by reference to which the length of his period of continuous employment falls to be ascertained for the purposes of the provision in question.
(4) For the purposes of sections 11 and 18 of, and Schedule 3 to, the Act of 1965 an employee’s period of continuous employment shall be treated as beginning on his eighteenth birthday if that date is later than the starting date referred to in paragraph (3).
(5) If an employee’s period of continuous employment includes one or more periods which, by virtue of any provision of the Act of 1965, do not count in computing the length of the period but do not break continuity, the beginning of the period shall be treated as postponed by the number of days falling within that intervening period or, as the case may be, by the aggregate number of days falling within those periods.
(6) The number of days falling within such an intervening period is—
(a)in the case of a period to which section 27(5) of the Act of 1965 applies, seven days for each week within that subsection;
(b)in the case of a period to which paragraph 7(2) or 8 of Schedule 1 to the Act of 1965 applies, the number of days between the last working day before the strike or lock-out and the day on which work was resumed;
(c)in the case of a period to which paragraph 9 of that Schedule applies, the number of days between the employee’s last day of employment before whole-time service within the meaning of the Reserve Forces (Safeguarding of Employment) Act[1985 c. 17] 1985 and the day on which he resumed employment in accordance with that Act.
Change of basis of computation of period of continuous employment
23.—(1) The amendments set out in Schedule 2 shall have effect for the following purposes—
(a)amending statutory provisions which confer rights by reference to the length of an employee’s period of continuous employment so as to substitute for periods expressed in weeks or years of fifty-two weeks corresponding periods expressed in months or years of twelve months;
(b)modifying the computation of an employee’s period of continuous employment under Schedule 1 to the Act of 1965 so as to provide for computing the length of the period in months and years of twelve months;
(c)making minor and consequential amendments in connection with the purposes mentioned in sub-paragraphs (a) and (b).
(2) The amendments set out in Schedule 2 shall not apply—
(a)where the date by reference to which the length of an employee’s period of continuous employment falls to be ascertained (“the qualification date”) is before the coming into operation of this Article; or
(b)where the result would be to deprive a person of any right or entitlement which he would have had if the qualification date had fallen immediately before the coming into operation of this Article.
(4) Nothing in this Article shall affect—
(a)any order made before the coming into operation of this Article under section 21 of the Act of 1965, Article 26 of the No. 1 Order or Article 8 of the No. 2 Order (exclusion of certain provisions where equivalent protection afforded by collective agreement or wages order); or
(b)the operation of any agreement or wages order to which such an order relates or the operation of any statutory provision in relation to such an agreement or wages order.
(5) Subject to paragraph (2), the amendments set out in Schedule 2 shall, so far as they relate to the computation of the length of a period of continuous employment, apply to periods before the coming into operation of this Article as they apply to later periods.
General functions of Department as to employment and training for employment
General functions of Department as to employment and training for employment
24. In section 1 of the Employment and Training Act (Northern Ireland)[1950 c. 29 (N.I.)] 1950 for subsection (1) there shall be substituted—
“(1) Subject to the provisions of this Act, the Department of Economic Development (in this Act referred to as “the Department”) may make such arrangements and provide such facilities and services as it considers appropriate—
(a)for the purpose of providing temporary employment for persons in Northern Ireland who are without employment;
(b)for the purpose of assisting persons to select, train for, obtain and retain employment suitable to their ages and capacities;
(c)for the purpose of assisting employers to obtain employees (including partners and other business associates); and
(d)generally for the purpose of promoting employment in accordance with the requirements of the community.
(1A) Arrangements in pursuance of subsection (1) may include provision for the making by the Department, with the consent of the Department of Finance and Personnel, of payments, by way of grant or loan or otherwise, to persons who provide employment or facilities in pursuance of the arrangements, to persons who use such facilities and to other persons specified in pursuance of the arrangements.”.
Amendments and repeals
Amendments and repeals
25.—(1) Schedule 3 (which makes minor and consequential amendments) shall have effect.
(2) The statutory provisions mentioned in Schedule 4 are hereby repealed to the extent set out in the third column of that Schedule.
G. I. de Deney
Clerk of the Privy Council