Paragraph 40 Access agreementsI1I2I3

After paragraph 81 insert—

“Access agreements

81A

(1)

This paragraph applies if—

(a)

the CAC accepts an application under paragraph 66 or 75, and

(b)

the application is in progress.

(2)

The union (or unions) may, by giving notice to the CAC and the employer within the access request period, request access to the relevant workers in connection with the application.

(3)

The relevant workers are—

(a)

in relation to any time before the CAC decides that a bargaining unit other than the original unit is an appropriate bargaining unit, the workers constituting the original unit, and

(b)

in relation to any time after the CAC decides that a bargaining unit other than the original unit is an appropriate bargaining unit, the workers constituting the new unit (see paragraph 82(4)).

(4)

But, where there is more than one new unit, references to the relevant workers are references to the workers constituting each new unit separately.

(5)

The access request period is the period of 5 working days starting with the day after the day on which the CAC gives the union (or unions) notice under paragraph 68(5) or 76(5) that the application is accepted.

(6)

For the purposes of this paragraph and paragraphs 81B to 81E, an application under paragraph 66 or 75 is in progress if none of the following has occurred—

(a)

the withdrawal of the application;

(b)

the CAC issuing a declaration under paragraph 69(3), 78(3), 81E(4) or (5) or 81J(4) or (5) in relation to the application;

(c)

the CAC notifying the union (or unions) of its decision under paragraph 77(2) or 77(3);

(d)

in relation to the new unit (or, if there is more than one, all of the new units)—

(i)

the CAC issuing a declaration under paragraph 83(2), 85(2), 86(3) or 87(2), or under paragraph 27(2) (where it applies by virtue of paragraph 89(5)),

(ii)

the union (or unions) notifying the CAC under paragraph 89(1), or

(iii)

the holding of any ballot arising from the application.

81B

(1)

This paragraph applies if—

(a)

the CAC accepts an application under paragraph 66 or 75,

(b)

the union requests (or unions request) access to the relevant workers under paragraph 81A(2) in connection with the application, and

(c)

the application is in progress.

(2)

The CAC must try to help the parties to reach agreement within the negotiation period as to terms on which the union is (or unions are) to have access to the relevant workers.

(3)

The negotiation period is, subject to any notice under sub-paragraph (4) or (6)—

(a)

the period of 20 working days starting with the day after the day on which the CAC gives the union (or unions) notice under paragraph 68(5) or 76(5) that the application is accepted, or

(b)

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

(4)

If, during the negotiation period, the CAC concludes that there is no reasonable prospect of the parties’ agreeing terms on which the union is (or unions are) to have access to the relevant workers before the time when (apart from this sub-paragraph) the negotiation period would end, the CAC may, by a notice given to the parties, declare that the negotiation period ends with the date of the notice.

(5)

A notice under sub-paragraph (4) must contain reasons for reaching the conclusion mentioned in that sub-paragraph.

(6)

If, during the negotiation period, the parties apply to the CAC for a declaration that the negotiation period is to end with a date (specified in the application) which is earlier or later than the date with which it would otherwise end, the CAC may, by a notice given to the parties, declare that the negotiation period ends with the specified date.

81C

(1)

This paragraph applies if—

(a)

the CAC accepts an application under paragraph 66 or 75,

(b)

the union requests (or unions request) access to the relevant workers under paragraph 81A(2) in connection with the application,

(c)

the parties have not within the negotiation period agreed terms on which the union is (or unions are) to have access to the relevant workers, and

(d)

the application is in progress.

(2)

Within the adjudication period, the CAC must—

(a)

decide the terms on which the union is (or unions are) to have access to the relevant workers, or

(b)

decide that the union is (or unions are) not to have access to the relevant workers.

(3)

The adjudication period is—

(a)

the period of 10 working days starting with the day after the day with which the negotiation period ends, or

(b)

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

(4)

Any terms decided by the CAC must be terms that the CAC regards as allowing such access to the relevant workers as is reasonable to enable the union (or unions) to—

(a)

inform the workers of the object of the application or any ballot arising from it, and

(b)

seek their support and their opinions on the issues involved.

81D

(1)

This paragraph applies if—

(a)

an access agreement is entered into, and

(b)

the application under paragraph 66 or 75 is in progress.

(2)

“Access agreement” means—

(a)

terms on which the union is (or unions are) to have access to the relevant workers and which are agreed between the parties under paragraph 81B during the negotiation period, or

(b)

terms on which the union is (or unions are) to have access to the relevant workers and which are decided by the CAC under paragraph 81C,

and such an agreement is “entered into” when the terms are so agreed or decided.

(3)

The parties must comply with the access agreement.

(4)

The employer must refrain from making any offer to any or all of the relevant workers which—

(a)

has or is likely to have the effect of inducing any or all of them not to attend any relevant meeting between the union (or unions) and the relevant workers, and

(b)

is not reasonable in the circumstances.

(5)

The employer must refrain from taking, or threatening to take, any action against a worker solely or mainly on the grounds that the worker—

(a)

attended or took part in any relevant meeting between the union (or unions) and the relevant workers, or

(b)

indicated an intention to attend or take part in such a meeting.

(6)

The relevant workers are—

(a)

in relation to any time before the CAC decides that a bargaining unit other than the original unit is an appropriate bargaining unit, the workers constituting the original unit, and

(b)

in relation to any time after the CAC decides that a bargaining unit other than the original unit is an appropriate bargaining unit, the workers constituting the new unit (see paragraph 82(4)).

(7)

But, where there is more than one new unit, references to the relevant workers are references to the workers constituting each new unit separately.

(8)

A meeting is a relevant meeting in relation to a worker for the purposes of sub-paragraphs (4) and (5) if—

(a)

it is organised in accordance with an access agreement or as a result of a step ordered to be taken under paragraph 81E to remedy a failure to comply with the duty in sub-paragraph (3), and

(b)

it is one which the employer is, by such an agreement or order as is mentioned in paragraph (a), required to permit the worker to attend.

(9)

The duties imposed by sub-paragraphs (4) and (5) do not confer any rights on a worker; but that does not affect any other right which a worker may have.

(10)

Any provision of an access agreement that would require personal data relating to any of the relevant workers to be disclosed to any person other than a person appointed to conduct a ballot under paragraph 25 (where it applies by virtue of paragraph 89(4)) is of no effect for the purposes of this Part of this Schedule.

(11)

“Personal data” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).

(12)

An access agreement is to be conclusively presumed not to have been intended by the parties to be a legally enforceable contract; and, accordingly, where an access agreement is, or is part of, a collective agreement, section 179(2) and (3)(a) do not apply to the access agreement.

81E

(1)

Sub-paragraph (2) applies if—

(a)

the CAC is satisfied that a party has failed to fulfil any of the duties imposed on that party by paragraph 81D, and

(b)

the application under paragraph 66 or 75 is in progress.

(2)

The CAC may order the party—

(a)

to take such steps to remedy the failure as the CAC considers reasonable and specifies in the order, and

(b)

to do so within such period as the CAC considers reasonable and specifies in the order.

(3)

Sub-paragraphs (4) and (5) apply if—

(a)

the CAC is satisfied that a party has failed to comply with an order under sub-paragraph (2),

(b)

the application under paragraph 66 or 75 is in progress, and

(c)

the CAC has given notice under paragraph 70 or 79 of a decision as to the bargaining unit which is (or units which are) appropriate (each, a “new unit”).

(4)

If the party that has failed to comply is the employer, the CAC may issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the new unit or units.

(5)

If the party that has failed to comply is a union, the CAC may issue a declaration that the union is (or unions are) not entitled to be so recognised.

81F

(1)

Each of the powers specified in sub-paragraph (2) is to be taken to include power to issue Codes of Practice about any matter relating to requests for access under paragraph 81A(2), including (among other things)—

(a)

what access is reasonable for the purposes of paragraph 81C(4);

(b)

the duty in paragraph 81D(4).

(2)

The powers are—

(a)

the power of ACAS under section 199(1);

(b)

the power of the Secretary of State under section 203(1)(a).”