Paragraph 48 Unfair practicesI1I2I3

After paragraph 116G (inserted by paragraph 47 of this Schedule) insert—

“Unfair practices

116H

(1)

Each of the parties informed by the CAC under paragraph 111(5) or 115(5) that an application under paragraph 106, 107 or 112 is accepted must refrain from using any unfair practice in relation to the application.

(2)

A party uses an unfair practice if, with a view to influencing the outcome of the application, the party does any of the following—

(a)

dismisses, or threatens to dismiss, a worker;

(b)

takes, or threatens to take, disciplinary action against a worker;

(c)

subjects, or threatens to subject, a worker to any other detriment;

(d)

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

(e)

makes an outcome-specific offer to a relevant worker;

(f)

coerces, or attempts to coerce, a relevant worker to disclose—

(i)

whether the worker intends to vote, or to abstain from voting, in any relevant ballot, or

(ii)

how the worker intends to vote, or has voted, in any relevant ballot;

(g)

uses, or attempts to use, undue influence on a relevant worker.

(3)

In sub-paragraph (2)—

(a)

“relevant ballot” means any ballot that is or may be held in which workers are asked whether the bargaining arrangements should be ended, and

(b)

“relevant worker” means any worker who is or would be entitled to vote in a relevant ballot.

(4)

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

(a)

is conditional on—

(i)

the issuing by the CAC of a declaration that the bargaining arrangements are to cease to have effect, or

(ii)

the refusal by the CAC of an application under paragraph 106, 107 or 112, and

(b)

is not conditional on anything which is done or occurs as a result of that declaration, or, as the case may be, of that refusal.

(5)

For the purposes of this paragraph and paragraphs 116I to 116K as they apply in relation to an application under paragraph 112, references to a party are to be read as including references to the worker or workers making the application.

(6)

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.

(7)

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

(a)

the power of ACAS under section 199(1);

(b)

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

116I

(1)

A party may complain to the CAC that another party has failed to comply with paragraph 116H.

(2)

A complaint under sub-paragraph (1) may not be made after—

(a)

in the case of an application under paragraph 106 or 107, the application is withdrawn;

(b)

in the case of an application under paragraph 112, an agreement or withdrawal as described in paragraph 116(1);

(c)

the CAC refuses the application under paragraph 116E(4)(a), 116K(4)(a) or (6) or 119(2);

(d)

the CAC notifies the union (or unions) of a declaration issued under paragraph 116E(5) or 116K(5) in relation to the application;

(e)

if the CAC informs the union (or unions) under paragraph 117(11) of a ballot, the fifth working day after—

(i)

the date of the ballot, or

(ii)

if votes may be cast in the ballot on more than one day, the last of those days.

(3)

Within the decision period the CAC must decide whether the complaint is well-founded.

(4)

A complaint is well-founded if the CAC finds that the party complained against used an unfair practice.

(5)

The decision period is—

(a)

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

(b)

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

116J

(1)

This paragraph applies if the CAC decides that a complaint under paragraph 116I is well-founded.

(2)

The CAC must, as soon as is reasonably practicable, issue a declaration to that effect.

(3)

The CAC may order the party concerned to take any action specified in the order within such period as may be so specified.

(4)

Sub-paragraph (5) applies if the CAC has at any time informed the union (or unions) under paragraph 117(11) of a ballot in relation to the application (including a ballot that was cancelled or is ineffective).

(5)

The CAC may make arrangements for the holding of a secret ballot in which the workers constituting the bargaining unit are asked whether the bargaining arrangements should be ended.

(6)

The CAC may make an order under sub-paragraph (3), or make arrangements under sub-paragraph (5), either at the same time as it issues the declaration under sub-paragraph (2) or at any other time before any of the following occurs—

(a)

in the case of an application under paragraph 106 or 107, the withdrawal of the application;

(b)

in the case of an application under paragraph 112, an agreement or withdrawal as described in paragraph 116(1);

(c)

the CAC refusing the application under paragraph 116E(4)(a), 116K(4)(a) or (6) or 119(2);

(d)

the CAC notifying the union (or unions) of a declaration issued under paragraph 116E(5) or 116K(5) in relation to the application;

(e)

if the CAC informs the union (or unions) under paragraph 117(11) of a ballot, the CAC acting under paragraph 121 in relation to the ballot.

(7)

The action specified in an order under sub-paragraph (3) must be such as the CAC considers reasonable in order to mitigate the effect of the failure of the party concerned to comply with the duty imposed by paragraph 116H.

(8)

The CAC may make more than one order under sub-paragraph (3).

116K

(1)

Sub-paragraphs (4) to (7) apply if—

(a)

the CAC issues a declaration under paragraph 116J(2) that a complaint that a party has failed to comply with paragraph 116H is well-founded,

(b)

the application under paragraph 106, 107 or 112 has not been withdrawn or, in the case of an application under paragraph 112, there has been no agreement as described in paragraph 116(1),

(c)

the CAC has not refused the application under paragraph 116E(4)(a), 116K(4)(a) or (6) or 119(2),

(d)

the CAC has not notified the union (or unions) of a declaration issued under paragraph 116E(5) or 116K(5) in relation to the application, and

(e)

sub-paragraph (2) or (3) applies.

(2)

This sub-paragraph applies if 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.

(3)

This sub-paragraph applies if the CAC has made an order under paragraph 116J(3) 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 116J(2) in relation to a complaint against that party.

(4)

If the party that has failed to comply is the employer, the CAC may—

(a)

refuse the employer’s application under paragraph 106 or 107;

(b)

order the employer to refrain from any campaigning in relation to an application under paragraph 112.

(5)

If the party that has failed to comply is a union, the CAC may issue a declaration that the bargaining arrangements are to cease to have effect on a date specified by the CAC in the declaration; and the bargaining arrangements cease to have effect accordingly.

(6)

If the party that has failed to comply is the worker making an application under paragraph 112 (or any of the workers making an application under paragraph 112), the CAC may refuse the application.

(7)

The powers conferred by this paragraph are in addition to those conferred by paragraph 116J.

116L

(1)

This paragraph applies if the CAC has made an order against the employer under paragraph 116J(3) or 116K(4)(b) in relation to an application under paragraph 112.

(2)

The worker making the application (or each of the workers making the application) and the union (or each of the unions) are entitled to enforce obedience to the order.

(3)

The order may be enforced—

(a)

in England and Wales, in the same way as an order of the county court;

(b)

in Scotland, in the same way as an order of the sheriff.”