Paragraph 9 Access agreementsI1I2I3

After paragraph 19F insert—

“Access agreements

19G

(1)

This paragraph applies if—

(a)

the CAC accepts an application under paragraph 11(2) or 12(2) or (4), 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)

In the case of an application under paragraph 11(2) or 12(2), the relevant workers are—

(a)

in relation to any time before an appropriate bargaining unit is agreed by the parties or decided by the CAC, those falling within the proposed bargaining unit, and

(b)

in relation to any time after an appropriate bargaining unit is so agreed or decided, those falling within the bargaining unit agreed or decided upon.

(4)

In the case of an application under paragraph 12(4), the relevant workers are those falling within the bargaining unit agreed by the parties.

(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 15(5) that the application is accepted.

(6)

For the purposes of this paragraph and paragraphs 19H to 19K, an application under paragraph 11 or 12 is in progress if none of the following has occurred—

(a)

the withdrawal of the application;

(b)

the CAC giving notice to the union (or unions) of a decision under paragraph 20 that the application is invalid;

(c)

the CAC giving notice to the union (or unions) of a declaration issued under paragraph 13B(6), 19F(5), 19K(4) or (5), 19P(4) or (5), 22(2) or 27(2) in relation to the application;

(d)

the holding of any ballot arising from the application.

19H

(1)

This paragraph applies if—

(a)

the CAC accepts an application under paragraph 11(2) or 12(2) or (4),

(b)

the union requests (or unions request) access to the relevant workers under paragraph 19G(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 15(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.

19I

(1)

This paragraph applies if—

(a)

the CAC accepts an application under paragraph 11(2) or 12(2) or (4),

(b)

the union requests (or unions request) access to the relevant workers under paragraph 19G(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.

19J

(1)

This paragraph applies if—

(a)

an access agreement is entered into, and

(b)

the application under paragraph 11 or 12 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 19H 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 19I,

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)

In the case of an application under paragraph 11(2) or 12(2), the relevant workers are—

(a)

in relation to any time before an appropriate bargaining unit is agreed by the parties or decided by the CAC, those falling within the proposed bargaining unit, and

(b)

in relation to any time after an appropriate bargaining unit is so agreed or decided, those falling within the bargaining unit agreed or decided upon.

(7)

In the case of an application under paragraph 12(4), the relevant workers are those falling within the bargaining unit agreed by the parties.

(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 19K 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 who is not an appointed person is of no effect for the purposes of this Part of this Schedule.

(11)

In sub-paragraph (10)—

(a)

“appointed person” means—

(i)

a person appointed to handle communications under paragraph 19C, or

(ii)

a person appointed to conduct a ballot under paragraph 25;

(b)

“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.

19K

(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 19J, and

(b)

the application under paragraph 11 or 12 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 11 or 12 is in progress,

(c)

the parties have agreed an appropriate bargaining unit or the CAC has decided an appropriate bargaining unit, and

(d)

in the case of an application under paragraph 11(2) or 12(2), the CAC, if required to do so, has decided under paragraph 20 that the application is not invalid.

(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 bargaining unit.

(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.

19L

(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 19G(2), including (among other things)—

(a)

what access is reasonable for the purposes of paragraph 19I(4);

(b)

the duty in paragraph 19J(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).”