Employment Relations Act 2004 begins to come into force

The Employment Relations Act 2004 reached the UK statute book in September 2004 and a cluster of its provisions were brought into force in October. This article highlights the key measures contained in the new legislation.

The Employment Relations Act 2004 (UK0312104F) received Royal Assent on 16 September 2004. Some of the Act’s provisions took effect in October. Others are expected to be brought into force in April 2005.

On 1 October 2004, two main aspects of the Act came into effect:

  • workers now have statutory protection against being offered inducements by their employer not to be or to be a member of a trade union, not to take part in the activities of or not to make use of the services of their union, and not to have, or to give up having, their terms and conditions of employment determined by a collective agreement negotiated by their union. They are also protected against dismissal or detriment for making use of the services of their trade union or for refusing to accept any of the above inducements. These changes are in response to the July 2002 ruling of the European Court of Human Rights in the case of Wilson, the National Union of Journalists and others v the United Kingdom (UK0211103N); and
  • the role of the work colleague or union official allowed to accompany a worker at disciplinary or grievance hearings (UK0010195F) has been expanded to include responding on the worker’s behalf to any view expressed at the hearing.

Of the Act’s remaining provisions, yet to take effect, the major focus is a series of measures designed to 'fine-tune' the UK’s existing statutory trade union recognition procedure, introduced by the Employment Relations Act 1999 (UK0201171F). The amendments include prohibiting improper campaigning activity by employers and unions during recognition and derecognition ballots, and clarifying what access unions can have to workers in the relevant bargaining unit. The new legislation allows unions to communicate with workers covered by recognition claims at an earlier stage in the process. It also clarifies certain issues to do with the determination of the appropriate bargaining unit, and empowers the government to add pensions-related issues to the current three core topics for collective bargaining under a statutory recognition award (pay, hours and holidays) at a future stage.

The 2004 Act’s other main provisions include:

  • simplifying the legal requirements concerning industrial action ballots and notices to employers;
  • extending the protection against dismissal for workers taking official, lawfully-organised industrial action from eight to 12 weeks and exempting 'lock out' days from the 12 week protected period (UK0409102N);
  • widening unions’ ability to expel or exclude racist activists and others whose political behaviour is incompatible with trade union membership;
  • empowering the government to make Regulations (UK0407104F) to implement the EU information and consultation Directive (2002/14/EC) (EU0204207F);
  • removing the requirement (which predates the 1999 Act) for union presidents to be elected by a secret postal ballot of the entire membership, provided they are already elected members of the union executive;
  • empowering the government to widen the means of voting that are to be available in statutory union elections and ballots. Postal voting only is currently allowed; and
  • enabling the government to make funds available to trade unions and federations of unions to modernise their operations (UK0403104N). The Department of Trade and Industry intends to publish draft rules for the 'union modernisation fund' for public consultation later in 2004, with a view to launching the fund in spring/summer 2005. Ministers have indicated that the size of the fund will be in the region of GBP 5 million-GBP 10 million in total, with funding spread over several years.

The remaining timetable for the commencement of the various provisions in the Act will be announced by the government in due course.

According to the Trades Union Congress (TUC), the Act contains 'significant union victories'. TUC general secretary Brendan Barber said in a statement: 'Staff will have to be given information and be consulted over major changes to the business, as they currently are in Britain’s best companies. Trade unions will be able to recruit members in an environment free of underhand, US-style union-busting activities and will find it easier the exclude and expel far-right activists in breach of union rules. The union modernisation fund the [Act] establishes will enable unions to modernise in the same way the government has helped businesses adapt to grow in the modern economy.'

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