Currently, Trade Unions do not have a general, independent right of access to workplaces; they can only exercise their functions through individual members in a workplace or where they have voluntary access arrangements with an employer. From October this year, there will be a statutory framework requiring employers to allow Trade Unions access to the workplace. Access is both physical and digital. The purpose of this is for Trade Unions to facilitate collective bargaining and represent and support workers in employment-related matters.
The Government has now published a draft of the proposed Code of Practice for this and launched a consultation alongside that.
The draft Code of Practice covers:
- How Trade Unions can establish access agreements – the preference is for arrangements to remain or be set up voluntarily and the access request process only to be used where a voluntary arrangement cannot be agreed.
- How employers should respond – there will be a 15 day response period and the employer should provide as much useful information as possible.
- The employer can accept or reject the application. Any rejection should be specific in terms of which elements of the application are not agreeable so as to enable further negotiation.
- Following the response period, the union and the employer will have 25 working days to negotiate in good faith. If the negotiations reach an agreement then this will be registered.
- The parties can extend the negotiation period where negotiations are “fruitful”
Where an employer and a trade union cannot agree access arrangement then the application for access can be considered by the Central Arbitration Committee (CAC).
Access agreements will last up to two years before they need to be reviewed.
Employers with fewer than 21 workers or employees will not be obliged to grant access. Workplaces which are private dwellings will also be excluded. National security or the detection/investigation of offences can also be reasons why the CAC turn down applications although the Code of Practice states that employers should make every possible effort to allow for access in a way that doesn’t impact national security. Safeguarding concerns should also be considered.
The CAC may also decline applications where an employer already recognises another Trade Union or where there is already an ongoing statutory recognition process.
Model terms
The Code of Practice suggests some model terms which if proposed will be more likely to be accepted – these include access frequency of up to once per week, the employer making existing accommodation and facilities available (the employer will not be expected to make significant changes to their physical premises or IT systems).
The initial access should be subject to five working days’ notice and subsequent access, two working days.
The Trade Union officials seeking access must comply with all reasonable instructions from the employer such as health and safety requirements.
The code also covers the location and timing of access as well as digital access.
Disputes can also be referred to the CAC and the CAC can impose penalties and fines on those that it regards as having breached access arrangements. Fines can be very significant (up to £500,000 for cumulative breaches). CAC decisions can be appealed to the Employment Appeal Tribunal.
Read the draft Code of Practice
Comment
This is potentially very significant for workplaces that do not have an existing Trade Union presence and for employers that have been attempting to resist recognition of a Trade Union/or access to their workplace by a Trade Union. This new framework is based on a presumption that Trade Union access is beneficial and that whilst the detail of access can be negotiated, the basic premise is that access will be enabled.
Employers who are faced with interest in their workplace from a Trade Union will likely be better off seeking to agree an arrangement on a voluntary basis than allowing the Trade Union to make an application for terms which may go further than what can be agreed.
How can we help?
Laura Kearsley is a Partner in our Employment Law team. Laura has a strong reputation in all aspects of employment law, including Employment Tribunal litigation, discipline and grievance issues, and unfair and constructive unfair dismissal claims.
If you’re concerned about how these changes affect your organisation, or want to discuss our HR audit service, contact our employment team. We’ll help you navigate these changes effectively, ensuring compliance while maintaining operational flexibility.
Contact Nelsons’ employment team on 0800 024 1976 or via our online enquiry form for practical advice.
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