The Employment Relations (2004 Order) (Commencement No. 1 and Transitional Provisions) Order (Northern Ireland) 2004

Statutory Rules of Northern Ireland

2004 No. 519 (C. 30)

EMPLOYMENT

The Employment Relations (2004 Order) (Commencement No. 1 and Transitional Provisions) Order (Northern Ireland) 2004

Made

21st December 2004

The Department for Employment and Learning, in exercise of the powers conferred on it by Article 1(2) and (3) of the Employment Relations (Northern Ireland) Order 2004(1), and of all other powers enabling it in that behalf, hereby makes the following Order:

Citation and interpretation

1.  This Order may be cited as the Employment Relations (2004 Order) (Commencement No. 1 and Transitional Provisions) Order (Northern Ireland) 2004.

2.  In this Order –

“the 2004 Order” means the Employment Relations (Northern Ireland) Order 2004;

“the 1996 Order” means the Employment Rights (Northern Ireland) Order 1996(2).

Commencement

3.  The following provisions of the 2004 Order come into operation on 26th December 2004 –

(a) Articles 12 to 15 and 18;

(b) in Schedule 2 to the 2004 Order (Amendments), paragraphs 8 to 10, 14, 15, 18, 19, 22, 23, 24(1), (3) and (4), and 25 (which contain amendments connected with Articles 12 to 15) and Article 30(1) so far as it relates to those paragraphs;

(c) in Schedule 3 to the 2004 Order (Repeals), the entries relating to Articles 73, 75, 136 and 161 of the 1996 Order(3) and Article 19 of the Employment Relations (Northern Ireland) Order 1999(4) (which contain repeals connected with Articles 12 to 15) and Article 30(2) so far as it relates to those repeals.

Transitional provisions

4.  The coming into operation of the provisions mentioned in Article 3 is subject to the transitional provisions in Articles 5 to 8.

5.  The Articles inserted into the 1996 Order by Article 14 of the 2004 Order (Articles 77A to 77F) do not apply to an offer made to a complainant before 26th December 2004 or to an offer that is part of a series of similar offers made to a complainant where the first offer in the series was made to him before that date.

6.—(1) The amendments and repeals made by the following provisions of the 2004 Order –

(a) Article 12 and paragraphs (1) to (7) of Article 13,

(b) the paragraphs of Schedule 2 mentioned in Article 3(b), and

(c) the entries in Schedule 3 mentioned in Article 3(c) that relate to Articles of the 1996 Order,

do not apply in the circumstances specified in paragraph (2).

(2) The circumstances are –

(a) where the act or failure to act to which the complaint relates was done before 26th December 2004, or

(b) where the act or failure to act to which the complaint relates is part of a series and the first act or failure in the series was done before that date.

(3) For the purposes of paragraph (2) an act extending over a period is done on the last day of that period and a failure to act shall be treated as done when it was decided on.

(4) For the purposes of paragraph (3), in the absence of evidence establishing the contrary, the employer shall be taken to decide on a failure to act-

(a) when he does an act inconsistent with doing the failed act, or

(b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

7.  The amendments to Article 136 of the 1996 Order made by Article 15 of the 2004 Order do not apply in relation to dismissal where the “effective date of termination”, as defined in Article 129 of the 1996 Order(5), occurred before 26th December 2004.

8.  The amendments made to Articles 12, 13 and 14 of the Employment Relations (Northern Ireland) Order 1999 by Article 18 of the 2004 Order do not apply in relation to any disciplinary or grievance hearing occurring on or after 26th December 2004 that the worker was required or invited to attend before that date.

Sealed with the Official Seal of the Department for Employment and Learning on 21st December 2004.

L.S.

R. B. Gamble

A senior officer of the

Department for Employment and Learning

Explanatory Note

(This note is not part of the Order.)

This Order brings into operation on 26th December 2004, Articles 12 to 15 and 18 of the Employment Relations (Northern Ireland) Order 2004 (“the 2004 Order”).

Article 12 of the 2004 Order amends Articles 73, 74(1) and 247 of the 1996 Order to extend the existing protections of employees, against detrimental action by their employer for being or not being a member of a trade union or for taking part in the activities of their union, to workers who are not employees.

Article 13 of the 2004 Order amends Articles 73 and 75 of the 1996 Order to give protections to workers against detrimental action by their employer for making use of the services of their trade union or for refusing to accept any of the inducements described below.

Article 14 of the 2004 Order inserts new Articles 77A to 77F into the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”). These Articles contain protections for workers 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.

Article 15 of the 2004 Order amends Article 136 of the 1996 Order to make the dismissal of an employee for making use of the services of his union or refusing to accept any of the inducements described above unfair.

Article 18 of the 2004 Order amends Article 12 of the Employment Relations (Northern Ireland) Order 1999 which confers a right on workers attending a disciplinary or grievance hearing to be accompanied by a work colleague or union official. The amendments modify the role that the person accompanying the worker may play at the hearing.

The Order also contains transitional provisions.

(1)

S.I. 2004/3078 (N.I. 19)

(2)

S.I. 1996/1919 (N.I. 16)

(3)

Articles 73 and 75 were amended by S.I. 1999/2790 (N.I. 9), Article 4 and Schedule 2

(4)

S.I. 1999/2790 (N.I. 9)

(5)

Article 129 was amended by S.I. 1999/2790 (N.I. 9), Article 40 and Schedule 9 and S.R. 2002 No. 298