The Employment Relations (2004 Order) (Commencement No. 3 and Transitional Provisions) Order (Northern Ireland) 2005

Explanatory Note

(This note is not part of the Order)

This Order brings into operation the provisions of the Employment Relations (Northern Ireland) Order 2004 (“the 2004 Order”) listed in the Schedule to the Order which comes into operation on 24th July 2005. They comprise the majority of the provisions of the 2004 Order which were not commenced by earlier commencement orders.

The Order brings into operation a number of provisions which amend Schedule 1A to the Trade Union and Labour Relations (Northern Ireland) Order 1995 (“the 1995 Order”). These include provisions clarifying how the appropriate bargaining unit is to be determined by the Industrial Court (“the Court”) (paragraphs 1 and 4 of Schedule 1 to the 2004 Order). There are provisions addressing issues as to communications between the union and the bargaining unit, for example, paragraph 5 of Schedule 1 to the 2004 Order which provides for the appointment of a suitable independent person to handle union correspondence with members of a bargaining unit when the Court has accepted an application for recognition. Paragraph 8 of Schedule 1 to the 2004 Order provides for postal voting for workers away from the workplace at the time of a workplace ballot. Paragraph 20 confirms that, in relation to collective bargaining, “pay” does not include occupational or personal pension schemes. A number of provisions are designed to speed up the recognition or derecognition process, for example, paragraph 2 of Schedule 1 to the 2004 Order which enables the Court to terminate the period for reaching agreement on a bargaining unit, paragraph 3 of Schedule 1 to the 2004 Order which requires the employer to provide certain information to the union and paragraph 7 of Schedule 1 to the 2004 Order which enables the Court to extend the period for the parties to reach agreement without the need for a time-consuming ballot.

The Order commences Article 4 of the 2004 Order which gives the Labour Relations Agency, (“the Agency”) the power to require information from parties where it is asked to settle a recognition dispute.

A number of provisions of the 2004 Order which the Order commences deal with the law relating to industrial action. In particular, Article 9 of the 2004 Order amends the protections which the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides for employees taking lawfully-organised, official industrial action. The protected period is extended from eight to twelve weeks and “locked out” days are disregarded when calculating this period. Article 11 of the 2004 Order introduces new matters to which a tribunal is to have regard when assessing whether an employer has taken reasonable procedural steps to resolve a dispute with a union. The duty to have regard to these matters applies where the parties have accepted that the services of a conciliator or mediator will be used.

The Order also commences provisions of the 2004 Order which deal with a number of rights for workers and employees, for example, Article 20 of the 2004 Order amends the 1996 Order to provide that an employee has the right not to be dismissed or treated detrimentally because he serves on a jury or is summoned to do so. The 1996 Order is further amended to provide that selection for redundancy, where the reason or one of the principle reasons is connected to the employee’s jury service, will be treated as an unfair dismissal. The right to bring a claim for unfair dismissal in relation to jury service is not subject to the requirement for one year’s qualifying service, nor is it restricted to those who have not reached their employer’s or the normal retirement age for their job or are otherwise below 65. Similarly Article 21 of the 2004 Order extends certain protections to those taking advantage of the statutory provisions relating to flexible working. Thus, an employee dismissed for making a flexible working application can complain of unfair dismissal even when involved in official or unofficial industrial action. Flexible workers, those apply to be so or complaining in relation to some aspect of their treatment as such, are protected in respect of unfair dismissal and are not subject to the requirements as to length of service or age.

The Order commences Articles 22 to 24 of the 2004 Order, which make amendments to the procedures relating to the exercise of functions by the Certification Officer. These include new powers to deal with vexatious cases and litigants.

The Order also commences Article 29 of the 2004 Order, which deals with the provision of money for trade union modernisation. Money may only be provided for certain specified purposes and is deemed to be provided on terms which prohibit any of it being added to a union’s political fund.

The Order contains a number of transitional provisions to deal with particular matters which are on-going at the time of commencement.