Employment Rights Bill: workplace access measures

In this article Charles Pigott offers an overview of the new framework for union access agreements set out in the Employment Rights Bill.

Overview

Many of the measures relating to trade unions in the Employment Rights Bill involve amending or repealing existing legislation. However, the Bill will also create a completely new statutory framework to enable independent trade unions to gain access to workplaces for defined purposes.

Much of the detail will be set out in secondary legislation, but there's sufficient information in the Bill to understand how this new regime will work in broad terms.

For more information about the Bill’s other trade union related measures see our briefing here.

Scope of access agreements

Access agreements will allow independent trade unions physical access to the workplace and allow them to communicate with workers “by any means”, both directly and indirectly.

Access agreements will not allow unions to organise industrial action. There will be some restrictions in relation to physical access for certain workplaces where these have a residential element (eg care homes).

Statutory procedure

The union can begin the process by giving the employer a formal request for access. Regulations will stipulate exactly what information the request should contain.

The employer will then have a set period to respond, after which there will be a defined negotiation period. If the parties fail to agree, the union has the option of making an application to the Central Arbitration Committee (CAC).

The CAC will then decide whether the union should have access, and if so on what terms. In making a decision, the CAC is required to have regard to the “access principles” set out in the Bill. These envisage that access will normally include both physical access to the workplace and the ability to communicate by other means, provided it doesn't “unreasonably interfere” with the employer’s business.

Enforcement

The parties can apply to the CAC if there's a breach of the access agreement. Employers can be fined for repeated non-compliance.

However, like collective agreements, access agreements will be presumed not to be legally binding and so will not normally be enforceable by other means.

Practical implications

The procedure for securing an access agreement is reminiscent of the statutory recognition procedure for trade unions. That’s because it builds in considerable incentives throughout the process for the parties to come to a voluntary agreement without submitting to the statutory regime. Formal access to the workplace may indeed enable the union to build the case for recognition. 

It will be some time before a complete picture of the new regime emerges, since regulations will be required to fill in much of the detail. However, there's enough information in the Bill for employers to understand broadly what's likely to be involved.

These measures are likely to have the greatest impact on employers that do not already recognise a trade union. But it's possible that in some circumstances unions who already have secured recognition, but aren't happy with the workplace access arrangements, could use the threat of invoking the access procedure to secure better terms.

As with most provisions in the Bill, we don’t yet have an implementation timetable, but think it unlikely that these measures will come into effect before the second half of next year.

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