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Consultation on Draft Code of Practice on Time Off For Trade Union Duties and Activities

Response by Thompsons McClure, Solicitors
August 2010

Thompsons McClure is the Northern Ireland associate of Thompsons Solicitors and is the largest trade union law firm in Northern Ireland. At a UK level Thompsons is the UK’s most experienced firm of trade union, employment rights and personal injury lawyers. The firm has a network of offices, operating in England, Wales and Scotland and Northern Ireland. On employment and industrial relations issues it acts only for trade unions and their members. Thompsons represents the majority of UK trade unions and advises on the full range of employment rights issues through its specialist employment rights service.

General Comments

1. It is imperative to recognise the distinct and unique role of a trade union official in comparison with a non-union representative. The trade union official not only has wider duties and responsibilities than a non-union representative but also operates in an entirely distinct and separate environment to a non-union counterpart.

The role of a trade union official can best be described as three-pronged; involving the following relationships:
• trade union representative and employer
• trade union representative and affected employee
• trade union representative and trade union.

2. The three-pronged nature of the role of trade union officials brings benefits. Trade union officials are able to access a more comprehensive range of expert advice and training than non-trade union representatives, through the structures of their trade unions.

They are able to bring to bear a fuller range of skills in the workplace, to the benefit of employers as well as workers.

3. The role of a non-union representative remains two-pronged and as a result much more limited in focus.

4. For this reason, we endorse the fact that the Code deals solely with trade union officials and not non-union representatives. Given the unique nature of their roles, and their definition under applicable legislation, it is imperative that the provisions on time off for trade union officials (and members) are dealt with in a separate Code.

5. Article 90 of the Industrial Relations (Northern Ireland) Order 1992 (“the 1992 Order”) provides that the LRA may issue Codes of Practice containing such practical guidance as it thinks fit for the purposes of “promoting the improvement of industrial relations or for purposes connected with trade union learning representatives” and specifies matters in which such guidance should be provided.

6. It is clear from the wording of Article 90 of the 1992 Order that this legislation is centred on trade union officials and trade union members. Parliament is clearly recognising the unique role carried out by trade union officials and is focusing the attention of the LRA in assisting them to be able to carry out their duties as effectively as possible.

Specific Comments on the Code

“Union Representative”

7. We note that paragraph 2 of the Code states that the term “union representative” is to be used rather than the term “Trade union official”. While we have some reservations about this change given the use of the term “trade union official” in much of the relevant legislation, we accept that there is a practical argument for this change. That being the case, we believe that the seemingly inappropriate use of various terms other than “union representative” throughout the Code is not consistent with this position and should be corrected.

In this respect we would refer you to the following: paragraph 6 (trade union officials); paragraph 13 (trade union representatives); paragraph 20 (trade union representatives); paragraph 42 (trade union representatives); and paragraph 49 (trade union representatives). Also the title of Section 2 refers to “Officials” – the equivalent heading in the ACAS Code refers to “union representatives”.

Status of the Code

8. Paragraph 6 of the Code provides that it is admissible in evidence and “may” be taken into account in determining any question arising during industrial tribunal proceedings. We appreciate that this formulation is taken from the current version of the Code. Nevertheless, it is not strictly accurate.

9. Article 90(16)(a) of the 1992 Order provides that the Code is admissible in evidence in any proceedings before a tribunal (or the Industrial Court). If any provision of the Code appears to be relevant to any question arising in the proceedings, then Article 90(16)(b) provides that it “shall” be taken into account. We consider that this is a significant inaccuracy which should be corrected.

It should be noted that the equivalent ACAS Code at paragraph 7 uses the amended formulation proposed above.

Section 1 - Time Off for Trade Union Duties

Paragraph 10 First Bullet Point

10. Consideration should be given to adding a footnote to the effect that the definition of a “recognised” union is to be found in Article 39(2) of the 1992 Order and/or to refer to the relevant legislation as set out on page 28 of the Code.

11. No definition of “collective bargaining” is provided (although paragraph 13 does set out the subject areas that can comprise collective bargaining). We would suggest that it would be useful to either refer forward to paragraph 13 and to provide a footnote referring to the relevant legislation and/or to refer to the relevant legislation as set out on page 27 of the Code.

Paragraph 12

12. Consideration should be given to adding a footnote to the effect that the definition of an “independent trade union” is to be found at Article 2(1) of the 1992 Order and/or or to refer to the relevant legislation as set out on page 27 of the Code.

Paragraph 13

13. We note that at paragraph 19(c) of the Code under the heading “allocation of work or the duties of employment as between workers or groups of workers”, “family friendly policies” is used as an example. We would suggest that the term “work-life balance” as used in the equivalent ACAS Code (Paragraph 13(c)) is wider in its ambit and should be used instead.

Payment for Time Off for Trade Union Duties – Paragraphs 18 & 19

14. We note that paragraph 18 of the Code provides that the payment by the employer must include consideration of shift premia, performance related pay etc. This is a variation from the previous version of the Code and we endorse this amendment which clarifies the position.

15. Paragraph 19 of the Code provides that “There is no statutory requirement to pay for time off where the duty is carried out at a time when the union representative would not otherwise have been at work unless the union representative works atypical hours, such as night shift, but needs to perform representative duties, including training during normal hours.”

We contend that this sentence requires further clarification. This is an area specifically identified as an issue to be addressed in the Code - “the position of representatives who have atypical work patterns or who service other employees with atypical work patterns”.

We do not believe that paragraph 19 deals adequately with this issue. For example, the issue is not only about how a union representative is paid for carrying out trade union duties and activities when he or she works atypical hours, but also as to when and how he or she could exercise this right when working atypical hours.

Section 2 – Training for Officials in Aspects of Employment Relations and Employee Development

16. We would suggest that there is again an issue about providing a definition of key terms including “recognised” and “independent trade union” and the statutory source of such definitions. This could be dealt with by a reference to definitions elsewhere including references to the legislation contained in the Code at page 23 onwards. The “Terminology” section at the start of the Code should include a reference to the fact that definitions of the various terms and their statutory sources are to be found in the Code.

Paragraph 26

17. We note that the list of examples given for the types of training for which time off can be given is somewhat different in the Code than in the equivalent ACAS Code (paragraph 26). In particular, the ACAS Code specifically refers to “training where a union representative undertakes the role of accompanying employees in grievance and disciplinary hearings”. As this is a critical function for a union representative and central to good industrial relations, we see no good reason for the non-inclusion in the Northern Ireland Code of such training as a specific example.

Similarly, the Code gives as an example “courses to develop the representative’s skills in representation and negotiation” whereas in the ACAS Code the skills listed are “…representation, accompaniment, negotiation and consultation”.

We believe that the list of examples in this paragraph should be the same as that in the ACAS Code

Paragraph 29

18. In relation to the section on “Arranging and Supporting Learning and Training” at paragraph 29, while the equivalent paragraph of the ACAS Code (paragraph 30) refers to employers arranging and supporting “e-learning where available”, no such reference is included in the Code. This should be amended to reflect the ACAS Code. Indeed, we believe that greater focus should be given in respect of IT training and learning and how it will be facilitated in the workplace given its increasingly central role in all workplaces.

Payment for time off for training - Paragraphs 33/34

19. In relation to the issue of payment for time off for training, we would reiterate our comments at paragraphs 14 & 15 above.

Section 3 – Time Off for trade union activities

20. We would re-iterate our comments at paragraph 16 above in relation to the need for definitions of, and statutory references for, key terms which have specific legal definitions.

Section 4 – The responsibilities of employers and trade unions

Paragraph 45

21. We note that paragraph 45 states that “employers should make available to union representatives the facilities necessary for them to perform their duties efficiently and communicate effectively with their members, colleague union representatives and full-time officers. Where resources permit the facilities should include……”

We note that this effectively places a major qualification on the duty of employers to make available to trade union officials the facilities necessary for them to perform their duties i.e. facilities need only be provided “where resources permit”.

We believe that this qualification is excessively restrictive. We are aware, for instance, of large organisations simply asserting that resources do not permit them to give access to email systems to union officials.

We believe that the Code should be drafted in a manner whereby employers are required to provide these facilities and that it will only be in exceptional circumstances that a union representative may not be afforded access to these vital facilities.

In other words, the rule should be that these facilities are provided by the employer and any exception to this rule should be defined very narrowly. This should ensure that union representatives obtain adequate access to facilities to be able to carry out their duties properly.

We note that the final three bullet points on paragraph 45 are new and were not included in the previous Code. We endorse their inclusion.

Sections 5/6/7 - No comment

Thompsons McClure
August 2010