The revised ACAS Code of Practice on time off for trade union duties and activities has been approved by the Minister for Business and will come into force early in 2010. It revises the 2003 Code of Practice and is intended to reflect the changing nature of the workplace and the effect of this on time off arrangements for trade union representatives. Once approved, the Code will be admissible in evidence in Tribunal proceedings and any relevant provisions shall be taken into account by the Tribunal (although a failure to observe the Code will not create any claim in itself). Annexed to the Code are the statutory provisions relating to time off for trade union duties and activities, contained in the Trade Union and Labour Relations (Consolidation) Act 1992 (sections 168 to 170, 173, 178 and 119). Separate guidance on managing time off has also been produced. The Code and guidance can be downloaded from www.acas.org.uk.
This briefing does not seek to explain the law relating to time off, but simply to flag up the main changes to the ACAS Code which will need to be kept in mind when advising the unions and assessing potential claims. Whilst breaches of the Code will not create causes of action in themselves, the majority of the changes should provide unions with useful ammunition when dealing with reluctant or obstructive employers in the workplace.
Significant Changes
1. Section 188 and TUPE
There is now specific reference to time off where the representative's duties are concerned with the receipt of information from the employer and consultation under section 188 TULR(C)A or under TUPE, where the duties are concerned with negotiations concerning agreements under regulation 9 of TUPE (agreements to vary contracts in insolvency situations) or the performance of functions related to regulation 9 agreements [pages 8 and 12 of the Code].
2. Payment for time off and adjustment of targets
The Code now states that "the calculation of pay for the time taken for trade union duties should be undertaken with due regard to the type of payment system applying to the union representative including, as appropriate, shift premia, performance related pay, bonuses and commission earnings". In addition, "where pay is linked to the achievement of performance targets it may be necessary to adjust such targets to take account of the reduced time the representative has to achieve the desired performance" [page 13 of the Code].
Identical provision is made in relation to payment for time off to undertake training [page 20 of the Code], but note that there is no statutory requirement for payment to be made in respect of time off to undertake trade union activities.
3. E-learning
The Code states that E-learning tools in relation to the role of union representatives should be used "where appropriate and available". However, it emphasises that these should be in addition to attendance at approved TUC courses and that "time needs to be given during normal working hours for union representatives to take advantage of e-learning where it is available" [page 17 of the Code].
4. Taking part in trade union activities
The Code's examples of trade union activities of a trade union member (as opposed to a union representative) have been extended to include attending workplace meetings to discuss and vote on the outcome of negotiations with the employer "at the employer's neighbouring locations" (where this has been agreed by the employer), and having access to services provided by a Union Learning Representative [page 21 of the Code].
5. Management of time off: cover and workload adjustments
The Code now states that "employers should ensure that, where necessary, work cover and/or work load reductions are provided when time off is required. This can include the allocation of duties to other employees, rearranging work to a different time or a reduction in workloads" [page 24 of the Code].
6. Facilities for union representatives: confidential space
Where resources permit, facilities for union representatives should include "confidential space", where employees involved in grievance or disciplinary matters can discuss matters with their representative in private, or where other confidential issues can be discussed.
Union representatives should also be provided with access to members who work at a different location and access to e-learning tools where computer facilities are available [page 24 of the Code].
7. Confidentiality
The Code contains a new requirement for union representatives to comply with "agreed procedures" when using facilities provided by the employer, including in particular, maintaining the confidentiality of information they are given access to "where the disclosure would seriously harm the functioning of, or would be prejudicial to, the employer's business interests".
Similarly, the Code requires employers to "respect the confidential and sensitive nature of communications between union representatives and their members and trade union" and provides that regular or random monitoring of union e-mails should not normally take place [page 25 of the Code].
8. Flexibility
The Code includes a requirement for union representatives to be "as flexible as possible" when seeking time off, where the "immediate or unexpected needs of the business" make it difficult for their time off to be managed. However, it also states that employers should "recognise the mutual obligation to allow union representatives to undertake their duties" [page 26 of the Code].
9. Management responsibilities
In accordance with the Code, line managers should be familiar with the rights and duties regarding time off and "should be encouraged to take reasonable steps as necessary in the planning and management of representatives' time off and the provision of cover or work load reduction, taking into account the legitimate needs of such union representatives to discharge their functions and receive training efficiently and effectively" [page 27 of the Code].
Thompsons Trade Union Law Group
November 2009
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