New statutory access rights for trade unions come into force from 30th October this year. These changes are important for you, even if you have not had to engage with trade unions before now.
What are statutory access rights?
Under this new legislation, unions have a right to come into the workplace and speak to employees – even if you do not recognise a union and don’t have any union members working for you. This access will allow unions to meet, support, represent, and recruit workers and to facilitate collective bargaining. It will not give unions the right to organise industrial action.
This new legislation will apply to all workplaces with 21 or more workers and access can either be physically on your premises, or through your digital communications channels.
If you get an access request from a union, you will have just 15 days to respond, and 25 days to negotiate in good faith, with a view to agreeing the access arrangements. There is an emphasis on reaching voluntary agreements. If you fail to do this, the Central Arbitration Committee can impose arrangements and there are potential fines, escalating up to £500,000.
These new reforms will bring require you to tell every employee they have the right to join a union, as well as providing union representatives the means to carry out their duties (such as private meeting rooms and computer access).
If you plan now, you will be ready when you receive that statutory access request from a union – as early as November this year.
What might an access agreement look like?
The intention is for this to set out the practical arrangements governing how trade union access will operate in your particular workplace.
The request will need to include information about which workers are covered by the request; the purpose of the access; proposed timings and whether physical and/or digital access is sought.
The Statutory Code of Practice suggests that an agreement includes:
- Weekly access, although a different frequency can be negotiated;
- Notice of five working days by the union before the first occasion of access, and at least two working days’ notice of subsequent access;
- A two year duration, with the ability to agree an extension;
- The employer making available existing accommodation and facilities;
- The employer making sure that communications between the union and workers are private;
- Trade union officials being obliged to comply with reasonable instructions of the employer.
You can agree that access can normally only take place during working hours but at times to minimise disruption to the activities of the employer (for example, at the start of a shift).
Employees must be paid in full for the duration of their absence from work to attend union meetings held under an access agreement.
An access agreement can also include access to workers based on third-party premises, including client sites, and employers may need to take reasonable steps to facilitate that.
What does digital access mean?
The Statutory Code of Practice suggests some different digital options, including facilitating online meetings via existing IT platforms and communicating through existing channels already used by the employer (so using your workplace email system and/or intranet, or existing video conferencing systems).
Digital access needs to take into account data protection and you are not required to disclose your workers’ personal email contact details unless they have expressly given their consent.
Can we refuse an access request from a union?
The employer cannot refuse access, that must be done by the CAC if you cannot negotiate access successfully with the union.
There are limited circumstances when access can be refused: if an employer has fewer than 21 workers; where certain notice requirements have not been complied with (although this might only delay, not prevent, access); where access might prejudice national security or the investigation or detection of offences.
Other reasons why the Central Arbitration Committee (CAC) might refuse an access request include:
- the employer already recognises an independent trade union for one or more workers in the access request;
- there is an ongoing statutory recognition process covering one or more workers in the access request;
- another access request is still live and at least one worker falls within both requests;
- an existing statutory access agreement already covers at least one worker in the current request;
- the request would involve significant structural changes to the employer’s premises or IT systems.
What employers need to do right now
- Don’t wait for an access request from a trade union – 15 days is not very long.
- Update your employment contracts and onboarding materials, to ensure that you include the right to join a union.
- Think about how you will manage union access requests and what an access agreement might look like. You could put together a short summary document for discussion with the relevant trade union.
- Review your internal communication channels for the potential use for digital access discussions.
- Ensure your managers, and relevant staff, understand the new legislation and how to manage access requests.
- If you already have a recognition agreement with one or more unions, then it is a good idea to review them to ensure they are current and relevant.
- If you don’t have a recognition agreement in place, you might want to consider whether to proactively engage with a trade union to agree voluntary access.
As always, if you need help or advice with anything in this blog, please contact us.
