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The Risks of Bypassing Collective Bargaining Part 2

Last month, we looked at what happened to an employer when they decided to bypass the system of collective bargaining and negotiate directly with employees. This time, we’ll take a look at the law surrounding collective bargaining and what employers ought to bear in mind.

What the law says

145B Inducements relating to collective bargaining

(1) A worker who is a member of an independent trade union which is recognised, or seeking to be recognised, by his employer has the right not to have an offer made to him by his employer if—

(a) acceptance of the offer, together with other workers' acceptance of offers which the employer also makes to them, would have the prohibited result, and

(b) the employer’s sole or main purpose in making the offers is to achieve that result.

(2) The prohibited result is that the workers' terms of employment, or any of those terms, will not (or will no longer) be determined by collective agreement negotiated by or on behalf of the union.

(3) It is immaterial for the purposes of subsection (1) whether the offers are made to the workers simultaneously.

(4) Having terms of employment determined by collective agreement shall not be regarded for the purposes of section 145A (or section 146 or 152) as making use of a trade union service.

(5) A worker or former worker may present a complaint to an employment tribunal on the ground that his employer has made him an offer in contravention of this section.

Time limit for proceedings

A claim under Section 145B has to be made within three months of the offer being made, or – if the offer is part of a series of similar offers – within three months of the last offer being made.

If the claimant can show that it was not reasonably practicable for them to make the claim within the three-month limit, the claim can be made within a further period considered reasonable by the tribunal.

What should employers bear in mind?

It’s important that employers should take a look at the existing collective bargaining agreement and review it so that it defines what is included within the term ‘bargaining’. If there is no collective bargaining agreement, then this point should be borne in mind when negotiations are being conducted with the union.

When the collective bargaining is being undertaken, it will be crucial for employers to ensure that they have exhausted every outlet before they move to a position where they intend to make approaches to individual employees. If in doubt, the employer should err on the side of caution and go the extra mile to ensure that they are seen as having done all that they can to conclude negotiations.

When approaches are made to individual employees, what is offered should not really be any different from what was being offered through the collective bargaining process.

Employers also need to make it very clear why they are making the offer to the individual employees – if it is a business imperative (or can be defined as such) that the change needs to happen, and the employer needs to get buy-in from the workforce, this can help to persuade the tribunal (and possibly the union as well) that the reason for making the offer was not to bypass collective bargaining but instead had a more honest objective.

In any situation where the employer is unsure about how to proceed, or if they have doubts about their best course of action, they should obtain legal advice as soon as possible.