5. UNION AND COLLECTIVE ORGANISATION

Most union and collective organisation rights are found in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), which was amended by the Employment Relations Act 1999 (ERA 99) and the Employment Relations Act 2004 (ERA 04). In Northern Ireland, these rights are found in the Trade Union and Labour Relations (Northern Ireland) Order 1995 (TULRO), as amended.

These laws lay down the status of a union and its duties in respect of keeping accounts, submitting returns and the conduct of elections, as well as setting out rights of trade unions and members.

It is unlawful to enforce 100% union organisation (a closed shop). Section 222 of TULRCA states that all industrial action to enforce 100% union membership agreements, or to cause an employer to discriminate against a non-member is unlawful, leaving the union at risk of legal penalties. Any dismissal of a non-union member to enforce 100% membership is automatically unfair.

It is unlawful under section 145A of TULRCA for an employer to offer a worker an inducement not to join a union or take part in union activities, or to join a union or any particular union(s).

It is also unlawful under section 145B of TULRCA for an employer to offer a member of a trade union that is recognised or seeking recognition, an inducement to stop or prevent their terms and conditions being negotiated by a union through a collective agreement (collective bargaining). This law is of increasing importance to trade unionists.

In 2006, supermarket chain Asda was ordered to pay £850,000 for offering inducements to 340 members of the GMB general union to give up collective bargaining rights. Workers at its distribution depot in Washington, Tyne and Wear were offered a 10% pay rise to end collective bargaining at the site.

Section 145B of TULRCA is likely to become even more significant following changes to the Transfer of Undertaking (Protection of Employment) Regulations 2006 (TUPE) which became law on 31 January 2014 and which seek to undermine the protection of collective terms after a TUPE transfer. In particular, regulation 4(5B) of TUPE allows employers to seek to renegotiate any contract term incorporated from a collective agreement one year after transfer. Under this new regulation, any replacement terms that are agreed will not infringe TUPE as long as the contract terms “when considered together” are “no less favourable” to the employee than the collective terms being replaced. But union legal advisers point out that any attempt to persuade individual union members to abandon their collectively bargained terms will infringe section 145B of TULRCA, as an “inducement” to move away from collective bargaining. See the LRD booklet: TUPE — a guide to using the law for union reps, 2014 (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1706).

The amount of the award payable to a worker by an employer who has offered an inducement is £3,715 (2014-15).