Joint Committee on Statutory Instruments Fifteenth Report


APPENDIX 3

Memorandum from the Department of Trade and Industry

DRAFT CODE OF PRACTICE ON TIME OFF FOR TRADE UNION DUTIES AND ACTIVITIES (INCLUDING GUIDANCE ON TIME OFF FOR UNION LEARNING REPRESENTATIVES)

1. The Committee has requested a memorandum in relation to the above draft code on the following point:

Section 199(3) of the Trade Union and Labour Relations (Consolidation) Act 1992 requires guidance on the time off to be permitted by an employer to a trade union member to include guidance on the question whether, and the circumstances in which, a trade union member is to be permitted to take time off under section 170 for trade union activities connected with industrial action. Please specify which provisions of the draft code are intended to meet this requirement.

2. Paragraph 49 in 'Section 6 ­ Industrial Action' and Paragraphs 31 and 32 are intended to fulfil the requirements of Section 199(3) that guidance on time off shall include guidance on the question whether, and the circumstances in which, a trade union member is to be permitted to take time off under section 170 for trade union activities connected with industrial action.

3. Paragraph 49 of the Draft Code, repeating paragraph 34 of the current Code, provides as follows:

Section 6. INDUSTRIAL ACTION

49. Employers and unions have a responsibility to use agreed procedures to settle problems and avoid industrial action. Time off may therefore be permitted for this purpose particularly where there is a dispute. There is no right to time off for trade union activities which themselves consist of industrial action. However, where an official is not taking part in industrial action but represents members involved, normal arrangements for time off with pay for the official should apply.

4. This refers to time off for trade union activities and includes guidance on the question whether and in what circumstances a person is entitled to take time off for trade union activities under section 170. The relevant part is highlighted in bold. It establishes that time off to take part in agreed procedures to settle problems and avoid industrial action is permitted even though it may be said to be connected with industrial action. However, it clarifies that there is no right to time off where the activity itself consists of industrial action.

5. Paragraphs 30 and 32 of the Draft Code, repeating paragraphs 20 and 22 of the current Code, when read with paragraph 49 provide further clarity on what are regarded as trade union activities in respect of which a person is entitled to take time off in connection with industrial action.

30. The activities of a trade union member can be, for example:

  • attending workplace meetings to discuss and vote on the outcome of negotiations with the employer
  • meeting full­time officials to discuss issues relevant to the workplace
  • voting in union elections.

32. There is no right to time off for trade union activities which themselves consist of industrial action.

6. Again, the parts that the Department regards as most relevant are highlighted in bold.

7. Paragraph 30 indicates that discussions with employers on matters such as potential industrial action, including attendance at workplace meetings to discuss and vote on the outcome of negotiations with the employer are circumstances in which a trade union member is to be permitted to take time off under section 170 even though these are matters that may be connected with industrial action.

8. Paragraph 32, by clarifying that there is no right to time off for trade union activities which themselves, that is where the activity or activities, consist of industrial action distinguishes these cases from the ones identified in Paragraph 30.

9. In conclusion, it is the Department's view that the above highlighted part of paragraph 49 along with the above highlighted parts of paragraphs 30 and 32 provide the guidance required by section 199(3) of the 1992 Act. Parliament has directed ACAS to offer guidance on a potential problem with regard to time off for trade union activities in connection with industrial action. The Code distinguishes between the circumstances that might be said to be connected with industrial action and provides guidance whether a trade union member is permitted to take time off under section 170 in those circumstances. For instance negotiations with the employer on industrial action are distinguished from taking part in industrial action itself.

10. It is hoped that the Committee finds this reply helpful.

14 March 2003


 
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