Model Access Arrangements
Access arrangements leading up to a recognition ballot
When should preparations for access begin?
When the union has made a written request for a recognition ballot, the employer should respond within 10 working days by inviting the union to a meeting to discuss arrangements for the ballot and, in particular, the issue of access. The meeting should take place on an early date at least within a further 10 working days.
The employer and the union should ensure that their representative(s) at the meeting are authorised to take all relevant decisions or to make authoritative recommendations to those who will take the final decision.
Joint applications by two or more unions.
The unions should act jointly in preparing and implementing the access arrangement, which, unless the employer and unions agree otherwise, should be common access arrangements.
Establishing an access agreement.
The access agreement should reflect local circumstances and cover:
- who will have access to the employees in the bargaining unit
- where, when, for how long access will be granted
- in what form will this access is to be provided.
It is reasonable for the employer to want to give permission before allowing a full time union official to enter the workplace and talk to with the employees; not least, the employer may have health and safety or security issues to consider.
It is preferable for an access agreement to be in written form, detailing:
- the union's programme for where, when and how it will access the employees on site and/or during working time; and
- the mechanism for resolving disagreements, if any arise, about implementing the agreed access programme; and
- the standards of conduct expected of those individuals who campaign on their behalf.
The union should put its proposals to the employer. If the employer considers the proposals unreasonable, they should offer the union alternative arrangements within 3 working days.
To assist the union, the employer should disclose to the union information as to how they typically communicates with the employees and any other relevant practical information e.g. workplace premises or patterns of work. Names and addresses (whether postal or email) should not be disclosed without the employees' express permission.
Once agreed, the employer should bring the access agreement to the attention of relevant managers/security staff and the union should ensure that its officials and representatives are aware of the details.
Any unavoidable amendments to the access agreement, for example the replacement of a named official or representative by another person should be advised to the other party as soon as practicable. Alternative arrangements should be accepted if they are broadly equivalent to those already agreed.
Where an employer and union(s) fail to agree access arrangements or believe that agreed arrangements have not been adhered to, either or both parties may ask JACS to conciliate. Both parties should give all reasonable assistance to JACS to assist in helping the parties overcome their difficulties.
What is the access period?
The period of access will begin as soon as the ballot date has been agreed. If access arrangements fail to be agreed, the ballot must take place within 15 working days after the breakdown of talks aimed at agreeing access.
If the ballot is to be conducted by post, the access period will end on the closing date of the balloting period. If the ballot is conducted at the workplace, access will continue until the ballot has closed. Both the employer and the union should avoid scheduling large meetings at the time workplace ballots are actually taking place.
Who should be granted access?
The agreement should identify named persons who will be given access. Employers should be prepared to give access to:
a) individual union members who are their employees and who are nominated by the union as the lead representative of their members within the bargaining unit.
b) individual union members who are their employees and who are nominated by the union as the lead representative of their members at other workplaces in the employer's business, provided it is practicable for them to attend the location of the bargaining unit. Travel costs from other workplaces should be met by the individual or the union.
c) "full time" union officials
The number of union representatives should be proportionate to the scale and nature of the events organised within the agreed access programme.
Where will the access take place?
Where practicable, a union should be granted access to the employees at their actual workplace. The union should ensure that any disruption to the business of the employer is minimised. This can be done, for example, by scheduling meetings to avoid busy periods, or by ensuring that a reasonable level of service is maintained during meetings. This may be achieved by holding more than one meeting so that attendance may be staggered over the course of the working day.
Sufficient notice of any intended meeting should be given to the employer to allow appropriate arrangements to be made to minimise any disruption.
What methods of communication are appropriate?
Where suitable, the employer's typical methods of communicating with its employees should be used as a benchmark for determining how the union should communicate. This is to include providing facilities to hold large meetings where it is the employer's practice to use such facilities for the same purpose. Where workplace space limitations mean that the employer only holds small meetings with its employees, then the union will be limited to holding similar small meetings at the workplace.
If, with the agreement of the employer, the union plans to hold large meetings during working hours away from the workplace, it will be for the union to find off-site facilities at its own cost. Where attendance at the meeting place is nearby, within easy walking distance, the employer should normally allow the employees to attend without loss of pay. Otherwise, off-site events should take place outside working time.
Paid time off work to attend agreed meetings.
Where reasonably practicable, the employer should agree to allow all employees (or a substantial proportion of them) the opportunity of attending a meeting with the union of at least 30 minutes for every 10 working days in the period leading up to the ballot. This meeting may take place in scheduled break times but if it takes place during working time, it must be without loss of pay. No extra pay will be due to an employee for attending work other than during normal working hours for the purposes of attending a meeting with the union.
If appropriate and with the employer's agreement, union "surgeries" could be organised at the workplace during normal working hours at which employees would have the opportunity to meet a union representative on an individual or small group basis for 15 minutes. The employer would not be expected to pay the employee(s) who attend such surgeries when the employee would not otherwise have been at work or receiving payment from the employer.
The union may want to display written material at the workplace, as may the employer. Where practicable, the employer should provide a notice board in a prominent location for the union's use. The union should be able to display material, including references to off-site meetings, without interference from the employer. No abusive or defamatory material should be displayed on any notice board by any party.
If the union wishes to make use of its web-site pages for campaigning purposes, an employer should allow the employees access to the union's material in the same way that they would explicitly or tacitly be allowed to down-load information not directly related to performance of their job. Similarly, a nominated union representative may want to make use of internal electronic communication, such as email or intranet for campaigning purposes. The employer should allow reasonable use in the same way that they explicitly or tacitly allows the employees to use such facilities for matters not directly related to the performance of the job, or should allow this if the employer uses such communication to send messages to their employees about recognition or de-recognition. The origin of any such messages or campaign material should be made clear by the union or the employer.
Where the union wishes to send material by post the employer will not be obliged to give postal details of its employees to the union. However, JACS can be asked to arrange the posting of materials based on details of names and addresses, etc, given in confidence by the employer. Each side will bear its own costs in relation to the production and distribution of written materials.
In total, the union should be allowed the same amount of time to communicate with the employees on the subject or recognition/de-recognition as is available to the employer.
Arrangements for non-typical employees
Employees in a bargaining unit may not work full-time in a standard Monday to Friday working week, or may rarely visit the employer's premises. The employer should be receptive to a union's suggestions that will allow reasonable access to such employees to provide them, where practicable, with the opportunity to achieve a broadly equivalent level of access as is provided for typical employees.
For example, meetings or surgeries could be organised on a more flexible basis. The employer will not be obliged to meet the travel costs of his employees attending such meetings.
Joint employer/union activities
There may be scope and increased efficiency benefits by the employer and union undertaking joint activities where they both put across their respective views. For example:
- a joint meeting could be organised with each party allocated 30 minutes to address the employees, and/or
- joint use of a notice board, and/or
- joint use of a mail-shot with each party bearing half the costs
In the absence of an agreement being reached the following principles should apply as a minimum:
Privacy of meetings
Employers should respect the privacy of access meetings. Supervisors or managers may attend an access meeting provided they have been invited to attend by the union. If the managers or supervisors fall within a bargaining unit and, therefore, have an entitlement to vote but are not invited to attend an access meeting with the other employees, separate access meetings which they can attend should be organised. The attendance of supervisors or managers who fall within the bargaining unit should be considered as part of the access planning process.
Both the employer and the union should take steps to ensure that potentially acrimonious situations are avoided. Neither the employer nor the union should seek to disrupt or interfere with meetings being held by the other party or schedule other events, which would draw employees away from the other party's planned meeting.
Recognition and de-recognition ballots concern important and sometimes complex issues. It may help those employees entitled to vote to receive information from the employer and the union setting out their views on the implications of recognition and non-recognition.
Campaigning can expose sharp divisions of opinion and ill-judged activity can damage trust and long-term employment relations. The parties should discuss with each other at an early stage how they would wish campaigning to be undertaken. Prior discussion should focus on the standards of conduct expected of campaigners to minimise the risk of intimidation occurring.
To offer an inducement to employees in return for that employee's agreement to vote in a particular way i.e. an "outcome specific inducement" would be unfair. For example an offer by the employer or union of a payment (or a fringe benefit comprising a non-cash offer) provided the ballot does (or does not) result in recognition or de-recognition would be categorised as unfair. In contrast, an undertaking by a union to secure certain advantages for employees through the collective bargaining process would not be unfair as it clearly depends upon other circumstances - in this case the success of the union in the negotiation of certain terms within a collective agreement. Providing such benefits for permissible reasons - e.g. as a normal inducement to join a union or as a typical bonus for reaching a work target - would not be categorised as an unfair practice.
Under the Employment (Jersey) Law 2003, the dismissal of an employee because of union-related activity would be an automatically unfair dismissal irrespective of whether or not the employee had 26 weeks continuous service or whether or not the employee was past the normal retirement age.
It would also be an unfair practice if either party coerced or attempted to coerce an employee, threatened or subjected an employee to any detriment, used or attempted to use undue influence on an employee in order to secure a vote for recognition or de-recognition.
Disputes about access
When access arrangements are in use, disputes may arise, e.g. the employer may be aggrieved that an access meeting has over-run the allotted time, or a union may complain about the meeting facilities that the employer made available. In such circumstances, both parties should avoid taking hasty action that may prejudice the implementation of other access arrangements.
The parties should make every effort to resolve such disputes, using such mechanisms as they have established in the access agreement. The parties may wish to call upon the conciliation service offered by JACS. Ideally, the parties will have nominated a person to act as their lead contact if such disagreements arise. Any complains about a person's conduct during an access meeting or while campaigning should be dealt with in a similar manner.
Only in extreme cases should it be necessary to make a complaint about an unfair practice to the Tribunal.
Tribunal Reports & Case Precedents
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