LGA response to the consultation on draft code of practice on electronic and workplace balloting for statutory union ballots

The responsibilities of employers in respect of electronic balloting are clear, in that they will have no involvement.

In respect of workplace balloting, it is set out in the draft Code (para 38) that the employer’s consent is required for a ‘voluntary access agreement’. We are concerned that where such consent is not provided (for any reason, and possibly despite a willingness to support workplace trade union membership) such failure could impact on industrial relations. 

We also note para 131, which encourages trade unions to consider the state of their relationship with the employer before making a request for a workplace ballot, and also encourages the employer to consider any such request with an open mind, and explain reasons for turning down the request. Whilst we anticipate that employers in local government with existing positive industrial relations with trade unions may choose to do so, we consider that the encouragement to give reasons here may suggest it is a requirement, when it is not. 

Where possible in the Code and / or in the future Statutory Instrument, we would welcome even more clarity on this entirely consensual approach to a ‘voluntary access agreement’, including the need for employers to provide reasons for a refusal in circumstances where they choose to do so.

We do not consider any further responsibilities should be included for employers.

We have some concerns that despite the provisions making it clear that the full responsibility for electronic balloting should fall on trade unions or scrutineers, that inevitably there will be an interaction with employers regarding employee details. 

We also have a concern regarding the potential for Freedom of Information Act requests to seek to analyse associated costs of assisting unions or employees inadvertently using workplace devices. This also brings into question the responsibility on employers to notify trade unions and / or scrutineers that such devices may or have been used, and whether any additional costs associated with clarifying that situation should also be counted as costs which should properly be borne by the trade union.

Where possible in the Code and/or in the future Statutory instrument, we would welcome even more clarity that employers should not be held responsible for this, or for holding or sharing any records with unions or scrutineers in this respect.

We have made reference to para 131 above, but have no other comments in respect of scrutineers in relation to these provisions.

We do not consider any further clarity is required in respect of ballot requirements.

We have a number of drafting comments on these clauses:

Para 142

The wording states that the signed completed (voluntary access) agreement must be shared with the employer, union and independent scrutineer, but does not indicate when this should happen (e.g. immediately, as soon as reasonably practicable after it is signed and completed, etc.) Confirming an indication on timing would be helpful here.

Para 143(f)

The wording states that included in the voluntary access agreement should be an agreement from the employer to not unreasonably withhold staff from voting. Although it goes on to say that what would constitute ‘unreasonable’ would also be set out in the agreement, we think it would be helpful that a standard inclusion should be that an employer’s communications/campaign to encourage employees to vote ‘no’ is not unreasonably withholding staff from voting, as such communications/campaigns are not aimed at getting staff not to vote at all.

Para 143(i)

We think there is an error in drafting in this paragraph, which may be intended to read ‘after the ballot commences’:

Contingency agreements – there must be an agreement in place before the ballot commences in case the employer withdraws access consent after during the ballot

Para 143 (i)(ii)

We wonder whether the inclusion of the words underlined here would aid clarity:

What happens to the remainder of the ballot where the employer withdraws access consent before a ballot has concluded. Best practice is that if a ballot is ended early via withdrawn consent due to a breakdown of the employer / union relationship – the ballot is continued via an alternative method.

We do not consider any further clarity is required in respect of sites used for workplace balloting, although please see more general comments below.

In relation to the provisions around Workplace Balloting more generally, we would like to make the following points:

• Wherever possible, clarity and confirmation that no costs of any kind should fall on employers – this should include additional security, access, arrangements in respect of workplace monitoring (e.g. suspension of CCTV etc.) – but should be borne entirely by the trade union. Employers should be encouraged to ensure that all such consequential or associated costs should be made clear to the trade unions in any voluntary access agreements.
• Councils are responsible to their council tax payers, and we raised some concerns regarding the potential scrutiny by them of any / all such consequential or associated ‘costs’ where a workplace ballot is consented to. We would welcome very clear guidance, both for trade unions and employers, to ensure that such costs are not overlooked or otherwise borne by the wrong party.
• We also enquired as to what monitoring will be in place as to how workplace balloting works in practice once established, considering such issues as whether it impacted on existing industrial relations, trade unions’ ability to ensure employee’' workplace devices are not used for electronic balloting and / or whether employers felt genuinely free to refuse consent should they choose to.
• Whilst we note the provisions as currently written do require consent by the employer, we remain alive to the risk that there will be some costs associated with workplace balloting in particular which may be more difficult to quantify and / or for employers to require be borne by trade unions. We would therefore welcome as part of any monitoring the opportunity to submit details on behalf of the local government sector as to whether these costs amount to a new burden.