Do trade unions have a monopoly position when changing collective terms?

Trade unions are increasingly using a relatively unknown provision in the Trade Union Labour Relations (Consolidation) Act 1992 (TULRCA) in negotiations with employers over changes to collectively agreed terms and conditions of employment. With three tribunal cases in less than 12 months, involving potential compensation in the hundreds of thousands, employers need to be aware of the issues involved and how to respond.

Section 145B of TULRCA provides that a worker who is a member of an independent trade union that is recognised, or seeking to be recognised, by his or her employer has the right not to have an offer made to him or her that would result in any of his or her terms and conditions no longer being determined by collective bargaining.

The financial penalty for a breach of section 145B is £3,600 for each claimant union member receiving the offer. For large employers, such as education institutions, such penalties can therefore be substantial. In addition, there are conflicting statutory provisions over whether any changes made relying on such an offer are enforceable. Finally, dismissals as a consequence of rejecting an offer that contravenes section 145B are automatically unfair…

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