New trade union right of access: your questions answered

We answer some of the most common questions below. 

What is the new right of access?

Qualifying trade unions will be able to enter into statutory access agreements with employers. These agreements will allow union officials to access workplaces or communicate with workers to meet, support, represent, recruit, organise, and help facilitate collective bargaining. 

Importantly, the new right will apply regardless of whether the workers are union members. However, trade unions cannot use access rights to organise industrial action. 

What happens if an employer rejects a trade union's request for access?

If the employer and union cannot agree access arrangements, either party can refer the matter to the Central Arbitration Committee (CAC) for a decision. 

The Code of Practice on trade unions' right of access into workplaces ('the Code') explains how the CAC should approach decisions on access requests. The statutory framework starts from a presumption in favour of access and are guided by the following access principles:

• officials of a qualifying trade union should be able to physically enter a workplace or communicate with workers (or both) for any of the access purposes in any manner that does not unreasonably interfere with the employer's business
• an employer should take reasonable steps to facilitate access by officials of a qualifying trade union
• physical entry into a workplace should not be refused solely on the basis that communication with workers by means not involving physical entry into a workplace is permitted
• communication with workers by means not involving physical entry into a workplace should not be refused solely on the basis that physical entry into a workplace is permitted
• access should be refused entirely only where it is reasonable in all the circumstances to do so

You can find out more information about the Code here. 

Do we have to give access to more than one union? 

Possibly. More than one union can request access, although the Code includes safeguards to manage duplicate or overlapping requests. 

If an employer rejects all or part of a request, it should tell the union if another union has already made, is negotiating, or has agreed a request that covers substantially the same workers. This gives the unions an opportunity to remove any duplication or overlap by withdrawing or revising the request, or by making a joint application. 

If the unions cannot resolve the issue and the CAC receives overlapping applications, it may notify the unions and give them a chance to reach a solution. If they still cannot resolve the overlap, the CAC may refuse the applications. 

Two or more unions can make a joint application. A joint agreement could give the unions access to the same workers or give different unions access to different workers employed by the same employer. In either case, the unions should work together to prepare and implement the access arrangements. Joint applications do not increase the time allowed for access visits, and the unions do not have to carry out their access arrangements together. 

The CAC may also refuse an application where a statutory access agreement already applies to one or more of the workers covered by the new request. If the request covers some workers who are already covered by an existing agreement and others who are not, the CAC can still impose an access agreement for the workers who fall outside the existing arrangements. 

What happens if there is a current recognition agreement? 

Where an employer already recognises a trade union that represents one or more of the workers that are subject to an access request, then the CAC may refuse access to those workers on that basis. The same applies where there is an ongoing statutory recognition process at the workplace, concerning one or more workers that the access request is also seeking access to. The Code explains that the CAC may refuse access to those workers on that basis, however, the CAC can still impose an access agreement for the workers who fall outside the existing arrangements. 

How do the rules of access interact with data protection obligations? 

An access agreement cannot require the disclosure of personal data without consent or in breach of data protection legislation. 

The Code explains that if, for example, an access agreement only covers indirect digital access where there is no disclosure of personal data, such as an agreement that the employer will cascade information that the trade union has requested on a staff intranet or an all-staff email, then consent would not be needed because there is no disclosure of personal data. 

For trade unions to contact workers directly (without the employer acting as the intermediary), the worker would need to give their consent to the employer to share their contact details. Alternatively, the worker could reach out to the trade union themselves and establish direct contact that way. 

Do unions have to reapply for an access agreement after two years if this is how long the CAC register the agreement for? 

An access agreement can last for up to two years. The parties can agree to extend it beyond that period, but if they do not, the agreement will end and the union will need to follow the statutory process again. 

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