Выступление Постоянного представителя Российской Федерации А.К.Лукашевича - О выборах в Государственную Думу Федерального Собрания Российской Федерации
It is unlawful to refuse a person employment—
because he is, or is not, a member of a trade union, or
because he is unwilling to accept a requirement—
to take steps to become or cease to be, or to remain or not to become, a member of a trade union, or
to make payments or suffer deductions in the event of his not being a member of a trade union.
A person who is thus unlawfully refused employment has a right of complaint to an industrial tribunal.
Where an advertisement is published which indicates, or might reasonably be understood as indicating— a person who does not satisfy that condition or, as the case may be, is unwilling to accept that requirement, and who seeks and is refused employment to which the advertisement relates, shall be conclusively presumed to have been refused employment for that reason.
that employment to which the advertisement relates is open only to a person who is, or is not, a member of a trade union, or
that any such requirement as is mentioned in subsection (1)(b) will be imposed in relation to employment to which the advertisement relates,
Where there is an arrangement or practice under which employment is offered only to persons put forward or approved by a trade union, and the trade union puts forward or approves only persons who are members of the union, a person who is not a member of the union and who is refused employment in pursuance of the arrangement or practice shall be taken to have been refused employment because he is not a member of the trade union.
A person shall be taken to be refused employment if he seeks employment of any description with a person and that person—
refuses or deliberately omits to entertain and process his application or enquiry, or
causes him to withdraw or cease to pursue his application or enquiry, or
refuses or deliberately omits to offer him employment of that description, or
makes him an offer of such employment the terms of which are such as no reasonable employer who wished to fill the post would offer and which is not accepted, or
makes him an offer of such employment but withdraws it or causes him not to accept it.
Where a person is offered employment on terms which include a requirement that he is, or is not, a member of a trade union, or any such requirement as is mentioned in subsection (1)(b), and he does not accept the offer because he does not satisfy or, as the case may be, is unwilling to accept that requirement, he shall be treated as having been refused employment for that reason.
The provisions of this section apply in relation to an employment agency acting, or purporting to act, on behalf of an employer as in relation to an employer.
It is unlawful for an employment agency to refuse a person any of its services—
because he is, or is not, a member of a trade union, or
because he is unwilling to accept a requirement to take steps to become or cease to be, or to remain or not to become, a member of a trade union.
A person who is thus unlawfully refused any service of an employment agency has a right of complaint to an industrial tribunal.
Where an advertisement is published which indicates, or might reasonably be understood as indicating— a person who does not satisfy that condition or, as the case may be, is unwilling to accept that requirement, and who seeks to avail himself of and is refused that service, shall be conclusively presumed to have been refused it for that reason.
that any service of an employment agency is available only to a person who is, or is not, a member of a trade union, or
that any such requirement as is mentioned in subsection (1)(b) will be imposed in relation to a service to which the advertisement relates,
A person shall be taken to be refused a service if he seeks to avail himself of it and the agency—
refuses or deliberately omits to make the service available to him, or
causes him not to avail himself of the service or to cease to avail himself of it, or
does not provide the same service, on the same terms, as is provided to others.
Where a person is offered a service on terms which include a requirement that he is, or is not, a member of a trade union, or any such requirement as is mentioned in subsection (1)(b), and he does not accept the offer because he does not satisfy or, as the case may be, is unwilling to accept that requirement, he shall be treated as having been refused the service for that reason.
In sections 1 and 2—
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Crown employment, and
employment as a relevant member of the House of Commons or House of Lords staff,
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Section 16(1).
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“employment” means employment under a contract of service or apprenticeship, and related expressions shall be construed accordingly;
“employment agency” means a person who, for profit or not, provides services for the purpose of finding employment for workers or supplying employers with workers, but subject to subsection (3) below;
“member of a trade union” shall be construed in accordance with subsection (4) below;
“date of the ballot” has the same meaning as in Part II of the Trade Union Act 1984; and
Where a person may not be considered for appointment or election to an office in a trade union unless he is a member of the union, or of a particular branch or section of the union or of one of a number of particular branches or sections of the union, nothing in section 1 applies to anything done for the purpose of securing compliance with that condition although as holder of the office he would be employed by the union. For this purpose an “office” means any position—
by virtue of which the holder is an “official” within the meaning of section 30(1) of the Trade Union and Labour Relations Act 1974, or
in relation to which the duty in section 1 of the Trade Union Act 1984 (duty to hold elections) applies.
For the purposes of sections 1 and 2 as they apply to employment agencies—
services other than those mentioned in the definition of “employment agency” above shall be disregarded, and
a trade union shall not be regarded as an employment agency by reason of services provided by it only for, or in relation to, its members.
References in sections 1 and 2 to being or not being a member of a trade union are to being or not being a member of any trade union, of a particular trade union or of one of a number of particular trade unions. Any such reference includes a reference to being or not being a member of a particular branch or section of a trade union or of one of a number of particular branches or sections of a trade union.
Further provisions supplementing sections 1 and 2 are contained in Schedule 1, where— Part I deals with proceedings, remedies and related matters, and Part II deals with the scope of application of those sections. Expressions which are defined above for the purposes of those sections have the same meanings in that Schedule.
Nothing in section 13 of the Trade Union and Labour Relations Act 1974 (acts in contemplation or furtherance of trade disputes) prevents an act from being actionable in tort on a ground specified in subsection (1)(a) or (b) of that section where one of the facts relied on for the purpose of establishing liability is that there has been secondary action which does not satisfy the requirements of this section.
There is secondary action in relation to a trade dispute when, and only when, a person— and the employer under the contract of employment is not the employer party to the dispute.
induces another to break a contract of employment or interferes or induces another to interfere with its performance, or
threatens that a contract of employment under which he or another is employed will be broken or its performance interfered with, or that he will induce another to break a contract of employment or to interfere with its performance,
Secondary action satisfies the requirements of this section only if it is done in the course of such attendance as is declared lawful by section 15 of the Trade Union and Labour Relations Act 1974 (peaceful picketing)—
by a worker employed (or, in the case of a worker not in employment, last employed) by the employer party to the dispute, or
by a trade union official whose attendance is lawful by virtue of subsection (1)(b) of that section.
For the purposes of this section an employer shall not be treated as party to a dispute between another employer and workers of that employer; and where more than one employer is in dispute with his workers, the dispute between each employer and his workers shall be treated as a separate dispute. In this subsection “worker” has the same meaning as in section 29 of the Trade Union and Labour Relations Act 1974 (meaning of trade dispute).
An act in contemplation or furtherance of a trade dispute which is primary action in relation to that dispute may not be relied on as secondary action in relation to another trade dispute. Primary action means such action as is mentioned in paragraph (a) or (b) of subsection (2) where the employer under the contract of employment is the employer party to the dispute.
In this section “contract of employment” includes any contract under which one person personally does work or performs services for another, and related expressions shall be construed accordingly.
Other expressions used in this section and the Trade Union and Labour Relations Act 1974 have the same meanings in this section as in that Act.
In Part II of the Trade Union Act 1984 and section 1 of the Employment Act 1988 (ballots about industrial action) references to a contract of employment include any contract under which one person personally does work or performs services for another; and related expressions shall be construed accordingly.
For the purposes of section 11 of the Trade Union Act 1984 (requirements to be satisfied in relation to ballots) a member of a trade union who throughout the period during which votes may be cast is in Northern Ireland shall not be treated as an overseas member—
where the ballot is one to which subsection (1A) or (1B)(a) of that section applies (workplace ballots) and his place of work is in Great Britain, or
where the ballot is one to which subsection (1B)(b) or (c) of that section applies (general ballots) and relates to a strike or other industrial action involving members both in Great Britain and in Northern Ireland.
In relation to employment to which section 127 of the Employment Protection Act 1975 (offshore workers) applies, the references in subsection (2) above to Northern Ireland include any area where the law of Northern Ireland applies and the references to Great Britain include any area where the law of England and Wales or Scotland applies.
In section 4(1B) of the Trade Union Act 1913 and section 2(5) of the Trade Union Act 1984 (requirements with respect to voting papers in political fund ballot or ballot for union office), in paragraph (a) after “must” insert “state the name of the independent scrutineer and”.
In section 15(2) of the Employment Act 1988 (duties of trade union with respect to independent scrutineer in case of political fund ballot or ballot for union office), after paragraph (b) insert—.
Section 15 of the Employment Act 1982 (liability of trade unions in certain actions in tort) is amended as follows.
In subsection (2) (acts for which the union is responsible) for “it was authorised or endorsed by a responsible person” substitute “it is to be taken, in accordance with the following provisions, to have been authorised or endorsed by the union”.
For subsection (3) substitute—.
For subsection (4) substitute—.
For subsection (5) substitute—.
After subsection (6) (no repudiation if subsequent behaviour inconsistent with purported repudiation) insert—.
“commercial contract” means any contract other than— and omit the definition of “official” and “employed official”.
After subsection (8) add—.
In section 11 of the Trade Union Act 1984 (requirements for ballots on industrial action), after subsection (4) insert—.
Industrial action shall not be regarded for the purposes of section 10 of the Trade Union Act 1984 or section 1 of the Employment Act 1988 as having the support of a ballot unless it is called by a specified person and the following conditions are satisfied.
The conditions are that—
there must have been no call by the trade union to take part or continue to take part in industrial action to which the ballot relates, or any authorisation or endorsement by the union of any such industrial action, before the date of the ballot;
there must be a call for industrial action by a specified person, and industrial action to which it relates must take place, before the ballot ceases to be effective in accordance with section 8 below.
For the purposes of this section a call shall be taken to have been made by a trade union if it was authorised or endorsed by the union; and the provisions of subsections (3) to (7) of section 15 of the Employment Act 1982 apply for the purpose of determining whether a call, or industrial action, is to be taken to have been so authorised or endorsed.
In this section—
“date of the ballot” has the same meaning as in Part II of the Trade Union Act 1984;
“specified person” means a person specified or of a description specified in the voting paper for the ballot in accordance with section 11(4A) of the Trade Union Act 1984; and
Subject to the following provisions, a ballot ceases to be effective for the purposes of section 7(3)(b) at the end of the period of four weeks beginning with the date of the ballot.
Where for the whole or part of that period the calling or organising of industrial action is prohibited— the trade union may apply to the court for an order that the period during which the prohibition had effect shall not count towards the period referred to in subsection (1).
by virtue of a court order which subsequently lapses or is discharged, recalled or set aside, or
by virtue of an undertaking given to a court by any person from which he is subsequently released or by which he ceases to be bound,
The application must be made forthwith upon the prohibition ceasing to have effect— and no application may be made after the end of the period of eight weeks beginning with the date of the ballot.
to the court by virtue of whose decision it ceases to have effect, or
where an order lapses or an undertaking ceases to bind without any such decision, to the court by which the order was made or to which the undertaking was given;
The court shall not make an order if it appears to the court—
that the result of the ballot no longer represents the views of the union members concerned, or
that an event is likely to occur as a result of which those members would vote against industrial action if another ballot were to be held.
No appeal lies from the decision of the court to make or refuse an order under this section.
The period between the making of an application under this section and its determination does not count towards the period referred to in subsection (1). But a ballot shall not by virtue of this subsection (together with any order of the court) be regarded as effective for the purposes of section 7(3)(b) after the end of the period of twelve weeks beginning with the date of the ballot.
In this section—
“trade union” has the meaning given by section 28 of the Trade Union and Labour Relations Act 1974.
In Part V of the Employment Protection (Consolidation) Act 1978 (unfair dismissal), after section 62 (dismissal in connection with lock-out, strike or other industrial action) insert—.
Nothing in section 13 of the Trade Union and Labour Relations Act 1974 prevents an act from being actionable in tort if the reason, or one of the reasons, for doing it is the fact or belief that an employer has dismissed one or more employees in circumstances such that by virtue of section 62A of the Employment Protection (Consolidation) Act 1978 (dismissal in connection with unofficial industrial action) they have no right to complain of unfair dismissal.
Expressions used in subsection (2) above and the Trade Union and Labour Relations Act 1974 have the same meaning in that subsection as in that Act.
Section 20 of the Employment Act 1988 (provision of assistance by the Commissioner for the Rights of Trade Union Members) applies to proceedings or prospective proceedings in the High Court or the Court of Session (or on an appeal therefrom to the Court of Appeal or the House of Lords) to the extent that the proceedings arise out of an alleged breach or threatened breach of the rules of a trade union relating to any of the following matters.
Those matters are—
the appointment or election of a person to, or the removal of a person from, any office;
disciplinary proceedings by the union (including expulsion);
the authorising or endorsing of industrial action;
the balloting of members;
the application of the union’s funds or property;
the imposition, collection or distribution of any levy for the purposes of industrial action;
the constitution or proceedings of any committee, conference or other body.
In subsection (2)(a) “office” includes any position by virtue of which a person is an official in relation to the trade union or is entitled to attend as a representative any meeting concerned with union business.
In this section—
“trade union”, and “official” in relation to a trade union, have the same meaning as in the Trade Union and Labour Relations Act 1974; and
references to the rules of a trade union include the rules of any branch or section of the trade union.
The Commissioner shall not grant an application for assistance made by virtue of this section unless it appears to him—
that the breach of rules in question affects, or may affect, members of the union other than the applicant, or
that similar breaches of the rules have been or may be committed in relation to other members of the union.
Nothing in this section affects the power of the Commissioner to provide assistance where he could do so apart from this section.
Where a person is receiving assistance under section 20 of the Employment Act 1988 in relation to proceedings, there shall, if he so wishes, be added after his name in the title of the proceedings the words “(assisted by the Commissioner for the Rights of Trade Union Members)”.
The addition of those words shall not be construed as making the Commissioner a party to the proceedings or as liable to be treated as a party for any purpose; and the omission of those words shall be treated as an irregularity only and shall not nullify the proceedings, any step taken in the proceedings or any document, judgment or order therein.
The above provisions apply to proceedings whether begun before or after the commencement of this section.
A Code of Practice to which this section applies may be revised by the appropriate authority in accordance with this section for the purpose of bringing it into conformity with subsequent statutory provisions by the making of consequential amendments and the omission of obsolete passages.
“Statutory provisions” here means provisions made by or under an Act of Parliament, and “subsequent” statutory provisions means provisions coming into force after the Code was issued (whether before or after the commencement of this section).
The Codes of Practice to which this section applies are—
those issued under section 3 of the Employment Act 1980, in relation to which the appropriate authority is the Secretary of State,
those issued under section 6 of the Employment Protection Act 1975, in relation to which the appropriate authority is the Advisory, Conciliation and Arbitration Service, and
that having effect under paragraph 4 of Schedule 17 to that Act, in relation to which the appropriate authority is the Secretary of State.
Where the Secretary of State proposes to revise a Code under this section, he shall lay a draft of the revised Code before each House of Parliament.
Where the Advisory, Conciliation and Arbitration Service proposes to revise a Code under this section, it shall transmit a draft of the revised Code to the Secretary of State who shall—
if he approves of it, lay the draft before each House of Parliament;
if he does not approve of it, publish details of his reasons for withholding approval.
If within the period of 40 days beginning with the day on which a copy of a draft is laid before each House of Parliament under subsection (3) or (4), or, if such copies are laid on different days, with the later of the two days, either House so resolves, no further proceedings shall be taken thereon, but without prejudice to the laying before Parliament of a new draft. In reckoning the period of 40 days no account shall be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
If no such resolution is passed the appropriate authority shall issue the Code in the form of the draft and it shall come into effect on such day as the Secretary of State may appoint by order made by statutory instrument.
A Code of Practice to which this section applies may be revoked by the Secretary of State by order made by statutory instrument; but no such order shall be made—
in the case of a Code in relation to which the Advisory, Conciliation and Arbitration Service is the appropriate authority, except at the request of the Service, and
in any case, unless a draft of the order has been laid before and approved by resolution of each House of Parliament.
If the Advisory, Conciliation and Arbitration Service requests the Secretary of State to revoke a Code of Practice in relation to which it is the appropriate authority and he decides not to do so, he shall publish details of his reasons for his decision.
An order under subsection (6) or (7) may contain such transitional provisions and savings as appear to the Secretary of State to be appropriate.
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References to the Redundancy Fund in subordinate legislation (within the meaning of the Interpretation Act 1978) shall be construed as references to the National Insurance Fund.
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There shall be paid out of money provided by Parliament any increase attributable to this Act in the sums so payable under any other Act.
The enactments mentioned in Schedule 2 have effect with the amendments specified there, which are consequential on the provisions of this Act.
The enactments mentioned in Schedule 3 are repealed to the extent specified there.
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. . . the provisions of this Act do not extend to Northern Ireland.
This Act may be cited as the Employment Act 1990.
The following provisions of this Act come into force on Royal Assent— . . . . . . . . ., and sections 15 and 17 and this section (general ancillary provisions).
The other provisions of this Act come into force on such day as the Secretary of State may appoint by order made by statutory instrument and different days may be appointed for different provisions.
An order bringing into force any provision may contain such transitional provisions and savings as appear to the Secretary of State to be appropriate.