Malawi - Economic recovery : resource and policy needs
The Secretary of State may by regulations make a scheme (below called " the scheme ") providing for payments by the Certification Officer towards expenditure incurred by independent trade unions in respect of such ballots to which this section applies as may be prescribed by the scheme.
This section applies to a ballot if the purpose of the question to be voted upon (or if there is more than one such question, the purpose of any of them) falls within the purposes mentioned in subsection (3) below.
The purposes referred to in subsection (2) above are — and such other purposes as the Secretary of State may by order specify.
obtaining a decision or ascertaining the views of members of a trade union as to the calling or ending of a strike or other industrial action ;
carrying out an election provided for by the rules of a trade union;
electing a worker who is a member of a trade union to be a representative of other members also employed by his employer;
amending the rules of a trade union ;
obtaining a decision in accordance with the Trade Union (Amalgamations, etc.) Act 1964 on a resolution to approve an instrument of amalgamation or transfer;
The scheme may include provision for payments to be made towards expenditure incurred by an independent trade union in respect of arrangements to hold a ballot which is not proceeded with but which, if it had been held, would have been a ballot to which this section applies.
The circumstances in which and the conditions subject to which payments may be made under the scheme, and the amounts of the payments, shall be such as may be prescribed by or determined in accordance with the scheme; and the scheme shall include provision for restricting the cases in which payments are made to cases in which the ballot is so conducted as to secure, so far as reasonably practicable, that those voting may do so in secret.
The Secretary of State shall out of money provided by Parliament pay to the Certification Officer such sums as he may require for making payments under the scheme.
Any power to make regulations or orders under this section shall be exercisable by statutory instrument; and—
a statutory instrument containing regulations under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament;
no order shall be made under this section unless a draft of it has been laid before and approved by resolution of each House of Parliament.
Expressions used in this section and in the 1974 Act have the same meanings in this section as in that Act.
Subject to subsection (3) below, where an independent trade union proposes that a relevant ballot be held and requests an employer to permit premises of his to be used for the purpose of giving workers employed by him who are members of the union a convenient opportunity of voting, the employer shall, so far as reasonably practicable, comply with the request.
A ballot is a relevant ballot for the purposes of this section if—
as respects the purpose of the question (or one of the questions) to be voted upon, the ballot satisfies the requirements of a scheme under section 1 of this Act, and
the proposals for the conduct of the ballot are such as to secure, so far as reasonably practicable, that those voting may do so in secret.
Subsection (1) above shall not apply where, at the time the request is made.—
the union is not recognised by the employer to any extent for the purpose of collective bargaining, or
the number of workers employed by the employer, added to the number employed by any associated employer, does not exceed twenty.
A trade union may present a complaint to an industrial tribunal that it has made a request in accordance with subsection (1) above and that it was reasonably practicable for the employer to comply with it, but that he has failed to do so.
An industrial tribunal shall not entertain a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the date of the failure, or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months.
Where a tribunal finds that a complaint under this section is well-founded, the tribunal shall make a declaration to that effect, and may make an award of compensation to be paid by the employer to the union which shall be of such amount as the tribunal considers just and equitable in all the circumstances having regard to the employer's default in failing to comply with the request and to any expenses incurred by the union in consequence of the failure.
An appeal shall lie to the Employment Appeal Tribunal on a question of law arising from any decision of, or arising in proceedings before, an industrial tribunal under this section.
The remedy of a trade union for a failure to comply with a request made in accordance with subsection (1) above shall be by way of a complaint under this section and not otherwise.
Expressions used in this section and in the 1974 Act have the same meanings in this section as in that Act.
The Secretary of State may issue Codes of Practice containing such practical guidance as he thinks fit for the purpose of promoting the improvement of industrial relations.
The Secretary of State shall after consultation with the Advisory, Conciliation and Arbitration Service (whether carried out before or after the passing of this Act) prepare and publish a draft of any Code of Practice that he proposes to issue under this section.
The Secretary of State shall consider any representations made to him about a draft prepared under subsection (2) above and may modify the draft accordingly.
If the Secretary of State determines to proceed with the draft he shall lay it before both Houses of Parliament and, if it is approved by resolution of each House, shall issue the Code in the form of the draft.
A Code of Practice issued under this section shall come into operation on such day as the Secretary of State may by order appoint; and an order under this subsection—
may contain such transitional provisions or savings as appear to the Secretary of State to be necessary or expedient;
shall be made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
The Secretary of State may from time to time revise the whole or any part of a Code of Practice issued under this section and issue that revised Code, and subsections (2) to (5) above shall apply to such a revised Code as they apply to the first issue of a Code.
If the Secretary of State is of the opinion that the provisions of a Code of Practice to be issued under this section will supersede the whole or part of a Code previously issued by him under this section or by the Advisory, Conciliation and Arbitration Service under section 6 of the 1975 Act or having effect by virtue of paragraph 4 of Schedule 17 to that Act, he shall in the new Code state that on the day on which the new Code comes into operation in pursuance of an order under subsection (5) above the old Code or a specified part of it shall cease to have effect (subject to any transitional provisions or savings made by the order).
A failure on the part of any person to observe any provision of a Code of Practice issued under this section shall not of itself render him liable to any proceedings; but in any proceedings before a court or industrial tribunal or the Central Arbitration Committee—
any such Code shall be admissible in evidence, and
any provision of the Code which appears to the court, tribunal or Committee to be relevant to any question arising in the proceedings shall be taken into account in determining that question.
This section applies to employment by an employer with respect to which it is the practice, in accordance with a union membership agreement, for the employee to belong to a specified trade union or one of a number of specified trade unions.
Every person who is, or is seeking to be, in employment to which this section applies shall have the right—
not to have an application for membership of a specified trade union unreasonably refused ;
not to be unreasonably expelled from a specified trade union.
The rights conferred by subsection (2) above are in addition to and not in substitution for any right which exists apart from that subsection; and, without prejudice to any remedy for infringement of any such other right, the remedies for infringement of a right conferred by that subsection shall be those provided by the following provisions of this section and section 5 below.
A complaint may be presented to an industrial tribunal against a trade union by a person that an application by him for membership of the union has been unreasonably refused, or that he has been unreasonably expelled from the union, in contravention of subsection (2) above.
On a complaint under this section, the question whether a trade union has acted reasonably or unreasonably shall be determined in accordance with equity and the substantial merits of the case, and in particular a union shall not be regarded as having acted reasonably only because it has acted in accordance with the requirements of its rules or unreasonably only because it has acted in contravention of them.
A tribunal shall not entertain a complaint under this section unless it is presented to the tribunal before the end of the period of six months beginning with the date of the refusal or expulsion, as the case may be, or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of six months.
Where a tribunal finds that a complaint under this section is well-founded, the tribunal shall make a declaration to that effect.
An appeal shall lie to the Employment Appeal Tribunal on any question of law or fact arising from any decision of, or arising in any proceedings before, an industrial tribunal under this section.
For the purposes of this section and section 5 below—
if an application for membership of a trade union has been neither granted nor rejected before the end of the period within which it might reasonably have been expected to be granted if it was to be granted, the application shall be treated as having been refused on the last day of that period, and
if under the rules of a trade union any person ceases to be a member of the union on the happening of an event specified in the rules, he shall be treated as having been expelled from the union.
Any expression used in any provision of this section or section 5 below and in the 1974 Act has the same meaning in that provision as it has in that Act, except that any reference in such a provision to a trade union includes a reference to a branch or section of a trade union.
Any provision in an agreement shall be void in so far as it purports to exclude or limit the operation of, or to preclude any person from presenting a complaint or making an application under, this section or section 5 below; but this subsection shall not apply to an agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action in accordance with section 133(2) or (3) of the 1978 Act.
A person who has made a complaint against a trade union under section 4 above which has been declared to be well-founded may make an application in accordance with subsection (2) below for an award of compensation to be paid to him by the union.
If at the time when the application under this section is made the applicant has been admitted or re-admitted to membership of the union against which he made the complaint, the application shall be to an industrial tribunal; and if at that time he has not been so admitted or re-admitted, the application shall be to the Employment Appeal Tribunal.
An industrial tribunal or the Employment Appeal Tribunal shall not entertain an application for compensation under this section if it is made before the end of the period of four weeks beginning with the date of the declaration under section 4 above or after the end of the period of six months beginning with that date.
Subject to the following provisions of this section, the amount of compensation awarded on an application under this section—
in the case of an application to an industrial tribunal, shall be such as the tribunal considers appropriate for the purpose of compensating the applicant for the loss sustained by him in consequence of the refusal or expulsion which was the subject of his complaint, and
in the case of an application to the Employment Appeal Tribunal, shall be such as the Appeal Tribunal considers just and equitable in all the circumstances.
In determining the amount of compensation to be awarded under this section, the industrial tribunal or the Employment Appeal Tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or of Scotland, as the case may be.
Where the industrial tribunal or the Employment Appeal Tribunal finds that the refusal or expulsion which was the subject of the applicant's complaint was to any extent caused or contributed to by any action of the applicant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.
The amount of compensation awarded on an application to an industrial tribunal under this section shall not exceed the aggregate of—
an amount equal to thirty times the limit for the time being imposed by paragraph 8(1)(b) of Schedule 14 to the 1978 Act (maximum amount of a week's pay for purpose of calculating basic award in unfair dismissal cases), and
an amount equal to the limit for the time being imposed by section 75 of that Act (maximum compensatory award in such cases).
The amount of compensation awarded on an application to the Employment Appeal Tribunal under this section shall not exceed the aggregate of—
the amount referred to in paragraph (a) of subsection (7) above, and
the amount referred to in paragraph (b) of that subsection, and
an amount equal to fifty-two times the limit for the time being imposed by paragraph 8(1)(a) of Schedule 14 to the 1978 Act (maximum amount of a week's pay for purpose of calculating additional award of compensation in unfair dismissal cases).
An appeal shall lie to the Employment Appeal Tribunal on a question of law arising from any decision of, or arising in proceedings before, an industrial tribunal under this section.
In subsection (3) of section 58 of the 1978 Act (dismissal of employee for non-membership of a union to be fan-where there is a union membership agreement unless he objects to membership on grounds of religious belie© for the words from " unless " to the end there shall be substituted the words " but subject to subsections (3A) to (3C) ".
After subsection (3) of that section there shall be inserted—
After that section there shall be inserted—
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Section 73 of the 1978 Act (calculation of basic award for unfair dismissal) shall be amended as follows.
In subsection (1) (provisions to which calculation of basic award is subject)—
after paragraph (b) there shall be inserted—; and
paragraph (c) shall cease to have effect.
In subsection (3) (calculation by reference to number of years of employment) for paragraphs (b) and (c) there shall be substituted—.
After subsection (7) there shall be inserted—.
Subsection (8) (minimum basic award of two weeks' pay) shall cease to have effect.
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In subsection (3) of section 33 of the 1978 Act (which specifies conditions to which the rights to maternity pay and to return to work are subject) for paragraph (c) (information to employer) there shall be substituted—
After that subsection there shall be inserted—.
In section 47 of the 1978 Act, in subsection (1) (employee to exercise her right to return to work by notifying the employer at least seven days in advance)— and in subsections (6) and (7) for the word " fourteen " there shall be substituted the word " twenty-eight ".
for the word " notifying " there shall be substituted the words " giving written notice to " , and
for the word " seven" there shall be substituted the word " twenty-one ";
In section 15(2) of the 1978 Act (which restricts entitlement to five days in any one of the periods of three months beginning on 1st February, 1st May, 1st August and 1st November) for the words from " any " to the end there shall be substituted the words " any period of three months ".
This section shall not have effect in relation to workless days (within the meaning of section 12 of that Act) falling before the commencement of this section except so far as they are relevant in determining entitlement to guarantee payments in respect of days falling after that time.
In subsection (1)(c) of section 23 of the 1978 Act (right of employee not to have action taken by his employer to compel him to belong to a union which is not independent) the words " which is not independent" shall cease to have effect.
After subsection (2) of that section there shall be inserted—
Subsections (3), (4), (5)(a) and (6) of section 23 and subsection (1)(b) of section 25 of the 1978 Act shall cease to have effect.
After section 26 of the 1978 Act there shall be inserted—
For section 15 of the 1974 Act there shall be substituted—
Nothing in section 13 of the 1974 Act shall prevent an act done in the course of picketing from being actionable in tort unless it is done in the course of attendance declared lawful by section 15 of that Act.
In subsection (2) above " tort" has as respects Scotland the same meaning as in the 1974 Act.
Nothing in section 13 of the 1974 Act shall prevent an act from being actionable in tort on a ground specified in subsection (1)(a) or (b) of that section in any case where—
the contract concerned is not a contract of employment, and
one of the facts relied upon for the purpose of establishing liability is that there has been secondary action which is not action satisfying the requirements of subsection (3), (4) or (5) below.
For the purposes of this section there is secondary action in relation to a trade dispute when, and only when, a person— if the employer under the contract of employment is not a party to the trade 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 subsection if—
the purpose or principal purpose of the secondary action was directly to prevent or disrupt the supply during the dispute of goods or services between an employer who is a party to the dispute- and the employer under the contract of employment to which the secondary action relates; and
the secondary action (together with any corresponding action relating to other contracts of employment with the same employer) was likely to achieve that purpose.
Secondary action satisfies the requirements of this subsection if—
the purpose or principal purpose of the secondary action was directly to prevent or disrupt the supply during the dispute of goods or services between any person and an associated employer of an employer who is a party to the dispute; and
the goods or services are in substitution for goods or services which but for the dispute would have fallen to be supplied to or by the employer who is a party to the dispute ; and
the employer under the contract of employment to which the secondary action relates is either the said associated employer or the other party to the supply referred to in paragraph (a) above ; and
the secondary action (together with any corresponding action relating to other contracts of employment with the same employer) was likely to achieve the purpose referred to in paragraph (a) above.
Secondary action satisfies the requirements of this subsection if it is done in the course of attendance declared lawful by section 15 of the 1974 Act—
by a worker employed (or, in the case of a worker not in employment, last employed) by a party to the dispute, or
by a trade union official whose attendance is lawful by virtue of subsection (1)(b) of that section.
In subsections (3)(a) and (4)(a) above—
references to the supply of goods or services between two persons are references to the supply of goods or services by one to the other in pursuance of a contract between them subsisting at the time of the secondary action, and
references to directly preventing or disrupting the supply are references to preventing or disrupting it otherwise than by means of preventing or disrupting the supply of goods or services by or to any other person.
Expressions used in this section and in the 1974 Act have the same meanings in this section as in that Act; and for the purposes of this section an employer who is a member of an employers' association which is a party to a trade dispute shall by virtue of his membership be regarded as a party to the dispute if he is represented in the dispute by the association, but not otherwise.
Subsection (3) of section 13 of the 1974 Act shall cease to have effect.
Nothing in section 13 of the 1974 Act shall prevent an act to which this section applies from being actionable in tort on a ground specified in subsection (1)(a) or (b) of section 13 in any case where—
the contract concerned is a contract of employment, or
the contract concerned is not a contract of employment but one of the facts relied upon for the purpose of establishing liability is that any person has—
induced another to break a contract of employment or interfered or induced another to interfere with its performance, or
threatened 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.
This section applies to an act done for the purpose of compelling workers to become members of a particular trade union or of one of two or more particular trade unions, if none of those workers works for the same employer or at the same place as the employee working under the contract of employment referred to in subsection (1) above.
Expressions used in this section and in the 1974 Act have the same meanings in this section as in that Act.
section 1A of the 1974 Act (charter on freedom of the press);
sections 11 to 16 of the 1975 Act (procedure for dealing with issues relating to recognition of trade unions); and
section 98 of and Schedule 11 to the 1975 Act (extension of terms and conditions of employment) and the Road Haulage Wages Act 1938 (fixing of statutory remuneration).
In this Act—
"the 1974 Act" means the Trade Union and Labour Relations Act 1974;
"the 1978 Act" means the Employment Protection (Consolidation) Act 1978.
Schedule 1 to this Act (which makes minor and consequential amendments) shall have effect.
The enactments mentioned in Schedule 2 to this Act are hereby repealed to the extent specified in the third column of that Schedule.
This Act may be cited as the Employment Act 1980.
Sections 2, 4 to 19 and 20(2) and (3) of this Act, and Schedules 1 and 2, shall not come into operation until such day as the Secretary of State may appoint by order made by statutory instrument, and different days may be so appointed for different purposes.
An order under this section may contain such transitional and supplementary provisions as appear to the Secretary of State to be necessary or expedient.
Paragraph 7 of Schedule 1 to this Act shall extend to Northern Ireland, but otherwise this Act shall not extend there.
Section 20.
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subsection (1) shall cease to have effect; and
in subsection (2) for the words from " on " to " satisfied " there shall be substituted the words " at any time when an order under section 65 is in force in respect of a dismissal procedures agreement the Secretary of State is satisfied, whether on an application by any of the parties to the agreement or otherwise, ".
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in subsection (1)(c), after " 64(1) " there shall be inserted " 64A(1) " ;
in subsection (2), after " 58 " there shall be inserted " 58A ".
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in subsection (1) the words "or an order under section 65 or 66 " shall cease to have effect; and
in subsection (4) for the words from " section 96 " to the end there shall be substituted the words " section 65, 66 or 96 ".
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In paragraph 23(1) of Schedule 11 of the 1978 Act, for the words from “section 14” to “those provisions” there shall be substituted the words “ sections 31 and 32 of the Powers of Criminal Courts Act 1973 (powers of Crown Court in relation to fines and forfeited recognisances) shall have effect as if ”.
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