27BUB Zero hours workers, etc

(1) This section applies in relation to—

(a) a duty imposed on an employer in respect of a worker, and

(b) a right conferred on a worker in respect of an employer, by or under any provision of Chapter 2, 3 or 4.

(2) The duty or right is excluded if—

(a) the worker is employed by the employer under a worker’s contract (“the contract”),

(b) a relevant collective agreement contains—

(i) terms that expressly exclude the duty or right, and

(ii) terms that expressly replace the excluded duty or right,

(c) the terms within paragraph (b)(ii) are incorporated into the contract, and

(d) the employer notifies the worker in writing of the incorporation and effect of those terms.

(3) A relevant collective agreement is a collective agreement that is—

(a) in writing, and

(b) made by or on behalf of—

(i) one or more trade unions which each have a certificate of independence, and

(ii) the worker’s employer.

27BUC Agency workers

(1) This section applies in relation to—

(a) a duty imposed on a hirer or a work-finding agency in respect of an agency worker, and

(b) a right conferred on an agency worker in respect of a hirer or a work-finding agency, by or under any provision of Chapter 4A (including Schedule A1).

(2) The duty or right is excluded if—

(a) the agency worker is supplied to work for and under the supervision and direction of the hirer by virtue of a worker’s contract (“the contract”) that the agency worker has with another person (“the other party”),

(b) a relevant collective agreement contains—

(i) terms that expressly exclude the duty or right, and

(ii) terms that expressly replace the excluded duty or right,

(c) the terms within paragraph (b)(ii) are incorporated into the contract, and

(d) the other party notifies the agency worker in writing of the incorporation and effect of those terms.

(3) A relevant collective agreement is a collective agreement that is—

(a) in writing, and

(b) made by or on behalf of—

(i) one or more trade unions which each have a certificate of independence, and

(ii) the other party.

27BUD Supplementary provision

(1) For the purposes of sections 27BUB and 27BUC, it does not matter whether—

(a) terms in a collective agreement that expressly replace a duty or right relate to the same subject matter as the duty or right, or

(b) a collective agreement ceases to be in force after the terms mentioned in section 27BUB(2)(b)(ii) or 27BUC(2)(b)(ii) are incorporated into the contract (within the meaning of section 27BUB or 27BUC, as the case may be), provided the terms continue to be incorporated.

(2) Where the duty to make a guaranteed hours offer under Chapter 2 or 4A is excluded by virtue of terms that are incorporated into a contract with a worker or, as the case may be, an agency worker, as mentioned in section 27BUB(2)(c) or 27BUC(2)(c), during the offer period, the duty ceases to apply.

(3) Where—

(a) the duty to make a guaranteed hours offer under Chapter 2 or 4A is excluded by virtue of terms that are incorporated into a contract with a worker or, as the case may be, an agency worker, as mentioned in section 27BUB(2)(c) or 27BUC(2)(c),

(b) a guaranteed hours offer has already been made in compliance with the duty, and

(c) the worker or agency worker has not accepted the offer, the person who made the offer may withdraw it during the response period by giving a notice to the worker or agency worker.

(4) The notice must include a statement to the effect that the offer is withdrawn in consequence of the exclusion of the duty to make a guaranteed hours offer as a result of the incorporation into the worker’s or agency worker’s contract, as mentioned in section 27BUB(2)(c) or 27BUC(2)(c), of terms contained in a collective agreement that expressly replace that duty.

(5) A worker or an agency worker to whom a notice is given in reliance on subsection (3) may present a complaint to an employment tribunal that subsection (3) did not permit the notice to be given.

(6) Where a complaint is presented under subsection (5)—

(a) by a worker, sections 27BH and 27BI apply in relation to the complaint as they apply in relation to a complaint under section 27BG(5)(b);

(b) by an agency worker, paragraphs 9 and 10 of Schedule A1 apply in relation to the complaint as they apply in relation to a complaint under paragraph 7(7)(b) of that Schedule.

(7) Subsection (8) applies where—

(a) the duty to make a guaranteed hours offer under Chapter 2 or 4A is excluded by virtue of terms that are incorporated into a contract with a worker or, as the case may be, an agency worker, as mentioned in section 27BUB(2)(c) or 27BUC(2)(c), and

(b) the duty ceases to be excluded as a result of the terms ceasing to be incorporated into the contract (including where the contract ceases to be in force).

(8) In applying Chapter 2 or 4A for the purposes of the duty after it has ceased to be excluded—

(a) in any case where there was a reference period in relation to the duty as it had effect before being excluded, that reference period is to be disregarded,

(b) in relation to a worker and the worker’s employer, sections 27BA(5) and 27BF(3) have effect as if the first day on which the worker is employed by the employer is the day after the day on which the terms cease to be incorporated, and

(c) in relation to an agency worker and a hirer for and under the supervision and direction of whom the agency worker works, paragraphs 1(5) and 6(3) of Schedule A1 have effect as if the first day on which the agency worker so works is the day after the day on which the terms cease to be incorporated.

27BUE Regulations

(1) The Secretary of State may by regulations make further provision for the purposes of section 27BUB or 27BUC.

(2) The regulations may, in particular, make provision about—

(a) the effect on a duty in Chapters 2 to 4A of terms being or ceasing to be incorporated as mentioned in section 27BUB(2)(c) or 27BUC(2)(c),

(b) the form and manner in which a notice under section 27BUD(3) is to be given, and

(c) when a notice under section 27BUD(3) is to be treated as having been given.

27BUF Interpretation

(1) Terms used in this Chapter that are used in—

(a) Chapters 2 to 4 (rights relating to zero hours workers, etc), or

(b) Chapter 4A (including Schedule A1) (rights relating to agency workers), have the same meaning as in those Chapters or that Chapter (including that Schedule).

(2) In this Chapter, “certificate of independence” means a certificate issued under section 6 of the Trade Union and Labour Relations (Consolidation) Act 1992.

(3) In section 203 (restrictions on contracting out), in subsection (2), before paragraph (a) insert—

“(za) does not apply to terms of a collective agreement or contract that exclude a duty or right by virtue of provision made by or under Chapter 4B of Part 2A,”.”—(Justin Madders.)

This new clause adds a new clause (intended to go after NC32) which provides for the exclusion of duties or rights under new Chapters 2 to 4A of Part 2A of the Employment Rights Act 1996 (inserted by clauses 1 to 3 of the Bill and that new clause) under the terms of collective agreements.

Brought up, and added to the Bill.