Section 17
Section 256C
1(1)The following are “relevant obligations” for the purposes of this Schedule—
(a)any of the requirements of section 24(1) (duties regarding the register of members);
(b)the requirement of section 45B (duty to secure positions not held by certain offenders);
(c)any of the requirements of Chapter 4 of Part 1 (elections for certain positions);
(d)the restriction in section 71 on the application of a trade union’s funds in the furtherance of political objects;
(e)any of the requirements of Chapter 6 of Part 1 about compliance with rules as to ballots on political resolutions;
(f)any of the requirements of a trade union’s rules made in pursuance of section 82 (rules as to political fund);
(g)any of the requirements of sections 99 to 100E (ballots on amalgamations or transfers);
(h)any requirement of a conditional penalty order made under Schedule A4.
(2)In relation to the relevant obligations listed in sub-paragraph (1)(d) to (g) as they apply to unincorporated employers’ associations by virtue of section 132 or 133, this Schedule applies to an unincorporated employers’ association as in relation to a trade union.
(3)In its application to an unincorporated employers’ association, this Schedule has effect—
(a)with any necessary modifications, and
(b)with such modifications as may be prescribed.
2(1)If the Certification Officer thinks there is good reason to do so, the Officer—
(a)may give directions to a trade union, or a branch or section of a trade union, requiring it to produce such relevant documents as are specified in the directions;
(b)may authorise a member of the Officer’s staff or any other person (“an authorised person”), on producing (if so required) evidence of that authority, to require a trade union, or a branch or section of a trade union, to produce immediately to the authorised person such relevant documents as that person specifies.
(2)“Relevant documents”, in relation to a trade union or a branch or section of a trade union, means documents that in the opinion of the Certification Officer or authorised person may be relevant to whether the trade union has failed to comply with a relevant obligation.
Such documents may in particular include, in the case of a requirement of section 24(1), the register of the names and addresses of the union’s members.
(3)Directions under sub-paragraph (1)(a) must specify the time and place at which the documents are to be produced.
(4)Where the Certification Officer, or an authorised person, has power to require the production of documents by virtue of sub-paragraph (1), the Officer or authorised person has the like power to require production of those documents from any person who appears to the Officer or authorised person to be in possession of them.
(5)The power under this paragraph to require the production of documents includes the power—
(a)if the documents are produced—
(i)to take copies of them or extracts from them;
(ii)to require the person by whom they are produced to provide an explanation of any of them;
(iii)to require any person who is or has been an official or agent of the trade union to provide an explanation of any of them;
(b)if the documents are not produced, to require the person who was required to produce them to state, to the best of the person’s knowledge and belief, where they are.
(6)For the purposes of sub-paragraph (5)(a)(iii), “agent” includes an assurer appointed by the trade union under section 24ZB.
(7)For supplementary provision, see paragraph 6.
3(1)If the Certification Officer has reasonable grounds to suspect that a trade union has failed to comply with a relevant obligation, the Officer may appoint one or more members of the Officer’s staff or other persons as an inspector or inspectors—
(a)to investigate whether the union has failed to comply with such an obligation, and
(b)to report to the Officer in such manner as the Officer may direct.
(2)Where any person appears to the inspector or inspectors to be in possession of information relating to a matter considered by the inspector or inspectors to be relevant to the investigation, the inspector or inspectors may require the person—
(a)to produce to the inspector or inspectors any relevant documents relating to that matter,
(b)to attend before the inspector or inspectors, and
(c)otherwise to give the inspector or inspectors all assistance in connection with the investigation which the person is reasonably able to give.
(3)“Relevant documents” means documents that in the opinion of the inspector or inspectors may be relevant to whether the trade union has failed to comply with a relevant obligation.
(4)Where a person who is not a member of the Certification Officer’s staff is appointed as an inspector under this paragraph, there is incorporated in the appointment the duty of confidentiality as respects the register of the names and addresses of the trade union’s members.
(5)The duty of confidentiality as respects that register is a duty which the inspector owes to the Certification Officer—
(a)not to disclose any name or address in the register of the names and addresses of the union’s members except in permitted circumstances, and
(b)to take all reasonable steps to secure that there is no disclosure of any such name or address by another person except in permitted circumstances.
(6)The circumstances in which disclosure of a member’s name or address is permitted are—
(a)where the member consents,
(b)where it is required or requested by the Certification Officer for the purposes of the discharge of any of the Officer’s functions,
(c)where it is required for the purposes of the discharge of any of the functions of the inspector or any other inspector appointed by the Officer,
(d)where it is required for the purposes of the discharge of any of the functions of an assurer appointed under section 24ZB, or
(e)where it is required for the purposes of the investigation of crime or criminal proceedings.
(7)For supplementary provision, see paragraph 6.
4(1)An inspector or inspectors appointed under paragraph 3—
(a)may make interim reports to the Certification Officer,
(b)must make such reports if so directed by the Officer, and
(c)on the conclusion of the investigation, must make a final report to the Officer.
(2)A report under sub-paragraph (1) must be in writing.
(3)An inspector or inspectors—
(a)may at any time inform the Certification Officer of any matters coming to their knowledge as a result of the investigation, and
(b)must do so if the Officer so directs.
(4)The Certification Officer may direct an inspector or inspectors—
(a)to take no further steps in the investigation, or
(b)to take only such further steps as are specified in the direction.
(5)Where such a direction is made, the inspector or inspectors are not required under sub-paragraph (1)(c) to make a final report to the Certification Officer unless the Officer so directs.
5(1)Where the Certification Officer is satisfied that a trade union or any other person has failed to comply with any requirement imposed under paragraph 2 or 3, the Officer may make an order requiring the trade union or person to comply with the requirement.
(2)Before making such an order, the Certification Officer must give the trade union or person an opportunity to be heard.
(3)In the case of a failure to comply with a requirement imposed under paragraph 2 or 3 to produce a document, the Certification Officer may make an order only if the Officer is satisfied that—
(a)the document is in the possession of the union or person, and
(b)it is reasonably practicable for the union or person to comply with the requirement.
(4)In the case of a failure to comply with any other requirement imposed under paragraph 2 or 3, the Certification Officer may make an order only if the Officer is satisfied that it is reasonably practicable for the union or person to comply with the requirement.
(5)The order must specify—
(a)the requirement with which the trade union or person has failed to comply, and
(b)the date by which the trade union or person must comply.
(6)An order made by the Certification Officer under this paragraph may be enforced by the Officer in the same way as an order of the High Court or the Court of Session.
6(1)Nothing in this Schedule requires or authorises anyone to require—
(a)the disclosure by a person of information which the person would in an action in the High Court or the Court of Session be entitled to refuse to disclose on grounds of legal professional privilege, or
(b)the production by a person of a document which the person would in such an action be entitled to refuse to produce on such grounds.
(2)But a lawyer may be required under paragraph 2 or 3 to disclose the name and address of the lawyer’s client if that information may be relevant to whether a trade union has failed to comply with a requirement of section 24(1).
(3)A person is not excused from providing an explanation or making a statement in compliance with a requirement imposed under paragraph 2(5) or 3(2) on the ground that to do so would tend to expose the person to proceedings for an offence.
(4)But an explanation so provided or a statement so made may be used in evidence against the person by whom it is provided or made on a prosecution for an offence only where, in giving evidence, the person makes a statement inconsistent with it.
(5)In this Schedule—
(a)references to documents include information recorded in any form;
(b)in relation to information recorded otherwise than in legible form, references to its production are to the production of a copy of the information in legible form.”
Section 17
1(1)Section 45C of the 1992 Act (remedies and enforcement) is amended as follows.
(2)In subsection (1), for “effect.” substitute “effect; but the Certification Officer may also exercise the powers under this section where no application is made under this section.”
(3)After that subsection insert—
“(1A)Where an application is made to the Certification Officer under this section, the Officer must ensure that, so far as is reasonably practicable, it is determined within six months of being made.”
(4)For subsection (2) substitute—
“(2)Where the Certification Officer is satisfied that a trade union has failed to comply with the requirement of section 45B, the Officer may make a declaration to that effect.
(2A)Before deciding the matter the Certification Officer—
(a)may make such enquiries as the Officer thinks fit,
(b)must give the union and the applicant (if any) an opportunity to make written representations, and
(c)may give the union and the applicant (if any) an opportunity to make oral representations.
(2B)The Certification Officer must give reasons for the Officer’s decision in writing.”
(5)In subsection (6), for “the application on which the order was made” substitute “an application under this section”.
(6)In subsection (7) omit “of the application”.
2(1)Section 54 of the 1992 Act (remedy for failure to comply with requirements: general) is amended as follows.
(2)For subsection (1) substitute—
“(1)A person alleging a failure on the part of a trade union to comply with any of the requirements of this Chapter may apply for—
(a)a declaration under section 55 (by the Certification Officer), or
(b)a declaration under section 56 (by the court);
but the Certification Officer may also exercise the powers under section 55 where no application is made.”
(3)In subsection (2), for the words before paragraph (a) substitute “An application for a declaration under section 55 or 56 may be made only—”.
3(1)Section 55 of the 1992 Act (application to Certification Officer) is amended as follows.
(2)In the heading, for “Application to” substitute “Powers of”.
(3)For subsections (1) and (2) substitute—
“(1)Where the Certification Officer is satisfied that a trade union has failed to comply with any of the requirements of this Chapter, either—
(a)on an application by a person having a sufficient interest (see section 54(2)), or
(b)without any such application having been made,
the Officer may make a declaration to that effect.
(2)Before deciding the matter the Certification Officer—
(a)may make such enquiries as the Officer thinks fit,
(b)must give the union and the applicant (if any) an opportunity to make written representations, and
(c)may give the union and the applicant (if any) an opportunity to make oral representations.”
(4)In subsection (5C), for “the application on which the order was made” substitute “an application under this section”.
(5)In subsection (7) omit “of the application”.
4(1)Section 72A of the 1992 Act (application of funds in breach of section 71) is amended as follows.
(2)In subsection (1), for “so.” substitute “so; but the Certification Officer may also exercise the powers under this section where no application is made.”
(3)After that subsection insert—
“(1A)Where an application is made under subsection (1), the Certification Officer must ensure that, so far as is reasonably practicable, it is determined within six months of being made.”
(4)For subsection (2) substitute—
“(2)Where the Certification Officer is satisfied that a trade union has applied its funds in breach of section 71, the Officer may make a declaration to that effect.
(2A)Before deciding the matter the Certification Officer—
(a)may make such enquiries as the Officer thinks fit,
(b)must give the union and the applicant (if any) an opportunity to make written representations, and
(c)may give the union and the applicant (if any) an opportunity to make oral representations.
(2B)The Certification Officer—
(a)must give reasons for the Officer’s decision in writing, and
(b)may make written observations on any matter arising from, or connected with, the proceedings.”
(5)In subsection (6) omit “of the application”.
(6)In subsection (8), for “the application on which the order was made” substitute “an application under this section”.
5(1)Section 79 of the 1992 Act (remedy for failure to comply with ballot rules: general) is amended as follows.
(2)For subsection (1) substitute—
“(1)A person alleging that a trade union—
(a)has held a ballot on a political resolution otherwise than in accordance with political ballot rules approved by the Certification Officer, or
(b)has failed in relation to a proposed ballot on a political resolution to comply with political ballot rules so approved,
may apply for a declaration under section 80 (by the Certification Officer) or section 81 (by the court); but the Certification Officer may also exercise the powers under section 80 where no application is made.”
(3)In subsection (2), for “those sections” substitute “section 80 or 81”.
6(1)Section 80 of the 1992 Act (application to Certification Officer) is amended as follows.
(2)In the heading, for “Application to” substitute “Powers of”.
(3)For subsections (1) and (2) substitute—
“(1)Where the Certification Officer is satisfied, either on an application by a person having a sufficient interest (see section 79(2)) or without any such application having been made, that a trade union—
(a)has held a ballot on a political resolution otherwise than in accordance with political ballot rules approved by the Certification Officer, or
(b)has failed in relation to a proposed ballot on a political resolution to comply with political ballot rules so approved,
the Officer may make a declaration to that effect.
(2)Before deciding the matter the Certification Officer—
(a)may make such enquiries as the Officer thinks fit,
(b)must give the union and the applicant (if any) an opportunity to make written representations, and
(c)may give the union and the applicant (if any) an opportunity to make oral representations.”
(4)In subsection (5C), for “the application on which the order was made” substitute “an application under this section”.
(5)In subsection (7) omit “of the application”.
7(1)Section 82 of the 1992 Act (rules as to political fund) is amended as follows.
(2)In subsection (2), for “Officer.” substitute “Officer; but the Officer may also exercise the powers under this section where no complaint under this section is made.”
(3)For subsections (2A) and (3) substitute—
“(2A)Where the Certification Officer is satisfied that a breach has been committed, the Officer may make such order for remedying the breach as he thinks just under the circumstances.
(3)Before deciding the matter the Certification Officer—
(a)may make such enquiries as the Officer thinks fit,
(b)must give a representative of the union and the complainant (if any) an opportunity to make written representations, and
(c)may give a representative of the union and the complainant (if any) an opportunity to make oral representations.”
(4)In subsection (3A) omit “of the application”.
(5)In subsection (4A), for “the complaint on which it was made” substitute “a complaint under this section”.
8(1)Section 103 of the 1992 Act (complaints as to passing of resolution) is amended as follows.
(2)In the heading, for “Complaints” substitute “Powers of Certification Officer”.
(3)In subsection (1), for “Officer.” substitute “Officer; but the Officer may also exercise the powers under this section where no complaint under this section is made.”
(4)Omit subsection (2A).
(5)In subsection (3), for the words before paragraph (a) substitute “Where the Certification Officer is satisfied that there has been a failure such as is mentioned in paragraph (a) or (b) of subsection (1)—”.
(6)After that subsection insert—
“(3A)Before deciding the matter the Certification Officer—
(a)may make such enquiries as the Officer thinks fit,
(b)must give the union and the complainant (if any) an opportunity to make written representations, and
(c)may give the union and the complainant (if any) an opportunity to make oral representations.”
(7)In subsection (4) omit “on a complaint”.
(8)In subsection (6) omit “of the application”.
(9)In subsection (8), for “the complaint on which the order was made” substitute “a complaint under this section”.
Section 19
Section 256D
1(1)In this Schedule “enforcement order” means an order made by the Certification Officer under any of the following provisions of this Act—
(a)section 24B(6) or 25(5A) (order on failure by union to comply with duties regarding the register of members);
(b)section 31(2B) (order on failure by union to comply with member’s request for access to accounting records);
(c)section 32ZC(6) (order on failure by union to provide details of industrial action etc, or political expenditure, in annual return);
(d)section 45C(5A) (order on failure by union to comply with duty to secure positions not held by certain offenders);
(e)section 55(5A) (order on failure by union to comply with requirements about elections for certain positions);
(f)section 72A(5) (order on failure by union to comply with restriction on applying union’s funds in the furtherance of political objects);
(g)section 80(5A) (order on failure by union to comply with rules as to ballots on political resolutions);
(h)section 82(2A) (order on failure by union to comply with rules as to political fund);
(i)section 84A(5) (order on failure by union to provide required information to members about contributing to political fund);
(j)section 108B(3) (order on breach or threatened breach by union of rules on certain matters);
(k)paragraph 5(1) of Schedule A3 (order on failure by union or other person to comply with investigatory requirements).
(2)In this Schedule “the person in default” means the trade union against which, or other person against whom, an enforcement order is or could be made.
(3)A reference in this Schedule to taking steps includes a reference to abstaining from acts.
2(1)Where the Certification Officer—
(a)makes an enforcement order, or
(b)has power to make an enforcement order but does not do so,
the Officer may make a penalty order or a conditional penalty order against the person in default.
(2)A “penalty order” is an order requiring the person in default to pay a penalty of a specified amount to the Certification Officer by a specified date.
(3)A “conditional penalty order” is an order requiring the person in default to pay a penalty of a specified amount to the Certification Officer by a specified date unless the person takes specified steps by a specified date or within a specified period.
(4)Where the Certification Office makes both an enforcement order and a conditional penalty order, the steps specified in the conditional penalty order may, but need not, be the same as those that the enforcement order requires the person in default to take.
(5)In this paragraph “specified” means specified in the penalty order or conditional penalty order.
3(1)This paragraph applies where the Certification Officer has made a conditional penalty order.
(2)If the Certification Officer is satisfied that the steps specified in the order have been taken by the date or within the period specified, the Officer must notify the person in default that the penalty is not payable.
(3)If the Certification Officer is not so satisfied, and the penalty has not been paid by the required date, the Officer must make a further order requiring payment of—
(a)the amount originally ordered, or
(b)where sub-paragraph (4) applies, a lesser amount specified in the further order.
(4)This sub-paragraph applies where it appears to the Certification Officer that—
(a)steps specified in the conditional penalty order have to some extent been taken, or have been taken (to any extent) but not by the date or within the period specified, and
(b)it would be just to reduce the amount of the penalty for that reason.
(5)An order under this paragraph may require payment immediately or by a specified date.
4Before making a penalty order or a conditional penalty order, or an order under paragraph 3, the Certification Officer—
(a)must inform the person in default of the grounds on which the Officer proposes to make the order,
(b)must give that person an opportunity to make written representations, and
(c)may give that person an opportunity to make oral representations.
5A person in default may appeal to the Employment Appeal Tribunal against a decision of the Certification Officer under this Schedule on the ground that—
(a)it was based on an error of fact,
(b)it was wrong in law, or
(c)it was unreasonable,
or on such other grounds as may be prescribed.
6(1)The amount specified in a penalty order or a conditional penalty order—
(a)may not be less than the minimum amount set by regulations, and
(b)may not be more than the maximum amount set by regulations.
(2)Different amounts may be set by regulations—
(a)in relation to different enforcement orders,
(b)by reference to whether the person in default is an individual or an organisation, and
(c)in the case of an organisation, by reference to the number of members that it has.
(3)But—
(a)no minimum amount set by regulations may be less than £200, and
(b)no maximum amount set by regulations may be more than £20,000.
(4)Regulations may amend sub-paragraph (3)(a) or (b) by substitut-ing a different amount.
7(1)In relation to orders under this Schedule requiring payment of penalties, regulations may make provision for—
(a)early payment discounts;
(b)the payment of interest or other financial penalties for late payment;
(c)enforcement.
(2)Provision made by virtue of sub-paragraph (1)(b) must secure that the interest or other financial penalties for late payment do not in total exceed the amount of the penalty itself.
(3)Provision made by virtue of sub-paragraph (1)(c) may include—
(a)provision for the Certification Officer to recover the penalty, and any interest or other financial penalty for late payment, as a debt;
(b)provision for the penalty, and any interest or other financial penalty for late payment, to be recoverable, on the order of a court, as if payable under a court order.
8(1)Regulations may make provision that is incidental or supplementary to that made by this Schedule.
(2)Regulations under this Schedule may include transitional or consequential provision.
(3)Regulations under this Schedule shall be made by the Secretary of State by statutory instrument.
(4)No regulations under paragraph 6 or 7 or this paragraph shall be made unless a draft of them has been laid before Parliament and approved by a resolution of each House of Parliament.
9The Certification Officer shall pay into the Consolidated Fund amounts received—
(a)under penalty orders and conditional penalty orders (including orders under paragraph 3), and
(b)by way of interest and other financial penalties for late payment in relation to such orders.”
Section 22
1Omit section 24C and sections 24ZH to 24ZK of the 1992 Act (which are superseded by the inserted Schedule set out in Schedule 1 to this Act).
2In section 25 of the 1992 Act (remedy for failure: application to Certification Officer) in subsection (6A), for “section 24ZH or 24ZI” substitute “paragraph 2 or 3 of Schedule A3”.
3In section 45D of the 1992 Act (appeals from Certification Officer)—
(a)omit “24C,”;
(b)after “45C” insert “or paragraph 5 of Schedule A3”.
4In section 62 of the 1992 Act (right to a ballot before industrial action), for subsection (2) substitute—
“(2)For this purpose the question whether industrial action is regarded as having the support of a ballot shall be determined in accordance with section 226(2).”
5In section 71 of the 1992 Act (restriction on use of funds for political objects), in subsection (1)(b), for sub-paragraph (ii) substitute—
“(ii)the making of contributions to that fund by members,”.
6(1)Section 82 of the 1992 Act (rules as to political fund) is amended as follows.
(2)In subsection (1), for paragraph (b) substitute—
“(b)that a member of the union who is not a contributor (see section 84) shall not be under any obligation to contribute to the political fund;”.
(3)In subsection (1)(c), for “being so exempt” substitute “not being a contributor”.
7(1)Section 86 of the 1992 Act is amended as follows.
(2)For the heading substitute “Employer not to deduct contributions where member gives certificate”.
(3)In subsection (1), for paragraphs (a) and (b) substitute “, he is not a contributor to the fund,”.
8In section 91 of the 1992 Act (rules to cease to have effect), in subsection (4), for the words before paragraph (a) substitute “A member of a trade union who has at any time not been a contributor to its political fund shall not for that reason—”.
9(1)Section 94 of the 1992 Act (overseas members of trade union) is amended as follows.
(2)In subsection (1) omit paragraph (b) and the word “and” at the end of paragraph (a).
(3)In subsection (2) omit the words after “the rules”.
10In section 118 of the 1992 Act (federated trade unions), in subsection (7), for “not exempt from the obligation to contribute” substitute “contributors”.
11In section 135 of the 1992 Act (federated employers’ associations), in subsection (4), for “not exempt from the obligation to contribute” substitute “contributors”.
12In section 226 of the 1992 Act (requirement of ballot before action by trade union), in subsection (2)(a), omit the word “and” at the end of sub-paragraph (ii).
13In section 233 of the 1992 Act (calling of industrial action with support of ballot), for subsections (1) to (3) substitute—
“(1)Industrial action shall be regarded as having the support of a ballot only if—
(a)it is called by a person specified or of a description specified in the voting paper for the ballot in accordance with section 229(3), and
(b)there was 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.”
14In section 234 of the 1992 Act (period after which ballot ceases to be effective)—
(a)in subsection (3) omit the words after paragraph (b);
(b)in subsection (6) omit the second sentence.
15(1)Section 254 of the 1992 Act (the Certification Officer) is amended as follows.
(2)In subsection (5A) omit “Subject to subsection (6),”.
(3)Omit subsection (6).
16In section 256 of the 1992 Act (procedure before the Certification Officer), in subsection (1)(c), for the words after “declaration or” substitute “order under section 24B, 32ZC, 45C, 55, 72A, 80, 82 or 103 or under paragraph 5 of Schedule A3”.
17After section 297 of the 1992 Act insert—
For the purposes of this Act, the number of persons voting in a ballot includes those who return ballot papers that are spoiled or otherwise invalid.”
18In section 298 of the 1992 Act (minor definitions: general), at the appropriate place insert—
““legal professional privilege”, as respects Scotland, means confidentiality of communications;”.
19In section 299 of the 1992 Act (index of defined expressions), at the appropriate places insert—
| “contributor (in relation to the political fund of a trade union) | section 84(5)” |
| “legal professional privilege (as respects Scotland) | section 298” |
| “voting | section 297A” |
20(1)Article 71 of the Trade Union and Labour Relations (Northern Ireland) Order 1995 (S.I. 1995/1980 (N.I. 12)) (application to Great Britain unions and members) is amended as follows.
(2)In paragraph (3)—
(a)for “exempt from the obligation to contribute” substitute “not a contributor”;
(b)for “so exempt” substitute “not a contributor to that fund”.
(3)Omit paragraph (5)(b).
21In consequence of the amendments made by this Act, omit the following—
(a)in the Trade Union Reform and Employment Rights Act 1993, paragraph 47(b) of Schedule 8;
(b)in the Employment Relations Act 1999, paragraph 10 of Schedule 3 and paragraphs 17(2) and 18(2) of Schedule 6;
(c)in the Employment Relations Act 2004, section 24(2) and paragraph 14 of Schedule 1.