Trade Union Act 2016

Introduction

1Meaning of “the 1992 Act”

In this Act “the 1992 Act” means the Trade Union and Labour Relations (Consolidation) Act 1992.

Ballot thresholds for industrial action

2Ballots: 50% turnout requirement

(1)

In section 226 of the 1992 Act (requirement of ballot before action by trade union), in subsection (2)(a), after sub-paragraph (ii) insert—

“(iia)
in which at least 50% of those who were entitled to vote in the ballot did so, and”.

(2)

Subsection (1) does not apply to any ballot opened before the day on which this section comes into force.

For this purpose a ballot is “opened” on the first day when a voting paper is sent to any person entitled to vote in the ballot.

F13Ballots: 40% support requirement in important public services

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Electronic balloting

F24Provision for electronic balloting: review and piloting scheme

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Information requirements relating to industrial action

F35Information to be included on voting paper

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6Information to members etc about result of ballot

(1)

In section 231 of the 1992 Act (information as to result of ballot), for the words after “all persons entitled to vote in the ballot” substitute“are told—

(a)
the number of individuals who were entitled to vote in the ballot,
(b)
the number of votes cast in the ballot,
(c)
the number of individuals answering “Yes” to the question, or as the case may be, to each question,
(d)
the number of individuals answering “No” to the question, or as the case may be, to each question,
(e)
the number of spoiled or otherwise invalid voting papers returned,
(f)
whether or not the number of votes cast in the ballot is at least 50% of the number of individuals who were entitled to vote in the ballot, and
(g)
where section 226(2B) applies, whether or not the number of individuals answering “Yes” to the question (or each question) is at least 40% of the number of individuals who were entitled to vote in the ballot.”

(2)

Subsection (1) does not apply to any ballot opened before the day on which this section comes into force.

For this purpose a ballot is “opened” on the first day when a voting paper is sent to any person entitled to vote in the ballot.

F47Information to Certification Officer about industrial action etc

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Timing and duration of industrial action

F58Two weeks' notice to be given to employers of industrial action

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9Expiry of mandate for industrial action

(1)

In section 234 of the 1992 Act (period after which ballot ceases to be effective), for subsection (1) substitute—

“(1)
Industrial action that is regarded as having the support of a ballot shall cease to be so regarded at the end of the period, beginning with the date of the ballot—
(a)
of six months, or
(b)
of such longer duration not exceeding nine months as is agreed between the union and the members' employer.
(1A)
Subsection (1) has effect—
(a)
without prejudice to the possibility of the industrial action getting the support of a fresh ballot; and
(b)
subject to the following provisions.”

(2)

Subsection (1) and paragraphs 13 and 14 of Schedule 4 do not apply to any industrial action the ballot for which opened before the day on which this section comes into force.

For this purpose a ballot is “opened” on the first day when a voting paper is sent to any person entitled to vote in the ballot.

Picketing

F610Union supervision of picketing

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Application of funds for political objects

11Opting in by union members to contribute to political funds

F7(1)

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F8(2)

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(3)

For section 85 of the 1992 Act substitute—

“85Manner of giving effect to section 84
(1)
A union that has a political fund must either—
(a)
make a separate levy of contributions to that fund from the members who are contributors, or
(b)
relieve members who are not contributors from the payment of the appropriate portion of any periodical contribution required from members towards the expenses of the union.
(2)
In the latter case, the rules shall provide—
(a)
that relief shall be given as far as possible to all members who are not contributors on the occasion of the same periodical payment, and
(b)
for enabling each member of the union to know what portion (if any) of any periodical contribution payable by the member is a contribution to the political fund.”

(4)

In section 82 of the 1992 Act (rules as to political fund), in subsection (1), for the word “and” at the end of paragraph (c) substitute—

“(ca)
that, if the union has a political fund, any form (including an electronic form) that a person has to complete in order to become a member of the union shall include—
(i)
a statement to the effect that the person may opt to be a contributor to the fund, and
(ii)
a statement setting out the effect of paragraph (c); and”.

F9(5)

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F9(6)

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F9(7)

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F9(8)

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F1012Union's annual return to include details of political expenditure

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Facility time and check-off

F1113Publication requirements

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F1214Reserve powers

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F1315Restriction on deduction of union subscriptions from wages in public sector

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Certification Officer

16Certification Officer not subject to ministerial direction

In section 254 of the 1992 Act (the Certification Officer), at the end of subsection (2) insert “ (but is not subject to directions of any kind from any Minister of the Crown as to the manner in which he is to exercise his functions) ”.

17Investigatory powers etc

F14(1)

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F15(2)

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(3)

Schedule 2, which makes amendments to the 1992 Act F16in relation to the powers of the Certification Officer, has effect.

F1718Enforcement by Certification Officer of new annual return requirements

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19Further powers of Certification Officer where enforcement order made

F18(1)

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F18(2)

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F18(3)

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(4)

The provisions of the 1992 Act set out below (which provide for certain orders made by the Certification Officer to be enforceable in the same way as orders of the court) are amended as shown.

Provision	Amendment
In section 24B (enforcement of sections 24 to 24ZC by Certification Officer), subsection (12)	after “enforced” insert “ by the Officer ”
In section 25 (remedy for failure: application to Certification Officer), subsection (10)	after “enforced” insert “ (by the Certification Officer, the applicant or a person mentioned in subsection (5B)) ”
In section 31 (remedy for failure to comply with request for access), subsection (5)	after “enforced” insert “ (by the Certification Officer or the applicant) ”
In section 45C (remedies and enforcement), subsection (9)	after “enforced” insert “ (by the Certification Officer, the applicant or a person mentioned in subsection (6)) ”
In section 55 (application to Certif-ication Officer), subsection (9)	after “enforced” insert “ (by the Certification Officer, the applicant or a person mentioned in subsection (5C)) ”
In section 72A (application of funds in breach of section 71), subsection (9)	after “enforced” insert “ (by the Certification Officer, the applicant or a person mentioned in subsection (8)) ”
In section 80 (application to Certif-ication Officer), subsection (9)	after “enforced” insert “ (by the Certification Officer, the applicant or a person mentioned in subsection (5C)) ”
In section 82 (rules as to political fund), subsection (4B)	after “enforced” insert “ (by the Certification Officer, the complainant or a person mentioned in subsection (4A)) ”
In section 108B (declarations and orders), subsection (8)	after “enforced” insert “ (by the Certification Officer, the applicant or a person mentioned in subsection (7)) ”

20Power to impose levy

(1)

After section 257 of the 1992 Act insert—

“257ALevy payable to Certification Officer
(1)
The Secretary of State may by regulations make provision for the Certification Officer to require trade unions and employers' associations (“relevant organisations”) to pay a levy to the Officer.
(2)
The regulations must require the Certification Officer, in determining the amounts to be levied, to aim to ensure that the total amount levied over any period of three years does not exceed the total amount of the Officers's expenses over that period that are referable to specified functions of the Officer.
(3)
The regulations may make provision for determining what things count as expenses of the Certification Officer for the purposes of provision made by virtue of subsection (2), and may in particular provide for the expenses to be treated as including—
(a)
expenses incurred by ACAS in providing staff, accommodation, equipment and other facilities under section 254(5), or
(b)
expenses in respect of which payments are made under section 255(1) or (2).
(4)
The regulations may provide for the Certification Officer to determine the amount of levy payable by a relevant organisation by reference to specified criteria, which may include—
(a)
the number of members or the amount of income that the organisation has;
(b)
whether the organisation is—
(i)
a federated trade union,
(ii)
a trade union that is not a federated trade union,
(iii)
a federated employers' association, or
(iv)
an employers' association that is not a federated employers' association;
(c)
the different proportions of the Officer's expenses that are referable to—
(i)
functions in relation to federated trade unions,
(ii)
functions in relation to trade unions that are not federated trade unions,
(iii)
functions in relation to federated employers' associations, and
(iv)
functions in relation to employers' associations that are not federated employers' associations.
(5)
The regulations may provide—
(a)
for the levy not to be payable, or for a reduced amount to be payable, in specified cases or in cases determined by the Certification Officer in accordance with the regulations;
(b)
for the intervals at which the levy is to be paid;
(c)
for interest to be payable where a payment is not made by the required date;
(d)
for an amount levied to be recoverable by the Certification Officer as a debt.
(6)
The regulations may contain such incidental, supplementary or transitional provisions as appear to the Secretary of State to be necessary or expedient.
(7)
In this section—
“federated employers' association” has the same meaning as in section 135;
“federated trade union” has the same meaning as in section 118;
“specified” means specified in the regulations.
(8)
Before making regulations under this section the Secretary of State must consult relevant organisations and ACAS.
(9)
No regulations under this section shall be made unless a draft of them has been laid before Parliament and approved by a resolution of each House of Parliament.
(10)
The Certification Officer shall pay into the Consolidated Fund amounts received by virtue of this section.”

(2)

In section 258 of that Act (annual reports and accounts), after subsection (1) insert—

“(1A)
A report under this section shall include details of—
(a)
amounts levied by the Certification Officer by virtue of section 257A in the year in question, and
(b)
how the amounts were determined.”

21Rights of appeal not limited to questions of law

In each of the following provisions of the 1992 Act, for “on any question of law arising” substitute “ on any question arising ”

(a)

section 45D (appeal from Certification Officer on question arising in proceedings etc under section 24B, 24C, 25, 31, 32ZC or 45C);

(b)

section 56A (appeal from Certification Officer on question arising in proceedings etc under section 55);

(c)

section 95 (appeal from Certification Officer on question arising in proceedings etc under Chapter 6 of Part 1);

(d)

section 104 (appeal from Certification Officer on question arising in proceedings etc under section 103);

(e)

section 108C (appeals from Certification Officer on question arising in proceedings etc under Chapter 7A of Part 1).

General

22Minor and consequential amendments

Schedule 4 (minor and consequential amendments) has effect.

23Financial provision

There is to be paid out of money provided by Parliament any increase attributable to this Act in the sums payable under any other Act out of money so provided.

24Extent

An amendment or repeal made by this Act has the same extent as the enactment to which it relates.

25Commencement

(1)

This Act, apart from sections 23 to 26 (which come into force on the day on which this Act is passed), comes into force on whatever day or days the Secretary of State appoints by regulations made by statutory instrument.

(2)

Regulations under this section may include saving, transitional or transitory provision.

26Short title

This Act may be cited as the Trade Union Act 2016.

F19SCHEDULE 1Certification Officer: investigatory powers: Schedule to be inserted into the 1992 Act

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SCHEDULE 2Certification Officer: exercise of powers F20... etc

Section 17

Duty to secure positions not held by certain offenders

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”.

Elections for certain positions

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.

F21(2)

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(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”.

Application of a trade union's funds in the furtherance of political objects

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 ”.

Compliance with political ballot rules

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.

F22(2)

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(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”.

Rules as to political fund

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 ”.

Ballots on amalgamations or transfers

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 ”.

F23SCHEDULE 3Certification Officer: power to impose financial penalties: Schedule to be inserted into the 1992 Act

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SCHEDULE 4Minor and consequential amendments

Section 22

Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52)

1

Omit 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).

F242

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3

In section 45D of the 1992 Act (appeals from Certification Officer)—

(a)

omit “24C,”;

F25(b)

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4

In 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).”

5

In 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 ”.

F26(3)

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8

In 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— ”.

F279

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10

In section 118 of the 1992 Act (federated trade unions), in subsection (7), for “not exempt from the obligation to contribute” substitute “ contributors ”.

11

In section 135 of the 1992 Act (federated employers' associations), in subsection (4), for “not exempt from the obligation to contribute” substitute “ contributors ”.

12

In 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).

13

In 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.”

14

In 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).

16

In 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 ”.

17

After section 297 of the 1992 Act insert—

“297AMeaning of “voting”
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.”

18

In section 298 of the 1992 Act (minor definitions: general), at the appropriate place insert—

““legal professional privilege”, as respects Scotland, means confidentiality of communications;”.

19

In 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”

Trade Union and Labour Relations (Northern Ireland) Order 1995 (S.I. 1995/1980 (N.I. 12)

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).

Consequential repeals

21

In 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.