Trade Union Bill (HC Bill 58)

(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.

Supplementary

6 (1) 5Nothing 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
10professional 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
15the 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
20paragraph 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
25evidence, 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
30legible form, references to its production are to the
production of a copy of the information in legible form.””

Section 14

SCHEDULE 2 Certification Officer: exercise of powers without application etc

Duty to secure positions not held by certain offenders

1 (1) 35Section 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) 5For 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) 10may 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) 15The 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”.

20Elections 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
25with 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
30section 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) 35In 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) 40on 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
5to 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) 10In 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
15also 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) 20For 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) 25may 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) 30The 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) 35In 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
5Certification 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
10also 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) 15In 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) 20has 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,

25the 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) 30may 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”.

35Rules 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) 40For 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) 5may 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”.

10Ballots 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) 15In 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
20Certification 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) 25must 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) 30In 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 16

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

Section 256D

“Schedule 1 5Certification Officer: power to impose financial penalties

Introduction

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) 10section 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
15details 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
20requirements 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
25rules as to ballots on political resolutions);

(h) section 82(3) (order on failure by union to comply with
rules as to political fund);

(i) section 108B(3) (order on breach or threatened breach by
union of rules on certain matters);

(j) 30paragraph 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
35order is or could be made.

(3) A reference in this Schedule to taking steps includes a reference to
abstaining from acts.

Power to impose financial penalties

2 (1) Where the Certification Officer—

(a) 40makes 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
5default 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
10conditional 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.

Enforcement of conditional penalty order

3 (1) 15This 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
20payable.

(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) 25where 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
30some 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
35or by a specified date.

Representations

4 Before 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
40the 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.

Appeals

5 A 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) 5it 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.

Amount of penalty

6 (1) 10The 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
15regulations.

(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) 20in 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) 25no 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.

Early or late payment, and enforcement

7 (1) 30In 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) 35enforcement.

(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) 40provision 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.

Regulations

8 (1) 5Regulations 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
10State 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.

Payment of penalties etc into Consolidated Fund

9 15The 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
20in relation to such orders.””

Section 18

SCHEDULE 4 Minor and consequential amendments

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

1 In section 24A of the 1992 Act (securing confidentiality of register during
25ballots), in subsection (4)(b), after “where it is” insert “required or”.

2 In section 62 (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
30with section 226(2).””

3 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,”.”

4 (1) 35Section 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”.

5 (1) Section 86 of the 1992 Act is amended as follows.

(2) For the heading substitute “Employer not to deduct contributions where
5member gives certificate”.

(3) In subsection (1), for paragraphs (a) and (b) substitute “, he is not a
contributor to the fund,”.

6 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
10who has at any time not been a contributor to its political fund shall not for
that reason—”.

7 (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
15paragraph (a).

(3) In subsection (2) omit the words after “the rules”.

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

9 In section 135 of the 1992 Act (federated employers’ associations), in
20subsection (4), for “not exempt from the obligation to contribute” substitute
“contributors”.

10 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).

11 25In 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
30in 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
35industrial action, before the date of the ballot.””

12 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.

13 40After section 297 of the 1992 Act insert—

“297A Meaning 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.””