Trade Union Bill

Explanatory Notes

Legal background

3 A trade union is a membership-based organisation mainly made up of workers. One of its main objectives must include the regulation of relations between workers and employers or employers’ associations. An employers’ association is a body of employers, generally from the same sector of the economy, whose principal purposes include the regulation of relations between employers in that sector and workers or trade unions.

4 The current legislation relating to trade unions and employers’ associations is set out in the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act"), in particular:

industrial action ballot requirements – sections 226 to 234;

industrial action notice requirements – sections 234A to 235;

recognition of peaceful picketing as a lawful activity – sections 219 to 220;

political funds – sections 71 to 96;

facility time – sections 168 to 173;

the role of the Certification Officer is set out in sections 254 to 258, and enforcement powers are contained in each provision setting out a relevant obligation

5 A trade union can apply to have its name included on the public list maintained by the Certification Officer, which provides the union with procedural and tax advantages. A trade union will acquire further rights including the ability to negotiate collective bargaining arrangements on behalf of a group of workers and for its workplace representatives to be eligible for time off to carry out union duties, if it is recognised by the employer for the purposes of collective bargaining. Recognition can either be negotiated by agreement with the employer or by following the statutory procedure for recognition under Part 1 of Schedule A1 to the 1992 Act by applying to the Central Arbitration Committee.

6 By organising industrial action, trade unions may become liable in tort. For example, where a trade union induces workers to take industrial action which amounts to a breach of their employment contract, the union commits the tort of inducing the breach of contract. If a trade union wishes to benefit from statutory immunity from liability for that tort, it must satisfy the circumstances set out in Part 5 of the 1992 Act. Part 5 also sets out the circumstances in which an employee taking industrial action loses their protection from unfair dismissal.

7 To establish that a trade union is not liable in tort it will need to show that:

the action is in contemplation or furtherance of a trade dispute,

the union has the support of a valid ballot and has sent the appropriate notifications to union members and the employer,

the action does not amount to secondary action or unlawful picketing, and

it is not for a prohibited purpose, for example to support employees dismissed during unofficial industrial action.

8 The Certification Officer is the Registrar of trade unions and employers’ associations. The Certification Officer has a range of powers and duties to ensure trade unions and employers’ associations abide by various statutory requirements and their own internal rules, and that their finances are managed effectively. The Certification Officer is responsible for maintaining lists of trade unions and employers’ associations and for issuing certificates of independence to trade unions. He also acts in a quasi-judicial capacity, for example in relation to breach of rule disputes. The Certification Officer’s decisions, as well as further information about the Certification Officer's functions and annual report can be found on the website: http://www.certoffice.org/

Territorial extent and application

9 The provisions of the Bill extend to Great Britain. In the view of the UK Government, the matters to which the provisions of the Bill relate are not within the legislative competence of the Scottish Parliament or the National Assembly for Wales; accordingly no legislative consent motions are required. In Northern Ireland employment and industrial relations are transferred. The Bill makes a minor, ancillary amendment to NI legislation on political funds which deals with NI trade union members in GB, which is consequential on the changes proposed on political funds in GB. As a result, the Government does not consider that the legislative consent of the Northern Ireland Assembly is required.

Prepared 15th July 2015