ANNEX II (continued)
Letter from the Assistant Director of the Employment
Relations Directorate of the Department of Trade and Industry
to the Clerk of the Committee
Transitional Arrangements
The Committee asked for comments on the arguments put forward
by Rowley Ashworth Solicitors in their letter to the Committee
of 19 January suggesting that the wording of existing authorisations
would permit deductions to be made on an indefinite basis.
This issue was dealt with at some length in points (i) and (ii)
of the note attached to my letter of 20 January. Rowley
Ashworth refer to the position of authorisations made before the
1993 Act came int force. Of course, all such authorisations have
been superseded by later authorisations, as required by the Act.
However, the Government acknowledges that few, if any, of these
post-Act authorisations explicitly limit deductions to three years.
Rowley Ashworth mention that all the authorisations which they
have seen give the employer "express" authority to make
deductions "until further notice". It should be remembered
that several million authorisation forms have been completed since
1993, most issued by unions on behalf of employers but others
by employers themselves. The Government understands that in many
cases employers have not retained copies of the authorisations,
so it would be impossible to tell what wording was used. In these
circumstances, it is unwise to discount the possibility that a
significant number make no explicit reference to the duration
of the authorisations. The Government takes the view that it
would be irresponsible to leave employers in a state of uncertainty
as to whether they can continue to make lawful deductions. Also,
it would be ultra vires to make a transitional provision which
retrospectively deems workers who have authorised deductions for
three years to have agreed to something wider. It would also
remove the necessary protection for workers of ensuring that their
intentions are honoured.
Rowley Ashworth suggest that the transitional arrangement will
have the result that employers will be permanently required to
operate two systems of check-off, one for indefinite authorisations
and one for those renewed every three years. This will
not be the case: once the existing three year authorisations have
expired, employers will be free to require the workers in question
to sign new unlimited authorisations. Employers are under no
obligation to operate check off at all. If they do so, they are
free to impose conditions such as that workers should give indefinite
authorisations.
The Committee suggest that instead of the transitional arrangements
proposed in the draft order, a requirement could be placed on
unions to notify their members of the fact that authorisations
were not for an indefinite period. This option was considered
but rejected on two grounds. First, as explained above, in the
Government's view it would not be lawful for the order retrospectively
to extend the effect of pre-existing authorisations, even if workers
were informed that this had been done. Second, the proposal would
place a burden on trade unions which does not currently fall on
them. Although such a provision is not explicitly prohibited
by the Deregulation and Contracting Out Act 1994, the Government
takes the view that it would be inappropriate to use the power
to impose a burden.
The proposed transitional provision is, in the Government's view,
the least burdensome arrangement possible under the statutory
power which will give certainty to employers and sufficient protection
to workers.
The Prescribed Notice
The Committee ask for views on their suggested draft of the notice.
I am very grateful to the Committee for their suggestions, which
helpfully shorten the notice by deleting some unnecessary wording.
We and Parliamentary Counsel will examine the draft carefully
before sending the committee our revised draft of the notice before
February 11. Although we envisage the draft following closely
that suggested by the Committee, it may be helpful to workers
if the draft conveys the message that if they sign the notice,
they are limiting to three years the duration of their existing
authorisations only: it would have not bearing on the duration
on any subsequent authorisations. Also it would be desirable
to mention that whether or not the worker signs the form, he or
she remains free to withdraw the authorisation at any time.
Rowley Ashworth's letter suggests that the notice to workers should
inform them that deductions will continue indefinitely and without
prior notice of increases unless they give notice to the employer
to terminate deductions. The Government considers it preferable
to allow employers to continue the effect of existing authorisations,
if workers wish them to do so. However, employers are not required
to give workers this option; under section 68(9) of the Trade
Union and Labour Relations (Consolidation) Act 1992 it remains
open to them to refuse to make deductions for those who have not
given an indefinite authorisation. And it will of course be possible
for workers to withdraw the authorisation at any time.
29 January 1998
Letter from the General Secretary
of the TUC to the Clerk of the Committee
Further to my letter of 21 January, I have now had an opportunity
to study the terms of the draft Statutory Instrument on the deduction
of union subscriptions from pay and I would like to make some
additional points on the proposed transitional arrangements.
In response to the Government's consultation paper on the repeal
of the restrictions on check-off, the TUC registered its opposition
to the suggestion that, once the repeal took effect, it would
be necessary to notify members on check-off that deductions would
continue indefinitely unless otherwise instructed. We reiterated
our objections to these transitional arrangements in our letter
to the committee of 21 January.
The TUC is therefore concerned to see that the provisions on transitional
arrangements in the draft Statutory Instrument are more complex
than originally proposed. Giving union members the option of
retaining the terms of their authorisation could cause administrative
problems for employers and unions. The repeal of these unnecessary
burdens should provide a clean break with the bureaucratic requirements
on re-authorisation and notification of increases in subscriptions.
Now there is the prospect that some individual members could
remain subject to these measures for up to three years, after
which a fresh authorisation would be required for deductions to
continue. Employers operating check-off facilities would need
to keep records of which members were still under the old provisions
and which had opted for the new arrangements. In the TUC's view,
that is an unnecessary complication as every member has the safeguard
of withdrawing from check-off or from union membership altogether.
The TUC does not agree that the proposed form which employers
would have to distribute to members on check-off is either "simple"
or written in "ordinary language". It is inevitably
a lengthy document as it seeks to explain changes in legislation.
As the form concludes with a space for members to sign and return
it to the employer, we believe there is a risk that forms will
be returned even where members are content for their subscriptions
to continue indefinitely.
I would very much hope that you will draw the Committee's attention
to the TUC's view that to proceed in this way would disastrously
undermine the whole purpose of the order which is to simplify
these arrangements, and remove unnecessary administrative burdens
on employers and unions.
2 February 1998
Letter from the Assistant Director
of the Employment Relations Directorate of the Department of Trade
and Industry to the Clerk of the Committee
Further to my letters of 20th and 29th of January, I am enclosing
a revised text of the prescribed notice.
Article 3 SCHEDULE
FORM OF NOTICE TO BE GIVEN UNDER ARTICLE 3(2)
DEDUCTION OF TRADE UNION SUBSCRIPTIONS FROM PAY
Following the coming into force of the Deregulation (Deduction from Pay of Union Subscriptions) Order 1998 you no longer need to re-authorise payments of trade union subscriptions by "check off" (deduction from pay by your employer) every three years and your employer is no longer required to give you advance written notice of any increase in the rate of deductions. The law continues to require your written authorisation before check off can start, and you continue to have the right to stop paying by check off at any time, by giving notice in writing to your employer.
This notice affects you if you pay your union subscriptions by check off and you gave your current authorisation before [date of coming into force of 1998 Order ].
If you are content for the new arrangements to apply for you, you need do nothing.
If, however, you wish the previous arrangements to continue to apply to you, you must complete the form below and return it to [name and address of employer] within 14 days of receiving this notice. If you do so, your current authorisation will expire three years after you gave it. Any subsequent authorisation will be subject to the new arrangements.
*********************************************************************
Name......................................................
In accordance with the Deregulation (Deduction from Pay of Union Subscriptions) Order 1998, I give notice that my authorisation of the deduction of trade union subscriptions from my wages is to continue to be treated as ceasing to have effect three years after it was given and as authorising increases in the amount deducted only where my employer has given me prior written notice as required by section 68 of the Trade Union and Labour Relations (Consolidation) Act 1992 (as substituted by section 15 of the Trade Union Reform and Employment Rights Act 1993).
Signature.................................................
Date.........................................................
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11 February 1998
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