Employment Relations Bill

House of Commons

Session 2003 - 04
Internet Publications
Other Bills before Parliament

Employment Relations Bill

Employment Relations Bill
Part 4 — Enforcement of minimum wage legislation
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Enforcement notices
(1)
In section 19(3) of the National Minimum Wage Act 1998 (c. 39) (enforcement
notices relating to more than one worker) for “The same” substitute “An”.
(2)
Nothing in this section affects section 19 of the National Minimum Wage Act
1998 as it has effect for the purposes of the Agricultural Wages (Scotland) Act
5
1949 (c. 30).
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Enforcement officers for agricultural wages legislation
(1)
Before section 12 of the Agricultural Wages Act 1948 (c. 47) (in this section
referred to as “the 1948 Act”) insert—
“11A
Appointment of officers
10
(1)
The Secretary of State—
(a)
may appoint officers to act in England for the purposes of this
Act; and
(b)
may, instead of or in addition to appointing any officers under
this section, arrange with any Minister of the Crown or
15
government department, or any body performing functions on
behalf of the Crown, that officers of that Minister, department
or body shall act in England for those purposes.
(2)
The National Assembly for Wales—
(a)
may appoint officers to act in Wales for the purposes of this Act;
20
and
(b)
may, instead of or in addition to appointing any officers under
this section, arrange with any Minister of the Crown or
government department, or any body performing functions on
behalf of the Crown, that officers of that Minister, department
25
or body shall act in Wales for those purposes.
(3)
When acting for the purposes of this Act, an officer shall, if so required,
produce some duly authenticated document showing his authority so
to act.
(4)
If it appears to an officer that any person with whom he is dealing while
30
acting for the purposes of this Act does not know that he is an officer so
acting, the officer shall identify himself as such to that person.”
(2)
In section 12 of the 1948 Act (officers)—
(a)
for the sidenote substitute “Powers of officers”;
(b)
omit subsections (1) and (2); and
35
(c)
in each of subsections (3), (4), (5) and (5A), for “so appointed” substitute
“acting for the purposes of this Act”.
(3)
An appointment made under section 12(1) of the 1948 Act which is in force
immediately before the date on which this section comes into force shall,
without prejudice to the generality of section 17(2)(b) of the Interpretation Act
40
1978 (c. 30), have effect on and after that date as if made under section 11A of
the 1948 Act (which is inserted by subsection (1) above).

Employment Relations Bill
Part 5 — The Certification Officer
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Part 5
The Certification Officer
35
Striking out by Certification Officer of applications or complaints
After section 256 of the 1992 Act, insert—
“256AA
Striking out
5
(1)
At any stage of proceedings on an application or complaint made to the
Certification Officer, he may—
(a)
order the application or complaint, or any response, to be struck
out on the grounds that it is scandalous, vexatious, has no
reasonable prospect of success or is otherwise misconceived,
10
(b)
order anything in the application or complaint, or in any
response, to be amended or struck out on those grounds, or
(c)
order the application or complaint, or any response, to be struck
out on the grounds that the manner in which the proceedings
have been conducted by or on behalf of the applicant or
15
complainant or (as the case may be) respondent has been
scandalous, vexatious, or unreasonable.
(2)
The Certification Officer may order an application or complaint made
to him to be struck out for excessive delay in proceeding with it.
(3)
An order under this section may be made on the Certification Officer’s
20
own initiative and may also be made—
(a)
if the order sought is to strike out an application or complaint,
or to amend or strike out anything in an application or
complaint, on an application by the respondent, or
(b)
if the order sought is to strike out any response, or to amend or
25
strike out anything in any response, on an application by the
person who made the application or complaint mentioned in
subsection (1).
(4)
Before making an order under this section, the Certification Officer
shall send notice to the party against whom it is proposed that the order
30
should be made giving him an opportunity to show cause why the
order should not be made.
(5)
Subsection (4) shall not be taken to require the Certification Officer to
send a notice under that subsection if the party against whom it is
proposed that the order under this section should be made has been
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given an opportunity to show cause orally why the order should not be
made.
(6)
Nothing in this section prevents the Certification Officer from making
further provision under section 256(1) about the striking out of
proceedings on any application or complaint made to him.
40
(7)
An appeal lies to the Employment Appeal Tribunal on any question of
law arising from a decision of the Certification Officer under this
section.
(8)
In this section—

Employment Relations Bill
Part 5 — The Certification Officer
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“response” means any response made by a trade union or other
body in the exercise of a right to be heard, or to make
representations, in response to the application or complaint;

“respondent” means any trade union, or other body, that has such
a right.”
5
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Restriction of proceedings orders: proceedings before Certification Officer
(1)
Section 33 of the Employment Tribunals Act 1996 (c. 17) (restriction of
proceedings orders) is amended in accordance with subsections (2) to (7).
(2)
In subsection (1)(a), after “whether”, where it first occurs, insert “before the
Certification Officer,”.
10
(3)
In subsection (1)(b), after “whether” insert “before the Certification Officer,”.
(4)
In subsection (2)(a), after “instituted” insert “before the Certification Officer,”.
(5)
In subsection (2)(b), after “him”, where it first occurs, insert “before the
Certification Officer,”.
(6)
In subsection (2)(c), after “proceedings” insert “before the Certification
15
Officer,”.
(7)
In subsection (4)—
(a)
after “proceedings”, where it first occurs, insert “before the
Certification Officer,”; and
(b)
for “the process of the tribunal in question” substitute “process”.
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(8)
In section 42 of that Act (interpretation), in subsection (1), after the definition
of “appointed member” insert—

““Certification Officer” shall be construed in accordance with section 254
of the Trade Union and Labour Relations (Consolidation) Act 1992,”.
(9)
In section 256A of the 1992 Act (power of Certification Officer to refuse to
25
entertain applications and complaints made by vexatious litigants), in
subsection (4) (definition of “vexatious litigant” for the purposes of that
section) omit paragraph (a).
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Amalgamations: approval, listing and certification
(1)
In section 98 of the 1992 Act (approval of instrument of amalgamation or
30
transfer) for subsection (2) substitute—
“(2)
If the Certification Officer is satisfied—
(a)
that an instrument of amalgamation complies with the
requirements of any regulations in force under this Chapter,
and
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(b)
that he is not prevented from approving the instrument of
amalgamation by subsection (3),

he shall approve the instrument.
(3)
The Certification Officer shall not approve an instrument of
amalgamation if it appears to him that the proposed name of the
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amalgamated union is the same as the name under which another
organisation—

Employment Relations Bill
Part 5 — The Certification Officer
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(a)
was on 30th September 1971 registered as a trade union under
the Trade Union Acts 1871 to 1964,
(b)
was at any time registered as a trade union or employers’
association under the Industrial Relations Act 1971, or
(c)
is for the time being entered in the list of trade unions or in the
5
list of employers’ associations,

or if the proposed name is one so nearly resembling any such name as
to be likely to deceive the public.
(4)
Subsection (3) does not apply if the proposed name is the name of one
of the amalgamating unions).
10
(5)
If the Certification Officer is satisfied that an instrument of transfer
complies with the requirements of any regulations in force under this
Chapter, he shall approve the instrument.”
(2)
After section 101 of that Act insert—
“101A
Listing and certification after amalgamation
15
(1)
Subsection (2) applies if when an instrument of amalgamation is
registered by the Certification Officer under this Chapter each of the
amalgamating unions is entered in the list of trade unions.
(2)
The Certification Officer shall—
(a)
enter, with effect from the amalgamation date, the name of the
20
amalgamated union in the list of trade unions, and
(b)
remove, with effect from that date, the names of the
amalgamating unions from that list.
(3)
Subsection (4) applies if when an instrument of amalgamation is
registered by the Certification Officer under this Chapter each of the
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amalgamating unions has a certificate of independence which is in
force.
(4)
The Certification Officer shall issue to the amalgamated trade union,
with effect from the amalgamation date, a certificate that the union is
independent.
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(5)
In this section “the amalgamation date” means the date on which the
instrument of amalgamation takes effect.
101B
Supply of information by amalgamated union
(1)
If an instrument of amalgamation is registered under this Chapter by
the Certification Officer and the amalgamated union is entered in the
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list of trade unions in accordance with section 101A, that union shall
send to him, in such manner and form as he may require—
(a)
a copy of the rules of the union,
(b)
a list of its officers, and
(c)
the address of its head or main office.
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(2)
The information required to be sent under subsection (1) must be
accompanied by any fee prescribed for the purpose under section 108.
(3)
The information must be sent—
(a)
before the end of the period of six weeks beginning with the
date on which the instrument of amalgamation takes effect, or
45

Employment Relations Bill
Part 5 — The Certification Officer
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(b)
if the Certification Officer considers that it is not reasonably
practicable for the amalgamated union to send it in that period,
before the end of such longer period, beginning with that date,
as he may specify to the amalgamated union.
(4)
If any of subsections (1) to (3) are not complied with by the
5
amalgamated union, the Certification Officer shall remove its name
from the list of trade unions.”
(3)
In section 133(2) of the 1992 Act (modifications of Chapter 7 of Part 1 in its
application to amalgamations of unincorporated employers’ associations)—
(a)
omit “and” at the end of paragraph (b) and after that paragraph insert—
10
“(ba)
as if the references in sections 101A and 101B to the list
of trade unions were to the list of employers’
associations, and”; and
(b)
in paragraph (c), after “101(3)” insert “, 101A(3) and (4)”.
(4)
In section 298 of that Act (definitions for the purposes of the Act) at the
15
appropriate place insert—

““certificate of independence” means a certificate issued under—
(a)
section 6(6), or
(b)
section 101A(4);”
(5)
In section 299 of that Act (index of defined terms), at the appropriate place
20
insert—

“certificate of independence
section 298”.

(6)
In each of paragraphs 6, 35(4)(a), 44(4)(a), 60(4), 134(1)(b) and 138 of Schedule
A1 to that Act (requirements for union to be independent) for the words
25
“under section 6 that it is independent” substitute “of independence”.
38
Restriction of grounds of appeal from Certification Officer
(1)
In section 9 of the 1992 Act (appeal against decision of Certification Officer
relating to the list of trade unions or a certificate of independence)—
(a)
at the end of each of subsections (1) and (2), insert “on any appealable
30
question”;
(b)
omit subsection (3); and
(c)
in subsection (4), for “The rights of appeal conferred by this section
extend to any question of fact or law” substitute “For the purposes of
this section, an appealable question is any question of law”.
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(2)
In section 126 of the 1992 Act (appeal against decision of Certification Officer
relating to the list of employers’ associations)—
(a)
at the end of subsection (1), insert “on any appealable question”;
(b)
omit subsection (2); and
(c)
in subsection (3), for “The right of appeal conferred by this section
40
extend to any question of fact or law” substitute “For the purposes of
this section, an appealable question is any question of law”.

Employment Relations Bill
Part 6 — Miscellaneous
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Part 6
Miscellaneous
39
Additional case in which election for president of union not required
(1)
Section 46 of the 1992 Act (requirement to hold elections for certain positions
in trade unions) is amended as follows.
5
(2)
In subsection (2), omit the words after paragraph (d).
(3)
After subsection (4) insert—
“(4A)
This Chapter also does not apply to the position of president if—
(a)
the holder of that position was elected or appointed to it in
accordance with the rules of the union,
10
(b)
at the time of his election or appointment as president he held a
position mentioned in paragraph (a), (b) or (d) of subsection (2)
by virtue of having been elected to it at a qualifying election,
(c)
it is no more than five years since—
(i)
he was elected, or re-elected, to the position mentioned
15
in paragraph (b) which he held at the time of his election
or appointment as president, or
(ii)
he was elected to another position of a kind mentioned
in that paragraph at a qualifying election held after his
election or appointment as president of the union, and
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(d)
he has, at all times since his election or appointment as
president, held a position mentioned in paragraph (a), (b) or (d)
of subsection (2) by virtue of having been elected to it at a
qualifying election.”
(4)
In subsection (5), at the beginning, insert “In subsection (4)”.
25
(5)
After subsection (5) insert—
“(5A)
In subsection (4A) “qualifying election” means an election satisfying
the requirements of this Chapter.
(5B)
The “requirements of this Chapter” referred to in subsections (1) and
(5A) are those set out in sections 47 to 52 below.”
30
40
Removal of rule preventing appointment of body corporate as auditor
(1)
In section 34(5) of the 1992 Act (persons not to act as auditor of a trade union),
omit paragraph (c).
(2)
In section 36 of that Act (auditor’s report), after subsection (1) insert—
“(1A)
The report shall state the names of, and be signed by, the auditor or
35
auditors.”
(3)
After subsection (4) of that section add—
“(5)
Any reference in this section to signature by an auditor is, where the
office of auditor is held by a body corporate or partnership, to signature
in the name of the body corporate or partnership by an individual
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authorised to sign on its behalf.”

Employment Relations Bill
Part 6 — Miscellaneous
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(4)
In section 37 of that Act (rights of auditors), after subsection (3) add—
“(4)
In the case of an auditor which is a body corporate or partnership, its
right to attend or be heard at a meeting is exercisable by an individual
authorised by it to act as its representative at the meeting.”
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Means of voting in ballots and elections
5
(1)
The Secretary of State may by order provide, in relation to any description of
ballot or election authorised or required by the 1992 Act, that any ballot or
election of that description is to be conducted by such one or more permissible
means as the responsible person determines.
(2)
A “permissible means” is a means of voting that the order provides is
10
permissible for that description of ballot or election.
(3)
“The responsible person” is a person specified, or of a description specified, by
the order.
(4)
An order under this section may—
(a)
include provision about the determinations that may be made by the
15
responsible person, including provision requiring specified factors to
be taken into account, or specified criteria to be applied, in making a
determination;
(b)
allow the determination of different means of voting for voters in
different circumstances;
20
(c)
allow a determination to be such that voters have a choice of means of
voting.
(5)
The means that an order specifies as permissible means must, in the case of any
description of ballot or election, include (or consist of) postal voting.
(6)
An order under this section may—
25
(a)
include supplemental, incidental and consequential provisions;
(b)
make different provision for different cases or circumstances.
(7)
An order under this section may—
(a)
modify the provisions of the 1992 Act;
(b)
exclude or apply (with or without modifications) any provision of that
30
Act;
(c)
make provision as respects any ballot or election conducted by
specified means which is similar to any provision of that Act relating to
ballots or elections.
(8)
The power to make an order under this section is exercisable by statutory
35
instrument.
(9)
No order may be made under this section unless a draft of the order has been
laid before Parliament and approved by a resolution of each House.
(10)
The Secretary of State shall not make an order under this section which
provides that a means of voting is permissible for a description of ballot or
40
election unless he considers—
(a)
that a ballot or election of that description conducted by that means
could, if particular conditions were satisfied, meet the required
standard; and