Other rights of individuals

Clause 14 and Schedule 5: Unfair dismissal of striking workers

186.     Employees who take industrial action are in breach of their contracts of employment and can be lawfully dismissed. However, the law currently specifies the following exceptions to that rule where employees so dismissed have grounds to apply to employment tribunals for unfair dismissal:

• under section 237 of the 1992 Act, an employee has no right to complain of unfair dismissal if at the time of dismissal he is taking part in unofficial industrial action, unless it is shown that the reason or principal reason for dismissal or selection for dismissal was one of those specified in sections 99(1) to (3), 100, 101A(d) or 103 of the 1996 Act (dismissal in maternity, health and safety and employee representative cases) or 103A (making a protected disclosure - not yet in force); and

• under section 238 of the 1992 Act, an employee who takes official strike or other industrial action has a right to complain of unfair dismissal if one or more relevant employees of the same employer have not been dismissed, or if another employee has been offered re-engagement within three months of dismissal and that the complainant has not been offered re-engagement. In other words, an employee has a right to complain of unfair dismissal if the employer dismisses selectively (although such selective dismissal is not in itself a ground for unfair dismissal proceedings).

187.     Clause 14 gives effect to Schedule 5, which allows employees who take or have taken industrial action to complain of unfair dismissal in specified, additional circumstances, in line with the Government's proposal in Chapter 4 of Fairness at Work to extend the protection of those who take lawfully organised official industrial action. It does this by inserting a new section 238A after section 238 of the 1992 Act. The new provisions do not apply to unofficial industrial action, which is dealt with in section 237 of the 1992 Act.

188.     New section 238A has the effect that an employee who takes part in "protected" industrial action, and to whom one of the following circumstances applies, will be regarded as having been unfairly dismissed. The circumstances are:

• if the dismissal takes place within a period of eight weeks beginning with the first day on which any employee involved in the industrial action took such action, whether or nor at the date of dismissal the employee is still engaged in such action;

• if the dismissal takes place after the period of eight weeks has elapsed, but the employee had ceased industrial action before the eight week period ended; or

• if the employee has failed to end the industrial action before the eight week period elapsed and the employer has not followed all reasonable procedural steps to resolve the dispute.

"Protected" industrial action refers to action which the employee is induced to commit by his union, provided that the union's action in doing so is protected under section 219 of the Act from liability in proceedings in tort for inducement to break, or interfere, with contracts.

189.     New section 238A(6) sets out the following factors which the tribunal should particularly take into account when assessing whether employers have taken reasonable procedural steps to resolve the dispute:

• whether the employer or the union had followed agreed procedures to resolve the dispute;

• whether the employer or the union had offered or agreed to commence or re-open negotiations after action had begun; and

• whether the employer or the union had unreasonably refused to involve a third party (in practice this is likely to be ACAS) in helping resolve the dispute through conciliation or mediation. (Mediators are third parties who make non-binding recommendations to help resolve disputes. In contrast, arbitrators can make binding recommendations. For the purposes of new section 238A, mediators must confine their recommendations to procedural matters only.)

     190.     New section 238A(7) has the effect that in judging whether an employer had taken such "reasonable steps" the tribunal should not become involved in judging the merits of the dispute.

191.     New section 238A(8) deals with circumstances where a union repudiates industrial action during the course of the dispute, thereby changing the status of the industrial action from official to unofficial. It provides that if employees continue to take industrial action beyond the day following the union's repudiation, then they lose their entitlement to bring an action for unfair dismissal under the clause. So, for example, if the union repudiated the action on a Monday, the entitlement would be lost if the employees took action on or after the following Wednesday.

192.     Paragraph 4 of the Schedule extends the existing coverage of section 239 of the 1992 Act, which deals with supplementary provisions relating to unfair dismissal, to ensure that the new rights under new section 238A are to be construed as one with Part X of the 1996 Act (unfair dismissals). However, unlike the general position under Part X of that Act, employees are not to be required to satisfy any condition of length of service; nor is there to be any upper age limit in order to qualify for the new right to bring a complaint.

193.     Sub-paragraph (5) has the effect that tribunals may consider applications for unfair dismissal under new section 238A while industrial action is still proceeding, but may not consider applications for re-instatement or re-engagement until the end of the dispute. It also allows provision to be made by regulations under section 7 of the Employment Tribunals Act 1996 to require tribunals to carry out pre-hearing reviews in specified circumstances, and to enable or require tribunals to adjourn cases in specified circumstances. It is envisaged that this power will be used to require pre-hearing reviews in all cases where the grounds for the claim fall under new section 238A and to require tribunals to adjourn such proceedings where they become aware that the courts are considering actions brought by the employer or others challenging the legitimacy of the union's organisation of the industrial action in question.

194.     Paragraph 5 makes consequential amendments to section 105 of the 1996 Act, regarding the right not to be unfairly dismissed by means of selective redundancy, to take account of the new rights under new section 238A. The amended section 105 ensures that an employee cannot be fairly dismissed by selective redundancy if he is selected for a reason mentioned in new section 238A(2).

Clause 15: Collective agreements: detriment and dismissal

195.     This clause provides powers for the Secretary of State to make regulations subject to the affirmative resolution procedure to protect workers from detriment and dismissal arising from a refusal to enter into a individual contract which would replace a collective agreement which would otherwise apply.

Clause 16: Agreement to exclude dismissal rights

196.     Section 197(1) of the 1996 Act currently provides that workers on fixed-term contracts lasting one year or more may, by written agreement before their contract expires, waive their rights to claim unfair dismissal arising from a failure to renew the contract (dismissal for these purposes includes failure to renew the contract). This is an exception to the usual position whereby, for their own protection, employees are not able to waive statutory employment rights. Section 197(2) provides that this waiver provision does not prevent a shop or betting worker from claiming unfair dismissal rights where the reason for the dismissal is refusal to work on Sundays. Dismissal for that reason is regarded as automatically unfair under that Act. Subsection (1) amends section 197 so as to remove the ability of anyone on fixed term contracts to waive unfair dismissal rights, and repeals section 197(2), which is therefore no longer necessary.

197.     Subsection (2) makes consequential amendments to provisions in the 1996 Act which deal with employees' rights not to suffer detriment for other specified reasons for which dismissal is also regarded as automatically unfair. Like section 197(2), these provisions provide a remedy where employees are dismissed for these specified reasons but have waived their rights to claim unfair dismissal. Rather than disapplying the waiver as in section 197(2), these provisions enable workers to complain of detriment in these circumstances to an employment tribunal, although detriment otherwise does not include dismissal. Once section 197(1) is repealed, these special provisions will become unnecessary since workers will not be able to waive their right to complain of unfair dismissal, and subsection (2) repeals them.

The reasons for which dismissal is regarded as automatically unfair and to which subsection 2 applies are reasons connected with the worker's actions in relation to health and safety (section 44); as a trustee of an occupational pension scheme (section 46); as an employee representative (section 47); in exercising the right to take time off for study or training (section 47A); or in making a protected disclosure within the meaning of the Public Interest Disclosure Act 1998 (section 47B).

198.     Subsections (3), (4) and (5) make equivalent consequential amendments to similar provisions on detriment in respect of working time in section 45A of the 1996 Act, in section 23(4) of the National Minimum Wage Act 1998 and, if it receives Royal Assent, in paragraph 1 of Schedule 3 to the Tax Credits Bill which is currently before Parliament.

Clauses 17-19: Part-time work

199.     Clause 17 requires the Secretary of State to make regulations to ensure that part-time workers receive no less favourable treatment than full-time workers, as provided in the EU Directive on Part-Time Work (Council Directive 97/81/EC). The Directive was brought forward under the Agreement on Social Policy to adopt as Community law a Framework Agreement between the European social partners. (These are three federations consisting of national organisations representing respectively employers, trade unions and companies with public ownership or public interest in each Member State. The CBI and TUC are both members of their appropriate groups.) It aims to remove discrimination against part-time workers and improve the quality of part-time work. In Chapter 5 of Fairness at Work, the Government welcomed the Directive and said it would implement the Directive before April 2000. This provision gives the Secretary of State the powers to ensure that all aspects of the Directive and the Framework Agreement are fully implemented, together with related matters.

200.     This power is necessary because Directives which implement Framework Agreements cannot, by the terms of the Agreement on Social Policy, cover pay. However, in relation to part-time workers, the Government believes pay should be covered at the same time as other employment conditions. The powers under the European Communities Act 1972 which are usually used to implement EU Directives are not sufficiently wide to go beyond the scope of the Directive in this way, so the clause provides powers to do this.

201.     The regulations will primarily address discrimination in non-statutory terms and conditions, as statutory employment rights in the UK do not discriminate against part time workers. The powers are widely drawn and the Government intends to consult fully on how they should be used, by discussing with interested parties and publishing draft regulations for comment. The Government's current expectation is that the regulations will draw on precedents under current legislation relating to employment rights and non-discrimination. Clause 33 provides that the regulations will be subject to affirmative resolution procedure.

202.     Clause 17(2) provides power to specify in the regulations definitions of part-time and full-time workers. There is currently no standard definition of a part-time or full time worker, and it is envisaged that whatever is provided in the regulations in this respect will operate, in effect, as a default provision. This is because appropriate definitions may vary between employers or between different sectors of industry; and under clause 17(3)(g) provision may be made whereby employers and workers will be able to reach agreement, for example in a collective or workforce agreement, as to what for them constitutes full and part time employment for the purposes of the regulations.

203.     An issue for consultation would be whether there are circumstances which need to be specified under clause 17(2)(c) as giving rise to less favourable or equal treatment in order to remove doubt and prevent unnecessary litigation. Clause 17(2)(d) provides power to exclude specifically certain classes of worker who would otherwise be covered by the definition. One possibility would be casual workers, which the Directive allows to be excluded in specified circumstances. Again, this would be a matter for consultation.

204.     Clause 17(3)(a) allows the Secretary of State to specify that any disputes arising out of this legislation may only be heard at employment tribunals, and that appeals will go to the Employment Appeal Tribunal. The Government intends that this will be the normal route for disputes.

205.     Clauses 17(3)(b) and (3)(c) provide power for the Secretary of State to create criminal offences. If it is exercised, the use of this power, which will be subject to consultation, is likely to be strictly limited. An existing example of such an offence is in subsection 57(4) of the Disability Discrimination Act 1995, which makes it an offence, punishable by a fine, knowingly or recklessly to make a false or misleading statement which causes another person to discriminate unlawfully.

206.     Clause 17(3)(e) would allow regulations to be made setting up a questionnaire procedure similar to that which is established under section 56 of the Disability Discrimination Act 1995 to enable those who consider that they may have been discriminated against to require information from their employer in order in particular to enable them to decide whether or not to proceed with a claim.

207.     The social partners intended aspects of the Framework Agreement to be adaptable to the specific conditions of sectors of the economy or individual companies. The Government wishes to keep this flexibility in these regulations. Clause 17(3)(g) allows the Secretary of State to set out the extent of that flexibility in the regulations, along with the circumstances in which different provision can be agreed. For example, the regulations could provide that different provisions could be agreed through collective or workforce agreements.

208.     Clause 17(4) gives power to make whatever provision (in addition to those provided for under subsections (2) and (3)) may be necessary to implement the Directive or the Framework Agreement, or to cover other matters (such as pay) in the same way.

209.     Clause 18 provides for the Secretary of State to issue Codes of Practice relating to part-time work. This will enable implementation of Clause 5 of the Framework Agreement, which does not impose any legal obligations on Member States or employers, but provides (amongst other things) for the encouragement of more and better quality part-time jobs by setting out principles which employers should seek to adopt. As with other statutory Codes of Practice, breach of such a Code would not in itself give rise to proceedings but the provisions of such a Code will be taken into account by a tribunal if it considers it to be relevant.

210.     A Code of Practice may deal with matters specific to the UK labour market which will help improve opportunities for and treatment of part-time workers. For example, it may include factors to be considered in deciding whether a job can be done part-time; examples of ways to encourage part-time work at senior levels in a company; and advice on informing workers of available part-time opportunities. The Government has made a commitment to consult widely on this Code.

211.     Clause 19 sets out the procedure by which the Secretary of State can issue or revise a Code. The Secretary of State must consult on any draft Code or revision, and take any responses into account before introducing the Code to Parliament. The draft Code or revision must be laid before both Houses of Parliament, and both Houses must approve the draft by resolution before the Secretary of State can issue the Code.

Clause 20: Power to confer rights on individuals

212.     The employment rights legislation has developed piecemeal over a period of many years. While some aspects - such as the right not to have unauthorised deductions made from wages - extend to a relatively broad description of workers, most are currently restricted to employees as narrowly defined, ie to workers engaged under a contract of employment. Whether or not a worker is engaged under such a contract is not always an easy question to answer, however. This is because it is a common law question of mixed fact and law which in the event of a dispute can be definitively determined only by a court or tribunal. No single factor is conclusive; all relevant circumstances must be taken into account.

213.     The Government considers it desirable to clarify the coverage of the legislation and to reflect better the considerable diversity of working relationships in the modern labour market. Currently, significant numbers of economically active individuals - including for example many home workers and agency workers - are either uncertain whether they qualify or else clearly fail to qualify, for most if not all employment rights. Some work providers offer jobs on the basis of contracts under which the workers, although acting in a capacity closely analogous to that of employees and not genuinely in business on their own account, are technically self-employed or of indeterminate status according to the established common law criteria, and are thus effectively deprived of the rights in question.

214.     Certain descriptions of individuals are explicitly excluded from exercising some or all of the rights, although not on a consistent basis, and others - such as members of the clergy - are incapable of qualifying owing to the nature of their appointment.

215.     Clause 20(2) gives the Secretary of State the power, by order subject to the affirmative resolution procedure (under clause 33), to extend to individuals who do not at present enjoy them employment rights under the 1992 and 1996 Acts, this Act and any instrument made under section 2(2) of the European Communities Act 1972. The Government envisages using this new power to ensure that all workers other than the genuinely self-employed enjoy the minimum standards of protection that the legislation is intended to provide, and that none are excluded simply because of technicalities relating to the type of contract or other arrangement under which they are engaged.

CAC, ACAS, Commissioners and Certification Officer

Clauses 21 and 22: Central Arbitration Committee

216.     The Central Arbitration Committee (CAC) is an independent public body established by the Employment Protection Act 1975. Its constitution is laid down in sections 259-265 of the 1992 Act. The CAC's functions are currently to determine statutory claims from trade unions relating to the disclosure of information for collective bargaining purposes and to provide voluntary arbitration in trade disputes between employers and trade unions. In the three years from 1995 to 1997, the CAC received 70 applications to exercise its functions concerning the disclosure of information for collective bargaining purposes and no requests to arbitrate in trade disputes. The CAC currently has a part-time Chairman, three Deputy Chairmen and eight panel members, representing employer and employee organisations. The current Chairman, Sir John Wood, has been Chairman since the CAC's inception in 1976.

217.     Clause 1 and Schedule 1 of this Bill confer new functions on the CAC to administer the statutory trade union recognition and derecognition scheme and determine cases brought under it.

218.     The purpose of these clauses is to revise some of the statutory provisions relating to the CAC to enable it to carry out its new functions. Clause 21 amends the procedures for the appointment of members to the CAC and clause 22 provides for amendments to the proceedings of the CAC.

Clause 21: CAC: members

219.     The appointment of CAC members is covered by section 260 of the 1992 Act. Clause 21 contains new provisions to replace the first three subsections of section 260. The clause gives the Secretary of State the power to appoint all members of the CAC. It also enables the Secretary of State to appoint one of them as chairman, and to appoint one or more members as deputy chairmen. In carrying out these functions, the Secretary of State must consult ACAS, and may consult others as he sees fit. Currently, ACAS nominates all members of the Committee, apart from the chairman.

220.     The clause also provides that all the persons appointed to the Committee must be experienced in industrial relations and that the Secretary of State must also ensure that, among the CAC's membership, there are both individuals experienced as representatives of employers and as representatives of workers.

Clause 22: CAC: proceedings

221.     The clause sets out the way in which the CAC is to organise its proceedings when carrying out its functions under the recognition and derecognition scheme. It does this by inserting additional provisions into section 263 of the 1992 Act. It leaves unaffected the way in which the CAC organises proceedings in relation to its two current functions.

Clause 23: ACAS: General duty

222.     The Advisory, Conciliation and Arbitration Service (ACAS) was established under the Employment Protection Act 1975. It is an executive non-departmental public body with about 700 staff. ACAS provides conciliation in collective trade disputes and most categories of dispute about individual employment rights. The Service appoints mediators and arbitrators to make recommendations to resolve disputes. It also provides advice and information in a wide range of ways to improve industrial relations and help prevent disputes from arising.

223.     ACAS's general duty is found in section 209 of the 1992 Act. This duty was last amended by the Trade Union Reform and Employment Rights Act 1993. Among the changes made by the 1993 Act were the repeal of the explicit reference in ACAS's general duty to the promotion of collective bargaining and the insertion of a particular requirement on ACAS to give priority to its work on dispute resolution. Clause 23 repeals this latter requirement leaving section 209 as amended to read: "It is the general duty of ACAS to promote the improvement of industrial relations".

Clause 24: Abolition of Commissioners

224.     Subsection (1) abolishes two public offices: the Commissioner for the Rights of Trade Union Members (CRTUM) and the Commissioner for Protection Against Unlawful Industrial Action (CPAUIA). The CRTUM was established under the Employment Act 1988 and his main function is to provide material assistance to any trade union member who is taking, or contemplating taking, certain legal proceedings against his union or against an official of his union. The CPAUIA was established under the Trade Union Reform and Employment Rights Act 1993 and his main function is to provide material assistance to any individual who is taking, or contemplating taking, legal proceedings against a trade union whose unlawful organisation of industrial action deprives or is likely to deprive the individual of goods and services. For both bodies, assistance usually takes the form of paying for legal advice or meeting legal costs. Both Commissioners are independent of Government and cannot be directed by Ministers to assist, or not to assist, any particular application. The legal provisions establishing both offices have been incorporated into the 1992 Act.

225.     Both Commissioners are part-time appointments currently held by the same individual. The Commissioners are supported by three staff and work from offices based in Warrington. Since its inception, the CRTUM has assisted, on average, ten applications a year and the CPAUIA has assisted one application to date.

226.     Subsection (2) repeals the sections of the 1992 Act which set out the duties of the CRTUM and the CPAUIA and which set out administrative provisions by which they operate. Subsection (3) removes the reference to the CRTUM from the standard form of words which is required to be included in the financial position statement which trade unions are required to provide to their members each year under section 32A of the 1992 Act.

Clause 25 and Schedule 6: The Certification Officer

227.     The Certification Officer (CO) is an independent statutory officer established under the Employment Protection Act 1975. His current functions include:

• maintaining lists of trade unions and employers' associations and ensuring that both types of body comply with statutory requirements concerning their membership and accounting records;

• the auditing of accounts;

• annual returns;

• financial affairs;

• political funds; and

• procedures for amalgamations and transfers of engagements.

He also determines whether unions meet the statutory test of independence and deals with complaints by union members concerning alleged breaches by unions of their statutory duties to elect senior officers. In certain of these areas, he has powers to issue declarations or make orders requiring unions to remedy any failure to comply with their statutory obligations.

228.     Clause 25 gives effect to Schedule 6, which amends the statutory powers of the Certification Officer, as set out in the 1992 Act. The overall effect is to widen the scope for trade union members to make complaints to the CO of alleged breaches of trade union law or trade union rules, thereby enlarging the CO's role as an alternative to the courts as a means to resolve disputes. It achieves this by giving the CO order-making powers in areas of trade union law where he makes only declarations at present, and by extending his powers to make declarations and orders into areas where he has no competence to hear complaints and issue such orders at present. The clause and Schedule do not alter the CO's powers in respect of employers' associations.

229.     Paragraphs 2-5 of the Schedule amend the powers conferred upon the CO and the court by sections 24, 24A, 25 and 26 of the 1992 Act. Section 24 places requirements on unions to compile and maintain a register of the names and addresses of their members. Section 24A requires unions to place a duty of confidentiality on the scrutineers and independent persons they appoint to oversee an election, political fund or merger ballots. This duty requires scrutineers and independent persons not to disclose the names or addresses of members on union registers, except under certain specified circumstances. Sections 25 and 26 specify how individuals can seek a remedy from the CO or the courts respectively for alleged breaches of these requirements.

230.     Paragraph 2 amends section 24 by repealing provisions which allow a complainant to make an application to the court after he has made an application on the same matter to the CO. This closes off a route whereby an applicant could make two parallel applications to the CO and to the court. Paragraph 3 has the same effect in relation to cases brought to the CO under section 24A.

231.     Paragraph 4 amends section 25 by:

• requiring the CO in all cases to give an opportunity to both the applicant and the trade union to be heard;

• requiring the CO to make an enforcement order (unless he considers it inappropriate to do so) on the union to remedy a declared failure to comply with the law on membership records and/or to abstain from acts which might lead to a future recurrence of same kind of failure;

• enabling the CO's enforcement order to be enforced in the same way as an order of the court;

• enabling any member of the union who was a member at the time of the declared failure to apply to the court to force the union to comply with the CO's order;

• enabling the CO's declaration to be relied upon as if it were a declaration of the court;

• preventing parallel proceedings by an applicant to the CO after he has applied to the courts; and

• requiring the CO, when hearing complaints, to take account of the outcome of such cases as are brought to his attention where the court has already heard a complaint by a different person relating to the same alleged failure by the union.

232.     Paragraph 5 amends section 26 by:

• preventing parallel proceedings by an applicant to the court after he has already applied to the CO;

• repealing the reference to the conduct of parallel proceedings in subsection (2); and

• requiring the court, when hearing complaints, to take account of the outcome of such cases as are brought to the court's attention where the CO has already heard a complaint by a different person relating to the same alleged failure by the union.

233.     Paragraph 6 amends section 31 of the 1992 Act, which specifies the remedy available to a union member if a union fails to provide him with access to the union's accounting records as required in section 30 of that Act. The amendments:

• give powers to the CO to make such enquiries as he sees fit about a union member's complaint and enable the CO to ask interested parties to supply him with information by specified dates. The CO can nonetheless proceed to determine complaints in cases where information is not supplied on time;

• require the CO in all cases to give an opportunity to both the applicant and the trade union to be heard;

• give powers to the CO to issue orders, as appropriate, to ensure the applicant can inspect the records in the company of an accountant and to obtain copies of records;

• specify that the CO's orders may be enforced in the same way as a court order;

• specify that the CO shall determine cases within six months, as far as practicable; and

• prevent the applicant from taking parallel proceedings regarding the same complaint to both the court or the CO.

234.     Paragraph 7 amends section 45C of the 1992 Act, which provides a remedy for a trade union member who alleges that his union has failed to comply with its duty under section 45B to ensure that disqualified individuals do not hold certain senior positions in the union if they have been convicted of certain offences relating to the financial affairs of the union. The disqualification period is for five or ten years, depending on the nature of the offence. Currently, the CO can hear complaints and issue declarations but cannot issue orders. The amendments:

• give powers to the CO to make such enquiries as he sees fit about a union member's complaint and enable the CO to ask interested parties to supply him with information by specified dates. The CO can nonetheless proceed to determine complaints in cases where information is not supplied on time;

• give powers to the CO to issue orders, as appropriate, imposing requirements on the union to remedy a declared failure;

• require the CO in all cases to give an opportunity to both the applicant and the trade union to be heard;

• specify that the CO's orders may be enforced in the same way as a court order;

• enable the CO's declaration to be relied upon as if it were a declaration of the court;

• prevent the applicant from taking parallel proceedings regarding the same complaint to both the court or the CO; and

• ensure that, where the court has heard a case relating to a particular alleged failure, the CO must take the court's judgements and decisions into account when hearing an application by a different person in relation to the same alleged failure. They also ensure that the court must take into account the decisions and observations of the CO in the reverse situation where the CO first heard a case.

235.     Paragraph 8 inserts a new section 45D into the 1992 Act which provides that the parties to a case considered by the CO under sections 25, 31 or 45C of Chapter III of the 1992 Act can appeal to the Employment Appeal Tribunal (EAT) against the CO's decision in that case. The appeal relates to questions of law only, and not to questions of fact. In effect, the clause means that the EAT will be the body to which appeals can be made against CO decisions in cases relating to a union's duties to maintain accurate membership records; to give access to its accounting records; and to ensure that disqualified individuals do not hold certain senior positions in the union.

236.     Paragraphs 9-12 amend powers assigned to the CO and the court under sections 54, 55 and 56 of the 1992 Act to hear complaints about alleged failures by unions to comply with the law on elections for certain senior positions in unions. The law on elections is contained in Chapter IV of the 1992 Act and covers, among other things, elections to a union's principal executive committee and to the positions of general secretary and president where such post holders can vote at meetings of a principal executive committee. Currently, the CO can hear complaints and issue declarations but cannot issue orders.

237.     Paragraph 9 amends section 54 by repealing the provision that the making of an application to the CO does not prevent an individual making an application to the court in relation to the same matter.

238.     Paragraph 10 amends section 55 by:

• requiring the CO in all cases to give an opportunity to both the applicant and the trade union to be heard;

• requiring the CO to make an enforcement order (unless he considers it inappropriate to do so) on the union to remedy a declared failure to comply with the law on elections and/or to abstain from acts which might lead to a future recurrence of the same kind of failure. The CO's order may also require the union to re-run the election under conditions which the CO is empowered to stipulate;

• enabling the CO's enforcement order to be enforced in the same way as an order of the court;

• enabling any member of the union who was a member at the time the order was made or any candidate in the election in question to apply to the courts to force the union to comply with the CO's order;

• enabling the CO's declaration to be relied upon as if it were a declaration of the court;

• preventing parallel proceedings by an applicant to the CO after he has applied to the court; and

• requiring the CO, when hearing complaints, to take account of the outcome of such cases as are brought to his attention where the court has already heard a complaint by a different person relating to the same alleged failure by the union.

239.     Paragraph 11 amends section 56 by:

• preventing parallel proceedings by an applicant in the court after he has applied to the CO; and

• requiring the court, when hearing complaints, to take account of the outcome of such cases as are brought to its attention where the CO has already heard a complaint by a different person relating to the same alleged failure by the union.

240.     Paragraph 12 adds a new section 56A to the 1992 Act which provides that the parties to a case considered by the CO under section 55 can appeal to the EAT against the CO's decision in that case. The appeal relates to questions of law only, and not to questions of fact.

241.     Paragraph 13 gives new powers to the CO to hear complaints by a union member relating to the use of his union's funds for certain political objects where the union does not have a political fund. Section 71 of the 1992 Act makes it unlawful for a union to spend money from its general fund on the political objects set out in section 72. Such expenditure may be financed only from a properly established political fund. Paragraph 13 inserts a new section 72A into the 1992 Act which:

• gives powers to the CO to make such enquiries as he sees fit about a union member's complaint and enable the CO to ask interested parties to supply him with information by specified dates. The CO can nonetheless proceed to determine complaints in cases where information is not supplied on time;

• gives powers to the CO to make or refuse declarations relating to the alleged breach, giving reasons for his decision in writing. If he makes a declaration, the CO must specify which provisions of section 71 have been breached and which sums of money were involved. When considering complaints, the CO may make such enquiries as he thinks fit and he may make written observations about the cases;

• requires the CO, where he is satisfied the union has or will take steps to remedy its failure to comply with the law, to specify in the declaration the steps taken by a union;

• gives powers to the CO to issue orders, as appropriate, imposing requirements on the union to remedy the breach;

• requires the CO to give an opportunity to both the applicant and the trade union to be heard;

• enables any member of the union who was a member at the time when the CO's order was made to apply to the court to force the union to comply with the CO's order;

• provides that the CO's orders may be enforced in the same way as a court order;

• enables the CO's declaration to be relied upon as if it were a declaration of the court;

• provides that the CO shall determine cases within six months, as far as practicable;

• prevents parallel proceedings by an applicant to the CO after he has applied to the court, and vice versa.

242.     Paragraphs 14 and 15 extend the CO's powers under sections 79 and 80 of the 1992 Act when hearing complaints about an alleged failure by a union to comply with the rules relating to political fund ballots. The law requires such ballots in order to establish a political fund. Once a fund is established, further ballots on its retention must be held, at least every ten years. Unions must first seek the approval of the CO for the rules under which it proposes to conduct the ballot. The CO can already make or refuse to make declarations for alleged failures to comply with these approved rules when holding or planning to hold ballots.

243.     Paragraph 14 amends section 79 by repealing the provision that the making of an application to the CO does not prevent an individual making an application to the court in relation to the same matter.

244.     Paragraph 15 amends section 80 by:

• requiring the CO in all cases to give an opportunity to both the applicant and the trade union to be heard;

• requiring the CO to make an enforcement order on the union to remedy a declared failure to comply with the law on political fund ballots elections and/or to abstain from acts which might lead to a future recurrence of the same kind of failure, unless the CO considers such an order to be inappropriate. The CO's order may also require the union to re-run a ballot;

• enabling the CO's enforcement order to be enforced in the same way as an order of the court;

• enabling any member of the union who was a member at the time of the order was made or any candidate in the election in question to apply to the court to force the union to comply with the CO's order;

• enabling the CO's declaration to be relied upon as if it were a declaration of the court;

• preventing parallel proceedings by an applicant to the CO after he has applied to the court; and

• requiring the CO, when hearing complaints, to take account of the outcome of such cases as are brought to his attention where the court has already heard a complaint by a different person relating to the same alleged failure by the union.

245.     Paragraph 16 amends section 81, which deals with the entitlement to apply to the courts for declarations relating to failures by unions to comply with political ballot rules. The amendment prevents applications to the court by a person who has already made an application to the CO about the same alleged failure. It also requires the court, when hearing complaints, to take account of the outcome of such cases as are brought to its attention where the CO has already heard a complaint by a different person relating to the same alleged failure by the union.

246.     Paragraph 17 amends section 82, which gives powers to the CO to determine complaints by union members about alleged breaches of statute relating to the political funds of unions. The amendments give powers to the CO to make such enquiries as he sees fit about a union member's complaint and enable the CO to ask interested parties to supply him with information by specified dates. The CO can nonetheless proceed to determine complaints in cases where information is not supplied on time.

247.     Paragraph 18 deals with the powers of the CO to hear complaints by union members that unions are in breach of their statute or rules in connection with gaining their members' approval for union amalgamations or transfers of undertakings. The statutory requirements in respect of these union mergers are set out in sections 99 to 103E of the 1992 Act. Section 103 of the 1992 Act gives the CO powers to hear and to make declarations and orders about complaints in this area. Paragraph 18 amends these powers by:

• giving powers to the CO to make such enquiries as he sees fit about a union member's complaint and enable the CO to ask interested parties to supply him with information by specified dates. The CO can nonetheless proceed to determine complaints in cases where information is not supplied on time;

• enabling the CO's declaration to be relied upon as if it were a declaration of the court;

• enabling any member of the union who was a member at the time of the order was made to apply to the courts to force the union to comply with the CO's order; and

• enabling the CO's enforcement order to be enforced in the same way as an order of the courts.

248.     Paragraph 19 adds a new Chapter VIIA to the 1992 Act which establishes an entitlement for trade union members to complain to the CO about certain alleged breaches of the rules of their trade unions. Currently, trade union members can complain to the court about such breaches, and this entitlement will continue. The effect of the paragraph therefore is to establish an alternative to the court as a means for trade union members to seek remedies in relation to certain alleged breaches of union rules. The new Chapter VIIA comprises three new sections: 108A, 108B and 108C.

249.     New section 108A specifies the circumstances under which a complaint can be made to the CO and gives the CO powers to make declarations after receiving such complaints. New subsection (2) provides that the alleged breach or threatened breach of union rules must relate to certain specified matters if a complaint is to be made to the CO, namely:

• the appointment or election of a person to any office in the union;

• the removal of a person from an office of the union;

• disciplinary proceedings by the union against a member of the union;

• the balloting of union members, other than industrial action ballots (as defined in new subsection (8));

• the constitution or proceedings of union executive committees and decision-making meetings (as defined in new subsections (9), (10) and (11)); and

• any other matter which the Secretary of State specifies by order subject to affirmative resolution procedure (under new subsection (12)).

250.     New subsection (3) restricts applicants to members of the union or individuals who were members at the time of the alleged breach or threatened breach. New subsection (4) provides that the CO cannot hear complaints about a breach of rules in respect of the dismissal or disciplining of any employee of the union. (The new section does not affect the entitlement of individuals employed by unions to make applications to employment tribunals alleging unfair dismissal or an infringement of other individual employment rights.)

251     New subsections (5) and (6) set out the timetable within which applications must be made to the CO. In cases where the internal complaints procedure of a union was not used, applications must be made within six months of the date of the alleged breach or threatened breach. In cases where the internal complaints procedure of a union was used within six months of the alleged breach, applications must be made to the CO within six months of the date on which the consideration of the complaint under the procedure ended or twelve months after the procedure was invoked whichever is the sooner.

252.     New subsection (13) prevents a subsequent parallel application to the court by someone who has already applied to the CO about the same alleged breach, but does not affect the right to appeal to the court against a decision of the CO. Similarly, new subsection (14) prevents a parallel application being made to the CO by someone who has already applied to the court in respect of the same alleged breach.

253.     New section 108B(1) empowers the CO to refuse to accept an application unless the applicant satisfies him that all reasonable steps have been taken to use any internal complaint procedures of the union to resolve the dispute.

254.     New section 108B(2) gives the CO the power to make, or refuse to make, declarations and requires the CO:

• to give an opportunity to the applicant and the union to be heard;

• to ensure that, as far as reasonably practicable, he determines cases within six months; and

• to give reasons for his decisions in writing.

255.     New section 108B(2) also enables the CO to make such enquiries as he sees fit about a union member's complaint, and under new section 108B(5) the CO may ask interested parties to supply him with information by specified dates. The CO can nonetheless proceed to determine complaints in cases where information is not supplied on time.

256.     New sections 108B(3) and 108B(4) give the CO the power to issue enforcement orders imposing requirements on the union to remedy the breach or withdraw the threat of a breach within a specified time period. Such an order may also require the union to take steps to ensure that the breach does not recur in the future.

257.      New section 108B(6) provides that the CO's declaration may be relied upon as if it were a declaration of the court and new section 108B(8) provides that an order by the CO may be enforced in the same way as a court order. New section 108B(7) enables any member of the union who was a member at the time when the CO's order was made to apply to the courts to force the union to comply with the CO's order.

258.     New section 108B(9) empowers the Secretary of State to make provision for declarations and orders of the CO in orders under the new section 108A(2) adding to the matters in respect of which applications may be made to the CO.

259.     New section 108C provides that the parties to a case considered by the CO under Chapter VIIA may appeal to the EAT against the CO's decision in that case. The appeal relates to questions of law only, and not to questions of fact.

260.     Paragraphs 20 and 21 of Schedule 6 concern employers' associations. They amend sections 132 and 133 of the 1992 Act, which deal with the use of funds for political purposes and the amalgamation of employers' associations, in order to leave unchanged the current arrangements whereby the CO hears complaints of alleged breaches of statute (which would otherwise be altered by the amendments to the provisions on trade unions, to which they currently cross-refer).

261.     Paragraph 22 amends the procedures which the CO is required to follow, as prescribed in section 256 of the 1992 Ac. Its effect is to provide that the CO will normally disclose the name of an applicant or complainant, unless there are good grounds for not doing so. (If an individual had made a complaint to the court, his name would always be revealed to the responding union.) The purpose of the amendment is to ensure that, in most cases, the identity of a complainant will be disclosed to the union, irrespective of whether the complaint had been made to the court or to the CO.