PART I continued CHAPTER V continued
(1) This section applies where a matter is under the rules of a trade union required or allowed to be submitted for determination or conciliation in accordance with the rules of the union, but a provision of the rules purporting to provide for that to be a person’s only remedy has no effect (or would have no effect if there were one).
(2) Notwithstanding anything in the rules of the union or in the practice of any court, if a member or former member of the union begins proceedings in a court with respect to a matter to which this section applies, then if—
(a) he has previously made a valid application to the union for the matter to be submitted for determination or conciliation in accordance with the union’s rules, and
(b) the court proceedings are begun after the end of the period of six months beginning with the day on which the union received the application,
the rules requiring or allowing the matter to be so submitted, and the fact that any relevant steps remain to be taken under the rules, shall be regarded for all purposes as irrelevant to any question whether the court proceedings should be dismissed, stayed or sisted, or adjourned.
(3) An application shall be deemed to be valid for the purposes of subsection (2)(a) unless the union informed the applicant, before the end of the period of 28 days beginning with the date on which the union received the application, of the respects in which the application contravened the requirements of the rules.
(4) If the court is satisfied that any delay in the taking of relevant steps under the rules is attributable to unreasonable conduct of the person who commenced the proceedings, it may treat the period specified in subsection (2)(b) as extended by such further period as it considers appropriate.
(5) In this section—
(a) references to the rules of a trade union include any arbitration or other agreement entered into in pursuance of a requirement imposed by or under the rules; and
(b) references to the relevant steps under the rules, in relation to any matter, include any steps falling to be taken in accordance with the rules for the purposes of or in connection with the determination or conciliation of the matter, or any appeal, review or reconsideration of any determination or award.
(6) This section does not affect any enactment or rule of law by virtue of which a court would apart from this section disregard any such rules of a trade union or any such fact as is mentioned in subsection (2).
(1) An individual who is or has been a member of a trade union has the right not to be unjustifiably disciplined by the union.
(2) For this purpose an individual is “disciplined” by a trade union if a determination is made, or purportedly made, under the rules of the union or by an official of the union or a number of persons including an official that—
(a) he should be expelled from the union or a branch or section of the union,
(b) he should pay a sum to the union, to a branch or section of the union or to any other person;
(c) sums tendered by him in respect of an obligation to pay subscriptions or other sums to the union, or to a branch or section of the union, should be treated as unpaid or paid for a different purpose,
(d) he should be deprived to any extent of, or of access to, any benefits, services or facilities which would otherwise be provided or made available to him by virtue of his membership of the union, or a branch or section of the union,
(e) another trade union, or a branch or section of it, should be encouraged or advised not to accept him as a member, or
(f) he should be subjected to some other detriment;
and whether an individual is “unjustifiably disciplined” shall be determined in accordance with section 65.
(3) Where a determination made in infringement of an individual’s right under this section requires the payment of a sum or the performance of an obligation, no person is entitled in any proceedings to rely on that determination for the purpose of recovering the sum or enforcing the obligation.
(4) Subject to that, the remedies for infringement of the right conferred by this section are as provided by sections 66 and 67, and not otherwise.
(5) The right not to be unjustifiably disciplined is in addition to (and not in substitution for) any right which exists apart from this section; and nothing in this section or sections 65 to 67 affects any remedy for infringement of any such right.
(1) An individual is unjustifiably disciplined by a trade union if the actual or supposed conduct which constitutes the reason, or one of the reasons, for disciplining him is—
(a) conduct to which this section applies, or
(b) something which is believed by the union to amount to such conduct;
but subject to subsection (6) (cases of bad faith in relation to assertion of wrongdoing).
(2) This section applies to conduct which consists in—
(a) failing to participate in or support a strike or other industrial action (whether by members of the union or by others), or indicating opposition to or a lack of support for such action;
(b) failing to contravene, for a purpose connected with such a strike or other industrial action, a requirement imposed on him by or under a contract of employment;
(c) asserting (whether by bringing proceedings or otherwise) that the union, any official or representative of it or a trustee of its property has contravened, or is proposing to contravene, a requirement which is, or is thought to be, imposed by or under the rules of the union or any other agreement or by or under any enactment (whenever passed) or any rule of law;
(d) encouraging or assisting a person—
(i) to perform an obligation imposed on him by a contract of employment, or
(ii) to make or attempt to vindicate any such assertion as is mentioned in paragraph (c); or
(e) contravening a requirement imposed by or in consequence of a determination which infringes the individual’s or another individual’s right not to be unjustifiably disciplined.
(3) This section applies to conduct which involves the Commissioner for the Rights of Trade Union Members or the Certification Officer being consulted or asked to provide advice or assistance with respect to any matter whatever, or which involves any person being consulted or asked to provide advice or assistance with respect to a matter which forms, or might form, the subject-matter of any such assertion as is mentioned in subsection (2)(c) above.
(4) This section also applies to conduct which consists in proposing to engage in, or doing anything preparatory or incidental to, conduct falling within subsection (2) or (3).
(5) This section does not apply to an act, omission or statement comprised in conduct falling within subsection (2), (3) or (4) above if it is shown that the act, omission or statement is one in respect of which individuals would be disciplined by the union irrespective of whether their acts, omissions or statements were in connection with conduct within subsection (2) or (3) above.
(6) An individual is not unjustifiably disciplined if it is shown—
(a) that the reason for disciplining him, or one of them, is that he made such an assertion as is mentioned in subsection (2)(c), or encouraged or assisted another person to make or attempt to vindicate such an assertion,
(b) that the assertion was false, and
(c) that he made the assertion, or encouraged or assisted another person to make or attempt to vindicate it, in the belief that it was false or otherwise in bad faith,
and that there was no other reason for disciplining him or that the only other reasons were reasons in respect of which he does not fall to be treated as unjustifiably disciplined.
(7) In this section—
“conduct” includes statements, acts and omissions;
“contract of employment”, in relation to an individual, includes any agreement between that individual and a person for whom he works or normally works; and
“representative”, in relation to a union, means a person acting or purporting to act—
in his capacity as a member of the union, or
on the instructions or advice of a person acting or purporting to act in that capacity or in the capacity of an official of the union.
(8) Where a person holds any office or employment under the Crown on terms which do not constitute a contract of employment between him and the Crown, those terms shall nevertheless be deemed to constitute such a contract for the purposes of this section.
(1) An individual who claims that he has been unjustifiably disciplined by a trade union may present a complaint against the union to an industrial tribunal.
(2) The tribunal shall not entertain such a complaint unless it is presented—
(a) before the end of the period of three months beginning with the date of the making of the determination claimed to infringe the right, or
(b) where the tribunal is satisfied—
(i) that it was not reasonably practicable for the complaint to be presented before the end of that period, or
(ii) that any delay in making the complaint is wholly or partly attributable to a reasonable attempt to appeal against the determination or to have it reconsidered or reviewed,
within such further period as the tribunal considers reasonable.
(3) Where the tribunal finds the complaint well-founded, it shall make a declaration to that effect.
(4) Where an individual who is, or is seeking to be, in employment to which section 174 applies (employment subject to union membership agreement) is refused membership of, or is expelled from, a union in pursuance of a determination which infringes his right not to be unjustifiably disciplined, he may not present a complaint under this section but the refusal or expulsion shall be regarded as unreasonable for the purposes of that section.
(1) An individual whose complaint under section 66 has been declared to be well-founded may make an application for one or both of the following—
(a) an award of compensation to be paid to him by the union;
(b) an order that the union pay him an amount equal to any sum which he has paid in pursuance of any such determination as is mentioned in section 64(2)(b).
(2) An application under this section shall be made to the Employment Appeal Tribunal if, when it is made—
(a) the determination infringing the applicant’s right not to be unjustifiably disciplined has not been revoked, or
(b) the union has failed to take all the steps necessary for securing the reversal of anything done for the purpose of giving effect to the determination;
and in any other case it shall be made to an industrial tribunal.
(3) An application under this section shall not be entertained if made before the end of the period of four weeks beginning with the date of the declaration or after the end of the period of six months beginning with that date.
(4) Where the Employment Appeal Tribunal or industrial tribunal is satisfied that it would be required by virtue of subsection (2) to dismiss the application, it may instead transfer it to the tribunal to which it should have been made; and an application so transferred shall be proceeded with as if it had been made in accordance with that subsection when originally made.
(5) The amount of compensation awarded shall, subject to the following provisions, be such as the Employment Appeal Tribunal or industrial tribunal considers just and equitable in all the circumstances.
(6) In determining the amount of compensation to be awarded, the same rule shall be applied concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law in England and Wales or Scotland.
(7) Where the Employment Appeal Tribunal or industrial tribunal finds that the infringement complained of was to any extent caused or contributed to by the action of the applicant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.
(8) The amount of compensation awarded against a trade union on an application under this section shall not exceed the aggregate of—
(a) an amount equal to 30 times the limit for the time being imposed by paragraph 8(1)(b) of Schedule 14 to the [1978 c. 44.] Employment Protection (Consolidation) Act 1978 (maximum amount of a week’s pay for basic award in unfair dismissal cases), and
(b) an amount equal to the limit for the time being imposed by section 75 of that Act (maximum compensatory award in such cases);
and, in the case of an award by the Employment Appeal Tribunal, shall not be less than the amount for the time being specified in section 156(1) of this Act (minimum basic award in certain cases of unfair dismissal).
(9) A reduction or increase required to be made by virtue of the limits in subsection (8) shall be made before a reduction made—
(a) by virtue of subsection (6) or (7), or
(b) on account of sums already paid by the union by way of compensation in respect of the determination to which the application relates or in respect of anything done for the purpose of giving effect to the determination;
and, accordingly, where the case so requires, the reductions mentioned in paragraphs (a) and (b) shall be applied to the maximum or minimum award under subsection (8).
(1) If a person certifies to his employer—
(a) that notice given by him to a trade union for the purpose of terminating his membership has expired or will expire on a particular date, or
(b) that his membership of a trade union to the knowledge of the union has been or will be terminated from a particular date,
the employer shall ensure that no amount representing a payment to the union in respect of his membership of the union after that date is deducted from emoluments payable to him.
(2) The employer’s duty under subsection (1) applies from the first day, following the giving of the certificate, on which it is reasonably practicable for him to comply with that subsection.
(3) If a person who has given a certificate under subsection (1) notifies his employer that the certificate is withdrawn, the employer’s duty under that subsection does not apply in relation to emoluments paid after the notification.
(4) A deduction made in contravention of this section shall be treated for the purposes of Part I of the [1986 c. 48.] Wages Act 1986 as a deduction in contravention of section 1(1) of that Act notwithstanding anything in any contract between the employee and employer, or in any agreement or consent signified by the employee.
In every contract of membership of a trade union, whether made before or after the passing of this Act, a term conferring a right on the member, on giving reasonable notice and complying with any reasonable conditions, to terminate his membership of the union shall be implied.
In this Chapter “member”, in relation to a trade union consisting wholly or partly of, or of representatives of, constituent or affiliated organisations, includes a member of any of the constituent or affiliated organisations.
(1) The funds of a trade union shall not be applied in the furtherance of the political objects to which this Chapter applies unless—
(a) there is in force in accordance with this Chapter a resolution (a “political resolution”) approving the furtherance of those objects as an object of the union (see sections 73 to 81), and
(b) there are in force rules of the union as to—
(i) the making of payments in furtherance of those objects out of a separate fund, and
(ii) the exemption of any member of the union objecting to contribute to that fund,
which comply with this Chapter (see sections 82, 84 and 85) and have been approved by the Certification Officer.
(2) This applies whether the funds are so applied directly, or in conjunction with another trade union, association or body, or otherwise indirectly.
(1) The political objects to which this Chapter applies are the expenditure of money—
(a) on any contribution to the funds of, or on the payment of expenses incurred directly or indirectly by, a political party;
(b) on the provision of any service or property for use by or on behalf of any political party;
(c) in connection with the registration of electors, the candidature of any person, the selection of any candidate or the holding of any ballot by the union in connection with any election to a political office;
(d) on the maintenance of any holder of a political office;
(e) on the holding of any conference or meeting by or on behalf of a political party or of any other meeting the main purpose of which is the transaction of business in connection with a political party;
(f) on the production, publication or distribution of any literature, document, film, sound recording or advertisement the main purpose of which is to persuade people to vote for a political party or candidate or to persuade them not to vote for a political party or candidate.
(2) Where a person attends a conference or meeting as a delegate or otherwise as a participator in the proceedings, any expenditure incurred in connection with his attendance as such shall, for the purposes of subsection (1)(e), be taken to be expenditure incurred on the holding of the conference or meeting.
(3) In determining for the purposes of subsection (1) whether a trade union has incurred expenditure of a kind mentioned in that subsection, no account shall be taken of the ordinary administrative expenses of the union.
(4) In this section—
“candidate” means a candidate for election to a political office and includes a prospective candidate;
“contribution”, in relation to the funds of a political party, includes any fee payable for affiliation to, or membership of, the party and any loan made to the party;
“electors” means electors at an election to a political office;
“film” includes any record, however made, of a sequence of visual images, which is capable of being used as a means of showing that sequence as a moving picture;
“local authority” means a local authority within the meaning of section 270 of the [1972. c.70] Local Government Act 1972 or section 235 of the [1973 c. 65] Local Government (Scotland) Act 1973; and
“political office” means the office of member of Parliament, member of the European Parliament or member of a local authority or any position within a political party.
(1) A political resolution must be passed by a majority of those voting on a ballot of the members of the trade union held in accordance with this Chapter.
(2) A political resolution so passed shall take effect as if it were a rule of the union and may be rescinded in the same manner and subject to the same provisions as such a rule.
(3) If not previously rescinded, a political resolution shall cease to have effect at the end of the period of ten years beginning with the date of the ballot on which it was passed.
(4) Where before the end of that period a ballot is held on a new political resolution, then—
(a) if the new resolution is passed, the old resolution shall be treated as rescinded, and
(b) if it is not passed, the old resolution shall cease to have effect at the end of the period of two weeks beginning with the date of the ballot.
(1) A ballot on a political resolution must be held in accordance with rules of the trade union (its “political ballot rules”) approved by the Certification Officer.
(2) Fresh approval is required for the purposes of each ballot which it is proposed to hold, notwithstanding that the rules have been approved for the purposes of an earlier ballot.
(3) The Certification Officer shall not approve a union’s political ballot rules unless he is satisfied that the requirements set out in—
section 75 (appointment of independent scrutineer),
section 76 (entitlement to vote),
section 77 (voting), and
section 78 (scrutineer’s report),
would be satisfied in relation to a ballot held by the union in accordance with the rules.
(1) The trade union shall, before the ballot is held, appoint a qualified independent person (“the scrutineer”) to carry out—
(a) the functions in relation to the ballot which are required under this section to be contained in his appointment; and
(b) such additional functions in relation to the ballot as may be specified in his appointment.
(2) A person is a qualified independent person in relation to a ballot if—
(a) he satisfies such conditions as may be specified for the purposes of this section by order of the Secretary of State or is himself so specified; and
(b) the trade union has no grounds for believing either that he will carry out any functions conferred on him in relation to the ballot otherwise than competently or that his independence in relation to the union, or in relation to the ballot, might reasonably be called into question.
An order under paragraph (a) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(3) The scrutineer’s appointment shall require him—
(a) to be the person who supervises the production and distribution of the voting papers and to whom the voting papers are returned by those voting;
(b) to take such steps as appear to him to be appropriate for the purpose of enabling him to make his report (see section 78);
(c) to make his report to the trade union as soon as reasonably practicable after the last date for the return of voting papers; and
(d) to retain custody of all voting papers returned for the purposes of the ballot—
(i) until the end of the period of one year beginning with the announcement by the union of the result of the ballot; and
(ii) if within that period an application is made under section 79 (complaint of failure to comply with ballot rules), until the Certification Officer or the court authorises him to dispose of the papers.
(4) The trade union shall ensure that nothing in the terms of the scrutineer’s appointment (including any additional functions specified in the appointment) is such as to make it reasonable for any person to call the scrutineer’s independence in relation to the union into question.
(5) The trade union shall, before the scrutineer begins to carry out his functions, either—
(a) send a notice stating the name of the scrutineer to every member of the union to whom it is reasonably practicable to send such a notice, or
(b) take all such other steps for notifying members of the name of the scrutineer as it is the practice of the union to take when matters of general interest to all its members need to be brought to their attention.
(6) The trade union shall ensure that the scrutineer duly carries out his functions and that there is no interference with his carrying out of those functions which would make it reasonable for any person to call the scrutineer’s independence in relation to the union into question.
(7) The trade union shall comply with all reasonable requests made by the scrutineer for the purposes of, or in connection with, the carrying out of his functions.
Entitlement to vote in the ballot shall be accorded equally to all members of the trade union.
(1) The method of voting must be by the marking of a voting paper by the person voting.
(2) Each voting paper must—
(a) state the name of the independent scrutineer and clearly specify the address to which, and the date by which, it is to be returned, and
(b) be given one of a series of consecutive whole numbers every one of which is used in giving a different number in that series to each voting paper printed or otherwise produced for the purposes of the ballot, and
(c) be marked with its number.
(3) Every person who is entitled to vote in the ballot must—
(a) be allowed to vote without interference from, or constraint imposed by, the union or any of its members, officials or employees, and
(b) so far as is reasonably practicable, be enabled to do so without incurring any direct cost to himself.
(4) So far as is reasonably practicable, every person who is entitled to vote in the ballot must—
(a) have a voting paper sent to him by post at his home address or another address which he has requested the trade union in writing to treat as his postal address, and
(b) be given a convenient opportunity to vote by post.
(5) The ballot shall be conducted so as to secure that—
(a) so far as is reasonably practicable, those voting do so in secret, and
(b) the votes given in the ballot are fairly and accurately counted.
For the purposes of paragraph (b) an inaccuracy in counting shall be disregarded if it is accidental and on a scale which could not affect the result of the ballot.
(1) The scrutineer’s report on the ballot shall state—
(a) the number of voting papers distributed for the purposes of the ballot,
(b) the number of voting papers returned to the scrutineer,
(c) the number of valid votes cast in the ballot for and against the resolution, and
(d) the number of spoiled or otherwise invalid voting papers returned.
(2) The report shall also state whether the scrutineer is satisfied—
(a) that there are no reasonable grounds for believing that there was any contravention of a requirement imposed by or under any enactment in relation to the ballot,
(b) that the arrangements made with respect to the production, storage, distribution, return or other handling of the voting papers used in the ballot, and the arrangements for the counting of the votes, included all such security arrangements as were reasonably practicable for the purpose of minimising the risk that any unfairness or malpractice might occur, and
(c) that he has been able to carry out his functions without such interference as would make it reasonable for any person to call his independence in relation to the union into question;
and if he is not satisfied as to any of those matters, the report shall give particulars of his reasons for not being satisfied as to that matter.
(3) The trade union shall not publish the result of the ballot until it has received the scrutineer’s report.
(4) The trade union shall within the period of three months after it receives the report—
(a) send a copy of the report to every member of the union to whom it is reasonably practicable to send such a copy; or
(b) take all such other steps for notifying the contents of the report to the members of the union (whether by publishing the report or otherwise) as it is the practice of the union to take when matters of general interest to all its members need to be brought to their attention.
(5) Any such copy or notification shall be accompanied by a statement that the union will, on request, supply any member of the union with a copy of the report, either free of charge or on payment of such reasonable fee as may be specified in the notification.
(6) The trade union shall so supply any member of the union who makes such a request and pays the fee (if any) notified to him.
(1) The remedy for—
(a) the taking by a trade union of a ballot on a political resolution otherwise than in accordance with political ballot rules approved by the Certification Officer, or
(b) the failure of a trade union, in relation to a proposed ballot on a political resolution, to comply with the political ballot rules so approved,
is by way of application under section 80 (to the Certification Officer) or 81 (to the court).
The making of an application to the Certification Officer does not prevent the applicant, or any other person, from making an application to the court in respect of the same matter.
(2) An application under those sections may be made only by a person who is a member of the trade union and, where the ballot has been held, was a member at the time when it was held.
References in those sections to a person having a sufficient interest are to such a person.
(3) No such application may be made after the end of the period of one year beginning with the day on which the union announced the result of the ballot.
(1) A person having a sufficient interest (see section 79(2)) who claims that a trade union—
(a) has 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,
may apply to the Certification Officer for a declaration to that effect.
(2) On an application being made to him, the Certification Officer shall—
(a) make such enquiries as he thinks fit, and
(b) where he considers it appropriate, give the applicant and the trade union an opportunity to be heard,
and may make or refuse the declaration asked for.
(3) If he makes a declaration he shall specify in it the provisions with which the trade union has failed to comply.
(4) Where he makes a declaration and is satisfied that steps have been taken by the union with a view to remedying the declared failure, or securing that a failure of the same or any similar kind does not occur in future, or that the union has agreed to take such steps, he shall in making the declaration specify those steps.
(5) Whether he makes or refuses a declaration, he shall give reasons for his decision in writing; and the reasons may be accompanied by written observations on any matter arising from, or connected with, the proceedings.
(6) In exercising his functions under this section the Certification Officer shall ensure that, so far as is reasonably practicable, an application made to him is determined within six months of being made.
(7) Where he requests a person to furnish information to him in connection with enquiries made by him under this section, he shall specify the date by which that information is to be furnished and shall, unless he considers that it would be inappropriate to do so, proceed with his determination of the application notwithstanding that the information has not been furnished to him by the specified date.