Office of Public Sector Information
PART I continued
(4) The requirement imposed by this section is not satisfied if the statement specifies anything inconsistent with the contents of the return.
(5) The statement—
(a) shall also set out in full the report made by the auditor or auditors of the union on the accounts contained in the return and state the name and address of that auditor or of each of those auditors, and
(b) may include any other matter which the union considers may give a member significant assistance in making an informed judgment about the financial activities of the union in the period to which the return relates.
(6) The statement—
(a) shall also include the following statement—
“A member who is concerned that some irregularity may be occurring, or have occurred, in the conduct of the financial affairs of the union may take steps with a view to investigating further, obtaining clarification and, if necessary, securing regularisation of that conduct.
The member may raise any such concern with such one or more of the following as it seems appropriate to raise it with: the officials of the union, the trustees of the property of the union, the auditor or auditors of the union, the Certification Officer (who is an independent officer appointed by the Secretary of State) and the police.
Where a member believes that the financial affairs of the union have been or are being conducted in breach of the law or in breach of rules of the union and contemplates bringing civil proceedings against the union or responsible officials or trustees, he may apply for material assistance from the Commissioner for the Rights of Trade Union Members and should, in any case, consider obtaining independent legal advice.”; and
(b) may include such other details of the steps which a member may take for the purpose mentioned in the statement set out above as the trade union considers appropriate.
(7) A trade union shall send to the Certification Officer a copy of the statement which is provided to its members in pursuance of this section as soon as is reasonably practicable after it is so provided.
(8) Where the same form of statement is not provided to all the members of a trade union, the union shall send to the Certification Officer in accordance with subsection (7) a copy of each form of statement provided to any of them.
(9) If at any time during the period of two years beginning with the day referred to in subsection (1) any member of the trade union requests a copy of the statement required by this section, the union shall, as soon as practicable, furnish him with such a copy free of charge.”.
After section 37 of the 1992 Act there shall be inserted—
(1) The Certification Officer may at any time, if he thinks there is good reason to do so, give directions to a trade union, or a branch or section of a trade union, requiring it to produce such relevant documents as may be specified in the directions; and the documents shall be produced at such time and place as may be so specified.
(2) The Certification Officer may at any time, if he thinks there is good reason to do so, authorise a member of his staff or any other person, on producing (if so required) evidence of his authority, to require a trade union, or a branch or section of a trade union, to produce forthwith to the member of staff or other person such relevant documents as the member of staff or other person may specify.
(3) Where the Certification Officer, or a member of his staff or any other person, has power to require the production of documents by virtue of subsection (1) or (2), the Certification Officer, member of staff or other person has the like power to require production of those documents from any person who appears to the Certification Officer, member of staff or other person to be in possession of them.
(4) Where such a person claims a lien on documents produced by him, the production is without prejudice to the lien.
(5) The power under this section to require the production of documents includes power—
(a) if the documents are produced—
(i) to take copies of them or extracts from them, and
(ii) to require the person by whom they are produced, or any person who is or has been an official or agent of the trade union, to provide an explanation of any of them; and
(b) if the documents are not produced, to require the person who was required to produce them to state, to the best of his knowledge and belief, where they are.
(6) In subsections (1) and (2) “relevant documents”, in relation to a trade union or a branch or section of a trade union, means accounting documents, and documents of any other description, which may be relevant in considering the financial affairs of the trade union.
(7) A person shall not be excused from providing an explanation or making a statement in compliance with a requirement imposed under subsection (5) on the ground that to do so would tend to expose him to proceedings for an offence; but an explanation so provided or statement so made may only be used in evidence against the person by whom it is made or provided—
(a) on a prosecution for an offence under section 45(9) (false explanations and statements), or
(b) on a prosecution for some other offence where in giving evidence the person makes a statement inconsistent with it.
(1) The Certification Officer may appoint one or more members of his staff or other persons as an inspector or inspectors to investigate the financial affairs of a trade union and to report on them in such manner as he may direct.
(2) The Certification Officer may only make such an appointment if it appears to him that there are circumstances suggesting—
(a) that the financial affairs of the trade union are being or have been conducted for a fraudulent or unlawful purpose,
(b) that persons concerned with the management of those financial affairs have, in connection with that management, been guilty of fraud, misfeasance or other misconduct,
(c) that the trade union has failed to comply with any duty imposed on it by this Act in relation to its financial affairs, or
(d) that a rule of the union relating to its financial affairs has not been complied with.
(3) Where an inspector is, or inspectors are, appointed under this section it is the duty of all persons who are or have been officials or agents of the trade union—
(a) to produce to the inspector or inspectors all relevant documents which are in their possession,
(b) to attend before the inspector or inspectors when required to do so, and
(c) otherwise to give the inspector or inspectors all assistance in connection with the investigation which they are reasonably able to give.
(4) Where any person (whether or not within subsection (3)) appears to the inspector or inspectors to be in possession of information relating to a matter which he considers, or they consider, to be relevant to the investigation, the inspector or inspectors may require him—
(a) to produce to the inspector or inspectors any relevant documents relating to that matter,
(b) to attend before the inspector or inspectors, and
(c) otherwise to give the inspector or inspectors all assistance in connection with the investigation which he is reasonably able to give;
and it is the duty of the person to comply with the requirement.
(5) In subsections (3) and (4) “relevant documents”, in relation to an investigation of the financial affairs of a trade union, means accounting documents, and documents of any other description, which may be relevant to the investigation.
(6) A person shall not be excused from providing an explanation or making a statement in compliance with subsection (3) or a requirement imposed under subsection (4) on the ground that to do so would tend to expose him to proceedings for an offence; but an explanation so provided or statement so made may only be used in evidence against the person by whom it is provided or made—
(a) on a prosecution for an offence under section 45(9) (false explanations and statements), or
(b) on a prosecution for some other offence where in giving evidence the person makes a statement inconsistent with it.
(1) An inspector or inspectors appointed under section 37B—
(a) may, and if so directed by the Certification Officer shall, make interim reports, and
(b) on the conclusion of their investigation shall make a final report,
to the Certification Officer.
(2) Any report under subsection (1) shall be written or printed, as the Certification Officer directs.
(3) An inspector or inspectors appointed under section 37B may at any time, and if so directed by the Certification Officer shall, inform the Certification Officer of any matters coming to his or their knowledge as a result of the investigation.
(4) The Certification Officer may direct an inspector or inspectors appointed under section 37B to take no further steps in the investigation, or to take only such further steps as are specified in the direction, if—
(a) it appears to the Certification Officer that matters have come to light in the course of the investigation which suggest that a criminal offence has been committed and those matters have been referred to the appropriate prosecuting authority, or
(b) it appears to the Certification Officer appropriate to do so in any other circumstances.
(5) Where an investigation is the subject of a direction under subsection (4), the inspector or inspectors shall make a final report to the Certification Officer only where the Certification Officer directs him or them to do so at the time of the direction under that subsection or subsequently.
(6) The Certification Officer shall publish a final report made to him under this section.
(7) The Certification Officer shall furnish a copy of such a report free of charge—
(a) to the trade union which is the subject of the report,
(b) to any auditor of that trade union or of any branch or section of the union, if he requests a copy before the end of the period of three years beginning with the day on which the report is published, and
(c) to any member of the trade union if—
(i) he has complained to the Certification Officer that there are circumstances suggesting any of the states of affairs specified in section 37B(2)(a) to (d),
(ii) the Certification Officer considers that the report contains findings which are relevant to the complaint, and
(iii) the member requests a copy before the end of the period of three years beginning with the day on which the report is published.
(8) A copy of any report under this section, certified by the Certification Officer to be a true copy, is admissible in any legal proceedings as evidence of the opinion of the inspector or inspectors in relation to any matter contained in the report; and a document purporting to be a certificate of the Certification Officer under this subsection shall be received in evidence and be deemed to be such a certificate unless the contrary is proved.
(1) The expenses of an investigation under section 37B shall be defrayed in the first instance by the Certification Officer.
(2) For the purposes of this section there shall be treated as expenses of an investigation, in particular, such reasonable sums as the Certification Officer may determine in respect of general staff costs and overheads.
(3) A person who is convicted on a prosecution instituted as a result of the investigation may in the same proceedings be ordered to pay the expenses of the investigation to such extent as may be specified in the order.
(1) Where—
(a) a report of the auditor or auditors of a trade union, or a branch or section of a trade union, on the accounts audited by him or them and contained in the annual return of the union, or branch or section—
(i) does not state without qualification that the accounts give a true and fair view of the matters to which they relate, or
(ii) includes a statement in compliance with section 36(4), or
(b) a member of a trade union has complained to the Certification Officer that there are circumstances suggesting any of the states of affairs specified in section 37B(2)(a) to (d),
the Certification Officer shall consider whether it is appropriate for him to exercise any of the powers conferred on him by sections 37A and 37B.
(2) If in a case where a member of a trade union has complained as mentioned in subsection (1)(b) the Certification Officer decides not to exercise any of the powers conferred by those sections he shall, as soon as reasonably practicable after making a decision not to do so, notify the member of his decision and, if he thinks fit, of the reasons for it.
(3) Nothing in section 37A or 37B—
(a) requires or authorises anyone to require the disclosure by a person of information which he would in an action in the High Court or the Court of Session be entitled to refuse to disclose on grounds of legal professional privilege except, if he is a lawyer, the name and address of his client, or
(b) requires or authorises anyone to require the production by a person of a document which he would in such an action be entitled to refuse to produce on such grounds.
(4) Nothing in section 37A or 37B requires or authorises anyone to require the disclosure of information or the production of documents in respect of which the person to whom the requirement would relate owes an obligation of confidence by virtue of carrying on the business of banking unless—
(a) the person to whom the obligation is owed is the trade union, or any branch or section of the union, concerned or a trustee of any fund concerned, or
(b) the person to whom the obligation of confidence is owed consents to the disclosure or production.
(5) In sections 37A and 37B and this section—
(a) references to documents include information recorded in any form, and
(b) in relation to information recorded otherwise than in legible form, references to its production are to the production of a copy of the information in legible form.”.
(1) In section 45 of the 1992 Act (offences), for subsection (5) there shall be substituted—
“(5) If a person contravenes any duty, or requirement imposed, under section 37A (power of Certification officer to require production of documents etc.) or 37B (investigations by inspectors) he commits an offence.
(6) In any proceedings brought against a person in respect of a contravention of a requirement imposed under section 37A(3) or 37B(4) to produce documents it is a defence for him to prove—
(a) that the documents were not in his possession, and
(b) that it was not reasonably practicable for him to comply with the requirement.
(7) If an official or agent of a trade union—
(a) destroys, mutilates or falsifies, or is privy to the destruction, mutilation or falsification of, a document relating to the financial affairs of the trade union, or
(b) makes, or is privy to the making of, a false entry in any such document,
he commits an offence unless he proves that he had no intention to conceal the financial affairs of the trade union or to defeat the law.
(8) If such a person fraudulently—
(a) parts with, alters or deletes anything in any such document, or
(b) is privy to the fraudulent parting with, fraudulent alteration of or fraudulent deletion in, any such document,
he commits an offence.
(9) If a person in purported compliance with a duty, or requirement imposed, under section 37A or 37B to provide an explanation or make a statement—
(a) provides or makes an explanation or statement which he knows to be false in a material particular, or
(b) recklessly provides or makes an explanation or statement which is false in a material particular,
he commits an offence.”.
(2) After that section there shall be inserted—
(1) A person guilty of an offence under section 45 is liable on summary conviction—
(a) in the case of an offence under subsection (1) or (5), to a fine not exceeding level 5 on the standard scale;
(b) in the case of an offence under subsection (4), (7), (8) or (9), to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.
(2) Proceedings for an offence under section 45(1) relating to the duty imposed by section 32 (duty to send annual return to Certification Officer) may be commenced at any time before the end of the period of three years beginning with the date when the offence was committed.
(3) Proceedings for any other offence under section 45(1) may be commenced—
(a) at any time before the end of the period of six months beginning with the date when the offence was committed, or
(b) at any time after the end of that period but before the end of the period of twelve months beginning with the date when evidence sufficient in the opinion of the Certification Officer or, in Scotland, the procurator fiscal, to justify the proceedings came to his knowledge;
but no proceedings may be commenced by virtue of paragraph (b) after the end of the period of three years beginning with the date when the offence was committed.
(4) For the purposes of subsection (3)(b), a certificate signed by or on behalf of the Certification Officer or the procurator fiscal which states the date on which evidence sufficient in his opinion to justify the proceedings came to his knowledge shall be conclusive evidence of that fact.
(5) A certificate stating that matter and purporting to be so signed shall be deemed to be so signed unless the contrary is proved.
(6) For the purposes of this section—
(a) in England and Wales, proceedings are commenced when an information is laid, and
(b) in Scotland, subsection (3) of section 331 of the [1975 c. 21.] Criminal Procedure (Scotland) Act 1975 (date of commencement of proceedings) applies as it applies for the purposes of that section.”.
After section 45A of the 1992 Act (which is inserted by section 11 above) there shall be inserted—
(1) A trade union shall secure that a person does not at any time hold a position in the union to which this section applies if—
(a) within the period of five years immediately preceding that time he has been convicted of an offence under subsection (1) or (5) of section 45, or
(b) within the period of ten years immediately preceding that time he has been convicted of an offence under subsection (4), (7), (8) or (9) of that section.
(2) Subject to subsection (4), the positions to which this section applies are—
(a) member of the executive,
(b) any position by virtue of which a person is a member of the executive,
(c) president, and
(d) general secretary.
(3) For the purposes of subsection (2)(a) “member of the executive” includes any person who, under the rules or practice of the union, may attend and speak at some or all of the meetings of the executive, otherwise than for the purpose of providing the committee with factual information or with technical or professional advice with respect to matters taken into account by the executive in carrying out its functions.
(4) This section does not apply to the position of president or general secretary if the holder of that position—
(a) is not, in respect of that position, either a voting member of the executive or an employee of the union,
(b) holds that position for a period which under the rules of the union cannot end more than thirteen months after he took it up, and
(c) has not held either position at any time in the period of twelve months ending with the day before he took up that position.
(5) In subsection (4)(a) “a voting member of the executive” means a person entitled in his own right to attend meetings of the executive and to vote on matters on which votes are taken by the executive (whether or not he is entitled to attend all such meetings or to vote on all such matters or in all circumstances).
(1) A member of a trade union who claims that the union has failed to comply with the requirement of section 45B may apply to the Certification Officer or to the court for a declaration to that effect.
(2) On an application being made to him, the Certification Officer—
(a) shall, where he considers it appropriate, give the applicant and the trade union an opportunity to be heard,
(b) shall ensure that, so far as is reasonably practicable, the application is determined within six months of being made,
(c) may make or refuse the declaration asked for, and
(d) shall, whether he makes or refuses the declaration, give reasons for his decision in writing.
(3) Where an application is made to the Certification Officer, the person who made that application, or any other person, is not prevented from making an application to the court in respect of the same matter.
(4) If, after an application is made to the Certification Officer, an application in respect of the same matter is made to the court, the court shall have due regard to any declaration which has been made by the Certification Officer.
(5) Where the court makes a declaration it shall also, unless it considers that it would be inappropriate, make an order imposing on the trade union a requirement to take within such period as may be specified in the order such steps to remedy the declared failure as may be so specified.
(6) Where an order has been made, any person who is a member of the trade union and was a member at the time the order was made is entitled to enforce the order as if he had made the application on which the order was made.”.
In section 148 of the 1992 Act (consideration of complaint of action short of dismissal), after subsection (2) there shall be inserted—
“(3) In determining what was the purpose for which action was taken by the employer against the complainant in a case where—
(a) there is evidence that the employer’s purpose was to further a change in his relationship with all or any class of his employees, and
(b) there is also evidence that his purpose was one falling within section 146,
the tribunal shall regard the purpose mentioned in paragraph (a) (and not the purpose mentioned in paragraph (b)) as the purpose for which the employer took the action, unless it considers that the action was such as no reasonable employer would take having regard to the purpose mentioned in paragraph (a).
(4) Where the action which the tribunal determines to have been the action taken against the complainant was action taken in consequence of previous action by the employer paragraph (a) of subsection (3) is satisfied if the purpose mentioned in that paragraph was the purpose of the previous action.
(5) In subsection (3) “class”, in relation to an employer and his employees, means those employed at a particular place of work, those employees of a particular grade, category or description or those of a particular grade, category or description employed at a particular place of work.”.
For sections 174 to 177 of the 1992 Act (right not to be unreasonably excluded or expelled from union where employment subject to union membership agreement) and the heading immediately preceding them there shall be substituted—
(1) An individual shall not be excluded or expelled from a trade union unless the exclusion or expulsion is permitted by this section.
(2) The exclusion or expulsion of an individual from a trade union is permitted by this section if (and only if)—
(a) he does not satisfy, or no longer satisfies, an enforceable membership requirement contained in the rules of the union,
(b) he does not qualify, or no longer qualifies, for membership of the union by reason of the union operating only in a particular part or particular parts of Great Britain,
(c) in the case of a union whose purpose is the regulation of relations between its members and one particular employer or a number of particular employers who are associated, he is not, or is no longer, employed by that employer or one of those employers, or
(d) the exclusion or expulsion is entirely attributable to his conduct.
(3) A requirement in relation to membership of a union is “enforceable” for the purposes of subsection (2)(a) if it restricts membership solely by reference to one or more of the following criteria—
(a) employment in a specified trade, industry or profession,
(b) occupational description (including grade, level or category of appointment), and
(c) possession of specified trade, industrial or professional qualifications or work experience.
(4) For the purposes of subsection (2)(d) “conduct”, in relation to an individual, does not include—
(a) his being or ceasing to be, or having been or ceased to be—
(i) a member of another trade union,
(ii) employed by a particular employer or at a particular place, or
(iii) a member of a political party, or
(b) conduct to which section 65 (conduct for which an individual may not be disciplined by a trade union) applies or would apply if the references in that section to the trade union which is relevant for the purposes of that section were references to any trade union.
(5) An individual who claims that he has been excluded or expelled from a trade union in contravention of this section may present a complaint to an industrial tribunal.
An industrial tribunal shall not entertain a complaint under section 174 unless it is presented—
(a) before the end of the period of six months beginning with the date of the exclusion or expulsion, or
(b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as the tribunal considers reasonable.
(1) Where the industrial tribunal finds a complaint under section 174 is well-founded, it shall make a declaration to that effect.
(2) An individual whose complaint has been declared to be well-founded may make an application for an award of compensation to be paid to him by the union.
The application shall be made to an industrial tribunal if when it is made the applicant has been admitted or re-admitted to the union, and otherwise to the Employment Appeal Tribunal.
(3) The application shall not be entertained if made—
(a) before the end of the period of four weeks beginning with the date of the declaration, or
(b) after the end of the period of six months beginning with that date.
(4) The amount of compensation awarded shall, subject to the following provisions, be such as the industrial tribunal or the Employment Appeal Tribunal considers just and equitable in all the circumstances.
(5) Where the industrial tribunal or Employment Appeal Tribunal finds that the exclusion or expulsion 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.
(6) The amount of compensation calculated in accordance with subsections (4) and (5) shall not exceed the aggregate of—
(a) an amount equal to thirty 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 £5,000.
(7) The Secretary of State may by order increase the sum specified in subsection (6).
(8) An order under subsection (7)—
(a) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament, and
(b) may contain such incidental, supplementary or transitional provisions as appear to the Secretary of State to be necessary or expedient.
(1) For the purposes of section 174—
(a) “trade union” does not include an organisation falling within paragraph (b) of section 1,
(b) “conduct” includes statements, acts and omissions, and
(c) “employment” includes any relationship whereby an individual personally does work or performs services for another person (related expressions being construed accordingly).
(2) For the purposes of sections 174 to 176—
(a) if an individual’s application for membership of a trade union is neither granted nor rejected before the end of the period within which it might reasonably have been expected to be granted if it was to be granted, he shall be treated as having been excluded from the union on the last day of that period, and
(b) an individual who under the rules of a trade union ceases to be a member of the union on the happening of an event specified in the rules shall be treated as having been expelled from the union.
(3) The remedy of an individual for infringement of the rights conferred by section 174 is by way of a complaint to an industrial tribunal in accordance with that section, sections 175 and 176 and this section, and not otherwise.
(4) Where a complaint relating to an expulsion which is presented under section 174 is declared to be well-founded, no complaint in respect of the expulsion shall be presented or proceeded with under section 66 (complaint of infringement of right not to be unjustifiably disciplined).
(5) The rights conferred by section 174 are in addition to, and not in substitution for, any right which exists apart from that section; and, subject to subsection (4), nothing in that section, section 175 or 176 or this section affects any remedy for infringement of any such right.”.
Trade Union Reform and Employment Rights Act 1993