A stranglehold on the unions?
Richard Arthur outlines the new powers of the Certification Officer following the changes in the Trade Union Act
The changes to the Certification Officer’s role are the second instalment of a Conservative programme of using the role to maximise the opportunities for employers to challenge industrial action, while imposing the maximum possible administrative burden on trade unions and attempting to marginalise their influence in society.
The Lobbying and Transparency Act
The first instalment (and the first changes to the role since 1999) came in the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014.
As well as imposing restrictions on trade unions’ funding of political parties in election campaigns, it also imposed requirements in relation to the maintenance of unions’ registers of members in the form of Membership Audit Certificates that have to be filed with the Certification Officer.
The reason for this is that most challenges to industrial action turn on the sufficiency of the union’s membership information. Compliance with these new requirements is to be supervised by the Certification Officer, who has been given new investigative powers and the ability to exercise those powers without receiving a complaint from a member.
The Trade Union Act adopts the devices used in the Lobbying and Transparency Act – powers of investigation and the ability to exercise powers without receiving a complaint from a member – and applies them across most of the types of claim the Certification Officer adjudicates on.
Additional enforcement powers have been added, as well as the power to impose financial penalties, with the Secretary of State having power to require the Certification Officer to impose a levy on trade unions.
Appointment and independence
While there are still no statutory criteria for the appointment of the Certification Officer (beyond consultation with Acas), the Act makes clear that they are not to be subject to directions from government ministers, a measure designed to protect against challenges of lack of impartiality.
Political expenditure and industrial action
Annual returns sent to the Certification Officer will also have to include additional information in relation to political expenditure and industrial action. The requirements in relation to political expenditure are dealt with in the section on Political Funds (p8).
Investigatory powers
Enhanced investigatory powers will apply to the requirements for ensuring that positions are not held by offenders, the requirements for elections for certain positions, compliance with rules about expenditure on political objects, ballots on political resolutions and political funds, ballots on amalgamations and transfers and requirements imposed under conditional penalties (but they won’t apply to the Certification Officer’s general authority over breaches of specific types of rules).
If the Certification Officer “thinks there is good reason to do so” they will be able to require the production of relevant documents from a union, branch or section, or authorise their staff to require their production. They will be able to require explanations of the documents produced or to be told where they are.
The Certification Officer will be able to appoint inspectors – either from their staff or other persons. Inspectors will be able to require the production of documents, attendance in front of the investigator and the provision of “all assistance”. The Certification Officer has also been given enforcement powers that can be exercised in the same way as a court order.
It is true that similar powers have existed since 1993 in relation to the financial affairs of a union, and those powers have been used as a template for the powers in the Trade Union Act, but it is quite another thing to extend those powers, which were essentially originally confined to matters of administration, across the bulk of the Certification Officer’s areas of adjudication.
Powers without application
The Certification Officer will be able to exercise most of their powers without receiving a complaint from a member, meaning that they are going to be placed under enormous pressure to act at the behest of organisations like the Freedom Association and the Taxpayers Alliance.
Power to impose financial penalties
The Certification Officer will have power to impose financial penalties. The amount will be set by regulations and will be between £200 and £20,000.
Power to impose a levy
Trade unions themselves will have to pay for the privilege of having these additional administrative burdens heaped upon them.
The Secretary of State will have the power to require the Certification Officer to impose a levy on trade unions to cover their expenses. The Certification Officer will have to aim to ensure that the amount of the levy does not exceed their relevant expenses over a three-year period.
Conclusion
The government likens the role of the Certification Officer to that of a “regulator” such as the Pensions Regulator or the Groceries Code Adjudicator. Nobody can seriously contest that the current Certification Officer knows his onions when it comes to trade unions. But it misses the point that the Certification Officer is supposed to oversee restrictions on the internationally recognised freedom of association between unions and their members.
Even so, the invasiveness of, for example, the Certification Officer’s enhanced powers of investigation, is not matched, for example, by that of the Financial Conduct Authority’s investigatory powers.
The combined effect of the Lobbying and Transparency Act and the Trade Union Act is to place the Certification Officer centre-stage in terms of industrial action challenges, and to make the same investigatory and enforcement powers available across most of their areas of adjudication.
The role is transformed, without regard for international law, into that of investigator, prosecutor, adjudicator and sentencer in a way that leaves the Certification Officer vulnerable to the demands of those hostile to trade unions and compromises their impartiality.
In the words of Baroness Donaghy in the House of Lords, these measures are a “disproportionate response to an unidentified problem”. The intentions behind them are to make it easier to challenge industrial action, and to make life as administratively difficult and expensive as possible for trade unions.