Trade Union and Labour Relations (Consolidation) Act 1992

• (a) ships providing the service entered a harbour in Great Britain on at least 120 occasions in the period of 12 months ending with the day when the redundancy proposal in question is settled by the employer, or

• (b) if the service has been provided for less than 12 months before that day, ships providing the service entered a harbour in Great Britain on at least 10 occasions in each month for which the service has been provided.

• (6) But a service is not within subsection (5) if the service—

• (a) is for the purpose of leisure or recreation, or

• (b) is provided by a fishing vessel.

• (7) In this section—

• “harbour” has the same meaning as in the Harbours Act 1964;

• “ship” has the same meaning as in section 193A (see subsection (4) of that section).

Power to make further provision as to excluded classes of employment

286

• (1) This section applies in relation to the following provisions—

• (2) The Secretary of State may by order made by statutory instrument provide that any of those provisions—

• (a) shall not apply to persons or to employment of such classes as may be prescribed by the order, or

• (b) shall apply to persons or employments of such classes as may be prescribed by the order subject to such exceptions and modifications as may be so prescribed,

and may vary or revoke any of the provisions of sections 281 to 285 above (excluded classes of employment) so far as they relate to any such provision.

• (3) Any such order shall be made by statutory instrument and may contains such incidental, supplementary or transitional provisions as appear to the Secretary of State to be necessary or expedient.

• (4) No such order shall be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.

Offshore employment

Offshore employment

287

• (1) In this Act offshore employment means employment for the purposes of activities—

• (a) in the territorial waters of the United Kingdom, or

• (b) connected with the exploration of the sea-bed or subsoil, or the exploitation of their natural resources, in the United Kingdom sector of the continental shelf, or

• (c) connected with the exploration or exploitation, in a foreign sector of the continental shelf, of a cross-boundary petroleum field.

• (2) Her Majesty may by Order in Council provide that—

• (a) the provisions of this Act, and

• (b) any Northern Ireland legislation making provision for purposes corresponding to any of the purposes of this Act,

apply, to such extent and for such purposes as may be specified in the Order and with or without modification, to or in relation to a person in offshore employment or, in relation to sections 137 to 143 (access to employment), a person seeking such employment.

• (3) An Order in Council under this section—

• (a) may make different provision for different cases;

• (b) may provide that the enactments to which this section applies, as applied, apply—

• (i) to individuals whether or not they are British subjects, and

• (ii) to bodies corporate whether or not they are incorporated under the law of a part of the United Kingdom,

and apply notwithstanding that the application may affect the activities of such an individual or body outside the United Kingdom;

• (c) may make provision for conferring jurisdiction on any court or class of court specified in the Order, or on employment tribunals, in respect of offences, causes of action or other matters arising in connection with offshore employment;

• (d) may provide that the enactments to which this section applies apply in relation to a person in offshore employment in a part of the areas referred to in subsection (1)(a) and (b);

• (e) may exclude from the operation of section 3 of the Territorial Waters Jurisdiction Act 1878 (consents required for prosecutions) proceedings for offences under the enactments to which this section applies in connection with offshore employment;

• (f) may provide that such proceedings shall not be brought without such consent as may be required by the Order;

• (g) may modify or exclude any of sections 281 to 285 (excluded classes of employment) or any corresponding provision of Northern Ireland legislation.

• (3A) An Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

• (4) Any jurisdiction conferred on a court or tribunal under this section is without prejudice to jurisdiction exercisable apart from this section, by that or any other court or tribunal.

• (5) In this section—

• cross-boundary petroleum field means a petroleum field that extends across the boundary between the United Kingdom sector of the continental shelf and a foreign sector;

• foreign sector of the continental shelf means an area outside the territorial waters of any state, within which rights with respect to the sea-bed and subsoil and their natural resources are exercisable by a state other than the United Kingdom;

• petroleum field means a geological structure identified as an oil or gas field by the Order in Council concerned; and

• United Kingdom sector of the continental shelf means the areas designated under section 1(7) of the Continental Shelf Act 1964.

Contracting out, &c.

Restriction on contracting out

288

• (1) Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports—

• (a) to exclude or limit the operation of any provision of this Act, or

• (b) to preclude a person from bringing—

• (i) proceedings before an employment tribunal or the Central Arbitration Committee under any provision of this Act, . . .

• (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) Subsection (1) does not apply to an agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action under— any of sections 18A to 18C of the Employment Tribunals Act 1996 (conciliation)

• (2A) Subsection (1) does not apply to an agreement to refrain from instituting or continuing any proceedings, other than excepted proceedings, specified in subsection (1)(b) of that section before an employment tribunal if the conditions regulating settlement agreements under this Act are satisfied in relation to the agreement.

• (2B) The conditions regulating settlement agreements under this Act are that—

• (a) the agreement must be in writing;

• (b) the agreement must relate to the particular proceedings;

• (c) the complainant must have received advice from a relevant independent adviser as to the terms and effect of the proposed agreement and in particular its effect on his ability to pursue his rights before an employment tribunal;

• (d) there must be in force, when the adviser gives the advice, a contract of insurance, or an indemnity provided for members of a profession or professional body, covering the risk of a claim by the complainant in respect of loss arising in consequence of the advice;

• (e) the agreement must identify the adviser; and

• (f) the agreement must state that the conditions regulating settlement agreements under this Act are satisfied.

• (2C) The proceedings excepted from subsection (2A) are proceedings on a complaint of non-compliance with section 188.

• (3) Subsection (1) does not apply—

• (a) to such an agreement as is referred to in section 185(5)(b) or (c) to the extent that it varies or supersedes an award under that section;

• (b) to any provision in a collective agreement excluding rights under Chapter II of Part IV (procedure for handling redundancies), if an order under section 198 is in force in respect of it.

• (4) A person is a relevant independent adviser for the purposes of subsection (2B)(c)—

• (a) if he is a qualified lawyer,

• (b) if he is an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union,

• (c) if he works at an advice centre (whether as an employee or a volunteer) and has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre, or

• (d) if he is a person of a description specified in an order made by the Secretary of State.

• (4A) But a person is not a relevant independent adviser for the purposes of subsection (2B)(c) in relation to the complainant—

• (a) if he is, is employed by or is acting in the matter for the other party or a person who is connected with the other party,

• (b) in the case of a person within subsection (4)(b) or (c), if the trade union or advice centre is the other party or a person who is connected with the other party,

• (c) in the case of a person within subsection (4)(c), if the complainant makes a payment for the advice received from him, or

• (d) in the case of a person of a description specified in an order under subsection (4)(d), if any condition specified in the order in relation to the giving of advice by persons of that description is not satisfied.

• (4B) In subsection (4)(a) qualified lawyer means—

• (a) as respects England and Wales, a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation (within the meaning of that Act), and

• (b) as respects Scotland, an advocate (whether in practice as such or employed to give legal advice), or a solicitor who holds a practising certificate.

• (4C) An order under subsection (4)(d) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

• (5) For the purposes of subsection (4A) any two persons are to be treated as connected—

• (a) if one is a company of which the other (directly or indirectly) has control, or

• (b) if both are companies of which a third person (directly or indirectly) has control.

• (6) An agreement under which the parties agree to submit a dispute to arbitration—

• (a) shall be regarded for the purposes of subsections (2) and (2A) as being an agreement to refrain from instituting or continuing proceedings if—

• (i) the dispute is covered by a scheme having effect by virtue of an order under section 212A, and

• (ii) the agreement is to submit it to arbitration in accordance with the scheme, but

• (b) shall be regarded for those purposes as neither being nor including such an agreement in any other case.

Employment governed by foreign law

289

For the purposes of this Act it is immaterial whether the law which (apart from this Act) governs any person’s employment is the law of the United Kingdom, or of a part of the United Kingdom, or not.

Employment tribunal proceedings

General provisions as to conciliation

290

Right of appeal from industrial tribunal

291

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Other supplementary provisions

Death of employee or employer

292

• (1) This section has effect in relation to the following provisions so far as they confer rights on employees or make provision in connection therewith—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) sections 168 to 173 (time off for trade union duties and activities);

• (c) sections 188 to 198 (procedure for handling redundancies).

• (1A) This section also has effect in relation to sections 145A to 151 so far as those sections confer rights on workers or make provision in connection therewith.

• (2) Where the employee or worker or employer dies, tribunal proceedings may be instituted or continued by a personal representative of the deceased employee or worker or, as the case may be, defended by a personal representative of the deceased employer.

• (3) If there is no personal representative of a deceased employee or worker, tribunal proceedings or proceedings to enforce a tribunal award may be instituted or continued on behalf of his estate by such other person as the employment tribunal may appoint, being either—

• (a) a person authorised by the employee or worker to act in connection with the proceedings before his death, or

• (b) the widower, widow, surviving civil partner, child, father, mother, brother or sister of the employee or worker.

In such a case any award made by the employment tribunal shall be in such terms and shall be enforceable in such manner as may be prescribed.

• (4) Any right arising under any of the provisions mentioned in subsection (1) or (1A) which by virtue of this section accrues after the death of the employee or worker in question shall devolve as if it had accrued before his death.

• (5) Any liability arising under any of those provisions which by virtue of this section accrues after the death of the employer in question shall be treated for all purposes as if it had accrued immediately before his death.

Regulations

293

• (1) The Secretary of State may by regulations prescribe anything authorised or required to be prescribed for the purposes of this Act.

• (2) The regulations may contain such incidental, supplementary or transitional provisions as appear to the Secretary of State to be necessary or expedient.

• (3) Regulations under this section are to be made by statutory instrument.

• (4) A statutory instrument containing regulations to which subsection (5) applies (whether alone or with other provision) may not be made unless a draft of the instrument is laid before and approved by a resolution of each House of Parliament.

• (5) This subsection applies to regulations prescribing anything for the purposes of—

• (a) section 70ZC (access agreements: response period and negotiation period);

• (b) section 70ZE (access agreements: period to make application to Central Arbitration Committee);

• (c) section 70ZF (access agreements: determinations by Central Arbitration Committee);

• (d) section 70ZJ (enforcement of access agreements: amounts payable for breach);

• (e) section 236A (detriment for taking industrial action).

• (6) Any other statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

Reciprocal arrangements with Northern Ireland

294

• (1) If provision is made by Northern Ireland legislation for purposes corresponding to the purposes of any provision of this Act re-enacting a provision of the Employment Protection Act 1975 or the Employment Protection (Consolidation) Act 1978, the Secretary of State may, with the consent of the Treasury, make reciprocal arrangements with the appropriate Northern Ireland authority for co-ordinating the relevant provisions of this Act with the corresponding Northern Ireland provisions so as to secure that they operate, to such extent as may be provided by the arrangements, as a single system.

• (2) The Secretary of State may make regulations for giving effect to any such arrangements.

• (3) The regulations may make different provision for different cases and may contain such supplementary, incidental and transitional provisions as appear to the Secretary of State to be necessary or expedient.

• (4) The regulations may provide that the relevant provisions of this Act shall have effect in relation to persons affected by the arrangements subject to such modifications and adaptations as may be specified in the regulations, including provisions—

• (a) for securing that acts, omission and events having any effect for the purposes of the Northern Ireland legislation have a corresponding effect for the purposes of the relevant provisions of this Act (but not so as to confer a right to double payment in respect of the same act, omission or event, and

• (b) for determining, in cases where rights accrue both under the relevant provisions of this Act and under the Northern Ireland legislation, which of this rights is available to the person concerned.

• (5) In this section the appropriate Northern Ireland authority means such authority as is specified in that behalf in the Northern Ireland legislation.

• (6) Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Interpretation

Meaning of “employee” and related expressions

295

• (1) In this Act—

• contract of employment means a contract of service or of apprenticeship,

• employee means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment, and

• employer, in relation to an employee, means the person by whom the employee is (or, where the employment has ceased, was) employed.

• (2) Subsection (1) has effect subject to section 235 and other provisions conferring a wider meaning on contract of employment or related expressions.

Meaning of “worker” and related expressions

296

• (1) In this Act worker means an individual who works, or normally works or seeks to work—

• (a) under a contract of employment, or

• (b) under any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his, or

• (c) in employment under or for the purposes of a government department (otherwise than as a member of the naval, military or air forces of the Crown) in so far as such employment does not fall within paragraph (a) or (b) above.

• (2) In this Act employer, in relation to a worker, means a person for whom one or more workers work, or have worked or normally work or seek to work.

• (3) This section has effect subject to sections 68(4), ... 145F(3) , 151(1B) and 236A(8).

Associated employers

297

For the purposes of this Act any two employers shall be treated as associated if—

• (a) one is a company of which the other (directly or indirectly) has control, or

• (b) both are companies of which a third person (directly or indirectly) has control;

and associated employer shall be construed accordingly.

Minor definitions: general

298

In this Act, unless the context otherwise requires—

• act and action each includes omission, and references to doing an act or taking action shall be construed accordingly;

• “agency worker” has the meaning given in regulation 3 of the Agency Workers Regulations 2010;

• “certificate of independence” means a certificate issued under—section 6(6), orsection 101A(4);

• contravention includes a failure to comply, and cognate expressions shall be construed accordingly;

• dismiss, dismissal and effective date of termination, in relation to an employee, shall be construed in accordance with Part X of the Employment Rights Act 1996;

• “legal professional privilege”, as respects Scotland, means confidentiality of communications;

• . . .

• tort, as respects Scotland, means delict, and cognate expressions shall be construed accordingly.

Index of defined expressions

299

In this Act the expressions listed below are defined by or otherwise fall to be construed in accordance with the provisions indicated—

Final provisions

Repeals, consequential amendments, transitional provisions and savings

300

• (1) The enactments specified in Schedule 1 are repealed to the extent specified.

• (2) The enactments specified in Schedule 2 are amended in accordance with that Schedule, the amendments being consequential on the provisions of this Act.

• (3) Schedule 3 contains transitional provisions and savings.

Extent

301

• (1) This Act extends to England and Wales and (apart from section 212A(6)) to Scotland.

• (2) The following provisions of this Act extend to Northern Ireland—

• (a) sections 13 and 14 (provisions as to property held in trust for trade union), and section 129 (application of provisions to employers’ associations) so far as it applies those sections;

• (b) Chapter VI of Part I (application of funds for political objects), except sections 86 to 88 (duties of employer who deducts union contributions), for the purposes of the application of that Chapter to trade unions or unincorporated employers’ associations having their head or main office outside Northern Ireland;

• (c) section 287 (offshore employment);

• (d) section 294 (reciprocal arrangements with Northern Ireland);

• (e) Schedule 1 (repeals) so far as it relates to enactments which extend to Northern Ireland, other than the Conspiracy and Protection of Property Act 1875;

• (f) Schedules 2 and 3 (consequential amendments, transitional provisions and savings), so far as they relate to enactments which extend to Northern Ireland;

but this Act does not otherwise extend there.

• (3) Subsection (2)(b) does not affect the operation of Article 71(2) to (4) of the Trade Union and Labour Relations (Northern Ireland) Order 1995 (application of Northern Ireland law to contributions by members in Northern Ireland); and the closing words of that subsection do not affect the operation in relation to persons or property in Northern Ireland of any provision of Chapter VII of Part I (amalgamations and similar matters) which is capable of so applying as part of the law of England and Wales or Scotland.

Commencement

302

This Act comes into force at the end of the period of three months beginning with the day on which it is passed.

Short title

303

This Act may be cited as the Trade Union and Labour Relations (Consolidation) Act 1992.

SCHEDULE 1

SCHEDULE 2

Parliamentary Commissioner Act 1967 (c. 13)

1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Transport Act 1968 (c. 73)

2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Equal Pay Act 1970 (c. 41)

3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

House of Commons Disqualification Act 1975 (c. 24)

4

• (1) The House of Commons Disqualification Act 1975 is amended as follows.

• (2) Part II of Schedule 1 (bodies of which all members are disqualified under that Act) shall continue to have effect with the following entries (originally inserted by paragraph 16(2) of Part IV of Schedule16 to the Employment Protection Act 1975)—

The Central Arbitration Committee.

The Council of the Advisory, Conciliation and Arbitration Service.

The Employment Appeal Tribunal.

.

• (3) In Part III of Schedule 1 (other disqualifying offices), for the entry inserted by paragraph 16(3) of Part IV of Schedule 16 to the Employment Protection Act 1975 substitute—

Certification Officer or any assistant certification officer.

.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Social Security Pensions Act 1975 (c. 60)

5

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sex Discrimination Act 1975 (c. 65)

6

In Part VIII of the Sex Discrimination Act 1975 (supplementary provisions), after section 85 (application to Crown) insert—

(85A) (1) Parts II and IV apply to an act done by an employer of a relevant member of the House of Commons staff, and to service as such a member, as they apply to an act done by and to service for the purposes of a Minister of the Crown or government department, and accordingly apply as if references to a contract of employment included references to the terms of service of such a member. (2) In this section “relevant member of the House of Commons staff” has the same meaning as in section 139 of the Employment Protection (Consolidation) Act 1978; and subsections (4) to (9) of that section (person to be treated as employer of House of Commons staff) apply, with any necessary modifications, for the purposes of Parts II and IV as they apply by virtue of this section.

.

Race Relations Discrimination Act 1976 (c. 74)

7

In Part X of the Race Relations Act 1976 (supplementary provisions), after section 75 (application to Crown) insert—

(75A) (1) Parts II and IV apply to an act done by an employer of a relevant member of the House of Commons staff, and to service as such a member, as they apply to an act done by and to service for the purposes of a Minister of the Crown or government department, and accordingly apply as if references to a contract of employment included references to the terms of service of such a member. (2) In this section “relevant member of the House of Commons staff” has the same meaning as in section 139 of the Employment Protection (Consolidation) Act 1978; and subsections (4) to (9) of that section (person to be treated as employer of House of Commons staff) apply, with any necessary modifications, for the purposes of Parts II and IV as they apply by virtue of this section.

.

Aircraft and Shipbuilding Industries Act 1977 (c. 3)

8

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Patents Act 1977 (c. 37)

9

In section 40 of the Patents Act 1977 (compensation for employees for certain inventions), in subsection (6) in the definition of “relevant collective agreement" for “the Trade Union and Labour Relations Act 1974" substitute “ the Trade Union and Labour Relations (Consolidation) Act 1992 ”.

House of Commons (Administration) Act 1978 (c. 36)

10

In Schedule 1 to the House of Commons (Administration) Act 1978 (the House of Commons Commission), in paragraph 5 (delegation of functions) for sub-paragraph (6) substitute—

(6) In sub-paragraph (5) “trade union”, and “recognised” in relation to a trade union, have the same meaning as in the Trade Union and Labour Relations (Consolidation) Act 1992.

.

Employment Protection (Consolidation) Act 1978 (c. 44)

11

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

14

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

16

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

18

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

19

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

20

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

21

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

22

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

23

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

24

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

25

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Crown Agents Act 1979 (c. 43)

26

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Agricultural Training Board Act 1982 (c. 9)

27

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Industrial Training Act 1982 (c. 10)

28

In section 21 of the Industrial Training Act 1982 (short title, extent and commencement), before subsection (2) (extent) insert—

(1A) Section 287(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (power to extend provisions to offshore employment) applies to the provisions of this Act as to the provisions of that Act.

;

Oil and Gas (Enterprise) Act 1982 (c. 23)

29

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Employment Act 1982 (c. 46)

30

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Insurance Companies Act 1982 (c. 50)

31

In section 2(2) of the Insurance Companies Act 1982 (exceptions from requirement of authorisation under that Act), and in section 15(3) of that Act (exceptions from regulatory provisions), for “assigned to them by section 28 of the Trade Union and Labour Relations Act 1974" substitute “ respectively assigned by section 1 and section 122(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 ”.

Value Added Tax Act 1983 (c. 55)

32

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Insolvency Act 1986 (c. 45)

33

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Wages Act 1986 (c. 48)

34

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Building Societies Act 1986 (c. 53)

35

In section 7(4)(c)(iii) of the Building Societies Act 1986 (shares held and deposits made by or on behalf of trade union) for “Trade Union and Labour Relations Act 1974" substitute “ Trade Union and Labour Relations (Consolidation) Act 1992 ”.

Sex Discrimination Act 1986 (c. 59)

36

In section 6 of the Sex Discrimination Act 1986 (application of provisions to collective agreements), in subsection (6) (meaning of “collective agreement") for the words from “section 29(1)" to “trade dispute)" substitute “ section 178(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 ”.

Income and Corporation Taxes Act 1988 (c. 1)

37

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Local Government Act 1988 (c. 9)

38

In section 17 of the Local Government Act 1988 (local and other public authority contracts: exclusion of non-commercial considerations), in subsection (8)—

• (a) in the definition of “industrial dispute", for “the Trade Union and Labour Relations Act 1974" substitute “ Part V of the Trade Union and Labour Relations (Consolidation) Act 1992 ”, and

• (b) in the closing words, for “Trade Union and Labour Relations Act 1974" substitute “ Trade Union and Labour Relations (Consolidation) Act 1992 ”.

Local Government and Housing Act 1989 (c. 42)

39

• (1) In section 12 of the Local Government and Housing Act 1989 (conflict of interest in staff negotiations), subsection (2) (definitions) is amended as follows.

• (2) For the definition of “member" substitute—

“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 its constituent or affiliated trade unions;

.

• (3) In the definition of “official" and “trade union" for “the Trade Union and Labour Relations Act 1974" substitute “ the Trade Union and Labour Relations (Consolidation) Act 1992 ”.

Industrial Relations (Northern Ireland) Order 1992 (S.I. 1992 No. 807 (N.I. 5))

40

• (1) The Industrial Relations (Northern Ireland) Order 1992 is amended as follows.

• (2) In Article 5 (lists of trade unions and employers’ associations)—

• (a) in paragraph (5)(a) for “either list maintained under section 8 of the Trade Union and Labour Relations Act 1974" substitute “ the list of trade unions or the list of employers’ associations kept under the Trade Union and Labour Relations (Consolidation) Act 1992 ”;

• (b) in paragraph (11) for “or employers’ associations maintained under section 8 of the Trade Union and Labour Relations Act 1974" substitute “ or the list of employers’ associations kept under the Trade Union and Labour Relations (Consolidation) Act 1992 ” and for “subsection (10) of that section" substitute “ section 2(5) or 123(5) of that Act ”.

• (3) In Article 6 (certification as independent trade union), in paragraphs (12) and (13) for “section 8 of the Employment Protection Act 1975" substitute “ section 6 of the Trade Union and Labour Relations (Consolidation) Act 1992 ”.

• (4) In Article 12 (returns by trade unions and employers’ associations outside Northern Ireland), in paragraph (1) for “section 11 of the Trade Union and Labour Relations Act 1974" substitute “ section 32 of the Trade Union and Labour Relations (Consolidation) Act 1992 ” and for “subsection (2)" substitute “ subsection (1) ”.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCHEDULE 3

Continuity of the law

1

• (1) The repeal and re-enactment of provisions in this Act does not affect the continuity of the law.

• (2) Anything done (including subordinate legislation made), or having effect as done, under a provision reproduced in this Act has effect as if done under the corresponding provision of this Act.

• (3) References (express or implied) in this Act or any other enactment, instrument or document to a provision of this Act shall, so far as the context permits, be construed as including, in relation to times, circumstances and purposes before the commencement of this Act, a reference to corresponding earlier provisions.

• (4) A reference (express or implied) in any enactment, instrument or other document to a provision reproduced in this Act shall be construed, so far as is required for continuing its effect, and subject to any express amendment made by this Act, as being, or as the case may required including, a reference to the corresponding provision of this Act.

General saving for old transitional provisions and savings

2

• (1) The repeal by this Act of a transitional provision or saving relating to the coming into force of a provision reproduced in this Act does not affect the operation of the transitional provision or saving, in so far as it is not specifically reproduced in this Act but remains capable of having effect in relation to the corresponding provision of this Act.

• (2) The repeal by this Act of an enactment previously repealed subject to savings does not affect the continued operation of those savings.

• (3) The repeal by this Act of a saving on the previous repeal of an enactment does not affect the operation of the saving in so far as it is not specifically reproduced in this Act but remains capable of having effect.

Effect of repeal of 1946 Act

3

The repeal by this Act of the Trade Disputes and Trade Unions Act 1946 shall not be construed as reviving in any respect the effect of the Trade Disputes and Trade Unions Act 1927.

Pre-1974 references to registered trade unions or employers’ associations

4

• (1) Any reference in an enactment passed, or instrument made under an enactment, before 16th September 1974—

• (a) to a trade union or employers’ association registered under—

• (i) the Trade Union Acts 1871 to 1964, or

• (ii) the Industrial Relations Act 1971, or

• (b) to an organisation of workers or an organisation of employers within the meaning of the Industrial Relations Act 1971,

shall be construed as a reference to a trade union or employers’ association within the meaning of this Act.

• (2) Subsection (1) does not apply to any enactment relating to income tax or corporation tax.

Enforceability of collective agreements

5

Section 179 of this Act (enforceability of collective agreements) does not apply to a collective agreement made on or after 1st December 1971 and before 16th September 1974.

Trade unions and employers’ associations ceasing to be incorporated by virtue of 1974 Act

6

• (1) The repeal by this Act of section 19 of the Trade Union and Labour Relations Act 1974 (transitional provisions for trade unions and employers’ associations ceasing to be incorporated) does not affect—

• (a) the title to property which by virtue of that section vested on 16th September 1974 in “the appropriate trustees" as defined by that section, or

• (b) any liability, obligation or right affecting such property which by virtue of that section became a liability, obligation or right of those trustees.

• (2) A certificate given by the persons who on that date were the president and general secretary of a trade union or employers’ association, or occupied positions equivalent to that of president and general secretary, that the persons named in the certificate are the appropriate trustees of the union or association for the purposes of section 19(2) of the Trade Union and Labour Relations Act 1974 is conclusive evidence that those persons were the appropriate trustees for those purposes.

• (3) A document which purports to be such a certificate shall be taken to be such a certificate unless the contrary is proved.

References to former Industrial Arbitration Board

7

Any reference to the former Industrial Arbitration Board in relation to which section 10(2) of the Employment Protection Act 1975 applied immediately before the commencement of this Act shall continue to be construed as a reference to the Central Arbitration Committee.

Effect of political resolution passed before 1984 amendments

8

A resolution under section 3 of the Trade Union Act 1913, or rule made for the purposes of that section, in relation to which section 17(2) of the Trade Union Act 1984 applied immediately before the commencement of this Act shall continue to have effect as if for any reference to the political objects to which section 3 of the 1913 Act formerly applied there were substituted a reference to the objects to which that section applied as amended by the 1984 Act.

Persons elected to trade union office before 1988 amendments

9

• (1) In relation to a person who was, within the period of five years ending with 25th July 1989, elected to a position to which the requirements of section 1 of the Trade Union Act 1984 were extended by virtue of section 12(1) of the Employment Act 1988—

• (a) the references in section 46(1)(a) and 58(2)(a) to satisfying the requirements of Chapter IV of Part I shall be disregarded, and

• (b) the period of five years mentioned in section 46(1)(b) shall be calculated from the date of that election.

• (2) Sub-paragraph (1) does not apply if the only persons entitled to vote in the election were themselves persons holding positions to which Chapter IV of Part I would have applied had that Chapter been in force at the time.

10

In relation to a person who was elected to a position to which Chapter IV of Part I applies before 26th July 1989, the reference in section 58(2)(a) (exemption of persons nearing retirement) to satisfying the requirements of that Chapter—

• (a) shall not be construed as requiring compliance with any provision corresponding to a provision of section 13 or 15 of the Employment Act 1988 (additional requirements as to elections) which was not then in force, and

• (b) in relation to an election before the commencement of section 14(2) of that Act (postal ballots) shall be construed as requiring compliance with section 3 of the Trade Union Act 1984 (non-postal ballots).

Qualification to act as auditor of trade union or employers’ association

11

• (1) Nothing in section 34 (eligibility for appointment as auditor) affects the validity of any appointment as auditor of a trade union or employers’ association made before 1st October 1991 (when section 389 of the Companies Act 1985 was repealed and replaced by the provisions of Part II of the Companies Act 1989).

• (2) A person who is not qualified as mentioned in section 34(1) may act as auditor of a trade union in respect of an accounting period if—

• (a) the union was registered under the Trade Union Acts 1871 to 1964 on 30th September 1971,

• (b) he acted as its auditor in respect of the last period in relation to which it was required to make an annual return under section 16 of the Trade Union Act 1871,

• (c) he has acted as its auditor in respect of every accounting period since that period, and

• (d) he retains an authorisation formerly granted by the Board of Trade or the Secretary of State under section 16(1)(b) of the Companies Act 1948 (adequate knowledge and experience, or pre-1947 practice).

Industrial Relations (Northern Ireland) Order 1992 (S.I. 1992/807 (N.I. 5))

12

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Use of existing forms, &c.

13

Any document made, served or issued on or after the commencement of this Act which contains a reference to an enactment repealed by this Act shall be construed, except so far as a contrary intention appears, as referring or, as the context may require, including a reference to the corresponding provision of this Act.

Saving for power to vary or revoke

14

The power of the Secretary of State by further order to vary or revoke the Funds for Trade Union Ballots Order 1982 extends to so much of section 115(2)(a) as reproduces the effect of Article 2 of that order.

The list of trade unions.

Limit on damages awarded against trade unions in actions in tort.

24A

• (1) This section applies in relation to a ballot of the members of a trade union on—

• (a) an election under Chapter IV for a position to which that Chapter applies,

• (b) a political resolution under Chapter VI, and

• (c) a resolution to approve an instrument of amalgamation or transfer under Chapter VII.

• (2) Where this section applies in relation to a ballot the trade union shall impose the duty of confidentiality in relation to the register of members’ names and addresses on the scrutineer appointed by the union for the purposes of the ballot and on any person appointed by the union as the independent person for the purposes of the ballot.

• (3) The duty of confidentiality in relation to the register of members’ names and addresses is, when imposed on a scrutineer or on an independent person, a duty—

• (a) not to disclose any name or address in the register except in permitted circumstances; and

• (b) to take all reasonable steps to secure that there is no disclosure of any such name or address by any other person except in permitted circumstances;

and any reference in this Act to “the duty of confidentiality” , in the context of a scrutineer or independent person, is a reference to the duty prescribed in this subsection.

• (4) The circumstances in which disclosure of a member’s name and address is permitted are—

• (a) where the member consents;

• (b) where it is required or requested by the Certification Officer for the purposes of the discharge of any of his functions or it is required for the purposes of the discharge of any of the functions of an inspector appointed by him;

• (c) where it is required for the purposes of the discharge of any of the functions of the scrutineer or independent person, as the case may be, under the terms of his appointment;

• (d) where it is required for the purposes of the investigation of crime or of criminal proceedings.

• (5) Any provision of this Part which incorporates the duty of confidentiality as respects the register into the appointment of a scrutineer or an independent person has the effect of imposing that duty on the scrutineer or independent person as a duty owed by him to the trade union.

• (6) The remedy for failure to comply with the requirements of this section is by way of application under section 25 (to the Certification Officer) or section 26 (to the court).

. . ..

32A

• (1) A trade union shall take all reasonable steps to secure that, not later than the end of the period of eight weeks beginning with the day on which the annual return of the union is sent to the Certification Officer, all the members of the union are provided with the statement required by this section by any of the methods allowed by subsection (2).

• (2) Those methods are—

• (a) the sending of individual copies of the statement to members; or

• (b) any other means (whether by including the statement in a publication of the union or otherwise) which it is the practice of the union to use when information of general interest to all its members needs to be provided to them.

• (3) The statement required by this section shall specify—

• (a) the total income and expenditure of the trade union for the period to which the return relates,

• (b) how much of the income of the union for that period consisted of payments in respect of membership,

• (c) the total income and expenditure for that period of any political fund of the union, and

• (d) the salary paid to and other benefits provided to or in respect of—

• (i) each member of the executive,

• (ii) the president, and

• (iii) the general secretary,

by the trade union during that period.

• (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 should 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.

Investigation of financial affairs

Limit on damages awarded against trade unions in actions in tort.

37A

• (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.

37B

• (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.

37C

• (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.

37D

• (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.

37E

• (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.

45A

• (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 136 of the Criminal Procedure (Svotland) Act 1995 (date of commencement of proceedings) applies as it applies for the purposes of that section.

45B

• (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).

45C

• (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 ....

• (1A) Where an application is made to the Certification Officer under this section, the Officer must ensure that, so far as is reasonably practicable, it is determined within six months of being made.

• (2) Where the Certification Officer is satisfied that a trade union has failed to comply with the requirement of section 45B, the Officer may make a declaration to that effect.

• (2A) Before deciding the matter the Certification Officer—

• (a) may make such enquiries as the Officer thinks fit,

• (b) must give the union and the applicant ... an opportunity to make written representations, and

• (c) may give the union and the applicant ... an opportunity to make oral representations.

• (2B) The Certification Officer must give reasons for the Officer's decision in writing.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (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.

• (5A) Where the Certification Officer makes a declaration he shall also, unless he 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.

• (5B) The following paragraphs have effect if a person applies to the Certification Officer under this section in relation to an alleged failure—

• (a) that person may not apply to the court under this section in relation to that failure;

• (b) on an application by a different person to the court under this section in relation to that failure, the court shall have due regard to any declaration, order, observations or reasons made or given by the Certification Officer regarding that failure and brought to the court’s notice.

• (5C) The following paragraphs have effect if a person applies to the court under this section in relation to an alleged failure—

• (a) that person may not apply to the Certification Officer under this section in relation to that failure;

• (b) on an application by a different person to the Certification Officer under this section in relation to that failure, the Certification Officer shall have regard to any declaration, order, observations or reasons made or given by the court regarding that failure and brought to the Certification Officer’s notice.

• (6) Where an order has been made under subsection (5) or (5A), 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 an application under this section.

• (7) Where the Certification Officer 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, unless he considers that it would be inappropriate to do so, shall proceed with his determination ... notwithstanding that the information has not been furnished to him by the specified date.

• (8) A declaration made by the Certification Officer under this section may be relied on as if it were a declaration made by the court.

• (9) An order made by the Certification Officer under this section may be enforced (by the Certification Officer, the applicant or a person mentioned in subsection (6)) in the same way as an order of the court.

45D

An appeal lies to the Employment Appeal Tribunal on any question of law arising in proceedings before or arising from any decision of the Certification Officer under section 24B, ... 25, 31 ... or 45C ....

51A

• (1) The trade union shall ensure that—

• (a) the storage and distribution of the voting papers for the purposes of the election, and

• (b) the counting of the votes cast in the election,

are undertaken by one or more independent persons appointed by the union.

• (2) A person is an independent person in relation to an election if—

• (a) he is the scrutineer, or

• (b) he is a person other than the scrutineer and the trade union has no grounds for believing either that he will carry out any functions conferred on him in relation to the election otherwise than competently or that his independence in relation to the union, or in relation to the election, might reasonably be called into question.

• (3) An appointment under this section shall require the person appointed to carry out his functions so as to minimise the risk of any contravention of requirements imposed by or under any enactment or the occurrence of any unfairness or malpractice.

• (4) The duty of confidentiality as respects the register is incorporated in an appointment under this section.

• (5) Where the person appointed to undertake the counting of votes is not the scrutineer, his appointment shall require him to send the voting papers back to the scrutineer as soon as reasonably practicable after the counting has been completed.

• (6) The trade union—

• (a) shall ensure that nothing in the terms of an appointment under this section is such as to make it reasonable for any person to call into question the independence of the person appointed in relation to the union,

• (b) shall ensure that a person appointed under this section 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 into question the independence of the person appointed in relation to the union, and

• (c) shall comply with all reasonable requests made by a person appointed under this section for the purposes of, or in connection with, the carrying out of his functions.

56A

An appeal lies to the Employment Appeal Tribunal on any question of law arising in proceedings before or arising from any decision of the Certification Officer under section 55.

Duty to provide membership audit certificate

68A

• (1) A worker may present a complaint to an employment tribunal that his employer has made a deduction from his wages in contravention of section 68—

• (a) within the period of three months beginning with the date of the payment of the wages from which the deduction, or (if the complaint relates to more than one deduction) the last of the deductions, was made, or

• (b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within that period, within such further period as the tribunal considers reasonable.

• (1A) Section 292A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (1)(a).

• (2) Where a tribunal finds that a complaint under this section is well founded, it shall make a declaration to that effect and shall order the employer to pay to the worker the whole amount of the deduction, less any such part of the amount as has already been paid to the worker by the employer.