Employment Relations Bill - continued        House of Lords

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SCHEDULE 6
 
  THE CERTIFICATION OFFICER
 
Introduction
     1. The Trade Union and Labour Relations (Consolidation) Act 1992 shall be amended as provided by this Schedule.
 
 
Register of members
     2. In section 24 (duty to maintain register of members' names and addresses) the second sentence of subsection (6) (application to Certification Officer does not prevent application to court) shall be omitted.
 
     3. In section 24A (securing confidentiality of register during ballots) the second sentence of subsection (6) (application to Certification Officer does not prevent application to court) shall be omitted.
 
     4. - (1) Section 25 (application to Certification Officer for declaration of breach of duty regarding register of members' names and addresses) shall be amended as follows.
 
      (2) In subsection (2)(b) (duty to give opportunity to be heard where Certification Officer considers it appropriate) omit "where he considers it appropriate,".
 
      (3) After subsection (5) insert-
 
 
    "(5A) Where the Certification Officer makes a declaration he shall also, unless he considers that to do so would be inappropriate, make an enforcement order, that is, an order imposing on the union one or both of the following requirements-
 
 
    (a) to take such steps to remedy the declared failure, within such period, as may be specified in the order;
 
    (b) to abstain from such acts as may be so specified with a view to securing that a failure of the same or a similar kind does not occur in future.
      (5B) Where an enforcement order has been made, any person who is a member of the union and was a member at the time it was made is entitled to enforce obedience to the order as if he had made the application on which the order was made."
 
      (4) After subsection (8) insert-
 
 
    "(9) A declaration made by the Certification Officer under this section may be relied on as if it were a declaration made by the court.
 
      (10) An enforcement order made by the Certification Officer under this section may be enforced in the same way as an order of the court.
 
      (11) The following paragraphs have effect if a person applies under section 26 in relation to an alleged failure-
 
 
    (a) that person may not apply under this section in relation to that failure;
 
    (b) on an application by a different person under this section in relation to that failure, the Certification Officer shall have due 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."
     5. - (1) Section 26 (application to court for declaration of breach of duty regarding register of members' names and addresses) shall be amended as follows.
 
      (2) Omit subsection (2) (position where application in respect of the same matter has been made to Certification Officer).
 
      (3) After subsection (7) insert-
 
 
    "(8) The following paragraphs have effect if a person applies under section 25 in relation to an alleged failure-
 
 
    (a) that person may not apply under this section in relation to that failure;
 
    (b) on an application by a different person 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."
 
Accounting records
     6. - (1) Section 31 (remedy for failure to comply with request for access to accounting records) shall be amended as follows.
 
      (2) In subsection (1) after "the court" insert "or to the Certification Officer".
 
      (3) In subsection (2) (court to make order if claim well-founded) after "Where" insert "on an application to it" and for "that person" substitute "the applicant".
 
      (4) After subsection (2) insert-
 
 
    "(2A) On an application to him the Certification Officer shall-
 
 
    (a) make such enquiries as he thinks fit, and
 
    (b) give the applicant and the trade union an opportunity to be heard.
      (2B) Where the Certification Officer is satisfied that the claim is well-founded he shall make such order as he considers appropriate for ensuring that the applicant-
 
 
    (a) is allowed to inspect the records requested,
 
    (b) is allowed to be accompanied by an accountant when making the inspection of those records, and
 
    (c) is allowed to take, or is supplied with, such copies of, or of extracts from, the records as he may require.
      (2C) In exercising his functions under this section the Certification Officer shall ensure that, so far as is reasonably practicable, an application made to him is determined within six months of being made."
 
      (5) In subsection (3) (court's power to grant interlocutory relief) after "an application" insert "to it".
 
      (6) After subsection (3) insert-
 
 
    "(4) 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 of the application notwithstanding that the information has not been furnished to him by the specified date.
 
      (5) An order made by the Certification Officer under this section may be enforced in the same way as an order of the court.
 
      (6) If a person applies to the court under this section in relation to an alleged failure he may not apply to the Certification Officer under this section in relation to that failure.
 
      (7) If a person applies to the Certification Officer under this section in relation to an alleged failure he may not apply to the court under this section in relation to that failure."
 
 
Offenders
     7. - (1) Section 45C (application to Certification Officer or court for declaration of breach of duty to secure positions not held by certain offenders) shall be amended as follows.
 
      (2) In subsection (2) (Certification Officer's powers and duties) insert before paragraph (a)-
 
 
    "(aa) shall make such enquiries as he thinks fit,"
      (3) In subsection (2)(a) (duty to give opportunity to be heard where Certification Officer considers it appropriate) omit ", where he considers it appropriate,".
 
      (4) Omit subsections (3) and (4) (different applications in respect of the same matter).
 
      (5) After subsection (5) insert-
 
 
    "(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) In subsection (6) (entitlement to enforce order) after "been made" insert "under subsection (5) or (5A)".
 
      (7) After subsection (6) insert-
 
 
    "(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 of the application 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 in the same way as an order of the court."
 
 
Trade union administration: appeals
     8. After section 45C there shall be inserted-
 
 
"Appeals from Certification Officer.     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 25, 31 or 45C."
 
 
Elections
     9. In section 54 (remedy for failure to comply with the duty regarding elections) the second sentence of subsection (1) (application to Certification Officer does not prevent application to court) shall be omitted.
 
     10. - (1) Section 55 (application to Certification Officer for declaration of breach of duty regarding elections) shall be amended as follows.
 
      (2) In subsection (2)(b) (duty to give opportunity to be heard where Certification Officer considers it appropriate) omit "where he considers it appropriate,".
 
      (3) After subsection (5) insert-
 
 
    "(5A) Where the Certification Officer makes a declaration he shall also, unless he considers that to do so would be inappropriate, make an enforcement order, that is, an order imposing on the union one or more of the following requirements-
 
 
    (a) to secure the holding of an election in accordance with the order;
 
    (b) to take such other steps to remedy the declared failure as may be specified in the order;
 
    (c) to abstain from such acts as may be so specified with a view to securing that a failure of the same or a similar kind does not occur in future.
  The Certification Officer shall in an order imposing any such requirement as is mentioned in paragraph (a) or (b) specify the period within which the union is to comply with the requirements of the order.
 
      (5B) Where the Certification Officer makes an order requiring the union to hold a fresh election, he shall (unless he considers that it would be inappropriate to do so in the particular circumstances of the case) require the election to be conducted in accordance with the requirements of this Chapter and such other provisions as may be made by the order.
 
      (5C) Where an enforcement order has been made-
 
 
    (a) any person who is a member of the union and was a member at the time the order was made, or
 
    (b) any person who is or was a candidate in the election in question,
  is entitled to enforce obedience to the order as if he had made the application on which the order was made."
 
      (4) After subsection (7) insert-
 
 
    "(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 enforcement order made by the Certification Officer under this section may be enforced in the same way as an order of the court.
 
      (10) The following paragraphs have effect if a person applies under section 56 in relation to an alleged failure-
 
 
    (a) that person may not apply under this section in relation to that failure;
 
    (b) on an application by a different person under this section in relation to that failure, the Certification Officer shall have due 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."
     11. - (1) Section 56 (application to court for declaration of failure to comply with requirements regarding elections) shall be amended as follows.
 
      (2) Omit subsection (2) (position where application in respect of the same matter has been made to the Certification Officer).
 
      (3) After subsection (7) insert-
 
 
    "(8) The following paragraphs have effect if a person applies under section 55 in relation to an alleged failure-
 
 
    (a) that person may not apply under this section in relation to that failure;
 
    (b) on an application by a different person 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."
     12. After section 56 there shall be inserted-
 
 
"Appeals from Certification Officer.     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."
 
 
Application of funds for political objects
     13. After section 72 there shall be inserted-
 
 
"Application of funds in breach of section 71.     72A. - (1) A person who is a member of a trade union and who claims that it has applied its funds in breach of section 71 may apply to the Certification Officer for a declaration that it has done so.
 
    (2) On an application under this section the Certification Officer-
 
 
    (a) shall make such enquiries as he thinks fit,
 
    (b) shall give the applicant and the union an opportunity to be heard,
 
    (c) shall ensure that, so far as is reasonably practicable, the application is determined within six months of being made,
 
    (d) may make or refuse the declaration asked for,
 
    (e) shall, whether he makes or refuses the declaration, give reasons for his decision in writing, and
 
    (f) may make written observations on any matter arising from, or connected with, the proceedings.
      (3) If he makes a declaration he shall specify in it-
 
 
    (a) the provisions of section 71 breached, and
 
    (b) the amount of the funds applied in breach.
      (4) If he makes a declaration and is satisfied that the union has taken or agreed to take steps with a view to-
 
 
    (a) remedying the declared breach, or
 
    (b) securing that a breach of the same or any similar kind does not occur in future,
  he shall specify those steps in making the declaration.
 
      (5) If he makes a declaration he may make such order for remedying the breach as he thinks just under the circumstances.
 
      (6) 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 of the application notwithstanding that the information has not been furnished to him by the specified date.
 
      (7) A declaration made by the Certification Officer under this section may be relied on as if it were a declaration made by the court.
 
      (8) Where an order has been made under this section, any person who is a member of the union and was a member at the time it was made is entitled to enforce obedience to the order as if he had made the application on which the order was made.
 
      (9) An order made by the Certification Officer under this section may be enforced in the same way as an order of the court.
 
      (10) If a person applies to the Certification Officer under this section in relation to an alleged breach he may not apply to the court in relation to the breach; but nothing in this subsection shall prevent such a person from exercising any right to appeal against or challenge the Certification Officer's decision on the application to him.
 
      (11) If-
 
 
    (a) a person applies to the court in relation to an alleged breach, and
 
    (b) the breach is one in relation to which he could have made an application to the Certification Officer under this section,
  he may not apply to the Certification Officer under this section in relation to the breach."
 
 
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Prepared 14 April 1999