Employment Relations Bill - continued        House of Lords
SCHEDULE 6, THE CERTIFICATION OFFICER - continued

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Breach of union rules
     19. In Part I, after Chapter VII there shall be inserted-
 
 
"CHAPTER VIIA
  BREACH OF RULES
Right to apply to Certification Officer.     108A. - (1) A person who claims that there has been a breach or threatened breach of the rules of a trade union relating to any of the matters mentioned in subsection (2) may apply to the Certification Officer for a declaration to that effect, subject to subsections (3) to (7).
 
      (2) The matters are-
 
 
    (a) the appointment or election of a person to, or the removal of a person from, any office;
 
    (b) disciplinary proceedings by the union (including expulsion);
 
    (c) the balloting of members on any issue other than industrial action;
 
    (d) the constitution or proceedings of any executive committee or of any decision-making meeting;
 
    (e) such other matters as may be specified in an order made by the Secretary of State.
      (3) The applicant must be a member of the union, or have been one at the time of the alleged breach or threatened breach.
 
      (4) A person may not apply under subsection (1) in relation to a claim if he is entitled to apply under section 80 in relation to the claim.
 
      (5) No application may be made regarding-
 
 
    (a) the dismissal of an employee of the union;
 
    (b) disciplinary proceedings against an employee of the union.
      (6) An application must be made-
 
 
    (a) within the period of six months starting with the day on which the breach or threatened breach is alleged to have taken place, or
 
    (b) if within that period any internal complaints procedure of the union is invoked to resolve the claim, within the period of six months starting with the earlier of the days specified in subsection (7).
      (7) Those days are-
 
 
    (a) the day on which the procedure is concluded, and
 
    (b) the last day of the period of one year beginning with the day on which the procedure is invoked.
      (8) The reference in subsection (1) to the rules of a union includes references to the rules of any branch or section of the union.
 
      (9) In subsection (2)(c) "industrial action" means a strike or other industrial action by persons employed under contracts of employment.
 
      (10) For the purposes of subsection (2)(d) a committee is an executive committee if-
 
 
    (a) it is a committee of the union concerned and has power to make executive decisions on behalf of the union or on behalf of a constituent body,
 
    (b) it is a committee of a major constituent body and has power to make executive decisions on behalf of that body, or
 
    (c) it is a sub-committee of a committee falling within paragraph (a) or (b).
      (11) For the purposes of subsection (2)(d) a decision-making meeting is-
 
 
    (a) a meeting of members of the union concerned (or the representatives of such members) which has power to make a decision on any matter which, under the rules of the union, is final as regards the union or which, under the rules of the union or a constituent body, is final as regards that body, or
 
    (b) a meeting of members of a major constituent body (or the representatives of such members) which has power to make a decision on any matter which, under the rules of the union or the body, is final as regards that body.
      (12) For the purposes of subsections (10) and (11), in relation to the trade union concerned-
 
 
    (a) a constituent body is any body which forms part of the union, including a branch, group, section or region;
 
    (b) a major constituent body is such a body which has more than 1,000 members.
      (13) Any order under subsection (2)(e) shall be made by statutory instrument; and no such order shall be made unless a draft of it has been laid before and approved by resolution of each House of Parliament.
 
      (14) If a person applies to the Certification Officer under this section in relation to an alleged breach or threatened breach he may not apply to the court in relation to the breach or threatened 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.
 
      (15) If-
 
 
    (a) a person applies to the court in relation to an alleged breach or threatened breach, and
 
    (b) the breach or threatened 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 or threatened breach.
 
Declarations and orders.     108B. - (1) The Certification Officer may refuse to accept an application under section 108A unless he is satisfied that the applicant has taken all reasonable steps to resolve the claim by the use of any internal complaints procedure of the union.
 
      (2) If he accepts an application under section 108A 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, and
 
    (e) shall, whether he makes or refuses the declaration, give reasons for his decision in writing.
      (3) 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 breach, or withdraw the threat of a breach, 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 breach or threat of the same or a similar kind does not occur in future.
      (4) The Certification Officer shall in an order imposing any such requirement as is mentioned in subsection (3)(a) specify the period within which the union is to comply with the requirement.
 
      (5) 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.
 
      (6) A declaration made by the Certification Officer under this section may be relied on as if it were a declaration made by the court.
 
      (7) 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.
 
      (8) An enforcement order made by the Certification Officer under this section may be enforced in the same way as an order of the court.
 
      (9) An order under section 108A(2)(e) may provide that, in relation to an application under section 108A with regard to a prescribed matter, the preceding provisions of this section shall apply with such omissions or modifications as may be specified in the order; and a prescribed matter is such matter specified under section 108A(2)(e) as is prescribed under this subsection.
 
Appeals from Certification Officer.     108C. 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 this Chapter."
 
 
Employers' associations
     20. - (1) Section 132 (provisions about application of funds for political objects to apply to unincorporated employers' associations) shall be amended as follows.
 
      (2) For "The" substitute "(1) Subject to subsections (2) to (5), the".
 
      (3) After subsection (1) (as created by sub-paragraph (2)) insert-
 
 
    "(2) Subsection (1) does not apply to these provisions-
 
 
    (a) section 72A;
 
    (b) in section 80, subsections (5A) to (5C) and (8) to (10);
 
    (c) in section 81, subsection (8).
      (3) In its application to an unincorporated employers' association, section 79 shall have effect as if at the end of subsection (1) there were inserted-
 
  "The making of an application to the Certification Officer does not prevent the applicant, or any other person, from making an application to the court in respect of the same matter."
 
      (4) In its application to an unincorporated employers' association, section 80(2)(b) shall have effect as if the words "where he considers it appropriate," were inserted at the beginning.
 
      (5) In its application to an unincorporated employers' association, section 81 shall have effect as if after subsection (1) there were inserted-
 
    "(2) If an application in respect of the same matter has been made to the Certification Officer, the court shall have due regard to any declaration, reasons or observations of his which are brought to its notice."
 
     21. In section 133 (provisions about amalgamations and similar matters to apply to unincorporated employers' associations) in subsection (2)(c) after "101(3)" there shall be inserted ",103(2A) and (6) to (9)".
 
 
Procedure before Certification Officer
     22. In section 256 (procedure before Certification Officer) for subsection (2) (provision for restricting disclosure of individual's identity) there shall be substituted-
 
 
    "(2) He shall in particular make provision about the disclosure, and restriction of the disclosure, of the identity of an individual who has made or is proposing to make any such application or complaint.
 
      (2A) Provision under subsection (2) shall be such that if the application or complaint relates to a trade union-
 
 
    (a) the individual's identity is disclosed to the union unless the Certification Officer thinks the circumstances are such that it should not be so disclosed;
 
    (b) the individual's identity is disclosed to such other persons (if any) as the Certification Officer thinks fit."
     23. After section 256 there shall be inserted-
 
 
"Vexatious litigants.     256A. - (1) The Certification Officer may refuse to entertain any application or complaint made to him under a provision of Chapters III to VIIA of Part I by a vexatious litigant.
 
    (2) The Certification Officer must give reasons for such a refusal.
 
      (3) Subsection (1) does not apply to a complaint under section 37E(1)(b) or to an application under section 41.
 
      (4) For the purposes of subsection (1) a vexatious litigant is a person who is the subject of-
 
 
    (a) an order which is made under section 33(1) of the Employment Tribunals Act 1996 and which remains in force,
 
    (b) a civil proceedings order or an all proceedings order which is made under section 42(1) of the Supreme Court Act 1981 and which remains in force,
 
    (c) an order which is made under section 1 of the Vexatious Actions (Scotland) Act 1898, or
 
    (d) an order which is made under section 32 of the Judicature (Northern Ireland) Act 1978.
Vexatious litigants: applications disregarded.     256B. - (1) For the purposes of a relevant enactment an application to the Certification Officer shall be disregarded if-
 
 
    (a) it was made under a provision mentioned in the relevant enactment, and
 
    (b) it was refused by the Certification Officer under section 256A(1).
      (2) The relevant enactments are sections 26(8), 31(7), 45C(5B), 56(8), 72A(10), 81(8) and 108A(13)."
 
 
Annual report by Certification Officer"
     24. In section 258(1) (Certification Officer: annual report) for "calendar year" there shall be substituted "financial year".
 
 
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Prepared 9 July 1999