Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52)

(The document as of February, 2008)

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(1) The Certification Officer may, on the application of a trade union--

(a) exempt a members' superannuation scheme which the union proposes to maintain from the requirements of section 39 (examination of proposals for new scheme), or

(b) exempt a members' superannuation scheme which the union maintains from the requirements of section 40 (periodical re-examination of scheme),

if he is satisfied that, by reason of the small number of members to which the scheme is applicable or for any other special reasons, it is unnecessary for the scheme to be examined in accordance with those provisions.

(2) An exemption may be revoked if it appears to the Certification Officer that the circumstances by reason of which it was granted have ceased to exist.

(3) Where an exemption is revoked under subsection (1)(b), the date as at which the next periodical examination is to be carried out under section 40 shall be such as the Certification Officer may direct.

(4) The Certification Officer may in any case direct that section 40 (periodical re-examination of schemes) shall apply to a trade union with the substitution for the reference to five years of a reference to such shorter period as may be specified in the direction.

42 Meaning of "appropriately qualified actuary"

In sections 39 and 40 an "appropriately qualified actuary" means a person who is either--

(a) a Fellow of the Institute of Actuaries, or

(b) a Fellow of the Faculty of Actuaries,

or is approved by the Certification Officer on the application of the trade union as a person having actuarial knowledge.

Supplementary

43 Newly-formed trade unions

(1) The following provisions of this Chapter do not apply to a trade union which has been in existence for less than twelve months--

(a) section 27 (duty to supply copy of rules),

(b) sections 32 to 37 (annual return, accounts and audit), and

(2) Sections 24 to 26 (register of members' names and addresses) do not apply to a trade union until more than one year has elapsed since its formation (by amalgamation or otherwise).

For this purpose the date of formation of a trade union formed otherwise than by amalgamation shall be taken to be the date on which the first members of the executive of the union are first appointed or elected.

44 Discharge of duties in case of union having branches or sections

(1) The following provisions apply where a trade union consists of or includes branches or sections.

(2) Any duty falling upon the union in relation to a branch or section under the provisions of--

section 28 (duty to keep accounting records),
sections 32 to 37 (annual return, accounts and audit), or
sections 38 to 42 (members' superannuation schemes),

shall be treated as discharged to the extent to which a branch or section discharges it instead of the union.

(3) In sections 29 to 31 (right of member to access to accounting records) references to a branch or section do not include a branch or section which is itself a trade union.

(4) Any duty falling upon a branch or section by reason of its being a trade union under--

section 24 (register of members' names and addresses),
section 28 (duty to keep accounting records),
sections 32 to 37 (annual return, accounts and audit), or
section 38 to 42 (members' superannuation schemes),

shall be treated as discharged to the extent to which the union of which it is a branch or section discharges the duty instead of it.

45 Offences

(1) If a trade union refuses or wilfully neglects to perform a duty imposed on it by or under any of the provisions of--

section 27 (duty to supply copy of rules),
sections 28 to 30 (accounting records),
sections 32 to 37 (annual return, accounts and audit), or
sections 38 to 42 (members' superannuation schemes),

it commits an offence.

(2) The offence shall be deemed to have been also committed by--

(a) every officer of the trade union who is bound by the rules of the union to discharge on its behalf the duty breach of which constitutes the offence, or

(b) if there is no such officer, every member of the general committee of management of the union.

(3) In any proceedings brought against an officer or member by virtue of subsection (2) in respect of a breach of duty, it is a defence for him to prove that he had reasonable cause to believe, and did believe, that some other person who was competent to discharge that duty was authorised to discharge it instead of him and had discharged it or would do so.

(4) A person who wilfully alters or causes to be altered a document which is required for the purposes of any of the provisions mentioned in subsection (1), with intent to falsify the document or to enable a trade union to evade any of those provisions, commits an offence.

(5) A person guilty of an offence under this section is liable on summary conviction--

(a) in the case of an offence under subsection (1), to a fine not exceeding level 3 on the standard scale;

(b) in the case of an offence under subsection (4), to a fine not exceeding level 5 on the standard scale.

Chapter IV Elections for certain positions

Duty to hold elections

46 Duty to hold elections for certain positions

(1) A trade union shall secure--

(a) that every person who holds a position in the union to which this Chapter applies does so by virtue of having been elected to it at an election satisfying the requirements of this Chapter, and

(b) that no person continues to hold such a position for more than five years without being re-elected at such an election.

(2) The positions to which this Chapter applies (subject as mentioned below) are--

(a) member of the executive,

(b) any position by virtue of which a person is a member of the executive,

(d) general secretary;

and the requirements referred to above are those set out in sections 47 to 52 below.

(3) In this Chapter "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 Chapter 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 13 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) 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).

(6) The provisions of this Chapter apply notwithstanding anything in the rules or practice of the union; and the terms and conditions on which a person is employed by the union shall be disregarded in so far as they would prevent the union from complying with the provisions of this Chapter.

Requirements to be satisfied with respect to elections

47 Candidates

(1) No member of the trade union shall be unreasonably excluded from standing as a candidate.

(2) No candidate shall be required, directly or indirectly, to be a member of a political party.

(3) A member of a trade union shall not be taken to be unreasonably excluded from standing as a candidate if he is excluded on the ground that he belongs to a class of which all the members are excluded by the rules of the union.

But a rule which provides for such a class to be determined by reference to whom the union chooses to exclude shall be disregarded.

48 Election addresses

(1) The trade union shall--

(a) provide every candidate with an opportunity of preparing an election address in his own words and of submitting it to the union to be distributed to the persons accorded entitlement to vote in the election; and

(b) secure that, so far as reasonably practicable, copies of every election address submitted to it in time are distributed to each of those persons by post along with the voting papers for the election.

(2) The trade union may determine the time by which an election address must be submitted to it for distribution; but the time so determined must not be earlier than the latest time at which a person may become a candidate in the election.

(3) The trade union may provide that election addresses submitted to it for distribution--

(a) must not exceed such length, not being less than one hundred words, as may be determined by the union, and

(b) may, as regards photographs and other matter not in words, incorporate only such matter as the union may determine.

(4) The trade union shall secure that no modification of an election address submitted to it is made by any person in any copy of the address to be distributed except--

(a) at the request or with the consent of the candidate, or

(b) where the modification is necessarily incidental to the method adopted for producing that copy.

(5) The trade union shall secure that the same method of producing copies is applied in the same way to every election address submitted and, so far as reasonably practicable, that no such facility or information as would enable a candidate to gain any benefit from--

(a) the method by which copies of the election addresses are produced, or

(b) the modifications which are necessarily incidental to that method,

is provided to any candidate without being provided equally to all the others.

(6) The trade union shall, so far as reasonably practicable, secure that the same facilities and restrictions with respect to the preparation, submission, length or modification of an election address, and with respect to the incorporation of photographs or other matter not in words, are provided or applied equally to each of the candidates.

(7) The arrangements made by the trade union for the production of the copies to be so distributed must be such as to secure that none of the candidates is required to bear any of the expense of producing the copies.

(8) No-one other than the candidate himself shall incur any civil or criminal liability in respect of the publication of a candidate's election address or of any copy required to be made for the purposes of this section.

49 Appointment of independent scrutineer

(1) The trade union shall, before the election is held, appoint a qualified independent person ("the scrutineer") to carry out--

(a) the functions in relation to the election which are required under this section to be contained in his appointment; and

(b) such additional functions in relation to the election as may be specified in his appointment.

(2) A person is a qualified independent person in relation to an election if--

(a) he satisfies such conditions as may be specified for the purposes of this section by order of the Secretary of State or is himself so specified; and

(b) 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.

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

(3) The scrutineer's appointment shall require him--

(a) to be the person who supervises the production and distribution of the voting papers and to whom the voting papers are returned by those voting;

(b) to take such steps as appear to him to be appropriate for the purpose of enabling him to make his report (see section 52);

(c) to make his report to the trade union as soon as reasonably practicable after the last date for the return of voting papers; and

(d) to retain custody of all voting papers returned for the purposes of the election--

(i) until the end of the period of one year beginning with the announcement by the union of the result of the election; and

(ii) if within that period an application is made under section 54 (complaint of failure to comply with election requirements), until the Certification Officer or the court authorises him to dispose of the papers.

(4) The trade union shall ensure that nothing in the terms of the scrutineer's appointment (including any additional functions specified in the appointment) is such as to make it reasonable for any person to call the scrutineer's independence in relation to the union into question.

(5) The trade union shall, before the scrutineer begins to carry out his functions, either--

(a) send a notice stating the name of the scrutineer to every member of the union to whom it is reasonably practicable to send such a notice, or

(b) take all such other steps for notifying members of the name of the scrutineer as it is the practice of the union to take when matters of general interest to all its members need to be brought to their attention.

(6) The trade union shall ensure that the scrutineer 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 the scrutineer's independence in relation to the union into question.

(7) The trade union shall comply with all reasonable requests made by the scrutineer for the purposes of, or in connection with, the carrying out of his functions.

50 Entitlement to vote

(1) Subject to the provisions of this section, entitlement to vote shall be accorded equally to all members of the trade union.

(2) The rules of the union may exclude entitlement to vote in the case of all members belonging to one of the following classes, or to a class falling within one of the following--

(a) members who are not in employment;

(b) members who are in arrears in respect of any subscription or contribution due to the union;

(3) The rules of the union may restrict entitlement to vote to members who fall within--

(a) a class determined by reference to a trade or occupation,

(b) a class determined by reference to a geographical area, or

or to members who fall within a class determined by reference to any combination of the factors mentioned in paragraphs (a), (b) and (c).

The reference in paragraph (c) to a section of a trade union includes a part of the union which is itself a trade union.

(4) Entitlement may not be restricted in accordance with subsection (3) if the effect is that any member of the union is denied entitlement to vote at all elections held for the purposes of this Chapter otherwise than by virtue of belonging to a class excluded in accordance with subsection (2).

51 Voting

(1) The method of voting must be by the marking of a voting paper by the person voting.

(2) Each voting paper must--

(a) state the name of the independent scrutineer and clearly specify the address to which, and the date by which, it is to be returned,

(b) be given one of a series of consecutive whole numbers every one of which is used in giving a different number in that series to each voting paper printed or otherwise produced for the purposes of the election, and

(3) Every person who is entitled to vote at the election must--

(a) be allowed to vote without interference from, or constraint imposed by, the union or any of its members, officials or employees, and

(b) so far as is reasonably practicable, be enabled to do so without incurring any direct cost to himself.

(4) So far as is reasonably practicable, every person who is entitled to vote at the election must--

(a) have sent to him by post, at his home address or another address which he has requested the trade union in writing to treat as his postal address, a voting paper which either lists the candidates at the election or is accompanied by a separate list of those candidates; and

(b) be given a convenient opportunity to vote by post.

(5) The ballot shall be conducted so as to secure that--

(a) so far as is reasonably practicable, those voting do so in secret, and

(b) the votes given at the election are fairly and accurately counted.

For the purposes of paragraph (b) an inaccuracy in counting shall be disregarded if it is accidental and on a scale which could not affect the result of the election.

(6) The ballot shall be so conducted as to secure that the result of the election is determined solely by counting the number of votes cast directly for each candidate.

(7) Nothing in subsection (6) shall be taken to prevent the system of voting used for the election being the single transferable vote, that is, a vote capable of being given so as to indicate the voter's order of preference for the candidates and of being transferred to the next choice--

(a) when it is not required to give a prior choice the necessary quota of votes, or

(b) when, owing to the deficiency in the number of votes given for a prior choice, that choice is eliminated from the list of candidates.

52 Scrutineer's report

(1) The scrutineer's report on the election shall state--

(a) the number of voting papers distributed for the purposes of the election,

(b) the number of voting papers returned to the scrutineer,

(d) the number of spoiled or otherwise invalid voting papers returned.

(2) The report shall also state whether the scrutineer is satisfied--

(a) that there are no reasonable grounds for believing that there was any contravention of a requirement imposed by or under any enactment in relation to the election,

(b) that the arrangements made with respect to the production, storage, distribution, return or other handling of the voting papers used in the election, and the arrangements for the counting of the votes, included all such security arrangements as were reasonably practicable for the purpose of minimising the risk that any unfairness or malpractice might occur, and

(c) that he has been able to carry out his functions without such interference as would make it reasonable for any person to call his independence in relation to the union into question;

and if he is not satisfied as to any of those matters, the report shall give particulars of his reasons for not being satisfied as to that matter.

(3) The trade union shall not publish the result of the election until it has received the scrutineer's report.

(4) The trade union shall within the period of three months after it receives the report either--

(a) send a copy of the report to every member of the union to whom it is reasonably practicable to send such a copy; or

(b) take all such other steps for notifying the contents of the report to the members of the union (whether by publishing the report or otherwise) as it is the practice of the union to take when matters of general interest to all its members need to be brought to their attention.

(5) Any such copy or notification shall be accompanied by a statement that the union will, on request, supply any member of the union with a copy of the report, either free of charge or on payment of such reasonable fee as may be specified in the notification.

(6) The trade union shall so supply any member of the union who makes such a request and pays the fee (if any) notified to him.

53 Uncontested elections

Nothing in this Chapter shall be taken to require a ballot to be held at an uncontested election.

Remedy for failure to comply with requirements

54 Remedy for failure to comply with requirements: general

(1) The remedy for a failure on the part of a trade union to comply with the requirements of this Chapter is by way of application under section 55 (to the Certification Officer) or section 56 (to the court).

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.

(2) An application under those sections may be made--

(a) by a person who is a member of the trade union (provided, where the election has been held, he was also a member at the time when it was held), or

(b) by a person who is or was a candidate at the election;

and the references in those sections to a person having a sufficient interest are to such a person.

(3) No such application may be made after the end of the period of one year beginning with the day on which the union announced the result of the election.

55 Application to Certification Officer

(1) A person having a sufficient interest (see section 54(2)) who claims that a trade union has failed to comply with any of the requirements of this Chapter may apply to the Certification Officer for a declaration to that effect.

(2) On an application being made to him, the Certification Officer shall--

(a) make such enquiries as he thinks fit, and

(b) where he considers it appropriate, give the applicant and the trade union an opportunity to be heard,

and may make or refuse the declaration asked for.

(3) If he makes a declaration he shall specify in it the provisions with which the trade union has failed to comply.

(4) Where he makes a declaration and is satisfied that steps have been taken by the union with a view to remedying the declared failure, or securing that a failure of the same or any similar kind does not occur in future, or that the union has agreed to take such steps, he shall specify those steps in the declaration.

(5) Whether he makes or refuses a declaration, he shall give reasons for his decision in writing; and the reasons may be accompanied by written observations on any matter arising from, or connected with, the proceedings.

(6) 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.

(7) Where he 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.

56 Application to court

(1) A person having a sufficient interest (see section 54(2)) who claims that a trade union has failed to comply with any of the requirements of this Chapter may apply to the court for a declaration to that effect.

(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.

(3) If the court makes the declaration asked for, it shall specify in the declaration the provisions with which the trade union has failed to comply.

(4) Where the court makes a declaration it shall also, unless it 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 court 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.

(5) Where the court makes an order requiring the union to hold a fresh election, the court shall (unless it 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.

(6) 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.

(7) Without prejudice to any other power of the court, the court may on an application under this section grant such interlocutory relief (in Scotland, such interim order) as it considers appropriate.

Supplementary

57 Exemption of newly-formed trade unions, &c

(1) The provisions of this Chapter do not apply to a trade union until more than one year has elapsed since its formation (by amalgamation or otherwise).

(2) Where a trade union is formed by amalgamation, the provisions of this Chapter do not apply in relation to a person who--

(a) by virtue of an election held a position to which this Chapter applies in one of the amalgamating unions immediately before the amalgamation, and

(b) becomes the holder of a position to which this Chapter applies in the amalgamated union in accordance with the instrument of transfer,

until after the end of the period for which he would have been entitled in accordance with this Chapter to continue to hold the first-mentioned position without being re-elected.

(3) Where a trade union transfers its engagements to another trade union, the provisions of this Chapter do not apply in relation to a person who--

(a) held a position to which this Chapter applies in the transferring union immediately before the transfer, and

(b) becomes the holder of a position to which this Chapter applies in the transferee union in accordance with the instrument of transfer,

until after the end of the period of one year beginning with the date of the transfer or, if he held the first-mentioned position by virtue of an election, any longer period for which he would have been entitled in accordance with this Chapter to continue to hold that position without being re-elected.

58 Exemption of certain persons nearing retirement

(1) Section 46(1)(b) (requirement of re-election) does not apply to a person holding a position to which this Chapter applies if the following conditions are satisfied.

(2) The conditions are that--

(a) he holds the position by virtue of having been elected at an election in relation to which the requirements of this Chapter were satisfied,

(b) he is a full-time employee of the union by virtue of the position,

(d) he is entitled under the rules of the union to continue as the holder of the position until retirement age without standing for re-election,

(e) he has been a full-time employee of the union for a period (which need not be continuous) of at least ten years, and

(f) the period between the day on which the election referred to in paragraph (a) took place and the day immediately preceding that on which paragraph (c) is first satisfied does not exceed five years.

(3) For the purposes of this section "retirement age", in relation to any person, means the earlier of--

(a) the age fixed by, or in accordance with, the rules of the union for him to retire from the position in question, or

(b) the age which is for the time being pensionable age for the purpose of Parts I to VI of the [1992 c. 4.] Social Security (Contributions and Benefits) Act 1992.

59 Period for giving effect to election

Where a person holds a position to which this Chapter applies immediately before an election at which he is not re-elected to that position, nothing in this Chapter shall be taken to require the union to prevent him from continuing to hold that position for such period (not exceeding six months) as may reasonably be required for effect to be given to the result of the election.

60 Overseas members

(1) A trade union which has overseas members may choose whether or not to accord any of those members entitlement to vote at an election for a position to which this Chapter applies.

(2) An "overseas member" means a member of the union (other than a merchant seaman or offshore worker) who is outside Great Britain throughout the period during which votes may be cast.

For this purpose--

"merchant seaman" means a person whose employment, or the greater part of it, is carried out on board sea-going ships; and
"offshore worker" means a person in offshore employment, other than one who is in such employment in an area where the law of Northern Ireland applies.

(3) Where the union chooses to accord an overseas member entitlement to vote, section 51 (requirements as to voting) applies in relation to him; but nothing in section 47 (candidates) or section 50 (entitlement to vote) applies in relation to an overseas member or in relation to a vote cast by such a member.

61 Other supplementary provisions

(1) For the purposes of this Chapter the date on which a contested election is held shall be taken, in the case of an election in which votes may be cast on more than one day, to be the last of those days.

(2) Nothing in this Chapter affects the validity of anything done by a person holding a position to which this Chapter applies.

Chapter V Rights of trade union members

Right to a ballot before industrial action

62 Right to a ballot before industrial action

(1) A member of a trade union who claims that members of the union, including himself, are likely to be or have been induced by the union to take part or to continue to take part in industrial action which does not have the support of a ballot may apply to the court for an order under this section.

(2) For this purpose industrial action shall be regarded as having the support of a ballot only if--

(a) the union has held a ballot in respect of the action in relation to which the requirements of sections 227 to 232 were satisfied and in which the applicant was accorded entitlement to vote,

(b) the majority voting in the ballot answered "Yes" to the question applicable in accordance with section 229(2) to industrial action of the kind which the applicant has been or is likely to be induced to take part in, and

(3) Where on an application under this section the court is satisfied that the claim is well-founded, it shall make such order as it considers appropriate for requiring the union to take steps for ensuring--

(a) that there is no, or no further, inducement of members of the union to take part or to continue to take part in the industrial action to which the application relates, and

(b) that no member engages in conduct after the making of the order by virtue of having been induced before the making of the order to take part or continue to take part in the action.

(4) Without prejudice to any other power of the court, the court may on an application under this section grant such interlocutory relief (in Scotland, such interim order) as it considers appropriate.

(5) For the purposes of this section an act shall be taken to be done by a trade union if it is authorised or endorsed by the union; and the provisions of section 20(2) to (4) apply for the purpose of determining whether an act is to be taken to be so authorised or endorsed.

Those provisions also apply in relation to proceedings for failure to comply with an order under this section as they apply in relation to the original proceedings.

(6) In this section--

"inducement" includes an inducement which is or would be ineffective, whether because of the member's unwillingness to be influenced by it or for any other reason; and
"industrial action" means a strike or other industrial action by persons employed under contracts of employment.

(7) Where a person holds any office or employment under the Crown on terms which do not constitute a contract of employment between that person and the Crown, those terms shall nevertheless be deemed to constitute such a contract for the purposes of this section.

(8) References in this section to a contract of employment include any contract under which one person personally does work or performs services for another; and related expressions shall be construed accordingly.

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