Certification Officer could get new powers to fine rule-breaking trade unions

The Certification Officer, which regulates trade unions, cannot currently fine unions for breaches of their statutory obligations under the Trade Union and Labour Relations Act (TULRA). Instead, it can issue an enforcement order or publish a declaration on its website. Section 19 of the 2016 Trade Union Act would, once enacted, allow it to also impose financial penalties of between £200 and £20,000.

Labour relations expert Sarah Ashberry of Pinsent Masons, the law firm behind Out-Law.com, said that the Trade Union Act, which came into force last month, had already extended the powers of the Certification Officer. The consultation, which reflected commitments made during the debate on the new legislation, was about whether the government should "go further", she said.

"The new strike thresholds grabbed all the headlines last month, but the Trade Union Act also beefed up the powers of the 'Cert'," she said. "Before, only a union member could take a complaint to the Certification Officer. Under the new law, anyone can complain. This means that employers who want to make life as difficult as possible for unions now have a new mechanism to do so."

Employers would "be pleased with the additional transparency and accountability" imposed by the new requirements, Ashberry said. For example, union annual returns will have to say from now on what industrial action was taken and what ballots were held, and the results. However, unions would have some concerns about the proposals, she said.

"The process of defending a complaint before the Cert is already onerous and expensive for unions, and now the stakes have been raised with the prospect of receiving a fine as well," she said. "Unions are also very concerned that data they are obliged to file with the Cert could be used by employers to challenge the validity of industrial action ballots."

The Trade Union Act came into force on 1 March. It introduced a 50% voting turnout requirement before trade unions can proceed with industrial action, an additional threshold requiring 40% support for industrial action among non-ancillary staff regardless of turnout in relation to "important public services", and a number of other Conservative manifesto commitments.

The government has claimed that the new thresholds will reduce strikes on important public services like transport, education and health by 35%; and in all other sectors by 29%. This will save more than 1.5 million working hours a year from being lost to "undemocratic" strike action, according to its analysis.

The Certification Officer is responsible for regulating the statutory functions relating to trade unions and employers' associations set out in TULRA. Examples given by the government include failing to ensure senior positions are not held by someone with a criminal record; breaching requirements for elections to senior positions; and mismanagement of political funds.

In its consultation, which closes on 21 May 2017, the government proposes three 'categories' of breach; with maximum penalties of £20,000, £10,000 and £5,000 depending on the severity of the offence. It also proposes to reduce the maximum penalty by 50% if the union or employer association has fewer than 100,000 members.

The government is specifically seeking views on whether its intention to categorise offences, the maximum penalty levels for each type of offence and its intention to reduce the maximum penalty for smaller unions are appropriate.