Red tape: one law for the employers and another for the unions?

Pattinson & Brewer employment specialist Paul Statham is mystified by the logic of the Government’s attack on ‘red tape’ …

It appears that the Government’s so-called ‘red tape challenge’ does not apply to trade unions. In the Transparency of Lobbying, Non-Party Campaigning and the Trade Union Administration Bill, there are measures to require trade unions to present an annual membership audit certificate (MAC) to the Certification Officer (CO), and to give the CO power to appoint inspectors to investigate any breaches.

The Government has also issued a discussion paper, and requires responses by 16 August. I will be chairing a sub-committee of the Legislative and Policy Committee of the Employment Lawyers Association to prepare their response, and would welcome any comments from trade unions on the proposals.

There is already a duty on trade unions to maintain a register of members’ names and addresses and, so as far as reasonably practicable, keep it accurate and up-to-date. This is Section 24(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (“1992 Act”).

Under the new proposals, unions will have a statutory obligation to provide a MAC alongside their annual return. For trade unions with more than 10,000 members, the MAC will need to be completed by a qualified independent person known as an ‘assurer’. Smaller trade unions will be able to self-certify, and the requirement will not apply to new trade unions created in the previous 12 months.

The Government seems to have remembered that Section 181 of the 1992 Act places a duty on employers who have recognised the trade union to disclose information that is material for collective bargaining processes. In the discussion paper, the Government is seeking information from employers on their likely reaction to requests from trade unions for information about the employees of an employer, with a view to keeping the membership register up-to-date and the MAC accurate.

In my experience, unions that have check-off arrangements with employers, whereby union dues are deducted from payroll, are automatically provided with information about who among the workforce is paying their union dues on a monthly or quarterly basis.

In truth, these proposals have been tacked on to a bill which is about regulating the lobbying of Parliament, and their true purpose is to provide further obstacles to trade unions organising effective strike ballots.

Section 226A of the 1992 Act obliges unions running a strike ballot to provide the employer with a matrix setting out the list of categories of employees and workplace for those they are calling upon to take strike action. They also have to explain how the figures are arrived at. Unions use their membership records for these purposes.

In RMT v. Serco Limited the Court of Appeal held that the information had to be ‘as accurate as is reasonably practicable in the light of the information in the possession of the union’. ‘Possession of the union’ was narrowly construed, and this prevented the previous tactics of employers in going through this information with a fine toothcomb to suggest that the ballot was unlawful because there was a minor inaccuracy in the matrix of figures and list of workplaces.

If the proposed changes become law, it gives the employers more scope to argue that a strike ballot is unlawful if the information provided to the employer proves inaccurate.