This guidance explains the procedure involved in applying for a certificate of independence under section 6 of the Trade Union Labour Relations 1992 Act. It also deals with the granting of a certificate of independence to a new union created by the amalgamation of two or more trade unions currently holding certificates of independence. Certification Office staff are happy to discuss any of the points outlined below.
2. Points to note
The definition of an independent trade union is contained in section 5 of the 1992 Act.
The Certification Officer has a duty to keep a register (list) of all the trade unions in Great Britain. Only a trade union who is on the Certification Officers list can apply to for a certificate of independence.
The Certification Officer cannot reach a decision on any application until at least one month after she has published a public notice on her website that she has received the application. Before reaching a decision, she will make enquiries and take into account any relevant information submitted to her. If she determines that the applicant union is independent, she will issue a certificate of independence; if not, she must give reasons for her decision. All decisions will be published on her website.
If the Certification Officer decides not to issue a certificate of independence, then the union may appeal this decision to the Employment Appeal Tribunal (EAT).
The granting or refusal of a certificate is conclusive evidence for all purposes of the independence or otherwise of a trade union. If the independence of a particular union has not been determined by these means and a question about it arises in proceedings before any court, the Employment Appeal Tribunal, the Central Arbitration Committee, ACAS or an employment tribunal, those proceedings must be stayed pending a decision by the Certification Officer and the body concerned may refer the question to her for decision.
3. Making an application
There are two routes for a trade union to obtain a certificate of independence.
For trade unions that do not currently hold a certificate, the process is described in detail in the following paragraphs. The application must be submitted to the Certification Officer accompanied by a copy of the rules, the statutory fee and documents supporting the application (see below areas of evidence considered).
In the case of trade unions that are amalgamating, where all the unions involved hold a certificate of independence, there are special provisions.
4. Action by the certification office
When an application for a certificate of independence is received from a Trade Union by the Certification Officer it will be entered in the public record and a notice will be published on the Certification Office website, in the London Gazette and (where appropriate) in the Edinburgh Gazette. The notice advises that any representations about the application should be made within a month of the notice being published.
Any objections to the certificate of independence being granted which are received by the Certification Officer will be forwarded to the union, who has the right of reply. The objectors identity is revealed to the union unless the Certification Officer decides that the circumstances are such that it should not be so disclosed.
In coming to a decision, the Certification Officer will review the unions rules and all other information enclosed with the application and carry out any other enquiries as she sees fit. These enquiries may involve a meeting, usually at the Unions offices. During the visit enquiries are made in relation to any points of objections received and further clarification as a result of the initial scrutiny of the documents submitted. Where necessary enquiries may be made at branch level as well as head office level. In the case of single company or single employer unions meetings are also held with the company management representative(s).
The information collected as part of this process will provide the factual basis on which the decision is taken. If the Certification Officer considers that the union does not meet the requirements of the statutory definition, its application will be refused; if she considers that it does, a certificate of independence is issued.
Once a decision has been taken, the union and any objectors will be notified. Where an application has been refused the decision is also placed on the Certification Officers website.
The key question that the Certification Officer considers is, Does this union come within the statutory definition or not? The legislation does not require her - or indeed enable her - to take other considerations into account, for example, the effect which the issue of a certificate might have on employment relations or on established negotiating machinery, or whether the development of a new trade union in a particular area is desirable or not. Nor does it allow her to take account of the effectiveness of the union in negotiation as an issue distinct from independence.
The following paragraphs set out the principal criteria which is used in applying the statutory definition to individual applications.
Sometimes evidence is found that the union began with employer support and encouragement, or even formed by management. If that evidence relates to the recent past it is a powerful argument against the granting of a certificate. But experience indicates that over time some unions can and do evolve from a dependent to an independent state; and the decision must, of course, be based on the facts as they are at the time of the application and not as they were several years ago.
7. Membership Base
From the outset the Certification Officer has taken the view that a union whose membership is confined to the employees of one employer is, on the face of it, more vulnerable to employer interference than a broadly-based union. This is less likely to be a critical factor for a large, well-established union backed up by strong resources than for a small, weak, newly-founded trade union. However, certificates have been issued to a number of single company unions which appear on all the available evidence to be capable of withstanding any pressure which might be brought to bear on them by the employer. Experience has confirmed that a narrow membership base may make the unions task of proving its independence more difficult but that it does not make it impossible.
8. Organisation and Structure
It is necessary to examine both the organisation and structure of the union, as they are set out in the unions rule book and as they work in practice. The main requirement is that the union should be organised in a way which enables the members to play a full part in the decision-making process and excludes any form of employer involvement or influence in the unions internal affairs. Particular attention is paid to whether employers or senior employees, especially those at or immediately below board level, are eligible to belong to the union and, if so, whether there are suitable restrictions on the part which they can play in its affairs.
While it is exceptional to find evidence of a direct subsidy from an employer, a union with weak finances and inadequate reserves may be more likely to be vulnerable to employer interference than one whose financial position is strong. Particular attention is therefore paid to such questions as the main sources of the unions income, whether this matches its expenditure, the level of its subscription rate and the state of its reserves.
10. Employer-provided Facilities
These may take the form of premises, time off and office or other services provided by the employer. In the case of single company unions, the normal practice is to cost these items in order to get a rough idea of the extent of the unions reliance on them in financial terms. But it is not just a question of finance. It is also necessary to look at the convenience of having facilities provided by the employer, even if they are paid for, and how easy or difficult the union would find it to cope on its own if they were withdrawn. The greater the unions reliance on such facilities the more vulnerable it must be to employer interference.
The provision of facilities is, of course, common practice among a number of employers, but in the context of independence its significance may vary according to circumstances. A distinction can properly be drawn between a broadly-based union which could continue to function even if an employer withdrew facilities from one or more of its branches and a single company union which might find it difficult or even impossible to carry on at all if such action were taken by the company which employs its entire membership.
11. Negotiating Record
This is almost always an important considerat