Govt consults on new powers for Certification Officer

10 April 2017

The government’s Department for Business, Energy and Industrial Strategy (BEIS) has launched a consultation into proposals to allow the trade union regulator – the Certification Officer (CO) – to fine unions up to £20,000 for rule breaches.

Under proposals brought forward in the Trade Union Act 2016, the CO will be given additional powers to impose financial penalties on the labour movement. At the moment, the officer can only issue an enforcement order.

The new legislation has been widely criticised, including by outgoing CO David Cockburn, who highlighted in his final report to parliament that the new rules may be in breach of human rights law.

Imbuing the CO with the power to impose penalties as well as investigate complaints widens the role to the extent that the regulator becomes “investigator, prosecutor and adjudicator”, he warned.

“This raises immediate issues of a fair trial, as required by Article 6 of the European Convention on Human Rights and the Human Rights Act 1998,” he said.

Other concerning powers that change the CO’s role include the right of non-members of unions to report wrongdoing and the duty of the CO to investigate these complaints. Cockburn pointed out that this could be abused by third parties in ideological opposition to the labour movement to make spurious complaints.

As the CO is paid for by the trade union movement, vexatious investigations could therefore drain trade union funds.

In the consultation launched yesterday (09 April), more detail was given on the way the financial penalties will be imposed.

The government has set out three categories of breach, with different maximum penalties for each. A level one breach refers to such matters as senior personnel being found to have criminal records, or the misuse of political funds, and invites a fine of up to £20,000 for larger unions and £10,000 for small and medium unions (defined as organisation with up to 100,000 members).

A level two breach refers to failure to keep the member register up to date, for which a large union can be fined £10,000 and a smaller organisation £5,000.

The lowest penalty, of £5,000 for the larger unions and £2,500 for smaller unions, is for such breaches as not providing sufficient information in reports or following internal union rules.

A minimum of £200 has also be set for fines pertaining to unions. Where an individual is found to be in breach, there is a maximum penalty of £1,000 regardless of the size of his/her union.

It is also proposed that the imposition of financial penalties is left to the discretion of the CO, who may continue to use enforcement notices where he deems it appropriate.

Unions can appeal penalties at an Employment Appeals Tribunal, and the consultation suggests providing discounts for early payment and additional fines for late payment.

The consultation will run for six weeks until 21 May.