UK labour law news

BIS pushes ahead with new trade union membership assurance scheme

BIS confirmed last week that it will implement from 6 April the new TULRCA requirement for trade unions to produce an annual membership audit certificate (MAC). The MAC assures the Certification Officer (CO) that the trade union has met its duty to compile and keep its membership register accurate and up-to-date, so far as is reasonably practicable. The existing duty to maintain the register of members is unchanged – the MAC sits on top, providing assurance to the CO that the union has complied with its membership duty.

Trade unions with more than 10,000 members will have to appoint an independent assurer to complete a MAC while smaller unions will be able to self-certify their MAC. New enforcement and investigation powers are also given to the CO. The changes will extend to England, Scotland and Wales.

BIS has explained its reasons for introducing the MAC saying “Knowing who their members are and being able to engage with them is intrinsic to a union’s democratic accountability…Unions should be able to visibly demonstrate that they know who their members are and can communicate with them.” The register of members plays a key role in leadership and strike ballots, political funds and more. However, only a member of that union can currently complain about a failure to maintain the register, which is rare in practice.

Read the Government’s Guidance.

Unite contemplates acting outside the law

Unite has stated that the union’s executive is recommending to members that the words ‘so far as may be lawful’ are removed from the rules of its constitution. This, it says, would be necessary should the Conservatives win the election and tighten strike laws, further to their proposals (read more here). The suggestion being that Unite would be prepared to defy these changes by supporting unlawful industrial action during disputes. Unite activists will decide on the change of wording to the union’s rules at a conference this summer. Separately, it has been reported that Unite will move to sever the union’s link with the Labour party if it loses the election, allowing the union to fund other parties instead.

UK labour case law update

USDAW & Wilson v Ethel Austin Ltd (in administration) & Ors 

At issue in this referral to the EU Court of Justice is whether the 20 employee trigger for collective redundancy consultation applies per employer or per establishment. This follows the EAT’s decision in the Ethel Austin (Woolworths) litigation which decided it was per employer, contrary to the wording of UK legislation and years of practice.

In February, an Advocate General of the Court gave an Opinion opposing the aggregation of redundancies across the employer, as favoured by the EAT, deciding that the Collective Redundancies Directive uses the word ‘establishment’ as a local employment unit, not the entire employer. If the Court follows the Opinion (a judgment is expected later this year), UK law will settle back to the ‘20 or more at one establishment’ trigger for consultation. Read our briefing.

ISS Mediclean LTD v GMB 

The employer sought an injunction to halt a strike on the ground that there was no ‘trade dispute’ between the parties, with the result that the union was in breach of strike laws. The employer advanced arguments that all bar one of the issues in dispute had been resolved – the exception being a dispute about rates of pay over which the employer contended it had no control (because they derived from a national collective agreement and were funded by NHS trusts, not the employer). As such, it was argued that the dispute was with the trust and not with the employer.

The High Court refused the injunction because the evidence suggested that the issues had not been resolved and, per the Judge, “it seems to me that it is perfectly possible for there to be a dispute between an employer and its workforce about pay, even where the ultimate funding such a pay increase may have to come from some other source.”

Thompson v National Union of Mineworkers 

T, a member of the NUM, complained about his exclusion from candidacy for the post of National Secretary of the NUM. He was unable to stand because, according to the Union’s rules, it was a requirement for nomination that the person be an existing member of the current National Executive Committee (‘NEC’) - a pool of only nine or ten people with this union. He argued that this breached TULRCA which provides that no member of the trade union ‘shall be unreasonably excluded from standing as a candidate’.

The Certification Officer (CO) rejected T’s complaint on the basis that TULRCA recognises that there may be reasonable restrictions on the right to stand in any statutory union election, and, in the circumstances, this amounted to a reasonable restriction. The EAT upheld the CO’s decision, citing the CO’s findings that to be a member of the NEC was consistently applied, there was no manipulation and that the rule was reasonable.