Political resolution and political fund

trade unions

Overview

A Trade Union is a membership-based organisation mainly made up of workers. One of its main objectives must include the regulation of relations between workers and employers or employers’ associations. An employers’ association is a body of employers, generally from the same sector of the economy, whose principal purposes include the regulation of relations between employers in that sector and workers or trade unions. Trade unions have duties and obligations under the Trade Union and Labour Relations (Consolidation) Act 1992 (TURLCA 1992) and case law.

 

 

Changes brought by the Trade Union Act 2016

The Trade Union Bill  received Royal Assent on 4th May 2016  to become the Trade Union Act 2016.  The Act commenced on 1st March 2017.

The Act amends the Trade Union and Labour Relations (Consolidation Act) Act 1992 (TULRCA 1992)as follows:

  1. Sections 2 and 3 set out the requirements for minimum ballot thresholds – a 50% turnout in all industrial action ballots, and a 40% support requirement in favour of industrial action for specified important public services in six sectors.
  2. Section 4 requires an independent review on the delivery of secure methods of electronic balloting in relation to industrial action ballots and for the Secretary of State to publish a response to the review. It also provides for a piloting scheme. Section 4 does not amend legislation but introduces a provision which requires the Secretary of State to commission an independent review into industrial action ballots.
  3. Sections 5, 6 and 7 set out information requirements relating to industrial action: the information that must be included in the ballot paper; and information to be given to union members and to the Certification Officer following a ballot.
  4. Sections 8 and 9 specify the arrangements for the timing and duration of industrial action. Section 8 requires two weeks’ notice of any action to be given to an employer unless the union and the employer mutually agree to 7 days’ notice. Section 9 provides that a ballot mandate for industrial action expires after six months or after nine months where there is a mutual agreement between the employer and the union.
  5. Section 10 sets out requirements on unions for the supervision of picketing.
  6. Sections 11 and 12 concern political funds. Section 11 provides that persons who join a trade union after commencement shall be required to make an active choice before contributing to a union’s political fund. Section 12 places requirements on unions to include details of expenditure from political funds in the union’s annual return to the Certification Officer;
  7. Sections 13 and 14 create regulation-making powers in respect of paid time off for trade union duties and activities in the public sector;
  8. Section 15 restricts the deduction of union subscriptions (“check off”) from wages by relevant public sector employers where:-
  • workers do not have the option to pay subscriptions through other means and;
  • arrangements have not been made for a union to make reasonable payments to the employer for the making of those deductions.
  • there is a regulation making power to specify who is a relevant public sector employer;

 

 

Political Resolution

A resolution to adopt political objects must be passed by postal ballot, in accordance  with rules that have been approved by the Certification Officer. An independent scrutineer must be appointed to oversee the ballot. If political objects are adopted, the union must also adopt political fund rules which will govern the expenditure of funds on those objects. These political fund rules must also be approved by the Certification Officer.The law does not require a ballot on how the political fund is to be used, only on the use of union funds for political, as opposed to industrial, purposes.

Under sections 75 to 78 TULRCA 1992, there are detailed statutory requirements about a ballot on a political resolution, which a union must adhere to. Further rules are provided under the Trade Union Ballots and Elections (Independent Scrutineer Qualifications Order) 1993

A political resolution can be rescinded in the same way as the union’s rules and expires after ten years – section 73 TULRCA 1992

Under section 84 TULRCA 1992, where a union adopts a political resolution, all members of the union must be notified:

  • That they have a right to be exempt from contributing to the union’s political fund
  • Signposted to where they can obtain a form of exemption notice to exercise that right

 

 

Political Funds

Trade unions that want to contribute to political parties or engage in other political activities must establish a political fund. Under legislation introduced in 1984, unions must ballot their members every ten years on the continuance of these funds. Individual union members in Great Britain can contract-out of paying the political levy. Those who remain contracted-in cannot decide on the use of their individual contribution. The use of political funds (including whether to contribute to a political party) is a matter of union policy, subject to approval at the union’s annual conference.

The legislation on trade union political funds is contained in sections 71-96 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) as amended by the Trade Union Act 2016.

If a trade union wants to spend money on one of the specified political objects the following conditions must be met;

  1. A political resolution must be passed, by a majority of those voting, on a ballot of the union’s members.
  2. The ballot must be held in accordance with rules of the union, approved by the Certification Officer.
  3. The relevant rules must be approved by the Certification Officer each time there is to be a ballot on a political resolution

 

Opting in by union members to contribute to political funds

Currently, in accordance with section 84 of the TULRCA 1992 Act, members of a union automatically contribute to a union’s political fund, unless they actively take a decision not to contribute. Once members are contributing to a political fund, they continue to do so until they decide to give an exemption notice to the union, confirming that they no longer wish to contribute. Section 84 is substituted by section 11 of the Trade Union Act 2016 which provides that union members cannot contribute to a political fund unless they have opted in. This requirement will apply to all people who join a union after commencement of the Trade Union Act 2016. Where a union sets up a new political fund after commencement of the Trade Union Act 2016 all members of that union must give their express consent to opt in, in order to make contributions to the political fund.

After opting in, a member may give notice at any time, to cancel their contribution. That notice must take effect at the end of the period of one month of it being given. Notices to contribute or to cease contributing to the political fund may be given in person, by agent or by post. They can also be given by e-mail or by using an electronic form provided by the union. The e-mail and the electronic form are to be sent to an address that the union has told members that they can use.

Subsection (2) inserts a new section 84A to the 1992 Act This requires trade unions to send information to all new members who join after the transition period about their right to withdraw their opt in decision. This information must be sent every year, not later than eight weeks after the annual return is sent to the Certification Officer. Unions can send individual copies of the information to members or they can choose to publish it by whatever means the union uses to communicate with its members. The union may also provide the information as part of the section 32A statement which is provided every year, eight weeks after the annual report is sent. The Certification Officer will monitor compliance with this requirement.

Subsection (3) creates a new section 85 which provides that the union is required to either collect a separate amount for the political fund from members, or provide a rebate for those members who are not contributing.

Subsection (4) amends section 82 (rules as to political fund) to provide that in any form (including an electronic form) that a person has to complete to join the union they are advised that they can opt to contribute to a political fund and that if they decide not to contribute, they will not suffer any disadvantage. The Certification Officer will continue to monitor compliance with these matters.

Those members who joined a trade union before commencement of section 11 will continue to be subject to the automatic opt in provisions of the 1992 Act. The amendments made by the Act will not apply to existing members.

 

Annual returns must include details of political expenditure

There are no requirements in TULRCA 1992 requiring unions to publish details of their political expenditure. Section 12 of the Trade Union Act 2016 inserts a new section 32ZB into TULRCA 1992. This requires trade unions to provide information about their political expenditure in their annual return which is sent to the Certification Officer.  This information must be provided where a union spends more than £2,000 per annum from its political fund.

A union is required to provide particular information in relation to each category of spending as set out in section 72(1) (a) to (f) TULRCA 1992. In addition, unions are required to provide information for expenditure from the political fund, not falling within section 72(1). The information should provide the total amount paid to each party, organisation or candidate within each category.

The required information for each category is different depending on the category. So for section 72(1) (a), (b) or (c), which covers the provision of funds or the provision of a service or property to a political party or the holding of a conference or a meeting which is connected to a political party, the information to be given is the name of each political party to which money is paid and the total amount for the year. Therefore if, in one year, a union pays for its members to attend a Labour Party conference and then also pays for members to attend a different Labour Party meeting, then the union should provide the total expenditure on all conferences and meetings and say that the monies were paid to the Labour Party. If, in the same year, a union also pays for members to attend conferences or meeting for another political party, then the union must provide the name of that political party and the total annual spend on conferences and meetings for that party.

Expenditure under section 72(1) (c) TULRCA 1992 relates to spending on elections to a political office and in particular on the registration of electors, the candidature of a person or the holding of any ballot. The information unions should provide here is the information about the election concerned (for example, the local council elections in May 2016) and the name of each political party or organisation to which monies are paid. So, for example, for the registration of voters, payment may be made to an organisation which campaigns to increase electoral registration. In those circumstances the unions must provide the name of the organisation and the total amount per annum paid to that organisation. If money is given directly to a candidates’ office, then the name of the candidate should be provided (see new section 32ZB (4) (iii)).

Where under section 72(1)(c) TULRCA 1992 money is spent in general on candidates of a particular party, for example in a General Election, there will be no need to provide the names of all the candidates, but rather just the name of the political party or organisation, and again the total amount spent on each political party or organisation. That information may have already been provided under subsection 32ZB (4) (i) or (ii), in which case, it need not be provided again. The union must provide the total amount of any other expenditure under this category not already covered.

The category of spending in section 72(1) (d) relates to spending on the maintenance of a political office. For this category, unions should provide details of the names of the holders of the office and the total amount spent on each per annum.

For spending under section 72(1)(f) – the production and distribution of materials etc. which seek to persuade people to vote or not to vote for a political party or candidate, unions must provide the details of the organisation which may have received monies for these purposes and the total amount paid to each one (section 32ZB(6)(a)). Where money is not paid to an organisation, but monies are spend to persuade people to vote or not to vote for a particular candidate or party, then unions should give the details of each party or candidate being supported or not being supported as the case may be, and again, the total spend on each per annum. If that information has already been provided under section 32ZB (6) (a) then it does not need to be provided again.

Finally unions should also provide details of any other expenditure from the political fund which falls outside the categories in section 72(1). The union must provide information about the nature of each cause or campaign which is being funded and the total amount paid to each one per annum. The union must also provide details of any organisation to which monies were paid (if not already covered by details of the cause or campaign), and the total amount paid to each one. The total of any other expenditure not already covered must be provided. Therefore, if a union provides money to a charitable organisation, that donation would be covered under this category.

The amount of £2,000 can be increased to a higher threshold by regulations to be made by the Secretary of State and these will be subject to the negative resolution procedure. However, having raised the threshold above £2,000, if the decision is taken to lower it again to a figure not less than £2,000, (making the threshold more onerous for trade unions) then the Secretary of State must make regulations which will be subject to the affirmative procedure.

Where the Certification Officer has directed that the annual reporting period is changed in accordance with section 32(4)(a) of the 1992 Act, then references to “calendar year” in this clause are changed to refer to that amended period. For example, if that reporting period is for 9 months, the amount is three-quarters of £2000 (i.e. £1500).

The clause amends section 131 of the 1992 Act so that these requirements also apply to employers’ associations. Section 135 is amended to provide that the new provisions do not apply to federated employers’ associations (who are not required to submit annual returns under the 1992 Act).

The provisions apply to annual returns for periods that begin after the commencement date.

Source: Trade Union Act 2016 Explanatory Notes

 

 

Complaining about the Political Fund

A member of a trade union can complain about political expenditure to the Certification Officer (or a court) for a declaration that the union has applied its funds in furtherance of political objects in a way that is not permitted by law. The Certification Officer can also order the union to take remedial action – section 72A TULRCA 1992

A member of a trade union can complain to the Certification Officer (or a court) that the union has failed to comply with its political ballot rules. An enforcement order can be made in addition to a declaration – section 80 TULRCA 1992

A member of a trade union can complain to the Certification Officer that the union has failed to comply with its political fund rules. The Certification Officer can make any remedial order that he thinks just – section 82 TULRCA 1992

A member of a trade union can complain to the employment tribunal if an employer pays a contribution to the political fund after informing the employer about the exemption from, or objection to contributing to the union’s political fund. The employment tribunal can make a declaration, and order payment of any sum wrongly deducted. It can also order the employer to take specified steps to prevent a repeat – section 87 TULRCA 1992

 

Resources Available

Employee Representative Guide for non-union workplaces

DOCUMENTS, FORMS AND LETTER TEMPLATES

Disciplinary action and capability

Discrimination at work

 

Best of the web

Certification Office: POLITICAL FUNDS –  Guidance for trade unions and employers’ associations wishing to establish a political fund

 

Disclaimer

This resource is published by Employee Rescue Limited. Please note that the information and any commentary on the law contained herein is provided for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. Employee Rescue accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this publication.  Further specialist advice should be taken before relying on the contents of this publication.

You can send an e-mail to;  thelawyers@employeerescue.co.uk for such specialist advice if required.

 

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