Applying to have the name of an organisation entered in the Certification Officer’s list of trade unions

Question

Accepted Answer

Overview

The Certification Officer (CO) maintains a public list of trade unions and employers’ associations in accordance with sections 2 to 4 and of the Trade Union and Labour Relations (Consolidation) Act 1992 (‘The 1992 Act’).

1. What is a trade union?

The statutory definition of a trade union is set out in Section 1 of the 1992 Act.

The definition is that a trade union must consist wholly or mainly of workers and that its principal purposes must include the (collective) regulation of relations with employers.

The statutory definition of workers can be found under Section 296 of the 1992 Act. There is no statutory definition of the regulation of relations with employers. You may find the Employment Appeal Tribunal decision in the case of Mr Akinosun (on behalf of GAHWU) v the Certification Officer the EAT decision helpful.

Any group of persons can constitute themselves as a trade union. A trade union cannot be formed as a company under the Companies Acts.

2. Eligibility

Any organisation made up of workers which meets the definition set out above may apply to be listed. The Act does not impose any test of size or effectiveness. It is important to note that entry on to the list is not automatic on application.

3. Application accepted or refused

On application to her, the CO will consider whether an organisation satisfies the statutory definition. If she is satisfied that the organisation is a trade union, she will enter its name on the list and a certificate of listing will be sent to the trade union with information about its statutory obligations.

If the CO refuses to accept the application, she will issue a decision setting out the reasons for the refusal. This decision can be appealed via the Employment Appeal Tribunal.

4. Statutory obligations

There is no statutory obligation for a trade union to apply to be included on the list of trade unions.

However, it is important to note that if an organisation meets the definition of a trade union, it will still be required to fulfil a number of statutory obligations whether they are on the list or not. See below for relevant statutory obligations of all trade unions.

These include the duty to submit financial annual returns to this office, including details of income and expenditure, membership figures, ballots for industrial action held and strike action taken. There are also a number of obligations on how to conduct the election of a union’s principal Executive Committee, President and General Secretary. Failure to fulfil some of these obligations could lead to prosecution.

5. Advantages of appearing in the list

The name of the trade union is protected. An organisation shall not be entered on the list if its name is the same or similar to another organisation that has been or is currently on the list.
It is evidence that the organisation is a trade union or employers’ association for example if the Certification Office received a call from an employer, a member of the public or another court enquiring about the status of an organisation, we would be able to confirm that it is a union.
For trade unions, appearing in the list is an essential condition for being able to apply for a certificate of independence. Representatives of an independent trade union are protected by statutory provisions such as having paid time off to carry out their duties and training, and protection against dismissal and detriment. An independent trade union may also apply for statutory recognition with an employer.
It is a requirement for obtaining tax relief in respect of expenditure on provident benefit. See link for more information. You may wish to obtain our own legal advice.
There are certain procedural advantages in connection with the devolution of property following a change of trustees. A significant one being that property may be automatically transferred to the new trustees as opposed to requiring a separate transfer of title. You may wish to obtain our own legal advice for more information

6. Application process

You will need to complete the CO1 form which can be obtained from our office using the contact details at the bottom of this guidance. You will also need to pay a non-refundable statutory fee of £519 before your application can be processed.

If your form is incomplete, or there is insufficient evidence to support your application, it may be refused and you may have to pay the statutory fee again if you wish to reapply. It is in your interests to ensure that all the questions in the form are completed comprehensively and that your organisation meets the statutory definition of a trade union before applying. You may find it helpful to speak to a member of the CO’s staff before submitting an application form, to help minimise the risk of your application being refused.

On receipt of your application a member of staff in the Certification Office will consider your application and make a recommendation to the CO on how to proceed. They may need to contact you in order to obtain additional information about your organisation, to support your application.

It is important to note that applying to have an organisation’s name entered in the CO’s list can be a long process If an application is accompanied by all of the relevant information and it is clear that the organisation meets the statutory definition of a trade union then a decision can usually be made within a few weeks, but if that is not the case then you will be asked to provide the relevant information or to give additional information to show that your organisation meets the definition of a trade union. Where that is not available, or where you cannot provide the relevant information quickly, there may be significant correspondence and it could be a number of months before a member of staff in the Certification Office can make a recommendation to the CO.

If you think you do not have the relevant information available then it may be better for you to defer your application until you are ready to make an application. The Certification Office will always be happy to give you advice by telephone about what is required.