Guidance

Mergers between Trade Unions

Amalgamations and transfer of engagements: how to merge two or more Trade Unions

This guidance explains the statutory procedures which have to be followed in carrying out mergers between trade unions. The contents of this guide should not be regarded as an authoritative statement of the law, and it is advisable for unions to obtain independent legal advice.

1. Introduction

A merger between unions will involve either a transfer of engagements or an amalgamation. It is up to the unions concerned to decide which is appropriate to their case. The differences between the two are explained below. Because of the differences this decision should be taken at an early stage in the negotiations.

Transfer of engagements

This involves the transfer of membership, property etc., from one union (the “transferring union (TU)”) to another (the “receiving TU”).

Amalgamation

This involves a simultaneous merging of two or more TUs of all their membership, property etc. creating one new amalgamated union.

2. Statutory procedures

Transfers of engagements and amalgamations of trade unions are governed by the Trade Union and Labour Relations (Consolidation) Act 1992 (as amended) (“the Act”) and the Trade Unions and Employers’ Associations (Amalgamations, etc.) Regulations 1975 (SI 1975 No. 536) (“the Regulations”). These provisions apply to all trade unions whether they are listed with the Certification Officer under the Act or not.

The Certification Officer is responsible for ensuring that the procedures are properly carried out.

You should inform the Certification Officer as soon as the TUs are in a position to take practical steps towards a merger. You must allow sufficient time for the completion of the process. For TUs with political resolutions in force, a transfer of engagements or an amalgamation will have particular implications for the operation of their political fund. These should be considered in the preliminary stages of a merger. You can seek further clarification or information from the Certification Office.

3. Scotland

The Act and Regulations apply to all TUs in Great Britain, and all the supervisory functions set out in the Act and Regulations are ultimately vested in the Certification Officer. She has, however, delegated some of her functions to the Assistant Certification Officer for Scotland in respect of transfers of engagements and amalgamations. Applications and correspondence from Scottish based TUs should be addressed in the first instance to the Assistant Certification Officer for Scotland, Melrose House, 69a George Street, Edinburgh EH2 2JG.

4. Northern Ireland

The merger provisions of the Act do not extend to TUs headquartered in Northern Ireland, but the Act does apply with certain modifications to a transfer of engagements or amalgamation between a Northern Irish TU and a TU in Great Britain. Such a transfer or amalgamation will not be effective under the law of England and Wales or of Scotland unless the instrument has been registered with the Certification Officer under the Act. Registered or unregistered TUs headquartered in Northern Ireland who intend to enter into a merger should contact the Northern Ireland Certification Officer for guidance.

5. Transfer of engagements

This involves the transfer of membership, property, funds, etc., from one TU (the “transferring TU”) to another (the “receiving TU”) on the terms set out in an instrument of transfer. When the transfer takes effect the transferring union ceases to exist. If it was listed under the Act or had a certificate of independence, its name will be removed from the list and its certificate cancelled. The receiving TU, however, continues in being with its legal identity unchanged. A transfer needs a favourable vote by the members of the transferring TU only

Process

The TUs should agree the terms of the transfer before beginning the formal transfer of engagements. Once those have been agreed the Unions must undertake the following:

Draft the Instrument of Transfer and a Notice to Members of the transferring TU.

Seek informal approval from the Certification Officer of the Instrument of Transfer and Notice to Members.

The transferring TU must appoint an independent scrutineer to supervise a postal ballot and an independent person to store, distribute and count the votes. These may be the same person. The TU should ensure that the competence and independence of each person cannot reasonably be called into question.

Notify members of the scrutineer’s appointment.

Once informal approval has been given apply for formal approval of the Instrument of Transfer and the Notice to Members from the Certification Officer using the appropriate forms, supply a copy the current rules of both the TUs and the applicable statutory fee. Details of the statutory fee can be obtained from the Certification Officer’s website.

Once approved by the Certification Officer, the transferring TU should issue the Notice to Members.

There should be a ballot of all Members of the transferring TU.

The Scrutineers report should be circulated to members. The transferring TU may send it to all its members or use its usual method of drawing members’ attention to matters of general interest.

If the vote is in favour, the receiving TU should proceed with making any necessary rule changes to facilitate the transfer.

The TU can then apply to register the Instrument of Transfer with the Certification Officer.

The Certification Office will register the Instrument of Transfer six weeks after she receives this application, provided that she has not received a complaint from a member of the transferring Union. If a complaint is received the Certification Officer must determine the complaint before registering the Instrument

The Instrument of Transfer

The Instrument of Transfer sets out the terms of the transfer which have been agreed between the governing bodies of the merging TUs. Details of information that must be included in an Instrument of Transfer is included at Annex A. It must be formally approved by the Certification Officer before members of the transferring union vote on it. It cannot take effect until a resolution approving it has been passed by the members of the transferring TU and it has been registered by the Certification Officer.

Notice to Members

The transferring TU must prepare a Notice, explaining the proposed transfer to its members, which must also be approved by the Certification Officer. This notice must either set out the instrument of transfer in full or “give a sufficient account of it to enable those receiving the notice to form a reasonable judgement of the main effects of the proposed transfer”. In practice it is almost always simpler if the first option is followed and the full text of the instrument is attached to and forms part of the notice. If the notice does not set out the instrument in full, it must state where a copy of the full instrument may be inspected by those receiving the notice.

The Notice must state when voting will begin and end. There is no minimum period for voting, but the law does require that every member of the transferring TU must be equally entitled to vote. The period will, therefore, to some extent depend on the arrangements made for the return of voting papers and the geographical location of members. A model “Notice to Members” for use in a transfer of engagements is reproduced at Appendix B. The “Notice to Members” may contain additional information but must not contain any statement which makes a recommendation or expressing an opinion about the proposed transfer.

Applying to the Certification Officer for Approval of a Transfer

The transferring union should send a draft Instrument of Transfer, draft Notice to Members and the current rules of the Union to the Certification Office at least nine weeks before the proposed date on which voting is to commence for Informal Approval. The Certification Officer will give informal approval of these documents once she is satisfied that the legal requirements have been met. She will provide the TU with the necessary forms for applying for formal approval.

The transferring union should send two original copies of the Instrument of Transfer and Notice to Members for Formal Approval by the Certification Officer along with the completed forms and payment of the relevant statutory fees. The notice cannot be approved before the instrument is approved because the instrument will either form part of the notice or at least be summarised in it. The Certification Officer will return one copy of the Instrument of Transfer and Notice endorsed ‘Approved’.

Voting

A resolution approving an Instrument of Transfer must be passed on a ballot of the members of the transferring union, and every person who is entitled to vote in the ballot must be allowed to vote without interference or constraint. Before the ballot is held the union must appoint a qualified independent person (“the scrutineer”) to carry out certain functions in relation to the ballot, which must be conducted by post.

The duties of the Scrutineer and the Independent Person are detailed in Section 100A and 100D of the 1992 Act. The union must notify its members of the name of the scrutineer before s/he begins to carry out the required functions. Voting must be in accordance with Section 100(2), 100B and 100C of the 1992 Act.

The only items to be enclosed with the voting paper are the Notice to Members, a return addressed envelope and a document containing instructions for the return of the voting paper (Section 100C(5)).

Scrutineer’s Report

The union must not publish the result of the ballot until it has received the Scrutineer’s report. The Scrutineer’s report must comply with Section 100E(1)-(3). Where an Independent Person is someone other than the Scrutineer, the Scrutineer must also include the requirements in Section 100E(4) in their report. On receipt of the Scrutineers report the union must comply with section 100E(5)-(8).

Altering the rules of the receiving trade union

The receiving TU may need to alter its rules in order to give effect to the terms of the Instrument. For example, the Instrument may provide that the existing contributions and benefits of members of the transferring TU, or some of them, are to be preserved after the transfer, or that the members of the transferring TU are to have special rights of representation within the receiving TU.

Section 102 of the Act enables the governing body of the receiving TU to alter its rules, by memorandum in writing, so far as is necessary to give effect to the provisions in the Instrument of Transfer. This rule-making power applies, unless the union’s rules expressly provide that section 102 is not to apply. An alteration of rules made under this section will not take effect until the Instrument of Transfer takes effect. The effects of the proposed alterations must be explained in the Instrument of Transfer. The Certification Officer must be satisfied that the receiving TU’s rules conform with the terms of the Instrument of Transfer.

Registration of the instrument

When the resolution approving the Instrument of Transfer has been passed by a ballot of the members of the transferring TU, an application must be made for the registration of the Instrument with the Certification Officer. An application cannot be made until the requirements regarding the scrutineer’s report have been met.

The application should be made on form CO 10 which must be signed by three members of the executive and the general secretary of both the receiving and transferring TU, accompanied by:

i. two copies of the Instrument of Transfer one of which must be the original copy endorsed as approved by the Certification Office;

ii. two copies of any amendments to the rules of the receiving TU adopted since the date of application for approval of the Instrument;

iii. evidence that such amendments have been properly made (e.g. a minute of the relevant rules revision meeting/conference or a copy of the written memorandum made in accordance with section 102(1) of the 1992 Act);

iv. a copy of the Scrutineer’s report;

v. a copy of the Notice sent to members of the transferring TU together with a statement that the Notice was sent using the method that is the usual practice of the union to take when matters of general interest need to be bought to the attention of its members.

vi. a statutory declaration on form CO 11 by the Secretary of the transferring TU;

vii. a statutory declaration on form CO 12 by the Secretary of the receiving TU.

The Certification Office will supply copies of forms CO 10, 11 and 12, at the time the Instrument of Transfer and Notice to Members is approved.

The Certification Officer cannot register the Instrument of Transfer earlier than six weeks after the application for registration is sent to her. Before or during those six weeks a member of the transferring TU may submit a complaint that the union has failed to comply with sections 99, 100(2), 100B, 100C(1) and 100C(3)(a) or any rules relating to the passing of the resolution. If the Certification Officer receives such a complaint the Instrument cannot be registered until the complaint process has concluded.

After registering the Instrument, the Certification Officer will return one copy endorsed ‘Registered’ to the receiving union.

Action after registration

If the name of the transferring TU is on the list of TU’s maintained by the Certification Officer or has a certificate of independence, then as soon as the transfer takes effect, the Certification Officer will remove it from the list and cancel the certificate of independence.

A final annual return detailing the TU’s finances and other resources will be required to be submitted on behalf of the transferring TU covering the period up to the date on which the transfer took effect. Membership and funds will subsequently be accounted for within the annual return of the receiving TU.

6. Amalgamation

This involves a simultaneous merging by two or more TUs of all their membership, property, funds etc. on the terms set out in an Instrument of Amalgamation creating a new TU with new rules. When the amalgamation takes effect, all the amalgamating TUs cease to exist. If any of them were listed under the Act or had a certificate of independence, their names will be removed from the list and their certificate independence cancelled. If all of the TUs were listed and had a certificate of independence, the name of the new TU will automatically be added to the list and will be issued with a certificate of independence (however certain items of information must be provided to the Certification Officer within six weeks in order for the listing and certificate of independence to remain in force). An amalgamation needs a favourable vote (or as per the rules of the union if more than a simple majority is required) by the members of each of the amalgamating unions.

Process

The TUs should agree the terms of the amalgamation before beginning the formal transfer of engagements. Once those have been agreed the TUs must undertake the following: -

Draft the Instrument of Amalgamation and Notice to Members for all the TUs entering into the amalgamation.

Seek informal approval from the Certification Officer of the Instrument of Amalgamation and the Notice to Members.

The amalgamating TUs must appoint an independent Scrutineer to supervise a postal ballot and an Independent Person to store, distribute and count the votes. These may be the same person. The TUs should ensure that the competence and independence of each person cannot reasonably be called into question.

Notify members of the Scrutineer’s appointment.

Once informal approval has been granted, apply for formal approval of the Instrument of Amalgamation and the Notice to Members. Including the appropriate forms and the current rules of the TUs and the applicable statutory fee. Details of the statutory fees can be obtained from the Certification Officer’s website

Once approved by the Certification Officer all of the relevant TUs must issue the approved Notice of Amalgamation to their members before voting in the confirmatory ballot is due to begin followed by the voting itself.

Publish to members a copy of the scrutineer report. The Union may send this to all members or use its usual method of drawing members’ attention to matters of general interest.

If the vote is in favour of amalgamation, the completion of the rules of the amalgamated union.

The new TU can then apply to register the Instrument of Amalgamation with the Certification Officer.

The Certification Officer will Register the Instrument of Amalgamation six weeks after she receives the application to register, provided that she has not received a complaint from a member of any of the relevant TUs. If a complaint is received, then the Certification Officer must determine the complaint before registering the Instrument.

The Instrument of Amalgamation

The Instrument of Amalgamation contains the terms of the amalgamation which have been agreed between the governing bodies of the amalgamating TUs. The Instrument cannot take effect until a resolution approving it has been passed by the members of the amalgamating TUs and the Instrument has been registered by the Certification Officer. If the amalgamation takes place it will be governed by the terms of the instrument and the rights of the amalgamating TU’s members will depend on those terms.

The Certification Officer cannot approve the draft Instrument unless it complies with the 1975 Regulations. The Instrument may cover other matters which have been agreed between the amalgamating TUs. Appendix C sets out what the law requires to be included in an Instrument of Amalgamation.

The proposed name of the new TU must comply with section 98(3) and (4) of the 1992 Act. The name of the new union can be the same as the one of the amalgamating unions.

The Instrument must be formally approved by the Certification Officer before members vote on it.

Details of the relevant statutory fee, to be paid upon application for formal approval can be obtained from the Certification Officer website.

Notice to Members

Each TU must prepare a Notice to Members, explaining the amalgamation proposals to its members, which must also be formally approved by the Certification Officer. This Notice must either set out the Instrument of Amalgamation in full or “give a sufficient account of it to enable those receiving the notice to form a reasonable judgement of the main effects of the proposed amalgamation”. In practice it is almost always simpler if the first option is followed and the full text of the Instrument is attached to and forms part of the notice. If the Notice does not set out the Instrument in full, it must state where a copy of the full Instrument may be inspected by those receiving the notice.

The Notice must state when voting will begin and end. There is no minimum period for voting, but the law does require that every member must be equally entitled to vote. The period will, therefore, to some extent depend on the arrangements made for the return of voting papers and the geographical location of members. A model “Notice to Members” for use in an amalgamation is reproduced at Appendix E. The Notice to Members may contain additional information but must not contain any statement making a recommendation or expressing an opinion about the proposed transfer.

Applying to the Certification Officer for Approval of an Amalgamation

The amalgamating TUs should send the draft Instrument of Amalgamation, draft Notice to Members and copies of the current rules of each TU to the Certification Office at least nine weeks before the proposed date on which voting is to commence for Informal Approval, The Certification Officer will give informal approval of these documents once she is satisfied that the legal requirements have been met. She will at the same time provide the necessary forms for applying for formal approval.

Once informal approval has been obtained the TUs should send two original copies of both the Instrument of Amalgamation and Notice to Members for Formal Approval by the Certification Officer along with the completed forms and payment of the statutory fee. The Certification Officer will return one copy of both the Instrument of Amalgamation and Notice endorsed ‘Approved’. The Notice cannot be approved before the Instrument is approved because the Instrument will either form part of the notice or at least be summarised in it.

Voting

A resolution approving an Instrument of Amalgamation must be passed on a ballot of the members of the all the amalgamating TUs, and every person who is entitled to vote in the ballot must be allowed to vote without interference or constraint. Voting must be in accordance with Section 100(2) and 100C of the Act.

Before the ballot is held the TUs must appoint an independent scrutineer to supervise a postal ballot and an independent person to store, distribute and count the votes. These may be the same person. The duties of the Scrutineer and the Independent Person are detailed at Section 100A and 100D of the 1992 Act. The TUs must notify its members of the name of the Scrutineer before s/he begins to carry out the required functions

The only items to be enclosed with the voting paper are the Notice to Members, a return addressed envelope and a document containing instructions for the return of the voting paper (Section 100C(5)).

Scrutineer’s Report

The union must not publish the result of the ballot until it has received the Scrutineer’s report. The Scrutineer’s report must comply with Section 100E(1)-(3).

Where an Independent Person is someone other than the Scrutineer, the Scrutineer must also include the requirements in Section 100E(4) in their report.

On receipt of the Scrutineers report the TU must comply with section 100E(5)-(8).

Completion of the rules of the amalgamated trade unions

If the resolution approving the Instrument of Amalgamation is passed by all the TUs concerned, a set of rules for the amalgamated TU must be produced. Two copies of these rules should accompany the Application for Registration of the Instrument of Amalgamation (see below) but, as the Certification Officer cannot complete the process unless the proposed rules are in conformity with the Instrument of Amalgamation, it is advisable to send the proposed rules for examination by the Certification Officer before making a formal application for registration of the Instrument.

Registration of the Instrument of Amalgamation

When the resolution approving the Instrument of Amalgamation has been passed by a ballot of the members of all the transferring TUs, an application must be made to the Certification Officer to register of the Amalgamation. The application cannot be made until the requirements regarding the Scrutineer’s report have been met.

The application must be made on form CO 13 which must be signed by three members of the executive and the general secretary of all the TUs concerned, accompanied by:

i. A statutory declaration on form CO14 by the secretary of each of the TUs;

ii. two copies of the Instrument of Amalgamation;

iii. two copies of the proposed rules, signed by the Secretaries of each of the amalgamating Tus, one of which must be the original copy endorsed as “Approved” by the Certification Officer;

The Certification Office will supply copies of forms CO 13 and 14, at the time Notices to Members are approved.

The Certification Officer cannot register the Instrument of Amalgamation earlier than six weeks after the application for registration is sent to her. Before or during those six weeks a member of any of the TUs concerned may submit a complaint that a relevant TU has failed to comply with sections 99, 100(2), 100B, 100C(1) and 100C(3)(a) or any rules relating to the passing of the resolution. If the Certification Officer receives such a complaint the Instrument cannot be registered until the complaint process has concluded.

After registering the Instrument, the Certification Officer will return one copy of the Instrument endorsed ‘Registered’.

Action after Registration

If the name of any of the amalgamating Tus were on the Certification Officer’s list of TUs or has a certification of independence, then, as soon as the amalgamation takes effect, the Certification Officer will remove it from the list and cancel the certificate of independence (if it held one).

A final annual return will be required to be submitted on behalf of each amalgamating TU covering the period up to the date on which the amalgamation took effect.

If each of amalgamating Tus was on the list, the Certification Officer will automatically add the name of the new TU on the list. Similarly, if each of the amalgamating Tus held a certification of independence, the Certification Officer will issue the new TU with a certificate of independence. To remain on the list and to retain its certificate of independence the new TU must supply the Certification Officer with a copy of its rules, a list of its officers and the address of its head office, together with the statutory fee, within six weeks of the Instrument of Amalgamation taking effect.

If one or more the relevant Tus were not on the Certification Officer’s list of Tus, then the amalgamated TU may apply for its name to be entered on the list after the Instrument of Amalgamation has been registered in the normal way. Having been listed, the amalgamated TU may apply for a certificate of independence.

An Annual Return for the amalgamated TU will not be due until it has been in existence for at least 12 months. The normal Annual Return cycle will then apply, with submission of a return required by 1 June each year.

7. Appendices and Checklist

Transfer of engagements - Appendices A,B and checklist (ODT, 16.8KB)

Amalgamation- Appendices C,D and checklist (ODT, 15.7KB)

Published 25 March 2020