Independent Trade Union
- To have the full rights available to trade unions, a union must qualify as an "independent trade union" (that is be independent of employer control) and be a recognised trade union (that is be recognised by the employer in question).
- The definition of "independent trade union" is thus of considerable importance. The same definition is used in ERA 1996 (s.235) and in TULRCA 1992 (s.5).
Independent trade union.
To have the full rights available to trade unions, a union must qualify as an "independent trade union" (that is be independent of employer control) and be a recognised trade union (that is be recognised by the employer in question).
"(a) is not under the domination or control of an employer or group of employers or of one or more employers' associations, and
(b) is not liable to interference by an employer or any such group or association (arising out of the provision of financial or material support or by any other means whatsoever) tending towards such control".
In practice it is the Certification Officer who determines whether a trade union is independent as a certificate of independence issued by him is conclusive (TULRCA 1992, s.8 and see below). The criteria for determining whether a trade union satisfies the statutory definition of independence are set out in a booklet "Guidance for trade unions wishing to apply for a certificate of independence" produced by the Certification Officer.
"Independence" of a trade union is one of the two essential components needed to give it the full rights given by law to trade unions. The other is that the union should be a recognised trade union.
The Government Communications Staff Federation (GCSF) at the Government Communications Headquarters (GCHQ) is an example of a union which failed to establish itself as an "independent trade union" because it is liable to interference by an employer (Gov't Communications Staff Fed'n v Cert Officer EAT 1993 ICR 163, EAT and the 1996 Annual Report of the Certification Officer at p.8 - but note that so far as this particular case is concerned, in September 1997 the Government (ie Foreign Office) recognised the GCSF, now known as the GCHQ Group of the Public Service, Tax and Commerce Union (PTC), for consultation and negotiation on matters exclusive to GCHQ in return for a formal union agreement not to take any industrial action that would disrupt GCHQ operations).
As with recognition, no formal steps are legally required for a trade union to qualify as independent. However, unlike for recognition, there is statutory provision for a trade union to apply for a formal "certificate of independence" (from the Certification Officer, an official appointed by the Secretary of State - TULRCA 1992, s.245).
A certificate of independence is conclusive evidence for all purposes (unless and until it is withdrawn) that the trade union concerned is independent and refusal, withdrawal or cancellation of a certificate of independence (if entered "on the record") is conclusive evidence for all purposes that it is not independent (TULRCA 1992, s.8(1)).
There is a fee (reviewed annually) on an application for a certificate of independence. Since 1st April 1996 the fee payable on an application for a certificate of independence has been £3,761 (previously £2,583) (reg 7 of the Certification Officer (Amendment of Fees) Regulations 1996, SI 1996/651).
Procedure for certification of a trade union is beyond the scope of this disc, which is concerned with employment law as it affects individuals. Reference should be made to TULRCA 1992, ss.5-9 (which is entitled "Certification as independent trade union") and see also the booklet "Guidance for trade unions wishing to apply for a certificate of independence" produced by the Certification Officer.