Employment Relations
Comment
October 2012
The Certification Officer
Keeping track of unions
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Unions are becoming fewer in number but far larger
and more general in nature. At the same time there
are smaller unions emerging with different and more
specialised agendas. The Certification Officer, who has
a range of duties including maintaining a list of trade
unions and employers’ associations and determining
independence, has recently published his latest annual
report. In this article we look at the latest trends;
including some of the new unions that have emerged,
what it takes for an organisation to be listed as a
union, and what is involved in a listed union obtaining
a Certificate of Independence.
The position of the Certification Officer was established
in 1975 by a Labour government. However the role has
existed in one form or another since the 1871 Trade
Union Act, which gave the Chief Registrar of Friendly
Societies the responsibility of compiling a voluntary
register of trade unions.
Today the Certification Officer has responsibility for a
range of functions including:
• Maintaining lists of trade unions and
employers’ associations
• Determining complaints from union members
against their unions relating to alleged
breaches of statutory duties and some types
of union rules
• Determining union independence
• Ensuring annual returns are made
• Supervising mergers
• Supervising political fund ballots
• Investigating alleged financial irregularities
Although the Certification Officer is a wholly
independent statutory officer, Acas is responsible
for providing its finance, staff and support services.
Annual reports and individual returns from unions
and employers’ associations can be found on the CO
website at www.certoffice.org
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Trade union trends
Data held by the Certification Officer (CO) provides an interesting record of the rise
and fall of individual trade unions and employers’ associations and membership
levels going back to 1975, and in some respects as far back as 1871. The obvious
trend, certainly over the last 30 years is the gradual reduction in the number of
trade unions and employers’ associations with the disappearance of many smaller
trade unions through either dissolution or merger. Unison and Unite, for example,
now account for around 40% of all membership of those trade unions making
returns.
As
Number of
reported trade unions
in the
CO
Annual
Report
(1)
Number of Union
Members (2)
Largest trade
unions and
membership
numbers
Largest trade
unions and
membership
percentage
share
1980-81
521
13,212,000
T&G 2,086,281
16%
1990-1
348
10,043,606
T&G 1,270,776
13%
2000-1
228
7,639,774
Unison
(1,272,470)
T&G (858,804)
28%
2011
-12
177
7,261,210
Unison
(1,515,206)
Unite (1,374,500)
40%
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2
This includes both those organisations who have applied to be listed and others known to the Certification Officer.
Whilst this only represents the membership of those unions which made an annual return, they account for over 99% of union membership.
New unions
Despite the overarching trend, there is a steady trickle of new unions being added
to the lists and applying for Certificates of Independence. Although on the face
of it the number of union members has remained fairly consistent over the past
decade, the emergence of completely new unions, not formed by amalgamation
or breakaway, has been a feature of recent years, says Gerard Walker, Assistant
Certification Officer.
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These new unions appear to be motivated by, among other things, those seeking
alternative agendas to the larger unions, an attempt to gain improved recognition
for under represented groups of workers, or for representation of workers in a
specific sector or geographical area or with particular political beliefs.
What does it take to be listed as a union?
For a union to be listed by the CO, he has to be satisfied that an organisation
meets the statutory definition of a trade union. In essence, an organisation
must be able to establish that it is an organisation of workers, and that among
its principal purposes is the regulation of relations between employers and
those workers.
New unions
Below we list some examples of new unions.
Myunion was listed in 2010. It was set up by a group of health and social care
workers from an ethnic minority background. Its aims include ‘campaigning for
and working for multicultural, multi-ethnic working strategies development in
the workplace, diversity and green issues.’
Public Trade Union was set up to represent Eastern European workers and
claimed links to a Russian Trade Union Federation. Although listed in 2010-11 it
subsequently dissolved.
Workers of England Union was set up as a general union. According to its
website it was established to provide a ‘protective voice for the workforce in
England’. It campaigns for an English Parliament.
Skyshare, listed in 2010 and given a Certificate of Independence in 2011,
represents the pilots of private jets in one company, Netjets. Although Netjets
is registered in the UK, many of the members of Skyshare are based abroad
which is probably why it has chosen to operate almost exclusively via the
internet.
The Bus Workers Alliance was listed in August 2012. It was established by
bus workers in East London as a breakaway from Unite the Union.
Pret-A-Manger Staff Union (PAMSU) was listed in September 2012 having
been established by Pret-A-Manager workers in London.
In addition to straightforward applications from bodies that clearly aim to
influence workplace relations, there has also been a rise in enquiries from
commercial organisations, or their offshoots, the main purpose of which appears
to be selling or promoting consultancy services for individuals, particularly
individual representation. ‘This’, says Walker, ‘seems to be an unintended
consequence of section 10 of the Employment Relations Act 1999, which allows
employees to be accompanied by a trade union representative at disciplinary
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and grievance hearings held by their employers.’ Although accompaniment is a
legitimate role for a trade union, an intention to provide individual representation
is not enough in itself to meet the statutory definition of a union. Such
representation can equally be provided by consultants and solicitors. To be listed
as a trade union, an organisation has to show that one of its principal purposes
is to regulate relations between employers and workers. This is most easily
demonstrated when its intention is to benefit its members collectively as well as
individually.
In 2012 the Certification Officer refused the listing applications of two
organisations, ‘Advocate’ and ‘LinkedUp – The Modern Union’. ‘This’, explains
Walker, ‘was because, although they were set up to look like a trade union, the
Certification Officer did not accept that their principal purposes included the
regulation of relations between workers and employers.’
Other unions which appear in the CO’s latest annual report are not new at all
but have recently become more active. The Industrial Workers of the World was
originally set up at the beginning of the 20th century in the United States. It
was regarded as a syndicalist union and bore the nickname the ‘Wobblies’. This
volunteer-led union aims to ‘see society re-organised to meet the interests of all
people, and not just shareholders and corporations’. It has traditionally remained
on the fringes of conventional union activity, being involved in such things as
campaigns for the London Living Wage and organising flash mobs. This year,
however, it has successfully applied for a Certificate of Independence and sought
recognition from individual employers. It also received publicity for a dispute at a
well known department store over outsourced cleaners.
Why is independence important?
The principle advantage of being certified as an independent union is the ability
to apply to the Central Arbitration Committee (CAC) for statutory recognition,
although non-independent unions can still reach a voluntary agreement with
employers. In the case of unions with a Certificate of Independence, it is also
unlawful for an employer to take action to discourage membership or to penalise
members for participating in its activities. Unions which are both certified as
independent and recognised can apply to the CAC for disclosure of information
for the purposes of collective bargaining. The officials of such unions can also
seek paid time off for trade union duties and training in industrial relations, and
its members can seek time off to participate in their union’s activities.
How do unions pass the independence test?
The statutory fee for a trade union to apply for a Certificate of Independence
is £4,066. In determining independence, the CO will usually look at the union’s
history, its degree of support from employers, its access to facilities and whether
it is reliant on the employer for these. To be successful a union has to show that
it is truly independent of the employer, and ‘by that’, says Walker, ‘we mean not
liable to or vulnerable to interference by the employer – clearly this is more likely
where an organisation is reliant on an employer for facilities or financial support’.
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One example of a union which was refused a Certificate of Independence is NISA
(News International Staff Association). It was set up by the employer as a single
company union and was reliant on the employer’s facilities. Although NISA continues
as a trade union, the Certification Officer has turned down its applications for a
Certificate of Independence. In contrast, the staff union Aegis was also set up as a
single company union but it had contingency plans if the employer pulled the plug on
access to facilities and had plans in place to move from check off to direct debit for
members’ subscriptions and also to set up its own premises. It received a Certificate
of Independence in 2008.
Newly listed and newly independent unions
The CO keeps lists of unions, independent unions, and ‘scheduled’ unions.
Scheduled unions are those which the CO has decided meet the statutory definition
of a trade union but which have not made an application to be listed.
Some unions will seek to be listed and immediately apply for a Certificate of
Independence, whilst for others there may be a gap of a number of years between
listing and seeking independence. Other listed unions will never seek independence,
either because they are not eligible or because they already have voluntary
recognition from the employers of their members.
Below, we set out those unions that have been listed and those that have been
given a Certificate of Independence in the last two years.
Newly listed unions
Unions given
a Certificate of
Independence
2010-11
2011-12
Employees General
Union
Employees United
Myunion
National Security Workers Union
(NSWU)
Public Trade Union
Social Workers Union (SWU)
SKYSHARE
Scottish Primary Schools Association
Workers of England
Union
Bus Workers Alliance
PDA Union
SKYSHARE
Associated Train
Crew Union
Industrial Workers of the World
Social Workers Union (SWU)
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Conclusion
The recent increase in the number of organisations seeking to be accepted by the
Certification Officer as a trade union is thought likely to continue. Some of this
increase will be due to breakaways from a major union or people trying to represent
in areas where established unions have no effective presence – perhaps as a result
of the fragmentation of the industrial structure at a particular workplace or employer.
However, Walker believes that a number are likely to come from organisations
with a business model aimed at taking advantage of the right of trade unions to
accompany workers at internal disciplinary and grievance hearings. In his opinion,
‘the Certification Officer is likely to have to investigate more applications to ensure
the organisation meets the statutory definition of a trade union. We may well see
decisions by the Certification Officer and perhaps appeals to the Employment Appeal
Tribunal in this novel area of the law’.
References
The Certification Officer’s annual report 2011/12, and previous annual reports are
available at http://www.certoffice.org/Publications/Annual-Reports.aspx
‘The Certification Officer’, by David Cockburn in, The changing institutional face of
industrial relations (2006), Linda Dickens, Alan C Neal (eds). Published by Kluwer
Law International.
www.certoffice.org
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