Certification Officer
Introduction
The remaining provisions of the Trade Union Act 2016 have been implemented from 1 April 2022. These give the Certification Officer powers to:
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Require trade unions and employers associations to pay a levy to fund the costs of some of her functions.
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Consider whether an organisation has breached statutory responsibilities set out in the Trade Union and Labour Relations (Consolidation) Act 1992, without having first received a complaint from a member of that organisation or another eligible party.
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Investigate allegations that an organisation has breached statutory responsibilities, by requiring the organisation to provide her with specific documentation and/or by appointing an inspector to investigate the matter on her behalf.
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Where she finds that an organisation has breached its statutory responsibilities and/or its rules, to impose a financial penalty order or conditional financial penalty order on that organisation.
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Enforce any order that she makes.
The Trade Union and Labour Relations (Consolidation) Act 1992, as amended by the Trade Union Act 2016, provides the definitive description of these powers. This guidance explains how the Certification Officer intends to apply these powers in practice.
Contact us
If you have any questions about these new powers or this guidance, please contact us.Telephone: 0330 109 3602 Email: info@certoffice.org ?
Guidance on Implementing and Administering the Levy
Introduction
From 1 April 2022, trade unions and employers associations will be required to pay a levy to contribute to the costs of the Certification Officer incurred in the course of her duties.
The Trade Union Act 2016 enables the Certification Officer to collect the levy. There are safeguards which prevent the current, or a future Certification Officer, from using the levy to raise any additional revenue, over and above her costs. In particular, the Trade Union Act 2016 requires the Certification Officer to aim to ensure that over any period of three years, the levy does not exceed her total relevant costs for that period. All funds raised through the levy will be paid into the governments consolidated fund; they will not be used to supplement the Certification Officers budget.
The government has prepared detailed regulations which set out how the Certification Officer must determine the levy amount, issue a levy notice and recover the levy. The regulations provide a definitive guide to those processes. This guidance explains how the Certification Officer intends to administer the levy.
Key Dates for Trade Unions and Employers Association
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The levy has come into force from 1 April 2022, and the first levy period began on that date; the first levy period ends on 31 March 2023.
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In November 2022, the Certification Officer will issue an estimate of the likely levy charge for the first levy period.
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In March 2023, the Certification Officer will formally determine the levy and issue levy notices to organisations.
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The levy charge for the first levy period will fall due for payment in May 2023; organisations will need to ensure that they have paid the levy by 31 May 2023.
Calculating Relevant Costs
The 2016 Act enables the Certification Officer to recover some of her costs through the levy and sets out which costs she can and cannot include when calculating the levy.
She may recover the following costs:
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Staff salaries and pensions, including the costs of the Certification Officer, any Assistant Certification Officers and her wider team.
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Costs incurred by Acas (the Advisory, Conciliation and Arbitration Service) in providing accommodation, equipment, including IT equipment, and facilities, including finance and human resources support.
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Any costs associated with delivering the statutory duties themselves, including the cost of holding formal hearings to determine complaints.
She may not recover costs associated with:
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External legal advice provided to the Certification Officer by the Government Legal Department, any other legal costs such as barristers fees, and legal costs of any other party.
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Appointing inspectors, who are not members of her staff, to investigate matters, including allegations of financial irregularities and breaches of statute.
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Processing applications to be added to the list of trade unions or employers associations and applications for certificates of independence made by trade unions. Fees for these services will be retained, payable by the relevant trade union or employers association.
Before the end of each levy period she will consult with trade unions and employers associations on her business plan for the following levy period. After the end of each levy period she will publish details of all her costs in her annual report, including an explanation of how they have been incurred and whether they have been recovered through the levy.
Determining the Levy Amount
The regulations provide detailed instructions about how the Certification Officer should calculate the levy, and she will follow these. In calculating the levy, she will take into account both that the majority of her costs are incurred in providing services to non-federated trade unions, and that no organisation will pay more than 2.5% of its income toward the levy.
The Certification Officer will use the total income figure quoted on an organisations most recent annual return form when determining the 2.5% threshold described above. Where no annual return exists, the Certification Officer may ask the organisation to report its income to her. If an organisation fails to provide this information, she may estimate its income. As a result, it is essential that every organisation submits its annual return on time.
It is possible that the Certification Officer will need to estimate her costs for the purposes of charging the levy. Where she has overestimated her costs, she will take that into account when determining the next years levy, ensuring that the levy raised does not exceed her total costs in any three-year period.
Details of how the levy has been determined will be published. The Certification Officer will also explain how she has determined the levy in her annual report, including details of the rates at which each organisation has paid the levy. She will also explain to each organisation, in the levy notice, how the levy has been calculated for that organisation.
Issuing the Levy Notice
The Certification Officer will issue an estimate of the levy in November each year. This will give organisations notice of the charge they are likely to incur at the end of the levy period.
The Certification Officer will aim to determine the levy and issue levy notices in March of the year to which the levy relates. For the first levy period, from April 2022, the levy will be determined, and levy notices issued, in March 2023. This is to try and ensure that the total costs recovered through the levy are as close as possible to the actual costs incurred by the Certification Officer in each levy period.
The levy notice will include details of the amount an organisation must pay, the date by which that amount must be paid and how the levy must be paid. The Certification Officer will require organisations to pay the levy by the end of May in the year following the levy period. For the first levy period, from April 2022, the levy falls due by 31 May 2023. The Certification Officer requires each organisation to pay the total levy in a single instalment by this date.
On receipt of the levy notice, if an organisation wishes to dispute the amount it has been charged, it should contact the Certification Officer with an explanation as to why it believes it should not be paying that amount. The Certification Officer will review the amount and if she agrees with the organisation, she will withdraw the original notice and issue a new notice with the correct amount. If an organisation believes that it cannot pay the levy for any reason, it should contact the Certification Officer with an explanation as to why it cannot pay.
Recovering the Levy
If an organisation fails to pay the levy by the date specified in the levy notice, then the amount is recoverable by the Certification Officer as a debt. Acas will recover any debts on behalf of the Certification Officer. Where a debt recovery agency is engaged, the costs associated with recovery will be added to the levy charge for the organisation that is in default.
Guidance on the Power to Act without Application and Investigatory Powers
Introduction
From 1 April 2022, the Certification Officer will have powers to consider whether a union or employers association has breached certain parts of the Trade Union and Labour Relations (Consolidation) Act 1992, without having received a complaint from a union member o