UNITE The Union v Mills (Certification Officer), Court of Appeal - United Kingdom Employment Appeal Tribunal, February 09, 2017, [2017] UKEAT 0148_16_0902

Resolution Date:February 09, 2017
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:UNITE The Union v Mills (Certification Officer)
 
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Copyright 2017

Appeal No. UKEAT/0148/16/LA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 8 November 2016

Judgment handed down on 9 February 2017

Before

THE HONOURABLE MRS JUSTICE SLADE DBE

PROFESSOR K C MOHANTY JP

MR M WORTHINGTON

UNITE THE UNION APPELLANT

MRS K MILLS RESPONDENT

JUDGMENT

APPEAL AND CROSS-APPEAL

UKEAT/0148/16/LA

APPEARANCES

UKEAT/0148/16/LA

SUMMARY

CERTIFICATION OFFICER

HUMAN RIGHTS

The Certification Officer did not err in holding that Unite had failed to comply with Trade Union and Labour Relations (Consolidation) Act 1992 (`TULRCA') section 30(1) by not giving her access to accounting records showing `stand down' payments to each trade union official of her branch which together totalled a substantial monthly amount. Under sections 28 and 29 the Union was obliged to keep available for inspection accounting records of its transactions necessary to give a true and fair view of the state of affairs of the trade union and to explain its transactions. On the facts the Certification Officer did not err in holding that the cumulative amounts in the accounts relating to `stand down' payments which had been made available did not comply with this obligation. Previous decisions of the Certification Officer in Mortimer v Amicus (D/1/03) and Foster v Musicians Union (D/13-17/03) considered. Nor did the Certification Officer err in refusing to redact the names of the officials in receipt of such payments. Article 8 ECHR considered. Further, on the cross-appeal, the Certification Officer did not err in refusing the application by the union member for access to bank statements when she had been given access to the accounting records regarding sundries to which they relate.

Appeal and cross-appeal dismissed.

UKEAT/0148/16/LA

-3-

THE HONOURABLE MRS JUSTICE SLADE DBE

  1. Mrs Mills is a member of the Unite the Union (`Unite'). By an application received at the Office of the Certification Officer (`the CO') on 14 March 2014, Mrs Mills made a complaint against Unite of a breach of the Trade Union and Labour Relations (Consolidation) Act 1992 (`TULRCA') relating to `sundries' and `stand down payments' their not giving her access to the accounting records of branch LE/2000, the BASSA branch of Unite. Unite appeals from the decision of the CO issued on 12 January 2016 that:

    ``Unite the Union is ordered to give the claimant access to the accounting records of the BASSA branch of the Union (LE/2000) which show the individual transactions which together constitute the aggregate amounts that are entered in the quarterly and annual accounts of the branch for the years 2008 to 2013 under the headings `stand-down' or `stand-down allowance'. ...''

    Mrs Mills cross-appeals from the decision of the CO not to order Unite to give her access to inspect the statements of the Union's bank accounts relating to the BASSA Central Fund, the Worldwide Section and the Eurofleet Section relating to, `sundries'.

  2. The decision from which Unite appeals and Mrs Mills cross-appeals was made by the CO under TULRCA section 31(2) on an application made to him made under section 31(1).

    The Relevant Statutory Provisions

  3. Trade Union and Labour Relations (Consolidation) Act 1992

    ``28. Duty to keep accounting records

    (1) A trade union shall -

    (a) cause to be kept proper accounting records with respect to its transactions and its assets and liabilities, and

    (b) establish and maintain a satisfactory system of control of its accounting records, its cash holdings and all its receipts and remittances.

    (2) Proper accounting records shall not be taken to be kept with respect to the matters mentioned in subsection (1)(a) unless there are kept such records as are necessary to give a true and fair view of the state of the affairs of the trade union and to explain its transactions.

  4. Duty to keep records available for inspection

    (1) A trade union shall keep available for inspection from their creation until the end of the period of six years beginning with the 1st January following the end of the period to which they relate such of the records of the union, or of any branch or section of the union, as are, or purport to be, records required to be kept by the union under section 28.

    This does not apply to records relating to periods before 1st January 1988.

    (2) In section 30 (right of member to access to accounting records) -

    (a) references to a union's accounting records are to any such records as are mentioned in subsection (1) above, and

    (b) references to records available for inspection are to records which the union is required by that subsection to keep available for inspection.

    ...

  5. Right of access to accounting records

    (1) A member of a trade union has a right to request access to any accounting records of the union which are available for inspection and relate to periods including a time when he was a member of the union.

    In the case of records relating to a branch or section of the union, it is immaterial whether he was a member of that branch or section.

    (2) Where such access is requested the union shall -

    (a) make arrangements with the member for him to be allowed to inspect the records requested before the end of the period of twenty-eight days beginning with the day the request was made,

    (b) allow him and any accountant accompanying him for the purpose to inspect the records at the time and place arranged, and

    (c) secure that at the time of the inspection he is allowed to take, or is supplied with, any copies of, or of extracts from, records inspected by him which he requires.

    ...

    (4) An ``accountant'' means a person who is eligible for appointment as a statutory auditor under Part 42 of the Companies Act 2006.

    ...

  6. Remedy for failure to comply with request for access

    (1) A person who claims that a trade union has failed in any respect to comply with a request made by him under section 30 may apply to the court or to the Certification Officer.

    ...

    (2B) Where the Certification Officer is satisfied that the claim is well-founded he shall make such order as he considers appropriate for ensuring that the applicant -

    (a) is allowed to inspect the records requested,

    (b) is allowed to be accompanied by an accountant when making the inspection of those records, and

    (c) is allowed to take, or is supplied with, such copies of, or of extracts from, the records as he may require.

    ...

  7. Annual return

    (1) A trade union shall send to the Certification Officer as respects each calendar year a return relating to its affairs.

    ...

    (3) The annual return shall contain -

    ...

    (aa) details of the salary paid to and other benefits provided to or in respect of -

    (i) each member of the executive,

    (ii) the president, and

    (iii) the general secretary,

    ...

  8. Auditors' report

    (1) The auditor or auditors of a trade union shall make a report to it on the accounts audited by him or them and contained in its annual return.

    ...

    (3) It is the duty of the auditor or auditors in preparing their report to carry out such investigations as will enable them to form an opinion as to -

    (a) whether the trade union has kept proper accounting records in accordance with the requirements of section 28,

    (b) whether it has maintained a satisfactory system of control over its transactions in accordance with the requirements of that section, and

    (c) whether the accounts to which the report relates agree with the accounting records.

    (4) If in the opinion of the auditor or auditors the trade union has failed to comply with section 28, or if the accounts do not agree with the accounting records, the auditor or auditors shall state that fact in the report.

  9. Rights of auditors

    (1) Every auditor of a trade union -

    (a) has a right of access at all times to its accounting records and to all other documents relating to its affairs, ...

    37A. Power of Certification Officer to require production of documents etc

    (1) The Certification Officer may at any time, if he thinks there is good reason to do so, give directions to a trade union, or a branch or section of a trade union, requiring it to produce such relevant documents as may be specified in the directions; and the documents shall be produced at such time and place as may be so specified.

    (2) The Certification Officer may at any time, if he thinks there is good reason to do so, authorise a member of his staff or any other person, on producing (if so required) evidence of his authority, to require a trade union, or a branch or section of a trade union, to produce forthwith to the member of staff or other person such relevant documents as the member of staff or other person may specify.

    ...

    (6) In subsections (1) and (2) ``relevant documents'', in relation to a trade union or a branch or section of a trade union, means accounting documents, and documents of any other description, which may be relevant in considering the financial affairs of the trade union.

    ...

    37B. Investigations by inspectors

    (1) The Certification Officer may appoint one or more members of his staff or other persons as an inspector or inspectors to investigate the financial affairs of a trade union and to report on them in such manner as he may direct.

    (2) The Certification Officer may only make such an appointment if it appears to him that there are circumstances suggesting -

    ...

    (c) that the trade union has failed to comply with any duty imposed on it by this Act in relation to its financial affairs, ...

    37E. Sections 37A and 37B: supplementary

    (1) Where -

    ...

    (b) a member of a trade union has complained to the Certification Officer that there are circumstances suggesting any of the state of affairs specified in section 37B(2)(a) to (d),

    the Certification Officer shall consider whether it is appropriate for him to exercise any of the powers conferred on him by sections 37A and 37B.

    ...

  10. Offences

    (1) If a trade union refuses or wilfully neglects to perform a duty imposed on it by or under any of the provisions...

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