Commentary on provisions of Act Schedule 3: Certification Officer: Power to impose financial penalties
This Schedule inserts a new Schedule A4 into the 1992 Act and gives the Certification Officer the power to impose financial penalties where he has the power to issue an enforcement order under specified provisions.
	Paragraph 1 sets out those enforcement order provisions where financial penalty powers will also be available to the Certification Officer. This includes two new areas where the Certification Officer will be able to make an enforcement order (and therefore a financial penalty) as a result of other changes made by this Act. These are in relation to:
new Section 32ZC(6) of the 1992 Act in relation to a failure by a union to provide details of industrial action etc or political expenditure in the annual return (see section 15 of the Act)
paragraph 5(1) of new Schedule A3 of the 1992 Act in relation to a failure to comply with investigatory requirements (see Schedule 1 to the Act).
	Where the Certification Officer issues an enforcement order or has the power to do so but chooses not to exercise it, paragraph 2 of the new Schedule A4 allows the Certification Officer to:
make a penalty order requiring the trade union to pay a financial penalty, or
make a conditional penalty order requiring the trade union to pay a financial penalty if they do not take particular action within a certain timescale.
	Paragraph 3 of the new Schedule sets out how a conditional penalty will be enforced. If the Certification Officer is satisfied that the union has taken the necessary steps by the time specified, the Certification Officer must notify the union that the penalty is no longer payable. If the Certification Officer is not satisfied and the penalty has not been paid by the required date, the Certification Officer must issue a further order requiring payment of the original penalty amount or a lesser amount where the union has taken partial steps towards compliance. The Certification Officer will be able to utilise the Certification Office's investigatory powers conferred by new Schedule A3 in order to establish whether there has been compliance with a conditional penalty order (see paragraph 1(1) (h) of the new Schedule A3 to the 1992 Act).
	Paragraph 4 of the new Schedule requires that before the Certification Officer makes a penalty order or conditional penalty order the Certification Officer must inform the trade union of the grounds upon which the Certification Officer proposes to make it and give the trade union an opportunity to make representations.
	Paragraph 5 of the new Schedule provides for a right of appeal to the Employment Appeal Tribunal against a decision to impose a penalty or conditional penalty, and sets out the grounds of appeal. Paragraph 6 provides that the maximum and minimum penalty amounts can be set in regulations but they cannot be less than £200 and cannot exceed £20,000. The Secretary of State is also given a power to issue regulations setting different amounts in relation to different enforcement orders and to reference penalties by whether the person in default is an individual or an organisation and by the number of members that a trade union has. Power is given to the Secretary of State to amend the minimum and maximum level of financial penalty.
	Paragraph 7 gives the Secretary of State power to make certain provisions by regulations. These are:
Provisions to deal with discounts for early payment
Provisions to deal with further penalties for late payment and for interest on penalties, which must not exceed in total the amount of the penalty itself
Provisions to deal with the collection (enforcement) of the civil penalties that are owed as civil debts
	Paragraph 8 sets out that regulations issued by the Secretary of State must be made following the affirmative procedure and allows those regulations to make supplemental or incidental as well as transitional or consequential provisions.