ESSENTIAL WORK ORDER (Hansard, 26 November 1942)

§ Mr. Silkin (Peckham)
I desire to raise a point relating to the Essential Work Order, and I have given notice of it to my hon. Friend. I hope that he will be able to give me a satisfactory assurance. The Essential Work Order was made for the purpose of preventing the enticement of workers engaged in war work from one war factory to another, and on the whole it has served its purpose. The essence of the Essential Work Order is that no worker may leave a scheduled undertaking without the consent of the National Service officer. On the other hand, no employer at such an undertaking may dismiss a worker except on the ground of serious misconduct, and that with the consent of the National Service officer. Where a worker leaves his work without the consent of the National Service officer, this officer may issue a direction to compel the person to return to his work. Where a worker is discharged by his employer with the consent of the National Service officer the worker has the right of appeal to an appeal board. If the appeal board decides that the dismissal was unjustified, the National Service 978 officer may direct that worker back to his employment, and the employer is compelled to accept him back.
That machinery has worked very well on the whole, and very few employers have made complaints about it. They have loyally accepted back without any trouble any worker whom they have dismissed but whom the National Service officer has directed back to them. Where the employer is a Government factory, agency factory or shadow factory, there is no obligation to accept the direction of the National Service officer, even though the worker has appealed successfully to an appeal board against his dismissal and the National Service officer has requested that the worker should be taken back. The result is that, in the case of Government-owned factories, shadow factories and agency factories, the Essential Work Order has become a one-sided matter. The National Service officer has been able to compel a man to keep to his employment or to go back to his employment. On the other hand, he is not able to compel an employer who happens to be the Government to take back a man who has been unjustly dismissed.

§ Mr. Silkin
There have been a number of cases where men have been dismissed, have successfully appealed to an appeal board, where the Government factory has been requested to take the man back, and the superintendents or managers of the factory have refused to do so. I would like to make two points clear. One is that even after a successful appeal the National Service officer is under no obligation to issue a direction for the return of the man to work. He still has discretion, and there have been cases in which, although the appeal has been successful, the National Service officer has said in his discretion that he considers it would be inadvisable for the man to be returned to his employment. I make no complaint about those cases, but cases I do complain of are where the man has been dismissed, a man employed in a Government factory, 979 has appealed to an appeal board and has been successful, and the National Service officer has requested that the man should be returned to his employment, and the managers or superintendents of the factory have refused to accept him.
I understand the position is that one cannot issue a direction against a Minister of the Crown, who is, of course, the nominal employer in Government factories, and that there is, in fact, an arrangement by which Ministers bind themselves to accept a request from the National Service officer. Generally speaking, I believe that Ministers have accepted such a request and have taken men back to work. But there are a number of cases, mainly of factories under the Ministry of Supply, in which the undertaking has not been duly honoured and carried out, and I would like to make a request, therefore, to my hon. Friend the Parliamentary Secretary to give the House an assurance that he will see to it that these undertakings are carried out in all cases, and that where a successful appeal has been made by a worker, and a National Service officer requests that he should be taken back to his employment, in all cases he will see to it that that worker is returned to his employment. I do not think I need stress the hardship otherwise of the position by which the man is bound but the employer is not bound, merely because the employer happens to be the Crown. I hope he will find it possible to give a satisfactory assurance on that point.

§ The Joint Parliamentary Secretary to the Ministry of Labour (Mr. Tomlinson)
I should not like it to be thought that because this question has been raised, and raised in the very friendly manner in which it has been, Government Departments were not co-operating in the carrying out of this Order, and there were any number of cases in which the circumstances described by my hon. Friend have arisen. Legally, as I tried to point out when this question was first raised, the Essential Work Order cannot bind the Crown. I do not think I need to argue that with my hon. Friend. He knows it better than I do, and could probably give better reasons for it not being possible to bind the Crown than I, with my 980 experience, could. But I did say on that occasion, and I repeat now, that when a Government establishment is scheduled under the Order no legal obligations are imposed on the management, nor can the National Service officer give them directions to reinstate the worker, but in practice we have agreed with the Government Departments concerned that when we schedule under the Orders any of their establishments, they will see to it that the management observes the provisions as if it were bound by the Order. Although the same machinery cannot be used for enforcing the terms of the Order in the case of the Crown, the understanding is that they will be bound by the agreement. Government Departments have been, if anything, more scrupulous in observing this moral obligation than some private employers have been in observing their legal obligations under the Order. There have been occasional difficulties with local officials of Departments perhaps, but immediately the matters in question were brought to the notice of their headquarters steps were taken to put things right.
The question of the discretionary powers of the Minister has been raised. I am glad my hon. Friend says that he does not object to that discretion being used. Everybody will realise that there are cases in connection with war industry in which even a local appeal board could not be told exactly what the circumstances were. I do not know of any case in which a request has been made on the lines of the Order and the Department has not carried out the request. If my hon. Friend will send me particulars of any cases, in order that I might satisfy myself whether that has happened, I am prepared not only to look into them but to have this matter threshed out with the Departments concerned. I can give him the assurance that has been given at all times, that where there is no other question involved than that of the application of the Order which is applicable to an ordinary firm, it is not only the policy but the desire of the Minister that the Crown should accept it, as they expect the loyal private employer to do.