HC Deb 21 April 1959 vol 604 cc267-82

In any case where it is represented to the Minister by an organisation or association of the employers or of the workers in any trade industry or section of a trade or industry in respect of which terms and conditions of employment have been settled by an agreement that such organisation or association represents a substantial proportion of the employers or workers in such trade industry or section but is not represented by the organisation or association of employers or workers as the case may be which is a party to the agreement, the Minister may refer the representation so made to the Industrial Court and the Industrial Court shall consider the matter and may make such recommendations with respect thereto as they think fit.— [Mr. Page.] Brought up, and read the First time.

5.58 p.m.

Mr. Graham Page (Crosby)

I beg to move, That the Clause be read a Second time.

Mr. Deputy-Speaker

With the new Clause we can take the Amendment to Clause 8, in page 6, line 37.

Mr. Page

The new Clause and the Amendment relate to Clause 8 as it stands. The Clause was added in Committee in pursuance of an assurance given by my right hon. Friend during the Second Reading debate and in pursuance of discussions and agreements reached between himself and the T.U.C. and the B.E.C. Subsection (1) of that Clause provides that where a claim is reported to the Minister that terms or conditions of employment have been agreed or awarded and are not being observed, the Minister can take steps to settle the claim, and that if he fails by those steps to settle it he has to refer the matter to the Industrial Court.

In order to give the Minister power to refer a claim to the Industrial Court, subsection (1, b) states that the parties to the agreement or award must represent a substantial proportion of the employers and of the workers in the trade affected.

In Committee, in referring to that point, my right hon. Friend said: The second important point in paragraph (b) is that 'the parties to the agreement' must represent 'a substantial proportion: Again, that follows the Industrial Disputes Order and again it is not defined. It is a matter for the judgment of the Industrial Court. I think that the Committee will agree that that must be so, because what is or is not substantial must very much depend on the trade and, in particular, on the degree of organisation that exists within the trade. In a poorly organised industry perhaps 10 or 15 per cent. might conceivably be a substantial proportion, whereas in a much more highly organised trade the Industrial Court may decide that a larger percentage would he appropriate"—[OFFICIAL REPORT, Standing Committee B. 9th April, 1959; c. 8.] 6.0 p.m.

The new Clause and the Amendment are intended to ensure that it is a matter for the judgment of the Industrial Court whether the parties to an agreement or an award represent a substantial proportion of the industry, and that the decision is not a kind of hole-and-corner business between those who already have a vested interest on the voluntary joint councils. The Clause is an effort to ensure that there is a fully representative body before any claim arises. It will be no use proceeding to the Industrial Court with a claim only for the Court eventually to say, "The parties before us do not represent a substantial proportion of the industry." The new Clause seeks to avoid that happening and, furthermore, to provide that even before negotiations commence upon an agreement, or proceedings commence for an award, there shall be as much certainty as possible that the parties represent a substantial proportion of the industry.

The new Clause seeks to ensure that, by requiring the Minister to consider any representations made to him by representatives of one side or the other, they represent a substantial proportion, and to refer those representations for decision to the Industrial Court. If an association, federation, or union claims to represent a substantial part of an industry but is not at present on the voluntary joint council it should be permitted to put its case to the Minister, and the Minister should then refer the point to the Industrial Court for a decision. I appreciate that these voluntary joint councils are intended to be purely voluntary, but certain bodies ought not to be allowed to usurp power on those councils—and I use that rather strong phrase intentionally to describe what I believe is happening in some cases at present.

I now turn to the Amendment. In Committee, when referring to the question whether a party represented a substantial proportion of the industry, my right hon. Friend said that that should be a matter for the judgment of the Industrial Court. I would ask him how, as Clause 8 stands at present, the Industrial Court can decide that question if it does not hear the case of those who are questioning the claim of some other association to represent a substantial proportion of the industry.

As I read Clause 8 as it is drafted, I construe it that an industrial court has to consider whether a claim which comes before it is well-founded. It has, therefore, to consider whether the parties to the dispute or issue, or claim—whatever we are pleased to call it—represent a substantial portion of the industry. Unless there is some simple machinery such as I suggest in the Amendment, an industrial court will have before it only those parties claiming in the first instance, because they were parties to the claim or dispute, that they represent a substantial proportion of the industry and that nobody else does. No one else will be able to come before the court and make their representations and put their claim to represent a portion of the industry.

I wish to explain the position by means of an example, and I take the example of the Federation of Master Builders. That Federation was formed in 1943 after the Emergency Regulations took effect. It has been excluded from the National Joint Council for the Building Industry. That council was formed as long ago as 1920 and was, as it were, crystallised in its membership when the Emergency Regulations took effect. The Federation of Master Builders has been refused representation on the Joint Council in spite of repeated applications. Not only has it been refused representation, but it has been refused even prior consultation with those on the Joint Council. So a body which represents no less than 11,500 employers in the building trade is refused any sort of representation or any kind of consultation with the Joint Council which has to decide the terms and conditions of employment in the building trade.

Not only does this federation comprise 11,500 employers, but it is established over nine regions in the country. It has 100 provincial branches and 36 area branches in the London region. It represents a substantial portion of the industry.

I know that an argument against both the new Clause and the Amendment is that industry should be free to settle its arrangements for negotiating terms and conditions of employment. But one must remember that under the provisions of this Clause those who are not parties to any claim, dispute or issue are to be bound by the terms of whatever agreement or award is reached.

More than that. When it is said that an industry must be free to settle its own arrangements, what do we mean by "industry" in this connection? Certainly the Federation of Master Builders, for example, representing such a substantial portion of that industry, is not in any way free. It is excluded from all negotiations. It seems to me that what we mean by industry being free to make its own arrangements is that the people who were on the Joint Council when the Emergency Regulations took effect back in 1940 are the people who are to arrange all conditions and terms of employment, because no change in the constitution of the joint council can apparently be made.

How long does this go on? How lone is the membership of the Joint Council to be frozen in that way? 1 have given an example from the employers' side, but one would not have to look far to find examples from the workers' side, where unions representing workers are not admitted to the voluntary Joint Councils. Without the proposals contained in my new Clause and Amendment it seems to me that the Joint Councils are something of a closed shop and that there should be some procedure to enable a body of representatives, an association, a federation or a union, or whatever it may be, to have its case heard; to come to the Minister and say, "We believe we represent a substantial part of the industry, will you put our case before the industrial court and let it decide whether or not we represent a substantial portion of the industry?"

I am not asking that the Minister should become involved in this matter by making a decision. I merely ask that he pass the representations on to the Industrial Court. There is no compulsion about this on the Minister or the Court. It is a question of passing on the representations so that the case is heard. At present the case is heard by no one. An association which has a substantial membership has no independent person to whom it can appeal. It can apply to the members of the Joint Council with a sort of plea, "Please let us in on these negotiations", and usually that is met by a blank refusal. This new Clause and the Amendment would give a measure of justice and fair dealing to representatives of industries and enable them to prove that they represent a portion of industry.

Mr. William Shepherd (Cheadle)

I beg to second the Motion.

I realise the difficulties with which we are confronted in this issue, because in reality this trouble arises not within the sphere of Government competence but is due to some internal difficulty facing trade associations and trade unions in various industries. However, the difficulty is real and I hope that my hon. Friend will be able to satisfy us on the point.

The requirement outlined by my hon. Friend is in my view a question of elementary justice. None of the people I know in trade and industry is anxious to avoid being required to comply with conditions which are generally applicable. I am sure that my hon. Friend has no desire to do so, and I do not wish to help anybody who wishes to dodge the general level of wages and conditions. It is no part of the case advanced by those who support this Clause and Amendment to assist anybody in that way. But those individuals and associations who feel that they ought to be consulted, and are prevented from being consulted, naturally feel aggrieved that they have to comply with something when they have no right at all and no facility for putting forward their point of view.

I hope my hon. Friend will deal with this matter in a manner which will give satisfaction to those people. I must confess a personal interest. For a long time I have been associated with the Chair Framemakers' Association, and our association naturally wishes to have a say in the determination of wages and conditions. But we as an association are refused affiliation to the British Furniture Manufacturers. They say, for whatever reasons they may think fit, "We do not want to have you" However much we want to take part, even in an indirect way, in the determination of these affairs, we are not allowed to do so because, as the Chair Framemakers' Association, we are denied affiliation to the British Furniture Manufacturers.

Not only, therefore, are the builders affected, but an association with which I am connected is affected, and there are many organisations throughout the country representing both employers and employees which are in a similar position. I appreciate all the arguments raised by the trade associations about the undesirability of encouraging splinter movements, and this of course is the view expressed by the trade union side—

Mr. Frederick Lee (Newton)

No.

Mr. Shepherd

I am sure that the hon. Gentleman will put forward his view, and I should not deny its merit.

At the same time, the law ought to be changed, seeing that we are now giving statutory effect to these provisions, so that all those bodies entitled to do so by virtue of being in a trade should in some form be in a position to be consulted. They should not be put in a position where they have to acquiesce in a process in which they have no say. Their existence in the trade and the established nature of the trade clearly justifies their right to a say in the decisions which are made.

It is entirely from that point of view, which is limited, but one which I believe to be a matter of elementary justice, that my hon. Friend and myself advance this plea to the Parliamentary Secretary to accept the proposed new Clause and the Amendment, or some variant, to enable those organisations at present denied elementary justice to have their rightful say in determining these matters.

6.15 p.m.

Mr. Lee

The case advanced by the hon. Member for Crosby (Mr. Page) and by the hon. Member for Cheadle (Mr. Shepherd) sounds eminently reasonable, and hon. Members on this side do not wish to see injustice done to any section of industry, either employers or employees. There have been many instances of disputes within an industry on both sides about who should enjoy representation. Therefore, it should not be thought that those who cannot agree with the hon. Members for Crosby and Cheadle wish to continue something which may have become an anomaly or something similar.

I counsel the Parliamentary Secretary that merely because an association of employers in the building industry is being excluded from the counsels of the National Joint Council for that industry does not, as we see it, call for legislation in order to put right something which they consider to be wrong. We received a copy of lie suggested new Clause and Amendment from that association and we have examined the arguments adduced in favour of them. The hon. Member for Crosby gave the impression that there is some reason why there cannot be an adjustment within the employers' side of the industry in the present representation of the National Joint Council. I may be quite wrong about this, I do not pretend to know the ruling on the employers side. But I do not know why we should necessarily consider that the present representation of employers on that council is similar to the law of Medes and Persians and cannot be changed.

There was much in what the hon. Member said in that there has been a growth in certain directions since the war-time provisions have been in operation and therefore it may well be that, purely on membership, there is a case for particular employers to be represented on the council. I am not trying to make out a case against that. But surely if that be so, it is something which should be argued among the employers' associations within a particular industry. As I see it, there is no case for forcing a change in the representation on the employers' side by means of legislation.

Mr. Page

That is just the point. How is it to be argued? In the case which I have quoted there have been efforts to argue it between the employers and they have never got together. How is it to be argued between them?

Mr. Lee

I understand that there is a dilemma. I am saying that a Government that tried to enforce a certain ratio of representation between certain types of employers would find themselves in grave difficulty.

It could be said that one would need a percentage of membership in order to qualify for a position on the council. A percentage of membership is very fluid as it changes rapidly as one section of an industry contracts or another expands. What does one do then? Does one start again and legislate to exclude from the employers' side somebody to whom a seat has been allocated in favour of someone else who has now another 2 per cent. of membership and is therefore above the minimum level demanded? Because of the wide range of industry covered by these arrangements, once that was begun the House would be able to do precious little except alter agreed legislation in order to cover all the changes in industry.

There are times when this argument would suit me very well. My right hon. Friends and myself have been pressing the Minister of Labour for some time to do something to get recognition for the Bank Employees Association which, as we are aware, has a percentage of membership of well over 50 per cent. of the employees in the banking industry. I would like to see recognition of such a strong association of employees. I recognise that if we tried to push this to the point of making the Minister the responsible person for saying to the employers, in the case that I am arguing, that there is a percentage of "X" and therefore you must recognise this association and deal with it, the result would be that while they would have to accept recognition there would be a "dead pan" approach to the negotiations that had to take place.

I do not like the legislative approach to the problem. I think my right hon. Friend the Member for South Shields (Mr. Ede) knows of the representations made by headmasters for membership of the Burnham Committee. We have had letters from them and one sees their point. I suggest to the Parliamentary Secretary that if we are to accept the basis of the Government determining the allocation of seats, either to employers or employees, within the negotiating machinery of a given industry we are getting into dangerous waters.

Mr. Shepherd

The hon. Gentleman is saying that we are asking the Government to make this decision. When I first spoke I recognised the difficulty that this was largely a question between trade associations. The Amendment does not ask the Government; it asks the Industrial Court to decide.

Mr. Lee

The point I am making is that the hon. Member is asking the Government to enshrine in legislation that the power to accord seats on the negotiating machinery of any industry shall be determined by this House. We are being asked to agree that the Industrial Court shall be given this power and therefore we are being asked to say that we shall enshrine this in legislation and determine the allocation of seats in the way I was indicating.

I feel that the Ministry of Labour does a lot of work that is never known to this House in trying to bring pressure to bear where there is a basis of obvious fairness for the question of representation. While conciliation officers do a lot of work in this field, I am not convinced they do enough. I never will think so until we get what we know to be a proper and fair allocation.

I am not trying to say that there is anything unfair in what the hon. Member for Cheadle and the hon. Member for Crosby said. I thought the case was eminently reasonable and, in justice, a very good argument was put forward. What I am saying is that once one has this very wide open door one does not facilitate good negotiations by forcing one side to meet the other when in fact they are opposed to meeting. There would be a blank refusal to any proposals which came from people who were not welcome on the negotiating machinery.

For those reasons, I do not think that legislation is the right medium. Whilst saying that, I hope the hon. Gentleman will agree that there is a case for the Ministry doing everything in its power to ensure that there is adequate and proper representation of bodies—especially in the case that has been cited where there are 11,500 employees who are compelled to accept decisions of the Industrial Court and yet have no voice in the negotiations—on the negotiating machinery.

I hope that the hon. Gentleman, whilst not being able to accept such an Amendment, will agree that the Ministry should see whether there is any way in which it can do more than it does now to ensure that where a proper and fair case is established pressure can be brought to bear on the people within the negotiating machinery to ensure proper and adequate representation.

The Parliamentary Secretary to the Ministry of Labour and National Service (Mr. Richard Wood)

I have listened with interest to the case which my hon. Friend the Member for Crosby (Mr. Page) produced with his usual clarity. My hon. Friend the Member for Cheadle (Mr. Shepherd) spoke frankly about the difficulties within industries over questions of this kind. Although I do not go the whole way with the hon. Member for Newton (Mr. Lee) in his suggestion that my hon. Friends were trying to achieve too much by legislation, I am the first to agree about the legislative shortcomings, and I have said so on a number of different occasions about a number of different cases.

If I might review what I understand to be the object of the new Clause, it is to ensure that an organisation of workers or employers who are not represented on a negotiating body which has made an agreement should have the opportunity to put its point of view, first to my right hon. Friend, who may then have occasion to refer it to the Industrial Court.

The Clause gives my right hon. Friend the power, if he so chooses, to refer the representations which have been made to him to the Industrial Court. The effect of the Amendment, as I understand it, would be that the representations made through my right hon. Friend to the Industrial Court would be made with the object of helping the Industrial Court to make up its mind about the various criteria for a claim, in particular the criterion in Clause 8, Section 1 (b), whether or not the negotiating parties are, in fact, a substantial proportion of the employers or workers in the trade.

It is clear that the matters which my hon. Friend has been speaking about are fairly well known. While it is not for me to suggest what should be done, the Industrial Court would be bound to consider all relevant matters before it came to its decision as to whether the negotiating bodies did, in the words of the Bill," represent a substantial proportion" or not.

6.30 p.m.

A further difficulty about the new Clause and the Amendment is that even if the so-called splinter body, of whom a number of hon. Members have spoken, were shown itself to be a substantial proportion, this would in no way deflect from the still possible judgment of the Industrial Court that the negotiating bodies represented a substantial proportion themselves. As I see it, the information which might reach the Industrial Court through my right hon. Friend would, in many cases, possibly in every case, be irrelevant, because its task under Clause 8 is to make up its mind, taking, as, no doubt, intelligent men would, every consideration into account, whether the negotiating bodies who have made the agreement are, in fact, a substantial proportion of the trade.

Therefore. although I cannot agree to accept the Clause and the Amendment, I assure my hon. Friend the Member for Crosby that, in my view, the kind of considerations which he would like the Industrial Court to take into account—although, again, none of us should presume to make up our minds what the Court will take account of—would be bound to be in the mind of the Court if it were trying to decide the matter. I hope, therefore, that my hon. Friend might be willing to withdraw the new Clause on the assurance I have given that the important matter which the Industrial Court would have to decide is the positive question of whether a substantial portion of the trade is represented by the negotiating bodies. Naturally, the Court would examine all the relevant facts to reach that conclusion.

Mr. Reader Harris (Heston and Isleworth)

Can my hon. Friend the Parliamentary Secretary say how the Industrial Court will ever know whether the organisation represented on the employees' side "represents a substantial proportion" of the persons employed? If a minority organisation which did not have representation on the employees' side of, say, a National Joint Council were not represented on the employees' side, how would it ever get its views before the court? In practice, what happens is that if something is referred to the Court, the employees' side of the negotiating machinery puts its case and never thinks of raising the question of whom it represents. It merely assumes that the Court will take it that it represents everybody or a substantial majority of those concerned.

One of the great difficulties in all this matter is for the minority organisations to get their point of view put forward to the powers that be. This is a permanent and serious problem, not only in industry, but in local government, also. We have had it in the fire services and in the teaching profession. The big organisations, not unnaturally, take the view, "What we have, we hold. We want to speak for everybody and we do not want any other people poking their noses into it. We are quite capable of speaking for the whole of the employees concerned." Whether they do speak for them all may be a matter of argument. The great problem is the minority organisation which may have a large proportion of the people who want to get their voices heard.

Is the Minister saying that he will make it incumbent upon the Court, first, to inquire into the credentials of the people who appear before it? If so, I am in favour of that. Suppose, however, that the Court is not satisfied that the spokesmen speak for a substantial majority. Will it say, "Go away. We will not listen to you. Come back again when you can assure us that you represent all the people concerned and that there are no minority voices which are not being heard"?

I appreciate the Minister's difficulty. This problem is not confined merely to the non-T.U.C. unions against the T.U.C. unions. These problems arise even within the T.U.C. itself. There was an enormous strike in the docks over this very problem. It is a nettle which the Labour Party has never felt able to grasp. I do not think that the T.U.C. has felt able to grasp it, nor has the Conservative Party. To decide who should be listened to and who should have the right to speak for his members and what represents a "substantial proportion" of them is an enormous problem. If my hon. Friend the Parliamentary Secretary can solve it, he will be doing an enormous service to get peace in industry between the workers.

Mr. Lee

It is quite false to give the impression that X number of trade unions have always been in existence and always will be, that no new ones can ever come into being and, hey presto, that is the end of the story. A great number of the present unions affiliated to the T.U.C., with full recognition in their industries, started with the same problem. This is an ever-changing story. It is not the case that after, say, 1959 no new people shall be accepted. This is something which goes on constantly and it is not true to say that one is up against a brick wall.

Mr. Harris

The hon. Member is quite right. This is an ever-changing problem, but, my goodness, it changes slowly, so slowly that the Engineering Officers' Telecommunications Association simply had to go out of existence because it could not do anything about it and so slowly that the National Association of Schoolmasters, with 17,000 members, has still, thirteen years after the war, not been able to do anything about it. It is something which goes too slowly, in all conscience. It goes so slowly that somebody ought to do something about it.

Today, my hon. Friend the Member for Crosby (Mr. Page) has put forward a practical suggestion. I like the idea of making the Court decide who shall have the right to speak. After all, a court of this kind would be the most appropriate body to decide, better than a Government Department, which might be accused of political bias.

I do not know whether the whole subject can be settled in the Bill. It is one which, I suppose, the Government want to get through quickly and, if I judge the Opposition aright, hon. Members opposite would like to see it get through as quietly as possible. I hope, however, that I do not misjudge them; perhaps they have no strong views. If there were an opportunity of doing something about this matter in the Bill, it would be a very good thing, because this is a problem which is a canker in the trade union world, not simply in the T.U.C. world, but in the trade union world generally. Somebody, some day, must be put in the position of deciding who can and who cannot speak for their members.

My hon. Friend has put forward a practical suggestion to which, I hope, my hon. Friend the Parliamentary Secretary will give serious thought.

Mr. G. A. Pargiter (Southall)

Where are we going? This discussion is developing into the whole question of recognition. The issue is the relatively narrow point of whether, when an issue has been decided, it shall be made to apply to all the people in a certain industry. That is the simple issue. I am not sure whether the hon. Member for Heston and Isleworth (Mr. Reader Harris) heard the earlier part of the discussion, but he has gone on to something far wider than the Amendment.

This is a question of whether the relatively narrow point made by the hon. Member for Crosby (Mr. Page) is a valid one, because a body of employers not being represented would be forced to recognise an award; but the whole question of recognition in the negotiation of an award is not the subject of the Bill at this stage. It is a much wider issue and bears no relevance to it at this stage.

Major Sir Frank Markham (Buckingham)

This question has great relevance. I support the plea by my hon. Friend the Member for Crosby (Mr. Page) that there should be introduced into the Bill a Clause that would help to get certainty on the question of who should represent the employees at the Court. It has already been made clear to the House that while the unions are in a state of change and, we hope, progress, the changes in the authoritative representation are so slow as to be somewhat more than slow.

The point has been made about the way that the National Association of Schoolmasters has been excluded from all representation in educational matters on important tribunals and councils. Important as that is, however, it is perhaps overshadowed by the archaic state in British Railways, where today the National Union of Railwaymen is sitting back on precedents from half a century ago, refusing to allow any representation at all of the A.E.U., or of the National Union of Vehicle Workers, on bodies such as management committees of works.

In the case of the railways, that one union not only claims priority over the others, but refuses to go into prior consultation with them. It is a great wrong, and I am sure that the trade union representatives who are present recognise it as such, that one union by almost hereditary or prescriptive right should refuse to allow any other union within a certain group of workmen to speak for them. It would be a welcome addition to the Bill and valuable for the country at large if the Bill empowered the Court to decide who shall represent the workers and let them have the broadest possible measure of scope.

Mr. Wood

I should like to clear up a little of the confusion which seems to have arisen. The Clause and the Amendment, if accepted, would not do anything to solve the problem to which a number of my hon. Friends have drawn attention. All that they would do would be in certain cases—and only in certain cases, because my right hon. Friend might not refer all representations made to him under the new Clause—to ensure that the views of these so-called splinter bodies would be made known to the Industrial Court.

My hon. and gallant Friend the Member for Buckingham (Sir F. Markham) said how important it was that the Bill should require the Industrial Court to decide these matters and my hon. Friend the Member for Heston and Isleworth (Mr. Reader Harris) said that the Government were not the body who should decide, but that the Industrial Court should do so. That is exactly the view of my right hon. Friend as expressed in Clause 8, subsection (1, b) under which the Industrial Court must be satisfied, among other things, that the parties to the agreement…are or represent organisations of employers and organisations of workers…and represent…a substantial proportion… Therefore, the only difference between my hon. Friends and myself is that they suggest that certain information should be given to the Industrial Court to help it to make up its mind about that. I have suggested, and my view remains, that such information as could be given about these things, the existence of which is very well known, would not assist the Industrial Court, which can perfectly well make up its mind. I insist to my hon. Friends, however, that it is the Industrial Court and no other body that has to make up its mind which is the relevant negotiating body in this case.

Mr. Page

I cannot express satisfaction, but I hope that we might be able to come back to this matter on some other occasion. Therefore, I beg to ask leave to withdraw the Motion.

Motion, and Clause, by leave, withdrawn.