BRITISH RAILWAYS (CLOSED SHOP) (Hansard, 21 April 1971)

§ Mr. Christopher Woodhouse (Oxford)

For a number of reasons I am glad to have the opportunity of raising on the Adjournment the practice of British Rail in operating a closed shop. In the first place, the practice appears to be not generally known to the public, and it seems to me that a nationalised industry has at least as much obligation as any other, if not more obligation, to submit its practice to public scrutiny, especially when it tends to be assumed that the Government have approved any practice of a nationalised industry. In the second place, I believe that British Rail's present practice will cease to be legal once the Industrial Relations Bill becomes law, and I should like to have that confirmed or otherwise explained.

The third reason is that one of my constituents has been personally affected, and I believe that many others in the employment of British Rail may be similarly affected.

It was only when my attention was drawn to the case of Mr. J. A. Higgins, a constituent of mine resident in Heading-ton, that I learned what was happening in British Rail. Mr. Higgins was employed by British Rail from 14th September, 1964, as a clerical officer. During the course of 1970, when he was employed in the finance department at the headquarters of Western Region of British Rail at Paddington, he was informed that under an agreement which came into 1325 effect in February, 1970, he must join the appropriate trade union as a condition of his employment. In his case the appropriate trade union was the Transport Salaried Staffs' Association.

He was told that he had a right to appeal against this decision, and he did so appeal. He was allowed a hearing before the Railway Appeals Body under the chairmanship of Mr. L. F. Neal, the member of the British Rail Board responsible for industrial relations.

On 15th February of this year he was informed in a document signed by Mr. Neal and three others that his claim for exemption had been disallowed, and on 4th March of this year he was informed that he was dismissed from the employment of British Rail from 17th April—a few days ago. I am glad to say that Mr. Higgins in fact has found other employment, but that does not affect the principle of the matter, and it is the principle which I want to examine.

The agreement which led to his dismissal was not easy to track down. It was apparently negotiated between 1966 and 1969 and it came into effect at the beginning of 1970. I have been able to find only two contemporary references to the agreement in the national Press. They came on successive days, on 25th and 26th August, 1969, and both references were incomplete. But in the second reference, on 26th August, it was clearly indicated in The Times report—not an official statement but an informed report —that trade union membership would not be made compulsory for those already employed by British Rail, though it would become a condition of employment for new entrants.

Inquiries made at the British Rail Press Department have elicited the reply that no press announcement was ever made about this agreement —that is, the agreement on the closed shop—though other contemporary elements in the agreement were publicised, particularly the pay and productivity provisions.

I eventually found a copy of the agreement published in the Railway Review of 29th August, 1969. It is clear that the agreement was far reaching and comprehensive. In the Railway Review it was described as 1326 Stage 2 of a massive examination of rates of pay and conditions of service under the railway pay and efficiency talks. The provision for compulsory trade union membership was only one item in a very extensive agreement, but it was a vitally important item and, as I have said, it was not published in the national Press.

I give two quotations from the agreement as published in the Railway Review. The first is The Board and the Trade Unions accept that membership of a Trade Union, party to the Machinery of Negotiation, is in the best interests of employer/employee relationship. With the principle there asserted I wholeheartedly agree. I have often publicly said that any large industrial employer would be wise to encourage 100 per cent. trade union membership. I have even been attacked in a trade union journal for saying that, on the simple dogmatic ground that a Tory could not possibly mean it. I do mean it, but I emphasise the word "encourage", and not "compel".

The second quotation from the agreement is as follows: It is therefore agreed that membership of one of the Trade Unions party to the Machinery of Negotiation shall be a condition of employment effective from January 1, 1970. The detailed changes to give effect to this will be included in a further document. I do not question that this was a legal form of agreement at the time it was negotiated or that it is still so today. But surely it will not be a legal form of agreement in a very few months' time at the outside.

To some extent the answer to the question about the status of this agreement must depend on the contents of the further document referred to. I have been unable to track down that further document or to find any reference to it in the national Press subsequent to the passage in The Times of August, 1969, to which I referred. To judge from the experience of Mr. Higgins, this further document cannot be in accord with what will soon become the law. For under the new law when it takes effect, on the assumption that an agency shop agreement is introduced in British Rail, Mr. Higgins would have three options from which to choose, as I understand it. The first would be to join the designated trade union as a full member. The second 1327 would be to pay a sum to the trade union equivalent to the subscription, presumably without the political levy and without becoming a member of the trade union. The third would be to pay an equivalent sum to a charity agreed with the trade union. Mr. Higgins has assured me that he would have accepted the second option if it had been offered to him, but it was not.

It seems now that the conduct of British Rail in the present circumstances is open to grave objection. Everyone in British industry who knows Mr. Len Neal holds him in high regard. But surely the management of British Rail should at least have made some attempt in recent months to renegotiate an agreement which everyone knows, unless I am mistaken, will be void in a few months' time.

Although it may be within the law at present, it is open to two serious objections in practice. The first is that it is inhuman, because it leaves employees on the bring of decision in uncertainty for many months whether they will be dismissed. There must be many more cases in the pipeline, and I should like to know what is to become of these cases between now and the time when the Bill becomes law.

The second objection is that it is unreasonable when there is already an alternative readily available by which, in the great majority of cases probably and in Mr. Higgins' case certainly, the trade union would not suffer in the least financially. I am not sure what the powers of the Secretary of State are in this matter, but I hope that my right hon. Friend will urge British Rail to reconsider its policy immediately in order to take account of the impending change in the law.

When legislation is going through the House, there is no reason why practices should not be adjusted in anticipation of it. After all, that is exactly what the management and the unions have done in the last few days in the case of the recent agreement at Ford, thus showing, incidentally, that whatever some trade union leaders may say about the new law, they are willing to take account of it when it suits them. In a case like this, the trade unions surely should be prepared to do the same thing in the case of British Rail. 1328 So should the management, and the onus should lie on the management to take the initiative.

I ask my hon. Friend one final question. On the assumption that I am right in my interpretation of the future state of the law, will there be a retrospective obligation on British Rail to reinstate or re-engage men whom, in the meantime, it is dismissing under the 1970 agreement? If so, how far back will that obligation apply?

§ The Under-Secretary of State for Employment (Mr. Dudley Smith)

My hon. Friend the Member for Oxford (Mr. Woodhouse) is a well-known champion of cases that he believes to be right, and that is probably one of the reasons why he won his way back to this House last year and why we are all better off for his presence as a Member of Parliament. Tonight, he has done an admirable service on behalf of his constituent, Mr. Higgins, as well as drawing attention to the vexed question of the closed-shop agreement of British Rail.

As those of us who are in Parliament know, one should never judge the importance of a subject by the attendance at an Adjournment Debate. But I am sure that there are many who will read the debate with great interest, and I am glad that my hon. Friend has brought out a number of the points that he has been able to make in his speech.

The subject is not unknown to my Department. We have had a number of cases drawn to our attention by other hon. Members. In some cases, there has been distress on the part of those individuals who have found themselves in this difficulty. The closed-shop agreementment to which my hon. Friend has referred and which is at present operated by British Rail arises from the 1969 Pay and Efficiency (Stage II) Agreement between the Board and the three railway unions, the N.U.R., the A.S.L.E.F., and the T.S.S.A. It provides for membership of one of the three trade unions party to the agreement to be a condition of employment with effect from 1st January, 1970.

The agreement makes provision for exemption from the requirement to join a trade union for those with a conscientious objection to joining a union, and 1329 they may appeal to a joint panel of representatives of management and the unions concerned, as my hon. Friend has reminded us, who may grant exemption where they consider it justified. But I must stress that at present, however undesirable it may be in many eyes, there is nothing unlawful in an employer agreeing with the unions he recognises that membership of the appropriate trade union should be a condition of employment for his employees. But, as my hon. Friend rightly surmises, the Industrial Relations Bill will, of course, change that position. Many, like my hon. Friend, who are interested in protecting individual rights, will welcome the provisions to preclude the implementation of agreements which require workers to be or to become members of trade unions as a condition of engagement or of continued employment.

Clause 6 of the Bill makes void the pre-entry closed shop, which makes union membership a prerequisite for employment, and Clause 5 makes unenforceable any agreement which denies a worker the right freely to choose whether or not he will be a member of a union.

These provisions reflect the importance that the Government attach to ensuring that an individual's livelihood is not dependent on a union's discretion; that a man with the necessary qualifications to pursue an occupation should not be prevented from doing so because he does not wish, or is not permitted, to belong to a particular union. I agree very much with my hon. Friend that one should do everything to encourage union membership, but the accent should be on "encourage" and not on "compel".

However, in the Industrial Relations Bill's provisions for regulating agency-shop agreements, the Government acknowledge that effective union organisation and responsible and constructive union leadership can be materially assisted by arrangements under which a union has exclusive bargaining rights in respect of employees, or employees of a particular kind in an undertaking, and is financially supported by all of them. The Government have also recognised the justifiable demands of trade unions that the Bill should not, through outlawing the closed shop, encourage the so-called "free rider" who enjoys the benefits of union bargaining 1330 power but contributes nothing to support the union.

Collective bargaining inevitably at some stages impinges on the rights of the individual, and it is necessary to make a careful balance between the interests of the individual and the collective interest. I submit that the agency-shop provisions of the Bill provide that very carefully balanced compromise—the balance between the right of the individual to choose not to belong to a union and his social responsibilities as a member of a work group whose standards of living may in some measure depend upon the effectiveness of the union which represents it.

The Government are firmly of the view that the agency-shop provisions of the Bill represent a reasonable and workable compromise between the two extreme positions; that they will profit industrial relations; and that they will provide an adequate and preferable alternative to the closed shop in the vast majority of cases.

The Government adhere very closely to the principle that a worker should be free to choose whether he will join a union and that unions should seek to persuade by the service they offer and the benefits they provide, and not to compel, workers to join them. But they recognise that in a small minority of cases the agency shop provisions cannot secure the same benefits which may be expected generally. Provision is therefore made in the Bill for the approval of certain post-entry closed-shop agreements in very limited circumstances—and I stress that point—where the very basis of union security and stability will be undermined if something more than the agency shop is not conceded.

This special exemption will apply only to sectors like, for example, seafaring and acting, where there are particular difficulties in organising the work force and maintaining the integrity of collective agreements distinguishing them from most other sectors. In such sectors jobs are typically of short duration and the attachment to particular employers is the exception rather than the rule. Workers are seldom together in the same company or establishment on two successive engagements.

The nucleus of permanent full-time workers is supplemented by a large 1331 transient work force. In those cases post-entry closed-shop agreements may be approved where all of a number of strictly defined criteria—and I repeat "strictly defined criteria" —are satisfied. It is the Government's view that in the vast majority of cases a high degree of union membership and union security must be achieved—and will be achieved, with the support of the many provisions of the Bill which are helpful to trade unions—on the basis of voluntary trade union membership. The agency shop provisions should often enable a union to achieve a stable 90 per cent. to 95 per cent. membership—and, indeed, more. The union with a high, but voluntary membership will be the stronger for not having compelled the last 5 per cent. to become forced recruits under threat of placing their livelihood in jeopardy.

Clearly, then, British Rail and the unions with which it negotiates will have to change their existing closed-shop agreement when the provisions of the Bill are enacted. I can give my hon. Friend that definite assurance. But at present the Board, which is responsible for managing the undertaking, is bound by the terms of the agreement which it entered into in 1969. Much as we regret the consequences of that for the continued employment of those of its employees who choose not to join one of the unions concerned, it remains the position before legislation reaches the Statute Book.

1332 In answer to my hon. Friend's last question, it would be wrong not to make it clear that the changes which the Bill will make to existing closed-shop agreements cannot be made retrospective. We cannot, no matter how desirable it may seem in the individual case, conduct our affairs so that acts quite lawfully carried out today are subsequently made unlawful by the laws we pass tomorrow. The closed-shop agreement which British Rail at present operates will have to be changed when the provisions of the Bill are enacted, but we cannot require the effect of those changes to be retroactive.

If British Rail wishes to reinstate those affected on a voluntary basis, that is a matter for British Rail. I am sure that the words of my hon. Friend will be read, marked, learned and digested by those responsible for the conduct of British Rail.

My hon. Friend has performed a valuable service in raising this very important and fundamental issue in such a moderate and constructive way, and I believe that the debate can do nothing but good, and that those who feel passionately on this issue can take a great deal of comfort from the provisions of the legislation which we hope and expect will reach the Statute Book later this summer or early in the autumn.