Lords Amendment: No. 65, in page 26, line 46, leave out from "action" to "that" in line 1 on page 27 and insert:
contrary to an undertaking given by that party and contained in the collective agreement or in".
§ The Solicitor-General
I beg to move, That this House doth agree with the Lords in the said Amendment.
§ Mr. Speaker
It will be for the convenience of the House to discuss also Lords Amendment: No. 67, in page 27, line 15, at end insert:() For the purposes of subsection (2) of this section action taken by a person other than the party who gave the undertaking in question (in this subsection referred to as "the contracting party") shall be regarded as action taken contrary to the undertaking if either—
- (a) it is action which, if taken by the contracting party, would have been a breach of the undertaking by the contracting party, or
- (b) it consists in doing that which, in accordance with the undertaking, was not to be done, or in not doing that which, in accordance with the undertaking, was to be done."
§ The Solicitor-General
These two Amendments to Clause 34 are drafting Amendments, although plainly important ones. They do not change the purpose of Clause 34. They serve to remove doubts that have been expressed about whether the drafting fulfils the purpose.
1494 The House will remember that this Clause applies to collective agreements, and in particular Clause 34(2) applies to enforceable agreements made after the commencement of the Act. So that it deals only with legally binding obligations consciously entered into by the parties after the Act comes into force. The obligation contained in this Clause is that the parties to such a collective agreement should use their best endeavours to uphold that agreement by preventing action inconsistent with any undertaking contained in the agreement: In other words, to prevent or bring to an end action being taken by agents or members of the party which would, if taken by the party itself, amount to a breach of the agreement. That was and is the Government's intention in this Clause.
The intention is that the parties should use their best endeavours to uphold an agreement; an aim to which all try to aspire. The effect of these Amendments is only to make more clear the Government's objective.
The important point to appreciate is that the effect of the Amendments is to impose on the party to a collective agreement the obligation to use the best endeavours to prevent any action that would be a breach of an undertaking given by the party to the agreement; to prevent anything being done—or being left undone—that is contrary to the undertaking given by the contracting party.
1495 Some people have said it would be possible, and admissible in this context, to attach to a trade union or organisation of workers, or anybody else, an overriding responsibility from which it could not escape for the mass action of its members, whatever the terms of the contract it had entered into. That is not the intention or effect of this Clause and these Amendments.
Let me illustrate the situation that could arise. If a collective agreement entered into with the intention that it should be binding after the commencement of the Act says that the party to the agreement shall not strike or lockout before going through procedure, then with an agreement of that kind if a strike or lock-out occurs, the party should be required to use its best endeavours to prevent or bring to an end an action on the part of its members or agents—in other words, to bring to an end that strike which was taking place in breach of the current terms of the agreement to that effect.
If, on the other hand, the agreement said that the party would not call a strike or order a lock-out without the matter going through procedure, then the best endeavours obligation would be available to prevent any agent or member of the party calling a strike on behalf of its members before the agreed procedure was exhausted. But the best endeavours obligation will be limited to doing all that is reasonably practicable to prevent or bring to an end action, by or on behalf of the party, that is contrary to the undertaking given by the party set out in the agreement which was intended to be legally enforceable. It does not go beyond that.
It does not attempt to reach the solutions suggested by some people or introduce the implications that arise in some other contexts, namely, that the organisation shall be automatically responsible, whatever it does or does not do, for the mass action of its members. All it does is to write in what the Government have always made plain is their intention. An obligation should rest on the party to an enforceable collective agreement to take all steps reasonably practicable to uphold and secure the performance of the agreement or undertaking that it has entered into or given. It is on that basis I 1496 commend these two Amendments to the House.
§ 11.30 p.m.
§ Mr. John Prescott (Kingston upon Hull, East)
I make it clear to begin with that it is with dislike and protest that I make these comments so briefly. Hon. Members opposite have accused us of making Second Reading speeches on this Clause, but there is here a substantial point which the House has not had the opportunity to consider adequately, and it includes issues concerning international trade unionism. Because of our desire to get on to more fundamental Amendments, I shall attempt to be brief, but I put it on record that many of us are having to curtail important points about various Clauses and Amendments.
Again the hon. and learned Gentleman has given the impression that the Government are making a concession, that they are making the provision clear or tightening it up or giving a bit more protection to trade unionism. But the Government do not truly appreciate the full consequences of the Clause as it must be interpreted in the light of the practicalities of active trade unionism both in this country and abroad.
§ Clause 36 places an obligation on the union which is a party to an agreement which it has been agreed shall be legally binding to attempt to see that it and its members observe it. The difficulties of the Amendments arise from the attempt to get appropriate drafting to meet a number of complex problems arising from that objective. Reading the debates in another place, one is considerably confused, particularly by the contradictory statements on the issue by the noble and learned Lord, the Lord Chancellor. If such an eminent legal authority makes mistakes of interpretation of the Clause, one hesitates oneself to attempt to interpret it.
§ The Clause seeks to put the responsibility on the parties to an agreement to see that it is observed. It puts the responsibility on to the union to see that it takes all reasonable steps practically possible to ensure that the agreement is observed. If it does not take all reasonable steps to do so, that will be an unfair industrial practice. What is so onerous to us is that the union is being cast in the rôle of policeman. I have served on disciplinary committees and there has 1497 always seemed to me a conflict in such circumstances in that a democratic organisation, whose members electing its officials and pay contributions so that they can look after their interests, exercises disciplinary functions over the members. But the question of disciplinary procedures may be a controversial point for debate later.
If the Amendment is accepted, subsection 2(a) will read:
of preventing persons acting or purporting to act on behalf of that party from taking any action contrary to an undertaking given by that party and contained in the collective agreement or in that part of the agreement, as the case may be;
§ Clearly an attempt is being made to make it clear that whoever is party to that agreement will be responsible for the conditions laid down in it and for seeing that they are observed. That is the intention of the Amendment.
§ I should like to raise one point with the Solicitor-General. I make no apology for the fact that it is based on my seafaring experience. A seamen signs articles on a ship. That constitutes a contract of employment for him individually with the captain of the vessel. He will also hold a collective agreement with the company involved and he may hold a collective agreement with the industry through the Shipping Federation. A conflict may arise concerning the terms of his collective agreement and a notice of finishing in a period of three months may have to be given. The articles solely require him at his place of work to give 48 hours' notice. Which agreement will have to be applied when we talk about whether it is an unfair industrial practice to breach a collective agreement? I hope that the Solicitor-General does not say, as he said about the ballot, that we cannot continue to exempt seamen and that there are some people for whom it is difficult to compose a law.
§ When we started these debates I said that other enactments had exempted seamen. If that logic was correct, then the hon. and learned Gentleman should have considered it must be so in this situation. But he has chosen to make the Bill fit the circumstances of the seamen, which is totally unjustifiable.
§ The second Amendment raises the whole issue of international trade 1498 unionism, which has not been discussed due to the imposition of the guillotine. Subsection (3) is concerned with making it clear that in certain circumstances actions by persons other than those who gave the undertaking—in this case, the trade union which may be party to the signing of the collective agreement—can be treated as committing an unfair industrial practice if they breach the agreement. Therefore, there is concern to give a remedy to deal with those who originally were parties to the collective agreement.
§ This is a substantial point. It concerns the whole rôle of international trade unionism. There are many international trade union bodies. One which will be readily known to the House is the International Confederation of Free Trade Unions which embraces metal, chemical and transport workers. It is important to understand this obligation within the concept of international trade unionism.
§ The International Transport Federation has been in being since 1896. I think that the hon. Member for Derbyshire, South-East (Mr. Rost) is one of the auditors of that organisation. It has over 6 million members with unions in 80 countries representing 320 organisations in aviation, rail, transport and shipping.
§ My section, shipping, resolved—this is important to the concept of international trade unionism—not to allow or to tolerate competition between maritime countries to be fought out on the backs of the seafarers. We sought to establish minimum standards internationally. It is important for trade unions in this sphere, because we face competition internationally. Companies can get foreign labour, which is cheaper, and that, therefore, puts us at a serious disadvantage. This applies not only to seamen, but to aviation and transport workers. However, it is more pertinent to seafarers who sail around the world. International trade unionism seeks minimum standards for all seamen. In many cases—for example, on Greek and Liberian ships—the captains pay very low wages and provide very little food. We have many examples of ships coming to this country, the crews of which have not been paid for months, have not been fed properly for a long period, and have no power to force their captains to pay their wages.
§ The international trade union movement attempts, in those circumstances to 1499 use its influence and bring pressure to bear on those concerned. In the case that we are considering here, it is in Britain that this happens. If one of these vessels comes to one of our ports we, as a union, go on board to see the conditions. Sailors from Liberia and Greece can expect no help from their courts to force the company or the captain to pay their wages. To get that done we have to call on affiliated unions for help. To take this in the context of shipping, it means that we go to the dockers and say, "Will you support us? Do not service this ship. Pull off the dockers". We use that as a sanction against the owner to get him to pay the men their wages.
§ Clauses 91, 92 and 93 deal with extraneous parties, but, due to the guillotine procedure, we shall not be able to debate them, and I must therefore raise the issue in the context of this Amendment. If a trade union such as the International Transport Federation were to call on another union to take the kind of action to which I have referred, what would happen? Let us suppose that there is a legally binding collective agreement, and the union wants to call on the dockers to withdraw their support. It will find itself in the position of saying that this cannot be done because to do it would breach a collective agreement and would mean committinig an unfair industrial practice.
§ In those circumstances, because of the feeling among trade unionists, some people in the labour force will say, "This is our international trade union obligation. We intend to observe it, and we will refuse to service this ship". The union will be placed in a dilemma. It is supposed to be able to take all reasonable practicable steps to see that its members observe the collective agreement, but at the same time it will know that it is denying its obligation to the rest of the international trade union movement, which is to assist other trade unionists who find themselves in difficult circumstances.
§ The Clause will make it difficult, in fact almost impossible, for any help to be given to those who desperately need it. An essential principle of trade unionism is to help people who find themselves in that kind of situation, and I ask the 1500 Solicitor-General to reply to the points that I have raised.
§ Mr. John Fraser
I should like to take up what the Secretary of State said with some fervour towards the end of this speech. He said that the Government might fail, but that they would fail a little less than the Opposition had failed when they were in power. I think that the right hon. Gentleman is going to fail even more, because the point that is dealt with in the Amendment was considered by Donovan, and in paragraph 1054 on page 268 the Commission came to the conclusion thatA measure which had the effect of putting on unions a legal obligation to use their best endeavours to secure the observance of procedure agreements would be more likely to lead to internal union disruption than to fewer unofficial strikes.The likelihood is that this kind of provision will either increase the number of disputes, or decrease the number of agreements being entered into. That is what we are faced with, and the Secretary of State says that this kind of Clause has the support of working men. I have been out canvassing a great deal, and in response to inquiries on doorsteps I have not heard any working men talking about Clauses 32, 33 or 34.
The Secretary of State's allegation reminded me of the story of Serjeant Sullivan when he appeared before the Judicial Committee of the House of Lords. When asked by one of the Law Lords whether his client had ever heard of the maxim volenti non fit injuria, he replied, "In the little village in Ireland where my client comes from they talk of little else".
§ 11.45 p.m.
§ Mr. Ronald King Murray
My hon. Friend is right in referring to Serjeant Sullivan, but I understand that the maxim he quoted was not the one that my hon. Friend has given us, but "Sic utere tuo ut alienum non laedas" which, freely translated, is, "Mind your own business, and do not harm your neighbour". I suspect that it was the free translation which was the topic of conversation in the village referred to.
§ Mr. Fraser
I am grateful to my hon. Friend for that correction. It may be that in the little village of Lambeth, from which I come, they talk of nothing else but Schedule 6.
§ Mr. David Mitchell (Basingstoke)
My reason for seeking to interject was the hon. Member's suggestion that the Secretary of State had no backing for his contention that binding agreements had widespread support among trade unionists. I would have thought that the fact that the Daily Mirror—hardly a Conservative newspaper—carried out the largest poll ever conducted of trade unionists and found that over 70 per cent. favoured binding agreements would have been something that he ought not to have overlooked.
§ Mr. Fraser
I prefer to believe the evidence of Donovan and its considered opinion on this point, which I have quoted, to the opinion given in a public opinion poll. I do not know whether the hon. Member will tell the House at some stage that if the majority of the people of this country, in a public opinion poll, are against going into the Common Market, we should not do so. Will he suggest that? Otherwise it is no good praying in aid a public opinion poll on this issue.
The Solicitor-General dealt with the kind of undertaking that might appear in an agreement—an undertaking not to strike. I believe that this provision is unfair because, first, not only does it apply to trade unions but it means that a trade union commits an unfair industrial practice if it does not prevent people from purporting to act on behalf of it in breach of an undertaking. In other words, the trade union is fixed with an obligation to take proceedings against people acting entirely outside the scope of its authority. It seems unfair, in that it provides that the union should take action against its own members, and that is likely to lead to appalling union dissensions, as Donovan said.
Let us examine the position of a trade union if it is to be faced with a possible action for damages for failing to prevent other people from breaching the agreement. It will lead to less effective and not more effective agreements. That is the point that the Government seem to have missed all the way through. Donovan points out that trade unions infrequently breach undertakings contained in 1502 agreements, but they are often breached by other people.
The fact is that this obligation upon a trade union will diminish the chances of reaching agreement and not increase them. It is like asking the bride at a wedding, "Do you promise to love, honour and obey?" and when the bride says "Yes", the vicar says, "That means that you have to undertake to prevent your mother-in-law from interfering, as well." That is the conclusion.
§ Mr. Fraser
The result will be to diminish the effectiveness of agreements and not to increase it. We shall not vote against this, because if we were to defeat the Amendment we would simply have something even worse. That is our dilemma, but we disagree fundamentally with this approach and with the philosophy of the Clause.
§ The Solicitor-General
If I may reply, with leave of the House—but not to deal with the general arguments of the hon. Member for Norwood (Mr. John Fraser), with the literate support of his hon. and learned Friend the Member for Edinburgh, Leith (Mr. Ronald King Murray). On that front, I would feel obliged to start my observations in Latin, but I do not feel up to that at this time of night.
The hon. Member for Kingston-upon-Hull, East (Mr. Prescott) asked two questions which he is entitled to have answered. The first was about the impact of this obligation where an individual seaman is bound by articles with a 48 hour notice provision, but is also employed in a situation to which a collective agreement with a long notice provision applies.
In this context the obligation is only placed upon the party to the collective agreement—the union or organisation—in respect of action which would be a breach of the collective agreement. So it is that agreement and only that agreement which affects the obligations of the union. It cannot be expected to enforce or uphold varying or shorter or inconsistent obligations applying in individual contracts of employment which are nothing to do with the collective agreement.
As for his question about international trade unionism, again the agreement with which he was concerned, I understand, 1503 was the agreement made by the shore-based union in respect of dock workers who are required by their international obligations, as he puts it, to refuse to unload the ship. If the union concerned had entered into a legally enforceable agreement, including a no-strike clause, it would in doing so, presumably, have chosen to disregard its obligations, however they may be defined, in the international trade union movement. But one might then wonder about its wisdom in making an agreement inconsistent with the international brotherhood of which the hon. Member spoke when it would be subject to the obligation to comply with the legally enforceable agreement into which it had entered. It would be binding on it to the extent that it had agreed to make it binding and only to that extent.
§ Mrs. Castle
But could not the Government's Bill mean that it could have a no-strike clause imposed upon it under a procedure agreement?
§ The Solicitor-General
That is entirely right, but the union would be free, would it not, to make the collective agreement into which it had entered consistent with its international obligations? It could also, possibly, be subject to an agreement containing a clause of this kind under Clause 39 if previously the situation had been one of persistent and chronic strike action, which called for the inclusion of such a clause in such an agreement.
The reaction of the hon. Member for Norwood, I understood, was friendly and receptive——
§ The Solicitor-General
—because he said it replaced something which he regarded with less enthusiasm than the Amendment itself. It is on that basis that I commend the Amendment to the House.
§ Question put and agreed to.
§ Subsequent Lords Amendments agreed to.