HC Deb 03 August 1971 vol 822 cc1455-66

Lords Amendment: No. 64, to leave out Clause 33 and insert the following new Clause— 33.—(1) This section applies to any joint body consisting of representatives of one or more organisations of workers and of representatives either of one or more employers or of one or more organisations of employers or of a combination of one or more employers and one or more organisation of employers, with or without other persons, and established by or under a collective agreement (whether made before or after the commencement of this Act) for either or both of the following purposes, that is to say—

  1. (a) regulating the terms and conditions of employment of workers of one or more descriptions;
  2. (b) determining, in relation to workers of one or more descriptions, any matters for which a procedure agreement can provide.
(2) The following presumptions shall apply to any proceedings of a joint body to which this section applies, where those proceedings take place after the commencement of this Act. (3) For the purposes of any such proceedings it shall be conclusively presumed that the parties (whether organisations of workers, employers or organisations of employers) for the time being represented on that joint body (in this section referred to as "the constituent parties ") intend to authorise it, in relation to matters falling within the scope of its functions, to make decisions having effect as legally enforceable contracts made on behalf of the constituent parties. (4) Any decision made by any such body in any such proceedings, in relation to matters falling within the scope of its functions, if the decision—
  1. (a) is duly recorded in writing by or on behalf of that body, and
  2. (b) as so recorded, does not contain a provision which (however expressed) states that the decision is intended not to be legally enforceable,
shall be conclusively presumed to be intended by that body to have effect as a legally enforceable contract made on behalf of the constituent parties.
(5) In this section "decision" includes any award or resolution, by whatever name called, and "functions", in relation to a decision of a joint body established by or under a collective agreement, means its functions under that agreement as it has effect at the time of that decision.

Mr. R. Carr

I beg to move, That this House doth agree with the Lords in the said Amendment.

The Amendment replaces the original Clause 33. The new Clause like the one it replaces, relates to joint voluntary negotiating bodies from national level down to works or plant committee level, and it applies to the written decisions of such bodies a presumption equivalent to that applied by Clause 32—which we have just been debating—to collective agreements reached by other ways of collective bargaining.

The basic purposes of redrafting the original Clause 33 in this new form are twofold—first, to take account of criticisms which were made of the original Clause; second, to put beyond doubt that, like Clause 32, the Clause has no retrospective effect.

Subsection (1) differs from the drafting in the old Clause in specifying more comprehensively the composition of bodies to which the Clause relates. The difference is small, but it is significant, because it recognises that for some of these bodies the parties represented may include individual firms and one or more employers' organisations. The functions of these bodies are as defined in subsections (1)(a) and (b), and these are unchanged compared with equivalent subsections in the original Clause 33.

The functions, as so defined, are that these bodies are there to regulate either the terms and conditions of employment of any workers, or any matters provided in the procedure agreement, or both, and that deals with the first subsection of the new Clause.

Subsection (2) is designed to bring out more clearly that the presumptions specified in the Clause apply only to proceedings which take place after the commencement of the Bill. Some hon. Members, at least, will remember that when we had our debate on Clause 33 at an earlier stage although we made it clear that it was our intention and, indeed, it was our belief that the original form carried no danger of retrospection, nevertheless some doubt was thrown on it, and the new Clause makes it clear beyond any doubt that it affects only proceedings which take place after the commencement of the Bill.

Subsection (3), taken with the definition of "functions" in subsection (5), is designed to remove the doubts which have been voiced about whether the conclusive presumption in the earlier version was too absolute and, more particularly—and this comes back in a second way to the point that I was making a moment ago—to make quite sure that there is no risk at all of its being interpreted by the courts as having any retrospective effect.

We do not think that there was such a risk, but to allay any uneasiness the Clause substitutes the wholy contemporaneous concept of matters falling within the scope of its functions

in place of the earlier and less certain phrase purposes for which it was established

We are sure that subsection (2), coupled with subsection (3), makes it absolutely certain that there can be nothing retrospective about the application of the Clause.

Subsection (4) is in substantially the same form as subsection 3 in the old Clause. It is true that the word "award" has been omitted but, as the definition subsection—subsection (5)—makes clear, a decision of the body includes "any award or resolution" where either may be the term appropriate to a particular body.

It might not be out of place for me to remind the House that by way of Lords Amendment No. 267, which was included in our previous debate, we are providing that any reference in the Bill to a collective agreement shall include a decision of a joint body to which this Clause applies.

That is the explanation of the new Clause, and the case for it. It is a clarification and a removing of doubts and fears which were there before. It is not an attempt to change the policy, any more than—as my hon. and learned Friend made clear—the previous Amendments were; our basic policy on these issues was deeply thought out and considered before we became committed to it. It has never been our intention to change it. We are making a genuine attempt to allay those fears which, however shaky their foundations may have seemed, the Government recognise were nevertheless genuinely disturbing to ordinary people and therefore ought to be removed, even though we do not believe that they were justified in the first place.

I realise that hon. Members opposite would like us to go much further, to the point of changing our basic policy. That is something that we are not prepared to do, and this Amendment does not attempt to do so. I commend it to the House in the terms that while reaffirming our previous policy it clears up some uncertainties about it and, in the context of that policy, removes doubts and fears that previously existed.

9.30 p.m.

Mr. Heffer

In introducing the new Clause, the right hon. Gentleman has rightly pointed out that it in no way changes the Government's basic policy and that it does not attempt to do so. The Government are deeply committed to the policy that is now embodied in the Bill. The right hon. Gentleman is correct in saying that, because if we examine the new Clause against the old one we see that although there have been some drafting changes the essence is precisely the same.

One significant change has been made, to which we ought to draw the attention of the House. The old Clause contained the phrase "procedure agreement". That phrase is repeated in subsection (2) but is replaced in the new Clause by "collective agreement".

This touches on our previous debates, because it is a recognition by the Government that a collective agreement and a procedure agreement cannot be divorced. In that sense, the new Clause widens the scope of the agreements that it will cover. It was previously confined to procedure agreements and it could be argued that the substantive collective agreement would not be covered. There could have been some argument on this, but it has now been eliminated.

The right hon. Gentleman was right to point out that this covers agreements from national to works committee level. We had some heated debates on the issue in Committee, but our arguments have not been accepted. The Government have only accepted the need to rewrite the Clause for clarification: our essential arguments were not accepted. As the right hon. Gentleman said, the principle is precisely the same.

We are as totally opposed as the right hon. Gentleman is totally committed to the legal enforcement of collective agreements and to the concept that, without disclaimers, agreements will be legally binding. This will create immense problems, despite the Secretary of State's suggestion that it will iron out problems, keep disputes to a minimum and get rid of what they term the wildcat strike.

The T.U.C. has already invited all its affiliated members not to conclude an agreement with an employer if it would be legally binding. So the first item discussed in any negotiation will inevitably be a disclaimer to ensure that the agreement is not legally enforceable; this is a point of conflict where none existed before.

In a very small minority of cases, legally enforceable agreements are in existence. These have been concluded where there has been agreement between employers and trade unionists that such agreements should exist, and that has been done without the existence of this legislation. However, the overwhelming majority of trade unions have never gone along with this concept of legally enforceable agreements, and they are not prepared to do so now. This is, therefore, a new point of conflict in industrial relations.

Consider the chaotic state of affairs that could arise. Will the minutes of a joint body containing a decision made at a meeting of that body and circulated to union members be regarded as legally enforceable—that is, unless a disclaimer is included in the minutes? The right hon. Gentleman will be aware that in industry there are at all levels any number of joint bodies such as works, welfare and safety committees. These all exist within the terms of a collective agreement. If such an agreement does not contain a disclaimer clause, will these organisations be covered by this proposal?

Lord Drumalbyn made it clear in another place that even if a disclaimer is inserted in the original agreement at works committee level, if somebody forgets to put in a new disclaimer when new agreements are made at that level, such agreements could become legally enforceable. This is absolutely chaotic and certainly will not assist industrial relations. More points of conflict will be created.

We are totally opposed to the whole idea of legally enforceable agreements and to this proposal, which basically changes nothing. I accept that it gets rid of some of the fears which we expressed but, as the right hon. Gentleman said, it represents a basic point of fundamental difference between the two sides of the House, as it does between the trade union movement and the Government.

New Clause 33, which is Lords Amendment No. 64, refers in subsection (4) to Any decision … as so recorded, does not contain a provision which (however expressed) states that the decision is intended not to be legally enforceable.

We discussed the expression "however expressed" earlier. This represents another possible point of conflict because of the legal argument that could ensue over the meaning of that phrase.

Subsection (5) provides that 'decision' includes any award or resolution, by whatever named called …".

There can be continual arguments about what is an award, what is a resolution, and about the type of award or resolution. Anybody who knows anything about industrial relations knows that these are points of argument in any case. When there is the possibility of an agreement's being legally enforceable, these points of conflict will exacerbate what is already a sufficiently difficult matter.

For all these reasons, we believe that the Government have not made out a case. We do not think that the Clause should be accepted. We are opposed in principle to the Clause and to the ideas expressed in it. We know that unfortunately the House will not support our view, because we do not have the majority, but we shall continue to argue against this type of legally enforceable agreement and against this presumption, because we believe that this is a very serious introduction of a point of conflict which has not existed up to now.

Mr. Bidwell

The essence of the Secretary of State's presentation of the Government's thinking in tabling a Clause of this kind has been that they are according people greater liberty and are not depriving workers of the right to leave their employers. However, the Government are attacking the right to collectivism. As soon as they step on the road of making things more difficult in that sense, they set about attacking the ordinary worker as an individual, because faced with the power and strengh of employers workpeople are forced to rely upon collectivism.

I object to the new Clause 33 because, even though it is now more clearly defined, I believe that it is more objectionably expressed. The Clause attacks the fundamental liberty of the ordinary workman, in that it attacks his right to take collective action, not merely against his employer, but against his trade union representative if necessary. What happened at Ford's not too long ago was an example of how workers will kick over the traces. At Ford's the union officials had concluded an agreement with the employers. In future, union representatives will have much less facility and freedom to make agreements.

Psychology will play a great part in it. Union representatives will not in future take the chances that they have been prepared to take hitherto. The Clause looks nice and tidy with all this wording about legal enforceability and obtaining as much as possible in writing. My experience has been in a national industry. In seeking to conclude local agreements the struggle with employers has always been to get them to commit themselves in writing. There will be a great reluctance in future on the part of workers' representatives to enter into written agreements, particularly at the level where the Government are virtually accusing union representatives of being always on the itch to call wildcat strikes or to lead their members out of the factory gate at the drop of a hat. I do not know how employers will react. It is an almost ludicrous situation when people have to keep reminding themselves to write in advance that an agreement shall not be legally enforceable, with all the consequent nonsense that that implies.

9.45 p.m.

I want to expose the whole fallacy of the Government's thinking in this matter. The Solicitor-General, who is the principal architect of the ideas in such provisions as Clause 33, is not with us at the moment. The hon. and learned Gentleman attempted to justify these Amendments—these so-called "tidying-up" Amendments—and he referred to the position in other countries. Other countries have legally enforceable laws of this kind, and the assumption is that Britain is somehow lagging behind because we do not have such legally enforceable contracts. I submit that there is no comparison. In Germany and Japan the strike record is not so great as it is in this country—I think they are the two exceptions—but in many other countries where such laws obtain, such as Australia where the conflicts are sometimes bloody and bitter, we take no lessons in relation to Clauses such as Clause 33—this applies particularly to the United States of America—because it is in those countries where the iron-bound characteristics of contract law are drawn up by a handful of people representing many workers, on the one side, and representatives of employers, on the other.

I know that the Secretary of State and the Solicitor-General have exercised a little so-called trade union compassion in their approach to this matter, but in this country that approach cannot be interposed in such a massive way. It is the maturity of our situation which makes this unworkable. The Secretary of State—not the Solicitor-General, who is a legalistic theoretician—is a man of some experience and he holds a difficult and responsible job as Minister responsible for employment. He has to get the two sides together and get the wheels of production rolling. I am not sermonising to him, but I suggest that he is nearly choking himself to death with all this rigmarole. He cannot do it in Britain. He cannot enforce provisions such as Clause 33. He can introduce changes, but I do not think he will get the fundamental changes that he wants. Only a Labour Government will do that because this situation is geared up with property relationships and the slave-master relationship which is the psychological attitude of British workers when they face employers. The employers have always had the edge on the workers.

Many employers will have a sufficiently progressive mentality and prefer to have a co-operative work force, so they will accept a preamble to any agreement providing that it shall not be legally enforceable. They know that they will have to live with their workers. They value their skill, and they want to retain it. Other more clumsy employers will not be so co-operative and they will run into headlong collision.

For those reasons, I very much resent the Amendment, and I am sure that all my right hon. and hon. Friends will wish to divide against it.

Mr. Ted Fletcher (Darlington)

The new Clause 33 is virtually the same as the old one, with the exception of the dropping of retrospection, and it is just as obnoxious. It will have no great effect upon trade union negotiations, because there is an option for a union to decide that an agreement shall not be legally enforceable.

The Trades Union Congress has advised its affiliated unions not to enter into legally enforceable agreements, and it is almost certain that the unions will follow that advice, for two reasons. In the first place, they cannot see an end to the rise in the cost of living. The cost of food has gone up by 10 per cent. in the last twelve months of Tory Government, and no trade union leader knows how it will go in the next twelve months. A union official would be foolish to set his signature to an agreement which could not be revised from time to time and which would be legally enforceable for twelve months or two years without knowing what the economic situation would be towards the expiry of such an agreement. Inevitably, therefore, trade unionists will be reluctant to enter into legally enforceable agreements.

We are told that the object of the Bill is to improve relationships between work people and their employers. This Clause may well make the situation worse and make it more difficult for trade unionists to reach agreement with their employers. Let us suppose that an industrial dispute which led to a stoppage of work has reached the point of settlement and it is possible for the union and the employer to agree upon an increase. Work is resumed. The negotiations may well be protracted because the employer will insist on the terms of the agreement being legally enforceable. The strike may have lasted several weeks, and the negotiations several days, but they may yet break down because of the employer's insistance on legal enforceability. The trade unions are for that reason, too, rightly suspicious of this Clause.

The Government have had no second thoughts. They have made no change of principle by introducing the new Clause, save on the question of retrospection. It is the same obnoxious Clause in a different guise. We shall divide against it. We disagree violently with the principle, and the Government have conceded anything in their new form of words.

Mr. David Stoddart (Swindon)

When I return to the power station where I used to work and talk to the chaps on the shopfloor about the Bill, one of the things I tell them about is legal enforceability. When they first heard about it, they regarded it with amusement, but afterwards they regarded it with disbelief, and then with anger. From then on, they called the Secretary of State names that I cannot repeat without using unparliamentary language. [HON. MEMBERS: "Go on."] I am being tempted, Mr. Speaker, but I do not want to risk your wrath, because I know that you would call me to order.

The people on the shop floor see exactly what legal enforceability means to them. They have been working in works committees and joint consultative bodies for a long time. Their shop stewards have been making collective agreements with the employers orally and in writing, and over a period of time there has grown up between the two sides, a mutual understanding. As a result, good industrial relations have been built up. That has happened without any legal enforceability. The people who have made the agreements know perfectly well that those on the other side can be trusted to keep their word, and that if there is a misinterpretation it will be put right comparatively easily.

If agreements, which are often on both large or small issues locally, are to be made legally enforceable, the trust which has been built up is likely to be diminished, because there is always a suspicion of employers, and it is growing at present.

Mr. R. Carr

Where both sides have developed the trust of which the hon. Gentleman is speaking, where agreements on both sides are kept, I am sure that both sides will quickly and easily agree to have a waiver clause. There is no merit in legal enforceability in itself; the merit is in making good, precise agreements and then keeping them.

Mr. Stoddart

I was coming to that. In such places the Bill is unnecessary. I am saying that the very act of putting in legal enforceability is likely to undermine the position which has been established and to create new tensions at a time when they are already being created. For example, in works committees it will not be sufficient for a waiver clause to be put at the head of each set of minutes. If my understanding is correct, it will have to be put at the end of each resolution, and it will be necessary to have a member of the committee watching to see that on each resolution someone moves that it is not legally enforceable.

Some people believe that one side of a negotiating body can insert the waiver clause. As I read the Bill, it has to be the joint body itself—in other words, a majority of both sides voting for the waiver clause. Immediately, therefore, there is conflict and an obstacle to negotiation——

It being Ten o'clock, the debate stood adjourned.