PRE-ENTRY CLOSED SHOP AGREEMENTS TO BE VOID (Hansard, 28 January 1971)

§ The Solicitor-General
I beg to move, Amendment No. 370, in page 5, line 35, leave out 'as employees persons' and insert 'workers'.

§ The Temporary Chairman (Mr. J. C. Jennings)
It might be for the convenience of the Committee to take Government Amendments Nos. 371 and 372 at the same time. Then, when the Question is put at the end of the debate, it would also save time if I were allowed to put the three Amendments together.

§ The Solicitor-General
I believe that it would be for the convenience of the Committee to take these Amendments together since they all achieve exactly the same effect as the three Amendments which the Committee has already accepted to Clause 5. The effect is to substitute "workers" for "employees" in three places in Clause 7 so as to make the provisions of Clause 7 march in line with those of Clause 5. Since the Committee has already accepted the Amendments in relation to Clause 5, I have no doubt that it will agree to do so in respect of Clause 7, too.

§ Mr. Heffer
I do not apologise to the House for being brief on this Clause, but we feel that it is important to make clear that the Opposition are totally opposed to it since it makes void the pre-entry closed shop. We are here talking about some 750,000 workers who are affected, as was made clear in the Donovan Report; and I should make it clear that I am talking about the pre-entry closed shop and not about the closed shop as such. Although out of some eleven million trade unionists only 750,000 are affected, the Government have decided, for reasons which become clear as we go on, to make void this principle.
Yesterday the right hon. Gentleman developed the point about industrial democracy. Closed shops, including pre-entry closed shops, were arrived at precisely because of the exercise of industrial democracy by workers in industry. I should like to tell the right hon. Gentleman how a closed shop comes into existence. I have had personal experience. Workers in a furniture factory at which I was employed discovered that they had an overwhelming majority—99.9 per cent.—belonging to their appropriate trade union. On that basis they felt that they could not in future continue to work alongside non-unionists, not because they had any conscience clauses but because these other people were not concerned with their consciences. In the circumstances they felt that they ought to ask for and negotiate a closed shop with the management. They did. It came about through the exercise of genuine industrial democracy, because the majority felt that they ought to ask the management to agree to the closed shop principle. 931 This was accepted by the management, because it also involved the acceptance of professional qualifications, if one can call the trade of carpenter and joiner a profession. The management realised that by having a member of the Amalgamated Society of Woodworkers—a man could not be a member of that union unless he had the necessary qualifications laid down in the rules—it was getting a fully qualified worker.
It is no different from the lawyers who decide to have a closed shop on the basis of qualifications. If the right hon. Gentleman or one of his hon. Friends can say, as was said earlier, that he recognises that for lawyers and doctors there would have to be some definite exemption, that can equally be said for other workers in that kind of situation. One of my hon. Friends, who I hope will be called to speak, because he has great understanding and knowledge of the mining industry, will be able to tell us about the miners.
I make it absolutely clear that we are opposed to the Clause for the reasons I have expressed. But I want to make one or two further points. Some unions—this point has been made time and again —will, or could, go out of existence if the closed shop principle is not accepted. Equity, the National Union of Seamen, and many other unions are in that situation.
The right hon. Gentleman has promised to look at the situation. If the right hon. Gentleman is prepared to look at the situation, in the meantime he ought to be prepared to take back the Clause completely and perhaps we could, at least on this issue if on no other, reach some kind of understanding. Indeed, the right hon. Gentleman could enter into proper consultations and negotiations with the Trades Union Congress. It would be a change from the kind of situation we have had so far.
My last point concerns the second part of the Clause which, again, deals with unfair industrial practices. Throughout the Bill, not just the previous Clause, we come up against the whole question of unfair industrial practices. The fact is that anybody organising, procuring or financing a strike, or even threatening a strike, can be carrying out an unfair industrial practice, and in this case it would be in relation to the pre-entry closed shop.
932 But it goes further. It means that anyone who creates a go-slow, or an overtime ban, or takes any other action short of a strike, is carrying out an unfair industrial practice. Does it mean that if all the lads decide to sit down in the middle of the shop floor for one hour to express their view about this matter they are carrying out an unfair industrial practice?
The right hon. Gentleman said earlier that it was the organisers who would be involved. How does one organise anything? Who are the organisers at a meeting of workers? They are all organising. Or is it to be the shop steward, or the one person who happens to suggest that there should be a form of action? I do not want to develop this, because it was dealt with in the previous debate, but here is another good example of the difficulties and the problems that will arise, and it shows clearly the basic underlying attitude of the Government to the trade unions, to shop stewards and to workers.
Why are the Government bringing in this provision against the pre-entry closed shop? They argue that the liberty of the individual is at stake. Everybody knows that in this country and elsewhere the liberty of the individual is very limited, indeed. Even in the most democratic country it is ridiculous to talk about the liberty of the individual in that sense. What is involved here is not the liberty of the individual. What we are concerned with here is a direct attempt to weaken the trade union movement. It is that which lies behind the whole philosophical attitude—and it is a philosophical attitude—of the Government, because if this provision were intended to represent a practical attitude to industrial relations it would not be in the Bill, because it simply would not be worth it. This provision has been brought in to deal with three-quarters of a million workers, and the only reason for its inclusion in the Bill is that the right hon. Gentleman and his hon. Friends wish, in one way or another, to weaken, and in some cases to destroy, the trade union movement.

§ Mr. R. Carr
The charge made by the hon. Member for Liverpool, Walton (Mr. Heffer) is utter nonsense. It is completely untrue, and nobody knows it in 933 his heart better than the hon. Gentleman does himself.
The pre-entry closed shop, which is what we are talking about, is not, as a matter of fact, all that widely practised throughout industry.

§ Mrs. Barbara Castle (Blackburn)
My hon. Friend said that it affected three-quarters of a million workers.

§ Mr. Carr
Yes, out of 20 million. I said that it was not all that widely practised. It is certainly not all that unanimously supported by trade union leaders throughout the union movement.
There is a much closer balance of argument about a post-entry closed shop. We had that yesterday, and I admitted that it was not black and white, that there were arguments on both sides, and that it was a delicate balance to strike. I think the Committee found that.

§ Mr. Carr
No. I want to get on.
The pre-entry closed shop is something quite different. It can be, and we all know from our experience on occasion has been, used unduly to preclude candidates for particular sorts of employment. I do not want to aggravate the proceedings this evening by mentioning any particular industries, but if hon. Members are honest with themselves they will admit that there are some industries in which the pre-entry closed shop operates, where access to that profession or trade is limited, sometimes even on family grounds, and this cannot be right. The pre-entry closed shop is, in effect, a form of unilateral control by a union over the rights of individuals to seek employment for which they are qualified. I do not believe that it is necessary, or even begins to be necessary, to protect the rights of the majority.
The argument about post-entry closed shops is much more difficult and much more finely balanced. The arguments in favour of the pre-entry closed shop are virtually zero in terms, in 1970, of there being at all necessary to protect the rights of the majority, the security of the trade union or any other reasonable industrial objective. If there is one part in the Bill——

§ Mr. Carr
I am afraid that 1 cannot give way. We have to move on. The hon. Gentleman can make his speech in a moment. If there is one part in the Bill——

§ Mr. Loughlin
I wanted to help.

§ The Temporary Chairman (Mr. J. C. Jennings)
Order. Hon. Members should let the debate go on without interruption. The hon. Member will get his chance if he rises later.

§ Mr. Carr
—which we believe is absolutely—

§ Mr. Loughlin
I wanted to expedite business.

§ The Temporary Chairman
Order. I said that the hon. Gentleman will get his chance if he rises at the appropriate time. There is no need to waste time like this.

§ Mr. Loughlin
I am very sorry, Mr. Jennings. I merely said that I wanted to help expedite business.

§ The Temporary Chairman
I am very glad of that. I am grateful.

§ Mr. Carr
As I said the other night, one cannot get it right. If one gives way and lengthens one's speech, one is attacked for wasting time; if one does not give way, one suffers interruptions like that.
We are certain that the pre-entry closed shop is not necessary for union security or any other reasonable purpose. We believe that it is unnecessarily illiberal, in that it can keep from employment people with a perfect right to it.
As to the question of qualifications of entry, there is nothing in the Bill to prevent the unions making an agreement with employers about conditions of entry based on skill or qualifications, provided that union membership is not a restriction on the original entry to employment. We believe that that is a perfectly proper provision, and I ask the Committee to approve the Clause.

§ Mr. E. Fernyhough (Jarrow)
I listened carefully to what the Secretary of State said——

§ Mr. Loughlin
Absolute rubbish.

§ Mr. Fernyhough
—and I should like him to clear my mind about what will happen with regard to the Co-operative movement. In this movement, which is owned by the rank-and-file members, the members may decide at a quarterly meeting that it is desirable that every man who works for the society should be a member of a union. Eventually a resolution is minuted to this effect, that the movement itself—we should remember that the bosses are the consumers, the ordinary members of the movement—has decided that every employee should be a member of the movement. Not the union, but the people who own the establishment, the ten million rank-and-file consumers, decide this.
This is pre-entry, because many of the people who come have never been in a union. When they seek that employment the society says that there are two rules with which they must comply. The first is that every employee must belong to the superannuation scheme. Perhaps hon. Gentlemen opposite consider it an infringement of personal liberty to compel a man who wants to stand on his own feet to join a superannuation scheme. The Co-operative movement also tells an applicant—remember that it is the employers saying this on behalf of the shareholders; they are all shareholders —that he or she must join a trade union.
9.30 p.m.
The distributive trade is one of the worst-paid sections of British industry and commerce. Gradually, because of the effort of the Co-operative movement and, for example, U.S.D.A.W., better conditions and pay have been secured, and we want to be sure that this improvement, which has been going on for half a century or more, will be allowed to continue by the Co-operative movement being permitted to maintain the principle of obliging its employees to belong to a union and to join the superannuation scheme.
Is there anything wrong in an applicant for a job being told, "Our shareholders, ordinary men and women, think that every man and woman should belong to a trade union and subscribe to a superannuation scheme"? Why should not an applicant observe those conditions? Because of the efforts of the Co-operative movement, some sections of private employment are following suit, though it is in 936 the distributive trade that abominable wages are still being paid by many employers.
My simple question is whether the Cooperative movement will have freedom to observe the principles which I have outlined, remembering that it has observed them without strikes for half a century for its 400,000 employees.

§ Mr. R. Carr
The quick answer to the hon. Gentleman's question is that the Co-operative movement or any other employer will be able to make an agency shop where union membership is a condition of employment or, failing that, there will be the payment of an agency fee or, failing that, if there is a conscientious objection, there will be a payment to charity. However, it would not be able to insist on a particular employee being a member of a particular union when applying for a job.

§ Mr. Fernyhough
I made it clear that the movement does not say that he must be a memeber of a union when he applies for a job. The applicant is told that he may have a job if he obeys the conditions which I mentioned. Will the movement be allowed to apply those two conditions once the Bill becomes law?

§ Mr. Carr
We discussed this yesterday. [HON. MEMBERS: "Answer."] A post-entry closed shop in the old-fashioned sense will not be in order, but an agency shop will be, and in that case it will be a condition of employment to belong to a union or to pay an agency fee to the union. In other words, free riders will be abolished.

§ The Temporary Chairman
Mr. Loughlin. I am keeping my promise to the hon. Gentleman.

§ Mr. Loughlin
I appreciate the explanation given by the Secretary of State. I and my hon. Friend the Member for Jarrow (Mr. Fernyhough) are associated with the Union of Shop, Distributive and Allied Workers.
We have a situation in which a cooperative society is democratically controlled. Its shareholders instruct the board of management, by rule or by minutes, that the employees of the society, in addition to being members of the superannuation scheme, shall be members of the trade union. That is all right. But 937 one can have the situation where a very small minority of workers in a cooperative society, who may be at some time disguntled over an issue, can frustrate a large number of the employees, plus the intention of all shareholders of the society, by saying that they do not want an agency shop.
I appreciate the points of view expressed by the Secretary of State in his reply to my hon. Friend the Member for Jarrow. But I ask the right hon. Gentleman to consider that one could have in certain circumstances a disgruntled minority which could frustrate not only the trade union members or employees of the society but all the shareholders. The right hon. Gentleman will recognise that a co-operative society's shareholders may number thousands. Surely it is not the Government's intention to frustrate the majority of those people. The right hon. Gentleman has talked about——

§ The Temporary Chairman (Mr. Jennings)
Order. There are so many sub-committee meetings taking place on the two Front Benches that I cannot hear the hon. Member for Gloucestershire, West (Mr. Loughlin).

§ Mr. Loughlin
I never bother about the sub-committee meetings, Mr. Jennings, because you and I have had to put up with them for a long time. In the context of this legislation, I ask the Secretary of State to consider whether it is his intention to frustrate the majority when he speaks about safeguarding the minority.

§ Mr. R. Carr
Of course it is not. In the Bill we are not talking about the interests of shareholders, whether they be co-operative shareholders or shareholders in a limited liability company. We are talking about the position of employees. As for employees, the wishes of the majority could not be frustrated. As long as the majority want an agency shop they could have one.

§ Mr. Emlyn Hooson (Montgomery)
I agree with the right hon. Gentleman in general, because the purpose of the Bill is to maintain a balance, and a balance cannot be as general as that; but there may be certain occupations where the rights of the individual have to be balanced against those of the majority and the balance may not, in each occupation, work out exactly the same.
938 A formidable case has been made on behalf of Equity. The hon. Member for Kingston-upon-Hull, East (Mr. Prescott) made a formidable case for the seamen yesterday. The Secretary of State will be looking into those matters. Clause 7 contains a general provision. Would it not be much wiser to have some provision in Clause 7 which allows certain agreements to be exempted at some time in the future? It may be that the agreements to be exempted will not come before the House at the present time. It may be that the Minister will not be able to consider them. It may be that, in two or three years, certain agreements are made which should be exempted by Resolution of the House. As a matter of equity, should not there be a provision in the Bill which allows the Minister in future, by a Resolution of the House, to consider unusual occupations where a pre-entry closed shop may be necessary?

§ Mr. Laurie Pavitt (Willesden, West)
The Clause refers distinctly to …any trade union or other organisation of workers". As the Secretary of State knows, no hospital will employ a doctor who is not a member of the Medical Defence Union, which is an organisation formed to protect doctors.
Does the Clause mean that a hospital which refuses to employ a doctor who is not a member of that body will be in breach of this legislation?

§ The Solicitor-General
Perhaps I might answer that point straight away. The Medical Defence Union and the Medical Protection Society are not organisations for the regulation of relations between employees and employers. They are organisations designed to provide insurance in respect of profession negligence and, therefore, would not qualify as organisations of workers within the Bill. They are a different kind of animal from a trade union, an organisation of workers or a professional society. They have a limited purpose and do not undertake the regulation of relations between employees and employers.

§ Mr. Robert Edwards (Bilston)
The issues raised by my hon. Friends the Members for Gloucestershire, West (Mr. Loughlin) and Jarrow (Mr. Fernyhough) 939 have made nonsense of the Clause. They have dealt with the pre-entry closed shop in the Co-operative movement where it has been decided that those working for a society shall be members of a trade union.
How can the Clause prevent the operation of that principle? All that will happen is that those who are unwilling to join the appropriate trade union will not be accepted for employment. No law can prevent that.
The pre-entry closed shop does not cover the minority of workpeople, as the right hon. Gentleman seems to suggest. It covers nearly 3 million workers. In the last month, my own union has signed two agreements based on the pre-entry closed shop. A condition of employment in two drug firms is that staff shall be members of the Chemical Workers' Union. The suggestion came from the employers, because they want reasonable negotiations in their factories.
Those who work in the factories with which the right hon. Gentleman has been associated are members of my trade union. The right hon. Gentleman knows that the whole basis of decent agreements in his establishments has been the existence of 100 per cent. trade unionism. Over the last year or so, the tendency in British industry has been to make membership of a trade union a condition of employment, not because it was thought to be a restriction on the rights of individuals, but because of the development of superannuation schemes which can be viable only if all the employees in a factory contribute to them. Consequently, they have been compelled to agree to pre-entry membership of a union as part of the agreement on the superannuation scheme.
The Government can carry the Clause, but it will not operate. It makes nonsense of the law to suggest that Clauses like this can be operated when the right hon. Gentleman knows perfectly well, based on his own experience, that they will not operate.

§ Mr. Bert Oram (East Ham, South)
We have had contributions from two of my hon. Friends with long experience in the organisation of shop workers. I look at the problem not so much from their point of view but from the point of view 940 of the members of co-operative societies, and particularly as a member of a co-operative society board. In many societies there is not just an agreement on union membership as a condition of employment but it is written into the society's rules. The rules are approved by the Registrar, and our society is registered under the Industrial and Providence Societies Acts. If the Clause becomes law, will all co-operative societies with that provision in their rules have to change their rules?

§ Mr. R. Carr
I think that the answer to that must be "Yes". Without looking at the rules, of course, I cannot be quite sure. What we are saying in the Clause is that it is not right to make it a condition that before a person can be engaged he must be a member of a particular union. That is what we mean by a pre-entry closed shop.
I do not think that the hon. Member for Bilston (Mr. Robert Edwards) has got the position right. He referred to a company with which I used to be associated. It is true that in one section of the company all the workers are, I think, members of his union, but unless something has changed in the past month or two they do not have to be. Many of them may have been members as a matter of course, but it was not a condition of application for employment in that section of the company that they had to be members of the union. If they were not members already, they became members on joining, but that is post-entry, not pre-entry.

§ Mr. Loughlin
We must push the Secretary of State on this matter, because it is vital to our union. He need not have a copy of the rules of a co-operative society. There are hundreds of societies that clearly lay down as a condition of employment that a person applying for a job shall, if he is appointed, be a member of his appropriate trade union. It might be U.S.D.A.W., the Bakers' Union, the Transport and General Workers' Union, or any of a number.
The Government are arguing in the whole context of the Bill that they are defending freedom. I do not know 941 whether the right hon. Gentleman understands what goes on. In the Co-operative movement there is complete democratic control by the shareholders, with quarterly or annual meetings, when a substantial number of those who control the society may be present. Those who own the organisation decide the conditions of employment of the work people.
I know that the Secretary of State is not interested in the Co-operative movement. He is not interested in U.S.D.A W and I do not think that he is very much interested in the Transport and General Workers' Union. But I plead with him to listen for a minute, because it is not in the interests of the British people to claim that he is talking about freedom of the individual and to refuse to allow a democratically-controlled organisation to determine the conditions of employment of its employees.

§ Mr. Rees-Davies
Not if it is totally undemocratic. If he denies the opportunity of the individual to apply for his job without having to be a member of a union, the hon. Gentleman denies the very essence of the point he is making.

§ Mr. Loughlin
I know how good a democrat the hon. Gentleman is. I am a member of the board of management of a co-operative society—[HON. MEMBERS: "Oh."] I was giving an illustration. I am not a member of the board. I am only a member of a co-operative society. I have about £2 of shares, and I trade with the Co-operative movement. [Interruption.]

§ Mr. Orme
This is a serious matter.

§ Mr. Loughlin
Comics are all right in this Chamber at times, but I think that the hon. Gentleman should go back in the bar.

§ Mr. Kinsey
To whom is the hon. Gentleman referring.

§ Mr. Loughlin
I am talking about the hon. Member whom the cap fits. We are dealing with the co-operative movement and a union which has 350,000 members. Other unions are involved. [Interruption.] If the sum total of the interest of hon. Members opposite is reflected in their conduct in the last five minutes, it is indicative of their attitude to the trade union movement.

§ Mr. David James
On a point of order, Miss Harvie Anderson. Might it not be happier for us all if we did not refer to conduct previously in relation to the Bill?

§ The Deputy Chairman (Miss Harvie Anderson)
That is not a point of order.

§ Mr. Loughlin
If the hon. Gentleman will explain himself I will deal with him. If he is incapable of explaining himself, I cannot deal with him.
Many co-operative societies determine by democratic process that a person shall be a member of a trade union. The Secretary of State says that this will not be possible under the Bill. What does he want my union to do? This is the important aspect of the position. Does he want my union to involve itself in a number of disputes in consequence of the Bill with a number of co-operative societies, although they are willing to allow full membership of the union as a condition of employment? Is this what it will be driven to? This is something which hon. Members opposite do not understand. Surely they do not think for one moment that my union will be prepared to face a situation in which the Government will destroy it. Does anyone imagine that U.S.D.A.W. will sit back and be destroyed by the Secretary of State?

§ Mr. Selwyn Gummer (Lewisham, West)
I am seeking the hon. Gentleman's help. Why would this destroy the union? Surely as it is an excellent union, it will go on attracting members because of the job it does on behalf of its members.

§ Mr. Loughlin
Do not let anyone kid himself about this. The Government say that there cannot be a pre-entry closed shop, that one cannot have a condition of employment. I know some of those libertarians who stand up for the liberty of the individual but whose real concern is to save the 1s. 2d. a week membership payment. The right hon. Gentleman should examine the possibility of bringing forward on Report an Amendment to allow a pre-entry closed shop where there is the appropriate agreement between the employers and the trade union movement.

§ Mrs. Doris Fisher (Birmingham, Lady-wood)
The co-operative societies have to make their rules under the Industrial and Provident Societies Act and therefore 943 their rules are registered already under that Act of Parliament. Does the reply given by the right hon. Gentleman mean that the Act will have to be amended following the passage of this Bill?

§ Mr. Pavitt
I seek to pursue the same point as that made by my hon. Friend the Member for Birmingham, Ladywood (Mrs. Fisher). I was amazed by the answer which the right hon. Gentleman gave to my hon. Friend the Member for East Ham, South (Mr. Oram) because the implication is that we shall have to call some 700 special general meetings in order to change rules, which will then have to be approved by the Registrar of Friendly Societies. The London Co-operative Society, of which I am a member, has one-and-a-half million members and between 5,000 and 6,000 attend half-yearly meetings. Such propositions have to be put to democratic meetings of members.
What happens if, when amendment of rules is put before the members of a co-operative society, for subsequent approval by the Registrar, they turn it down? Is it not the case that they will be unable to turn such an amendment down because they will be pre-empted to alter the rules under the provisions of the Bill? I remind the right hon. Gentleman that, under the Industrial and Provident Societies Act, the co-operative societies have operated for 75 years under model rules accepted by the Registrar.

§ Mr. R. Carr
If I may quickly answer that point, if the law of the land changes, then rules sometimes have to be changed. Supposing a limited liability company or, indeed, some other new co-operative society, were to be formed and were to make it a rule that no employee could be a member of a union. The hon. Member would be the first to say that that rule should be changed.

§ Mr. Walter Padley (Ogmore)
There is a real problem here. There is a contractual relationship between the co-operative societies—and other employers —and their employees. This Clause would undermine the financial stability of the superannuation schemes. How can this Bill undo the Industrial and Provident Societies Act? No reply has 944 been given, and I ask the Solicitor-General to tell us, because the right hon. Gentleman obviously does not know the answer.

§ Mr. Loughlin
Will the Solicitor-General reply to the point raised by my hon. Friend the Member for Ogmore (Mr. Padley)? Perhaps the Secretary of State will give some consideration to a very large trade union. He seems to be ignoring completely the whole of the Co-operative movement. Is he so contemptuous that he can afford to sit back and say nothing? Is this his attitude? Is he so arrogant as to imagine that he can ignore the trade union movement and the Co-operative movement? Will the Solicitor-General address himself to the question put by my hon. Friend and will the Secretary of State deal with the issue which has been raised?