HC Deb 28 July 1971 vol 822 cc639-67

Lords Amendment: No. 4, in page 3, line 35, leave out "if he so desires".

Mr. Dudley Smith

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

It was felt both here during our previous debates and in another place that the words "if he so desires", taken in this context, might unduly accentuate the right not to belong to a trade union. We certainly do not wish to give that impression. I do not necessarily accept that the impression would have been created by the fact that these words were retained. Because doubts have been expressed—I think they were genuine doubts—we were happy to remove the words in another place.

On the whole, I think that the words are not necessary. It has always been my belief that the Bill will do much to encourage trade unionism and that it is far more favourable to trade unions than many people suggest. Therefore, we will make any Amendment which we can make which will go some way towards encouraging legitimately those who are engaged in industry to join a trade union. My right hon. Friend has been on record on a number of occasions as saying how keen we are to encourage people to join trade unions, provided that they then conduct themselves responsibly within the framework which the Bill builds up. In this situation the Amendment is slightly helpful and I am sure that, in view of the comments made on it in our earlier proceedings, the Opposition will be prepared to accept it.

Mr. Heffer

I am sorry, but we must make some comments on this Amendment. It is essential to do so in order to make our position clear, for otherwise our acceptance of certain Amendments could be interpreted as being acceptance of the principles lying behind the Bill. It must be stressed again and again that, in accepting particular Amendments, we are doing so on the understanding that we do not accept the principles of the Bill.

Mr. Dudley Smith

Perhaps I can help the hon. Gentleman. We accept that he is against the whole Bill in principle but that he is prepared to support certain Amendments which both sides believe will improve the Bill. Surely we can take that as read.

Mr. Heffer

I am glad that the hon. Gentleman accepts the point. This Amendment was moved by the Opposition in another place and accepted by the Government. But I must stress that the Government accepted it only because they felt that it did not give away any of the principles of the Bill. Indeed, the hon. Gentleman has himself underlined that point. While the Amendment makes the position slightly better in this Clause, it in no way creates a situation in which the closed shop, which is something which workers want in many industries, can become a right for the workers. The closed shop principle is very much involved. I want to recall the remarks of Lord Windlesham in another place. He said: Do we really need these words in the clause? They are in paragraphs (a) and (b) but, as I have explained, the Secretary of State in another place has made clear that in his view they are not equal and opposing rights. They are very important rights. By adding the new subsection (5). he has put a statement of intent on the Statute Book, to encourage workers to join a trade union. That being so, we feel that we can accept the Amendment…"—[OFFICIAL REPORT, House of Lords, 4th May, 1971; Vol. 318, c. 203.] It must be clearly underlined that subsection (5) does not cut across subsection (1)(b), which gives the worker the right not to be a member of a trade union. Therefore, these are not equal rights. The emphasis is still on the right not to be a member of a trade union, and this in effect is acceptance of American policy which, as we have pointed out before, has the so-called "right to work" law. Whilst this is a concession, it is only minor. It continues and perpetuates non-trade unionism and strikes at the very concept of the closed shop. It does away with certain rights which our workers have enjoyed for a long time.

The Amendment will continue to make it difficult for trade unions to recruit. It will build up the reserve of non-trade unionists. It will encourage the free riders. As my noble Friend Lord Hoy said in another place, if it had not been for the actions of the trade unions over the years, the workers would not have the good conditions which they enjoy at present. So the Clause and the Amendment do not help to improve the conditions of the workers, despite the fact that the Amendment is a concession.

6.45 p.m.

Up to now, under the common law, the employer has had the right to lay down almost all the conditions for those who work for him. He can tell the worker that he must join the superannuation fund or the sick fund. He can tell him that he must not smoke in certain places, that he must clock in or clock off. Under the Bill, the employer will not be able to say in future, "You must belong to the appropriate trade union". I must emphasise, therefore, that this Clause, even with the Amendment, takes certain rights away from the workers. We do not agree with that principle. We accept the Amendment reluctantly and make it clear that we are opposed to Clause 5 as a whole.

Mr. Gower

The hon. Member for Liverpool, Walton (Mr. Heffer) is being less than fair. Subsection (5), with or without the words "if he so desires", puts into the Statutes of this country for the first time the right of an employee to be a member of a trade union as he may choose. This is a very important right. As the hon. Gentleman is aware, there have been cases in fairly recent history of unenlightened employers refusing to employ a person merely because that person has joined a trade union of his choice. Now, for the first time, it will not be in order legally for the employer to act in that way. The hon. Gentleman could at least admit that sub- section (1), with or without these words, is an important landmark in enhancing and widening the right of the employee to join the union of his choice.

Mr. Hugh Jenkins (Putney)

It would be surprising if a Bill of this length, which is purported to be of benefit to the trade unions and the working people, did not contain one Clause which might have some slight benefit to some members of the community. As a trade union official, before I began to work for the actors, I worked for the bank employees, and it is possible that in their case this right may enable their trade union to deal more effectively than in the past with the banks, which include some of the most reactionary employers in the country. There is no worse employer, from the point of view of conceding rights, although conditions of bank employees are not as bad as they are in other forms of employment. Nevertheless, I repeat that, on the question of conceding rights of employees, banks are amongst the worst employers. So there is something here.

In Committee, we drew attention to the undesirability of the phrase, "if he so desires", and I agree with my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) that the words are redundant and that we are glad to see them go. But he is right in saying that the so-called concession is unreal. Indeed, throughout the whole proceedings of the Bill—this Amendment is an example of the general tendency—what the Government have done is to pretend to give away something when they are sure that they are not giving away anything at all. Some hon. Members opposite think that the removal of these few words is a real concession, but in fact it is not. But when Ministers were asked to give practical effect to the removal of these words by making it possible for a trade union to operate a closed shop, they absolutely and entirely refused to make any concession. So an apparent concession is not carried further, and this is bound to deceive some hon. Members opposite.

A distinguished member of the theatrical profession told me the other day that he had been sold down the river by hon. Members opposite, who had told him that the removal of these words meant that Equity would be able to operate in the future as it had in the past. This is quite untrue. Ministers know it, but not all their supporters do. Ministers know that it will not enable that trade union to work in future as it has in the past. The Amendment may be accepted, but we must not exaggerate the advantages of the change—they are very small indeed.

Mr. Rees-Davies

Will the hon. Member indicate which hon. Members on this side have ever said anything of that kind? We have had a number of long consultations with Equity and with other unions, and as far as I know none of my hon. Friends has ever suggested that they would be in the same position as before. It has been said that they would have certain special concessions which would not apply to other unions, but I am not aware of any hon. Member on this side ever saying that they would be in the same position as before.

Mr. Hugh Jenkins

At a later stage I will quote chapter and verse in support of my statement.

Mr. Orme

We cannot debate paragraph (b) of subsection (1) because there is no Amendment to it. Paragraph (a) gives a worker the right to be a member of a trade union, and (b) gives him the right not to be a member. The Minister knows that Clause 5 is one of the most contentious of all the Clauses, and it is a pity that we cannot debate it more fully now.

To say that someone may be a member of such trade union as he chooses sounds very democratic but in practice it may be just the opposite, and probably will be. The Bill will encourage company trade unions. A man could choose a union not relevant to the industry in which he worked. In the engineering industry we have the Toolmakers' Society. We do not look on it as an official trade union and it is not recognised by the T.U.C., but the conflict between Society and the A.U.E.W. has had a detrimental effect on production on a number of occasions. I can see the Clause making that situation worse.

We all agree that a man should have the right to join the union applicable to his industry and recognised by it. Thus, he might quite rightly choose between the A.U.E.W. and the A.S.T.M.S., or be- tween the A.U.E.W. and the E.T.U. and Plumbing Trades Union. That is a genuine choice, but the ability to choose a trade union not generally understood to be applicable to his industry—it could be a company trade union—could injure industrial relations and lead to fragmentation of trade unions. The Minister, in Opposition, fought long and eloquently for the need to reduce the number of trade unions and to have industrial trade unionism. All that has gone out of the window now, because the Bill will have exactly the opposite effect.

Mr. Charles Curran (Uxbridge)

We have heard many speeches from the hon. Member for Salford, West (Mr. Orme), and most of them have been a good deal better than that. His speech was a classic example of how to drop bricks without having the straw to make them with. His grievance, as far as I understand it, is that the Bill gives a worker the right to join as he may choose, but the hon. Member would like him to have that right provided he chooses in accordance with the wishes of the Labour Party or the T.U.C.—[HON. MEMBERS: "No."] He apparently thinks that to give the worker unfettered right of choice is very dangerous: the fellow might even exercise his right in a way very unpleasant to the hon. Gentleman and his friends.

He instanced the worker who might be so very degraded as to want to join a company union. Must that worker be forbidden to do so? If he is so half witted, as the hon. Gentleman would term him, as to want to join such a union, the hon. Gentleman says that he must by law be forbidden to do so. When we give people a choice, it is a choice which in the opinion of some people, may be misused. That is one of the most regrettable effects of a free society. If they can choose even the party they want to vote for, some will be so degraded as to choose to vote for the Tory Party. Are we therefore to take from them their free choice?

Mr. Orme

The hon. Gentleman has twisted the argument. We are opposed to all the legal paraphernalia in the Bill which compels workers to do this or that, or to jump through this hoop or that. We believe in a free and independent trade union movement, but we are opposed to the Minister writing in terms detrimental to the established trade union movement.

Mr. Curran

I appreciate that at this stage we cannot discuss the entire principle of the Bill, and I am addressing myself to the narrow question whether we have here a change that we should accept. I dissent from the hon. Gentleman's attempt to argue that the words "as he may choose" are dangerous because, as he tells us, people may choose to join a union of which he disapproves. There are some people, apparently who, he fears, would exercise their free choice instead of joining the union to which he belongs. They may even join a union which does not affiliate to the T.U.C. Does he say that workers shall not be free to choose such a union? Does he think that they cannot be entrusted with the right of free choice, whether or not that choice is to join a union affiliated to the T.U.C?

7.0 p.m.

Mr. Dan Jones (Burnley)

I do not think that the hon. Gentleman has got the point. My hon. Friend the Member for Salford, West (Mr. Orme) speaks from experience. Certain trade unions have procedure agreements with employers. That is an accepted fact. If a worker opts to join a trade union which is not a party to a procedure agreement, who will negotiate on his behalf? Is the hon. Gentleman seeking to bring in yet other trade unions to make the situation worse?

Mr. Curran

I am astonished that that sort of argument should be advanced by the hon. Gentleman. It is simply a repetition of the general proposition that a worker is not fit to choose, and that the choice must be made for him. The hon. Gentleman is telling me that it might happen that a worker will join a union which does not have a bargaining relationship with the employer. Is not that for the worker to choose? The hon. Gentleman says that if we allow a worker the unfettered right to choose it may happen that he will join a union which does not have a bargaining relationship with his employer. That is the worker's funeral, if he chooses to do that. It is up to him. Does the hon. Gentleman seriously say that he should be forbidden to do so? It sounds preposterous.

Mr. Dan Jones

The worker should be encouraged to join a union which has a procedure agreement with the employer.

Mr. Curran

There is nothing in the Bill to stop the worker from being, as the hon. Gentleman says, encouraged. I wonder how the word "encouraged" might be defined. We can all think of processes of encouragement. I am taking the argument and seeking to show the hon. Gentleman that it is bogus.

The hon. Gentleman asks what will happen if a worker wishes to join a union which does not have a bargaining relationship with the employer. My reply to that is that if a worker chooses to join such a union he should be completely free to do so, even if that is something which, in the hon. Gentleman's opinion, it is to his disadvantage to do. That is one of the snags of a free society, that we give people the freedom to choose, and that some of them, in the opinion of some of us, misuse that freedom. But that is no argument against freedom.

The hon. Gentleman must make up his mind. Regrettably, there are in this country many people who, if they are given freedom of choice, will exercise it in a fashion that will make the hon. Gentleman's eyebrows go up. The hon. Gentleman must not behave with the timidity of a maiden lady finding herself in a disorderly house, which is what he is doing now. He must recognise, and his nose must be strong enough to take it, that, given a free society, many people will use that freedom in ways that will make him shudder.

Mr. Dan Jones

It would be a good thing if the hon. Gentleman were not to apply for the post of personnel manager with any reputable company. He would not be liked for ten seconds.

Mr. Curran

That may be a criticism of me but it may, equally, be a criticism of the company which would not employ me. I think that this is very much an open question.

Having heard the most that can be urged against this proposal I invite the House to agree—and I fancy that hon. Gentlemen opposite in their calmer moments will agree, too—that the attempt to use this Clause and this debate as a basis for challenging the freedom of the worker to please himself about which union he joins is something which cannot be accepted by anybody in this House.

Mr. James Sillars (South Ayrshire)

I should like to follow one or two remarks of the hon. Member for Uxbridge (Mr. Curran). I think he is well aware that in any society a limitation is placed voluntarily on absolute freedom, because of the necessity for organisation, on occasion, so that the society runs as smoothly as possible. As my hon. Friend the Member for Salford, West (Mr. Orme) said—and I know that the hon. Gentleman has as much knowledge of industry as anyone on this side of the House—in industry there is a requirement for organisation.

The hon. Gentleman said that if a man joins a totally inappropriate trade union, it may be his funeral, but we on this side of the House know that eventually it may be the company's funeral. If there are a number of splinter unions in a company, that is not good for the company, nor is it good for the workers involved, and that was the point that was being made by my hon. Friend the Member for Salford, West.

The words frequently used by the hon. Member for Uxbridge were, "the need for freedom". May I draw the hon. Gentleman's attention to the fact that in Clause 5(1)(a) there is a clear limitation of choice and freedom by a large number of what we in this country call trade unionists in this month and in this year? I say that because subsection (a) says that a worker shall have the right to be a member of such trade union as he may choose", and that is a trade union within the legal definition of the Bill. In the next subsection he is given the right not to be a member of a trade union or other organisation of workers… There is an important distinction between paragraphs (a) and (b). A worker who is a trade unionist, a member of the A.U.E.W., a union which has chosen not to register under the Bill, is no longer entitled to the so-called freedom of paragraph (a) which the hon. Gentleman has been extolling with such eloquence. He does not have the statu- tory right to be a member of the A.U.E.W., and I think that we are entitled to have from the Secretary of State a full explanation of why a worker who has been a lifetime member of the A.U.E.W. does not have the right to be a member of that union after the Bill becomes an Act, by virtue of the fact that it will be designated "an organisation of workers."

Mr. Curran

I am listening to the hon. Gentleman's argument, and I am by no means waving it aside. As it stands, the subsection provides the right to a worker to be a member of such trade union as he may choose. If I understand the hon. Gentleman's argument aright, he would like the worker to have the right to be a member of such trade union as he may choose, provided that the union is affiliated to the T.U.C. Is that the change which the hon. Gentleman wants to make?

Mr. Sillars

I am sure that it must be my fault for not having explained myself properly. The point I am making is that at present we have what are known as trade unions—for example the A.U.E.W., the engineers' union—but, after the Bill becomes law, if the engineering union decides not to register—as it has done—it is no longer entitled to the title of "trade union" and becomes "an organisation of workers". A worker will have the right to be a member of a trade union, but he will not have a legal right to be a member of the A.U.E.W. I suggest that that is grossly unfair, and that it is a proposition that is unsupportable by hon. Gentlemen opposite. I think that I have said enough at this stage.

Question put and agreed to.

Lords Amendment No. 5: In page 3, line 37, leave out from first "to" to "16" in line 38 and insert: sections (Modification of rights by agency shop agreement) and".

The Solicitor-General (Sir Geoffrey Howe)

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

It may be for the convenience of the House if, with that Amendment, we were to discuss the following Lords Amendments.

No. 6, in page 4, line 15, leave out "subsections (3) and (4) of this" and insert: the next following". No. 7, in page 4, line 24, leave out subsection (3).

No. 8, in page 4, line 41, leave out subsection (4).

No. 10, in page 5, line 20, leave out "subsections (1), (2), (5) and (6) of".

No. 18, in page 8, line 20, leave out from "unions" to "in" in line 21 and insert: or between an employers' association and one or more trade unions, whereby it is agreed". It has been suggested that with this group of Amendments we should discuss also Amendment No. 40, in page 14, line 19, at end insert: () Where a worker to whom the agreement applies, and who is specially exempted, has agreed to pay appropriate contributions to a charity, and requests his employer to deduct the contributions from his remuneration and pay them on his behalf, then so long as that request remains in force—

  1. (a) he shall not be regarded for the purposes of subsection (5)(a) of this section as having refused to pay the contributions to the charity, and
  2. (b) any failure on the part of the employer to comply with the request shall not be regarded as a failure on the part of the worker to pay the contributions."
In my view this Amendment is closely related to Amendment No. 11, and I think that it might be more convenient if we were to discuss those two Amendments together in due course.

Mr. Rose

The only difficulty with that course of action is that my hon. Friend who is dealing with Amendment No. 11 has had no notice of that. The notice that we had was that it would be taken with this group of Amendments. We have acted accordingly, and are prepared to take them as the Solicitor-General first suggested.

The Solicitor-General

If that be the wish of the Opposition, no doubt it can be done. It will slightly extend the range of the debate on to a matter which could be linked with the new Clause, but I am prepared to deal with it in that way.

These five Amendments modify the structure of Clause 5 in order to incorporate the subsections there taken out in the new Clause which is the subject of Amendment No. 11. Those Amendments are purely formal, paving Amendments to Amendment No. 11. Amendment No. 18 is one of two which are linked with the new Clause and can therefore be discussed separately. Amendment No. 18 has to be read in conjunction with subsection (3) of the new Clause, which is part of Amendment No. 11, and would mean that an agency shop agreement can be made not only with an employer or employers but also with an employers' association.

That is in response to an argument urged upon the Government by some of my hon. Friends and in the other place. It is designed to facilitate the making of an agency shop agreement on an industry-wide basis as a result of voluntary agreement between the union or unions and an employers' association.

If any dispute arises whether such an agency shop agreement should be made, it would still have to be resolved by the procedures, including a ballot, in the Bill. Amendment No. 18 makes it possible, however, for several unions and an employers' association to make such an agreement voluntarily.

The other substantive Amendment is No. 40, which reproduces subsection (3) of Amendment No. 11. They both achieve the same object and are designed to make it plain that a system of checking off appropriate contributions is admissible in the context of an agency shop. A number of hon. Members and noble Lords urged that some move should be made in this direction. I know that my hon. Friend the Member for Basingstoke (Mr. David Mitchell), who is not here at the moment, was one who urged that an Amendment on the lines of Amendment No. 40 should be incorporated in Amendment No. 11.

The object would be to provide that where a worker objects to an agency shop agreement and agrees to pay contributions to a charity or appropriate contributions to the union, and he requests his employer to deduct the contributions from his pay and hand them over on his behalf, he shall not be regarded as having refused to pay the contributions to the charity or appropriate contributions to the union as the case may be. He will have discharged his obligation by notifying his employer that that is what he wishes to have done.

It seems to the Government, in response to a case urged on us by a number of people, fair and sensible to give the non-member worker in either situation that right to require the deduction of his contribution to the union or to the charity by his employer for him, and then to be protected in accordance with the usual provisions of an agency shop agreement. It is on that basis that we put down these Amendments. I will say no more now about the other aspects of the new Clause, which is the subject of Amendment No. 11, since I understand that we are to debate an Amendment to Amendment No. 11 shortly.

Mr. John Page

Could my hon. and learned Friend explain that the employer, when the deduction is requested, will inform the union with whom the agency shop agreement is made that this employee is having a deduction made at source? Will that information be made available?

The Solicitor-General

No doubt that matter will be covered by the agency shop agreement itself. Unions will know better than anyone else each worker in a place of work who is or is not a member. They will know that an agency shop agreement is in existence; they will know those who are members and paying dues to the union, who are required by the terms of the existing agreement to pay their contributions to the union through the employer. The union will also know any particular workers who, for conscientious reasons, will be paying to a charity, because the union will have agreed the charity with them.

So the union will be well placed to name the work people from whom it requires a contribution through this machinery. It will be an agency shop agreement reached between the union and the employer. If it is an enforceable agreement, the union can enforce it against an employer. If it is not, there is nothing to stop the union taking industrial action to support it.

So it will be in everyone's interests for it to be perfectly plain who is paying contributions in this way. As I say, the union will know who is not a member. It will go to the employer or to the worker in question and ask what is happening to the contribution. If the worker has assigned it to the employer, the union will know that the employer has it.

7.15 p.m.

Mr. Rose

The Solicitor-General will know that we entirely reject the concept of the importation of the agency shop into British industrial relations, but it is clear that Amendment No. 5 is a necessary drafting Amendment to pave the way for the new Clause which is covered by Amendment No. 11. My hon. Friend the Member for Doncaster (Mr. Harold Walker) will be dealing with this separately in great detail. We on this side have an Amendment to that Amendment.

In another place, there was considerable cause for concern on this side about the introduction of this new Clause for the modification of rights of agency agreements, which will be articulated in much more detail when we come to Amendment No. 11. Amendments Nos. 6, 7 and 8 are necessary drafting Amendments as a consequence of replacing Clause 5(3) and (4) with the new Clause. There is no need to deal with these except to say again that this will come into the later debate.

As for Amendments Nos. 18 and 40, apart from the fact that Amendment No. 18 deals with the definition of the agency shop agreement to provide more satisfactory wording to cover employers' associations specifically, I do not see why it has been grouped with the other Amendments, but I see no point of principle at issue. Again, that is a mater to be dealt with under a later Amendment.

It is on Amendment No. 40 that there is real cause for concern. As I said, we reject the concept of the violation of the closed shop by this Bill. We reject the agency shop. Clause 16 is more of a concession to the knowledge that many employers appreciate the value of the closed shop than to the rights of workers to organise themselves, and there are precious few concessions to that right in this Bill.

In this context. Amendment No. 40 seeks to protect the worker who elects to pay appropriate contributions to a charity and who requests his employer to make the necessary deductions from his pay and hand over the money on his behalf. If the employer does what the employee requests, then one understands that the employee should be protected from any negligent omission on the part of the employer. He might forget or there might be a mistake in the wages department. A cheque, bankers' order or Giro credit might go astray. All these things are understandable and perhaps inevitable.

What will happen, on the other hand, if the employer wilfully does not pay out the amount to the charity? What if there is a tacit understanding—let us not use the word "collusion"—that the employer will not pay? How is the employee to know whether the money has been paid unless the necessary information is supplied to him?

There is an omission in that, not being a party to the contract, the charity might not know that the amount has not been paid to it. It will not be able to take action to recover the sum that should have been paid. Hon. Gentlemen opposite are concerned to protect the interests of charities and will be anxious to know what action will be open to a charity in these circumstances.

The employee is explicitly exempted. That is the whole purpose of Amendment No. 40. There seems to be no liability whatever on the employer, however, who fails to pay the appropriate sum to the charity. This appears to be a loophole as a result of which a worker who refuses to pay union dues but who gives instructions to his employers to pay the appropriate sum on his behalf to a charity could be left in doubt whether that amount has been paid.

It should not be the purpose of the Amendment to cosset the free rider or negligent employer. The purpose may be to protect the innocent, and I am prepared to accept that that is the intention of the Government in this matter. Nevertheless, the result may be to protect those who are far from innocent, and who are, in fact, guilty of breaking the spirit of the Clause and offending against the intention of this provision by not making the necessary payments to the selected charity.

How is the union concerned to know that payments are being made? How can we be sure that this is not a loophole through which a man might avoid pay- ing dues to the union which is working on his behalf merely by electing to pay the appropriate sum to a charity which may be fictitious? Alternatively, how can we be sure that, the employee having honestly elected to pay, the employer fails to carry out his obligations to pay the money to the charity?

I have studied this matter in some detail and have reluctantly come to the conclusion that whatever the intention of the Government may be in this matter, there does not seem to be the necessary machinery to enforce that intention. Unless the Solicitor-General can give an adequate answer to these questions, I fear that I shall have to advise my hon. Friends to vote against the Government on this issue.

Mr. Curran

If a worker authorises his employer to make deductions from his pay and hand over the money to a charity, and the employer makes those deductions but does not hand the money over, what will be the legal position?

Mr. Orme

That is what we want to know.

Mr. Rose

The obligation is on the Government to tell us the answer to that question. The misappropriation of property is a criminal offence. From the civil point of view, however, it seems that the charity that has been nominated will not be privy to the contract and, as a result, could not take action, but the Solicitor-General is better qualified than I am to deal with this matter.

Perhaps the employee can take action. On the other hand, he may be unaware of what is happening. Perhaps he is aware but there is some sort of collusion. Again, how is the charity or trade union to know? These are pertinent questions which we trust will be answered before this discussion is concluded.

If a criminal offence is committed, criminal action can be taken. However, that will hardly be helpful to either the charity or industrial relations—and we are told by the Government that the Bill is designed to help industrial relations. I am naïve enough to believe that that is their intention.

Mr. John Page

I suspect that the hon. Member for Manchester, Blackley (Mr. Rose) is making heavy weather of this. I also suspect that if a company defaulted in making payments to a charity, it would be guilty in the same way as if it did not make payments to a trade union or any similar body.

Mr. Orme

That is precisely what we want to know.

Mr. Rose

Can the hon. Gentleman be sure?

Mr. Page

Companies will not, therefore, default deliberately.

It is clear from the detailed debates that we have had about national bargaining arrangements that many of my hon. Friends and much of industry will appreciate the new arrangements.

Mr. Loughlin

Whether or not we are making heavy weather of Amendment No. 40, it should be obvious to the hon. Member for Harrow, West (Mr. John Page) that the Solicitor-General has a simple remedy at his disposal. He could, if he wished, simply rise to his feet and give my hon. Friend the Member for Manchester, Blackley (Mr. Rose) the assurance for which he asked.

The Government say that it is their intention to assist industrial relations. We must remember that we are dealing with a multiplicity of small and medium-sized companies and not simply with large firms. This multiplicity of firms represents, in terms of total production, a substantial amount of the nation's economy and a breakdown in industrial relations among those firms could mean a great deal to the economy. That being so, the Solicitor-General should be aware of the need to include a provision which will allow trade unionists to know that any amount that should be paid by an employer to a charity on behalf of a non-trade unionist is, in fact, being paid.

7.30 p.m.

I am not arguing that a man who exercises his right not to belong to a trade union and instructs his employer to pay his contribution to a charity should not be protected, and the Amendment will protect him. But where in the Bill is the remedy against the employer who does not pay that contribution to the charity? The hon. Member for Harrow, West raised the legal implications of whether the charity could sue the employer or whether the worker could sue his employer. The employer may decide that it would be useful to him not to pay the subscriptions to charity immediately. If the Solicitor-General will say what provision in the Bill enables sanction to be taken against the employer who fails to pay the contributions to the charity, there will be no further grounds for discussing the Amendment.

Mr. Dan Jones

I consider this part of the Bill to be pernicious and damaging to the employee. The Minister appears to be satisfied that he has the free rider taped. The man will not pay his contributions to a trade union but to a charity, so that he is not dodging his obligations. But by the same token the man may easily be dodging his obligations to his family.

Thousands of men and women suffer industrial injury daily. When they are injured they have to face a cold, calculating administration whose job it is simply to look after the funds. In my experience, a man who has suffered a disability as the result of an accident will be told by the Ministry that the disability is not connected with the accident, and consequently benefit is denied. This is where the trade union plays an indispensable part and sees to it that an independent specialist examines the injured man. That specialist opinion in any tribunal carries tremendous weight. How is a person making contributions to a charity to protect his interests as a disabled man? No charity could possibly look after his interests; no charity would have this right. The trade unions have a clearly defined right——

Mr. R. Carr

The hon. Gentleman is putting a strong argument for joining a trade union, an argument which I and the Government accept. If a man or a woman is foolish enough not to join a trade union, that is his or her affair.

Mr. Jones

I accept that, but I do not want the Minister to believe that all is now square and that he has dealt with the free rider. He has done nothing of the kind. It is wrong to encourage the free rider in a way which could be detrimental to his family at a time when he probably needs the trade union more than ever.

Mr. Joseph Ashton (Bassetlaw)

This provision provides a big loophole. A man who deliberately wishes to be awkward may, after a long dispute, finally agree to pay the contribution, but only to the Conservative Distressed Gentlefolks' Association, or a similar charity, just to antagonise the union. There will then be a controversy whether this is a bona fide charity and a tribunal may take from four to six weeks to decide this. The tribunal may decide that the employer must deduct the money but, after a couple of weeks, the man who is being deliberately awkward may say that he has changed his mind and no longer wants to contribute to the Conservative Distressed Gentlefolks' Association but to the Ian Smith Action on Rhodesia Fund. There will then have to be another reference to the tribunal to decide whether that is a bona fide charity.

The awkward employee might change his mind half a dozen times, and each time the employer may be told to pay the contribution to a different charity. By deliberately causing this nuisance the non-unionist may make the employer say that he will not pay over any money until the worker has made up his mind which charity the money should go to and how much he will pay. Once the employer says that, the man is in the clear; he knows that the money will not be passed on, and he can easily keep going a perpetual dispute about which charity should receive the money.

A part-time cleaner who works seven hours a week cleaning a school and who earns about £1 or £1.50 a week may pay the union a special rate of, say, 3p a week. An industrial tribunal might have to sit to decide which charity this money should be paid to. Four weeks later the cleaner could change her mind and say that instead of it going to Oxfam it should go to the local Red Cross Society.

Mr. Tom King (Bridgwater)

I thought that this was the present situation. What is new about this? The unions have always recognised that there is this right of conscience and in this situation contributions can be paid by the union.

Mr. Ashton

In the present situation a man exerting a right of conscience in most cases agrees to contribute to a charity named by the union. However, by this Bill we are legislating to put this in statutory form so that the High Court of Justice may have to decide whether certain sums should be paid and whether the man has a right to change his mind about the charity when he wishes—in which case the employer might well say, "I will not pass on the money".

There are people on every shop floor who are called "Billy Opposites". If told that something is black, they will swear it is white just for the sake of being a nuisance and trying to throw a spanner in the works. This is what will happen. We shall have the most time-wasting and trivial arguments, which will involve industrial tribunals sitting week after week and month after month deciding these matters. It is a far better system to drop the idea of charitable contributions and to put something in the Bill to provide that, if a majority of the men vote to join a union, every member of it should accept the majority verdict. That is the way democracy works.

Mr. Orme

We are here dealing with the agency shop provisions in the Bill, which are a real Alice-in-Wonderland concept. They involve the difficulty of how to control the free rider once it is decided to have an agency shop. The provision seeks to narrow the situation in which the employer collects the money by deducting from the man's pay, as opposed to the system in which the shop steward or foreman collects money from the non-unionist and is responsible for paying it to a charity. That responsibility is now to be handed over to the employer.

An important principle is involved and there will be great resentment in industry if the provision is put into operation. The principle is that the shop steward and trade union will work independently of the employer for the majority of employees who decide that an agency shop should be set up. Workers will then, for their own reasons, opt out of the union. We heard a little earlier mention of the word "freedom", but such people will have to pay a subscription to a named charity.

The effect of the provision will be that the non-unionist will run to the employer for cover and will pander to that employer. I can foresee situations in which employers may exploit the system. I have lived in various industrial situations for some 25 years and I have seen these things happen. An employer could easily say, "Unfortunately I have an agency shop, but you, the worker can pay your contribution through me to a charity. Is this not a much more acceptable situation?"

I hope that the Solicitor-General will explain the legal responsibility of the employer, because this is an important point. Will the employer be responsible under common law if he abuses the situation, or will the Industrial Court and all the paraphernalia of the Bill be brought into operation on such a matter?

7.45 p.m.

We are dealing here with a workers money which he entrusts to his employer to pay to a charity. It will be extremely difficult for the trade unionist in a factory to discover whether the money has been deducted. Will the trade union in the factory have the right to see the wages slip of the employee? Will it have the right to ask the employer for a receipt showing that the money has been paid to a charity so that it can be seen that the bargain is being carried out?

When one examines the details of how this will work, it can be seen how ludicrous the situation will be. This is why many unions will not operate an agency shop under the Bill. They foresee the sort of problems which will arise once the Bill is in operation.

We are entitled to ask the Solicitor-General to spell out the legal implications and responsibilities, and indeed the rights, of the trade unions. We are in this respect moving on to new ground which has never been trod before. If we are to operate on the lines laid down in the Bill, the situation will be quite ridiculous.

The Solicitor-General

With the leave of the House, I should like to reply to this short debate. On the point put by the hon. Member for Burnley (Mr. Dan Jones), I believe my right hon. Friend has already answered his point. The hon. Gentleman has advanced his argument a number of times in the past, and I entirely sympathise with him. If two people persuade a third person to join a trade union, the argument will remain as strong as ever.

Mr. Dan Jones

Has the employers' confederation, with which I understand the Government have consulted on this point, given its blessing to this part of the Bill?

The Solicitor-General

I am not quite clear what point the hon. Gentleman is on. If he is referring to the whole agency shop context, I should be out of order if I sought to discuss that matter.

Mr. Dan Jones

I am on the free rider point.

The Solicitor-General

The free rider is not an admissible concept. The agency shop provision is designed to prevent the free rider. He will not be riding free. He may be riding light of benefit.

Mr. Dan Jones

He will so far as the trade unions are concerned.

The Solicitor-General

So far as the trade unions are concerned he will be riding as a contributor to the union, except when he establishes conscientious grounds not to contribute. Hon. Members opposite have said that they are concerned to continue to protect the rights of the conscientious objector. In the agency shop context this provision does no more than to extend this concept of a free rider. The trade unions have said that they want this since they recognise the right of the conscientious objector to ride free, paying to a charity. But the rest of the agency shop provision makes plain that the union will be getting dues from the man. He will not be riding free in terms of payment, but will be riding without benefit. He will be free of benefit, but not free of cost. This is an important argument which remains open to the union and to union secretaries.

Mr. Dan Jones

As far as the trade union is concerned, he is still a free rider because, if the money is going to a charity, it is not going to the union.

The Solicitor-General

With respect, the hon. Gentleman has not taken the point of the distinction which I am drawing. If he is paying to a charity, he is riding free so far as the union is concerned, save that he does not in that context have the advantages of union benefit.

Mr. Dan Jones

But he has the benefit of having the conditions in the factory negotiated by the union.

The Solicitor-General

Of course. I do not want to go back over the whole analysis, but this point, surely, is clear. Unions have said, and hon. Members opposite have said time and again, that it is entirely recognised that the conscientious objector should be entitled to object on the ground of conscience. Such a man now pays to a charity. He has the benefit of the collectively negotiated conditions, but he does not have the benefit of the individual advantages available to him through union membership. So a charitable man, so to call him, or a conscientious man, is and always has been a free rider save that he is paying to a charity; and that is exactly what will happen now in respect of exactly the same kind of man. The agency shop contributor will be riding free of benefit but not free of cost.

Mr. Rose

May I try to assist here? I think that what concerns my hon. Friends is this. Although they recognise that he is not a free rider in the wider sense of the term but a conscientious objector, so to speak, he may become a free rider in the wider sense by reason of the provision here which allows a loophole in that the employer may well not make payment to the charity.

The Solicitor-General

I appreciate that that is the substantial point made by the hon. Members for Gloucestershire, West (Mr. Loughlin) and for Bassetlaw (Mr. Ashton), but I was trying to clear out of the way certain other misconceptions and establish common ground up to that point.

The hon. Member for Bassetlaw said that, by allowing a statutory scheme for the determination of conscientious objection instead of leaving it to the union in whatever arrangements it may have to establish that, we are making it more likely that more people will object on grounds of conscience, and therefore—this is the point which the hon. Member for Blackley (Mr. Rose) has just raised—there will be more free riders in that sense.

I deal with that point in this way. If one is dealing with the kind of character whom the hon. Member for Bassetlaw has in mind, the sort of man who will be deliberately awkward—we all know that in all walks of life there are the "awkward squad"—and he goes before an industrial tribunal to establish that he has grounds of conscience for objecting, he may well be able to establish plausibly enough the first time that he is overcome with charitable instincts towards, say, the "Distressed Labour Gentlefolks' Association", and he might conceivably upon a second occasion qualify to contribute to some other charity if he was doing it after a fairly long lapse of time; but in this context, as in any other, conviction would begin to diminish if his charitable instincts changed frequently.

One must look at this question seriously. He will have to establish his case to a tribunal consisting not of people born yesterday but of people who are considering matters of this kind in a different context in industry the whole time, the kind of people who sit on national insurance appeal tribunals, or the kind of people who used to sit on conscientious objectors appeal tribunals during the war. They will not be persuaded to take seriously that a man's conscientious objection is so powerful that he is determined to attach himself to one charity after another and be persuaded by that. It will, I suggest, be sufficiently difficult, but not too difficult, for the conscientious objector to establish his case at the outset——

Mr. Ashton

I accept what the Solicitor-General says about the members of tribunals not being born yesterday and not being ready to give permission to change the charity. But will the tribunals not be compelled to give him a hearing, and will this not be an administrative nuisance which could be repealed ad nauseam?

The Solicitor-General

Of course, he could not be denied a hearing. But this is the kind of case with which tribunals as constituted now have to deal, and, if they thought that a man was asserting rights of this kind frivolously or vexatiously, or because he was an awkward customer, such a case could well be one in which he could expect to have an order for costs made against him. It is only in that very limited area that that would arise.

I come now to the last question—I do not wish to detain the House too long—how does the union ensure that the employer complies with the wishes of the man as expressed under this Amendment? It is perfectly straightforward. By definition, we are dealing here with a situation in which an agency shop agreement or an approved closed shop agreement exists. Quite apart from any other provisions of that sort of agreement, it would be possible, and, I should have thought, sensible and almost inevitable, that the union which had made the agreement would extract as one of its provisions an obligation upon the employer—an enforceable obligation under Clause 36(1)(b) as it now is, even if no other part of the agreement was enforceable—to that end.

It is not really for us now to draft the terms of such a clause in the agreement, but I suggest that the effect would be as follows: (1) to tell the union the names of people contributing to a charity; (2) to advise the union of the receipt of the moneys; (3) to pay the money over to the charity. One cannot imagine any real reason why an employer should not agree to that. He would be doing it, after all, in order to establish a broad pattern of industrial peace in his factory or establishment. He is agreeing to an agency shop agreement, and in the overwhelming majority of cases one would expect him to say, "Fine. I shall make a legally binding agreement. I welcome the fact that you, the union representatives, attach importance to legal enforceability being enshrined in this agreement, and I am willing to accept an obligation to tell you about what is being collected and to pay it over to the charity."

Mr. Rose

But does not the Solicitor-General acknowledge—this is the difficulty we are in—that there is no obligation written into the Bill as it stands which imposes upon the employer the duty to tell the names, to advise the receipt of money, or to give details of that kind? It seems to me, moreover, that there is no means by which the charity itself could enforce payment. In the absence of those matters, it may well be an enforceable obligation could be entered into, but there would be no certainty about it. There is nothing in the Bill which makes it necessary, and, as the Solicitor-General knows, enforceable obligations are something which we on this side find abhorrent in the wider context of the Bill as it relates to collective agreements.

The Solicitor-General

There is here an inconsistency in the attitude of hon. Members opposite. The hon. Gentleman has expressed again the objection that employers will seek to impose enforceability upon unions, and the unions will have to struggle to escape this idea of enforceability. Yet, in the present context, when they are understandably anxious on this aspect of the matter, they cannot accept the logic of their own argument that employers in the vast majority of cases will be happy to make enforceable agreements.

If an employer agrees in that way, even if only on this one point, the agreement can be enforceable against him. Under Clause 36(1)(b) as it now stands, an enforceable obligation can be attached to only one part of an agreement, and in that way, as I have said, the union can enforce its remedy.

The hon. Member for Blackley asked about the position of the charity. The charity could proceed to a civil remedy because it would be entitled to found an action on money had and received; I think that it would probably be an action in quasi-contract. Certainly, if money was being received to the account of the charity by the employer from the contributors, the union would be able to exercise that remedy. If the employer makes such an agreement with the individual worker, and if he declines to pay the money over and the unions discover that, the employer could not sack the man who made the request, because he had done all he could, nor could the union require him to be sacked. But it would be in no sense an unfair industrial practice for the union to take industrial action to require the employer to hand the money over.

That is the remedy it would assert at present in the absence of an enforceable agreement. So there are all those ways in which it could be done, and I must ask the House to accept that Labour hon. Members are making a tremendous mountain of a modest molehill of no consequence. They have said time and again that they recognise the rights of people not to contribute to unions on grounds of conscience. If they approve of the concept of contribution to charities, they must surely approve such a provision.

8.0 p.m.

Mr. Orme

The hon. and learned Gentleman correctly states that at present the question of conscientious objection in the trade union movement is dealt with, but it is a relatively small matter. There has not been much evidence to suggest otherwise. But we fear that the Bill and the terms of the agency shop agreement will widen the whole basis, and there will be far more people applying for those terms than at present—not a fantastic number, but enough to make the system very difficult to work. We can see all sorts of problems which I do not think the Solicitor-General envisages.

The Solicitor-General

I can see that the fear is expressed with sincerity, and I hope that I acknowledge that it exists. But it is entirely without foundation. The establishment of rights of conscience of this kind will be judged under the Bill by an industrial tribunal whose composition I have described. I cannot conceive that the fears of hon. Members opposite will prove to be justified by the decisions of those tribunals. Conscience is acknowledged on both sides to be worth while, and it will be independently assessed under the provisions of the Bill. We believe it right that a person should be able to establish such grounds in this way, and require his contribution to be routed to the charity as is provided. There is no reason for hon. Members opposite to fear the consequences of that, and no reason for the House to be dismayed or ashamed of the provisions we place before it for establishing the rights of a conscientious objector, without fear or favour, in a way which is entirely acceptable to the people of this country.

Question put and agreed to.

Subsequent Lords Amendments agreed to.

Lords Amendment: No. 9, in page 5, line 8, at end insert: () Where an employer offers a benefit of any kind to any workers as an inducement to refrain from exercising a right conferred on them by subsection (1) of this section, and the employer—

  1. (a) confers that benefit on one or more of those workers who agree to refrain from exercising that right, and 666 (b) withholds it from one or more of them who do not agree to do so,
the employer shall for the purposes of this section be regarded, in relation to any such worker as is mentioned in paragraph (b) of this subsection, as having thereby discriminated against him by reason of his exercising that right.

Mr. R. Carr

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

The Amendment makes it an unfair industrial practice for an employer to confer a benefit on some of his workers for agreeing to refrain from exercising the right to belong or not to belong to a trade union while withholding it from other workers who do not so agree. In other words, it makes absolutely safe a worker's right against discrimination by his employer on the important question of belonging to a trade union. It fulfils undertakings given by the Lord Chancellor and other Government spokesmen in another place in response to arguments strongly pressed on them there by Front Bench and other Opposition spokesmen. I hope that in view of that there is no need for me to expand on the Amendment further at this stage.

Mr. Heffer

The right hon. Gentleman has correctly said that this was an Opposition Amendment accepted by the Government in another place. That acceptance was welcomed by Lady White on behalf of the Opposition. The noble Lord, Lord Delacourt-Smith, moved what was Amendment No. 39 in another place, supported by Lord Beaumont of Whitley.

The Amendment shows how impossible is the situation the Government have got themselves into. Subsection (1) confers certain rights on workers either to belong or not to belong to a trade union. An unscrupulous employer, by the use of hard cash, could induce a worker not to belong to a trade union. The Amendment make that an unfair industrial practice, and we are very pleased about that. Lord Windlesham said in the other place on 4th May: Moreover, in Clause 52(a) it is an unfair industrial practice for an employer 'to prevent or deter a worker', and I think that by many members of the Committee the offering of an inducement—perhaps a financial inducement or an inducement of some value—would be regarded as an act by an employer which would deter in the way in which the word is used there.… We agree entirely that the offer of an inducement for such a purpose should be regarded as an unfair industrial practice, and will undertake to introduce words to make this point explicit while avoiding the consequential drafting problems which would arise from simply adopting the terms of the Amendment…"—[OFFICIAL REPORT, House of Lords, 4th May, 1971; Vol. 318, c. 318–19.]

In accepting the Opposition's Amendment the Government have accepted the position they have brought about in the Bill by giving the worker a right not to belong to a trade union. But for that, the Government would not have got themselves into the present complicated situation.

We obviously shall not oppose the Amendment; we welcome it. But we have felt it necessary to point out once again how complicated the situation has become, precisely because of the Clause and the Government's insistence on the right of a worker not to belong to a trade union.

Mr. Ashton

The first line of the Amendment says Where an employer offers a benefit of any kind… Just how far does that go? For example, would a tied house for a farm worker be classed as such a benefit if the farmer told the worker that he could live in the cottage provided he was a non-unionist? Similarly, what about holidays and so on? Does benefit of any kind literally mean anything appertaining to the job?

Mr. Carr

I can assure the hon. Gentleman that it does.

Question put and agreed to.

Subsequent Lords Amendment agreed to.

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