HC Deb 29 July 1971 vol 822 cc807-14

Lords Amendment: No. 19, in page 9, line 8, after "rights" insert "or rights corresponding to negotiating rights".

The Solicitor-General

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

Mr. Deputy Speaker (Miss Harvie Anderson)

I suggest that it will be convenient to take at the same time the following three Lords Amendments:

No. 20, in page 9, line 14, at end insert: (4) In this Part of this Act "rights corresponding to negotiating rights" means rights to partcipate, on behalf of one or more descriptions of workers who are not employees, in negotiations relating to those workers, with a view to the conclusion or modification of one or more collective agreements.

No. 24, in page 9, line 38, at end insert "or rights corresponding to negotiating rights".

No. 284, in page 120, line 17, insert new Clause M—(Power to limit certain provisions of Act to major undertakings.)

The Solicitor-General

These four Amendments are grouped in this way to enable the House to consider more conveniently the important principles embodied in Amendment No. 284, which affects a later Clause of the Bill.

I know that my right hon. Friend the Secretary of State is anxious to deal with Amendment No. 284 because, as hon. Gentlemen opposite will no doubt point out, it raises an important new set of principles. It may be convenient, therefore, if, provided my right hon. Friend returns to his place with sufficient speed, I were to invite the House to reconsider the grouping that you have suggested, Mr. Deputy Speaker, and limit it to the extent of discussing now, quite shortly, Amendments Nos. 19 and 20, and then, almost immediately, as the foundation for the substantive debate, Amendments Nos. 24 and 284.

The right hon. Member for Blackburn (Mrs. Castle) will understand my purpose in suggesting this course, for if the grouping were split in any other way we would lose a peg on which to hang the important contribution which my right hon. Friend wishes to make in connection with Amendment No. 284.

Mrs. Barbara Castle (Blackburn)

I entirely accept the purpose of the hon. and learned Gentleman. We are happy to agree to the course he proposes, as long as we do not lose the opportunity to discuss Amendment No. 284 at this stage.

Mr. Deputy Speaker

Do I take it that it is the general wish to discuss Amendments Nos. 19 and 20 now, to be followed in due course by a discussion of Amendments Nos. 24 and 284?

The Solicitor-General

That is so, Mr. Deputy Speaker, though we will, of course, have to postpone the projected debate on Amendments Nos. 24 and 284 until we have deal with Amendments Nos. 21, 22 and 23.

To the extent that Amendments Nos. 19 and 20 are Amendments to Clause 10, both are designed to have the same effect, namely, to introduce in the part of the Bill dealing with the agency shop the concept of extending the right to establish an agency shop agreement to a union which is representing workers who are not employees. This introduces, in addition to the concept of rights, the concept of 'rights corresponding to negotiating rights'.

Amendment No. 20 defines those rights as 'rights to participate, on behalf of one or more descriptions of workers who are not employees, in negotiations relating to those workers, with a view to the conclusion or modification of one or more collective agreements'. This means, in effect, that a union which is representing people employed on contract for services, such as in the acting profession, or people employed in other non-employed professions, will have the right, provided it has the negotiating rights, to set up an agency shop.

A trade union which negotiates on behalf of workers who are not employees will, therefore, be treated for the purposes of this part of the Bill as having negotiating rights and, thus, being able to enter into an agency shop agreement. This is an extension which was recommended in another place by three noble Lords, members of the Opposition.

Mr. Orme

Would this also apply to people who are on labour-only sub-contracting work and so forth, who might be working at a particular plant but are classed as self-employed?

The Solicitor-General

There are a great variety of formulations of the labour-only sub-contractor. He is an animal classed in many sub-species. Broadly speaking, people who are engaged as individuals on contract for services, as opposed to those engaged as individuals under contracts of employment, qualify as workers and are covered by these provisions. Quite a number of labour-only sub-contractors, as opposed to gang masters in the same situation, would be covered by these provisions. Those directly engaged on individual contracts would be covered by these provisions.

Mr. Joseph Ashton (Bassetlaw)

Would such workers be classed as part of the 51 per cent. eligible to vote because they were working in the factory at the time?

The Solicitor-General

It would depend on the scope of the agreement. If a union had negotiating rights in respect of these workers, and was seeking an agency shop in respect of them, it would be seeking an agency shop in respect of the people covered by the collective agreement. There might be a situation where there was a collective agreement with the union representing only the employees or where the union represented both the employees and the self-employed. If it were that wide, and the union was seeking an agency shop, they would be included in the 51 per cent. It would depend on the representation of the union.

Mr. Orme

Let us take the situation where a firm has a large number of subcontracting engineering draughtsmen. I deplore the extension of this sort of thing, but it happens. Would they come under the agency shop? Would they be eligible to vote? I do not think that the hon. and learned Gentleman has quite explained the point.

The Solicitor-General

It would depend. There is an infinity of variation in this kind of situation. It would depend on the precise pattern. If the union was representing, and was recognised as representing, the self-employed and the employed, and was claiming an agency shop in respect of all of them, it would presumably be claiming it to cover the lot—all those it represented— and they would all be entitled to vote. If the self-employed draughtsmen were, of their own choice, or for some other reason, outside the scope of union representation—if they were deliberately standing apart from the union but were covered by the same agreement—then again the agency shop might extend that far.

The point is that if—as I suspect is in the hon. Gentleman's mind—one is dealing with a situation where there is an underlying recognition conflict, where the union is recognised as representing the employed and the self-employed are standing outside, an agency shop cannot then simply be imposed or extended until the underlying recognition conflict has been resolved. An agency shop or closed shop or union shop could not be set up until it was clear how far the closed shop was to extend. If there is an argument about how far the union's right to represent the workers is to extend, that has to be resolved first. That does not affect the situation where everyone is clear, where the union represents employed and self-employed and merely wants an agency shop to cover all of them.

Mr. Harold Walker (Doncaster)

I would like the hon. and learned Gentleman to clarify several points. Lords Amendment No. 20 begins: In this Part of this Act … As I read that, it means Part II of the Bill, so we are not merely talking about the scope of a particular union. It seems to me that we are talking about all those who may or may not be involved in a ballot in a particular establishment where a union is seeking to establish an agency. That means that we are talking about people who may not be members of that union or of any union. We are talking about people who will be involved in an agency shop situation irrespective of whether they are members of the union making the bid. That raises the question of whether the Amendment is extending the right to participate in a ballot to people who might otherwise have asked to be excluded. My hon. Friends have referred to one or two examples. Another is that of part-time workers, who tend not to be unionised. For example, a large number of young people still at school or college find part-time employment in the distributive trade on Saturday afternoons.

4.45 p.m.

One accepts that the intention is to extend the right to participate in agency shops to people who might otherwise be excluded—people like the Writers' Guild and so on. Perhaps that is the intention, but—and it may be inadvertent—the hon. and learned Gentleman is bringing in, for example, the group which the hon. Lady the Member for Tynemouth (Dame Irene Ward) is so concerned about, the professional engineers who do not necessarily have the same affinity with the principles of trade unionism in a professional organisational capacity as the A.S.T.M.S. does.

The Solicitor-General

The scope of an agency shop agreement depends upon how far the proposing union wishes it to extend. Clause 10(2) deals with the situation where one or more trade unions desire to enter into an agency shop agreement in respect of workers of one or more descriptions. The union can say, "We wish to represent all those who work in this factory". It can say, "We wish to represent all those who work as employees and who do not work as self-employed". It could make its own proposals. As I understand the situation, the union, seeking to extend its representation of the range of people who have to subscribe to it in order to exclude the free rider, would normally propose that everyone who worked in that shop, where it settled the collective bargaining terms, should be parts of it. Imagine that if the union felt that, by not seeking to extend to a great chunk of the self-employed or part-timers who were not enthusiastic non-members, it would normally win the ballot, so to speak, it would not seek so far to extend it. It is up to the union to decide how large an area it is proposing in order to continue or establish an agency shop.

4.45 p.m.

Mr. Walker

I accept the point. It is not what the hon. and learned Gentleman is saying that concerns me, but what he is not saying. After yesterday's debate, we must bear in mind that we are not talking only about particular establishments but about industries. Supposing, for example, that the A.S.T.M.S. went to the Engineering Employers' Federation and said, "We want to enter an agency shop agreement in respect of all people engaged in supervisory or technical capacities in the engineering industry". In considering whether this union could have an agency, would the U.K.A.P.E., which includes amongst its membership a great many people not employed on contracts of employment but on contracts to provide services personally, be entitled to say, "In the reckoning for this, under the provisions not merely of Clause 10 but of the whole of Part II of the Bill, we assert our rights"? That could lead to some difficulty.

I am in something of a tangled web here which is arising from the good intentions of the Government in accepting a legitimate and valid point of view put by their Lordships. I am puzzled as to why Lords Amendment No. 20 is needed. The agency shop, as I see it, deals throughout in terms of worker, not employee. The definition of "worker" is embodied in Clause 158 and caters not only for people engaged in contracts of employment but who are in other categories to provide services personally and so on. In other words, those for whom the Amendment is designed to cater are already provided for in the Bill. I hope that the hon. and learned Gentleman will clarify this matter, as I am in some doubt. I wonder whether the Solicitor-General would have a go at clarifying that for me. I am not trying to be awkward; I am in some doubt.

The Solicitor-General

By leave of the House; I have been trying to avoid seeking leave by intervening in order to answer questions. The hon. Gentleman is right: this is why the matter was raised in another place. The provisions of Clause 10 extend to workers and therefore in themselves cover the kind of people we have been discussing.

But the Bill as drafted did not extend to a union which was representing workers who were not employees, because it gave the right to apply to the industrial court to a union which had negotiating rights, and those rights exist only in respect of employees.

Clause 42 says that negotiating rights are rights on behalf of all or some of the employees. That is the only point of this provision. As the hon. Gentleman has said, workers are already covered.

Mr. Harold Walker

Oh, what a tangled web we weave!

The Solicitor-General

As the hon. Gentleman's noble Friends pointed out in another place, however, in order to give the union the corresponding rights in respect of workers as well as employees, negotiating rights have to be extended in the way covered by the Amendment. I hope that that answers the hon. Gentleman's last question.

The extent of a proposed agency shop agreement depends on the proposal. With the engineers, for example, if the situation now arises in which a union says that professional engineers ought to be required to belong to that union, it is making a bid in respect of them. It would be free under these provisions to make a bid for an agency shop agreement. Therefore, the larger the bid made by the union, the larger the number of people entitled to vote on whether it should be accepted.

An hon. Member earlier mentioned part-time workers. If a union decided whether it wished to extend a proposed agency shop agreement to part-time workers, they, too, would have the right to vote on whether that agreement should exist. The foundation in respect of employees or workers depends on how wide is the bid by the union for an agency shop agreement. These are the mechanics to make sure that workers come within the classification of employees.

Mr. Ashton

The Solicitor-General is saying that the size of the umbrella is determined by the trade union, but the size of the umbrella could lead to dispute with the employer. What happens if the employer says that he should have some say in deciding its size?

In the engineering industry, for example, there has been an amalgamation into one general union of staff and of workers on the shop floor, and D.A.T.A. has joined what was the A.E.F. It could be argued on the eligible-to-vote principle that management and staff employees, many not now in the union, should be eligible to vote simply because they were eligible to join the union. If the amalgamated union said that it wanted the umbrella to cover only shop floor workers, knowing full well that it would then have the vast majority, could not the management say that white collar workers were eligible to join the union and that the umbrella should cover them too? Is the Solicitor-General saying that responsibility for deciding the size of the umbrella rests solely with the union?

The Solicitor-General

May I interrupt? The hon. Gentleman is saying that if the scope of the proposed agency shop covers an underlying recognition dispute, the union might have to include white collar as well as non-white collar workers. The recognition dispute would have to be resolved separately and first. The next Amendments deal with this issue and it may be convenient to discuss the matter then.

Mr. Ashton

I accept that and I reserve my comments until then.

Question put and agreed to.

Subsequent Lords Amendment agreed to.

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