HC Deb 29 July 1971 vol 822 cc949-59

Lords Amendment: No. 41, in page 14, line 24, at the end insert new Clause "B": 'B.—(1) For the purposes of section 16(5)(a) of this Act a worker, notwithstanding that he has not expressly refused to become a member of a trade union with which an approved closed shop agreement was made, shall be treated as having so refused if he does not duly apply for membership of that trade union before the end of the relevant period or if, having applied for such membership, he withdraws that application. (2) For the purposes of section 16(5) of this Act a worker shall be treated as having been excluded from being a member of a trade union if (but only if)—

  1. (a) his application for membership of the trade union has been rejected, or he has been expelled from membership of the trade union, and
  2. (b) the conditions specified in the next following subsection are fulfilled.
(3) The conditions referred to in subsection (2)(b) of this section are that—
  1. (a) under the rules of the trade union the worker has a right of appeal against his rejection or expulsion, and
  2. (b) his appeal has been heard and dismissed or has been withdrawn or the time for appealing has expired without his having exercised that right.
 (4) Subject to the next following subsection, in this section "the relevant period" in the case of an approved closed shop agreement—
  1. (a) in relation to a person who, on the date on which the agreement takes effect, is a worker to whom the agreement applies, means the period of three months from that date, and
  2. (b) in relation to any other person, means the period of one month from the date on which he begins to be employed as a worker to whom the agreement applies.
 (5) The Secretary of State may by order made by statutory instrument provide that, in so far as any approved closed shop agreement relates to workers engaged, or seeking to be engaged, in work of a description specified in the order, subsection (4) of this section shall have effect as if, for the references to three months and one month, there were substituted references to such shorter periods as are specified in the order.

The Solicitor-General

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

The Amendment was foreshadowed by me in what I said to the House a moment or two ago. It is connected with the Amendments that the House has just considered—Nos. 36 to 39—and is the last of a group moved in response to points made on Report by my right hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) and my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke). Just to complete the story of what happens in the approved closed shop, as I have explained, the employer is entitled either not to engage or to dismiss certain workers who do not comply with the conditions laid down in the approved closed shop situation. In particular, the employer is entitled to dismiss or not to engage the man who has been excluded from a union.

The Amendment dealing with the new Clause B, to be added after Clause 16, sets out in substance the meaning of being excluded from a union. It has the effect that if a person applies for membership of a union and is excluded from it either on seeking to join or by subsequent expulsion, he is not to be treated as excluded by the employer unless and until the appeal procedure of the union has been gone through.

I want to explain the structure of the Clause in a little more detail. The first subsection provides that a worker who fails to apply, or does not pursue his application, or withdraws his application, for membership of a union which has a closed shop agreement made in its favour, within the period that he has to do so, is to be regarded as somebody who has refused to join, and the employer is entitled either not to take him on or to dismiss him. The union, having got an approved closed shop agreement, is entitled to see that the employer either does not take him on or dismisses him.

I mentioned the period of grace that the man has. Under subsection (5), in the ordinary way a worker who is already employed in the approved closed shop has a period of three months in which to join the union, and a new worker coming in has a period of one month in which to join. That period can be shortened if the industry is such that a shorter period is required. Rather, as with the agency shop agreement, in other words, the Secretary of State may shorten the period of three months in the case of an existing worker and of one month in the case of someone seeking to be engaged! So this is the first case—the man who does not even try to join or who, because he does not follow up his application to join, becomes liable to dismissal by the employer or need not be taken on by the employer.

11.30 p.m.

Moving to the next stage, if he applies for membership and is pursuing his application for membership, he cannot be regarded as excluded and cannot be regarded as somebody whom the employer is entitled to dismiss or not to engage until either the application for membership has been rejected or, if he is an existing worker, he has been expelled from the union and he has exercised his right to appeal and the appeal has been dismissed or he has not attempted to appeal. He remains entitled to protection and remains entitled not to be dismissed until his appeal against expulsion or his appeal against non-admission has been disposed of by the union.

Mr. Orme

Is his appeal to the union or to the Industrial Court? If his application to the union is refused, as he has never been a member of the union he has no right to appeal to the union.

The Solicitor-General

It depends. There are a variety of situations, as the hon. Gentleman knows as well as anybody. [Interruption.] My assertion did not justify the anxious grunt that it provoked from the hon. Gentleman. [HON. MEMBERS: "Oh."] The hon. Gentleman grunts as eloquently as anybody in the House. [HON. MEMBERS: "Answer the question."] I will do so if I am given the opportunity. In certain unions a person who applies for membership has a right to appeal from a rejection. It is not true of all unions, but in the case of some unions if an application for membership is refused the man is entitled to appeal against his initial rejection.

Similarly, in certain unions—indeed, in most unions, if not all—a member who is expelled is entitled to appeal against expulsion. The limit of his right to remain on is until he has exercised and exhausted his right of appeal under the union's procedure. It does not entitle him to stay on after that if he wishes to challenge the way in which the union has dealt with him. In other words, it would have been possible to include a provision which said, "The worker who is employed in a closed shop situation and who is expelled from the union is entitled, not merely to remain on in the job until his internal union appeal has been exhausted, but also to stay on until he has challenged the union appeal procedure by going on thereafter to the industrial tribunal or the Industrial Court." That is not what the Clause says. I hope that that answers the hon. Gentleman's point. In other words, the worker stays on until the internal procedure has been exhausted but not beyond that. If he wishes thereafter to challenge the union's procedure as being unfair in having dismissed his appeal, he would have to challenge it from outside by going to the Industrial Court.

Mr. Orme

I follow that argument, particularly as applied to someone who has been a member of a union and has been expelled. In my union if an applicant for membership is refused admission he has no right to appeal. Other union members can raise the point that they have proposed and seconded his admission, but he has been rejected, but the applicant himself is not a union member because he has been rejected.

The Solicitor-General

That would not come within these provisions. The hon. Gentleman's union is not the only one. Other unions have provisions for appeal aganst non-admission. I think I am right in saying that one or other of the cinema industry unions, either A.C.T.T. or N.A.T.K.E.—I think A.C.T.T.—has appeal procedure of that kind. In that situation the non-member who is trying to become a member has that kind of appeal. It is this compromise provision which we have adopted.

My right hon. Friend the Member for Kingston-upon-Thames argued that we should entitle the worker to remain on not merely until internal procedures had been exhausted but until the appeals from the external procedure—the court or registrar—had also been gone through, but this provision does not go as far as that.

Mr. John Golding (Newcastle-under-Lyme)

Does the word "dismissal" here include suspension from duty?

The Solicitor-General

The word "dismissal" does not include suspension from duty, but the other thing which the employer may not do until he can show the worker comes within this provision is to discriminate against him; so the employer would be disentitled to discriminate against the worker on these grounds as well.

The hon. Gentleman may have in mind the possibility of the employer suspending from duty on full pay while the matter is gone through. I do not think that would amount to a discrimination. So the position could be put in cold storage until the appeal procedure had been gone through. This is what would happen under many existing procedures now. Where the closed shop exists, the union expels and asks the employer thereupon to follow up the expulsion by dismissal. Both sides frequently accept that until the union's appeal procedure has been exhausted the man should remain suspended on full pay. That would not amount to dismissal, nor to discrimination as between him and somebody else.

Granted the concept of a closed shop, and granted that it is operating within this area where it is approved, I suggest to the House that the Amendment is a coherent and reasonable response to the points put in another place and argued in this House on Report, and that it is a sensible provision to link to the Amendments which the House has just considered.

Mr. Heffer

The hon. and learned Gentleman, in explaining what is basically a new Clause, puts forward a case which on the surface appears to be a genuine concession to some parts of the trade union movement. It seems to meet the points made by hon. Members. It may meet the case of some of his hon. Friends, but the trade union movement is not satisfied that this is a serious concession.

The hon. and learned Gentleman gave the clue when he pointed out that under subsection (4), if agreement is reached while the worker is employed he is given three months to join, and after an agreement has come into operation he is given one month to join.

The Solicitor-General

The two positions are these. If the man is already employed at a plant and an agreement comes into operation for the first time, three months. If it is there when he arrives, one month.

Mr. Heffer

I do not know whether I have made myself clear, but that is exactly what I said. That is my interpretation. What the hon. and learned Gentleman can say—and no doubt this will be his great justification—is that, under the new subsection (5), the Secretary of State can decide, in certain special circumstances, that the period should be shorter than three months or one month. To some extent, we had this discussion earlier today, when we asked what was the thinking of the Government about the period that might be suggested when the Secretary of State took such a decision and brought in the appropriate order. We were told that it was not possible at this stage to say what the situation would be.

Let us examine this great concession, and the industries to which the provision could well apply; indeed, it was brought in precisely because of the conditions in such sectors as acting, television and sea going. Unless there is a pre-entry closed shop in them, even with this provision it will be almost impossible to catch up with certain people. The situation will be quite fantastic. In the case of seamen in particular, a three-months period would be ridiculous; even one month would be no use. With some short sea journeys, a seaman could flit from one company to another. Earlier, I gave the example of a musician, perhaps a trombone player who does a couple of night stands somewhere and then moves on. In such a case, one cannot even begin to talk in terms of one week even, because this type of worker moves so quickly from one job to another.

This really is no concession at all. Some hon. Members opposite got slightly excited when the basic principle to which they had firmly nailed their colours was, they thought, being eroded under immense pressure from certain sections of the trade union movement and from the Opposition. The have no need to worry. Their fears need not lead to sleepness nights. The Government have clearly stated once again that their basic principle remains: they are against the closed shop, including the pre-entry closed shop. Although they say they are in favour of what they call an approved closed shop, it is so hedged about that it means virtually nothing.

I come now to the question of the worker who may be expelled or, having made application, excluded from the union. The Solicitor-General is right in saying—we have said it often enough— that each union has its own rules. The unions are not the same; they do not have a pattern which applies to every industry.

11.45 p.m.

Earlier, my hon. Friend the Member for Salford, West (Mr. Orme) indicated what happens in his union. Perhaps I might tell the right hon. Gentleman what happens in my own, because it underlines how democratic we are. In the Amalgamated Society of Woodworkers, if an applicant for membership is refused admission by a branch, the chairman is bound by the rules to inform the applicant how he can appeal to the national executive committee against the decision of the branch. Often, such an appeal is upheld by the national executive, and the branch concerned is forced to accept the applicant.

The trade union movement has its own appeals machinery, as we pointed out when we discussed the idea of having to go to an industrial court. The British trade union movement is an extremely democratic body. There are variations of the democratic theme, but anyone can take advantage of the appeals machinery if he feels that he has been wronged by his branch.

The Secretary of State made the Government's position clear earlier when he said that, in principle, they are opposed to the compulsory closed shop, though they recognise that in some circumstances there might be some justification for the approved closed shop. However, the view of this side of the House, and, incidentally, that of our friends in the other place, is that this is a phoney closed shop and really is no closed shop at all.

This proposal was opposed in the other place. When we come finally to decide this Amendment, my hon. Friends will make clear their opposition to it in the Division Lobby.

Mr. Sydney Bidwell (Southall)

As my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) said, this is a phoney Amendment. However, I do not believe that it is deliberately so. I think that it is accidental and symptomatic of the way in which the Government have presented the Bill and moved their Amendments.

I am reminded of the story of the Dutch boy who pushed his finger into a hole in a dyke when he saw water coming through it, only to find other holes appearing. The Solicitor-General is playing a similar rôle, trying to stem the flood through the many breaches in the Bill. The hon. and learned Gentleman is getting very near the position of the boy who stood on the burning deck. One cannot help feeling that if there was time he would like to begin all over again and move further Amendments to stop up the many other holes that my hon. Friends have discovered.

My hon. Friend the Member for New-castle-under-Lyme (Mr. Golding), who has great experience as a trade union official, has pointed out an obvious flaw in drawing attention to the relationship between suspension and not obvious dismissal. Clearly, the hon. and learned Gentleman had not thought of that at all. If the Lords were to sit until next Christmas, I doubt whether he could come back with an Amendment to cover that position.

My hon. Friend the Member for Sal-ford, West (Mr. Orme), who has great engineering union experience, has pointed out that there is a great variation. His own union has certain practices, as have the building workers union and the railway workers, from whom I came before my trade union education, after which I got certain experience of union practices in the British trade union movement.

We are told that this addendum, if it can be called that, or this addition, "After Clause 16", is to improve the earlier words. But it does not. It confuses; it confounds confusion.

It reminds me of the contribution last night of one of my hon. Friends who is a sponsored Member of the Transport and General Workers Union. He said that it was an absolute impossibility for ordinary workers, their representatives, and even middle and top trade union officials to sit down and interpret this kind of twaddle as it affects industrial relations. It will simply upset the workers if they try to do so.

I said earlier that it was not the thoughts of Chairman Mao, but the thoughts of Geoffrey Howe. After this addition to Clause 16, we shall have to have a few more pages attached to that little book. I do not know whether it is a little red book. [An HON. MEMBER: "It is a blue book."] Every worker will sit by his machine, and, instead of working his machine, he will have to think how to interpret "After Clause 16" in relation to the closed shop. It is not worth the candle.

This addition is geared to previous contributions by the Secretary of State on previous Lords Amendments relating to Clause 16. It is an attempted logical follow on. The question of paying to a charity is laughable. It is an oddity in industry; it is not the rule. The whole box of tricks will completely upset the workers.

On the pre-entry closed shop, possibly the only advanced pre-entry closed shop system is the one affecting the print workers. I do not know what will happen there. Probably we shall not have any national newspapers in consequence. They have a labour supply situation confronting them. Their voice has been missing on the follow on to Clause 16 and all that goes with it. I do not think they have a sponsored Member here. At any rate, I have not heard the voice of that union with its great experience of the closed shop.

Right hon. and hon. Gentleman opposite have been completely contradictory. They turned their faces against any concept of a closed shop, but they have had to bend a little by the force of the discussion, and now they come back with this virtually idiotic "After Clause 16" which heavily protects because of the time element, the month and three months provision in Clause 5.

I hope that it is the intention of my right hon. and hon. Friends to reject this "After Clause 16" from the other place. It simply confuses a grossly confused situation. It adds to the general totatility of the complete irrelevance of this part of the Bill, and the rest of it, to Britain's necessity to keep industry going, to stay in the export market, and so on, and to bring about the co-operation which we so desperately need. I believe that, in the end, this kind of stuff will destroy all that.

Mr. Loughlin

I thought that the Solicitor-General explained the Amendment and its implications very well. I understood the Amendment as a result of his explanation. He spoke in particular about the periods of grace for the two categories of people involved —three months' grace for the person who is in employment, and one months' grace for the newcomer.

My hon. Friend the Member for Liverpool, Walton (Mr. Heffer) spoke about industries in which the three months' grace, even for those who were in the industry at the time of the coming into operation of this provision, would not be appropriate. On hearing my hon. Friend my mind went immediately to the fishing industry as a classic example of what might happen.

My hon. Friend the Member for Kingston upon Hull, East (Mr. Prescott) referred to the shipping industry. I think that the fishing industry provides a good illustration of the futility of the three months' grace if some people want to avoid their obligations. There are three sections in the industry. There are the inshore men, who go out with the tide and come back with the returning tide, or possibly go out one day and return the next. Then there are the middle-water men, who are often away for a week. The third section, which is the one most affected by this provision, is the deep-sea element.

In the deep-sea fishing industry, each man is engaged for one trip. He may be employed by a line operating a closed shop. If he goes to Iceland, or the Barents Sea, he may be away for 21 days, and one can think of the opportunities which the dodger will have to defeat this provision. It will not be possible to apply this part of the Bill to the deep-sea fishing industry without the Secretary of State using his powers under subsection (5).

That subsection says:

The Secretary of State may by order made by statutory instrument provide … shorter periods. … When one examines all the industries in the country, one realises that there is a distinct possibility that if the Secretary of State were called upon to exercise his powers under that subsection he would constantly have to introduce Statutory Instruments relating to single industries.

But conditions in industry could change, with the result that the Secretary of State could repeatedly have to come to the House to introduce Statutory Instruments, not merely in relation to particular industries—

It being Twelve o'clock, the debate stood adjourned, pursuant to the Orders [25th January and 28th July].

Debate to be resumed upon Monday next.