HC Deb 22 March 1974 vol 870 cc1486-91

Introductory 1. It is proposed to repeal the whole of the Industrial Relations Act 1971, with the exception of the unfair dismissal provisions which would in effect be retained with improvements.

Trade Unions and Employers' Associations 2. The definition of trade union would differ from the previous definition in the Trade Union Acts, 1871 to 1913, in excluding employers' associations and including the trade union sides of Joint Negotiating Committees and the TUC itself. Employers' associations would be separately defined. 3. There would be no system of registration, but trade unions and employers' associations would be able to apply to the Registrar of Friendly Societies (RFS) for a certificate as to their status. All trade unions which were registered under the pre-1971 legislation, together with those who obtain a certificate from the RFS, would be entitled to tax relief on provident income. 4. The Bill would provide that the rules and purposes of trade unions and employers' associations should not be unlawful by reason only that they are in restraint of trade; and the legal protection given by Sections 2 and 3 of the Trade Union Act 1871, and subsequently by Section 135 of the 1971 Act, would be continued on that basis. 5. Trade unions and employers' associations would be unincorporated bodies with power to sue and be sued in their own names. 6. It is proposed that unions should be empowered to unscramble' funds which have been accorded protected status in order to preclude their use as compensation under the 1971 Act despite provisions to the contrary in their rules. 7. All trade unions and employers' associations, whether certified or not, would be required to keep proper accounts, to send to the RFS an annual return and accounts, and to make copies of their rules available to any Nrson on request. It would be an offence not to comply with the provisions. 8. The functions under the Trade Union Act 1913 in regard to trade union political funds and under the Trade Union (Amalgamations etc.) Act 1964, at present exercised by the Registrar of Trade Unions and Employers' Associations, would revert to the RFS. 9. The functions allocated in this part of the Bill to the RFS would be taken over either by the Conciliation and Arbitration Service (CAS) when the latter is set up as a statutory body, or by some other body.

Restrictions on Legal Proceedings and Collective Labour Relations 10. These provisions would restore the pre-1971 legal immunities for trade unions and individuals acting in contemplation or furtherance of a trade dispute, and extend them in certain respects. 11. The proposals are as follows:

  1. (a) The definition of trade dispute in Section 5(3) of the Trade Disputes Act 1906 (which was repealed by the 1971 Act) would be revived and modernised in the light of recent case law. Disputes over union recognition would now be covered by the definition, as would be disputes outside Great Britain.
  2. (b) Protection against action for civil conspiracy would be given to persons combining together to further their legitimate ends in a trade dispute. This provision would be substantially the same as Section 1 of the Trade Disputes Act 1906.
  3. (c) The immunity which existed before 1971 for persons inducing breaches of contracts of employment in contemplation of furtherance of a trade dispute would be restored and extended to interference with all types of contract (including commercial contracts). The protection given by the Trade Disputes Act, 1965 in relation to threats to induce a breach of contract would be restored and extended on the same basis.
  4. (d) The prohibition of actions for tort against trade unions which existed before 1971 would be restored and extended to torts threatened or apprehended in the future.
  5. (e) The provision in Section 128(1) of the 1971 Act prohibiting any court from ordering someone to work would be re-enacted.
  6. (f) The Bill would provide that no injunction should be granted ex pane in a trade dispute unless all reasonable steps have been taken to notify the person or organisation against whom the injunction is sought and an opportunity given to them to make representations.
12. The Bill would provide that collective agreements should be presumed to be intended to be legally enforceable only if they are in writing and contain a provision to that effect. Disputes procedures are not to be part of the individual contract of employment unless this is expressly stipulated in the relevant collective agreement.

Picketing* 13. The right of peaceful picketing would be restored as in the Trade Disputes Act 1906 (but so as to exclude the picketing of homes); and in view of the interpretation of the existing law by the House of Lords in the case of Broome v. DPP, it is considered that this should include a right for pickets to communicate with the occupants of vehicles so as peacefully to persuade them to work or to abstain from working; there would be a power to make regulations governing the manner and circumstances in which these rights could be exercised, these being subject to affirmative resolution procedure.

Unfair Dismissal 14. It is proposed to continue the unfair dismissal provisions of the Industrial Relations Act with certain improvements. 15. The principal provisions to be retained are Sections 22–32 of the 1971 Act. The main changes in these provisions would be as follows:

  1. (a) Section 23 would be amended to make it clear that constructive dismissal (i.e. where the employee is justified in terminating his contract because of the conduct of the employer) can provide grounds for a complaint of unfair dismissal.
  2. (b) Sections 24(4) and (5), 26(3) and 29(1) would be repealed and replaced by a new provision which would make the following automatically unfair: —
    1. (i) dismissal of an employee for belonging to, or taking part in the activities of, an independent trade union;
    2. (ii) dismissal of an employee for refusing to belong to a union that was not independent.
    It would, however, be fair to dismiss an employee for refusing to belong to an independent union where there is an agreement or arrangement whereby the employer is entitled to insist that all employees belong to that union. Consideration is being given to providing, either in this Bill or a later one, safeguards against arbitrary exclusion or expulsion from union membership.
  3. (c) It would be provided that an independent trade union is one not subject to interference by any employer either by way of financial or other material support with the object of affecting its functions or administration, or by way of actual domination or control.
  4. (d) Section 28 would be amended to provide that those employed for at least 52 weeks (at present 104 weeks) could lodge complaints about unfair dismissal.
  5. (e) The exemption procedure for voluntary agreements contained in Sections 31 and 32 would continue but applications would be made to the Secretary of State instead of to the NIRC.
16. In addition:
  1. (a) The present basis for awarding compensation would be retained but the upper limit of £4,160 in Section 118 of the 1971 Act would be raised to take account of the fall in the value of money.
  2. (b) The time limit laid down in Schedule 6 within which complaints have to be made would be extended from 28 days to 6 months.
 17. A more radical revision of the present unfair dismissal provisions would be undertaken in later legislation. 18. A number of supporting provisions in the 1971 Act would need to be retained in whole or in part, in some cases with amendments. They include the following: 19. Steps will be taken, in consultation with the TUC, to increase substantially the number of trade unionists serving on the industrial tribunals. This is not, however, a matter which needs to be dealt with in the Bill itself. 20. With the abolition of the National Industrial Relations Court (NIRC) appeals on points of law from the decisions of industrial tribunals on unfair dismissals and redundancy payments would revert temporarily to the High Court or the Court of Session. There would be provision for the Court to be assisted by assessors with industrial experience. It is intended in later legislation to set up a new appellate body with a legal chairman and lay members from both sides of industry.

Miscellaneous and Supplementary

Incorporated bodies 21. The status of registered trade unions and employers' associations which were incorporated under the 1971 Act would be assimilated to that of all other trade unions and employees' associations and they would become unincorporated associations.

Terms and Conditions of Employment Act 1959 22. Section 8 of the Act would be re-amended so as to enable all trade unions, as defined in the Bill, to bring claims under the Act. Claims would continue to be possible in respect of workers whose remuneration or minimum remuneration is fixed under the Wages Councils Act 1959.

Transitional provisions 23. These would deal with unfinished business arising from sections of the 1971 Act which are to be repealed.

  1. (a) Provision would be made for cases not yet being heard by the NIRC when the Repeal Bill comes into force to be dealt with by the High Court or the Court of Session.
  2. (b) The Bill would provide that no further cases arising from provisions which are to be repealed could be brought after the repeal takes effect; even though the matters complained of related to the period when the provisions were in force.
  3. (c) As regards unfinished cases referred to the Commission on Industrial Relations (CIR) by the NIRC the CIR would be required to report to the Secretary of State instead of to the Court.
  4. (d) Complaints about breaches of the guiding principles or of union rules which are being dealt with by the Registrar when the Repeal Bill comes into force would be transferred to an industrial tribunal.

Commencement 24. A commencement order would be made as soon as possible after the Royal Assent effectively repealing most of the provisions of the 1971 Act. 25. Apart from unfinished cases mentioned in paragraph 23(c), those functions of the CIR which derive from proceedings before the NIRC would be removed by that commencement order. It is envisaged that the Commission's function of promoting good industrial relations, which dates from its establishment in 1969 as a Royal Commission, will be taken over by the CAS as soon as possible. Meanwhile the provisions of the 1971 Act which establish the CIR as a statutory body (mainly Sections 120–123 and parts of Schedule 3) may need to be retained until sufficient progress has been made with the setting up of the CAS. 26. The functions of the Industrial Arbitration Board would also be taken over later by the CAS so that the bringing into effect of the repeal of Section 124 of the 1971 Act (which gives the Board its present name) should similarly be timed in relation to the establishment of the CAS as a statutory body. * In the coal dispute of 1972, in certain areas guidelines for picketing were agreed between the police authority and the union, and in these areas no difficulty arose. In the 1974 strike, such agreements were extended more widely. The fact that very few incidents occurred in the 1974 strike was largely due to the fact that the NUM laid down strict rules ensuring that the number of pickets in any local situation was not to exceed six, that the six were to be nominated by a branch or lodge official, and identified by an armband or other badge, and, further, that all the six were to be members of the lodge or branch concerned. Thus, when potentially disruptive elements from outside the industry offered their services, they were rejected and dismissed from the scene.