HC Deb 29 March 2004 vol 419 cc1315-35

  1. Paragraph 26 of Schedule A1 to the 1992 Act (duties of employer informed of requirement to arrange ballot on recognition etc) is amended in accordance with subsections (2) to (4).
  2. In sub-paragraph (1) for "three" substitute "five".
  3. After sub-paragraph (4) insert—

  1. "(4ZA) The fourth duty is to refrain from making any offer to any or all of the workers constituting the bargaining unit which—
    1. has or is likely to have the effect of inducing any or all of them not to attend any relevant meeting between the union (or unions) and the workers constituting the bargaining unit, and
    2. is not reasonable in the circumstances.
  2. (4ZB) The fifth duty is to refrain from taking or threatening to take any action against a worker solely or mainly on the grounds that he—
    1. attended or took part in any relevant meeting between the union (or unions) and the workers constituting the bargaining unit, or
    2. indicated his intention to attend or take part in such a meeting.
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  3. (4ZC) A meeting is a relevant meeting in relation to a worker for the purposes of sub-paragraph (4ZA) and (4ZB) if—
    1. it is organised in accordance with any agreement reached concerning the second duty or as a result of a step ordered to be taken under paragraph 27 to remedy a failure to comply with that duty, and
    2. it is one which the employer is, by such an agreement or order as is mentioned in paragraph (a), required to permit the worker to attend.
  4. (4ZD) Without prejudice to the generality of the second duty imposed by this paragraph, an employer is to be taken to have failed to comply with that duty if—
    1. he refuses a request for a meeting between the union (or unions) and any or all of the workers constituting the bargaining unit to be held in the absence of the employer or any representative of his (other than one who has been invited to attend the meeting) and it is not reasonable in the circumstances for him to do so,
    2. he or a representative of his attends such a meeting without having been invited to do so,
    3. he seeks to record or otherwise be informed of the proceedings at any such meeting and it is not reasonable in the circumstances for him to do so, or
    4. he refuses to give an undertaking that he will not seek to record or otherwise be informed of the proceedings at any such meeting unless it is reasonable in the circumstances for him to do either of those things.
  5. (4ZE) The fourth and fifth duties do not confer any rights on a worker; but that does not affect any other right which a worker may have."

  1. For sub-paragraph (8) substitute—

"(8) Each of the powers specified in sub-paragraph (9) shall be taken to include power to issue Codes of Practice—

  1. about reasonable access for the purposes of subparagraph (3), and
  2. about the fourth duty imposed by this paragraph.

The powers are—

  1. the power of ACAS under section 199(1);
  2. the power of the Secretary of State under section 203(1)(a)."
  1. In paragraph 27(1) of that Schedule (remedial order in case of employer's failure to comply with duties under paragraph 26) for "three duties imposed" substitute "duties imposed on him".
  2. Paragraph 118 of that Schedule (duties of employer informed of requirement to arrange ballot on derecognition etc) is amended in accordance with subsections (6) to (8).
  3. In sub-paragraph (1) for "three" substitute "five".
  4. After sub-paragraph (4) insert—
  1. "(4A) The fourth duty is to refrain from making any offer to any or all of the workers constituting the bargaining unit which—
    1. has or is likely to have the effect of inducing any or all of them not to attend any relevant meeting between the union (or unions) and the workers constituting the bargaining unit, and
    2. is not reasonable in the circumstances.
    1317
  2. (4B) The fifth duty is to refrain from taking or threatening to take any action against a worker solely or mainly on the grounds that he—
    1. attended or took part in any relevant meeting between the union (or unions) and the workers constituting the bargaining unit, or
    2. indicated his intention to attend or take part in such a meeting.
  3. (4C) A meeting is a relevant meeting in relation to a worker for the purposes of sub-paragraph (4A) and (4B) if—
    1. it is organised in accordance with any agreement reached concerning the second duty or as a result of a step ordered to be taken under paragraph 119 to remedy a failure to comply with that duty, and
    2. it is one which the employer is, by such an agreement or order as is mentioned in paragraph (a), required to permit the worker to attend.
  4. (4D) Without prejudice to the generality of the second duty imposed by this paragraph, an employer is to be taken to have failed to comply with that duty if—
    1. he refuses a request for a meeting between the union (or unions) and any or all of the workers constituting the bargaining unit to be held in the absence of the employer or any representative of his (other than one who has been invited to attend the meeting) and it is not reasonable in the circumstances for him to do so,
    2. he or a representative of his attends such a meeting without having been invited to do so,
    3. he seeks to record or otherwise be informed of the proceedings at any such meeting and it is not reasonable in the circumstances for him to do so, or
    4. he refuses to give an undertaking that he will not seek to record or otherwise be informed of the proceedings at any such meeting unless it is reasonable in the circumstances for him to do either of those things.
  5. (4E) The fourth and fifth duties do not confer any rights on a worker; but that does not affect any other right which a worker may have."
  1. For sub-paragraph (8) substitute—

"(8) Each of the powers specified in sub-paragraph (9) shall be taken to include power to issue Codes of Practice—

  1. about reasonable access for the purposes of subparagraph (3), and
  2. about the fourth duty imposed by this paragraph.

(9)The powers are—

  1. the power of ACAS under section 199(1);
  2. the power of the Secretary of State under section 203(1)(a)."
  1. In paragraph 119(1) of that Schedule (remedial order in case of employer's failure to comply with duties under paragraph 118) for "three duties imposed" substitute "duties imposed on him".'.—[Mr. Sutcliffe.]

Brought up, and read the First time.

Mr. Sutcliffe

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this it will be convenient to discuss the following:

Government new clause 6—Unfair practices in relation to recognition ballots.

Government new clause 7—Unfair practices in relation to derecognition ballots. Government new clause 8—Unfair practices: power to make provision about periods before notice of ballot.

New clause 2—Intimidation— 'After paragraph 51 of Schedule A 1 to the 1992 Act insert— Intimidation 51A If during the union recognition procedure a union uses undue force or intimidating measures to get recognition then the CAC shall have the right to investigate this at the request of the employer or any worker and if such measures are found to have been used the CAC shall terminate the recognition procedure immediately.".'.

Government amendments Nos. 4 to 6.

Mr. Sutcliffe

The intimidation of workers during recognition and derecognition ballots has been repeatedly raised with the Government, both during the review of the Employment Relations Act 1999 and during the consideration of this Bill. Both unions and employers have brought to my attention cases of alleged intimidation and have called on the Government to act to prevent such behaviour.

At the last sitting of the Standing Committee, I gave notice of our intention to move these amendments on Report. This is undoubtedly a difficult aspect, and many issues had to be considered before we could table the amendments. It has inevitably taken some time to complete the process, which explains why we could not table them sooner.

Mr. Djanogly

In response to my question about this matter in Committee—I think that it was on 2 March—the Minister said that he would table a new clause shortly, so can he explain why we did not see it until late last week?

Mr. Sutcliffe

I have tried to outline the difficulties involved and I hope that when the hon. Gentleman has heard what I have to say he will accept the reasons.

The word "intimidation" covers a wide range of possible conduct, and new clauses 5, 6 and 7 deal with the main behaviours that cause offence, at the time when most intimidation is likely to occur—namely, during the period of a recognition or derecognition ballot. New clause 8 allows us to deal with behaviour at other stages of the recognition or derecognition process should that be thought necessary.

Our objective, however, is not to stifle all campaigning activity. It is important that the workers concerned should hear from both the union and the employer in order to reach an informed decision on the important issue of recognition. However, that campaigning activity should be fair, and parties should not use underhand methods to influence the voting behaviours of the relevant work force.

New clause 5 and amendment No. 4, which is consequential to it, deal with intimidatory behaviour by the employer at, or concerning, access meetings between the union and workers in the bargaining unit during the ballot period. Those are meetings held to enable the employer to satisfy the duty imposed upon him to allow the union reasonable access to workers in the bargaining unit.

When an employer is informed by the Central Arbitration Committee that a ballot is to be held, he must comply with three duties, which are set out in paragraph 26 of schedule A1 to the 1992 Act, inserted by the 1999 Act. The first is to co-operate generally with the union and the qualified independent person appointed to conduct the ballot; the third is to give the CAC the names and home addresses of the workers in the bargaining unit, so that ballot papers can be sent to them; and the second is to give the union reasonable access to the workers in the bargaining unit, so that the union can inform the workers of the purpose of the ballot and seek their support and their views on the issues involved.

New clause 5 deals with the potential for problems to arise when such access is granted. Unions have alleged that employers have sought to interfere with access meetings: for example, I have received complaints that employers have offered higher rates of overtime to workers to stay at their posts rather than attend an access meeting, or an employer may give workers the option of going home early when such a meeting is scheduled. There have also been complaints that employers have monitored who attended and who said what at access meetings. It is not for me to assess the accuracy of those allegations, and I do not want to be drawn into specific cases.

Mr. Djanogly

Is the Minister honestly saying that if an employer allows an employee, of his own free will, to go home, that will be a breach of the legislation?

Mr. Sutcliffe

The key element is the employer's purpose—the reason the individual was allowed to go home. If the hon. Gentleman allows me to continue, he will hear our reasons, and I am sure that he will fully support our aims.

There is evidence that plainly shows that there is the potential for the sort of problem that I have described to arise. It has always been the Government's intention that access meetings should be private between the union and the workers in the bargaining unit, unless the employer or his representatives are invited to attend by the union. Likewise, at the time of the 1999 Act, we envisaged union access being free from the sorts of interference that I have just described. The statutory code of practice on access to workers during recognition and derecognition ballots, which we produced at that time, clearly sets that out, but the code merely provides guidance, which parties might take into account and which the CAC might consider when determining whether an employer has failed to allow access in accordance with the duty imposed on him. The code does not have the force of law and, in the light of experience, we feel that we need to provide explicit statutory provisions on those points.

New clause 5 inserts into paragraph 26 of the recognition schedule new provisions that make it plain that interference with union access arrangements is not permissible. The clause places on employers during the ballot period two new obligations in addition to the three existing duties. They appear in the clause as the fourth and fifth duties. The fourth duty, set out in new sub-paragraph (4ZA) of the recognition schedule, is to refrain from making offers to workers to induce them not to attend a union access meeting. We recognise, however, that there might be circumstances in which it might be reasonable for employers to make such offers; the clause therefore allows for such exceptional circumstances at new sub-paragraph (4ZA)(b). For example, if the employer wanted to send workers on a training course that was important for their career development, or if it was essential to maintain a minimum staffing of machinery during access meetings, it might well be reasonable to make offers to the workers in question to attend training or monitor the machinery. The CAC would examine all the circumstances of the case and decide whether such behaviour was reasonable. We intend to issue a new code of practice that will give more detailed guidance on these matters, which the CAC must take into account. We will, of course, consult on the code in draft.

The fifth duty is not to take action or make threats against workers for attending a union access meeting or for indicating that they plan to attend a meeting. Again, we have built in some necessary flexibility for employers by ensuring that action that was primarily taken for other reasons would not constitute a breach of the fifth duty. That would enable the employer to take action against a worker for their unacceptable behaviour—damaging the employer's property, for example—when attending a meeting.

The new clause inserts a new sub-paragraph (4ZD) into the recognition schedule to ensure some privacy for access meetings. This makes it clear that an employer is in breach of his duty to provide reasonable access if he or his representative attends a meeting without being invited. It also makes it clear that the employer is in breach if he seeks to monitor what goes on at a meeting. Again, the provisions contain some necessary flexibility to provide for cases in which such attendance or monitoring is reasonable. Let me give an example of what might constitute reasonable behaviour in these circumstances. In some workplaces, it might be impossible, or even dangerous, to switch off security cameras in the room where an access meeting is held; so, if the union was prepared to hold the meeting in such a room, it might indeed be reasonable for the event to be filmed. Subsections (6) to (10) of new clause 5 impose the same duties in respect of derecognition ballots.

The sanction for a failure to comply with either of the new duties is the same as the existing sanction for a failure to provide reasonable access. The CAC may order the employer to remedy the failure by taking whatever steps it considers appropriate. If the employer does not comply with that order, the CAC may award the union automatic recognition.

Amendment No. 4 makes a consequential change to clause 5. Access allows the workers to get both sides of the picture, so that they can make a well informed decision when they come to cast their vote. Any attempt to undermine that access is unjustifiable. The majority of employers who go through the recognition procedure already observe the duties. The amendments will make it clear beyond doubt to the minority that certain behaviour is unreasonable in those circumstances.

New clauses 6 and 7 and amendments Nos. 5 and 6 are closely linked and deal with standards of conduct during recognition and derecognition ballots. I have received complaints and evidence from both unions and employers about conduct that they believe is intended to frighten and intimidate workers into voting a particular way in the ballot. For example, I have received allegations of employers dismissing a union activist to undermine the union's campaign and to intimidate other workers; of union representatives making threatening visits to workers at their homes; of employers threatening reprisals such as the withdrawal of certain benefits if workers vote for recognition; and of both employers and unions making statements that grossly misrepresent, denigrate or even libel the other party. According to research for the TUC, US-style union-busting tactics are rare in this country; none the less, I am sure that intimidation can and does occur. I am concerned to make sure that it does not increase and to send a message that such behaviour is reprehensible and will not be tolerated.

Our policy is based on a number of general principles. First, and importantly, the provisions are double-edged—they apply to both the employer and the union. As I have said, I have received representations from all sides of the debate. I note that the hon. Member for North-West Norfolk also believes that this is an important issue. I believe that it is only right and fair that the same standards of behaviour apply to both parties. Secondly, in identifying these practices, we have in part drawn upon rules of conduct for public general and local elections set out in the Representation of the People Act 1983. The unfair practices set out in new clause 6 are a reflection of conduct that is prohibited under that Act. I think the House will agree that the standards that apply in the elections that return us as Members of Parliament are an excellent starting point when setting standards of behaviour for democratic ballots in other settings.

New clause 6 deals with recognition ballots. It introduces a duty on both employers and unions to refrain from engaging in unfair practices during the ballot period. A party will have committed an unfair practice if, with the purpose of influencing the ballot, it does any of the things listed in new paragraph 27A(2)(a) to (f). These are: offering inducements or bribes to workers to vote in a particular way or to abstain from voting; coercing or attempting to coerce workers to reveal how they intend to vote or how they actually voted after the event; dismissing or threatening to dismiss a worker; taking or threatening to take disciplinary action against a worker; subjecting or threatening to subject a worker to a detriment; or using and attempting to use undue influence.

Let me make it clear that the Government support the right of all the parties—employers, unions and workers alike—to campaign for their preferred result in a recognition or derecognition ballot. We are not seeking to limit the right to engage in legitimate campaigning activity. The unfair practices that I have listed do not preclude people from legitimately trying to influence the result of the ballot, but they are designed to prevent people using conduct such as threats or deceit, rather than persuading people by the strength of their arguments. Nor are the Government suggesting that employers should not be able to dismiss or otherwise discipline workers during the ballot period if they are guilty of misconduct or poor performance. A dismissal or other disciplinary action will be an unfair practice only where it is done with a view to influencing the result of the ballot. Furthermore, for the CAC to find that a complaint is well founded, it must be satisfied that the practice in question changed—

Mr. Djanogly

Is the Minister saying that even if there is gross intimidation, violence or other totally unacceptable behaviour, the ballot will not be affected—that it will all be forgotten? What will happen in such circumstances?

Mr. Sutcliffe

No, I am not saying that. I have made it clear that we expect people to behave reasonably. If someone acts inappropriately or there is gross misconduct during the ballot period, the employer will be able to use his normal procedures to deal with the matter.

We are saying that it works both ways. If the employer is doing things that are not proper in terms of the ballot, the union has the right to complain to the CAC.

Jon Cruddas (Dagenham) (Lab)

I welcome the clauses but I raise one point under paragraph 27B(6). Does my hon. Friend think that the provision could create an incentive for the employer to take action against the union, even where it had done nothing wrong, merely to protract the process?

7 pm

Mr. Sutcliffe

That is why we have placed great faith in the role of the CAC in determining motivation and the purpose for the actions of either the employer or the trade union. On that basis, the CAC will come to a decision. It is interesting that we have taken powers to go further in the period before the ballot if we feel that there is overwhelming evidence so to act.

The CAC must be satisfied that the practice in question changed, or was likely to change, the voting intentions or actual voting behaviour of a worker. This is intended to discourage frivolous claims. We do not want either employers or unions to be punished for very minor transgressions that are unlikely to have affected anyone's vote. The Government will issue a code of practice that will give detailed guidance to the parties on what is acceptable conduct and what is not.

Hon. Members will note that new clause 6 does not contain remedies for cases where a complaint of unfair practices is upheld by the CAC. Paragraph 27C contains instead a power for the Secretary of State to provide for sanctions and remedies by order. The Government's intention was to set out those sanctions in full in these new clauses and amendments. However, this is a complicated area. The sanctions will, among other things, allow the CAC to re-run a ballot where appropriate, and we want to consider further a number of complexities associated with that. It is my intention that, following more detailed consultation with stakeholders, the Government will propose amendments in the other place to put these sanctions in the Bill.

Jon Cruddas

Is my hon. Friend able to say now whether the sanctions or remedies could include automatic recognition, which he mentioned earlier, in respect of activities before the 20-day ballot period?

Mr. Sutcliffe

That is one of the things that will be considered during consultation. I am told by Opposition Members that they want to see consultation take place. [Interruption.] However, I am hearing noises that perhaps they do not want it to take place.

New clause 7 introduces identical provisions making it an offence to use unfair practices in ballots on derecognition. Amendments Nos. 5 and 6 make consequential amendments to clause 11. They insert cross-references to the powers to make sanctions in new clauses 6 and 7.

In addition, the Government have tabled new clause 8. It provides an order-making power for the Secretary of State to extend these rules of conduct to the earlier stages of the statutory recognition process.

Alleged intimidation has occurred, in the main during the ballot period. This is understandable. That period is the critical point where workers decide whether they want union recognition. We recognise that parties, perhaps as a result of the protections that we are introducing for the ballot period, may be tempted to bring forward any intimidatory conduct to an earlier stage. That is why we want to be armed with the tools to respond quickly. Let there be no doubt that if evidence emerges of this happening on any scale, we will not hesitate to introduce further measures to ensure that workers can exercise their choice freely and without fear. Of course, if and when we exercise this power, we can draw on the experiences gained from the operation of these provisions during the balloting period.

New clause 2 was tabled by Conservative Members but it has been grouped with the Government's new clauses and amendments. I am pleased that Opposition Members also recognise the importance of tackling intimidation during recognition applications. Of course, as always, their interest is one-sided. The new clause does not deal with the more prevalent form of intimidation by employers against workers and union members. As I have said, the Government believe that intimidation by any party is unacceptable. I hope that the hon. Member for North-West Norfolk agrees. I urge him not to press the clause.

I have spoken for a long time and I am grateful to the House for its patience. However, these are detailed new clauses and amendments and I wished to explain them to the satisfaction of the House. The Government's new clauses are major amendments. I believe that they strengthen the Bill and safeguard the integrity of the statutory procedure. The issues that they address are of concern to everyone involved and I believe that the solutions that they present are balanced and reasonable. I am pleased to commend them to the House.

Mr. Bellingham

I am grateful to the Minister for explaining the new clause and amendments in some detail. The hon. Gentleman rightly points out that they are extremely complicated. It is a great pity that we did not have them at an earlier stage, a view that is shared by many outside this place. Even at this stage, as the Minister said, they are not complete, as he has not finished his detailed work on some of them. As for new clause 5, as the Minister explained, there are at present three duties on the employer once the CAC has decided that there should be a ballot. The first is to co-operate with the ballot, the second is to provide access to the workers and the third is to supply names and addresses. There are two further duties. The first is to refrain from making any offer, and the second is to refrain from taking, or threatening to take, any action against a worker because he attended the meeting.

The clause then sets out various other matters regarding the conduct of employers in respect of meetings to discuss recognition and derecognition. Most of that is pretty reasonable but I shall raise a couple of points. Sub-paragraph (4ZB) refers to the threat of action on the ground that the employee "attended … any relevant meeting". Let us take a situation in a small or medium-sized company where a trade union activist may want to attend a number of meetings. In addition, there may be two or three other activists in the company who also want to attend meetings. There might be three, four or five meetings. What would happen if the company said to perhaps two of those people who were attending the meetings that that was affecting their performance at work and that only one should attend? As the law stands, the employer would not be allowed to do that, even though he took the view, in good faith, that consistent attendance at the meetings by a number of employees was affecting their performance at work? Perhaps the Minister will comment on that.

Sub-paragraph (4ZD) applies to the situation where an employer seeks to record or otherwise be informed of the proceedings". What happens in a small or medium-sized company? It may be a family-owned business, where relations between management and employees are excellent. What happens if a managing director asks, en passant, "How did the meeting go last night?" Technically, he would be in breach of the new clause. What is the Minister's view on that? We are trying to stress the trust that is so often built up in small companies between management and employees. Often, in close-knit family businesses, there are no stand-offs. There is no suspicion. Unfortunately, in our judgment, the clause could make things worse. Perhaps the Minister will comment on those two points.

New clauses 6 and 7 relate to unfair practices during ballots. The Minister said that paragraph 27A(1) and (2) is based on the Representation of the People Act 1983. I am slightly concerned about sub-paragraphs (a) to (f), where "undue influence" is mentioned. What exactly is undue influence? It is difficult to define. There is huge potential for litigation. Someone making an allegation to the CAC does not do so on oath; they merely make an assertion. We are concerned that the term "undue influence" may lead to a great deal of confusion and trouble.

Apart from those comments, the two clauses may appear reasonable, but, as the Minister said, we are being asked to agree to clauses in which there is no mention of any penalties. The Minister says that he will return at a later stage to tell us what the penalties will be. It seems extraordinary that the Minister has brought the clauses forward—we are being asked to pass them—without there being any indication of what the penalties will be. For example, if the employer is at fault, presumably the penalty will be the CAC ordering immediate recognition. What happens if the employee is at fault? Will he have immediately to withdraw the application? If there has been a serious breach and there is a serious example of intimidation, would employees not be allowed to apply again for a certain period? None of that is answered.

Paragraph 27C(1) is drawn extremely widely. It is the part of the clause that will enable the Secretary of State to come up with penalties in due course. Will that be even handed? We just do not know. It is a little shabby of the Minister to ask us to accept two important new clauses when the detail is not to hand. Why cannot the Government get it right? They have had long enough.

Malcolm Bruce (Gordon) (LD)

Does the hon. Gentleman agree that if the matter is to be resolved by means of a statutory instrument, it would be useful if the Minister gave us an undertaking to provide a draft statutory instrument so that we could debate it and possibly amend it, rather than being faced with an unamendable instrument?

Mr. Bellingham

The hon. Gentleman is right. This part of the clause is very widely drawn and there is no indication of the Government's intentions. It would be extremely helpful if they gave a commitment along those lines.

On new clause 8, the Minister spoke about research into intimidation. He mentioned that there was no large-scale intimidation, such as that which occurs in America. He believed there was research indicating that some firms used intimidatory practices. If he cannot tell the House what that evidence is, will he put a brief in the Library or write to my hon. Friend the Member for Eddisbury (Mr. O'Brien) to tell him what the evidence is?

We are discussing complicated new clauses. The Engineering Employers Federation, the CBI and many other organisations that have not been properly consulted are not yet convinced. They do not say that the new clauses are bad. They merely ask whether the provisions are a sledgehammer to crack a problem that is not nearly as serious as the Minister maintains. If the Minister wants to persuade us, will he put some research material in the Library, or at least write to me?

Jim Sheridan (West Renfrewshire) (Lab)

If the hon. Gentleman is looking for evidence of employer intimidation, I can give him tangible evidence of employers telling employees that if they wish to join the union whose representatives are standing outside handing out the leaflets, they should let the employers know and those employers will help the employees on with their jackets. Is that not intimidation?

Mr. Bellingham

I think the hon. Gentleman is talking about the Wilson and Palmer situation. We are discussing intimidating employees not about joining a union, but about voting in ballots. The Minister said that there was not widespread evidence, but he believed that malpractice was going on. He needs to sustain and justify his case.

Mr. Sutcliffe

I have just remembered the meeting that the hon. Gentleman had with the TUC. He was good enough to tell me that they had had an excellent debate. I am sure they told him about "Bargain or Bust? Employer responses to union organising", a discussion pamphlet published by the TUC in October 2003. That contains examples of the cases that have been outlined. No doubt the Library will get the hon. Gentleman a copy.

Mr. Bellingham

I am grateful to the Minister for pointing that out. My hon. Friend the Member for Eddisbury and I will look carefully at that document. For the record, we had a positive and constructive discussion with the TUC, with Brendan Barber and some of his colleagues. There are many issues on which we fully agreed. We intend to work together. They have asked our views because they want to work with us on a positive basis, although we told them that there are obviously some issues on which we probably will not agree.

Finally, the Minister was rather scathing about new clause 2 and said that we cared only about the employer. In fact, we are trying to be even-handed. The penalty in our new clause is mild. It states that if there is intimidation by trade unions against employees or by employees against other employees, the CAC shall terminate the recognition procedure immediately". We could easily have proposed a much tougher penalty. It is a mild new clause with limited scope, and it is intended to be even-handed.

Mr. Bill Tynan (Hamilton, South) (Lab)

Will the hon. Gentleman give way?

Mr. Bellingham

No. I shall draw my remarks to a close, as there is much debating to do over the next couple of hours. We are not happy with Government new clauses 6 and 7, and we shall press new clause 2 to a Division, if need be.

7.15 pm

Mr. Frank Doran (Aberdeen, Central) (Lab)

I welcome the new clauses. They deal with an important gap that the operation of the 1999 Act has thrown up in practice—serious intimidation, of which there is clear evidence in the case of a few employers.

The principal case with which most of us are familiar concerns Sky Television at Livingston where employees were intimidated to the extent that they were threatened by the employer with relocation of the factory, wage reductions and a series of unscrupulous measures. On initial CAC examination, a majority of the work force was in favour of union recognition, but that became a thumping defeat for the union when the ballot went ahead. That is unacceptable, given that the relevant provisions of the 1999 Act were intended to operate as a disputes resolution procedure, to keep such cases clean and fair and to give everyone the opportunity of a say.

I share the concerns expressed to the Minister by the TUC about how the Government have chosen to apply the intimidation processes. They have treated the trade union side and the employee side in exactly the same way as the employer side. The TUC presented a dossier to the Government, to which the Minister referred, as did the spokesman for the Opposition, the hon. Member for North-West Norfolk (Mr. Bellingham). The dossier details various abuses found by the trade union side. I know that the employers have made allegations against the union, but, as far as I am aware, no specific evidence has been presented against the union side or the employee side in any particular case, simply vague allegations. Yet the same regulations are to be applied on both sides.

The union side is happy to accept that there should be a law against intimidation on both sides. The issue is how that should be applied. What the Government propose sounds fair and equitable, but it ignores the underpinning imbalance in the workplace between the employer, who owns the premises and employs the work force, and the union, which has only limited access to the work force in the case of a recognition ballot. One need only consider the Sky Television case in Livingston to see how that operates in practice. The employer was able to make threats and get information circulating round the work force that completely transformed the view of the work force.

The employer can say that union recognition will mean lower wages, and he has the power to put that into practice. The union cannot do that. A union can only speculate that union recognition will increase wages. To introduce a clause that hits both sides equally on every point will have unintended, unfair consequences. It will always be the union that suffers from any delay in the balloting process.

David Hamilton (Midlothian) (Lab)

Surely it can be recognised that a worker approaching a fellow worker has no power other than the power of persuasion, whereas a manager has the power to promote or demote an individual worker? That is an important distinction.

Mr. Doran

That is exactly my point. All the power is with the employer, not with the union. If an employer says such things to an employee, the employee knows that the employer has the power to carry it out, which the union does not.

There is no question but that intimidation by unions is unacceptable, but different wording is needed to capture it if it happens. I urge my hon. Friend the Minister to reconsider the matter and see whether a different form of words can be found to deal with that different problem when the Bill is debated in another place.

Malcolm Bruce

We have had a useful debate and a number of important points have been raised. It is interesting that there is some slight tension between the Minister and his hon. Friends. The Minister says the Government must be even-handed and make the provision apply to any party, but, not surprisingly, Members, particularly those with a strong union connection, are trying to shift the balance more favourably towards the unions, and they quote some fair examples where that would be justified.

Right from the start of the Bill, we have all acknowledged that the climate of industrial relations in this country has been transformed in the past 10 or 15 years, partly because of legislation that has democratised the trade union movement. Given the consultation that has taken place to bring the Bill to the House, and if the evidence was available, it is surprising and a little unfortunate that such detailed new clauses have had to be introduced so late m the process. I am not saying that that is not justified, but it puts those of us who are trying genuinely to scrutinise legislation in a slightly invidious position.

The hon. Member for North-West Norfolk (Mr. Bellingham) referred to the example of a company in which there is no animosity and in which the natural tendency of a manager who knows that a recognition debate is going on is to say "How's it going?" The wording gives the impression that that could become an offence. The legislation has just arrived, and we have not had time to test out how it could apply and whether it could lead to slightly silly litigation that gets in the way of good employment relations.

David Hamilton

The hon. Gentleman is drawing an important distinction. As a former trade union official who became chief executive of a small company, I remind him that the determining factor rests with the chief executive or the employer. I knew, when I spoke to an employee as an employer, as opposed to a trade union official, that I could intimidate them off the cuff. However, let me make this distinction: if the relationship between the employer and employee is good, there will never be a situation in which the employee takes the employer to task.

Malcolm Bruce

I agree entirely, but we are entitled as legislators to look at what the Bill says and how it might be applied. It has already gone through my mind that I doubt that anybody will want to go to law in a good business with a constructive atmosphere, although it may take only one malicious individual to cause damage. All that I am concerned about is ensuring that the measure is not sloppily drafted and that it means what it says and does not create unnecessary problems. I think that that is a perfectly fair role for us to play in the House.

I wish to repeat what I said in intervening on the hon. Member for North-West Norfolk about the orders, which the Minister said he would return to. The Minister made two points. The first was that further details would be brought before another place. I am afraid that that is a weary old comment. Even though we consult, we pass too many laws rather hurriedly at the end of the process, which is simply not a good way of making law. That is all that I am saying. Such a way of proceeding does not necessarily produce bad law, but it certainly does not help to produce good law; indeed, it is more likely to produce bad law, because proper consideration is not given. The more particular point relates to new paragraphs 27C(2) and 119C(2) to schedule Al to the Trade Union and Labour Relations (Consolidation) Act 1992, which both state: An order under this paragraph may…

  1. amend this Schedule;
  2. apply any provision of this Schedule with such modifications…
  3. confer functions on the CAC;
  4. make provisions about the arrangement and conduct of further ballots;
  5. include supplementary or incidental provisions;
  6. make different provision for different cases or circumstances."
A pretty substantial statutory instrument is being envisaged. As the Government have introduced the provision at such a late stage, it is reasonable to seek assurances. I welcome the Government's practice of publishing draft statutory instruments that can be scrutinised and debated by Select Committees and hon. Members, so that when the final secondary legislation comes before the House it will have been subjected to a form of preliminary scrutiny. We all agree that the weakness of the statutory instrument as it is proposed—of course, this is the case from the point of view of the House, not the Government—is that it is not amendable and that we can only vote yes or no. Given that the provision is being introduced late in the process and that it is fairly extensive, it is reasonable for us to ask the Government to give it further consideration.

I understand the Minister's response to new clause 2, but, having considered it, I find it hard to take issue with what is proposed. In dealing with intimidation, it points to the "employer … or worker", so it contains reference to that point. One of the essential things that we are trying to do—this is a classic position for those on the Liberal Democrat Benches—is to get the balance right, as the Minister himself also said was necessary. If I may say so, that is something on which my party has a contribution to make.

Jim Sheridan

Does the hon. Gentleman share the views of the Conservative Front-Bench spokesman, who said that it was perfectly acceptable to tell an employee that attending a trade union meeting could affect their performance? Many of us on the Labour Benches have heard those chilling words before and then suffered the consequences.

Malcolm Bruce

I do not think that the hon. Member for North-West Norfolk made that remark, although he has not contradicted the hon. Gentleman. I do not accept such views, but I accept the comment that an employer is, by definition, in a different situation. Let us be clear. Historically, there have also been situations in which trade unionists and trade union activists have used intimidating processes and put pressure on people in other ways. The reality is that the faults have arisen on both sides, but the situation has improved enormously.

When we finish our proceedings on the Bill—we support it and are not changing our position—we should not introduce legislation that upsets that balance, especially so late in the process. I am saying not that the measures before us upset the balance, but that they raise in my mind some legitimate and proper concerns that we should address.

Mr. Tynan

My hon. Friend the Minister is to be congratulated on introducing the Government new clauses, which I think are a response to the discussion that took place in Committee. When we discussed intimidation in Committee, hon. Members in all parts of the House recognised that it was unacceptable. As the hon. Member for Gordon (Malcolm Bruce) said, the balance has to be got right. At present, the employers have all the cards and all the opportunities to intimidate people if they so wish. Only a small minority of employers need to be dealt with on that basis.

I would like to make a point about definitions and to add to the request made for an explanation of the phrase "undue influence". I, too, would like the Minister to explain that term, but I would also like the Opposition spokesman to explain something. I tried to intervene on him in respect of new clause 2, which refers to circumstances in which a union uses undue force or intimidating measures". I would be interested to hear what "undue force" and "intimidating measures" are. I have found that when a union tries to win a ballot, it will do everything it possibly can to convince people. That is usually done in a sensible way and on the basis of argument. If there was intimidation by a trade union, hon. Members in all parts of the House would say that it was unacceptable.

I think that the balance must be got right, as has been said. In that respect, we must examine Government new clause 6 carefully, as there is a concern that it goes too far the other way and will create a situation in which the union will be unduly punished without having been involved in intimidation. I ask the Minister to look at that point.

Mr. Djanogly

Having heard the debate thus far, my opinion is that a lot more work needs to be done on the new clauses in terms of their form and purpose. That view comes from having heard contributions from all parts of the House. I hope that the Minister will take that point away when the Bill heads to the Lords and think about it further.

I wish to speak in support of new clause 2. There is more sense in the four lines of that new clause than in the four pages taken up by the Government's equivalents—new clauses 6 and 7.

Mr. Tynan

If the hon. Gentleman believes that there is more sense in the four lines of new clause 2 than in the other provisions, will he explain the meaning of undue force or intimidating measures"?

Mr. Djanogly

The Minister himself gave the straightforward example of intimidatory visits to people's homes. That is a good example, and I accept it.

The point about new clause 2 is that it does not deal with all aspects of work. It is very specific about the recognition procedure, and it applies only during the period when it is under way. Rather than dealing with a range of areas and issues, it is again specific about undue force and intimidation. As my hon. Friend the Member for North-West Norfolk (Mr. Bellingham) said, it is fair and concentrates on not only the company, but the workers, and is therefore balanced across the workplace.

7.30 pm

Importantly, the remedy introduced by new clause 2 is simple and does not relate to criminal or civil damages. I can see the complications for the Minister, but I still say that it is unacceptable not to introduce remedies. If new clause 2 bites, it is a declaration that the recognition procedure has ended, which is a simple, straightforward way to deal with the issue.

In Committee and during today's debate, certain hon. Members have implied that unions never use violent or intimidatory behaviour, but the behaviour of certain unions over past years has shown that, if anything, militancy is again starting to increase dramatically. There were, for example, suggestions that retained firefighters were intimidated during the miners' strike. [Interruption.] I mean the fire strike. Wildcat, unofficial strikes have occurred at, for example, British Airways and the Post Office. The climate of industrial relations has changed over the past year, but few people would say that it has changed for the better. A new generation of union leaders has come to the fore, and they are, perhaps, less conducive to the Government's way of thinking than their predecessors.

John McDonnell

British Airways headquarters is in my constituency, as is Heathrow. The unofficial action at Heathrow was voluntary action in which employees left their workplaces without any union policy or directive. Can the hon. Gentleman provide me with any evidence of intimidation, because none has been reported?

Mr. Djanogly

The hon. Gentleman did not hear where I was coming from. The climate has changed dramatically, and I gave the Heathrow case as an example. It is bizarre that, despite 65 pieces of employment and union legislation, the unions are not grateful, but the more they get, the more they seem to retreat into militancy, which must create a conundrum for the Government.

Jim Sheridan

On the Minister's example of union intimidation, I should be interested to hear what steps, if any, the trade unions took to sort out that business. Will the hon. Gentleman accept that the question of intimidation is enshrined in most, if not all, trade union rulebooks? There is ample evidence of members or potential members of trade unions being disciplined for taking any intimidatory action whatsoever.

Mr. Djanogly

I have given a couple of examples, and I have some more, but they can wait—the GMB comes to mind.

I want to address the Government new clauses, and in particular new clauses 6 and 7, which are extremely complicated. My particular concern is that new clauses 6 and 7 cover not only intimidation, but the effect of intimidation. If there has been intimidation but it does not affect the ballot, it will be ignored by the new clauses, which is conceptually wrong. Indeed, there should be disincentives to intimidation, and I cannot see how disincentives can be introduced unless intimidation has negative consequences.

The second main point, which has been addressed previously, is that the Bill does not contain any remedies for intimidation, and I do not see how we can examine the effect of one without the other. Will the Minister at least clarify what the Government are thinking? Is the object to invalidate the ballot, not to allow the person or union that is doing the intimidation the chance to have a re-ballot or to punish the person who is doing the intimidation? Will the Government go down civil or criminal lines of remedy?

It is particularly unfortunate that new clauses 5 and 8 were tabled towards the end of last week, because they contain totally new concepts. The Government have at least said that they accept in principle the idea of an intimidation clause, but new clauses 5 and 8 have come out of the blue. The Minister should tell us why those new clauses have been introduced, because I can see no reason for them.

Mr. Sutcliffe

The debate has been interesting, and it clearly sets out the differences between the parties' attitudes towards employment relations and industrial relations. Intimidation, whether it is from unions or employers, will not be tolerated and we do not want to see it. As on Second Reading, my hon. Friends have exposed cases of intimidation, but Opposition Members have failed to come up with details of unions behaving badly.

The example that I gave of a union visiting workers' homes was raised with the Government by the CBI, which provided anecdotal evidence. It said that it could back up that claim, and we wait to see whether it can. The unions have given evidence to me and to the publication in the Library, which is available if hon. Members want to pick it up.

Mr. Tynan

Will my hon. Friend indicate the volume of evidence from the trade union against the volume of evidence from the CBI? I would be particularly interested to know what action was taken on intimidation in someone's home, which, as far as I am concerned, is a criminal offence, and I would have thought that criminal charges would have been brought.

Mr. Sutcliffe

I am grateful to my hon. Friend, whose background makes him well versed in such matters. I do not want to be drawn down the line of who did what, because intimidation from either side is unacceptable.

On giving notice of the new clauses, my hon. Friend the Member for Hamilton, South (Mr. Tynan) and other hon. Members were in Committee when I said that the Government would introduce new clauses on intimidation and that the matter would be complex. As the hon. Member for Gordon (Malcolm Bruce) says, we are trying to achieve a new attitude towards employment relations in the UK, and I think that he accepts that the Bill goes a long way to doing that. We are trying to move away from the existing adversarial culture to a culture in which people work together and understand the requirements of business. The trade unions play an increasingly large part in that process, which is evidenced by the number of FTSE 100 companies that are union organised, so the unions are generally a force for good. On union recognition procedure, we would initially like to see more voluntary agreements. So far, there have been more than 1,000 voluntary agreements, and it is a step in the right direction when employers and employees come together and go down the voluntary route. The statutory procedure covers situations in which that cannot happen, and is included as a minimum standard. It is reasonable to expect and accept that the Government's role should be to facilitate the smooth running of the statutory procedure, which is why I have said throughout that we must examine intimidation.

In response to my opening remarks, the hon. Member for North-West Norfolk (Mr. Bellingham) said that the Government new clauses are pretty reasonable, but then he told us why they are unreasonable, and he did not make the case.

Mr. Stephen O'Brien (Eddisbury) (Con)

Scrutiny.

Mr. Sutcliffe

It seems to me that the spirit of scrutiny in Committee is different from the spirit of scrutiny on the Floor of the House—perhaps that is because of this environment.

Mr. Djanogly

My hon. Friend the Member for Eddisbury (Mr. O'Brien) was not on the Committee.

Mr. Sutcliffe

The hon. Gentleman says that his hon. Friend was not there. I would expect the Front Bench spokesperson to read about how the Committee developed and learn from interventions on both sides of the House about where we are going with employment relations and the new attitude that we are trying to achieve. As I said in response to the hon. Member for Gordon, the key purpose is to stop intimidation, whether on the union side or the employer side.

The hon. Member for North-West Norfolk asked whether an employer can be penalised if he takes action against a worker for attending a meeting organised by the union at a time when he should be working. When the union and the employer make an access agreement, they will set out how many meetings should take place, when and where they should take place, how long they will last and which workers are entitled to attend which meetings. The new clause makes it clear that an employer can be penalised only if he takes action against a worker for attending a meeting that that worker was entitled to attend. The CAC would have a role in stopping frivolous cases and would consider the circumstances and the reasonableness of the situation, but initially the union and the employer would set out what meetings should take place.

I was asked why an employer should not be allowed to attend a meeting with his staff held on his premises during working hours, because surely he has such a right. In many cases, unions are happy for employers to attend access meetings. Indeed, the code of practice on access makes it clear that, where possible, joint meetings can be beneficial. However, we must accept that in some cases workers will not want their employer to know that they support a union's campaign. They might not even want their employer to know that they are going along to a meeting to find out about recognition. They may fear that their employer will brand them as disloyal if they do so, and may be afraid to ask the questions that they really want answered if the employer is there. Unfortunately, the evidence is that on occasion anti-union employers victimise union members and supporters. That is why it is important that meetings between the union and the workers in the bargaining unit should be private.

David Hamilton

Within that, there is a recognition that not employers, but management, attend union meetings along with workers because they are part of the structure. It is up to the local branch of the union to determine what is right. There are many thousands of cases where senior management attend meetings with the workers because they are part of that union.

Mr. Sutcliffe

I agree entirely with my hon. Friend. In fact, I would advocate that, because that is where the case can be put freely as to the union's campaigning activities and the employer's view of those activities. It is likely that that relationship exists in most go-ahead companies that look to the future. Another crucial part of the Bill is the information and consultation directive, which opens up the opportunities for dialogue to take place and moves away from the adversarial situation.

The hon. Member for Gordon suggested that surely it is okay for the employer to ask how a meeting went. Clearly it is, if his question is reasonable. If he says, "Did the meeting go well?", that is acceptable and there is no problem, but he may go further to ask for the names of the workers who were there and details of how the meeting went. The CAC would question the motivation behind that.

I was asked to explain the definition of "undue influence." Undue influence is a concept borrowed from the Representation of the People Act 1983. It includes: the use of, or threat to use, force, violence or restraint; the infliction of, or threat to inflict, injury, damage, harm or loss; and the impediment of the free exercise of the vote by fraudulent device or contrivance. The term is designed to pick up a range of behaviours from violence and threats of violence to libellous statements. Whether a particular action constitutes undue influence will depend a great deal on the circumstances and manner in which it was taken and whether it was demonstrably intended to influence the ballot. The Government intend to bring forward a code of practice following consultation with interested parties to provide clear guidance to all the parties involved.

We have been very conscious of the need to ensure that the jurisdictions of the CAC and the employment tribunal should remain separate. That is why we took care to ensure that the question that each court will have to consider is different. If a worker suffers detriment or dismissal for supporting or opposing recognition, he or she may seek individual redress at the employment tribunal. The union may seek collective redress from the CAC if that dismissal or detriment changed or was likely to change voting behaviours. 7.45 pm

We intend to consult in detail on sanctions. Consultation is the whole basis of this and previous Bills. We have a good reputation with employers and trade unions in terms of taking that approach. I accept that there is a fear that we have not gone through the full process, but we have tried to do so on all these matters. We propose adopting a structure that is very similar to that already in place for breaches of a union's access duties. Where the CAC finds that a complaint is well-founded, it will be able to issue an order against the guilty party that they should desist from the unfair practice in question and take steps to remedy the harm done. For example, they may be ordered to repudiate an earlier statement or to restore to a worker any loss incurred through a detriment. Once the CAC has issued a remedial order, if that party subsequently breaches the remedial order or commits another unfair practice, the CAC can issue a second sanction. If the employer is at fault, that second sanction, as for access, will be that the union is automatically recognised. If the union is at fault, the sanction will be that the union's application fails—that is the same sort of sanction that applies for other detriments. I believe that we are acting in a proper and responsible manner in relation to those few times when intimidation takes place.

My hon. Friend the Member for Aberdeen, Central (Mr. Doran) asked us to go further—of course, we keep such matters under review—but generally welcomed our proposals. My hon. Friend the Member for Hamilton, South asked for the evidence on either side, and I hope that I explained what is being achieved.

The performance of the hon. Member for Huntingdon ( Mr. Djanogly) is ever consistent in that in most cases, unfortunately, he sees only one side of the argument. New clause 2 is not balanced—it applies only to the employer side, and even it is weak in terms of the definition of available sanctions.

Hon. Members will be aware that the Joint Committee scrutinises statutory instruments. I will try to give as much notice as possible in that respect, as I have throughout the passage of the Bill. I hope that hon. Members accept my assurances that when they are available they will have the opportunity to look at them.

This has been a good debate. Intimidation is wrong in whatever form it appears. The new clauses represent a balanced set of measures that meet the requirement of telling employers or unions who want to use underhand tactics that that is inappropriate. I commend the new clauses to the House.

Question put and agreed to

Clause read a Second time, and added to the Bill.

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