§ 8.30 p.m.
§ Committee stage resumed.
LORD DELACOURT-SMITH moved Amendment No. 55:
Page 5, line 39, at end insert ("except where such a provision forms part of an agreement which was in existence before the commencement of this Act.")
§ The noble Lord said: I think the words set down in the Marshalled List make very clear the purpose of this Amendment. The clause is described as related to pre-entry closed shop agreements, and the purpose of the clause is said to be to declare them void. But it appears to me that if one examines this clause, particularly subsection (1)(b) one finds that it goes a good deal wider than what I, 550 at any rate, have hitherto regarded as a pre-entry closed shop. Subsection (1)(a), of course, addresses itself to the pre-entry closed shop in the more generally understood meaning of that term. Without anybody being able to be quite precise, there are probably something like three-quarters of a million workers in the country who are covered by pre-entry closed shop arrangements that actually exist at the moment.
§ I want to make a general reference to some of the types of workers covered by such arrangements. Arrangements of this sort of course have commended themselves particularly in areas of employment where there is a great tendency for overcrowding of the occupation to take place. One clear example of this is the theatrical profession; and various members of the Committee, including my noble friend Lady White, have already referred to that position. It is a very striking characteristic of the theatrical profession that it is virtually impossible to define a qualification for entering it. One cannot refer exactly to a trade qualification, and one cannot refer to a professional qualification, as in the case of barristers or lawyers; and in essence the method of entering the theatrical profession is to secure an offer of a professional engagement from an employer.
§ In the light of this, and of the very considerable numbers of people who seek to enter a profession which is, as the noble Baroness said, already a desperately overcrowded one, the trade unions concerned—in full agreement, as I understand it, with the employers, or at any rate with all the responsible employers, who constitute the very considerable majority —have established a system of casting agreements. This I believe both sides of the industry, and those members of the public who have had occasion to examine this situation objectively, regard as being in the interests of the standard of performances as well as in the interest of creating a degree of security for the serious professional performer. There is still great anxiety—this is certainly our information—that the terms of this clause will destroy the major casting agreements, and the trade unions concerned have examined carefully and constructively suggestions made about other means by which the purposes of the casting agreements could be achieved, and 551 have reached the conclusion that although some of these appear attractive on paper they would inevitably break down in practice. That is one example, one industry.
§ Another example is the merchant service. Here again we have an occupation with many very special problems. In many ways it does not demand a particular objective standard of qualification. Recruitment to the merchant service could in theory take place in almost any part of the world where our ships touched, and it is very understandable, that, again in the interests of maintaining proper standards of staff, as well as some reasonable degree of security and some protection for conditions of employment, the principle of the pre-entry closed shop has for a considerable time been accepted.
§ One could look at many other industries where these problems or characteristics are present in greater or less degree, and where, as a consequence, the employer is threatened with the possibility of a shifting and unsatisfactory labour force, and those who engage in the occupation are threatened with insecurity, cut-throat competition for jobs, and an inevitable tendency for their standards to be driven down. I cannot understand how anyone who thinks about these occupations, of which I have taken but two examples, can really imagine that any good purpose will be served by this doctrinaire application of the concept of forbidding the pre-entry closed shop. The Donovan Commission devoted a great deal of time to the study of the closed shop, and a very realistic and critical analysis they made of it. They certainly did not regard existing arrangements as perfect, but I do not detect in their recommendations any proposal to apply this principle in the abstract and quite unrealistic way which the clause proposes.
But the clause goes further still, and I would direct the attention of the Committee to subsection (1)(b), and would invite the noble Lord to comment a little more upon that subsection, for this addresses itself not to trade union membership as I understand it, but to an agreement which purports
to preclude an employer … from engaging workers who have not been recommended or approved for engagement by a trade union
or other organisation of workers specified in the agreement".
This is very much a variant, if I may say so, of what is normally understood to be the closed shop. It may well be that informal or formal arrangements of this sort do apply. If they do, I should be glad if members of the Government would say what harm they see in them. What is the objection to this form of arrangement? Indeed, what is the objection in principle to either of the arrangements set out in subsections (1)(a) or (1)(b)? Is it really the view of the Government that the arrangements for recruitment to an occupation should be the prerogative of the employer, and the employer only?
§ I have been addressing a number of questions to the Government on successive clauses, trying to elicit how they approach these things, not only in a static sense but in a sense of how they want to see things develop. I really should like to learn. I think that it is the Government's stand in principle that recruitment to an occupation should be in the hands of the employers only. If that is not their view, what measure of control over recruitment do they think those who are employed in the industry are likely to seek, since entry into it, if completely unregulated in the case of some of the occupations I have described, can constitute a most obvious threat to the maintenance of reasonable conditions.
§ I feel that this clause is open to many objections. Again we are always prepared to try to find ways of mitigating the worst consequences of the Government's doctrinaire policies, and it would be at least some alleviation of the situation, but by no means a complete one, if the Government would accept that where these arrangements already exist they should continue. If they reject this, I should be glad if they would say why they regard as unsuitable arrangements which employers have consented to, with an eye presumably to their own long-term interests and to the health of the industry, and what are the reasons which have led the Government to imagine that the employers in these industries where they have concluded pre-entry closed shop agreements in agreement with the trade unions and which have worked well are so irresponsible and so careless of the future of their industry and of the public interest. If there are criticisms, let the 553 Government make them. I think that it will frequently be found that any criticisms which can be made do not arise from the existence of the pre-entry closed shops but from other factors affecting the industry.
§ LORD BYERS
The noble Lord spoke of arrangements which have worked well. What we are worried about are the closed shop arrangements which have worked badly. Through the closed shop there has been victimisation. What is the protection there?
That is rather a different question. Here the Government are not addressing themselves to a difficulty which may arise from the closed shop. They are claiming as a matter of principle that a particular form of closed shop should be declared void. I am asking the Government what their justification is for taking this stand on general principles. At a later stage we can discuss the advantages and disadvantages, shortcomings and strengths, of the closed shop as a general principle, but I think that responsibility rests on the Government to justify departing from arrangements which have been arrived at in a number of instances, consented to fully by the employers, and to demonstrate why, as a general proposition, these arrangements should be declared void. I beg to move.
§ 8.43 p.m.
The noble Lord has moved this Amendment, if I may say so, in the cairn and reasoned terms in which he has moved many of his Amendments, and for this I am extremely grateful. I hope that he will not think that in saying this I am being in any way patronising, because that would be the last thing I should wish. I know that this is a point about which noble Lords opposite feel strongly and I am grateful to him that he should have moved it in the way he did. He invited the Government to say why they disagree with the pre-entry closed shop and I shall do my best to explain this to him.
As we see it, basically a person has, or should have, the right to be able to go and apply for a job of work where he wishes. If the noble Lord's Amendment were accepted, it would mean that where at the moment there is a pre-entry closed shop, a worker would be obliged to become a member of a trade union in ad- 554 vance of applying for work at that particular place. This would remove from him one of the basic rights in Clause 5 which we believe to be essential—the right to become or not to become a member of a trade union. He may be a fully qualified person, a person fully skilled to undertake the job which the particular factory has, but before he is able to apply for work he has to show that he is in possession of the appropriate union card. We know that strong arguments are put forward by noble Lords opposite about the closed shop, that it strengthens the unions and that solidarity of the unions depends on the large measure of support within the place of work. We accept these arguments, though we may not agree with them. But what we do not feel is correct is that before a person applies for a job he should necessarily have to show that he is in possession of an appropriate union card.
If this Amendment were accepted, it would have one effect; this would be to encourage unions to act now in advance of the Bill's becoming law and bring pressure on various employers to accept a pre-entry closed shop, because when the Bill becomes law they would not then have this facility. By so doing, they would in fact be denying a number of people—quite a large number of people—the right not to become members of a union should they so choose. The Bill as it stands gives a worker who is suitably qualified the right to apply for any job where his skills are adequate. We believe that to deny a person employment fix which he is suitably qualified simply because he is not in possession of a union card, or alternatively to enable an employer to terminate his employment because his union membership was terminated or was not accepted in the first place, is not a fair and just thing to do.
There would be many examples of a person being fully qualified and an employer entirely satisfied with his skills being refused employment, were this Amend dent to be incorporated in the Bill. We have tried to make provision for exceptional cases where there are strong arguments for a closed shop. The noble Lord referred to Equity. As we said earlier, there are provisions under Clause 16 to enable unions and managements where there are these particular problems to apply for approval of closed shop agreements. The noble Lord said 555 the casting agreements would be destroyed. I do not know that that is entirely the case, but the Secretary of State is in fact in negotiation with Equity and the representatives of theatre management in order to see whether there are specific problems which are not covered at the moment under this Bill.
The noble Lord said that the Donovan Commission said nothing about pre-entry closed shops. They said a good deal about the closed shop, and in paragraph 602 the Donovan Report said that although there were merits in the closed shop it should be possible to devise alternative means of overcoming the disadvantages which accompany it. It is those disadvantages that we have tried to overcome in the agency shop provisions, and we believe that it is basically fair and just that a person should be able to apply for employment at the place of his choice without first having to show that he holds the appropriate union card. That does not mean that the unions cannot enter agreements with management about the level of skills necessary or requisite for particular occupations, because of course they can negotiate with management to determine what levels of skills are necessary before entry into those occupations should take place. But that is not the same as saying that they should show in advance that they have the appropriate union card. For that reason, I hope your Lordships will not accept the Amendment.
§ 8.50 p.m.
§ LORD BROWN
There are periods in this debate when one somehow gets the feeling that we are not talking about a real industry but about some fantasy in industry. The noble Earl on the opposite Bench has just made the point several times that if a man had to be a member of a particular union before he had any chance of obtaining occupation with a firm, then he would be denied the right to work in that occupation. That is not so. There are thousands of firms in the country which have not got closed shops or, for all I know, will not have agency agreements. The closed shop is probably the exception. All a man has to do is to go and apply for work in some concern—small, or many of them large—where there is not a closed shop. That is happening all the time now. People are 556 applying who have never been in a particular union in their lives before and are probably totally unskilled in the occupation. I used to run a company in Kilmarnock which to-day employs 3,000 people; only one was a member of the engineering union, and all except a very small percentage are employed there. These things are happening all over the country, and the noble Lord talks as if these things simply do not exist.
Turning to the Amendment, I am going to talk on the assumption that the Government are going to reject it. It is a pity that we have to talk in that way. The fact is that there are many closed shop agreements which are invaluable and were brought about voluntarily by management and unions. On the other hand, in acknowledging the comment made by the noble Lord, Lord Byers, I would say that it is quite true that there are a number of closed shop agreements which have been rammed down the throats of management by the power of unions and which have worked very badly. There is no sense in denying that that is the experience in industry.
§ LORD BYERS
If the noble Lord will permit me to say so, my comment was that it was not against management, but against workers. We have always stood up against the victimisation of the workers.
§ LORD BROWN
I am not going to question whether it is against management or against workers; the fact is that there are some which are bad from either point of view. Is it not possible for the Government to consider introducing an Amendment into the Bill which would make it possible for the existing pre-entry closed shop agreements or post-entry closed shop agreements to continue to exist, subject to an examination by the C.I.R. or something like that, so that existing good arrangements could continue, without all the disruption brought about by having to root out the bad ones? I suggest that that sort of practical approach to the continuance of what is good is the sensible way to go about it. I am sure it would please the Confederation of British Industry; it would certainly please the unions and it would help. If they are good ones and the C.I.R. says that they are good, let them continue. What is there against doing that?
§ LORD COOPER OF STOCKTON HEATH
May I support the proposition put by my colleague, Lord Brown. I agree that wherever there is absolute power there ought to be a proper check to protect the individual, and I hope that that will be considered. That does not militate against the very important proposition contained in this Amendment. First I should like to deal with the realities. In my experience, I do not think there have been many strikes to enforce the closed shop. Again, the closed shop is not the typical situation in British industry; where it exists it is often because there has been a good relationship between trade unions and employers and the employers themselves are quite happy to enter into the arrangement. They are the ones who complain about having to deal with a number of unions, and the closed shop contributes to a reduction in the number of unions, which suits the employers very well indeed. When it was said that if any concession were made on this matter it would result in pressure being brought to bear on the employers forthwith, before the Act came into force, may I say that, I doubt it very much, because the closed shop is an evolutionary process and not something that suddenly happens.
However, I think that there are more important points and not ones of a partisan nature. The description of this clause in the Bill is "Pre-entry closed shop agreements to be void". I do not know whether I am right, but it seems to me that this is retrospective legislation and this proposition is going to destroy agreements with employers, some of which may he eight or ten years old. That is something about which the Government ought to think very carefully indeed. Again, I know that some noble Lords are familiar with what happens in industry and some are not. Very often when we make ordinary trade union or industrial agreements, if certain things exist we try to carry them on by what we call a "better conditions" clause. Where a closed shop has been agreed and is in operation, if there is to be a change and it is going to be replaced by an agency shop, it is, as I said before, one of the slimmest distinctions that anyone could attempt to draw and the case for leaving the closed shop in existence is very strong. Certainly, if one says that this Bill is 558 really to help the trade unions, one should watch that very carefully indeed. I cannot understand that contention if closed shop agreements are going to be made void, because where they exist—there is only a limited number but those agreements are important—they have been brought about by legislation. Such a situation was created, for instance, in the coal industry. I think that that is a closed shop, and understandably so.
May I just indicate how a voluntary system works in relation to a closed shop? When the coal industry became nationalised my own union had 2,000 or 3,000 surface workers in the Yorkshire area, but we stopped acting for those workers because it made sense to allow one union to operate so far as the coal industry was concerned. We still have members, and my union pays virtually a fee to the miners' union annually to service those members. They are still notionally members of ours but we have had nothing to do with them since the incept on of nationalisation.
If the closed shop agreements are not continued as they exist at the moment and a new situation is begun, I submit that that is going to start an erosion of trade union organisation. It is putting an entirely new entrant into the industry. Picture an organisation where there is a 100 per cent. closed shop, with every man Jack in the union—and this, as I say, suits the employers fine. By retrospective legislation you are going to put an end to that, and any new entrant can be a member of a trade union, or, if he so wishes, he need not be. So, without getting emotional about this, I say that there is a good case for reasonable and equitable treatment here in considering this Amendment: that where the closed shop exists and is operated, it should be allowed to continue.
I want to make one final point. I agree with those who say that where abuse is possible the situation ought not to be allowed to continue. But it is not without significance that when examples of abuse are quoted in this Committee they are cases that have been taken to court and awards have been given to the individuals concerned. I make this point because the law is not so stupid as some people would have us believe. It is pretty sound now. If natural justice 559 is offended, a man has a great deal of protection. I should be happy, of course, if he had more protection. But I hope that thought will be given to this proposition: that where trade unions and employers have mutually agreed that in their particular situation a closed shop is a sensible thing, retrospective legislation should not interfere with some of the good arrangements that have gone on for so long.
§ VISCOUNT AMORY
A combination of the noble Lord, Lord Brown, and the noble Lord, Lord Cooper, can be a dangerously persuasive one. I only want to take up the noble Lord, Lord Cooper, on one point. I cannot think that the noble Lord really believes that this proposal amounts to retrospective legislation.
§ LORD COOPER OF STOCKTON HEATH
If I may try to answer that, may I say that as a practitioner, I am sure that if the closed ship is made void, in every instance where my own union has a closed shop we shall have to start re-negotiating the agency shop. That is the alternative that is presented to us in the Bill. The amazing thing here is that all the evils that are quoted about the closed shop can become the evils in the agency shop, after a worker has been employed for about three weeks and if he still refuses to join a trade union.
§ VISCOUNT AMORY
That is rather a different point. I was on the somewhat limited point that this amounts to retrospective legislation.
§ LORD SAINSBURY
I do not want to detain the Committee for long, but I should like to make one general comment. It strikes me that the longer we go on discussing this Bill, the more unreal it becomes in relation to the industrial life of this country and the more we deal in unreal generalities. Of course there are abuses of the closed shop. But there are hundreds of closed shop agreements that have been entered into, not under pressure from the trade unions but because the management believed that the closed shop led to harmony in the workplace. If that is not a good principle of industrial relations, I know nothing (perhaps I do not) about the subject that we have been discussing for so many hours.
§ LORD BEAUMONT OF WHITLEY
We have had a good debate on this Amendment. I want to touch on one point that I do not think has been sufficiently brought out, and then to move to another more technical point. First, I do not think that noble Lords on the Opposition Benches have quite taken in a major point of the Government's case. That is not surprising, because the Government have kept this point of their case rather under the table. A major point of the Government's case is that if you ought to be on your guard against the power of the unions, you ought to be trebly on your guard when management and unions agree. That is really the answer to the noble Lord, Lord Sainsbury. This is the moment when the Government should step in to argue for the rights of individual workers. I think there is a lot in that point, and I feel that the Government might profitably state it publicly rather than, as they appear to have done, keep it quiet.
I hope that we are going to have a full reply to this debate, but I want to bring the noble Earl back to the question that I asked him just before we adjourned and which presumably he has now had time to think about. In his last speech the noble Earl brought out the Government's objection to the pre-entry closed shop. I am still puzzled by the wording of the clause. If the noble Earl and other noble Lords who were here when I spoke will forgive me for repeating myself—some noble Lords were not present—as I said, Clause 6 comes under the rubric:Pre-entry closed shop agreements to be void.There are two subsections to the clause. The first is the businesslike one, and the second states only exceptions. Subsection (2) says that the main subsection does not apply under Clause 16. I still maintain that this can only mean that the closed shop agreements within the meaning of Clause 16 are pre-entry closed shop agreements. If that is not true, either the rubric on the side is incorrect, or what the Government are saying is incorrect. May we have an answer to-day?
I shall certainly do my best to answer the noble Lord, Lord Beaumont, while his point is fresh in my mind. There is a perfectly sound answer to this question, and it probably lies in the fact that the noble Lord 561 may be something of a purist. It is true that the rubric in the margin refers to the pre-entry closed shop agreements to be void, and merely in order to help the reader the clause goes on to say in subsection (2) that subsection (1) shall not apply to anything in Clause 16, lest the person who reads this should believe that this subsection did bite on Clause 16. It does not mean to infer that Clause 16 represents a pre-entry closed shop.
§ LORD BEAUMONT OF WHITLEY
I am grateful to the noble Earl. What he is saying is that subsection (2) is purely helpful and does not of itself add anything to the Bill. It is not necessary.
I did not say it was not necessary; I said it was in in order to be helpful. The interpretation that the noble Lord put upon it, that Clause 16 did incorporate a pre-entry closed shop was not correct. This is put here in order to be helpful.
There were one or two points to which noble Lords referred. One of them came I think from the noble Lord, Lord Sainsbury, and I think the noble Lord, Lord Brown, also, that where good management exists, and where the agreement between the management and the unions is to have a closed shop, this in itself should be conducive to good management. I do not believe that this is so. The noble Lord, Lord Beaumont of Whitley, said that where unions and managements together agree to the existence of a closed shop that may very well be to suit their own convenience.
§ LORD BROWN
I think that inadvertently the noble Earl is rather misquoting me. I drew attention to the fact that there were good closed shop agreements and bad ones. May I say to the noble Lord, Lord Beaumont of Whitley, that where management and unions do not agree the liberty of the individual is likely to be much more severely affected than when management and unions do agree.
That is possibly something t hat could encourage a debate in itself. All I would say is that, in the whole of this Bill, we have the great problem—how to draw the balance fairly and equitably between, on the one hand, the rights of individuals as individuals, 562 and on the other the rights of unions and collective bodies corporately; and how to strike the right balance between the right a an individual to do as he wishes, and on the other hand his responsibility to society and to his fellow workers and the bodies of people with whom he lives and moves. It is this that has permeated the whole of this Bill, to try and get a fair balance.
Several noble Lords have said that the closed shop is justifiable. This is a view which many people hold, but the pre-entry closed shop is only one facet of the closed shop, and it is the pre-entry closed shop that we feel is not in itself justified. It means that, where this exists, before getting any employment a person has to apply to a union for membership, and risk the possibility of being rejected. This we do not feel to be the best balance between the worker on the one side and his responsibility to the union on the other.
§ LORD BROWN
Could the noble Earl comment on the idea I put forward, that the Government might consider allowing pre-entry closed shops to continue subject to an examination by the C.I.R.
That still means that before a person can get a job he first has to be accepted as a member of a union. The noble Lord says no, but it is possible for a person to go to a union and say, "Will you accept me as a member of your union?", and if the union says "No" he is unable to get a job.
§ LORD McCORQUODALE OF NEWTON
I have been for 40 years closely associated with the printing trade, which is very often held up as one of the most flagrant of closed shops for rigidity. I have also been chairman of the British Employers' Confederation, and the first industrial training council where two important industries refused to help other industries in 1960 to find work for young people because of the operation of that closed shop. Lord Hill was one of them; my own industry was the other. I do not recognise, in forty years in industry anything in the closed shop world similar to what the noble Lord, Lord Brown, and the noble Lord, Lord Sainsbury, suggested to-day. I am strongly in favour 563 of the Government proposals in this matter.
§ LORD STONHAM
The noble Lord, Lord McCorquodale of Newton, may not recognise the closed shop in anything that my noble friend Lord Brown said, but we have to consider the realities, as my noble friend Lord Sainsbury said. There are closed shop agreements between employers and trade unions which are not sinister and have no wrong intent. In my own firm we have operated one for 35 years, and it is quite informal; there is no written agreement, it is understood and it works. We like all the workpeople to be in a union because it is very much more simple. It is a better way of going on. We deal with one man instead of with a lot of individuals. This is something which helps employers, but this Amendment is dealing with those pre-entry closed shop agreements which are formal.
I cannot understand why the Government fail to see the importance of continuing and preserving those agreements which are supported wholly by the employers and which unquestionably are for the benefit of particular industries. The noble Viscount, Lord Amory, could not understand why my noble friend should have called this "retrospective legislation". If this Bill interferes with arrangements in my own firm, which have been going on for 35 years, I shall most certainly call it "retrospective legislation", and it will be.
§ VISCOUNT AMORY
I do not know whether I am allowed to make the same interruption a second time, but I must take issue with the noble Lord. Legislation not infrequently changes a situation, even forces different actions and conduct on people, and brings about the necessity for revisions of arrangements. There is no penalty involved here on anyone for anything that will have happened up to the time that this Bill becomes effective. I should have thought that that being so, any allegation of retrospective legislation must be out of order. I am a little sensitive about this because in another place I was accused of a crime worse than death: of myself introducing retrospective legislation. The noble Lord, Lord Diamond, may remember the circumstances of that. That made a deep 564 and lasting impact on me, and I have been rather sensitive about this ever since. I believe that the noble Lord, when he thinks about this, will agree that what I have said is right.
§ LORD STONHAM
There will not be a statutory penalty applied in this instance, but the penalty will be loss of an agreement of benefit to employers and employees. That is bad enough.
§ VISCOUNT HANWORTH
It seems to me that if there is a satisfactory closed shop agreement already working it should not be all that difficult to negotiate a new agreement which conforms with the Bill. The Bill does not make all that much difference at the moment, and if you have a perfectly satisfactory arrangement, for goodness sake review it and get one on much the same terms which conforms with the Bill. I am not the least impressed by the arguments on this side.
§ LORD DELACOURT-SMITH
If I may make some observations on the contributions which the noble Earl has made, with respect I do not think he really met the major argument which I ventured to submit to the Committee in support of this Amendment. He took his stand on the absolute right of an individual to choose which job he would go into; which occupation he would follow. There is no absolute right. The right can be exercised only if an employer can be found to employ you, so do not let us talk as though workers ever had any absolute right to work anywhere.
§ LORD DELACOURT-SMITH
I think the noble Lord said, "To work". I think the noble and learned Lord has a contribution to make.
§ LORD DELACOURT-SMITH
There are obstacles to about 800,000 people in this country at the moment. But the point I put to the noble Lord, and to which he has not addressed himself, is this. There are professions or occupations which for one reason or another are particularly susceptible to overcrowding; occupations where there is no objective standard of qualification which can be 565 easily applied and where the occupation has an inherent attraction; where the employment in itself tends in one way or anather to be casual and where, in default of some such arrangement as this, the occupation can become very seriously overcrowded, with the result that people in it have insecurity of employment and that the employers in it find that they have a constantly shifting, unreliable and unsatisfactory labour force.
I quoted two occupations—and I could have quoted others—where these conditions which had existed in the past had led employers and trade unions to agree on a pre-entry "closed shop" arrangement. So far as my knowledge goes, neither in the case of the theatrical profession nor in the case of the Merchant Navy has anybody advanced a single scrap of evidence that these arrangements work badly, either from the point of view of the employer or from the point of view of the workers or of the public. I was a little puzzled by the intervention which came from the Liberal Benches about the undesirability of having good industrial relations—or, rather, the undesirability of having management and trade unions in agreement. I do not know whether the recipe for good industrial relations is for them to be in total disagreement.
The Musicians' Union is of course another very good example and I am most grateful to the noble Lord for prompting it. Let us take the example of the Musicians' Union, where many people have virtually no regular employer. Very often an orchestra or band may be assembled for a particular engagement. I cannot see what arrangement one is going to have for an employer under Clause 16. What has he to do if he tries to establish an agreement under Clause 16? Must the man serve there a month within which he is going to join the trade union? As has been said by noble Lords behind me, we seem to be speaking about completely different industries.
§ LORD DELACOURT-SMITH
I think some noble Lords on the Benches opposite 566 have a rather bizarre idea in their minds of how trade unions operate and what the normal course of events is in industry. Those who make the legal approach have understandably usually had the opportunity of seeing an industrial relations situation at an exceptional moment of crisis, where trouble has probably built up over a long period. I do not think they always realise that what they see is a quite exceptional situation; and they do not appreciate the realities with which people have to deal who are concerned with the problems of industry day in and day out—not with a crisis situation but with the situation which consists of trying to avoid the crises.
The noble Lord also advanced as an argument that if this Amendment were adopted this would immediately precipitate a great rush of people to form "closed shops" so as to anticipate the law and take advantage of the clause as it would be if our Amendment were adopted. This is a rather strange conception, that there is a great pent-up desire; on the part of employers and trade unions to form closed shops.
I know the noble Lord does not wish to misconstrue what I said. I never said that this would precipitate a rush, but that it could encourage this to happen.
§ LORD DELACOURT-SMITH
I accept that it could encourage this to happen, but it would be very strange if in occupations such as this, employers and employees were to act in that way. I do not think it would be unreasonably accelerated if the Amendment were adopted. If the noble Lord will accept the spirit of the Amendment it could be incorporated later with the date, May 1, 1971, or some other date, if he believes this is a serious objection. The noble Lord has not met the main argument, and said whether he actually contends that in occupations which have these elements of uncertainty and insecurity which I have described—and given two examples of—it is the view of the Government that the workers must be completely powerless to influence the rate of entry to the industry, even if the regulation of the rate of entry is absolutely vital to stop serious overcrowding, serious under-employment, serious insecurity and worsening of conditions both from the point of view of 567 the workers and of responsible employers. I am sorry that he has not met these arguments. I must therefore advise my noble friends to press this matter to a Division.
§ 9.35 p.m.
§ THE LORD CHANCELLOR moved Amendment No. 56:
Page 5, line 39, at end insert
(1A) Any worker who, on application to an employer, has been refused engagement, and who claims that the refusal was attributable (wholly or in part) to a provision in an agreement which had the effect of precluding the employer as mentioned in paragraph (a) or
§ 9.28 p.m.
§ On Question, Whether the said Amendment (No. 55) shall be agreed to?
§ Their Lordships divided: Contents, 34; Not-Contents, 95.567
|Archibald, L.||Diamond, L.||Plummer, Bs.|
|Ardwick, L.||Evans of Hungershall, L.||Sainsbury, L.|
|Bernstein, L.||Gardiner, L.||St. Davids, V.|
|Beswick, L.||Garnsworthy, L.||Serota, Bs.|
|Birk, Bs.||Ken net, L.||Shackleton, L.|
|Brockway, L.||Lindgren, L.||Shepherd, L.|
|Brown, L.||Llewelyn-Davies, L.||Stonham, L.|
|Champion, L.||Llewelyn-Davies of Hastoe, Bs.||Stow Hill, L.|
|Chorley, L.||Morris of Kenwood, L.||Strabolgi, L. [Teller.]|
|Cooper of Stockton Heath, L.||Phillips, Bs. [Teller.]||White, Bs.|
|Davies of Leek, L.||Platt, L.||Wynne-Jones, L.|
|Ailwyn, L.||Elliot of Harwood, Bs.||Molson, L.|
|Airedale, L.||Emmet of Amberley, Bs.||Mowbray and Stourton, L.|
|Aldenham, L.||Falkland, V.||Moyne, L.|
|Aldington, L.||Ferrers, E.||Napier and Ettrick, L.|
|Amery, V.||Ferrier, L.||Nugent of Guildford, L.|
|Balfour of Inchrye, L.||Fortescue, E.||Penrhyn, L.|
|Barnby, L.||Glasgow, E.||Rankeillour, L.|
|Barrington, V.||Goschen, V. [Teller.]||Redesdale, L.|
|Beauchamp, E.||Gowrie, E.||Reigate, L.|
|Beaumont of Whitley, L.||Gray, L.||Roberthall, L.|
|Belhaven and Stenton, L.||Grenfell, L.||St. Aldwyn, E. [Teller.]|
|Belstead, L.||Hailsham of St. Marylebone, L. (L. Chancellor.)||St. Just, L.|
|Brabazon of Tara, L.||St. Oswald, L.|
|Bridgeman, V.||Hanworth, V.||Sandford, L.|
|Brougham and Vaux, L.||Harcourt, V.||Savile, L.|
|Burgh, L.||Hatherton, L.||Selkirk, E.|
|Byers, L.||Henley, L.||Selsdon, L.|
|Chesham, L.||Hives, L.||Sempill, Ly.|
|Conesford, L.||Hood, V.||Sinclair of Cleeve, L.|
|Cork and Orrery, E.||Inchyra, L.||Somers, L.|
|Cottesloe, L.||Jellicoe, E. (L. Privy Seal)||Stamp, L.|
|Cowley, E.||Kemsley, V.||Strathcarron, L.|
|Craigavon, V.||Kilmany, L.||Strathclyde, L.|
|Cromartie, E.||Lauderdale, E.||Stratheden and Campbell, L.|
|Cullen of Ashbourne, L.||Lothian, M.||Templemore, L.|
|Digby, L.||Lucas of Chilworth, L.||Teviot, L.|
|Drumalbyn, L.||McCorquodale of Newton, L.||Teynham, L.|
|Dulverton, L.||Mansfield, E.||Thomas, L.|
|Dundonald, E.||Margadale, L.||Tweedsmuir, L.|
|Eccles, V.||Massereene and Ferrard, V.||Tweedsmuir of Belhelvie, Bs.|
|Effingham, E.||Merrivale, L.||Vivian, L.|
|Ellenborough, L.||Mills, V.||Windlesham, L.|
Resolved in the negative, and Amendment disagreed to accordingly.
paragraph (b) of subsection (1) of this section may apply to the Industrial Court for an order under the next following subsection.
(1B) If on such an application the Industrial Court finds—
§ The noble and learned Lord said: I rise on behalf of my noble friend, who will reply to the debate on this Amendment—if there is a debate—to move Amendment No. 56. I do not know whether this is likely to be a controversial Amendment and, if so, how controversial. It is in fact designed to stop an obvious gap. The Bill as it is drafted has a gap in it because the agreements made void under the terms of the Bill as drafted would have to provide for a pre-entry closed shop totidem verbis. But, of course, it would be very easy to drive the proverbial coach and the proverbial horses through such a provision, because you could say, for instance, that in order to be engaged a person would have to secure approval of two named persons, and that might have the same effect. Therefore, this Amendment is proposed, the effect of which is to give to a worker who is prevented from entering employment on grounds which he claims to be an effective pre-entry closed shop, an appeal to the court to establish that fact. If he fails to establish it, he cannot get in. If he does establish that it is an effective pre-entry agreement that has stopped him to a material extent, he wins his case and the agreement of which he complains is void. I do not think that there is more I need say about it, and I beg to move.
§ BARONESS WHITE
I hesitate, needless to say, to cross swords in any legal spirit with the noble and learned Lord the Lord Chancellor, but we have taken such legal advice as is available to us, and we are very much concerned about this particular Amendment, because we find, quite frankly, that it could work extraordinarily badly in practice; at least, that is our apprehension. We assume that the object of it, among other things, is to close a loophole, if there were a tacit agreement that was not, possibly, a formal written agreement between the two sides. It may be partly this that the Government have in mind, and perhaps that could be made clear a little later on.
But if one looks at the practical nature of the consequences of this Amendment, 570 may we ask the noble and learned Lord just what is meant in the third line of (1)(A) by "wholly or in part", because it has been put to us that this might be a very difficult thing to determine. We are assuming that the employer, as well as the union, is a party to any such agreement, and that it is in the employer's interest, therefore, if he does not wish to employ a particular worker, to stand by the agreement, whether it is a formal agreement or an understanding—a tacit agreement. If he is brought before the Industrial Court by someone who is aggrieved, the court can ask him, what were his reasons for not offering an engagement to this particular person, and the employer has a number of answers which he would be able to give. He could say that the person concerned was not adequately skilled for the particular job; that he may be too old, or too young, for the responsibility of the position; that he may have a poor health record; that he may live rather far from the place of employment and there may be travelling difficulties if the workers are on shifts, and so on. He might, nevertheless, have at the back of his mind that the man is not in fact a member of the union with which he, the employer, is in agreement, and with which he has satisfactory relations.
What does "in part" means? Is he permitted, at any interview with a prospective employee, to inquire whether the prospective employee is a member of a union? If he asks him this question, would this be taken as evidence that, in part, his ultimate refusal of employment was on that account? We can see all sorts of complications here. We are very much concerned about it, because it will be appreciated that any aggrieved individual who has not been appointed to a job, and who can make any suggestion that there is some sort of agreement between the employer and the union or unions concerned, can go to the industrial court and take up the time of the Industrial Court. I submit that this is an important consideration because the Industrial Court, after all, is the senior court. There are industrial tribunals, but this goes to the Industrial Court, as I understand it. Therefore, we should be very circumspect indeed in laying burdens upon the Industrial Court unless we are quite sire what is the nature of the representations which may be made to them.
571 I can only say that we have been advised (by such legal advice as we have been able to obtain from those who have more experience certainly than I have in any such matters), that this part of the proposed Amendment could lead to endless, mischievous and irritating litigation before the Industrial Court by various persons who might feel they ought to have had a job and did not get it, and who can produce all kinds of reasons why they believe that why they did not have the job was because of some sort of collusion (shall we put it?) between the employer and the union, or unions, concerned, and that this was the barrier. A great deal of time will have to be spent by the court, by people representing the parties, by the employers, in making certain that in every single case where they do not engage a worker where there might be any sort of prima facie suggestion of an agreement between employer and unions, they would presumably have to keep a tape recorder to record what questions they had put when the man came to be interviewed for employment, because even if it was in part—and we do not know what proportion "part" means—an element in the decision of the employer not to employ the person, then presumably this subsection could be invoked.
Turning to (1B), we are also worried about this because it is not clear to us quite how one would deal with the situation before the Industrial Court if they were considering:that an agreement is in force consisting of or including a provision so formulated as to have the effect specified in subsection (1A) of this section, however that provision is expressed and whether it purports to have that effect or not".We have called this Bill a "lawyer's picnic", and surely words of that kind could provide some skilled legal representatives with the most ample opportunities for argument. Therefore, we are very much concerned not only with the whole principle of the clause, which we do not find very attractive, but also with the drafting which seems woolly and inconclusive and likely to lead to endless arguments before the Industrial Court, taking up a great deal of everybody's time and, we suggest, to little effect. So it would help us very much indeed if the noble and learned Lord the Lord Chancellor could explain how he sup- 572 poses that these two subsections of this Amendment will be handled in the Industrial Court, and could give us any sort of assurance that they can be handled in such a way that they will not be open to the sort of objections which have been put to us by people experienced in these matters, who say that this Amendment is very unhappily drafted.
§ 9.46 p.m.
§ THE LORD CHANCELLOR
I do not know whether this will lead to a debate on the merits of what the noble Baroness has been putting to me, but may I reply because she has asked perfectly legitimate questions and it may be that I can answer them? Her fears about subsection (1A) are really groundless, because if she looks at the terminology she will see at once that this is not something which the Industrial Court will have to determine at all. It simply indicates the circumstances in which the worker can make an application, and that is when he says that there is an agreement in force. What the Industrial Court will have to determine is subsection (1B). That simply states that if a workman thinks he has a particular kind of grievance, he can then apply to the Court which will then have to determine the facts in subsection (1B), and it is subsection (1B) which is the operative one from the point of view that the noble Baroness is putting forward.
The worker has to prove three conditions. There may be difficulties in them, but they are all difficulties in the way of the worker. They are not difficulties in the way of the tribunal or in the way of the trade union. They are difficulties in the way of the applicant, and the applicant is the worker who says that he has a grievance. What is the nature of the grievance? The grievance is that, although in form there is no pre-entry closed shop agreement, there is in operation an agreement which looks like something else but is a pre-entry closed shop agreement. I gave an example when I opened. If I said that nobody shall get employment as my clerk unless he has met with the approval of the Secretary of the Communist Party of Great Britain and the President of the Students' Union, that would not in form be a pre-entry closed shop agreement, but you might well argue that it had the same effect. In other words, the subsection is designed to 573 prevent evasion. It is not designed to deal with the case of a covert agreement, which you probably cannot deal with at all if it succeeds in remaining covert. It is designed to deal with the case of a bogus agreement calculated to outwit the Act.
In order to succeed in subsection (1B), a worker has to achieve three conditions and all the difficulties are his, because the burden of proof remains on him throughout. The first is paragraph (a), to show that there is an agreement of some kind in force. If there is no agreement of any kind between the employer and the trade union, or he cannot prove that there is, then that is an end of the case before he begins. Then he has to show what the agreement includes, and it must include a provision which has the same effect as is prohibited by the burden of the Act; namely, it must have the same effect as a pre-entry closed shop even though, in fact, it is not one in form.
Secondly, he has to show that he has been refused employment; otherwise, he has no grievance at all, however many agreements there are. Thirdly—it is part of the second provision, paragraph (b) of (1B)—he has to show that that refusal was wholly or in part due to the operation of the agreement. In other words, if all that he can show is that the employer shook his head and said, "No, you are too young", or, "No, you are too inexperienced", or, "No, you have not the necessary qualifications", or, "No, we already have an applicant, and we like him better", he does not succeed. He has to show that not only is there an agreement with an offensive provision in it, but that he was refused employment because of it. My mind goes back very much to the debates I had in another place in Committee on the Race Relations Bill, when I was, if I may say so, arguing the opposite case. The answer I always got from the Labour Party was a very much less convincing answer than I am giving now. The answer which I am giving now is convincing because, although there are some difficulties, they are all difficulties in the way of the applicant; they are all difficulties of which the union and the employer, who are "in cahoots" with one another ex hypothesi in this case, can take advantage.
574 Further, he has to show that the provision which he objects to is not something which, by some wild cast of the imagination, might conceivably be regarded as offensive to the pre-entry closed shop prohibition. It has to be substantially offensive to that provision. So he really has a very difficult row to hoe. Without taking away this anti-evasion provision, I do not really know that we could make it more difficult. I am not criticising the legal advice which the noble Baroness says she has had—I am sure she has had it—but I think perhaps her anxieties have been excited by this advice beyond the bounds of what is really reasonable.
§ LORD BERNSTEIN
Before the noble and learned Lord the Lord Chancellor sits down, perhaps he could help me. I understand that (1B) relates to what the Industrial Court can do and finds. The new subsection (1A) relates to the application of the worker. Can the noble and learned Lord tell me how "wholly or in part" help that provision in any way for a worker? Assuming the words were not in, it would read,who claims that the refusal was attributable to a pro vision in an agreement",et cetera. The other part that the noble and learned Lord mentioned, concerning the Industrial Court, relates to the worker. How is he affected by the inclusion of these words, or how would he be affected by the exclusion of those words?
§ THE LORD CHANCELLOR
I think that is a pretty obvious question, really. Oddly enough, it was that very point which led me to recall the debates on the Race Relations Bill. Suppose you have a black man who comes in for a job, the employer does not want to employ him, and the black man is dead sure it is because he is a black man. The employe- says, "It is true I do not like black man very much, but actually this man stuttered", or, "this man did something else that I do not like, and it was partly due to that"; so he does not get the job. Unless you put the words "in part" in your provision against discrimination, you cannot protect him. This is designed to prevent the prevaricating employer who says, "It is true he was not a member of the union, it is true that the agreement prevented it, but I thought he lisped rather and he would be bad for 575 my customers, because I did not like the look of him". Then the employee is entitled to say that "in part" it was due to the provision, even if the employer is telling the truth, which he probably is not.
§ THE LORD CHANCELLOR
Yes. It is so designed. It is the one provision which makes the task of the applicant easier. It is the one piece of phraseology in the anti-evasion clause which makes it easier for him. The rest is all the difficulties put in his way.
§ BARONESS WHITE
We are grateful to the noble and learned Lord for his explanation, but I am still not entirely happy about this. I believe that the Industrial Court will be troubled by applications to it. It will take a great deal of time. I am also concerned about the consequences for industry. The new subsection (1B)(b) says:That the refusal of the employer to engage the worker was wholly or partly attributable to that provision;Surely this means that the employer or his representative is likely to be called upon to give evidence. One will not simply take the word of the aggrieved non-employee. Will it not mean that the employer will have to keep careful records of anybody to whom he does not give a job?—and he may not know this at the outset of an interview. Will this not be a burden on the personnel department of large firms, and an even greater burden on smaller firms with no such departments. This aspect certainly concerns the employer. I can see the Government's point of view. They want to block a possible loophole. But it will be a burden on the Industrial Court, and on the employer, and not only on the worker.
§ THE LORD CHANCELLOR
I doubt whether the Industrial Court need cause the noble Baroness much anxiety. Assuming that it does its job properly it will know how to deal with frivolous applications. But the second point overlooks the fact which I tried to emphasise, that before you can invoke this clause and get it airborne you must prove that there is an agreement in force the effect 576 of which is offensive in the sense that it would create a pre-entry closed shop. Until that moment arrives it does not get airborne. When that moment arrives the applicant is in a better position than if he had failed to start; but even then he is only at the beginning of the "snakes and ladder" course, because he has then to establish (b). I am afraid that the history of the Race Relations Board, which has similar problems to consider, has shown that a lot of people think that because they did not get a job it was for the reason that the Act provided, when usually it was for some personal shortcoming of their own. If a case cannot be established the employer will not have to give evidence at all. But if the applicant claims that the employer said, "You are not a member of union 'X' and I have an agreement with 'X' and cannot employ you—and anyway I don't like your face in the bargain", then I think the employer would have to give evidence.
§ On Question, Amendment agreed to.
Page 5, line 40, leave out ("Subsection (1)") and insert ("Subsections (1) to (1B)").—(Lord Drumalbyn.)
§ On Question, Amendment agreed to.
§ 10.0 p.m.
LORD ARCHIBALD moved Amendment No. 57A:
Page 5, line 41, leave out ("in so far as it constitutes, or would constitute") and insert ("of").
§ The noble Lord said: In moving this Amendment, which in many respects is a very technical Amendment and one which at one time might have been called a paving Amendment, I do not feel that I should deploy the main case, which I think would be more appropriately done at a later stage of the debate. May I say, first, that I intervene in this debate as one who has had some considerable experience in industrial relations but, unlike most of my colleagues on this side of the Committee, my experience has been entirely as representing in industrial relations the employer's side of the case, either as representing a company or as representing an employers' association. So I do not come to a consideration of the Bill without some 577 considerable experience over a great many years. What I am leading up to concerns the clauses which deal with fundamental things—and at this stage I should apologise to the Committee for not being here earlier in the clay when from the Liberal Benches some Amendments were moved which had a bearing on this matter, but I was unavoidably absent from the Committee.
§ Probably the main debate on what I have in mind would come under either Amendment 128A or 135A, and I hope the Government will either accept this technical Amendment, or agree that it might be referred, if necessary, to a later stage.
§ The point I am mainly concerned with has been dealt with already this evening by my noble friend, Lord Delacourt-Smith, and others. It refers essentially to the problems concerning Actors' Equity. I am bound to say that I do not think the realities of this situation have been understood on the other side of the Committee. We have had a lot of theoretical arguments which bear no relationship to the actual situation, if I may say so. There has been this discussion about the pre-entry and the post-entry closed shop, but there is something in between, and that is what might be called "the point of entry closed shop". I know this situation mainly from the film industry side rather than from the theatrical side.
§ If a film producer wants to employ a German or American actor, or an actor in this country who is not a member of Equity, he puts his case, and if Actors' Equity disagrees it goes to a council for consideration. If the council decides that this particular person should be employed and then, on the point of engagement, he agrees to join Actors' Equity, it is not pre-entry membership of Equity; it is not post-entry. It is just at the point of engagement. He agrees that the council, or Equity without going to the national council, may agree that he is an appropriate person. He agrees, and they agree, that he should become a member. It does not fall into either of the categories of pre- or post-entry. This is something that I think the Government might look at again.578
§ We are concerned that all employers should conform to the standards arranged between Equity and the appropriate employers' organisations. In other words, all we are asking is for the retention of the status quo. This is one of the cases where the status quo has operated without, I think, any hardship to either side. It was either the noble Lord, Lord Byers, or the noble Lord, Lord Beaumont of Whitley, who talked about cases of victimisation; but I do not know of such a case having arisen on this. That is one aspect of the matter. The other aspect is that this is a particular industry where the flood of new entrants must be kept within reasonable bounds. There has been talk about qualifications. That may apply to the legal profession, the accountancy profession, or to the chartered surveyors' profession. But when you start to talk about the acting or dramatic profession you are entering a field so wide as not to give the word any meaning at all.
§ If you take the output of all the drama schools, and assume that all those who get their diplomas from them have qualifications, there would be as many entrants a year as the total membership of Actors' Equity; and far more than the profession could possibly absorb. You would have young entrants offering to work for £2 a week, or for nothing, in order to get in, and that is a nonsense. I may be trespassing beyond the bounds of this Amendment, but I am trying to indicate that it is a paving Amendment for other Amendments which would maintain the power to require unwilling employers to come into line with those who accept the main provisions.
§ LORD DRUMALBYN
Will the noble Lord forgive me for interrupting him? Would he mind repeating for which Amendments this is a paving Amendment?
§ LORD ARCHIBALD
I would not like to be held to this but I think it is Amendments Nos. 128A and 135A. There may be others, but as I have been away for 24 hours I have not been able to check with absolute accuracy. If the noble Lord will agree, I will look at this again and advise him. My point is that this applies in the film industry and in the theatrical industry. In the film industry the situation is peculiar. Generally there is a main company, which we may call "A.B.Q." 579 —in case I should be thought to be refering to an existing company—and for each film they set up a different company. The main company is a member of the employers' association and is bound by the agreement. But they set up "A.B.Y." as the company to make the film, for reasons which, as a layman, I would not know; it may have something to do with taxation. This new company, "A.B.Y.", is not itself a member of the employers' organisation and would not necessarily be bound by the membership of what is not exactly the parent corporation, but at least the dominant corporation.
Again, in the theatrical field I am told that there is at least one major theatrical employer who will not join any of the theatrical associations and therefore is not technically bound by any of their agreements. If this Bill is to be effective it should require the—I do not want to say the fly-by-night employer, because that might be slanderous, but the unwilling employer to conform to the standards agreed by the good employers. That is what I am leading up to. I do not think the Government would disagree in principle with anything I have said, and I hope that at a later stage we may be able to agree upon Amendments to give effect to the principles which I have mentioned. I beg to move.
§ LORD DRUMALBYN
I am grateful for the very interesting speech of the noble Lord, Lord Archibald. The trouble is that she did not exactly show what he wanted to be the effect of the Amendments which he moved. He regarded them as paving, but he did not say what effects they would have. It may shorten the discussion if I were to say I had been prepared to accept these Amendments purely as drafting Amendments. Of course, as they are paving Amendments I might be tempted not to accept them after all, but I think it would be only fair in the circumstances to say that, as we were going to accept these anyway, we shall accept them. That will give the noble Lord an opportunity to move his Amendments, if indeed they are necessary for the Amendments he has to move later.
§ On Question, Amendment agreed to.580
Page 5, line 42, leave out ("in so far as it constitutes") and insert ("of").—(Lord Archibald.)
§ On Question, Amendment agreed to.
§ 10.12 p.m.
§ On Question, Whether Clause 6, as amended, shall stand part of the Bill?
§ LORD DELACOURT-SMITH
At an earlier stage we sought to move an Amendment which would have limited somewhat the deleterious effects of the clause which is now before us, and in moving that I explained the reasons why we felt this clause was an unhelpful one. I do not propose to rehearse the arguments which I then used, save once more to say that I do not feel that the Government spokesmen have so far met the main argument which I sought to advance. We have had no clear indication of what value they think arises from subsection (1)(b). It is really a very vague formulation. One knows, for example, that there are some cases of unions which have agreements with employers, specifying qualifications which workers engaged should have. There are other cases of men who are engaged on heavy manual work on a piecework basis, where there are agreements the purpose of which is to ensure that any additional men recruited are of a very good physical standard, so that there is no diminution of the group piecework earnings. There are all sorts of arrangements which might be brought under subsection (1)(b) which are practical and reasonable arrangements and would assist in the creation of a good and reasonable atmosphere.
I must again make the point, which has not to any degree been met by the spokesmen of the Government, that our concern is particularly acute in the case of industries of the kind I have already described, where no specific qualifications are required beyond acceptance by the employer and where, because of the character of the occupation, there is a great danger of overcrowding and a reduction of standards, to nobody's advantage. I am extremely glad to hear the noble Lord say that the Secretary of State is still in discussion with Equity and I take it with other unions in the entertainment field, because we certainly feel that their position has not been adequately met. I also took as an 581 example the Merchant Navy and I trust that at some stage of the Bill the Government are going to endeavour to find a way of meeting the very real problems which exist there. There are other industries where similar difficulties, to a greater or lesser degree, arise.
And the noble Lord has not met the point that the implication of what the Government are saying is that it is purely and solely for the individual employer to recruit workers that happen to suit him—the irresponsible employer just like the responsible, and it is the responsible employer who is going to be hit by the application of arrangements of this sort. It seems to be the point of view of the Government that workers collectively are not entitled to expect any arrangements which will enable them to protect the industry, in which the serious and dedicated workers effect their livelihood and careers, from this wholesale inflow of people who can reduce standards. This is a real problem, and I wish the Government would give some indication of their thinking about it and not merely fall back on these no doubt well-meaning but frankly somewhat platitudinous and in some cases unreal general observations.
I am still completely mystified by subsection (2). I did not understand it before and I still do not understand it after the explanation which the noble Lord gave. It did not seem to me that he met the points raised by the noble Lord, Lord Beaumont of Whitley. The last point I want to make is this. It is all very well for the Government to say, in comforting fashion, that if there is a good case for it, then the employers and workers concerned will no doubt get together and create either an agency shop agreement or a closed shop agreement. I do not want to anticipate matters we shall be discusing under Clause 16, but a closed shop agreement can hardly come into existence overnight. Therefore I take it that the Government have appreciated that even if the most speedy steps are taken following the passing of the Act to operate Clause 16, these arrangements would inevitably lead to a gap of time, which surely would produce a most unsatisfactory and disturbing hiatus. I believe that this is a clause at which the Governments 582 should be prepared to look again quite fundamentally. My noble friends and I have made quite clear our criticisms of it. We must confess that we do not feel that they have been fully met, and we regret that the Amendments that have been put forward to try to mitigate the serious consequences were not accepted by the Government.
§ LORD BROWN
I should like to make a rather separate point on Clause 6 which the Government may not have foreseen. I may be wrong about this, but it is the way I read it. Clause 6 makes provision that any agreement which precludes an employer from engaging a worker because he is not a member of a particular organisation of workers is void unless there is an agency shop agreement in existence. The unexpected result of this could be, so far as I can see, that unless an employer has an agency shop agreement he is precluded from advertising in a form that is not uncommon, saying that an applicant must be a Member of the British Institute of Management, or a Member of the Institute of Personnel Management, or a Member of the Institute of Chemical Engineers, because he is then saying that the applicant must be a member of an organisation of workers, otherwise he need not apply. If that is the result of Clause 6, we ought to understand that it is so. I should regard it as rather serious. If it is not so, I should like it to be explained why it is not.
§ LORD BERNSTEIN
I should like to support my noble friend Lord Delacourt-Smith, who put forward, I thought, a very direct argument. I would declare my interest. One company in which I am heavily involved has at least six unions working together, and they are all closed shops. Although they are not always as helpful as my colleagues and I should like, we prefer the closed shop. There are practical benefits in dealing with a 100 per cent. union shop. It makes for stronger unions, and I gather from the debate last night that that is what the Government are trying to secure. As my noble friend Lord Delacourt-Smith said, some of these trades are overstaffed. Some of the members of film and theatrical organisations—the A.C.C.T, the N.A.T.K.I., E.T.U., Equity, and the National Union of 583 Journalists—are in trades which are overstaffed and under-employed. The need to underline this problem is a matter for rather urgent Government attention. The noble Lord, Lord Beaumont, said that when management and unions agree it is at the expense of the worker—
§ LORD BEAUMONT OF WHITLEY
If the noble Lord will forgive me, I did not say that, and I certainly would not have said it. I agree that when management and trade unions agree it is very often a good thing. I merely say that that is the moment when the State should be aware that the rights of the workers need safeguarding.
§ LORD BERNSTEIN
Then I withdraw that. Hansard will tell us to-morrow what was actually said.
I thought the point of the Bill that the Government are putting forward was to make the unions stronger and to create industrial peace. As every employer knows, the closed shop has produced problems and has affected industry. But how much has it affected industry? How much has it been responsible for strikes? Nobody has come forward with any facts in this Committee. The noble Lord, Lord Windlesham, produced some few facts the other night which I should like to have the opportunity of taking up with him quietly at another time. A noble Lord opposite gave the printers' union as an example of where closed shop troubles have caused serious problems for the industry. Could it be that the printing employers are partly or completely responsible for the troubles? It was said on the Front Bench in the other place that weak management has produced difficult unions. It could be that in this matter the Government are right.
Incidentally, why the agency shop? I have read the Bill time after time and find it hard to understand the legalistic jargon. Why not just say that any worker in a closed shop, if he is a genuine conscientious objector, should have the right to pay union dues to a charity without formally acquiring membership. That seems to me to be simple and direct, and to save a lot of legal jargon. I think the closed shop provisions more than any other in this Bill show a Canute-like attempt to change social mores by Act of Parliament. I 584 urge the Government to think again on this matter, which affects millions of people.
§ VISCOUNT MASSEREENE AND FERRARD
Would the noble Lord not admit that the closed shop is a great cause of restrictive practices? It has been in my experience.
§ LORD BERNSTEIN
What are restrictive practices? If you can define that for me in terms that I can answer I will try and get some information.
§ LORD DAVIES OF LEEK
One of the questions which we have been asking is how much real consultation has there been with the T.U.C. before clauses like this have been drawn up. I see in this Clause 6 an effort—and with the agency shops—to build sporadic types of unions that will undermine trade unionism as we understand it. We are told, my Lords, that there are certain boons, gifts and encouragement in this legal framework we are building for the unions. The agency shop we shall talk about in depth when we reach the famous Clause 10, and we will get some information on it.
What is presented here in Clause 5, and the elements that overlap in Clause 6, will mean the doom of scores of tiny but effective unions in very skilled trades that are still needed in this technological age. There are still great crafts and trades that are small but effective, and in some cases because 16 men in a special craft could keep 1,000 others out of work, some people have spiked that down as one of the jealousies against the trade union movement, because it is alleged that such a thing has happened. A formula has been discovered in Clause 6 which I believe will lead to bitterness if this Bill ever becomes effective. It will not become effective; the way we are going there will be a General Election before it is effective. This Bill will destroy some of the best of the great craft unions. There is an effort here—hidden, but it is there—and I will explain it when we get to the famous Clause 10, for industrial unionism and plant unionism.
Lastly, this forward looking Government we have, that wants us to rush like Gaderene swine into the Common Market, what is to be the effect of this type of unionism when we take a quarter of a million unemployed Italian workers into the country?
§ LORD DAVIES OF LEEK
Ah, the right of movement. It is no good the Liberal Party saying "Ah, ah" or "Oh, oh"—they have been saying that for 40 years. That is why they are where they are. We want ultimately a European system of unionism, but if there is to be a movement of people we want a system that will be not weakened but strengthened. One of the purposes of the Common Market was said to be mobility of labour. One side argues that you must have a Common Market and move "you backward workers of Britain", and have mobility of labour. At the same time as you secure a mobility of labour you build a cast iron legal framework, spiked down with sparks and spanners, which human beings can never break out of. My figure of speech expresses this perfectly. This is a legal binding to hold people in at one moment, when at the other moment you are asking for mobility of labour. It has neither common sense nor logic.
It has been a very pleasant debate to-day. I said this afternoon when we started this debate that I had heard a little girl from Bristol University on the nine o'clock news saying that this is the "Be Nice Day", and everybody should smile at everybody else. We all started smiling at the talented Government. I am hoping that when the kindly noble Lord stands he will make a concession —and he has made some already—and say that at least he will take this clause away for a week and have another look at it.
§ 10.22 p.m.
§ LORD DRUMALBYN
I do not want to reduce the kindly atmosphere and spoil it in any way, for I welcome it. There has been a certain amount of misapprehension that still exists on this clause. The noble Lord, Lord Davies of Leek, who has just talked to us so agreeably, has said that there is a danger if we go into the Common Market of a great influx of workers; but one of the points that the noble Lord, Lord Delacourt-Smith, perhaps misunderstood, too, is that there is nothing in this clause, or any of the provisions here, that would prevent the laying down of qualifications for entry. Nothing will prevent agreement between the unions and the 586 employers about what those qualifications should be. It is totally mistaken to think that it is essential to control all entry to certain professions, or the regulation of entry to certain professions, and that those who come into these professions must first be union members.
If it is accepted that there is an overcrowding problem, then this can be met by raising the standards of qualification for entry. It can be met by restricting the newcomers to a fixed proportion of those already employed by apprentice ratio; it can be met by requiring a particular degree of experience in some related field or occupation, and I have no doubt in other ways. What is prevented—
§ LORD DELACOURT-SMITH
I quoted repeatedly two examples. I appreciate that there are various methods of regulating entry to an occupation. Would the noble Lord relate those to the two examples that I gave; and would he say what part, if any, he thinks the trade unions are entitled to play in effecting that regulation? The two examples were the theatrical profession and the merchant navy. Would he say, in general terms, what part he thinks the workers, through their trade unions, are entitled to play in controlling entry to an occupation?
§ LORD DRUMALBYN
In general terms, the first way in which the workers can be brought in is by consultation on the general prospects of the industry, and the recruitment needed to meet them. Noble Lords have failed to distinguish between the qualifications, and so forth, on the one hand that can be laid down and, on the other hand, the individual applicant. So far as the individual applicant is concerned, what will be prohibited is the requirement that as a condition of his getting the job he should already be a member of a particular trade union, or he should be recommended by a particular trade union. That is what will be stopped here, and we believe it is highly desirable to stop this. I will come to the noble Lord's point. We do not see any harm whatever that can result from the removal of the pre-entry closed shop. It has been admitted on all sides to-day that there are cases where the closed shop does harm—the pre-entry closed shop does do harm. It is to meet 587 those particular cases that this provision is made.
On the previous Amendment, the noble Lord, Lord Archibald, dealt with this very special issue of agreements where one can say that the applicant joins the union and is taken on practically simultaneously. Under the agency shop it is simply a condition that if a man is taken on he must join the union or pay a contribution. No doubt when he is taken on he will then undertake to join the union. He can do it the next minute—I do not know what you call "simultaneous"—if he likes; if the union will have him. That is another point—if the union will have him.
I hope that I have covered that point, but there is just one other point I should like to deal with. It is a very important point which the noble Lord, Lord Delacourt-Smith, raised. He raised the question of voiding of existing arrangements through the voiding of the provision for a pre-entry closed shop. As I understand it, if you make a provision in an agreement void you do not necessarily make the whole agreement void; you make only that provision in the agreement void. What one is left with, then, is something very like the agency shop. I doubt very much whether you will need a great deal of negotiation to make it conform with an agreed agency shop. The only thing is that one must allow those who do not want to belong to the union to opt out of membership, if they so wish, and make a contribution to union funds instead. I would doubt very much indeed whether there would be many people exercising that right, but in our view it really is important that that right should exist. So I really do not think there is very much in this.
I owe it to the Committee also to give a little explanation on subsection (2), which looks a very formidable one. In fact, it is purely declaratory. Indeed, it is merely saying that this clause shall not apply to an agency shop agreement or to an approved closed shop agreement; because both of these practices would not be "on". The pre-entry closed shop could not apply either. So that is the explanation of that. I think noble Lords opposite thought it was something rather formidable. The noble Lord, Lord Brown, sought to link it with subsection 588 (1). It is not linked, except in the sense that agency shop agreements and approved closed shop agreements cannot be affected because by their nature it would be impossible for them to contain any element of a pre-entry "closed shop".
§ LORD SHACKLETON
Before my noble friend Lord Brown speaks, may I say that for some time I was absent from the Chamber. I came back in a spirit of optimism, believing that the Government might understand precisely what they are doing in this legislation, but I do not believe the Government have answered the points made by my noble friend Lord Brown. I hope that he will come in again on this debate. Least of all have the Government understood the points made by my noble friend Lord Davies of Leek, with reference to the position of craftsmen. These points were spelled out by my noble friend Lord Delacourt-Smith in a different context in regard to actors and seamen, but there has been no reply from the Government.
I must say to Lord Drumalbyn, who is treating us with his customary civility, that I do not believe he really understands what he is advocating. I say this quite seriously. I question seriously whether any of the noble Lords behind him actually appreciate it, other than the generalised idea that somehow it is wrong to require people to belong to a union. It is this aspect of the Government's indifference to the reality of the situation, particularly in relation to craft unions, that we find disturbing. A degree of co-operation, whether it is a condition or not, is essential. I am sure that the noble Lord, Lord Drumalbyn, with his previous experience at the Ministry of Labour and so forth, must know that it is sensible that there should be cooperation between trade union secretaries and others sometimes amounting to an explicit agreement and sometimes not. What he has in fact been saying is that one can require qualifications provided that does not involve the qualification of belonging to a particular trade union. I wonder whether the noble Lord has fully grasped the practical objections to this.
I ask the noble Lord to address his mind particularly to the points made by my noble friend Lord Delacourt-Smith 589 and others of my noble friends. We are now clearly moving into the crunch of the Committee stage when we must probe the intentions of the Government to find out whether they understand precisely what they are doing. It is our contention that in certain respects—and I am sure that many noble Lords with experience of trade union matters agree—the Government's case does not stand up. I hope that an attempt will be made to answer some of our criticisms.
§ LORD BROWN
I do not want to continue discussion on the point I made earlier, but I want to get something on to the record because I am trying to be helpful. We all remember that we did not do as good job as we ought to have done on the Race Relations Act. There was the case of a doctor in Bournemouth who advertised for a Scottish cook because he wanted his porridge made properly, and he was prosecuted. This was reported in the Press. I am trying to avoid any similar mistake being made. An employer who has not an agency agreement might advertise saying that he wants someone who is a member of a particular trade union or organisation of workers. He may be breaking the law if the association of workers which he names falls within the ambit of Clause 59(1)(a) which defines an organisation of workers. It is possible that some of the organisations referred to by noble Lords on the Government Front Bench as professional associations might be concerned. The Lord Chancellor brushed me aside several times saying that I was wrong, but he was talking to a man who has had a great deal of experience. If you get caught by Clause 59(1)(a) because you will not listen to me, be it on your own head. That is all I have to say.
§ LORD DRUMALBYN
I apologise for not dealing with that particular point. As I understand it, there is a differene between an organisation in its capacity of negotiating terms and conditions of employment through collective bargains, and in other capacities which have nothing to do with that. But I will gladly look into that point., and if the noble Lord really has found something we shall be exceedingly grateful to him. I am sorry I did not cover that point. I am afraid I was diverted by his previous point, and I thought at that time that noble Lords were anxious to get on.
§ LORD DRUMALBYN
I thought the Committee was getting a little impatient to get on. I know I did not answer the point about the actors and the seamen; the reason for that is that we shall have an occasion to debate that when we come to Clause 16. I do not want to be forced to debate again and again the same point. In fact, it was out of order.
§ LORD DELACOURT-SMITH
It is no good he noble Lord saying that. It was his side of the House that drew up the Bill in this way, not our side. If the Bill is so drawn up that it necessitates repeated discussion of the same or a closely related point, that is because of the way in which such legislation is drafted. We are speaking on this clause in particular in respect of the two industries which I have mentioned and about matters which are regarded by people in those industries as being vital to their livelihood: the destruction—and nobody has denied this—of arrangements which have existed for many years and which have preserved good standards in those industries. I have repeatedly invited the noble Lord to address himself and to apply his generalities to the circumstances of those two industries. Also I have repeatedly asked that we should be told what, if any, is the Government's conception of the part that the trade union is entitled to have in the control of entry to an industry or occupation where overcrowding is a serious danger and a threat to standards. The only answer I have had on that point from the noble Lord is an airy statement, "Oh yes, we, the Government, believe that there should be consultation with the trade unions about the level of entry to the industry". I think I am representing correctly what he said. But how on earth does he expect that the results of that consultation will be made effective? Are the results of that consultation to rest solely and entirely in the hands of the employers? Is that his conception?
§ LORD DRUMALBYN
I have already said that it would be a matter for consultation, and consultation could no doubt result in agreements.
§ LORD DELACOURT-SMITH
I am fully aware of that. What I am asking is how those agreements are going to be made effective, and I am asking, if it is the noble Lord's conception that once an agreement has been made that the level of entry to a particular industry should be retained at a certain level, how that is to be made effective. I can only conclude from his answer that it should be done entirely by the employers. Is the noble Lord contending—if that is his contention, as it must be—that the employers are so organised that they can effectively maintain, in the light of consultation, a measure of control in industries of this sort? Can it possibly be done without giving to the trade union some share in the control? I am not making debating points; I am asking a question.
§ LORD DELACOURT-SMITH
If I am making debating points no doubt one of the noble Lords who is so ready to contribute while in a sitting posture will rise and will explain to me and to the Committee how in fact regulation can be made effective in industries of the kind I have described, after consultation, if the trade unions are not going to be given a real share in making effective the agreements which it is suggested they should make. I am suggesting that there is no reason to think that this sort of consultation can be translated by the employers alone into effective regulation of numbers. I am perfectly prepared to come back to this subject on any clause that the noble Lord likes, to give him ample time—if anybody thinks that these are debating points raised at short notice—to consider this point and to come back and explain to the Committee how he really thinks that in an industry, in an occupation with the sort of characteristics that I have been trying to drive home to Members on the Government Benches, any serious regulation of entry can be made effective without the trade unions being properly brought in.
§ LORD DRUMALBYN
The noble Lord has very properly said, and I appreciate it, that he is prepared to give us further time to think of this point. I very much welcome that; he knows the pressures we are under. But I think the noble Lord has missed the essential point. I have never said that the trade unions should have no part in this; I have never said it should be a matter entirely for the employers. What I am saying is that it should not be a matter entirely for the workers. A pre-entry closed shop can be fixed at a very arbitrary figure indeed, and one of the troubles in this field is simply that it can be an extremely restrictive practice. The arbitrary figure may be fixed and a man may be refused a job because that arbitrary figure has been reached, and yet employers may be crying out for employees in that industry. That cannot be right.
§ LORD ARCHIBALD
Can there be a pre-entry closed shop without agreement between the employers and the trade unions? In that case do they not normally have machinery for referring contested cases to a tribunal? I think the noble Lord is putting an imaginary, theoretical case, unrelated to the practical application of the closed shop as it exists to-day.
§ LORD BEAUMONT OF WHITLEY
I do not think that is true. I think there are plenty of cases where the practicalities, as noble Lords on this side are so fond of putting it, show that that is exactly what happens. I had the privilege recently of taking part in a series of lectures at the Royal College of Art. The first person to speak in that series was a trade union leader who talked about the general iniquities of capitalism in its relation to art, and he got on fine with the students until one asked why his trade union was not letting any of their graduates have a work ticket for two years; and if they did not have a union ticket they could not get a job. That is an actual example of how a pre-entry closed shop can be used arbitrarily and wrongly. I quite agree that there is everything to be said for making. Equity and the Seamen's Union work and if noble Lords on this side produce the right kind of Amendments for dealing with that they will find myself and my 593 friends supporting them. But it is useless to say the pre-entry closed shop has not caused great anomalies and hardship and individual injustice in the past and in the present.
§ LORD SHACKLETON
I must say to the noble Lord that I am now very depressed about the progress of this Bill. Noble Lords on that side may cheer and noble Lords on this side cheer in support. but I would say this to the noble Lord, Lord Drumalbyn, and indeed to the noble Lord who has just spoken: that anyone who has had practical dealings in industry—and there are some noble Lords on this side and on that side—knows that what we are saying is relevant to the realities of the situation. Even if we now proceed further on this clause and let it go through, I am filled with gloom in relation to the future prospects of order and good relations in industry unless the Government will move on this.
I would appeal to the noble Lord, who is a reasonable man, like most noble Lords on the Front Bench, to see that
§ we are not—and I say this with absolute seriousness—making debating points on this matter. This is a subject of crucial importance for effective relationships in industry. It may well be that we can meet and discuss it, but there is much alarm, and we shall be driven into an impossible position in relation to the progress of this Bill unless we can get some answers to the questions that we put from this side of the House. I will not press the noble Lord, who has been very courteous and has done his best, but we are wholly unconvinced that the Government understand the points we are making.
THE EARL OF MANSFIELD
Would not 'the progress of this Bill be greatly accelerated if certain noble Lords on the Opposition Benches would refrain from making Second Reading speeches on every Amendment?
§ 10.56 p.m.
§ On Question, Whether Clause 6. as amended, shall stand part of the Bill?
§ Their Lordships divided: Contents, 87; Not-Contents, 29.595
|Aberdare, L.||Ellenborough, L.||Mills, V.|
|Abinger, L.||Elliot of Harwood, Bs.||Mowbray and Stourton, L.|
|Ailwyn, L.||Emmet of Amberley, Bs.||Moyne, L.|
|Aldenham, L.||Falkland, V.||Napier and Ettrick, L.|
|Aldington, L.||Ferrers, E.||Nugent of Guildford, L.|
|Amory, V.||Ferrier, L.||Pender, L.|
|Balfour of Inchrye, L.||Fortescue, E.||Poole, L.|
|Barnby, L.||Glasgow, E.||Rankeillour, L.|
|Beauchamp, E.||Goschen, V. [Teller.]||Redesdale, L.|
|Beaumont of Whitley, L.||Gowrie, E.||Reigate, L.|
|Belhaven and Stenton, L.||Gray, L.||St. Aldwyn, E.|
|Belstead, L.||Grenfell, L.||St. Just, L.|
|Brabazon of Tara, L.||Harcourt, V.||St. Oswald, L.|
|Bridgeman, V.||Hatherton, L.||Sandford, L.|
|Brougham and Vaux, L.||Henley, L.||Savile, L.|
|Chesham, L.||Hives, L.||Selkirk, E.|
|Colville of Culross, V.||Hood, V.||Selsdon, L.|
|Conesford, L.||Inchyra, L.||Sempill, Ly.|
|Cork and Orrery, E.||Jellicoe, E. (L. Privy Seal.)||Sinclair of Cleve, L.|
|Cottesloe, L.||Kemsley, V.||Somers, L.|
|Cowley, E.||Kilmany, L.||Stamp, L.|
|Cromartie, E.||Lauderdale, E.||Strathcarron, L.|
|Denham, L. [Teller.]||Lothian, M.||Stratheden and Campbell, L.|
|Digby, L.||McCorquodale of Newton, L.||Templemore, L.|
|Drumalbyn, L.||Mansfield, E.||Thomas, L.|
|Dulverton, L.||Margadale, L.||Trevelyan, L.|
|Dundee, E.||Massereene and Ferrard, V.||Tweedsmuir of Belhelvie, Bs.|
|Dundonald, E.||Maugham, V.||Vivian, L.|
|Eccles, V.||Merrivale, L.||Windlesham, L.|
|Archibald, L.||Beswick, L.||Brown, L.|
|Ardwick, L.||Birk, Bs.||Burntwood, L.|
|Bernstein, L.||Brockway, L.||Champion, L.|
|Cooper of Stockton Heath, L.||Lindgren, L.||Plummer, Bs.|
|Davies of Leek, L.||Llewelyn-Davies of Hastoe, Bs. [Teller.]||Sainsbury, L.|
|Delacourt-Smith, L.||Shackleton, L.|
|Diamond, L.||Longford, E.||Shepherd, L.|
|Garnsworthy, L.||Morris of Kenwood, L.||Stow Hill, L.|
|George-Brown, L.||Nunburnholme, L.||Strabolgi, L. [Teller.]|
|Hoy, L.||Platt, L.||White, Bs.|
On Question, Amendment agreed to.
§ Resolved in the affirmative, and Clause 6, as amended, agreed to accordingly.
§ Clause 7 [Appropriate contributions to trade union in lieu of membership]:
§ 11.5 p.m.
§ BARONESS WHITE moved Amendment No. 58:
Page 6, line 5, leave out subsections (2) to (7) and insert—
("(2) Appropriate contributions to the trade union in lieu of membership shall be regular payments only in accordance with the rules of the trade union.")
The noble Baroness said: I beg to move this Amendment. It may seem rather a drastic one, because in it we are proposing to leave out subsections (2) to (7) inclusive. So far as subsection (7) is concerned we are in agreement with the Government, who have themselves at a later stage an Amendment to delete this part of this clause. We think it would be much more satisfactory, and also infinitely simpler, if, in relation to the payment of contributions which are to be made in lieu of trade union membership, one said that they should be
regular payments…in accordance with the rules of the trade union" and left it at that.
§ Our reasons for this are that the whole object of this exercise is to eliminate the "free rider", the person who is prepared to accept all the benefits of collective bargaining but to make no contributions towards them. If these payments are therefore to compensate the unions for the provisions in the rest of the Bill, and are to be contributions towards their funds, then it seems to us to be much simpler to say quite straightforwardly, "All right; it is for the benefit of the union or unions concerned, and therefore, provided that one can be satisfied that any payments to be made are in accordance with the normal rules of the union and that there is no discrimination against this particular group of persons, that should be sufficient". The 596 Government have gone into considerable detail in the rest of this clause, much of which seems to us to be quite unnecessary, and we do not feel that we need to have all this red tape concerning these payments in lieu of union membership.
§ At this hour of the night I do not propose to go any further into this matter. I should like to know that the Government can accept what we think is a much more satisfactory and straightforward proposition. If these payments are to be made to the unions in lieu of normal membership dues, then surely all that is necessary is to be satisfied that they are in accord with the normal rules of the union or unions concerned. The object of the exercise is to eliminate, in the pecuniary sense at any rate, the "free rider". We do not think this is adequate at all, because, as we explained on an earlier occasion, union membership is very much more than just paying your dues. But if the Government are satisfied to deal with it on this level only, then we fail to see why they should not be equally satisfied with payments in accordance with the normal union rules. I beg to move.
§ LORD WINDLESHAM
As the noble Baroness has explained, this Amendment would delete the subsections in the clause which define the meaning of "appropriate contributions" and regulate their assessment and payment. The Amendment would substitute a new subsection giving the agency union a complete discretion as to the amount an individual who did not wish to join the union should pay in lieu of membership. The Amendment would consequently remove all the safeguards which the subsections in the clause as drafted provide for the protection of nonunion members who are employed under an agency shop agreement. The provisions in Clause 7 allow for an appropriate contribution in lieu of membership to be no less than the union membership subscription excluding optional payments. Furthermore, an initial payment may also be demanded where it would be required 597 of a worker joining the union. The provisions therefore afford reasonable protection of the union interests.
The proposed Amendment removes subsections (2) to (7), and replaces them with a provision to allow the union to determine the level of appropriate contributions payable by non-members and, as the noble Baroness has explained, this would he free of all restrictions. The proposed Amendment therefore would have the effect of allowing a union to frame rules to discriminate against the non-member in an unreasonable and unacceptable way. Rules could be devised which would effectively take away, or act as a powerful deterrent against, an individual's right to choose not to belong to a union. For example, a non-member in an agency shop might, under union rules, be required to pay perhaps as much as double the usual membership subscription for as long as he chose not to be a member of the union. He would have no right of appeal against that level of contribution, nor the right to contribute to a charity instead of a union if unable to establish grounds of conscience.
All these matters would be left to the union to decide in accordance with its rules. I should like to say that there is no more reason to believe that all unions will always, in every case, act as admirably and moderately as one would hope to be the normal pattern of behaviour, than there is in the case of employers. But this Bill attempts to set standards; therefore we consider it is better to spell out these contributions relating to the level of contributions in subsection (2) and (6). As the noble Baroness said, we will be able to agree to delete subsection (7) at a later stage, and there is a Government Amendment down to that effect. There are some special reasons for this which I can explain at that time.
§ BARONESS WHITE
I am sorry that in replying to the points I put, the noble Lord failed to make any reference to Clause 9. His colleagues have not hesitated to refer to clauses not yet reached. Clause 9(1)(c) says in relation to contributions that if they are:such as to represent an arbitrary or unreasonable discrimination by the trade union against him, or against him and other persons who have elected to pay contributions in lieu of membership of the trade union598 there is a provision for an appeal, as I understand it, to an industrial tribunal. If the only objection to this Amendment is, in effect, a drafting one—admittedly a serious one—in that it was not made absolutely clear that it should be the normal rules of the union which would apply, and that they would not be in any way discriminatory against those not in full membership, we should be glad to take the Amendment back and redraft it. We do not wish to suggest some extraordinary rate of contribution should be settled for the non-member as opposed to a normal member. That was not the intention of the Amendment. We are willing to look at the drafting again, but with that possible concession on our part, plus the provisions in Clause 9, I do not feel that the arguments against the proposal that we put forward hold water.
§ LORD WINDLESHAM
I can reply quite briefly. It may not have been the intention of the noble Baroness to put down an Amendment that unions should be encouraged to set an unreasonably high level, but it would make that possible. We do not anticipate that this will be a common pattern, but there is a need to write in safeguards to cover residual situations. The point made about Clause (9)(1)(c), which we shall deal with later, does not really meet this situation if the level of subscriptions is in the union rules. That is why I dealt with the point of the union rules. The rules of a registered union have to be submitted to the Registrar. If, in order to encourage people into the union they decide that people must pay a bit more, even if it was twice as high as the usual level, the Registrar would not feel able to strike it out. If it was in the rule hook, that would be the amount that would go into the agency agreement and could be asked of the nonunion member.
I do not think that the noble Baroness has really added anything of substance to what she said in moving the Amendment; and my reply in substance is the same. I do not think there is a great deal between us. We are spelling out what in practice will happen for 90 per cent. of the time. The noble Lord, Lord Cooper of Stockton Heath, might be able to tell us something about this. The appropriate payment for the non-unionist will be the 599 same as that required from a union member, less the optional element such as the political levy and one or two things of that sort. The effect may be the same. We feel that these safeguards should be included in the Bill.
§ LORD COOPER OF STOCKTON HEATH
I feel like passing the remark, "Oh what a tangled web we weave"—but I do not want to go on with that quotation because I do not want to make any unpleasant implications. First of all, I cannot conceive of a rule book having differential contributions. It sets out what are the contributions for the members of the union, but it is only one set contribution. I can see them opting out of these cash benefits and things of that kind but it might surprise your Lordships when I say that a person who does not want to be a member of a union should not have the advantages which are due to the members of the union; and it is the case that at the moment in my own organisation that the cost of running it is subsidised by investment income. Our investment income is running at around £500,000 a year, so we are in the red on our contributions. I would argue that if a person comes along and wants to have a special arrangement and is prepared to pay a special contribution but does not want to be a proper union member, it is fair to ask the question: should he be allowed to enjoy the subsidy that the proper union members get out of the savings? In practice, we should not discriminate in this way but it is rather a novel arrangement to take note of—he would be enjoying a privilege even though he did not want it if he pays only the ordinary contribution, less anything there may be in relation to cash benefits which presumably he would not want to take up.
§ BARONESS WHITE
I still think that we have made a reasonable case and that our proposal would be very much simpler, with the one proviso that I have made, but I do not propose at this hour of the night to continue with or to press this argument. There are other matters under the next Amendment which we would wish to have probed and clarified, and in order to enable us to proceed to those I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.600
§ 11.19 p.m.
BARONESS WHITE moved Amendment No. 59:
Page 6, line 17, after ("exceed") insert ("nor shall they be less than").
The noble Baroness said: I think that there was a slip of the tongue on the part of the noble Lord, Lord Windlesham, when he said that they should not pay less, because that it not what the clause states. It says that the payments made
shall not in the aggregate exceed the aggregate amount by which he"—
would be required to pay for that year by way of periodical contributions in respect of membership if he were a member of the trade union….
§ Right through this clause there are various safeguards for the individual. We want to be certain that though the union may not get everything that the noble Lord, Lord Cooper of Stockton Heath, referred to by way of balancing up of benefits received by members through past savings and so on, at least they should not get less than the aggregate amount. We think that this should be spelled out and that there is an obligation to pay at least as much; and that this sensitivity to the rights of the individual should extend also to the rights of the union. I should also like to ask some questions about how the Government propose that some of these arrangements should work. How is this aggregate amount to be computed? There are, for example, occasions when, for particular purposes, a union will declare a special levy over and above the weekly, monthly or quarterly contribution. Is the nonunion member to be included in an obligation to pay this special levy, or can he opt out of that? Is this going to be a matter of any dubiety, or may we be quite sure that he is going to be involved in this way; that at least he pays any normal additional payment agreed on democratically by the union according to its rules.
§ With great respect to my noble friend Lord Cooper of Stockton Heath, there are unions in which there are a number of classes of membership, and though for each particular class there is a standard contribution there is a great variety of classes. Who is to decide into which class of membership the non-member is to go? If the union has no jurisdiction over him I see possible difficulties arising 601 about a decision regarding the class in which it would be appropriate for a non-union member to be included. This could lead to great practical difficulties. It may not seem a very important point, but it is exactly this kind of thing which can lead to endless friction and dispute on the shop floor. Therefore I think we are entitled to have some further information about how the Government propose that this shall work.
§ We cannot see why, in subsection (5)—again we are concerned with the aggregate contribution—there is to be what, at any rate on our reading, seems to indicate a tax holiday of a month for the worker concerned. There is a three-month period in the first part of the clause and one month later on. Does this mean a tax holiday? Does this mean that for the first month of employment in an agency shop he does not have to pay his dues or it is not to be computed within the aggregate? He may not necessarily pay in the first month, but is it to be included in, or excluded from, the aggregate? I think we ought to know that.
§ The provision for people who are not likely to stay even one month in any particular work has obviously been brought to the attention of the Government and they realise that this goes wider than the construction industry to which at first they were confining this provision. I do not think that we are quarrelling with them on that, but on all these other matters we should like to know how far the Government have thought out the practical points that will arise; and if we are legislating for people all over the country, millions of people, it is our duty in the Legislature to make as clear as possible just what we mean by a clause of this kind which seeks to set out very detailed conditions for payments, which are bound to be sensitive payments for reasons which we discussed earlier in the debate.
§ LORD DAVIES OF LEEK
There are a couple of questions I should like to elucidate. The object of Clause 10 is to make strike action—to safeguard a pre-entry closed shop, for instance—an unfair practice. The pre-entry closed shop is one where applicants for a job must already possess the appropriate trade union membership.
LORD DAVIES or LEEK
Are we not dealing with Amendment No. 59? I will come to it, but I want people to know what we are talking about because I guarantee that there is hardly a Member on the other side of the House who can define a pre-entry closed shop.
§ LORD WINDLESHAM
But we are not talking about the pre-entry closed shop. We have moved on from Clause 6, which deals with the pre-entry closed shop. We are now on Clause 7, which does not concern the pre-entry closed shop; it concerns the agency shop and the payments which are made in lieu of union subscriptions. The pre-entry closed shop does not arise.
§ LORD DAVIES OF LEEK
No, but the agency shop has a purpose—to get rid of the pre-entry. That is exactly the point. Now suppose I am coming into the factory on one of these mysterious new systems of trade unionism. I am working on a machine with a fully paid up trade union member, and I am one of these esoteric individuals under the wing of this marvellous legal framework that is made by this new Conservative Poujadist Party. Am I to have the same Safeguards for industrial injuries for this payment? In fact, the matter has never been worked out. Once all this is established, nobody knows what rights this poor creature, who is in the twilight between the heaven and hell of modern existence and is not a member of the union, has compared with those of a full trade union member, so far as his industrial injuries, access to compensation payments, and so on, are concerned. I really think it is a point that concerns this clause, but I do not want to weary the House. I have made my case and I think it is clear enough.
§ LORD BERNSTEIN
Perhaps the noble Lord can help me when he answers the other questions. I hope I am on the right Amendment with the questions I want to ask. Who will collect the contributions for charity? Who will be responsible for the payments to charity? If a man fails to pay his union dues and is in default, as we know from what we have heard here the union will know 603 what to do with him. I cannot find anything in the Bill dealing with the mechanics of collection and the payments of conscientious objectors. How will they deal with their money? It would seem common sense to me for the employers to be responsible for dealing with this matter. It does not appear to be written in the Bill.
§ LORD WINDLESHAM
If I may deal with that last point first, may I say that the noble Lord is perhaps on the wrong clause. Clause 8 deals with contributions to charity, and I could answer him on that clause. We are discussing Clause 7. May I move backwards through the points raised? The noble Lord, Lord Davies of Leek, arrived finally, by way of a somewhat circuitous introduction, I must say, at a point which I think was perfectly valid and which does arise on this clause. He said there would be widespread confusion as to the nature of the benefits the non-unionist would receive that the union man would be quite clear what benefits he was entitled to receive but there would be doubt about the position of the non-unionist. This is something we must try to make quite clear, because there is no need for doubt, and these matters will be clearly spelled out in the agency shop agreement. What the non-member will be obtaining for his payment in lieu of membership is solely the benefit of collective bargaining as regards his wages and terms of service. All the other benefits of union membership, of which the noble Lord gave some examples and the noble Lord, Lord Delacourt-Smith, gave some others when he spoke earlier, will not apply to the non-unionist because he is not a member of the union. He has made a payment in lieu, and this is the conception of the union negotiators acting in an agency capacity.
I come to a point of central importance. We think that where non-unionists are paying this amount of money but do not have the benefits, that will be an incentive to joining the union. They may come to see some of the benefits of union organisation which the noble Lord, Lord Delacourt-Smith. has described. He told us how important it is that people should not just contribute the money but should participate in union activities. So here is an incentive.
604 The noble Baroness, Lady White, asked how, if there were differential rates in union agreements, the appropriate rate for non-unionists would be selected. This will be done by agreement between the employer, the individual and the union when the agency shop agreement is drawn up. The amount will be specified in the agreement. And there is the disputes procedure for settling it, if there are arguments about it. The noble Baroness also asked, would there be a "tax holiday" for a month? I would not myself use that word. This is jumping a little ahead, but since the noble Baroness said that these were probing Amendments, perhaps it would be in order for me to move on to subsection (5). The position there is that a man already in employment when the agency shop agreement is signed would have up to three months to decide whether or not he wishes to make a payment to the union in lieu of membership, or to contribute to a charity on grounds of conscience, or to join the union. He has to decide on which of these three courses of action he is going to choose. If a man is joining from outside, the period is one month. No payment is due in that period of one or three months; the payment becomes due after the expiry of that period.
§ LORD DAVIES OF LEEK
I just want to express our thanks for one of the loveliest little answers we have had all day.
§ BARONESS WHITE
Before the noble Lord does sit down, may I ask him a question which I should have asked earlier? Can he clear up what appears to be a discrepancy between what he has told us and what his noble friend Lord Drumalbyn told us earlier? It refers to the last phrase in subsection (3), where it says:…excluding any such contribution which (subject to his giving any requisite notice) he would not be obliged to pay.On first reading, I had supposed that that would cover the political levy, but when we asked the noble Lord, Lord Drumalbyn, about this, he said that the money could be used for political purposes. And he intervened later to assure us that it could be used for political purposes. I was surprised at his answer, 605 but as it was given and is on the record I think we ought to know where we stand on this point. We were asking whether these payments could be used by the union for any purpose whatever and suggested that the education of non-unionists might be an appropriate use for them. This matter ought to be made clear, because there is some contradiction.
§ LORD WINDLESHAM
I think it will depend on the rules of the individual union. I confess that my impression on first reading was the same as that of the noble Baroness. The last words I understand to be the optional elements of the union due, which excludes the political levy; but the purposes to which a union may put its money is a technical point and one which has been before the courts on a number of occasions. I was not present when this subject was discussed with my noble friend.
§ BARONESS WHITE
I do not see how it could have been before the courts in this form, because we have never had such rules before. There has been contributions to charity on a voluntary basis, but we have never had legislation of this kind up to now, thank heaven! and therefore this particular situation could not have come before the courts.
§ LORD WINDLESHAM
The noble Baroness misunderstood me. The point I was making was that the use to which trade unions can put the money which they have drawn from their members is subject to a certain amount of case law: not under the agency shop agreement, because the noble Baroness is quite right in what she says; money coming from the non-unionist is a new concept, and therefore that has not been before the court. I was saying that I was not present when this was discussed with my noble friend Lord Drumalbyn, and I think that he and I ought to get together and sort it out.
§ LORD DIAMOND
I am sorry to delay the Committee, but earlier on the noble and learned Lord the Lord Chancellor laid it down, to my great surprise, that payment by a non-member to a union automatically determined the appropriation by that union to union purposes and excluded political purposes. I was not in the Chamber at the time, but I gather 606 that we have had the noble Lord, Lord Drumalbyn, saying with full authority on behalf of the Government quite the opposite. I do not think it is a very satisfactory position for a third Minister to come along and say that, whereas the Lord Chancellor has said one thing, and the noble Lord, Lord Drumalbyn, has said the opposite, he thinks it is something that they ought to look into. We should not have three different views on what is an important matter. I am bound to say to the noble Lord, who apparently was not aware of these previous exchanges, that the noble Lord, Lord Drumalbyn, spoke a considerable period after the noble and learned Lord the Lord Chancellor, after this very matter had been raised, and after there would have been full opportunity in the normal circumstances for consideration and consultation with those who advise the Government on these matters.
THE EARL OF SELKIRK
May I say that I was here when my noble friend, Lord Drumalbyn, made the remark, and my recollection is entirely different from that of the noble Baroness. I thought that my noble friend said precisely that it was not available for political purposes.
§ LORD DELACOURT-SMITH
With respect, I think the noble Earl heard the first observation from the noble Lord, Lord Drumalbyn, but there was a second observation later. I think possibly it was the first observation that the noble Earl heard.
If I could intervene for a moment, I heard both the first and second observations of my noble friend Lord Drumalbyn. I think noble Lords opposite may have a point here. What I would suggest is that we should look at Hansard to-morrow. We are all speaking from memory after a fairly long day's debating, and if there are points to be cleared up we can clear them up in our debate. I think this would he the most sensible way to proceed, rather than to exchange reminiscences and recollections which may be imperfectly remembered.
§ BARONESS WHITE
I am sure we should be very happy to accept the suggestion of the noble Earl the Leader of the House. I have no doubt at all in my mind as to the second intervention, because I have an interest to declare. I am a member of the National Executive of the Labour Party, and I was delighted 607 to learn that this money could be devoted to political purposes if it was so desired. I think it would be much better if we left this point at the moment. Again, I do not wish to press this Amendment. It was, to some extent, a probing Amendment. I think we have aired and, to some extent at any rate, clarified some of the points which have been worrying us. I think it is an essential part of our obligations in this Committee so to do, because, as I said earlier, these matters come very close to the individual on the shop floor. I make no apology for raising matters of detail of this kind, because it is essential that members of a union should be aware of these things. It is not only the national officers who are represented in your Lordships' House who should know, but people at all levels should be aware of exactly what is expected of them and what the conditions are. Having aired the matter, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ LORD DELACOURT-SMITH moved Amendment No. 60:
Page 6, line 30, at end insert—
("( )Every agency shop agreement shall provide for authorised representatives of trade unions or independent organisations of workers to whom it applies to be provided with, by the employer at intervals of not more than three months, lists of names, numbers and descriptions of workers who are liable for payments of contributions in lieu of trade union membership subscriptions, and every such agreement shall make provision for the method of payment by the employer to the trade union or independent organisation of workers of such contributions in lieu of trade union contributions such payments to be made at intervals not longer than two weeks.
( ) Every agency shop agreement shall provide that the employer shall be responsible for transferring to the union or independent organisation of workers, at not less than the stated interval, such sums as may be due in respect of appropriate contributions in lieu of membership. and facilities shall be afforded to authorised representatives of the trade unions or independent organisations of workers to scrutinise an account which the employer shall make of such payments whenever such representatives deem it appropriate to do so.")
§ The noble Lord said: This is one of those admirable Amendments which is indeed almost a speech in itself, and it is so full that I think it needs very little explanation and, I trust noble Lords opposite will agree, very little justification. As the clause stands there is considerable room for legitimate uncertainty about the 608 machinery for the transfer to the trade union of any sums of money which may accrue from the payments made or due to be made by non-members. The purpose of this Amendment, long though it is, is the simple one of ensuring that there is an obligation placed on the employer to provide periodic information about the numbers and locations of nonmembers who are liable for contributions, and to be responsible for the transfer to the union of the appropriate sums. I think that noble Lords will agree that this is probably the most satisfactory arrangement. Clearly, to expect a union collector to go and collect from a non-member would seem to provide a regular possibility of friction which there is no point in creating if it can be avoided. I trust that this Amendment, in the few words in which I have commended it, will find acceptance by the Committee.
§ LORD WINDLESHAM
I was a little slow in rising to my feet because I thought some noble Lords opposite might wish to add further arguments. Under an agency shop agreement which is defined, as noble Lords know, in Clause 10, an employer agrees that, in respect of workers of one or more description, the terms and conditions of employment shall include a condition that each worker must either be or become a member of the agency union or pay an appropriate contribution to the union. The onus to belong to the union, or to pay the contribution instead, is therefore upon the worker. If the worker fails to observe this condition of employment he may be dismissed or otherwise penalised by his employer. The union may induce the employer to dismiss or penalise him, and such action on the union's part would not be an unfair industrial practice. Therefore the rights of the union in the agency shop situation are adequately enforced, and this provision is greatly to the advantage of the trade unions.
As a matter of practice, there is nothing in the Bill to prevent a union making an agreement with the employer under which the employer would furnish information about non-members, nor is there anything to prevent a non-member authorising his employer to deduct the appropriate contributions from his wages and pay to the union. The union should already know who are the contributing non-members, and the union will be encouraged to keep 609 its own records, based on whatever sources of information seem most appropriate. We are all anxious to simplify the provisions of this Bill and avoid introducing complicated and unnecessary Amendments. This is almost completely the reverse of the first Amendment in this group, No. 58, tabled by noble Lords opposite, who argue that what is already in the Bill is perhaps too detailed. I explained that we felt that a safeguard was needed, and did not feel it could be taken out on that particular occasion.
Let me repeat, there is nothing to prevent employers making such voluntary agreements with their agency shop unions.. But if the provisions in the Amendment are given statutory force, and made mandatory on the employer, we see considerable difficulties as regards enforcement. The Government believe that this may best be dealt with by voluntary agreement. In the light of what has been said, I should be surprised if the Opposition felt inclined to press this.
§ LORD DELACOURT-SMITH
I must warmly congratulate the noble Lord on having succeeded in keeping a straight face while he made that speech. When he says that the Government do not want to introduce unnecessary complications and unnecessary detail into this Bill, and that they believe that these matters are best left to voluntary agreement, the noble Lord is touching points of high comedy. This answer, with the greatest respect, will not do, or begin to do. As we have made clear, we do not like the agency shop agreement; we do not like the agency shop concept. If we are going to have that concept it is necessary to have some more precise way in which it is to be put into operation. Noble Lords opposite should take this matter back for further consideration. They are saying that it should be left to some arrangement to be applied by an employer, who perhaps does not like the arrangement, and the trade union, who does not like the arrangement, to deal with the financial obligations of what may be scattered men in a fairly sizeable factory.
I modestly suggested, and did not elaborate it because it was so obvious that it did not need elaboration, that it would be hardly suitable for the normal trade 610 union collector to go round and collect this money. If we are going to have an arrangement of this sort it should be a business-like one. I hope that the noble Lord opposite will look at this matter again. If there is no obligation of this sort put in the Bill I can see endless difficulties arising. Perhaps one could put this in the Bill and say that alternative agreed arrangements could be made. Think, for example, of the nonmember who falls into arrears with the payments which he is due to make. Is he expected to pay absolutely punctually, weekly or monthly, according to the way the trade union contribution is defined? If he falls in arrears by one week, or month, is the union entitled to go to the employer and say, "This man must be dismissed"? That, presumably, would be the entitlement of the union under the law as it would stand. Yet I am sure that if the union did that noble Lords opposite would at once be saying, "What harshness! What standing on a technicality to try and persecute this non-unionist in this way!"
How many weeks or months is he allowed to get into arrears? How do you deal with the problem which exists so widely even in the trade union movement itself, especially where workers are moving about, of a man who falls into arrears, and finds the arrears have amounted to a sum that makes it quite difficult for him to pay in a normal week? Endless problems and petty difficulties are going to arise. Frankly, I do not think that this is a very sensible arrangement at all. But if we are going to have imposed upon a substantial part of industry this artificial arrangement—and we shall have more to say about it when me come, ultimately, to the clause that actually sets it up and defines it—do let us write into the Bill some sensible arrangement about the collection of this wretched money.
Already in a large number of concerns, of course, there are arrangements for union contributions to be deducted from the pay of union members and paid direct to the union. I should have thought it breached no principle, and was the wisest way of dealing with what can otherwise be a very tricky subject; to have it dealt with, at any rate by Statute, in the way a we suggest, even though I am sure my noble friends would not resist it if the 611 Government suggested that, while something along these lines should go in the Statute, there should also be provision that the trade union and employer in a particular case may agree on alternative arrangements. But I do hope that noble Lords opposite will look at this matter again.
§ 11.52 p.m.
§ LORD DAVIES OF LEEK
This is important. We were told at the beginning of the proceedings on this Bill that the object was to improve industrial relations. My noble friends who moved this Amendment from the Front Bench really have a point here of paramount importance. The first question we should ask is this: what is an agency shop? Only a registered union can establish an agency shop; but, as we shall find later in the Bill, before an agency shop can be establishted there are many detailed hurdles to climb and get over, which I will not describe at this moment because we shall reach them at the famous Clause 10. Those hurdles have to be jumped over and they will cause all sorts of discussion. They could very well cause a little bitterness—I am modifying my language—in industrial relations.
As my noble friends on the Front Bench have said, it is essential for men working at the bench, or in the factory, or in the plant, to know who is who and what is what in modem industry. If it is said that this is tautological or long, and that a voluntary method could be obtained here, we might answer back quite logically: "If you think a voluntary effort can be put at this important point in the Bill, why could we not have the entire trade union movement on a voluntary basis, too?" But the Government have decided against that. Here I am going to finish. I assure noble Lords opposite that I see no harm at all in writing into the Bill, if they hope it will become an Act, that these collections and these dues should be known to those persons in the registered union as and when it is convenient, and as and when it is legitimate for them so to do. It would make for a better atmosphere on the shop floor, a better atmosphere in the plant, and better industrial relations. And if the Government think this is not the appropriate language, well, with their skill 612 and Parliamentary draftsman it will take only the snap of a dragon's foot to get the right language. Please, tonight, I think this is worth taking back. We had a lovely answer on part of my question before. I hope the noble Lord will say, "All right, the Government are prepared to have a look at this matter and bring it back to you for consideration."
§ VISCOUNT AMORY
This is the kind of practical point which it is very right should be brought up in the Committee stage. I know how important it is for good relations that things should be done in the way people on the shop floor think is best. I see the point which the noble Lord, Lord Delacourt-Smith, has made that the trade union collector might find it awkward to go to non-members and collect the money. I also see that perhaps some of those individuals concerned may, on their side, feel it would be awkward to have their money collected by the union collector when they do not want to be members of the union. So this is a practical point, and I would feel that in one way or another it ought to be met.
Maybe the answer is that an agreed arrangement should be worked into each particular agency agreement—I do not know whether that would be the way of doing it or not. But I think it is a practical point we are up against, and that we ought to bear it in mind, at any rate, when we come to consider the agency agreement, in order to be satisfied that it is likely to work. Sometimes these little things can be very important indeed, but I think it might be a little top-heavy to include this in the clause.
§ LORD WINDLESHAM
I should like to take my theme from what was said by my noble friend Lord Amory, who has had very considerable experience of industry. I do not think it would be right, or that noble Lords opposite would expect me, to say that we could accept this form of words. I do not think the noble Lord, Lord Delacourt-Smith, even suggested that. These doubts have been advanced, but we hope that in practice these difficulties will not arise and that voluntary agreement could be reached. However, in the light of what has been said I think it right for me to say that we will look at this again between now and Report.
§ LORD DELACOURT-SMITH
In the light of the statement made by the noble Lord, Lord Windlesham, which we very much appreciate, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
LORD WINDLESHAM moved Amendment No. 66:
Page 6, line 44, leave out ("construction").
§ The noble Lord said: I move this Amendment on behalf of my noble friend Lord Drumalbyn. With the leave of the Committee, perhaps I might speak at the same time on Amendment No. 67, which is consequential to Amendment No. 66. Subsection (5) of Clause 7 provides that a worker shall not be required by an agency shop agreement to pay the appropriate contribution in respect of certain periods. The noble Baroness, Lady White, touched on this in debate on an earlier Amendment. In the case of a worker already in employment when an agency shop agreement comes into effect, the period is three months from the date when it takes effect. In the case of an employee being engaged, the period is one month from the commencement of employment.
§ In the construction industry where a large number of workers are employed for periods of short duration and there is a small permanent labour force which is often supplemented by a large number of transient workers, this would often make the operation of an agency shop agreement impracticable. Subsection (6) therefore enables the Secretary of State to make an order substituting an agreement for short periods and subsection (7) defines "construction work".
§ Since the Bill was considered in another place, representations have been made to the Government that these problems of short duration of employment and movement of workers between employers are by no means confined to the construction industry. Such conditions occur also in the entertainment industry, in agriculture, seafaring and other industries. It would seem to us reasonable to extend the power of the Secretary of State to enable him to make an order modifying the requirements for the period after which the appropriate contribution becomes pay- 614 able where it would be appropriate for that to be done. The second Amendment would omit subsection (7). I hope that these Amendments will commend themselves to both sides of the Committee. I beg to move.
§ BARONESS WHITE
I do not think we need spend much time on this, but I am delighted that the Government are extending their knowledge of industry. They should know that the construction industry is not the only industry to which this problem applies. This Bill has been through another place, yet now we have to have a Government Amendment to bring the Bill into line with reality. I am glad that at last the Government are waking up to some of the facts of industrial life.
Page 7, line 4, leave out subsection (7)—(Lord Windlesham.)
§ On Question, Whether Clause 7, as amended, shall stand part of the Bill?
§ LORD DELACOURT-SMITH
I think we have made our general position on this clear; that is, that although we seek to make Amendments and improvements in detail we deeply dislike the scheme of which this clause is an essential part. I think perhaps further argument on the subject would be otiose, but we shall feel bound to divide the Committee on this clause.
Before we leave this clause, may I ask my noble friend whether, before the next stage of the Bill, he would look at one small point in subsection (5)? It is whether in fact all categories are covered by the workers who are in the employment when the Bill comes into force and those who are engaged subsequently. There are questions of transfers and people in full-time training. I wonder whether he can tell the Committee whether they all come in?
§ LORD WINDLESHAM
I would be happy to meet the noble Lord and discuss that point in detail before the next stage of the Bill.
§ 12.2 a.m.
§ On Question, Whether Clause 7, as amended, shall stand part of the Bill?
|Aberdare, L.||Dundee, E.||Napier and Ettrick, L.|
|Aldenham, L.||Dundonald, E.||Netherthorpe, L.|
|Aldington, L.||Eccles, V.||Nugent of Guildford, L.|
|Amory, V.||Effingham, E.||Pender, L.|
|Balfour of Inchrye, L.||Falkland, V.||Poole, L.|
|Barrington, V.||Ferrers, E.||Rankeillour, L.|
|Beauchamp, E.||Fortescue, E.||Redesdale, L.|
|Beaumont of Whitley, L.||Glasgow, E.||Reigate, L.|
|Belhaven and Stenton, L.||Glendevon, L.||St. Aldwyn, E. [Teller.]|
|Belstead, L.||Goschen, V. [Teller.]||St. Just, L.|
|Brabazon of Tara, L.||Gowrie, E.||St. Oswald, L.|
|Bridgeman, V.||Gray, L.||Sandford, L.|
|Brougham of Vaux, L.||Greenway, L.||Savile, L.|
|Carrington, L.||Grenfell, L.||Selkirk, E.|
|Chesham, L.||Hives, L.||Selsdon, L.|
|Colville of Culross, V.||Jellicoe, E. (L. Privy Seal.)||Sempill, Ly.|
|Conesford, L.||Kemsley, V.||Sinclair of Cleeve, L.|
|Cork and Orrery, E.||Lauderdale, E.||Somers, L.|
|Cottesloe, L.||Lothian, M.||Strathcarron, L.|
|Cowley, E.||McCorquodale of Newton, L.||Stratheden and Campbell, L.|
|Craigmyle, L.||Mansfield, E.||Templemore, L.|
|Cromartie, E.||Margadale, L.||Terrington, L.|
|Denham, L.||Massereene and Ferrard, V.||Tweedsmuir of Belhelvie, Bs.|
|Digby, L.||Mowbray and Stourton, L.||Vivian, L.|
|Drumalbyn, L.||Moyne, L.||Windlesham, L.|
|Archibald, L.||Delacourt-Smith, L.||Nunburnholme, L.|
|Ardwick, L.||Diamond, L.||Platt, L.|
|Bernstein, L.||Garnsworthy, L. [Teller.]||Plummer, Bs.|
|Beswick, L.||George-Brown, L.||Sainsbury, L.|
|Birk, Bs.||Hoy, L.||Shackleton, L.|
|Brockway, L.||Janner, L.||Shepherd, L.|
|Brown, L.||Lindgren, L.||Stow Hill, L.|
|Champion, L.||Llewelyn-Davies of Hastoe, Bs. [Teller.]||Strabolgi, L.|
|Davies of Leek, L.||White, Bs.|
§ Resolved in the affirmative, and Clause 7, as amended, agreed to accordingly.
§ House resumed.