§ [Nos. 1to 6]
§ Clause 11, page 8, line 41, after ("union") insert ("or an employer").866
§ Clause 12, page 9, line 17, leave out ("trade union") and insert ("party making the reference").
§ Clause 12, page 9, line 26, leave out ("trade union or unions") and insert ("party or parties").
§ Clause 12, page 9, line 28, leave out ("unions") and insert ("parties").
§ Clause 12, page 9, leave out lines 30 and 31 and insert ("the remaining parties to the reference may be the subject of a recommendation for recognition").
§ The Commons disagreed to these Amendments for the following Reason:—
§ Because the Amendments are unnecessary in view of the fact that employers will be free, in relation to recognition issues, to request the Advisory, Conciliation and Arbitration Service to exercise its powers under other provisions of the Bill, namely Clause 2 (Conciliation) Clause 4 (Advice) or Clause 5 (Inquiry).
§ Lord JACQUES
My Lords, with the leave of the House I beg to move that this House doth not insist on their Amendments Nos. 1 to 5 en bloc to which the Commons have disagreed for the Reason numbered 6. The consequence of these Amendments was to enable an employer to refer a recognition issue to the Service under Clauses 11 and 12. No doubt behind this Amendment was the belief that employers needed further protection so far as recognition was concerned, but I hope to be able to show that that belief was mistaken. Clauses 11 and 12 are designed to deal with the straightforward issue of an employer's refusal to grant recognition to a trade union or unions. It is, of course, in those circumstances for the union or unions to refer the matter to the Service. But the Bill goes out of its way to lay down the precise procedure for such a hearing, and this is very neatly described in the Explanatory Memorandum to the Bill, from which I now quote:Clause 12 requires the Service to seek by conciliation to settle any recognition issue referred to it, and to examine the issue, to consult all parties affected, to make enquiries and if the issue is not settled, to prepare a written report, with any recommendations, and to send a copy to every trade union and employer concerned and to other such bodies as it thinks fit.Arising out of that one can come to two conclusions: first, that the Bill is meticulous in its efforts to ensure that all parties get a very fair hearing—that is, the employer as well as the trade union; and, secondly, that it is not arbitration; it is conciliation, and with recommendation only if need be.
867 More than 90 per cent. of the recognition issues are of that kind and will be dealt with under Clauses 11 and 12. There are a few on the fringe, where the employer is happy to recognise a union but cannot do so because he feels that he will get involved in trouble with other unions. Those cases are internal conflicts within the trade union movement, and that movement has gone out of its way to set up adequate machinery for dealing with them. That machinery is working very effectively, and has prevented many a dispute. Therefore it is imperative—and I should have thought everybody would agree with this—that when machinery of that kind is working, it should be encouraged. Thus we believe that the TUC machinery should be fully used and fully encouraged.
On the other hand, we recognise that there might be circumstances when that machinery would fail. There might be circumstances when the unions concerned were not affiliated to the TUC, and accordingly there is proper provision in the Bill for dealing with that. An employer who finds himself frustrated because of an inter-union dispute—whether or not they are affiliated to the TUC—is fully entitled to seek advice from the Service under Clause 4. He can seek conciliation under Clause 2, and he can seek an inquiry under Clause 5. The elected Chamber decided by a majority of 55 that this Amendment was not necessary. I beg to move.
§ Moved, That this House doth not insist on their Amendments Nos. 1 to 5 to which the Commons have disagreed for their Reason No. 6.— (Lord Jacques.)
§ The Earl of MANSFIELD
My Lords, one wonders just how far the Government view this Bill as being anything other than a benefit for their supporters in the trade union movement. Over a matter such as this, one would have thought that the Government would be quick to see that there could be an injustice here against employers, while at the same time doing nothing for employees; and that they would strain to try to meet us so far as this Amendment is concerned. We grant that the Government recognise that there is a problem, and I know that they are determined that in problems such as this 868 ACAS should be the body to deal with such difficulties, which from time to time include recognition disputes.
I grant that they are not as frequent as they may seem—certainly not as frequent as the publicity, which such difficulties enjoy in the media, suggests. Nevertheless, they exist and cause an immense amount of resentment; more especially do they cause resentment where the people at issue in a recognition procedure are small and weak, so far as their bargaining stature is concerned. It may be that they belong to a small union; sometimes they do not belong to a union at all. The Government do not seem able to accept that employers should be allowed to use the same avenue of approach to the ACAS as the trade unions. There is almost an element of apartheid about this. I appreciate that the noble Lord has said that employers may make use of Clauses 2, 4 or 5 of the Bill, and I am sure they will; and no doubt they will find them of some use. But it must be said that all three of these clauses—2, 4 or 5—give a relief which is only discretionary on the part of ACAS. The merit of Clauses 11 and 12 is that they enjoin the ACAS to take certain action when a dispute of such a nature has been submitted to it. That is my first criticism of what the noble Lord, Lord Jacques, said about these clauses.
He went on to say that the Trades Union Congress had set up adequate machinery—I think I am quoting his words correctly—which was working very efficiently. No doubt by that he was reminding us of the Bridlington Agreement. We recognise that the machinery is efficient; it has peacefully settled a large number of disputes. But by the same token we must also say that the machinery is perhaps a little antiquated now and is certainly creaking at the seams. The noble Lord has no doubt read of the case of Rothwell v. Apex and another, which was decided only last week. I must be very careful what I say about that case, because I have an interest in the employing firm. Nothing that I say now—and I do not believe that any noble Lord will take this the wrong way—is in any sense a comment upon the case at all. But it shows that the procedures which have been laid down, and which have been working for a considerable number 869 of years, are not nearly so beneficial in their effects as may sometimes be thought. It is in that light that one must ask oneself whether the legislation in the Bill will achieve the purpose which the Government really wish.
My Lords, we have spent a great deal of time discussing ACAS and the disputes which will be referred to it. We are sorry that the Government, while realising the difficulties, are not prepared to meet them in the way we think is justified by the vast numbers of people who are not part of the trade union movement; indeed, by the majority of working people in this country. We feel that they and some of the weaker unions which represent them are deserving of better than this provision.
§ Lord LEE of NEWTON
My Lords, I thought it peculiarly inappropriate that the noble Earl should suggest on this Amendment, in particular, in his reference to employers, that the Government were seeking merely to look after their own supporters. I recall that when the noble Baroness, Lady Seear, first put down this Amendment I ventured to pose a question to her which I will now pose to the noble Earl. We are here looking at the ability of a union which is refused recognition by an employer, and the noble Earl's case is that the employer should have an equal right to make a submission. Can the noble Earl tell me of one occasion when a union has refused to recognise an employer? In other words, the issue is always the other way round. The straight issue, as we all know, is that there may be a number of unions—one or two or whatever it is—which come to an arrangement with an employer, who then recognises them for the purposes of negotiation. I have had very long experience of this problem, as indeed have many of my noble friends who I see in the House now, and I can never recall a single instance during my lifetime when a trade union refused to recognise an employer. Unless the noble Earl can quote one, he really should withdraw his remarks.
§ Viscount CALDECOTE
My Lords, the noble Lord, Lord Jacques, explained why he believed this Amendment was unnecessary, but I think he will agree that the Government have stressed very strongly that they need the wholehearted co-operation of employers and unions in 870 solving the very difficult economic problems of the day. In view of that, can the noble Lord help us by explaining a little more clearly why the Government feel that this Amendment is undesirable?
§ Lord JACQUES
My Lords, the Government have not said that this Amendment is undesirable; they have said that it is unneccessary. The plain fact is that the kind of dispute in which a trade union is involved and is likely to wish for the assistance of the Service is quite different from that in which an employer may be involved and may require the assistance of the Service. In the one case—that of the trade union—it is a straightforward question; it has sought recognition and the employer has refused to give recognition. More than 90per cent. of the recognition issues fall into that category. Because that is the predominant issue, Clauses 11 and 12 of the Bill provide the straightforward machinery for dealing with that issue and that issue alone, and it was quite unnecessary to amend those clauses in the way in which this House did.
Quite separately from that, the Bill provides for the handling of another issue —an issue in which the employer is interested—and that is the issue of inter-union disputes, when the employer is being frustrated because of antagonism between unions and wants the matter resolved. In that case, he can seek advice under Clause 5, he can seek conciliation of the issue under Clause 2 or he can seek an inquiry under Clause 5. So the two kinds of issue are quite different, but they have both been adequately provided for in the Bill. In consequence, this Amendment is unnecessary and irrelevant so far as Clauses 11 and 12 are concerned.
§ Viscount CALDECOTE
My Lords, I understand that entirely, but in view of the great need for co-operation from all sides of industry—and I think the noble Lord will agree that the CBI made it very clear that it would like to have an Amendment such as this, just as the unions asked for many things and, quite rightly, had them included in the Bill—does the noble Lord not think it very sad that the Government are not prepared to accept this Amendment for that reason alone, because, in his own words, it is undesirable?
§ Baroness HORNSBY-SMITH
My Lords, before the noble Lord replies, may I say something on the same point? We on these Benches are concerned that there are small, highly-professional unions and staff associations which are very strong and highly successful in fighting their cases but which are not affiliated in every case to the TUC; or, indeed, if they are, are small because of their membership but, in the main, are highly-skilled unions. It really is not good enough for the noble Lord to say that this is a matter for the unions to decide when a pistol is being put to the head of the employer. If the TUC is to decide that, because of its weight of membership in a factory or an industry, this or that union will not exist any longer but is to be taken over by one of the giants, it can very easily hold the employer to ransom and say, "Either you allow us to take over this smaller membership or we call our men out on strike". It has happened before and it can happen again.
This is what we are concerned about, that this is the thin end of the wedge to eliminate, in many cases, small and often very skilled unions. We know from a debate that we have later this afternoon of the threat to the Institute of Journalists as against the NUJ; and we are concerned that many of these people in unions which fight just as toughly for their rights but which feel they have a certain professional capacity will not have a chance to continue in existence unless, under this Bill, they are given that protection which your Lordships proposed, by Amendments agreed to here, they should have.
§ Lord SLATER
My Lords, in view of the speech which we have just heard from the noble Baroness, perhaps I may say that it would have been as well if she had had some experience of the conciliatory machinery within the trade union movement. It is obvious that she does not understand conciliation and what it involves, or even what the Government are seeking to introduce. As an old trade unionist, I can tell her that the people who will benefit from this are the employers. Many employers in this country have been fighting for generations to find positive conciliation machinery by which employers of labour and those working for them could get together and determine their disputes more quickly. 872 Many of us who belong to the trade union movement and have been in Ministerial office, looking after people's interests so far as the labour side is concerned, have had cases held over not only for 12 months but for at least two years. That could not happen under the set-up which my noble friend is seeking to introduce by this Amendment from the other place, where they have given it serious consideration. I repeat that the one who will come out on top in regard to the conciliation machinery set up under this Bill is the employer of labour.
§ Lord JACQUES
My Lords, this is not a Committee stage and, therefore, I speak again only with the leave of the House, but I ought to reply to one point that has been raised. I would say to the noble Baroness that the Bill has the opposite effect to that which she has stated. By Clauses 11 and 12 any union, whether or not it is affiliated to the TUC, whether or not it is small, whether or not it is professional, will have the right to go to the Service because the employer refuses to recognise it.
§ Lord DRUMALBYN
My Lords, supposing the employer does recognise already the smaller union, a union which may or may not be affiliated to the TUC. Supposing the larger union refers the question of recognition to the Service to eliminate the smaller union—because I think what the noble Lord in his explanation has overlooked is that this subsection says:In this Act recognition in relation to trade union means recognition of the union by an employer or two or more associated employers to any extent.I repeat, "to any extent"; so that the larger union may be applying for recognition to become a closed shop. Supposing that the employer himself was able to make the application, there would be a psychological advantage here in that the application is not being made by either of the parties. This is what the noble Lord has overlooked here: that there is a slight psychological balance in favour of the person who makes the application. It is almost impossible to deny that. This would be a good reason at least to leave the latitude for the employer to apply, whether or not it would be possible for him to use other clauses to which the noble Lord has referred. It is only a facility; it could 873 be a valuable facility. I suggest to the noble Lord that it would be a mistake to obliterate it.
§ Lord HANKEY
My Lords, I should like to support strongly from these Benches what is being said on this subject, notably by the noble Baroness. I think that the argument used by the Commons in their reply to our Amendment is not really a very strong one because if it is true that the employers have the right to apply to the Conciliation and Arbitration Service (which I must warmly agree with and support everything said in its favour) it is not obvious to me why the employers should not have the right to apply to it in cases covered by Articles 11 and 12. I cannot see that there can be any reasonable objection to that in view of what was said by the Commons themselves.
My Lords, also it seems to me on a much broader point very undesirable that the law should appear to be bent in the direction of one side to a whole series of disputes; as it would be if the text were changed back to what it originally was. I was shocked when I read these Articles on first receiving the text of the Bill that the law appears to be bent in this way. I do not think that the state of the trade unions in our country, where they have a most honoured position and a great deal of power, is such that the law ought to be bent in their favour. I hope that we shall insist on our Amendments.
§ On Question, Motion agreed to.