§ 4.34 p.m.
§ Moved, That the Bill be now read 3a.—(Lord Shepherd.)
§ On Question. Bill read 3a with the Amendments.
§ Clause 6 [Codes of Practice]:
§ Lord SHEPHERD moved Amendment No. 1:
Page 4, line 44, at end insert—
(4A) In the case of a draft Code of Practice containing practical guidance on the matters
referred to in paragraph (a) or (b) of subsection (2) above, if the draft is approved by resolution of each House of Parliament the Service shall issue the Code in the form of the draft and the Code shall come into effect on such day as the Secretary of State may by order appoint.
§ The noble Lord said: My Lords, with permission, I shall speak also to Amendments Nos. 2 and 3. The purpose of the Amendment is to provide for a Code of Practice containing practical guidance on the disclosure or time off to be issued by the service and to come into effect at the day appointed by order of the Secretary of State only if the draft has been approved by Resolution of each House of Parliament. These Amendments are being moved in the light of an undertaking given, I believe, to the noble Earl, Lord Mansfield, at Report stage on 13th October 1975 (cols. 662 and 663 of the Official Report.) On that occasion, I understand that the noble Earl approved of the undertaking which I gave and I have therefore placed this Amendment on the Marshalled List.
§ Baroness ELLES
My Lords, I should merely like to say that we are very grateful to the noble Lord, Lord Shepherd, for having listened to us at Report stage and for putting down this Amendment. We feel that it goes quite a long way in answer to the points which we made and we are very grateful to him.
§ On Question, Amendment agreed to.
§ Amendment moved—
Page 5, line 1, at beginning insert—
In the case of a draft Code of Practice not containing such practical guidance," — (Lord Shepherd.)
§ On Question, Amendment agreed to.
Page 5, line 15, at end insert ("subsection (4A) or")—(Lord Shepherd.)
§ On Question, Amendment agreed to.
§ Clause 7 [Certification Officer]:
Lord SHEPHERD moved Amendment No. 4:
Page 6, line 13, after ("I") insert ("and paragraph 28")
§ The noble Lord said: My Lords, this is a drafting Amendment consequential on Amendment No. 88 to paragraph 28 of Schedule 1, which was agreed to on Report stage in your Lordships' House. I beg to move.
§ On Question, Amendment agreed to.
Lord SHEPHERD moved Amendment No. 5:
After Clause 8, insert the following new clause:
§ Determination of independence
§ ".—(1) In determining in any case whether a trade union is independent the Certification Officer shall in particular take into account the following matters:—
- (a) any relevant conditions applied by any organisation to which the trade union is affiliated;
- (b) whether and to what extent an employer was involved in the establishment of the trade union or continues to be involved in the conduct of its internal affairs;
- (c) whether the trade union receives financial or other material support from any employer and the extent of such support and the manner of its provision;
- (d) whether meetings held by the trade union are attended by an employer or by representatives of an employer otherwise than by invitation;
- (e) whether it is the practice for the trade union to submit minutes of its meetings or to supply other confidential information to an employer;
- (f) whether and to what extent the policy of the trade union is influenced by an employer otherwise than through the normal processes of collective bargaining;
- (g) whether membership of the trade union is confined to employees of a single employer or to employees of associated employers and the effect of such a restriction in the circumstances of the case;
- (h) whether the trade union has engaged in collective bargaining with any employer or has shown its intention of doing so.
§ (2) In subsection (I) above references to an employer include references to an employers' association.
§ (3) The provisions of subsection (1) above shall have effect without prejudice to the meaning of the expression "independent trade union"."
§ The noble Lord said: My Lords, the Government have decided that it would be helpful to the Certification Officer who is to be appointed under Clause 7 and to the trade unions that apply to him for certificates of independence to include a list of matters which he should take par- 1632 into account in deciding whether a trade union is independent. The new clause contains such a list. I make no secret of the fact that most of the matters in the list arc drawn from a study published by the Commission on Industrial Relations in 1974. This was based on CIR experience over five years, covering the period when it was first established as a Royal Commission under the chairmanship of Mr. George Woodcock as well as when it was working under the 1971 Act. It seems right that guidance should be provided for the Certification Officer based on this valuable experience of the CIR and I commend the Amendment to your Lordships. I beg to move.
§ The Earl of MANSFIELD
My Lords. I fear that the atmosphere of sweet reasonableness which pervaded the early stages of the Amendments on this Third Reading may well now be somewhat dissipated. It is worth while to bear in mind that the Amendment, which is far from being a technical or consequential Amendment or one which clears up a point of dubiety which has previously been debated, is one which at this stage I regard as being thoroughly contentious and it is being moved at a very late stage.
This Bill—a long, complex and very technical Bill in many respects—has been debated at very considerable length through all its stages in the other place. It has been through a Committee stage and through a recommitment to Committee in this House in respect of some clauses and through a Report stage. It is only now at the 59th minute of the eleventh hour that this matter which has never been discussed before in either House is raised and that the Government see fit to recommend the present Amendment to your Lordships.
What are we being asked to approve? Independent trade unions are defined in Section 8 of the 1974 Trade Union and Labour Relations Act. The certification of trade unions as independent trade unions is provided under Clause 8 of this Bill, and I stress the importance of certification because in the future, as I understand it, only certified independent trade unions will be able to use the provisions of the Bill in relation to such matters as the recognition procedures, disclosure of information and the observance of recognised terms and conditions of employment.
1633 The duties of the Certification Officer are laid down in Clause 8(6), and it is perhaps germane to the issue if I mention at this moment that the Certification Officer is appointed by the Secretary of State under Clause 7(1). Therefore, although he is independent of ACAS—which I regard as a good thing—I hope that it will not be considered over-contentious if I say that, by virtue of his appointment, he is a creature of the Secretary of State, although no one would ever accuse a Secretary of State of acting improperly. In view of the very serious, important and far-reaching effects of these deliberations, perhaps it is worth looking at Clause 8(6), to see how it is that he is supposed to go about his duties. I quote:The Certification Officer shall not make any determination under subsection (5) above whether a trade union is independent until one month after the application has been entered on the record in accordance with subsection (3) above," —and this is the important part—and before making such a determination he shall make such inquiries as he thinks fit and shall take into account any relevant information submitted to him by any person.In my view that gives almost unlimited and unfettered discretion to the Certification Officer when he goes about his inquiries to see whether he approves—if that is the right word—a certification. It is almost unfettered discretion, and I should have thought that that is what Parliament should tell him to do.
It is only when one looks at an Amendment like this and considers its provisions that one sees what is, in effect, a very profound check on the Certification Officer's discretion, because we see set out a number of matters which he shall, in particular, take into account. Simply looking on the face of the document they would seem to be thoroughly contentious and one-sided matters. It seems that they create merely a number of hurdles for a would-be union to surmount before it can claim successfully to be independent. The sting of them is that in all respects the test seems to be whether those concerned can be called stooges of the employers; not in fact how they have behaved, but what they have been doing so far as an employer is concerned. It is stated in paragraph (e) in the Amendment:whether it is the practice for the trade union to submit minutes of its meetings or to supply 1634 other confidential information to an employer;In my submission, it is perfectly possible for a properly regulated trade union to supply minutes to its employer when engaged in collective bargaining, in the same way that it would expect in the future—as it has expected in the pasta reasonable employer to provide information to enable there to be a satisfactory outcome to bargaining. It is surely, at least on the face of it, reasonable that a trade union should be able to disclose its minutes to its employer without necessarily incurring the stigma which will be attached to this special provision.
I do not wish to prolong this matter, but let us look at paragraph (h):whether the trade union has engaged in collective bargaining with any employer or has shown its intention of doing so.There are many smaller staff associations which come to mind which have never engaged in collective bargaining and until circumstances are such never would do so. But there we have it—this is the last, and almost the most obnoxious, matter which the Certification Officer is enjoined in particular to take into account. The combination of this last-minute Amendment and the way in which it is set out makes one inevitably draw the conclusion—which I greatly hope the noble Lord the Lord Privy Seal will be able to allay—that the Government, bowing at the last minute to pressure or representations from some outside quarter, have determined to make difficulties for previously perfectly properly registered unions under the 1971 Act, and indeed others, too; and is, in effect, making them re-apply and go through this procedure.
Perhaps more importantly, there will be those who will think, especially in the staff associations, that these Amendments are deliberately couched to make it easier for certain unions to take over smaller and less powerful unions, such as staff associations, which may stand in their way. We very much hope that this is not the situation and that the noble Lord will be able to reassure us, but I am bound to say that for myself as of this moment I have an extreme suspicion.
§ 4.47 p.m.
§ Baroness HORNSBY-SMITH
My Lords, I have some sympathy for Government in relation to the necessity of 1635 introducing some clarification, because I understand that various organisations—and not least the Law Society—considered that the terms in the original Bill were absolutely impossible to construe. But I am concerned at the terms of the Amendment. To me this is yet another example of discrimination between the 45 per cent. who belong to TUC-affiliated unions and those who, within their profession or staff association, seek to look after the specialty of their affairs in their own way. I should like some clarification from the Government as to whether the items spelt out here, which a so-called independent trade union must surmount, are not provisions which the Bill provides that the major unions may enjoy. The major unions already may have their dues collected by the firm as deductions from pay packets—a very obvious advantage with financial gain.
If a staff association does the same thing, will this be regarded as an undue perk from the firm? Equally, the unions are in the habit of holding meetings on the firm's premises, and from time to time in the firm's time; and this is considered perfectly right and proper in the case of the major unions. If this is done by a staff association under the interpretation of this Amendment, will the Officer decide that this might allow undue advantage to the employer or might in any way limit the opportunity of a staff association to be independent?
I turn now to paragraph (g), which I find quite remarkable. It discloses great anxiety about the association being confined to one employer. But the miners' union is confined to one employer, and the railway men are confined to one employer. I am not at all sure that the British Airline Pilots' Association would not be considered to be confined to one employer. But it appears to me that we are getting two different interpretations: one for the unions affiliated to the TUC; and another, entirely different, interpretation where a good employer who provides such opportunities and privileges for his independent staff association or professional union within his undertaking or works is regarded as iniquitous if he does it for any dependent union, but that it is perfectly right and proper, and no more than his duty, if he does it for one of the larger, TUC-Affili- 1636 ated unions. I think we are entitled to a greater clarification as to what is really behind this very doubtful Amendment.
§ 4.50 p.m.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I approach the noble Lord, Lord Shepherd, in this respect more as Leader of the House than as the Minister in charge of the Bill. I think this is rather an extraordinary thing to have done. I would respectfully submit to him that Amendments at Third Reading stage are always things to be used sparingly. I remember that I had a row about this when I was Leader of the House many years ago, when I took the more restricted view about them, as I have always done. Another place, which originally had power to amend on Third Reading, has actually abolished that right because it is so inconvenient.
Now I quite take the point, and I think that increasingly of recent years we have found this amendment at Third Reading stage valuable. I do not want to pretend in any way that we have not found it valuable. I should like to retain it; and there are times when one wants to make rather full use of it. But I question whether the noble Lord ought really to press an Amendment which seems in some way to be contentious. I do not pretend to be able to canvass the merits of this matter. I saw the Amendment for the first time this afternoon, it having been put down at the very last moment. While my noble friends have been speaking, I have done my best to acquaint myself with the original Clause 8 of the Bill in relation to this Amendment, and unless my reading of it is mistaken the Certification Officer can in fact take into account, if he thinks it proper, every one of the criteria set out in the proposed Amendment. In other words, if the Amendment is not pressed he has the power to do exactly what he is compelled to do if the Amendment is pressed.
This is—and I am sure noble Lords here will forgive my saying so—a relatively thin House. We none of us, when we came here this morning, expected to be faced with an Amendment of this kind. The first I heard of its being on the Marshalled List was about 2.30 this afternoon. I am wondering whether the noble Lord, in his capacity as Leader, would ask himself whether it is treating Parliament and 1637 the House fairly, at the Third Reading stage of a Bill which has gone through all its stages in the Commons and has also gone through all its very prolonged stages in this House as well, to introduce an Amendment which apparently has proved contentious and which, even if passed, will not confer any additional powers on the officer concerned.
§ Baroness SEEAR
My Lords, I am bound to say, like the noble and learned Lord, Lord Hailsham, that this afternoon was the first time I had seen these Amendments, so I am reacting somewhat "off the cuff" to them. However, I am bound to say that if I were the Certification Officer and were asked to look into the independence of a union, these are precisely the matters I would take into account. This Amendment seems to me to be spelling out quite logically the matters one would regard as rendering a trade union not independent. So I found the spirit of this new clause, at my own first and second reading, at any rate, unexceptionable. The only question which arises is as to whether, in all the circumstances, it is either necessary or proper to put this in the Bill. What it is intending to say seems to me entirely necessary and proper, but it is the kind of thing, I should have thought, which had better go into a code or understanding as to how this should be interpreted, rather than into the Bill. I cannot speak for my noble friends on these Benches, because I have not had time to consult them about this matter, but it seems to me that the intention is perfectly proper although I question whether it ought to be in the Bill.
§ Lord DRUMALBYN
My Lords, the definition of "independent trade union" is, of course, contained in the 1974 Act, which states:'independent trade union' means a trade union which—I should have thought that that was clear enough guidance without the addition of this new clause.
- (a) is not under the domination or control of an employer or a group of employers or of one or more employers' associations; and
- (b) is not liable to interference by an employer or any such group or association (arising out of the provision of financial or material support or by any other means whatsoever) tending towards such control".
1638 I do not entirely agree with the noble Baroness, Lady Seear, that this adds nothing at all. I agreed with my noble friend Lord Mansfield when he pointed out that paragraph (h) of subsection (1) of the new clause provides that one of the considerations that the Certification Officer has in particular to take into account is:whether the trade union has engaged in collective bargaining with any employer or has shown its intention of doing so".We have been told of cases where a trade union exists alongside another trade union and relies on that other trade union to a large extent, or possibly wholly relies on it, for the collective bargaining. If that other trade union applied under this Bill for exclusive recognition, what would the first trade union then do? Clearly, it would then be in the position of being one which had not engaged in collective bargaining with an employer, and which had not up till then shown its intention of so doing.
It looks to me as if, on those grounds, it might very well be excluded altogether and that the closed shop might come about without any regard being had to its rights purely because the Certification Officer took this matter into particular account; and, so far as I know, that would be the end of the matter, he having taken it into particular account. He says which is to be considered an independent trade union, although we have a definition of what an independent trade union is, and although in subsection (3) of the new clause there appear the words:The provisions of subsection (1) above shall have effect without prejudice to the meaning of the expression 'independent trade union'.If that is so, what on earth is the good of putting this into the Bill at this very late stage, when it cannot be properly discussed here and cannot be amended because there is not time, and when, if we pass it, it just goes down to the Commons? I really think that the noble Lord ought to withdraw this Amendment.
§ Lord SHEPHERD
My Lords, I must say that I am slightly taken aback. When I saw this Amendment in draft some time last week and gave authority for it to be put down in my name, it seemed to me a useful Amendment, not essential in any way, and I have sought to confirm that impression—not essential, but helpful. In 1639 fact, my understanding is that even if this new clause was not in the Bill the Certification Officer would still have regard to the CIR recommendations, from which, if my memory is right, all these provisions, I think with the exception of one, flow.
My Lords, to the noble Earl, Lord Mansfield, I would say that of course the Certification Officer will not be, shall I say, the dogs body of the ACAS. It is true that he will be appointed by the ACAS and the Secretary of State, but there are many men who hold a public office who are appointed in similar ways, and one never questions whether they carry out their duties with complete impartiality. My understanding is that the list does not in any way diminish or encroach upon an officer's responsibility to apply the statutory definition of independence which is in the present Trades Union and Labour Relations Act. It merely specifies matters he is to look at; it does not prevent him taking into account other relevant matters. I also understand that the existence of these provisions would give assistance, in particular, to the appeals procedure.
My Lords, the noble and learned Lord asked me a question in my role as Leader of the House. As on an earlier occasion, said that in the roles of Leader of the House and Lord Privy Seal the hat is often rather difficult to wear for there are varying pressures placed on one. This is a Government. Bill and, as a Minister, I am seeking to get our legislation through and trying to put in the proper provisions. Certainly, where I can, I have always tried to meet any case that is made.
As Leader of the House, I share with the noble and learned Lord a sense of disquiet about Amendments that are put down on Third Reading. I genuinely do so. On some legislation, of course, it could and should be avoided; but in this field, rightly or wrongly, we are learning by experience. We are continually receiving notice of anomalies, recommendations and improvements here and there, and also we are in continual contact with the chairman of ACAS. I fear that as a consequence of this the Department has been continually pressed to seek to make improvements to the Bill. My Lords, it was on that basis that I agreed to this Amendment being put 1640 down. I did not see anything that was of a sinister nature. I did not see the Amendment as one that favoured in any way one type of union or another.
§ Lord DRUMALBYN
My Lords, I am grateful to the noble Lord for giving way. It would help the House to make up its mind on this if noble Lords knew exactly what was the source of the Amendment. Did it come from the ACAS or from the TUC? Where did it come from?
§ Lord SHEPHERD
My Lords, I am sorry to say that I do not have that information. I shall obtain it.
My Lords, in this matter I shall place myself in the hands of the House. I am rather loath not to press an Amendment which I am advised would be helpful because in legislation of this sort one should try to put in what material one can for its improvement and for the guidance of those who have this task to undertake. I shall not press this Amendment if your Lordships feel that I should take it away; but I hope that the House will recognise that by so doing we shall not have this in the Bill for there will be no opportunity for it to be put in again in another place. If that is what the House wants, then I will accept it. But I hope that in so doing I am in no way prejudicing my position in respect of a later Amendment on which there is still the valid argument that the noble Lord has made but also another interest that I will deal with on that occasion. Therefore I should like to have all these Amendments discussed on their merits. It will then be for the House to make up its mind.
I accept that this is an involved and technical Amendment which may in certain circumstances have implications of which some of us may not be aware. I hope that the House will realise that it is with reluctance that I do not press this Amendment—and with the recognition that if I were to do so it is unlikely that I should be successful.
§ Lord CARRINGTON
My Lords, we on this side of the House would like to assure the noble Lord that there is no question of his prejudicing his position by pursuing the course that he is following. I think it would be right to say to him that we on these Benches appreciate very much the attitude that he has shown on 1641 this Amendment. It seems to me that he is treating the House as a Leader should and we appreciate it very much.
§ Amendment, by leave, withdrawn.
§ Clause 12 [Inquiry and report on recognition issue.]:
§ 5.5 p.m.
§ The Earl of MANSFIELD moved Amendments Nos. 6 to 9 en bloc:
§ Page 9, line 17, leave out ("trade union") and insert ("party making the reference").
§ Page 9, line 26, leave out ("trade union or unions") and insert ("party or parties").
§ Page 9, line 28, leave out ("unions") and insert ("parties").
§ 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 noble Earl said: My Lords, these Amendments are consequential to an Amendment made to Clause 11 at the Committee stage in your Lordships' House. I tabled these Amendments on Report and the noble Lord, Lord Jacques, fairly pointed out that in some degree they were deficient. He undertook to make available the resources of the Parliamentary draftsmen and this, I am glad to say, he did. It only remains for me to thank him very much for his courtesy and co-operation. I beg to move.
§ Lord JACQUES
My Lords, these Amendments are consequential and I shall be recommending to the House that they be accepted. I may suggest that it would be to the convenience of the House that they be taken en bloc.
§ On Question, Amendments agreed to.
§ Clause 14 [Inquiries under sections 12 and 13]:
Lord DRUMALBYN moved Amendment No. 9A:
Page 11, line 18, after ("worker") insert ("to whom the issue relates is").
§ The noble Lord said: My Lords, this is an Amendment which I apologise to the House for bringing up. One knows how these things happen. In the course of the passage of the Bill one reads something in the Press, has a look at the Bill and says, "This is surely not covered by what is in the Bill." This being an opportunity to alter the Bill, I have availed myself of it.1642
My Lords, we are here dealing with the question of inquiry into a recognition issue. In such a case the Service may take a formal ballot. Subsection (2) says:
In making arrangements for any such ballot the Service shall have regard to the need for securing that every worker invited to take part in the ballot has an equal right and a fair opportunity of voting,…".
The weakness of that is, as drafted in the Bill, it means the Service has no need to have regard for securing that every worker should be invited to take part.
There has been a case referred to in the Press lately where it is alleged—I do not know whether or not with truth—that a great many of the workers have not in practice been invited to take part because they have never received the invitations to take part. There are many ways in which this can easily be organised, particularly if you are considering a recognition issue with a plant. The right way therefore to remedy this is to make this subsection read:
In making arrangements for any such ballot the Service shall have regard to the need for securing that every worker to whom the issue relates"—
and, in parenthesis, this reflects subsection (1)—
is invited to take part in the ballot and has an equal right and a fair opportunity of voting…
I think this is self-explanatory and it seems to me desirable. I beg to move.
§ 5.11 p.m.
§ Lord JACQUES
My Lords, this Amendment would have the effect of requiring the Service to have regard to the need for securing that every worker to whom a recognition issue relates is invited to take part in any ballot. Although superficially this is attractive, in fact it is inconsistent with subsection (1). This subsection certainly requires the Service to ascertain the opinions of workers to whom the issue relates (and this must mean all such workers) but it may do so by any means it thinks fit. A ballot is not necessarily required, and the subsection makes it clear that if the Service does decide to hold a ballot it may be a ballot of those workers to whom the issue relates, or it may be a ballot of any description of such workers. Subsection (1) therefore allows the Service to hold a ballot of certain descriptions only of the workers to whom the 1643 issue relates. The Amendment appears to us inconsistent with this.
§ Lord DRUMALBYN
My Lords, I do not quite follow what the noble Lord has said. Perhaps he will be able to explain this further to me. Is he maintaining that, as I would amend it, subsection (2) would be narrower or wider than subsection (1)? Let me take an example: supposing a trade union makes application for recognition in accordance with the provisions of Clause 11, and supposing that trade union is a minority, in a sense the majority union, which may already be the only recognised union for that plant, would also be the one to which the issue relates. I am not clear whether, as subsection (1) is drafted, the ballot arrangements, if they are made, would apply to both the major trade union and the minor trade union making application for the recognition. If they apply to both, obviously they would apply to both under subsection (2) as well. The words used are the same. If, on the other hand, there is a narrower interpretation for subsection (2) as the clause now stands, if the noble Lord is saying that the people as the clause now stands are consulted by ballot will be different, what I am asking is: if the minor union applies for recognition is it only its workers that are going to be consulted by ballot, or will it be the workers of the two unions combined on the grounds that the issue affects them both?
§ Lord JACQUES
My Lords, this is a matter which is left entirely to the Service. It may seek the opinions in any manner it thinks fit. What I am suggesting is this Amendment is inconsistent with subsection (1). We take the view that a ballot is not necessarily required. The subsection makes it clear if the Service decides to hold a ballot, it may be a ballot of those workers to whom the issue relates or a ballot of any description of such workers. I take that to mean any part of such workers. The Service has given that discretion. Subsection (1) therefore allows the Service to hold a ballot of certain descriptions only of the workers to whom the issues relate. In our view the Amendment is inconsistent with that.
§ Lord DRUMALBYN
My Lords, this is a late stage in the Bill and it is awkward 1644 to discuss these matters at this time. In view of the advice that the noble Lord has received on this, I do not think I could properly press this Amendment or ask the House to divide on it. I will watch very carefully to see how this works out in practice to make certain that it works out fairly for the small union which is making application. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Cause 35 [Rights of employee in connection with pregnancy and confinement]:
§ 5.17 p.m.
§ Lord JACQUES
My Lords, this is a drafting Amendment to correct the form of wording. I beg to move Amendment No. 10.
Page 28, line 44, leave out (",and Schedule 3 below") and insert ("below and Schedule 3 to this Act").—(Lord Jacques.)
§ On Question, Amendment agreed to.
§ Lord JACQUES
My Lords, with the leave of the House, I should like to move Amendments Nos. 11 to 18 en bloc.
§ The Earl of MANSFIELD
My Lords, in view of the fact that there is an amendment to Amendment No. 18, your Lordships may consider that it would be more convenient to take Amendment No. 18 on its own.
§ Lord JACQUES moved Amendments Nos. 11 to 18:
§ Clause 42, page 33, line 4, leave out ("section 44 below and to").
§ Clause 42, page 33, line 10, leave out first ("to") and insert (",45 and").
Clause 43, page 34, line 7, leave out subsection (3) and insert—
("(3) A payment made by the Secretary of State to an employee under this section shall be treated for the purpose of discharging any liability of the employer to the employee as if it had been made by the employer.")
§ Clause 44, page 34, line 29, leave out from beginning to ("where").
§ Clause 44, page 34, line 34, leave out from beginning to ("that") in line 42 and insert (", the Secretary of State may recover from the employer such amount as the Secretary of State considers appropriate, not exceeding the amount of maternity pay which the employer failed to pay.
§ (2) Where a sum is recovered by the Secretary of State by virtue of this section.")1645
§ Clause 45, page 35, line 10, leave out subsection (2).
§ Clause 45, page 35, line 20, leave out ("(apart from section 44 above)").
Clause 46, page 36, line 12, leave out subsection (4) and insert—
("(4) Where the Secretary of State determines that an amount is recoverable from an employer under section 44 above, the employer may, subject to subsection (5) below, appeal to an industrial tribunal; and if on any such appeal the tribunal is satisfied that no amount should be recovered from the employer, or that a lesser or greater amount should be recovered, the tribunal shall determine accordingly and the amount, if any, so deter-minded shall be the amount recoverable from the employer by the Secretary of State.")
§ The noble Lord said: My Lords, in the course of what I have to say on Amendments Nos. 11 to 18, I will indicate that we recommend to the House that Amendment No. 18A should be accepted.
§ This matter regarding the maternity fund caused a great deal of discussion at the Committee stage. Because of that, I will explain in some detail what we had in mind, and how we have responded to the appeals that were made for some simplification of the drafting. In this, I am replying particularly to the points made by the noble Lord, Lord Drumalbyn, the noble Baroness, Lady Elles, and also, I believe, the noble Baroness, Lady Seear. These Amendments have been tabled following criticisms of the complexity of the provisions for withholding of rebate.
§ The clauses were modelled on the redundancy payments provisions aimed to deal with a situation where an employer has a duty to pay maternity pay and, if he fulfils this duty, to obtain 100 per cent. rebate. If an employer fails to pay and the Secretary of State were satisfied that the woman had taken all reasonable steps herself to obtain the money, the Secretary of State would pay her the money and then stand in the employee's shoes for her rights and remedies. The employer would thus have to pay the Secretary of State. If he did so he would, of course, have fulfilled his duty and be entitled to a rebate. As the amounts of maternity pay and of rebate are equal they would cancel each other out. But if the employer had no reasonable cause for his failure to pay, the Secretary of State would be entitled to withhold rebate. This would mean that the employer would owe the Secretary of State more 1646 than he was due as a rebate and the Secretary of State would be able to recover this amount. In effect, this would penalise the employer for unreasonable failure or refusal to pay his employee. It would thus act as a deterrent to an employer to disuade him from evading his duty to pay.
§ I fully appreciate your Lordships' difficulties in understanding these clauses, and I accept that this is a roundabout way of achieving the purpose. We have therefore looked again at these clauses and have redrafted them in a simpler way. The draft now says that where an employer has failed to pay the employee and the Secretary of State has done so himself, the liability to maternity pay is discharged. But if the Secretary of State considers it appropriate, he may recover from the employer an amount up to the amount of the maternity pay that the employer should have paid. This achieves the same result as the original draft, but does so in more comprehensible language.
§ Your Lordships expressed some disquiet that the Secretary of State could withhold rebate or, in this case, recover money without taking the employer to a tribunal to establish legal liability. The situation, is however, that the employee must have already taken the employer to a tribunal, and the employer continued in his failure to pay, before the Secretary of State will pay the employee direct. This is set out in Clause 43. The legal liability of the employer to pay, and his failure to pay, will therefore have been already established by a tribunal. The Secretary of State will only consider the reasons for the failure to pay. The employer will, of course, have a right of appeal to a tribunal about the Secretary of State's decision. I hope you will agree, my Lords, that these Amendments are an improvement on the previous draft and make the Government's intention somewhat clearer. As I mentioned earlier, we are quite happy to accept the Amendment to the Amendment numbered 18A on the Marshalled List.
§ Baroness ELLES
My Lords, I should like to express on behalf of noble Lords on this side of the House my gratitude to the noble Lord, Lord Jacques, for having listened to us and for having 1647 appreciated our inability to understand the original drafting. I should like to say how much we appreciate the much simpler and clearer manner in which they are now to be put into the Bill. In fact, we have here a good example of when length is not always to be admired and is not as effective as something which is short, clear and pithy, which has been achieved by the noble Lord in his Amendments. I must also express my gratitude to him for having indicated that he will accept my Amendment to Amendment 18, which clarifies a point which might otherwise have been in doubt.
I hope the noble Lord will not think me ungenerous if I point out that there appears to be a minor drafting error in Amendment No. 12 which, as I understand it, is a paving Amendment to Amendments Nos. 14 and 15. It seems to me that Amendment No. 13 has been left out and that in fact line 10 as it now stands should read "…and section 45 and 46", deleting reference to Section 43, because the acceptance of Amendment No. 13 means that the word "rebate" will not in fact appear in Section 43 at all. Perhaps the noble Lord would look at this. I think he will find that Amendment No. 12 needs to be corrected in respect of that minor drafting error. My Lords, I beg to move Amendment No. 18A.
In line 6 of the proposed new subsection, after ("recovered") insert ("but in any case not exceeding the amount of maternity pay which the employer failed to pay,").—(Baroness Elles.)
§ Lord LEATHERLAND
My Lords, this is a great improvement on the Bill as we discussed it at an earlier stage, but one small reference made by my noble friend causes me a little alarm. He assured us that if the employer declines to pay maternity pay to an employee, the State will ultimately pay, but he also said that the employee must first of all take the employer to the tribunal and then make the claim, which the Secretary of State will satisfy. It seems to me that that could cause some delay, which might bring hardship to the employee. Let us imagine for the sake of argument that I am pregnant. Let us say that I notify 1648 my employer about this and ask him for my maternity pay. Supposing that he says, "No", I then say, I shall have to go to the tribunal". Perhaps after two or three weeks of argument with my employer I learn that the next sitting of the tribunal will not take place for another month or so. It seems to me that before the Secretary of State takes the precise step of paying the woman a considerable delay might have elapsed. Does my noble friend think that that might cause hardship, and if so, would he be able to suggest some means of overcoming it?
§ Lord JACQUES
My Lords, the Bill is, shall I say, worded just a little loosely so that in normal circumstances the woman would have had to do everything except enforce the tribunal's decision. It is worded in such a way that the Secretary of State could step in without her going that far. We had in mind, for example, the possibility that the employer may have become insolvent, and we must have regard to that possibility. Consequently, in the Bill as it stands, we would expect a woman to go as far as the tribunal decision, but not necessarily so.
§ Lord LEATHERLAND
My Lords, I am grateful to my noble friend. I feel more content than I did previously.
§ Lord DRUMALBYN
My Lords, may I also thank the noble Lord for the Amendments he has made. It almost makes it worth reading the Bill! At any rate, he can be satisfied that we did try to understand it, and I am very grateful to him for having increased our ability to do so.
§ The DEPUTY SPEAKER
My Lords, since this debate has been somewhat retrospective, I think it would be better to put in order Amendments 11 to 17 first.
§ On Question, Amendments Nos. 11 to 17 agreed to.
§ The DEPUTY SPEAKER
My Lords, Amendment 18A is an Amendment to Amendment No. 18 in the name of the noble Earl, Lord Gowrie. The original Amendment was page 36, line 12, to leave out subsection (4) and insert the subsection as printed in the Marshalled List. Since then, Amendment No. 18A has been moved to insert at line 6 the words on the Marshalled List into the proposed new 1649 subsection. The Question therefore I now have to put is that Amendment No. 18A be agreed to.
§ On Question, Amendment 18A agreed to.
§ The DEPUTY SPEAKER
My Lords, the original Question was that Amendment No. 18 be agreed to, since which Amendment No. 18A has been moved and agreed. The question is that Amendment 18, as amended, be agreed to.
§ On Question, Amendment No. 18, as amended, agreed to.