§ 3.29 p.m.
§ Lord JACQUES
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, that the House do now again resolve itself into Committee. —(Lord Jacques.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The Earl of LISTOWEL in the Chair.]
§ Clause 44 [Interpretation of ss. 36 to 43]:
§ The CHAIRMAN of COMMITTEES (The Earl of Listowel)
Before I call Amendment No. 27, I should remind the Committee that this Amendment has already been moved.
I quite understand, having read the Official Report of our proceedings, why the noble Lord, Lord Jacques, had a little difficulty in 181 dealing with this matter, because had he accepted my first Amendment, No. 26, it would not have been necessary for me to move this Amendment, No. 27:Page 35, leave out lines 22 to 32.The noble Lord kindly said that he would consider my previous Amendment. I am grateful to him for that assurance, and I am also grateful to him for allowing me to discuss this matter now. I feel that it is unnecessary to have this part of the clause in the Bill and I am seeking to delete it because it will be found impossible to work, particularly in relation to the "expected week of confinement" in paragraph (b).
This part of the clause says:… the expression 'expected week of confinement', means a period of seven days beginning with midnight between Saturday and Sunday …I consider that to be unworkable. If we were to leave in paragraph (a), which states:… in sections 36(2)(c) and 41(1), means a period of seven daysthat should be near enough to accuracy for the woman to declare that she has had her baby. This clause must have been drafted by bachelors, because it will be difficult for any woman, especially at this time, to fill in forms, which I assume she will have to do. Surely a doctor's certificate would be adequate in such a case. Paragraph (c) says:… in any other case, means, in relation to an employee whose remuneration is calculated weekly by a week ending with a day other than Saturday, a week ending with that other day, and in relation to any other employee, a week ending with Saturday.What about monthly paid people? Will they have to fill in different forms? I ask this question because this provision deals only with weekly paid people, yet a lot of women who are paid monthly may have babies. For this reason I feel that this part of the clause should be deleted, and that is the purpose of my Amendment.
§ Lord JACQUES
I must first apologise to the noble Baroness, Lady Vickers, for the little confusion which we had last evening at the close of our deliberations on this Bill. We had assumed that the Amendments were associated with the restructuring of the maternity pay provisions. We arrived at this conclusion 182 mainly because the definitions which she seeks to remove from the Bill are of a purely technical nature and are derived from those which already appear in the Social Security Act 1975, but we shall, of course, take note of her remarks.
I must explain why we have four different definitions of "week", which all appear in Clause 44. Amendment No. 26 sought to remove "expected week of confinement". This definition appears for technical reasons to ensure that there is no confusion about the terms used in the Bill. Amendment No. 27 seeks to remove the three definitions of "week". The first of these definitions deals with the expression "week" in relation to giving periods of notice, and in this case it is the Government's policy that a simple week—that is, a seven-day period—should be used. This is partly in order to avoid difficulties which might arise from split weeks and to ensure that the full period of notice is given. The second definition further defines the "expected week of confinement". A different definition is necessary here, because it is the general practice of the medical profession to operate in calendar weeks and it would be neither reasonable nor practicable to provide otherwise in the Bill. The third definition deals with "week" in relation to maternity pay and re-employment and is necessary in order to ensure that employers are not forced to use unrealistic weeks for the purposes of maternity pay and re-engagement but are able to retain their normal definitions.
The noble Baroness is rightly and reasonably concerned about the complexity of these provisions, particularly for the lay reader. I must emphasise that the complexities have been kept to a minimum and are there to avoid greater difficulties which might arise from a lack of precision. In the debate yesterday the noble Baroness asked whether my Department would be making available explanatory leaflets which would make the provisions in the Bill more intelligible for employers and employees. I assure the Committee that leaflets will be available which will explain the provisions of the Bill both in general terms and in detail, and that it is certainly the Government's intention to provide leaflets dealing specifically with the maternity provisions for employers and employees.
I thank the noble Lord for that explanation and I think he will agree, in view of the debate we had yesterday, that if he had accepted my previous Amendment, which would have changed the whole system, life would have been made a lot easier and all these complications would not have occurred; this would all be done through the suggested arrangements I explained yesterday. Having discussed the matter today and bearing in mind the debate we had yesterday, I hope the noble Lord will accept how much the matter would be simplified if he accepted my previous Amendment, which he kindly agreed to look into and discuss on Report. I therefore beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 44 agreed to.
§ Clause 45 [Trade union membership and activities]:
§ 3.37 p.m.
§ Lord JACQUES moved Amendment No. 28:
Page 36, line 27, leave out from ("a") to end of line 28 and insert ("specified union.
(4A) For the purposes of this section a trade union—
§ The noble Lord said: I will, with the agreement of the Committee, speak at the same time to Amendment No. 146. I regret that in moving this Amendment I shall have to speak at some length because of Amendments which were proposed in your Lordships' House and carried to the Trade Union and Labour Relations (Amendment) Bill earlier in the year. These Amendments are partly a response to points made in your Lordships' 184 House during discussion of the Trade Union and Labour Relations (Amendment) Bill, and partly a result of closer examination of the relationship between recognition and union membership agreements.
§ During consideration of the Amendment Bill in Committee, several noble Lords expressed fears about the position of small independent unions, particularly those representing professional and managerial employees, who might not be specified in a union membership agreement, so that their members would be compelled to join some other union. The noble Earl, Lord Mansfield, successfully moved an Amendment designed to safeguard members of such unions by enabling them to appeal to a third party, who could examine the union membership agreement and arbitrate upon whether or not a union which was not specified in an agreement should be specified. We did not like his Amendment, which opens up the possibility of any unrecognised splinter union appealing against the terms of a union membership agreement and upsetting established collective bargaining arrangements, with consequent ill-effects upon industrial relations. I make no secret of the fact that, when the Amendments made to the Amendment Bill by the House are considered in another place, the Government will seek the deletion of the noble Lord's Amendment.
§ However, I sincerely hope that noble Lords will agree that we have met the substance of the fears expressed on the Amendment Bill by these present Amendments, but in another, less complex and less potentially damaging, way. As I reminded the House when we considered the Amendment Bill, the Employment Protection Bill will enable any independent union to refer to the Advisory, Conciliation and Arbitration Service a claim for recognition so that its claim to represent the interests of its members in negotiations with an employer, even on a limited range of matters, can be independently examined. We thought then that this was the key to fears expressed by noble Lords about the position of minority unions, and we still do. What these Amendments do is to provide that, if an independent union has referred are cognition issue to ACAS under Clause 11, which is still under consideration, or if the union has been recommended for 185 recognition, it is to be deemed to be a "specified union" for the purposes of a "union membership agreement", whether or not it is a party to that agreement or has been accepted by the parties as a specified union to which employees may properly belong under the agreement. The effect of this is that members of such a union may not be fairly dismissed—or cannot be dismissed without compensation—for refusing to belong to some other union, and may not be penalised by their employer in any other way falling short of dismissal, in contravention of their rights in Clause 45 of this Bill, because they refuse to change their union membership. This seems to us to be an appropriate and effective means of safeguarding the minority union and its members, while reflecting the view of noble Lords on all sides of this Committee that stable collective bargaining arrangements should not be undermined and that there should be no encouragement to a proliferation of small unions.
§ It seems to us to be essential that if any union claims to be specified in a closed shop agreement as representing some employees, it should also want to negotiate with the employer on behalf of those employees—on some matters at least. In other words, it should seek recognition to some extent if it has not already got it. That is why this Amendment links the safeguards to recognition. The Amendments ensure that any union which seeks recognition for the first time, or seeks to have its existing recognition confirmed, cannot find that its position is undermined, while its claim is under consideration, by the conclusion of a new closed shop agreement. It would plainly be wrong if ACAS's investigations were prejudiced by the introduction of a closed shop and consequent dismissal of some employees who were members of the union seeking recognition.
§ If ACAS does not recommend recognition, then an employer could fairly dismiss members of an unrecognised non-specified union if they refused to join a closed shop union—although ACAS might of course recommend on an informal basis that special terms should be included in the closed shop agreement. But if ACAS does recommend recognition, then the union would automatically be considered an appropriate 186 union to represent employees for whom it was recognised, and an employer could not dismiss the employees fairly for not joining another union. This again is a logical consequence of giving ACAS power to recommend that a particular union should be recognised. Clearly an employer should not be able to flout such a recommendation by dismissing members of the union which he is required to recognise. I hope that these Amendments will be welcomed both as a sensible addendum to the recognition provisions in Part I of the Bill, and as a workable and effective substitute for the Amendment of the noble Earl, Lord Mansfield, to the Amendment Bill.
The EARL of GOWRIE
The noble Lord, Lord Jacques, told us at the outset that he would speak at some length, but I have been pleasantly surprised because his speech was admirably concise. It was, however, very detailed and I do not believe that the architecture and decoration of this building are more ornate or more neo-mediaeval-ecclesiastical than trades union legislation in this country. The only thing in my early academic training which has at all prepared me for the kind of detail one comes across in law-making of this kind was a brief study of the mediaeval church and mediaeval heresies. We have the Amendment Act to the Industrial Relations Act. We have the Trades Union and Labour Relations Bill. We have the present Bill and we have worker democracy to come. I am sceptical—just as, as a back-Bencher, I was a little sceptical about the last Government's efforts in this field—as to whether this enormous and complex superstructure of law will improve matters, but on this Amendment I am prepared to give the noble Lord the benefit of the doubt and to find it, broadly speaking, helpful.
I cannot say that I like paragraph (b)(ii) of the Amendment at all. Where there is a closed shop, why should an interloper union have any rights just because it has applied for recognition? It may have applied for it but not have obtained it. Surely it must have a definitely established right to recognition and not simply rest on application. The application might be unjustified or might be turned down. I am puzzled that the trades unions themselves should agree to 187 this. They would surely, as the noble Lord in his speech implied, not themselves want disruption of the well-established closed shop. I do not think that many employers want the destruction of a well-established closed shop for collecting bargaining purposes either. I believe that the Government should look at that paragraph again, as we certainly shall.
The noble Lord, Lord Jacques, said that he would take Schedule 15 with Clause 45. We should want to study the record of his arguments and his speech and possibly to return to the matter on Report. In the meantime, I do not believe that there is much more we can do until we have had time for such study.
§ On Question, Amendment agreed to.
§ 3.48 p.m.
§ The Earl of GOWRIE moved Amendment No. 28A:
Page 36, line 28, at end insert—
("( ) The provisions of this subsection shall have effect in relation to an employee—
§ The noble Earl said: We have, as I believe my brief responses to the noble Lord, Lord Jacques, on Amendment No. 28 implied, no objection to the general principle of Clause 45. If I may remind the Committee, it seeks to give any employee the right to belong to a trade union and to take part in its activities. However, a problem arises in a situation where a trade union is already recognised. This is precisely the same problem as I readily acknowledge occurred in the 1971 Industrial Relations Act as interpreted by the courts in such cases as Howle v. GEC. If one union is already recognised to cover a particular group of employees, it is surely disruptive to satisfactory industrial relations 188 arrangements to provide by Statute that any employee from the group who happens to join a different union has a right to take part in its activities on the employer's premises. This is not for collective bargaining and confusing for the employer. Where a particular anion is already recognised, the employee's right to take part in union activities should be restricted to the recognised union.
§ It puzzles me that this is in the Bill, because the noble Lord, Lord Jacques, in his speech on the last Amendment, showed that he was firmly against the splintering of unions. There are cases in engineering unions, for instance, where a union is recognised by an employer for a particular class of employee. For instance, technical employees—draftsmen and the like—may be represented by TASS and the employer may give the TASS facilities for meetings on the premises. A rather similar provision under our Act—and I acknowledge the difficulty here—was interpreted by the courts as meaning that if one or two of these engineering technicians joined another union such as Mr. Jenkins's union, ASTMS, the employer would then have to grant similar facilities to them. This is a case of a muddle under the 1971 Act which, to my surprise, appears to be perpetuated in the present Bill. Despite what the noble Lord, Lord Wigg, said about us last night, we are trying to learn from our mistakes and we suggest that the Government should also try to learn from theirs. I beg to move.
§ Lord JACQUES
This Amendment seeks to make a qualification to the rights of an employee to take part in union activities at his place of work similar to that in subsection (4), which operates when there is a closed shop, but this Amendment would additionally restrict the employee's rights when the employer recognises a union or unions. It must be emphasised at the start that because in talking about recognition it follows the draftsman's language used in defining closed shops, the Amendment would create very considerable confusion about classes, grades and categories of employees, that is not the principal reason for our opposition to it.
In our view, the Amendment represents an extraordinary inconsistency in the Opposition's approach to industrial 189 relations legislation and individual rights. They are clearly uncertain about what relative weights should be attached to individual rights and to collective majority rights. They have attacked the closed shop as a denial of individual rights. But this Amendment would exalt recognition to the same level as the closed shop in putting collective rights above individual rights, and would unnecessarily deprive the individual employee of his rights in doing so. Certainly, the problem of finding the right balance is a difficult one, but the Government's line is that individual rights should be protected when they are not seriously in conflict with collective rights to the point of causing industrial relations troubles. This at least has the virtue of consistency. The Opposition's line displays no such consistency and the individual right which they want to cut down cannot be seen as a major cause of industrial conflict.
The Amendment is objectionable in principle because it cuts down individual rights unnecessarily, and on a fairly extensive basis; but it also shows some confusion of thought. Clause 45 deals with individual rights of employees, not collective bargaining issues. Recognition is dealt with in Part I of the Bill. By giving the individual employee a right to take part in his union's activities unimpeded, Clause 45 does not require an employer to recognise his union or treat with it in any way. The clause provides, negatively, that the employer must show tolerance and not prevent participation in union activities. It does not provide positively that he must facilitate or promote such activities. The clause does not therefore undermine established collective bargaining patterns.
Subsection (4) makes special provision for the closed shop situation, because, clearly, activities such as recruitment of a non-closed shop union at the work-place would be seen as undermining the closed shop and could cause industrial relations difficulties. The existence of such activities could also reduce the tolerance of dual membership, or of special exemptions from the closed shop, which the Government have aimed to ensure can be part of a closed shop agreement. But no such difficulties are likely to arise when a union is recognised but is not seeking 100 per cent. membership. Activities 190 of a non-recognised union in which management is not involved, do not undermine the established collective bargaining arrangements, and there is no justification for removing these individual rights.
The Earl of GOWRIE
I hope that the Committee understood what the noble Lord said, because I am not sure that I did. I think that he entirely failed to answer my initial argument and went off at a tangent about inconsistencies in the Opposition's approach. Of course, I should defend the Opposition very vigorously against such allegations of inconsistency. In dealing with individual rights, we were anxious that negative rights—the right not to be forced into doing things—should be part of such laws. But where recognition procedures or collective bargaining procedures are being dealt with involving groups of people, other considerations apply and I do not think that the noble Lord's argument in this respect will go. I was simply trying to be helpful. In his first Amendment the noble Lord talked about the dangers of the splintering of unions. I, quite frankly, looking towards the difficulties that employers might get into in collective bargaining situations, and wishing to learn from mistakes, thought that it was quite unfair that employers should be caught up in recognition disputes of this kind.
I should have thought the Government had already acknowledged that some of the points I made were valid, because in Clause 45(3) and (4) it is already provided that the right to take part in the activities of a trade union should be limited to the specified union where a union membership agreement exists. The effects of our Amendment are merely to extend that provision to recognised unions where a union is recognised but a union membership agreement does not exist, and there are logical reasons why this should be so. Finally, the question of activities on the employer's premises—which I made much of in my opening speech—was not touched upon by the noble Lord at all, so far as I could understand him, and I should like a little more enlightenment on that point.
§ Lord JACQUES
Am I to understand that the noble Earl would like a little more enlightenment on the question of 191 how this Amendment relates to the Post Office v. Crouch case? Would that satisfy him?
The Earl of GOWRIE
I was not concerned to get enlightenment on that particular case; I do not know of it. If the noble Lord thinks that it is relevant, he is very welcome to try to persuade us of its relevance.
§ Lord JACQUES
On reading the Amendment, we felt that the Opposition were seeking by it to ensure that the difficulties which arose in the case of the Post Office v. Crouch do not arise again. That was the case which arose out of the 1971 Act. In that case, the House of Lords decided that Section 5 of the 1971 Act, which gave the individual worker a right to take part in the activities of a union of his choice without being prevented or deterred from doing so, or penalised or discriminated against for doing so, imposed a corresponding obligation on an employer to treat all unions with members in his establishment in the same way as far as granting facilities for activities was concerned. This cross-over between individual rights and collective rights was not intended when the Act was drafted, and clearly posed problems in relation to how this integration of the individual's rights squared with the recognition provisions.
We are very aware of the problems raised by the Crouch decision, and have thought long and hard about it, particularly about how we could avoid by the drafting of this clause the same kind of difficulty. There are significant differences between the drafting of Clause 45 and of Section 5 of the 1971 Act, which is designed to indicate to the courts, in case the issue comes before them, that we do not intend the Crouch decision to be followed. First, Clause 45 expresses the employee's rights in a negative way as a right not to have action taken against him, rather than as a positive right to join a union of his choice and take part in its activities. The emphasis is thus placed on actions which an employer must not take, rather than upon actions which an employee may, as of right, take.
Secondly, the prohibited actions must be against the employee as an individual, implying that the action must be taken 192 against him personally, rather than against his union. Thirdly, a prohibited action must be for the purpose of prevention, deterrence or penalisation. Actions aimed at other purposes, such as helping recognised unions, which have the incidental effect of restricting some employee's rights comparatively, do not infringe these rights. Fourthly, the idea of discrimination by an employer—implying a comparison between the extent of the rights of different employees—has been omitted. It was upon this idea of comparative disadvantage that the House of Lords founded their decision in the Crouch case.
In short, we recognise the difficulties posed by Crouch and we have done our best to deal with them. I hope that in the light of this explanation the noble Earl will feel able to withdraw his Amendment which we consider is unsatisfactory in its drafting. We cannot be 100 per cent. sure that the courts will not find some loophole in the drafting of Clause 45, and this Amendment would not necessarily plug all loopholes. But we do not think that the area of doubt about the effectiveness of our solutions is sufficient justification for abandoning the search for a solution and saying that instead the individual employee has no rights to take part in any of his union's activities at work, even though they do not interfere with the employer simply because an employer recognises other unions. It is a question of trying to strike a balance. We have honestly made an effort to do that and I should have thought that this would have been welcomed by the Opposition.
The Earl of GOWRIE
I can say sincerely that I put down my Amendment in order to try to be helpful and therefore I shall not press it if the Government find it unhelpful. I still, in conclusion, would say that I do not think that the noble Lord has taken up the point that while we acknowledge under the Bill the employee's right to take part in union activities, this right should be restricted to recognised unions rather than unions which are not recognised. But since I was trying to be helpful and since I feel that the noble Lord was trying to cast a fog of complexity over my small, helpful Amendment, I will withdraw it in rather a hurt voice.
§ Lord HARMAR-NICHOLLS
I do not think that anyone could have listened to that exchange without being disturbed. This is a vital piece of legislation which is going to affect people in their daily lives; and there we have the noble Lord speaking from the Government Front Bench saying that they know that there are loopholes in what they are trying to do, loopholes which would cause things to happen which would be bad. My noble friend has put forward words which he wanted to suggest would perhaps stop up some of the loopholes. That has not been clearly answered. If it is to be merely a matter of form that any part of Parliament comes back merely to bandy words and then, having had that sort of exchange and a little confrontation, they are left in the knowledge that they are not doing the job that they set out to do, then it is making a nonsense of Parliament. My noble friend is going to withdraw his Amendment and I have no doubt that that will be accepted by the Committee; but I should like to feel that, before this Bill becomes an Act, some further thought will be given to try to remove the difficulties which were the subject of this exchange.
The Earl of GOWRIE
I must answer that because I must hasten to assure my noble friend that I am puzzled as to why the Government did not find this acceptable. It is because I am puzzled and because I intend to look at it further, that I am withdrawing it only for the time being.
§ Lord JACQUES
I think that the noble Lord is entirely misconstruing what has been said. In effect, what I said was that here we have a difficulty of preserving the rights of the individual and insofar as it is possible to preserve those rights without interfering with collective bargaining and without disrupting industrial relations, we are determined to preserve them. I went on to say that there may be loopholes. I did not say that there were loopholes, but that there may be loopholes in this clause, Clause 45, in the same way as there were loopholes in the 1971 Act which the House of Lords came up against in the Crouch case. We feel that we have solved the difficulties that arose out of the 1971 Act; but we cannot be sure. We say that this Amendment does not solve them or plug up all the loopholes.
§ Lord PANNELL
The noble Lord, Lord Harmar-Nicholls, should not express surprise because from the Government Front Benches it was said that there may be loopholes. I sat day and night through the 1971 Bill in another place when the Ministers at the time were sure that it was almost the revealed Gospel. That also was found to have loopholes and, at the end of the day, to be thoroughly unworkable. The noble Lord, Lord Harmar-Nicholls ought to be grateful that there is a touch of humility from the Government Front Benches now which was not present at the other occasion.
§ Lord WIGG
I am grateful for the humility. May I ask the noble Earl, Lord Gowrie, a question? He said he was withdrawing the Amendment for the time being. Does that mean we are going to have the same performance again on Report? If so, then I would press for a decision now; because it would be more than flesh and blood could stand.
The Earl of GOWRIE
My French is not all that good but it faut reculer pour mieux sauter is an ancient Parliamentary principle of which, I am sure, the noble Lord, Lord Wigg, is aware. I would point out to my noble friend Lord Harmar-Nicholls that I am able to ask leave for my Amendment to be withdrawn; but the Committee is not in any way obliged to accept it.
§ Amendment, by leave, withdrawn.
§ 4.6 p.m.
Baroness ROBSON of KIDDINGTON moved Amendment No. 29:
Page 36, line 29, leave out ("religous belief") and insert ("conscience").
§ The noble Baroness said: If the last Amendment was complicated—and some of us had difficulty in following the exchanges between the two noble Lords over that Amendment—this Amendment is very simple. In moving it, I am aware that we have been over the same ground many times before. We were over it only three months ago when we were discussing the Trade Union and Labour Relations (Amendment) Bill. I shall be brief in my introduction of the Amendment and try not to go over the same ground again. The fact that I am going to be brief does not mean that I feel any less strongly on the subject. I am of the opinion that there is a great measure of 195 support for this Amendment in the Committee. The intention of the Amendment is to ensure that an employee who genuinely objects on grounds of conscience, rather than on the narrower grounds of religious belief, to being a member of a trade union should have the right not to have action short of dismissal taken against him for the purpose of compelling him to join a trade union.
§ Your Lordships will note that the Amendment is limited. We have not widened it any further than the question of conscience. We have not tried to introduce other grounds for objection, including "reasonable" grounds, and we have not tried to protect people who have an objection against joining a particular union. Secondly, I should like to reaffirm that we on these Benches have no sympathy for the people who refuse to join a union simply because they do not want to pay while they want to benefit from the rights and privileges that come from unionism. I believe—and I think that all my noble friends on these Benches believe also—in the principle of a 100 per cent. membership of trade unions in this country; but we believe that it should be on a voluntary basis and not through compulsion.
§ If we leave the Bill as it stands, using the term "religious belief", we are removing the statutory rights of an employee not to have action taken against him if he genuinely objects on the grounds of conscience to being a member of a trade union. I can see no reason why the Government should depart in this way from the test of conscience when it has stood the test of time. It has worked perfectly well in closed-shop cases in the past including the most recent industrial tribunal cases; and the findings of the Donovan Commission Report support our case. I need only add that it has always been the basis used in matters of military service.
§ Moving the Amendment to change the term "religious belief "to "conscience" does not mean that we are minimising the importance of religious belief; but, in our view, the word "conscience" includes "religious belief" and therefore it is unnecessary to add the latter to the word "conscience'. Those are the only things I want to say on the subject because I am deeply conscious that we have already 196 been here a long time. We have spoken in this debate and we have listened to lengthy speeches. This, I believe, is an Amendment which should commend itself to the whole of the Committee and I hope that the Government will see their way to accepting it.
§ Lord HOUGHTON of SOWERBY
We had a debate on this subject on a previous Bill, if I remember rightly; but I do not recall what we did with religion in the end. I object to reference to religion in any Bill relating to trade union membership or trade union rights. Moreover, I object to the exercise of a civic right being dependent on religious belief. I object just as much to conscience, because I know why "religious belief" is put in, and why there has been objection to "conscience". "Religious belief" seems to be something finite, something identifiable. This has been put in solely for the benefit of members of the religious sect known as the Plymouth Brethren. Equally, I object to a Bill which really says that only Plymouth Brethren shall be exempt from the obligation to join a trade union in a closed shop situation.
I believe I gave the House the benefit of the experience of the Parliamentary Labour Party on this difficult matter on a previous occasion, where we disposed of references to religion and conscience. We inserted "deeply held personal conviction". That seemed to be satisfactory. I have got by all these years on these difficult matters of personal belief on the definition of "deeply held personal conviction". I believe I recommended these terms on a previous occasion. What is good enough for the Parliamentary Labour Party is good enough for a Labour Government Act of Parliament on any matter you like affecting conscience or religious belief. I would be in favour of getting rid of religion; I would be in favour of not putting "conscience" in, and of the clause reading, "where a member has a genuine objection". That seems to be the only way of meeting this situation at the present moment.
I believe that the trade union fear that too many people will want to take advantage of a clause of this kind is unfounded. I do not think that, on the whole, employees, trade unionists and 197 others claim to have a conscientious belief, religious belief or conviction when they do not hold such a view. On the whole, there is not a disposition not to belong to unions. The person who holds out usually does so because he has something in him—call it conscience or what you like—that will not let him do it. He is prepared to suffer for his convictions. I had a father like that; and one can only admire people who will stand by what they believe to be their right, a conviction which they hold, without being religious and without claiming the obscurity of a conscience in the matter. Provision should be made for such, and we did that in the Parliamentary Labour Party. Why we cannot put "deeply held personal conviction" in the Bill, if we need it at all, I do not know. I will not vote to support religion in a trade union Bill at any time.
§ 4.12 p.m.
§ Lord HAILSHAM of SAINTMARYLEBONE
We have had this debate before, but I do not see why we should not have it again because it was an interesting debate about a matter of some importance. I should have had a great deal of doubt as to how 1 should vote if the noble Lord, Lord Houghton of Sowerby, had put down an Amendment to leave out the existing words and to insert, "deeply held personal conviction", which has a great deal of attraction to me. But, as it is, we have to make up our minds about the Amendment we have, and not the far better Amendment, as it may have been, that we might have had if the noble Lord, Lord Houghton of Sowerby, had put it down. The Amendment we have substitutes "conscience" for "religious belief". Objection could be made about this only if it were held that religion was more important than conscience; or, alternatively, that only religious people had consciences and therefore the idea of somebody having a conscience when he had no religion was a nonsensical one.
I personally believe that if we were to take a poll of those present in the Chamber at the moment, not one person would not admit that there are plenty of people of their aquaintance who have no religious beliefs, but have many conscientious beliefs. If that be so, surely this Amendment is unanswerable. We 198 have heard that the Labour Party got on very well with "conscience" for many years, but have now substituted "deep personal conviction". Good luck to them! We have heard about the conscientious objection tribunal; that operated on conscience, whether religious or not, and operated perfectly well.
I reminded the House in a previous debate, and now proceed to remind the Committee, that this Government and this country are hound by the terms of the European Convention on Human Rights, and if they do not observe those terms, they can be brought before the Commission, castigated in front of it and made to obey the Commission's direction and judgment. Article 9 of the Convention (by which this Government and country are bound) reads as follows:Everyone has the right of freedom of thought, conscience and religion. This right includes the right to change his religion or belief and freedom either alone or with others and in public or private to manifest his religion or belief in worship, teaching, practice or observance.This clearly indicates that in the terms of the European Convention, by which we are bound, and therefore in the view of the Commission, which is the court set up to enforce it, conscience and religion are distinct things, and so is belief. They are not identical and, therefore it must be right, if we intend to keep the pledged word of this country to insert in our Statutes the word "conscience", either in place of "religion" if we think it subsumes it, or as well as "religion" if we think it does not. Therefore, I cannot see what answer there can possibly be to the Amendment of the noble Baroness. I do not want to repeat entirely what was said before. But in the absence of the noble and learned Lord the Lord Chancellor on his pleasant expedition to Canada—in which we all wish him well and wish we were there ourselves—I must remind the Committee what he sought to say on the previous occasion. He sought to say that conscience is something you cannot define. But is it any more difficult to define than religion?
I had a case at the Bar just before I became Lord Chancellor, in which the question to be decided was whether or not scientology was a religion. It was a very difficult case and I am not sure it was decided aright. If there be a difficulty of 199 definition, it must apply to religion just as much as conscience. Personally, I do not find "conscience" difficult to define although I am not going to attempt a definition, because I shall divert the Committee from the subject matter of the debate and the Amendment. I should like to put this plainly to the Committee. If the Committee agrees (and I venture to say that every one of us does so) that "conscience" is a word to which a meaning can be attached, and is not just a noise, like saying that you like asparagus or something subjective to the individual, but is a word in the English language with a significance—no doubt there is a definition in the dictionary—and if it be a reality, and if it be an obligation in law, it must be capable of definition. I have no doubt that the Parliamentary draftsman would do it better than I, or perhaps better than anybody present in the Chamber today would. But if words have a meaning—that is to say, if they correspond to some reality in human experience—it is not possible to say that they cannot be defined. I know we all argue about how one defines an elephant, though one may be able to recognise it. But it is in principle capable of being defined because it exists. Everything that exists is capable of definition.
Therefore, I end by asking the Government these specific questions. Do they agree that conscience corresponds to a reality in human experience, whether it be easy or difficult to define? Do they agree that there are people who have no religious belief but none the less have consciences, and may be just as bound by their consciences as devout Christians, Jews or Sikhs are bound by their religious doctrines? And if they object to this Amendment by some obstinancy, some obscurantism, how can they reconcile it with the terms of the European Convention? I hope that the Government will give a little more satisfaction to this Committee than they gave on the previous occasion when this subject was debated.
§ 4.22 p.m.
§ Lord PANNELL
Whatever a chore it is to return to the House for three or four days this week, I can only tell the noble and learned Lord who has just spoken that that disquisition of his has enlightened my afternoon for me. I agreed 200 with my noble friend Lord Houghton of Sowerby, not so much on the letter or word, but because for many years before I came to this place I had to operate a closed shop. It does not matter to the man on the bench what is in the Declaration of Human Rights; what matters is what is useful from day to day. I was present at those arguments that took place in the Parliamentary Labour Party about their famous conscience clause. The conscience clause used to be concerned with temperance, pacifism, religion and such things. But it was devised and drafted by the father of the noble Lord, Lord Henderson, who sits on these Benches, and, he being a Methodist, it was a Nonconformist conscience clause—and that is another kind of conscience we have to deal with.
On the question of defining what is a religion, I can only say that in Champion's Eleven Religions and their Proverbial Lore it is said a religion is nothing but a philosophy with a gold mean; and that is good enough a definition for me. What really matters is the fact that, in coming up against this question at the day-to-day working bench, if a chap cannot show a trade union card and he is asked why not, he does not say—or I have never in all my 50 years' experience known a man say—"I've got a conscience." I have heard a man say in effect: "I think the card is rather dear at the price,", or, "I know a union that charges less." In my own union we used to have a card which was called "a Woolworth's card. "It was a trade protection card which could be obtained for sixpence. But no self-respecting fitter or turner recognised that card. I am afraid the Declaration of Human Rights has no significance on the factory floor, where this Bill is supposed to carry some writ; it carries no significance at all. Although I shall treasure the memory of hearing the oratory of the noble and learned Lord, Lord Hailsham, this afternoon, I do not know anybody else who, circumstanced as I used to be by this kind of situation, will remember it or even know that such oratory existed.
§ Lord BROWN
It is a matter of conscience to me, probably to the annoyance of my own Front Bench, to stand here and say that in principle I must support this Amendment. I preferred the Amendment spoken about by the noble Lord, 201 Lord Houghton of Sowerby, but not moved; it reads better. In my experience in industry I have encountered many cases of men—they have perhaps put it as a matter of principle—who have refused to be coerced into joining a union and have convinced their fellows that they have a right to stand aside. One of the most irritating things to men is not having to join a union but the fact that they have lost the right to decide for themselves. That is what becomes a matter of conscience. It would be most foolish if trade unions generally were to press for exclusion of a conscience clause, or whatever it may be called, because this is something which will create the most virulent enemies of these organisations—not because of their aims or attitudes but simply because of the desire to rob others of the right of their own freedom of choice and of association. I feel I must stand and say these things, although I may be speaking against my own Party in this respect—I hope I am not—because this is a matter on which everyman has to show where he stands.
§ Lord LEE of NEWTON
One's fear of the word "conscience" may well stem from what one means by it. I remember the occasion at a Labour Party conference when we were subjected to a huge scream by one of our members who said he was doing it on behalf of his conscience. When the late Lord Attlee replied he did it with the words: "I always thought that conscience was a still, small voice." It seems to me that one of the great dangers of over-use of the word "conscience is that if on the grounds of conscience a man refuses to be a member of a union of which all those who are working with him are members his fellow workers will look at the principles which guide him in his every day life. They will look at whether those principles are somewhat in excess of their own. They will say: "If a man who pleads conscience when he does not want to pay his trade union fees can stoop to other things"—things they see him doing "it is our conclusion that he is a sham and a fraud." If we take the matter a stage further—
§ Lord HAILSHAM of SAINT MARYLEBONE
Does not the noble Lord see that the words "genuinely objects" are 202 inserted in the clause, whether or not we accept the Amendment?
§ Lord LEE of NEWTON
I am trying to say that when we look at these matters on the workshop floor—I agree with what my noble friend Lord Pannell said on this matter—we do not consult even the High Court, much less the European Court. One looks at the conduct of the man. One lives with him, works with him, year in, year out, and does not judge him on whether he says he has a conscience which will forbid him to join a union; one looks at his conduct.
My experience, and indeed the experience of most employers, is that the jolly good, sound trade unionist is also the best employee, in his principles, in his approach to his work, and so on. My experience has been that where one encounters the kind of man who tries to quote his conscience, he is not in principle as good as, much less better than, the majority of those with whom he works. At the end of the day, that which we are talking about is the possibility of collective bargaining, of representation of men by a shop steward or union official. If we are to widen the excuses which people can make for not being members of a union, the end product will be that the man who speaks for a union within a factory will find that about 50 per cent. of his staff are not members of the union in any event and his ability to speak for them is thereby minimised. In the end that is how chaos ensues in industry.
I notice that the noble and learned Lord shied when he said that today he would not give us a definition of "conscience". I was rather disappointed; I was hoping he would. I have never yet heard of a definition which covers the man who refuses to be a trade union member on the basis of his conscience. I hope that we shall be very careful before we include the word "conscience" in legislation.
§ Lord DARWEN
May I remind the Committee that not so very long ago there was an occasion on which some of us had to stand up for what we believed because we were conscientious objectors? Surely in those days the word "conscience" had a meaning and it was written into the Statute. It is a great pity that some members of my own Party should 203 try to make out a case that trade unionists have no such thing as a conscience.
§ Lord DARWEN
In the trade union movement there are those who do not behave as their fellows would behave because they have not got a conscience—or let us say they do not use their own principles by a name, a label, which may be called "conscience". The trade union movement is full of men who have conscience and who act according to their principles. It is a great pity that they should be maligned in the way they have been maligned this afternoon.
§ Lord LEE of NEWTON
Surely we are talking about the man who is not a trade unionist because of his conscience, not about the man who is a trade unionist.
§ Lord BROWN
The noble Lord is inferring that anybody who is not a trade unionist has not got a conscience. That is the exact interpretation of what he has just said.
§ Baroness SEEAR
I do not wish say very much on this Amendment, because it has been said already by my noble friend Lady Robson. However, in reply to the noble Lord, Lord Pannell, I must say that what is contained in the Bill and how it is received on the factory floor is of very great importance. When this Bill is passed, it will be the law of this country. Whether or not it looks right on the factory floor, surely it is appropriate and essential that the law of this country should comply with the Declaration of Human Rights of Europe.
§ Lord PANNELL
Does it ever occur to those noble Lords who have spoken that the people who object to the conscientious objector have themselves got a conscience? If a man said to me, "I have got a conscience which does not allow me to belong to a trade union", I should say to him on behalf of 100 other people in front of me, "I have got the consciences of 100 other people to deal with who also do not believe that their conscience allows them to work with you". It is a purely personal matter. The noble Lord must bear in mind that 204 he is speaking to someone who has had to defend trade union rights for over 50 years, sometimes in the teeth of the bitter wind and sometimes in the teeth of an employer who put him outside because of his conscience.
§ Lord DARWEN
Will the noble Lord allow me to comment on that? My father was a member of the Labour Patty for many years and my family have fought for the interests of the working classes, as they were once called, over generations. His remark just now was quite uncalled for in the circumstances.
§ 4.33 p.m.
§ Lord JACQUES
Religious believers who object to union membership do so because Scripture forbids them to be yoked with the unbeliever in any form of association, not just in unions. They form a clearly identifiable class of person, with clear reasons for refusing to join a union. One may not agree with their reasons, but one can at least recognise them and respect them. Furthermore, because their objections are not to trade unionism as such, their beliefs are not in conflict with the possibly equally strong belief in trade unionism of other employees. The Government therefore consider that they can, realistically, be defined in Statute as a group who should be accorded special treatment; and that they should be, because their views do not amount to a fundamental attack on those of other individuals with whom they work.
These two arguments—simplicity of identification, and the non-controversial nature of grounds for objecting to union membership—do not apply to other objectors to union membership. In moving her Amendment the noble Baroness said that the test of conscience was interpreted without trouble by industrial tribunals both before and under the 1971 Act in closed shop cases. There was no such test prior to1971. Unions made exceptions on conscientious grounds if they wanted to do so. Under the 1971 Act tribunals have had the greatest difficulty in deciding such cases. I will give one example.
In the case of Heinz v. Spillers French Baking Ltd., the Industrial Court held:In our opinion grounds of conscience necessarily point to and involve a belief or conviction based on religion in the broadest sense as contrasted with personal feeling, however strongly held, or intellectual creed.205 The tribunal had the greatest difficulty once it got away from religion in deciding whether or not there were genuine conscientious objections. One can understand why they have these difficulties. As a member of the Opposition in another place said, conscience other than religious belief is essentially an individual statement of personal belief which may have no rational basis which can be recognised as such by other individuals. It is not based upon some outside source such as Scripture. How can a tribunal be expected, in all fairness, to weigh one's individual personal beliefs against those of other individuals in a work place, and it is that, not the individual versus a union, that is at stake.
Nor is it only tribunals who would he required to arrive at such difficult decisions. The employer first has to make a decision as to whether or not an individual has genuine conscientious grounds for objecting to joining a union, and the employee also has to interpret the meaning of the phrase in deciding whether or not to resist his employer and risk some penalty. It is not right for any Statute to offer the possibility of special treatment without being clear about the circumstances in which the special treatment would apply, and there is no such clarity about the term "conscience".
But because such an exception cannot be made in Statute, that does not mean that individuals with a genuine reason for not wanting to join a union, which they are prepared to explain and justify to their employer and colleagues, would automatically be forced to join a union in a closed shop. Employers and those representing their employees do in practice usually take a very reasonable line when closed shop agreements are made, in making exceptions for known objectors. The provisions now included in the Amendment Bill by the Government ensure that they can continue to do so without running into legal difficulties.
The Government still consider that, religious believers apart, exceptions worked out by agreement in the light of particular circumstances are the only workable exceptions and that a statutory exception for conscientious objectors opens the door to misunderstanding and litigation that can only harm industrial relations and the individual objector himself. For that 206 reason the Government must again resist this Amendment.
The noble and learned Lord raised the question of Article 9 of the European Convention. I should have preferred this question to have been answered by the noble and learned Lord the Lord Chancellor, but I will be brave enough at least to give an opinion. It provides for freedom of conscience, but no employee is compelled to work at a job where his conscience may be put to the test, and so long as the law does not make closed shops universally obligatory there is no conflict with Article 9.
§ Lord HAILSHAM of SAINT MARYLEBONE
The noble Lord has forgotten that Article 9 is not the only article in the Convention. I have not the Convention by me, but I have quite clearly in my mind that the Convention protects the right to work in a place of one's own choice.
§ Lord WIGG
Is not that equivalent to saying that in fact the Embankment and the Ritz are equally free? That is really what the noble and learned Lord, Lord Hailsham, is saying, and that idea has been exploded a long time ago. The idea that a man has a right to work where he chooses may be all right if you are Lord Hailsham, but it ain't any good if your name is Wigg.
§ Lord PANNELL
There is the other point, that in the main this argument was never advanced until the trade unions became as powerful as they are today. After the General Strike there were about 60 places in London which said that they would not employ me: it was not their conscience at all, it was merely the fact that I was a trade unionist. Consequently, employers have no conscience and never have had in the matter.
§ Baroness ROBSON of KIDDINGTON
I am afraid that nothing the noble Lord, Lord Jacques, has said has convinced me that I ought to withdraw my Amendment. In regard to his defence of religious belief as against conscience and the impossibility of adjudicating on a conscience clause, we have, after all, for a long time had conscientious objection as a reason for not joining the Armed Services. But if I had any doubts at all about whether to proceed with my Amendment I think the words of the noble Lord, Lord Pannell, would convince me that I should 207 go on. I cannot understand a statement that day-to-day problems on the factory floor have nothing to do with a declaration of human rights. I should like to impress upon the noble Lord, Lord Pannell, that unless we defend human rights and freedom of conscience he may not have any problems on the factory floor because they may be decided by somebody else.
§ Lord PANNELL
Among those who know probably my reputation is better than that of the noble Baroness, and so is my track record.
§ 4.43 p.m.
§ On Question, Whether the said Amendment (No. 29) shall be agreed to?
§ Their Lordships divided: Contents, 121; Not-Contents, 54.209
|Aberdare, L.||Foot, L.||Porritt, L.|
|Aberdeen and Temair, M.||Fraser of Kilmorack, L.||Rankeillour, L.|
|Airedale, L.||Goschen, V.||Rea, L.|
|Alport, L.||Gowrie, E.||Redesdale, L.|
|Amherst, E.||Grenfell, L.||Ridley, V.|
|Armstrong, L.||Hailsham of Saint Marylebone, L.||Robson of Kiddington, B. [Teller.]|
|Ashbourne, L.||Halsbury, E.||Rockley, L.|
|Auckland, L.||Hanworth, V.||Sackville, L.|
|Balerno, L.||Harmar-Nicholls, L.||St. Aldwyn, E.|
|Barnby, L.||Hayter, L.||St. Davids, V.|
|Berkeley, B.||Headfort, M.||St. Helens, L.|
|Boothby, L.||Helsby, L.||Sandford, L.|
|Boyd of Merton, V.||Inglewood, L.||Sandys, L.|
|Bradford, E.||Ironside, L.||Savile, L.|
|Brecon, L.||Kemsley, V.||Seear, B.|
|Brooke of Cumnor, L.||Killearn, L.||Selkirk, E.|
|Brooke of Ystradfellte, B.||Kindersley, L.||Shannon, E.|
|Byers, L.||Kinnoull, E.||Sharpies, B.|
|Campbell of Croy, L.||Lauderdale, E.||Stanley of Alderley, L.|
|Carrington, L.||Lindsey and Abingdon, E.||Strang, L.|
|Cathcart, E.||Long, V.||Strathclyde, L.|
|Chesham, L.||Loudoun, C.||Strathcona and Mount Royal, L.|
|Clifford of Chudleigh, L.||Macleod of Borve, B.|
|Clwyd, L.||Malmesbury, E.||Strathspey, L.|
|Cowley, E.||Mansfield, E.||Sudeley, L.|
|Craigton, L.||Merrivale, L.||Swaythling, L. [Teller.]|
|Cranbrook, E.||Mersey, V.||Templemore, L.|
|Cullen of Ashbourne, L.||Meston, L.||Terrington, L.|
|Darwen, L.||Middleton, L.||Thorneycroft, L.|
|Daventry, V.||Molson, L.||Tranmire, L.|
|Davidson, V.||Monck, V.||Vickers, B.|
|de Clifford, L.||Mowbray and Stourton, L.||Vivian, L.|
|de Freyne, L.||Netherthorpe, L.||Wakefield of Kendal, L.|
|Denham, L.||Northchurch, B.||Waldegrave, E.|
|Deramore, L.||Nugent of Guildford, L.||Ward of North Tyneside, B.|
|Drumalbyn, L.||O'Neill of the Maine, L.||Ward of Witley, V.|
|Dundee, E.||Onslow, E.||Wigoder, L.|
|Ebbisham, L.||Orr-Ewing, L.||Wolverton, L.|
|Effingham, E.||Platt, L.||Worcester, Bp.|
|Emmet of Amberley, B.||Polwarth, L.||Young, B.|
|Arwyn, L.||Gaitskell, B.||Llewelyn-Davies of Hastoe, B.|
|Aylestone, L.||Gardiner, L.||Lloyd of Hampstead, L.|
|Balogh, L.||George-Brown, L.||Lovell-Davis, L.|
|Blyton, L.||Goronwy-Roberts, L.||McLeavy, L.|
|Brockway, L.||Hale, L.||MacLeod of Fuinary, L.|
|Champion, L.||Harris of Greenwich, L.||Maelor, L.|
|Cooper of Stockton Heath, L.||Henderson, L.||Maybray-King, L.|
|Crook, L.||Hughes, L.||Melchett, L. [Teller.]|
|Crowther-Hunt, L.||Jacques, L.||Noel-Buxton, L.|
|Darling of Hillsborough, L.||Janner, L.||Pannell, L.|
|Delacourt-Smith of Alteryn, B.||Kirkhill, L.||Phillips, B.|
|Evans of Hungershall, L.||Leatherland, L.||Pitt of Hampstead, L.|
|Feather, L.||Lee of Asheridge, B.||Popplewell, L.|
|Fulton, L.||Lee of Newton, L.||Raglan, L.|
|Ritchie-Calder, L.||Stewart of Alvechurch, B.||Wallace of Coslany, L|
|Segal, L.||Strabolgi, L. [Teller.]||White, B.|
|Shinwell, L.||Summerskill, B.||Wigg, L.|
|Stedman, B.||Taylor of Mansfield, L.||Winterbottom, L.|
On Question, Amendment agreed to.
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ 4.52 p.m.
§ Clause 45, as amended, agreed to.
§ Clause 46 agreed to.
§ Clause 47 [Supplementary]:
The Earl of MANSFIELD moved Amendment No. 29A:
Page 37, line 12, at beginning insert ("Without prejudice to section 48 below").
The noble Earl said: This Amendment is a paving Amendment for an Amendment to the next clause, Clause 48, so with the leave of the Committee it may be convenient if I speak to Amendment No. 30B at the same time. Amendment No. 30B in effect provides for the jointure of trade unions in actions for contravention of union membership rights. Where the employer's claim that he has acted under duress was found to be well founded, the union could be ordered, under this Amendment, to pay part or, in extreme cases, even the whole of the compensation. Without this Amendment, employers will be completely unprotected in what I might call a Clause 47(2) situation. Clause 47(2) says:
In determining, … under Section 46 above, any question as to whether action was taken by the complainant's employer or the purpose for which it was taken, no action shall be taken of any pressure which, by calling, organising, procuring or financing a strike or other industrial action, or threatening to do so, was exercised on the employer to take the action complained of, and that question shall be determined as if no such pressure had been exercised.
This is an example of where an employer can be faced with what could be a quite impossible situation, in which none of the fault can be laid at his door, yet he has to pick up the entire bill at the end of the proceedings. It illustrates what we on this side of the Committee say is the objectionable part of this Bill, which in the main we quite realise and accept that the Government seriously, and, indeed, honestly, thinks is protecting the rights of the worker. As I have said, in some cases the employer may be the innocent third party in a dis-
pute between an individual and his trade union, and the employer may be forced by trade union pressure unwillingly to discriminate against the man. In such cases, it is my argument that it is quite inequitable that the employer should be penalised, unless he is at fault.
§ In such a situation a large firm would be able to pay the compensation, although in equity there really is no reason that I know of why it should. For a small firm the effect of such an order for substantial compensation to a person such as a long-service employee could be most serious. In any case, of course, if the employer is partly to blame, the formula provides that each guilty party shall pay his fair share. Noble Lords no doubt have read of such instances in the Press. I do not want it to be thought that I am trying to allege there are frequent trade union malpractices, but cases do occur.
§ It has been argued that although under the 1971 Act employers have the option to join trade unions in a claim concerning unfair dismissal resulting from union pressure, few chose to do so. In my submission, that is begging the question. Some did, and in certain cases unions were ordered to indemnify the employers. Such cases as the Beards worth case, Davis and the Anglo Great Lakes Corporation and the Transport and General Workers' Union spring to mind. So far as we are concerned, the fact that a law is not frequently used is no argument that there should be no such law if the protection afforded by the law is equitable. It could be argued that trade unions are justified in certain circumstances in forcing employers to discriminate against people. I appreciate that argument, but the answer to that must surely be that such discrimination should then not be considered to be wrong, in which case the Clause 47(2) situation should not arise and Clause 47(2) should be omitted. Either the employer should not be entitled to compensation, or the person who forced his dismissal should have to pay. In neither case is there any justification for making the employer pay. I beg to move.211
§ Lord JACQUES
The Opposition in another place moved a similar Amendment, both in relation to the unfair dismissals proceedings during the passage last summer of the Trade Union and Labour Relations Bill and again in Committee on this Bill in relation to this clause. On both occasions the Amendments were resisted. The Trade Union and Labour Relations Bill is now an Act, and contains no such provisions. The Amendment tries to repeat the substance of Section 119 of the Industrial Relations Act concerning contributions by a third party to compensation awards.
However, the situations in this Bill and in the Industrial Relations Act are not parallel. The Industrial Relations Act specifically made pressure of a specified kind an unfair industrial practice, and then provided that if a third party committed such an unfair industrial practice it should contribute towards compensation for the infringement of the rights. This Bill does not establish that it is wrong for a trade union to exert pressure on an employer. Indeed, it must be borne in mind that industrial action connected with the membership or non-membership of a trade union on the part of a worker is a trade dispute as defined in Section 29(1) of the Trade Union and Labour Relations Act, and is therefore protected. It is also protected in other contexts. The drafting of the Amendment is therefore misconceived. It is a slavish imitation of the Industrial Relations Act, but out of context.
Parliament has already agreed that a new context should be established, as in the unfair dismissal provisions in Schedule 1 to the Trade Union and Labour Relations Act, where any pressure on an employer is specifically to be disregarded in deciding whether an employer has infringed an employee's rights, and such pressure is not a factor to be taken into account in assessing compensation. It was perhaps a legitimate point to raise for discussion in the context of unfair dismissals, where the compensation payable could be quite substantial and the possibility of industrial pressure being brought to bear on an employer is perhaps rather greater. If unions do decide that they are not prepared to tolerate an individual taking a different line from the majority, they are far more likely to 212 push for his dismissal than they are to press for action short of dismissal against him. But it was decided then that there should not be a provision of this kind in Schedule 1 to the Trade Union and Labour Relations Act in relation to unfair dismissals. There is, therefore, absolutely no justification for including one here, in this much more limited context.
The arguments in principle which influenced Parliament in relation to unfair dismissals still stand. We do not think that it is conducive to good industrial relations to give an employer the apparent opportunity to join the unions representing his employees in liability to pay compensation to people against whom he takes action. No sensible employer will use such a provision, as experience of the Industrial Relations Act showed. We do not wish to give chances for disruptive behaviour to less sensible employers, who may be deceived by their apparent legal rights into taking foolish action. An employer has to live with the unions and his employees after a case of dismissal or action short of dismissal, and we do not think a provision of this kind would be helpful. Furthermore, this Amendment could, in practice, encourage an employer to give way to pressure, and penalise an individual, more easily than he might have otherwise have done. If he stands a chance of getting a union to share in the compensation, he will not lightly face costly industrial action instead This Amendment is undesirable in terms of industrial relations and inconsistent with the existing law and the views recently expressed by Parliament. We therefore resist it.
§ The Earl of MANSFIELD
I am sure the noble Lord, Lord Jacques, was directing his mind to the Amendment, but so far as I understood what he said I do not think he answered the points, which I tried to make to the best of my ability, adequately or at all. The situation which I postulated at the beginning is that you have an employer who is an innocent party—for instance, in a dispute between an individual and his trade union—and in that posture he may be forced, unwillingly, by trade union pressure to discriminate against the employee. In such a case is it considered equitable by the Government that the employer should be penalised when he himself is in no 213 way to blame for the situation? That is really what this Amendment is all about.
I fully appreciate that the situation is not parallel to Section 119 of the Industrial Relations Act; nobody pretends that it is. This is a Bill, as I understand it, which provides greatly increased protection for employees, and nobody complains of the philosophy behind the Bill, although we do not like some of the provisions in it. I am bound to say that so far I have not heard from the lips of the noble Lord anything that would cause me to withdraw the Amendment, and unless the noble Lord is prepared to meet some of the points I am not inclined to do that.
§ Lord JACQUES
I do not for one moment think that we can accept this Amendment or anything like it, but in view of what the noble Earl has said, I am prepared to look at what he said and then decide whether or not any action is necessary at the Report stage.
§ The Earl of MANSFIELD
I think the noble Lord is putting off the evil hour, but I must take what he says in the no doubt generous spirit in which it was said, and to that extent, therefore, at this stage I beg leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ 5.6 p.m.
Lord WIGODER moved Amendment No. 30:
Page 37, line 12, leave out subsection (2).
§ The noble Lord said: I beg to move Amendment No. 30 as a probing Amendment in order to discover from the Government the point of Clause 47(2), on the assumption that the clauses remain in their present form and that the scheme of Amendments proposed by the noble Earl, Lord Mansfield, are not, in due course, written into the Bill.
Clause 47(2) says something which on the face of it is offensive to common sense. It says:
… no account shall be taken of any pressure which, by calling, organising, procuring or financing a strike or other industrial action was exercised on the employer to take the action complained of …".
It being offensive to common sense, one then asks what is the purpose of the subsection
at all. As I understand it, the position is this. Under Clause 45 an employee has the right not to have certain action taken against him by his employer for the purposes which are set out in Clause 45. Clause 47(2) then says that in determining, on a complaint under Clause 46 above, which deals with methods of enforcing complaints that there have been breaches of Clause 45,
any question as to whether action was taken by the complainant's employer or the purpose for which it was taken, no account shall be taken …
of various industrial pressures.
§ When an industrial tribunal is determining the issue under Clause 45 as to whether an action had been taken by an employer for a specified purpose, I find it difficult to see what the point is of saying in Clause 47(2) that in determining the question whether such action was taken no account should be taken of various pressures, because either the action was taken or the action was not taken and the question of any pressure that might arise seems to be wholly irrelevant. Equally, when the question of an employer's purpose under Clause 45 is being determined by an industrial tribunal all that Clause 47(2) is saying is that the employer's motives are to be regarded as irrelevant. There seems to me to be a confusion between motive and purpose in Clause 47(2). It may well be that an employer takes an action against an employee for one of the purposes laid down in Clause 45. The fact that he does so by reason of various industrial pressures does not affect the issue for the industrial tribunal as to the purpose for which those actions were taken.
§ It has been said many times—for example, by the noble and learned Lord, Lord Devlin, in 1962—that any result of a man's actions which he can reasonably foresee is one of his purposes. It matters not whether it is an immediate purpose, an ultimate purpose, a major purpose or a minor purpose. All that Clause 47(2) is saying is that the employer's motives if they are caused by industrial pressures are to be regarded by an industrial tribunal as irrelevant. I would suggest that those motives would be irrelevant in any event to Clause 45 as it now stands, and that therefore Clause 47(2), apart from containing material which is perhaps offensive to common sense and which 215 will perhaps give rise to allegations that this Bill is biased in favour of one side of industry serves no purpose (if I can use the word) and will not help the industrial tribunal in any way in considering whether or not there has been a breach of the provisions of Clause 45.
§ Lord JACQUES
Subsection (2) of Clause 47, which this Amendment would delete, owes its origins to Section 33 of the Industrial Relations Act. This provided that tribunals should not take into account any pressures which might have been brought to bear on an employer, in deciding whether the employer had infringed an individual's rights by penalising him or dismissing him. This safeguard was considered necessary to prevent an employer from defending his action against an individual on grounds over which the individual had no control, and thus cutting down the individual's basic rights; and in order to deter an employer from giving way to industrial pressure, at the expense of the individual, in the knowledge that he could probably excuse his actions by blaming the industrial pressure, and thus avoid paying compensation to the individual employee.
I would remind the Committee that an equivalent provision to subsection (2), but in relation to unfair dismissals, was in the Industrial Relations Act 1971 and was re-enacted in the Trade Union and Labour Relations Act 1974. Parliament thought then that the provision was needed, or was right, in the case of unfair dismissal. The possibility of industrial pressure to dismiss an employee is rather greater than the likelihood of pressure on an employer to penalise him by means short of dismissal, but that does not mean that the same provision is not needed in this closely related similar clause dealing with action by an employer short of dismissal. Both for the sake of consistency, and in order to ensure that employers cannot effectively ignore the individual rights conferred by Clause 45, I must resist the Amendment.
§ Lord WIGODER
I can see the historical background to this subsection and I can see, as the noble Lord has indicated, that where there is unfair dismissal at stake a provision such as that in Clause 47(2) might be necessary, but here we are considering not unfair dismissal but 216 action taken for a particular purpose. I do not regard this as a mater of principle on this Bill, but what I would venture to do is to ask the noble Lord, Lord Jacques, whether he will look again at the wording of Clause 45 in order to decide whether Clause 47(2) adds anything whatsoever, or helps an industrial tribunal when it is considering the precise terms of a complaint under Clause 45. If the noble Lord would indicate that he will be good enough to look at that matter again, I should be happy to seek leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 47 agreed to.
§ Clause 48 [Assessment of compensation on a complaint under section 46]:
§ 5.14 p.m.
The Earl of MANSFIELD moved Amendment No. 30A:
Page 37, line 34, leave out from ("the") to end of line 37 and insert ("loss sustained by the complainant in consequence of the employer's action complained of, in so far as that loss was attributable to action taken by the employer").
§ The noble Earl said: This Amendment seeks to return Clause 48(1) to the exact wording of the Bill before it was amended on Report in another place. Until that time the clause as it stood provided for compensation for loss sustained in consequence of the employer's action under the terms of Clause 45. In Committee in the other place—I think I am paraphrasing the matter reasonably fairly—there was some criticism that subsection (3) was not sufficiently even-handed in the direction that it gave to tribunals when they came to assess compensation to be given to the employed. I think that that is a fair way of putting it.
§ The effect of the Opposition's criticism, so far as Report in the other place was concerned, was a veritable Pandora's Box. The lid was raised and an extremely unpleasant bee emerged in the form of the concept of compensation for infringement of rights, in addition to compensation for loss. Therefore, it is now technically possible under this Bill to have damages without loss, which I believe is an entirely new concept and, as we think on this side of the Committee, totally unjustified. In 217 other words, putting the point slightly more contentiously, if one reads this clause along with the last one, Clause47, on which I moved an Amendment, there could be a fine on an employer in respect of a situation over which he had no control, and for which he was not to blame and may well have been the subject of extreme pressure on the part of a third party. We do not believe that that situation can be right.
§ The Minister of State, when justifying this matter which he had introduced on Report in another place, likened the situation to one of defamation. I do not think that your Lordships would equate for one moment the situation where, under Clause 45, an employee is denied his rights short of dismissal—that is, preventing or deterring him from being or seeking to become a member of an independent trade union—to that of the stigma of being brought into hatred, ridicule or contempt in the eyes of members of the public in general and persons who may have contact with the employee in particular.
§ This is a response which does not exactly help the situation. I dare say it may be pointed out that the Sex Discrimination Bill, as it still is, will provide damages for injured feelings in certain circumstances; that is to say, where a woman has been discriminated against on grounds of sex. I shall not go into the question whether that is a wholly desirable ground of damages. But even if it is I suggest to the Committee that the situations are not parallel, let alone close. I suggest that this is an area—that is to say, the granting of damages for the infringement of rights as opposed to compensation for loss—where the Government should be extremely careful about treading.
§ I cannot see any element of hurt feelings, let alone of defamation, in being deterred from joining a trade union. I suppose it could be argued—and, indeed, it may be fair to say that it was hinted at by the Minister of State in another place—that although this will be a discretion to award compensation for infringement of rights on the part of a tribunal, it may well not feel inclined to do so and will not necessarily award such damages. Nevertheless, by virtue of its inclusion in the Bill, tribunals will be directed towards that, and the inference which can be drawn—not necessarily drawn, but it 218 can be—is that tribunals should award such damages unless there are good reasons for not doing so, and it is quite understandable that they would come to this conclusion. Equally, I suppose it may be said that a compensation order under this head may be, or is likely to be, fairly nominal, but I suggest that that is a poor argument because it underlines the fact that compensation is likely to be paid whether or not loss is proved. I suggest that this is bound to encourage people to try their luck.
§ We have here had urged on us on numerous occasions by noble Lords opposite the point that employees should not be encouraged to go to law, but should be encouraged to settle their grievances by voluntary means. This is turned upside down by virtue of this provision which in effect would encourage employees to go to this form of law in order to get this form of damages. Finally, I would suggest that it is against the principle of strengthening voluntary collective bargaining which we have heard said on many occasions is the primary objective of this Bill. For all these reasons I commend this Amendment to the Committee and beg to move it.
I have listened as carefully as I can to my noble friend and if I have missed something I apologise. The fact is that in line 34 the word "the" is mentioned twice. I presume it means from the first "the".
§ Lord JACQUES
It was decided that the drafting would fit in more satisfactorily with the nature of the rights conferred by Clause 45 if tribunals were directed to award such compensation as they thought appropriate for infringement of rights which need not entail financial loss and for any financial loss sustained, without suggesting to the tribunals factors which might constitute a loss at the expense of other factors which might have amounted to a saving. I should like an opportunity of looking at what the noble Earl has said with the possibility of either himself or we on our part coming back to it at the next stage of the Bill.
§ Lord WIGG
In looking at it again, I hope the Government are not going to move too far in the direction of what the noble Earl, Lord Mansfield, wants to do. As I understand it he has turned 219 round the clause so that the tribunal will have to take into account any loss sustained. He must have incurred that loss at the moment of his complaint. But I have in mind a dispute which is going on at the present time in which the action taken by the employers was of a particularly vicious kind. It ended with the deliberate dismissal of a number of people, and the loss which each man sustained would not be a loss they sustained at that moment but the possibility that they will never again in the future be able to obtain similar gainful employment. It is not a loss that has been sustained; it is a loss which they will have to continue to bear as a result of the employers' position. As I understand, as it appears in the Bill the tribunal could take that fact into account. If those words are taken out and the words proposed by the noble Earl, Lord Mansfield, are put in they would not be able to get any compensation in respect of a loss of prospects as a result of what I regard as a deliberately provocative action of a group of individuals who really ought to know better. If under the pressure of time the Minister is worn down by the Opposition's logic, I hope he will bear in mind that if he responds to their punches on the jaw there is a pin waiting to be put into his bottom if he persuades too far.
§ The Earl of MANSFIELD
I never know whether the noble Lord, Lord Wigg, accuses me of being maliciously foolish or foolishly malicious. I think yesterday afternoon after the first Division I was foolishly malicious and the noble Baroness, Lady Seear, who I regret is not in her place, was being foolishly evil—or I am not sure which. I probably have it the wrong way round. I do not think it has ever been suggested by the Government that this sector of damages should be awarded for what I might call loss of future prospects. As I understood when I came to read the Official Report, the idea was that this should try to improve the situation which obtained while this matter was in Committee in another place. To that extent I do not think there is much as between the noble Lord, Lord Wigg, and myself. I know he would like such a situation to obtain, but I do not think it can be written into the clause like that.
220 Taking the matter shortly, I was heartened by the attitude of the noble Lord, Lord Jacques. Perhaps we can all go away and see how we can make this slightly more satisfactory. I would say this to the noble Lord, Lord Wigg. If an employer has behaved improperly, I should be the last to try to afford him any protection in respect of the impropriety of his behaviour. I should like to make that clear and I think noble Lords on this side of the Committee are likeminded. I do not know whether the noble Lord was in his place on the last Amendment which I moved and subsequently withdrew. The situation I was postulating was one where an employer is put in a situation by virtue of pressure which may and probably will be through no fault of his own. That is a situation which concerns noble Lords on this side of the Committee. We are all agreed that it is perfectly right that action should be taken to protect employees from unfair dismissal and from unfair and unconscionable employers, but this is very different. Nevertheless, at this stage, with the leave of the Committee, I beg to withdraw this Amendment.
§ 5.25 p.m.
§ Lord WIGG
Before that leave is granted, may I say my view about the noble Earl, Lord Mansfield, is one of great respect. I have said before and I say again that if ever I was charged before the courts and was guilty I would certainly employ him. I can pay no greater compliment than that. I think that skill is present on this occasion. I am not a lawyer and it may well be that in the course of the argument he will beat me. I cannot understand how he or anyone else or the Government can accept that the words in the Bill,the tribunal considers just and equitable in all the circumstances having regard to the infringement of the complainant's right …—can be equated with the words—loss sustained by the complainant in consequence of the employer's action …They are poles apart. The loss sustained by the complainant in consequence of the employer's action is speaking in the past tense to be assessed in the present by the tribunal. The Bill as drafted reads:the tribunal considers just and equitable in all the circumstances having regard to the infringement of the complainant's right …221 If the complainant has been dismissed and is deprived of his livelihood and the opportunity of ever following his professional calling again, then the tribunal could take that into account. I do not want to stand in the way of a bridge being built as long as it is a firm bridge. I have sat through most of this debate subject to going out to make a few telephone calls and to have an occasional meal. I am worried that the Report stage is going to be as long as this one because every time the Government run into difficulty the Minister says, "I will take it away and consider it again". There must at some point be a decision. If the Government take away the Amendment proposed by the noble Earl, Lord Mansfield, then the noble Earl, Lord Mansfield, has won another victory—a victory imposed by the clock. The Government are going to see whether they can find a bridge for something which I regard as unbridgeable and which will not satisfy the noble Earl, Lord Mansfield, unless the Government give way from the principle in the Bill. As I want the principle in the Bill to remain, I now raise my voice in protest in order to save time at the Report stage.
§ The Earl of MANSFIELD
The whole point of Parliamentary democracy is that opposing views should be put from one side of the Committee to the other. Luckily, as we do not have too many Parties in our democratic system, reason prevails and the middle way—what is sometimes called the British way of compromise—is adopted, and I should have thought that this is precisely what we are doing in this exercise. If I have been lucky enough to make the noble Lord, Lord Jacques, think twice in respect of both the last two Amendments, then surely that is a victory for common sense on his side and it is also, I should think, a victory for common sense on our side in that I do not seek to divide the Committee when I think something can be improved without having to resort to the violence of the Division Lobby. I know that the noble Lord, Lord Wigg, does his homework. If he looks at the Official Report for Tuesday, 5th August, he will see m column 321 the justification, if that is the right word, for making this Amendment. I commend him to that statement by the Minister of State so that he may 222 come back refreshed when the next stage of the Bill is reached.
§ Lord WIGG
I assure the noble Earl, Lord Mansfield, that I have no complaint whatever. I do not want to delay these proceedings for one second, provided that the concessions which are made to him are not made at the expense of all those whom all my life, in politics and outside, I have sought to defend—and this is what I am afraid of. My noble friend Lord Jacques has given no reason whatever why the Government should move from the principle contained in the Bill. He has promised to look at the noble Earl's proposal again when that proposal is poles apart from what is contained in the Bill. My fear is that if my noble friend looks often enough at it, under the sheer pressure of time this Bill will be watered down, and that is what I do not want to happen.
Baroness WARD of NORTH TYNESIDE
As I am very new here and not very good at the procedure of your Lordships' House, may I ask whether at some time during the proceedings on this Bill we could be provided with a list of the undertakings that the noble Lord, Lord Jacques, has given to examine points made by noble Lords on this side of the Committee? We are of course grateful for those undertakings, but there seem to have been an enormous number of them and I should like to know why, the noble Lord being a good and honourable man, the points contained in the Amendments moved by my noble friends have not already been discussed with his superiors so that he is in a position to say whether or not there was likely to be any chance of these Amendments being accepted.
As the noble Lord, Lord Wigg, said, it will be awfully boring if we have to go through all these matters again on Report. Does the noble Lord, Lord Jacques, really believe that his bosses will allow him to accept the proposals which my noble friends have made? Does he think he is going to win any of them? If the answer from the other place is going to be "No" to all our proposals, it would be better for the noble Lord to tell us that now. Or does he think he is going to be lucky enough to win on some of these points? I have noticed on several occasions that the noble Lord has 223 expressed sympathy with certain Amendments put forward from this side of the Committee. If he has sympathy with them, surely that means he is going to try to get them accepted by his bosses. The noble Lord said that there had been long discussions in another place, but they seem to have turned down everything we want. I should therefore like to know how many times the noble Lord has undertaken to convey our views to his bosses and whether he thinks he will be able to persuade them of the reasonableness of our Amendments. I agree with the noble Lord, Lord Wigg, on this—
Baroness WARD of NORTH TYNESIDE
Usually I never agree with the noble Lord on anything. I never have, except on one point which I will not discuss now. I hope the noble Lord, Lord Jacques, will explain to us what his position is with regard to the undertakings he has given, because if we have to go through all this again at the next stage of the Bill we are likely to be recalled next week as well as this week. Considering that the Amendments have been tabled for some time, it seems ridiculous that the noble Lord has not already found out from his bosses whether some of them are likely to be accepted. Or is he just being nice in order to make greater progress at this stage?
§ Lord JACQUES
I appeal to the Committee to come to order and discuss the Bill that is before us. All I have said is that I should like an opportunity to look at what the noble Earl, Lord Mansfield, has said. If, after that has been done, we feel that we can come back with something at the next stage, we shall do so. If we cannot, then we shall say why we cannot. Those experienced in the procedure of your Lordships' House will know that the number of times on which I have promised to do that since the beginning of these proceedings is perhaps fewer than is normal with a Bill of this complexity.
§ Amendment, by leave, withdrawn.
§ Clause 48 agreed to.224
§ Clause 49 [Time off for carrying out trade union duties]:
§ 5.37 p.m.
The Earl of GOWRIE moved Amendment No. 30C:
Page 38, line 22, after first ("and") insert ("where appropriate for collective bargaining.").
§ The noble Earl said: The trouble about the exchange we had on the last Amendment between my noble friend Lady Ward of North Tyneside and the noble Lord, Lord Jacques, is really that the Committee is still in a holiday mood and this is heavy prep to have when one thinks of oneself as still being on holiday. We come appropriately now, in view of that exchange, to the provisions of the Bill which deal with time off from work. An employer would be required under this Part of the Bill to permit officials of independent recognised trade unions reasonable time off work with pay so that they can carry out duties concerned with industrial relations between the employer and the employees whom they represent. My Amendment would include the words, "where appropriate for collective bargaining". In any large group of companies shop stewards will be able to set up group-wide joint stewards' committees and to force the employer to pay them even where no such committees exist at the moment and where their establishment serves no obvious purpose. We do not wish to exclude such group-wide committees in groups of companies where negotiations are carried on at group level, but there are many large groups or conglomerates of companies where such stewards' committees do not now exist because there are no conditions of employment negotiated on a group-wide basis.
§ Plainly, what we are trying to avoid is for shop stewards or officials to group together when they are not, under the Bill, able to do so for collective bargaining. They might otherwise form a committee and obtain time off from several companies in situations where the employers are associated but for reasons unconnected with collective bargaining. An example of this might be a collectively owned business group, for example Ford Motorcars or the General Electric Company. Because such activities and collective bargaining are organised on a 225 regional basis and they can be competitive between one group within an associated company and another, it would be quite wrong for these meetings to be able to take place on a national basis where they could not do so for collective bargaining purposes, and that is why I move this Amendment.
§ Lord BROWN
I shall vote against the Amendment if it is pressed to a Division. It is a great mistake to assume that the only useful duty which shop stewards can perform is in relation to collective bargaining. The forward-looking, efficient and liberal minded employer today recognises that the shop steward is a very important person in maintaining good industrial relations in the place where he is employed. Matters which have nothing to do with collective bargaining repeatedly come up and if the shop steward is not allowed an appropriate amount of time—and later clauses use the words "reasonable in all the circumstances"—trouble will follow. I have often heard trade union shop stewards say that if their activities were examined it would be found that they had been responsible for stopping far more strikes than they had ever promoted. I believe this to be quite true. To place this restriction on the activities of shop stewards in contacting their own members, and in contacting foremen and other members of management would, I believe, be a very retrograde step and would not be in the interests of the employer at all.
The Earl of GOWRIE
If I may come back to the noble Lord on that point, does he think that it is right for a shop steward to be able to take time off with pay in order to consult with other shop stewards in a comparable group of companies, perhaps separated by several hundred miles, at the home company's expense? Surely that would seem to the noble Lord, with his knowledge of good industrial practice, rather inequitable and expensive?
§ Lord BROWN
In the case which the noble Earl cites, I do not think that it would be reasonable unless the employer agreed, but I construe the words "reasonable in the circumstances" to govern that. I stress, however, that what I have described as appropriate is the practice in well-managed companies today. There 226 is no question about that. If the clause is limited in this way, that will serve to buttress that minority of employers who take an absurd attitude to this whole business. They do not recognise that representative systems are an integral part of the establishment of employment hierarchies. They exist, and if they did not exist management would have no means of communicating with their own employees. If one is managing a plant employing two or three thousand people one cannot communicate with them. It is not possible. The only way to find out the consensus of opinion upon a matter is through representatives. The wise employer uses representatives in this way continuously.
I do not know whether the noble Earl is familiar with factory practice today, but I am and this is going on all the time. If one construed the activities which were likely to arise from this as being shop stewards taking days off at company expense to visit factories a long way away, I agree that that would be utterly unreasonable, but I cannot see that this is either allowed under the Bill as drafted or would be permitted under the "reasonable in all the circumstances" provision of subsection (2). So I really do not see what the argument is about.
§ Lord MELCHETT
I am left with very little to say except to agree with everything that my noble friend has said. I was going to say that we accepted the principle underlying the Amendment but felt that it was unnecessary because of the drafting of the Bill as it stands. I suggest that it is possibly doubtful whether the phrase "collective bargaining duties" would turn out to be much narrower than the words "industrial relations duties", which are already mentioned as qualifying for time off "in reasonable circumstances". As my noble friend has said, that qualification is of course extremely important.
I would add one other point which has not been mentioned: that is, that the Code of Practice issued by ACAS will certainly have something to say about shop stewards' duties concerned with company-wide affairs. The CIR's report on facilities for shop stewards drew a distinction between the industrial relations duties of an official—those involving relations between management and 227 employees—and duties concerned solely with union interests in which management has no direct stake. We believe that this provision, which will of course be supplemented by the code prepared by the CIR's partial successor, reflects that distinction made in the CIR's report. We also believe that that distinction could be blurred if the idea of collective bargaining as a separate category of duties were introduced. I hope that the noble Earl may be persuaded by what my noble friend has said and by the small amount which I have added to withdraw the Amendment.
The Earl of GOWRIE
I am in no mood at the moment for what my noble friend Lord Mansfield felicitously called "the violence of the Division Lobbies". I accept, too, that I could tell from the Government's reply, if not from the remarks of the noble Lord, Lord Brown, that they have some sympathy with the, views underlying my Amendment. I am simply concerned that, since shop stewards cannot act for collective bargaining purposes as a group at present under the Bill where companies are associated under some common ownership—as in the instances such as Ford, which I gave—they should be able to do so for taking time off with pay. However, I believe that the point has been taken on board and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.48 p.m.
Lord MELCHETT moved Amendment No. 31:
Page 38, line 24, at end insert ("which is—(i)")
§ The noble Lord said: If I may, I shall speak to Amendment No. 32 together with this Amendment. Clause 49 places a duty on an employer to allow officials of unions which they recognise reasonable time off with pay for, among other things, industrial relations training. As it is at present drafted, the clause limits this duty by providing that the training must be relevant to the duties of the official which are concerned with industrial relations between the employer and his employees; in other words, the employer's interests must be reflected in the training. The Amendments I now propose add a 228 second limitation to the employer's duty to allow time off; namely, that courses must also have the approval of the TUC or of the official's union. In other words, the union's interests must also be reflected in the training.
§ The growing importance of industrial relations training for union officials—and particularly for shop-stewards—is widely recognised. The TUC and individual unions accept that they have the major responsibility for ensuring that adequate and appropriate training is available; and it is, I think, also accepted by employers and the educational interests with whom the TUC and unions cooperate in providing training that the unions should have a considerable say in determining the content of courses which their officials attend. This Amendment merely recognises that situation.
§ Clause 49 make a modest contribution to stimulating an expansion of shop steward training, by ensuring that no union official is unreasonably prevented from receiving proper training because he cannot get time off. But various bodies who have an interest in industrial relations training, and particularly the TUC, have pointed out to us that the effectiveness of this limited objective could be reduced unless we make the amendment which I now propose. This is because it is feared that an employer would be able to provide his own training for union officials and then argue that it would not be reasonable to expect him also to allow time off for attendance at union-approved courses. This would undermine the legitimate interest of the unions in shop steward training, and the original intention of the clause. We therefore think that the obligation on the employer to allow reasonable time off should be confined to courses which have union approval. That is what the Amendment seeks to achieve. I beg to move.
§ 5.50 p.m.
The Earl of GOWRIE
We on this side have always accepted that shop steward training should be approved by the unions, but we would add that it should be approved also by the employers. In fact, this has always been the habit in good industrial practice. In 1962, the British Employers' Confederation, which has since become the CBI, 229 made an agreement with the TUC to this effect. It was agreed in the April 1963 document which came out of the agreement that a small standing joint advisory body should be established for the purpose of maintaining a joint oversight of developments in the field of shop steward training.
I am at one with the noble Lord, Lord Melchett, in thinking that it is in the interests of employers and industry generally that trade union officials which now, after the advice given to me by the noble Lord, Lord Shepherd, yesterday, include shop stewards should be properly trained; that facilities should be there for their training; that this training may take place on the employer's premises, or in the employer's time or with the employer paying; and certainly that this training should be approved by the unions.
Therefore there is really very little disagreement between us. But under the Amendment which the noble Lord, Lord Melchett, is seeking to put into the Bill, employers are simply not mentioned. Their interest in the training time for which they are shelling out money—they are paying for this—and their interest in seeing that the training is reasonably and properly gone into should surely be mentioned. In our contention the Bill should mention both unions and employers or neither. But under this Amendment only unions are mentioned, and not employers. This is what we object to.
§ Lord BROWN
The noble Earl is rather sticking his neck out. I should like to make a technical comment on this subject. A person in employment always has two types of role. One is his work or occupational role. On the other hand, he has a role in what is called a representative system. He may be a constituent. He may be elected as a representative in that other role. In his work role management is responsible for training him. Management may send him on courses. Management may send its managers to universities to be trained, and all the rest of it. No union claims the right to control the type of training which people receive in their work roles.
However, when the worker is in his representative role it is a different matter, one which has nothing to do with manage 230 ment. If management reaches the stage of saying that it must approve the type of training given to people in their representative role, then the quid pro quo will be that unions will say that they must also take part in approving the type of training that is given to people in their work or occupational roles. There is a clear distinction between these two things. It has always been a matter of regret to me that these two quite different sets of role, which exist for everybody in industry, are not sufficiently clearly recognised. Therefore we begin to get confused between employment hierarchies on the one hand and representative systems on the other. If this distinction were clearer we would not get suggestions that employers must approve the methods of training of shop stewards.
§ Lord LEE of NEWTON
The whole machinery for the creation of the shop steward is an agreed procedure between employers and trade unions anyway; in other words, it is not simply an action which a trade union takes of its own volition. These agreements were concluded many years ago. Further to the point which my noble friend Lord Brown was making, we must be very careful not to permit the impression to be gained that a shop steward is being trained to be a good little shop steward on behalf of the employer. If there were a suggestion that the employer was agreeing to the payment of monies to a shop steward while he learned things about his job in such a way as to make the shop steward a more compliant shop steward from the employer's point of view, then that shop steward would never live it down. He would not be acceptable to those who had elected him as a shop steward, if they felt that there was any danger of the possibility I have mentioned.
I had much experience of this type of situation many years ago. I know that some employers, even in my day, more than 30 years ago, were seized of the importance, first, of agreeing to their time being used for the education of the shop stewards, and, secondly, of they themselves playing no part whatever in that education or training. We from the trade union angle organised all the classes and the whole conception of training. Looking back now one could say that the em 231 ployers themselves had no reason to regret what was then looked upon, more than 30 years ago, as a very liberal gesture.
I ask the noble Earl to make it quite clear that if the slightest suspicion arose that these men were being trained on behalf of employers, then they would not last very long as shop stewards.
The Earl of GOWRIE
I must just answer that point. It really horrifies me. I accept what the noble Lord, Lord Lee of Newton, is saying as being a reality of current industrial relations practice; that if there is a suspicion that in some way the roles of union officials are being programmed—if I may use that term—by the employers, then our situation will not improve. But our situation is extremely bad. We are living in a country which has by almost universal agreement, one of the most divisive systems in the world within industrial relations. Due to this divisiveness, we have during my lifetime consistently slipped from what I should have thought should be our position in the world.
Surely the whole point of getting this legislation right and of our spending time on it—quite apart from Party considerations—is to try to narrow this gap. I believe that the noble Lord and I are in agreement about this. If employers are to be consulted and are to have their role in making both this Bill and industrial relations workable in this country we cannot pander to the kind of trade union paranoia which says, "No, keep the employers out and you will buy more peace."
The noble Lord, Lord Pannell, during an earlier debate—in a remark which I hope someone from Conservative Central Office was busily taking down—said that the declaration of human rights had no place on the shop floor. Of course I do not agree with that. I do not believe with the noble Lord, Lord Lee of Newton, that a shop steward, legitimately pursuing the interests of his union in a negotiation situation, will come along and wave this Bill, will state that employers are mentioned in it and will therefore say, "We are illegitimate, we are no good, the division has broken down and I cannot do my job."
232 This is simply a matter of natural justice and equity. The employer has an interest in seeing that the training is reasonable and properly orientated. Of course, under my Amendment his views can be overruled, or become part of a discussion with a group in which he is overruled. But all I am contending, in relation to this Amendment, is that either the Bill should mention both the unions and the employers or it should mention neither. Nothing I have heard so far has made me wish to change my mind about the Amendment.
§ 5.58 p.m.
§ Lord WIGG
I hope that the noble Earl who has just spoken will read what he said, and that he will look at the history of adult education in this country in relation to the trade unions. When I left the Army before the War I spent what were perhaps the happiest years of my life organising adult education in North Staffordshire. I well remember trying to organise classes for trade unionists, potential shop stewards and the like in association with the Oxford University Extramural Delegacy. It was the greatest job in the world to break down the suspicion which existed. I should like to ask the noble Earl—I say this in all humility, because he has had a much more expensive education than I ever had—to have a look at the work of Harry Tawney.
There was a group of potters and miners, not far from where I live, who had studied social history and the like, and they were quite clear why they wanted to pursue their studies. They were dissatisfied with life as they found it. They were dissatisfied with the economic organisation, and they wrote to Oxford, to an almost unknown address. They said: "What you people have at Oxford was originally given to the poor of this country. It existed to take poor boys to Oxford and there to teach them mathematics and philosophy. They would then go back, other poor boys would be found, and the cycle would go on. But you have broken this. This has now become the playground of the well-off. We would like somebody to come down to us to try to teach us so that we can understand what it is all about".
When Harry Tawney went down to his first tutorial class he found that they did not want to read their accepted books. 233 This is why he wrote The Acquisitive Society and, subsequently, Equality, and he mustered round him people like Archbishop Temple, A. D. Lindsey and men of that calibre. They wanted to give working class people in this country a key, the seeping through of knowledge from the top of society, from the universities down to the factory floor. But there is the deeper suspicion; and it is sad that the spokesman for the Conservative Party does not see this. I honoured the services that Lord Butler has given to his Party and to his country. I think that he rescued his Party in 1945 because he appreciated this. He appreciated the importance of knowledge seeping through and the fact that there was a way forward which would keep our society together.
The next point is this. The noble Earl said something that I said yesterday and he said it several times. He said that we have a deeply divisive society. He might stop to ask himself why it is so. I certainly have done my best to heal it by recognising the differences and never trying to smarm them over with humbug. I have always wanted to see where I am and where I wanted to go and how quickly we could make an advance. That is what I wanted to do yesterday and that is what I want to do today. If the noble Earl disregards the psychological inhibitions that would certainly be aroused if the classes, or the organised methods of training, whatever they are going to be, are going to be sponsored by the employers so that those on the factory floor who may be already suspicious of the kind of set up can turn round and say: "That one is a boss's man", then he is making the task more difficult.
There are hosts of people in the trade union movement and throughout the Labour movement who share his views; but I wish that he who has received a most expensive education will try to get beneath the surface and see the gap that divides us. It is the gap of a century and a half of injustice, ill-treatment, abuse, denial of human rights—of one class born to rule and the rest to serve. That gap must be bridged and you do not bridge it by arousing psychologically animosities just below the surface which—as he and I hope—are in the course of being buried.
The Earl of GOWRIE
I should like to make a quick correction. I, like the noble Lord, Lord Wigg—and I have enjoyed the exchanges—got a little carried away and in my emotion I suggested that I might not withdraw my Amendment. It is Lord Melchett's Amendment and I do not wish to poach it. I would say to the noble Lord, Lord Wigg, that his point about sponsorship is a curious one. This Amendment is accepting the idea that in the literal sense of the word "sponsor" the employer does sponsor official activities. This is what it is all about. I am saying that since, under the Bill, the employer is required to sponsor the shop steward or the official activities, he should be mentioned in the Bill and should have some say, some interest, in what that activity should be. I accept that there is a divide. I talked not about Britain as a divisive society but about our industrial relations as being divisive. This is a small point of difference but an important one. I am trying to close the division. Noble Lords on the other side seem to suggest that by trying to do so I am somehow trying to perpetuate it. There is a great disagreement between us; but our object is the same.
§ The Earl of ONSLOW
There is one point that I should like to take up on what was said by the noble Lord, Lord Brown. Surely the trades unions have a very strong say in how management trains its labour. They have great control over the length of apprenticeships and so on. That is one point. The other point is that surely it must be in, the best interests of everybody that the shop steward is highly trained in industrial relations and therefore it should be right that the employers' interests are mentioned; because the employers' interests and the workers' interests are to my mind the same. The men should have the best possible representative on the shop floor.
§ Lord BROWN
Customarily, the trade unions have little to do with the way in which managers are trained. The noble Earl, with respect, is quite wrong on this point.
§ Lord HARMAR-NICHOLLS
I do not think the impression should be left, particularly following the speech of the noble Lord, Lord Wigg, that the people 235 who sit on this side of the Chamber have no knowledge, or any basis for having knowledge, of what the reactions of normal people are who have to work in the factories and in the industry of our country. I have lived my life in the area where the noble Lord, Lord Wigg, said he had his further education course. I do not accept at all his description of the great gap that exists. I think that the gap exists between what I would call the professional trade unionists who are fighting for office within the trade unions and who feel that the tactics of the game must show that they are keen and prepared to fight. But in the terms of the rank-and-file trade unionists, in terms of the ordinary Mr. Smith who lives in an ordinary street, he understands that there has to be co-operation between both sides; nor is there any reaction against it.
The respect for management and for employers in the rank-and-file workers in this country and I am excepting those who have an interest in wanting to further their progress within the trade union movement—is as great as it ever has been. I know that it is well understood that we must get to a situation where the trade unions are representing formally the views of the people who are working at the benches, but where they can join together and work in harmony with management and the employers who understand the other side of the business which must be a success if either are to continue.
I must react because the noble Lord, Lord Wigg, for whom I have the greatest respect, is a great tactician. He has vast experience, but it is mainly in theory really; but he is a good theorist for all that. He said he was a great healer. I have never heard the noble Lord, Lord Wigg, make a speech which was a healing one. His speeches are abrasive, but helpfully abrasive to alert people and make people think; but he is not a healer. I do not think he ought to present himself to us, whatever the words he may use, as a healer. He is a disrupter—perhaps a helpful one in the long term. The one thing he was doing this evening—and which ought to be on Record; and this is why I am intervening—was to promote the idea of this great gap which he says exists. But it is simply not there so far as the normal employer and normal worker is concerned. It is there as far 236 as the professional, ambitious trade unionist is concerned, on the general theory that on no account can one seem to agree with the other side. We should approach the detailed legislation by trying to put it on the Statute Book that we are trying to heal this difference in that knowledge rather than in the great gap thesis that is put forward by the noble Lord, Lord Wigg.
§ Baroness SEEAR
We should like to support the point of view put forward by the noble Lord, Lord Brown. There can be no shadow of doubt that there is almost nothing more important in industrial relations than that there should be the best possible training for shop stewards and trade union officials. But it will not work unless it is accepted that it is genuine training. It may be lamentable, but there is no doubt that if it is thought that the employers have shaped, sanctioned or controlled that training it will be suspect in the eyes of the very people who must accept it. The day may come when this may not be so, but at present if you want that training it must be in the hands of the trade unions.
§ Lord MELCHETT
In view of what the noble Baroness has said, may I apologise for making a face at her when I saw she was about to rise and prolong the debate.
§ Lord MELCHETT
I was going to attempt to do a little healing for the noble Lord, Lord Harmar-Nicholls. May I assure the noble Earl that he will have to regain his enthusiasm for the fight in the Lobby if he wants to withdraw my Amendment. I think his enthusiasm ran away with him when he nearly spoke of withdrawing my Amendment, and he used one phrase in particular "pandering to the trade union paranoia" which it not particularly helpful. That does not apply to the Amendment which I am putting forward and, after all, the noble Earl started off some considerable time ago by saying that, in general, he accepted what I was saying.
On the other hand, the Government accept that employers should not be compelled to allow time off for a course of which they disapprove as being contrary 237 to their interests. The clause as already drafted prevents that; the training has to be relevant to industrial relations between the employer and the employer's employees. It would not qualify if it were purely concerned with union organisation or with the political affairs of a union. Furthermore, no tribunal would consider it reasonable in all the circumstances—which is the phrase used in the clause—that an employer should allow time off for training contrary to his interests. This is the point which ACAS will be able to spell out in the Code of Practice, which I mentioned earlier on, and which will support these time off provisions. The Government therefore think that the employer's legitimate stake in shop steward training is already recognised in the drafting of the clause; but the primary interest of the trade unions is not, and that is what my Amendment seeks to remedy.
Listening to the debate that we have had, I felt we moved away from the situation when training courses of this sort are being organised. The clause does not give trade union officials the right to have time off for training whenever the TUC or the unions say they should have it. The circumstances have to be reasonable and the employer's interest shall be fully taken into account in assessing what is reasonable. Nor does the clause give officials the right to attend any training course carrying union approval; the training has to be relevant to company industrial relations, not union affairs generally. In practice, the majority of courses approved by the TUC are day release courses run by colleges of further education, or courses in university extra-mural departments, which are developed jointly by the TUC and education interests in consultation with employers. These courses are often in practice designed to meet the needs of particular firms. This is what we are talking about. I hope that with that explanation the Committee will see fit to accept these two Amendments.
§ 6.12 p.m.
The Earl of GOWRIE moved Amendment No. 32A:
Page 38, line 34, leave out ("is entitled") and insert ("shall be permitted").
The noble Earl said: With this Amendment I should like, with leave, to speak also to Amendment No. 32B. Both Amendments refer to the same point. This is a small point but one of principle. It seems at first sight that the words we seek to change have been included by a draftsman's error in each place. It will be seen that throughout these provisions reference is made to the permission to take time off. Clauses 49(1), 50(1) and 51(1) all begin:
An employer shall permit an employee … to take time off …
This recognises that an employee's first responsibility is to his work and that he therefore has to obtain permission to take time off. In practice this would normally be granted when asked, but there might be times when perhaps for operational reasons it would be unreasonable to be required to grant time off at a particular time when some other more practicable time would be equally inconvenient to the employee. I beg to move.
§ Lord MELCHETT
I am happy to accept the Amendments, but I would ask the noble Earl not to press them at this stage because I am advised by the Parliamentary draftsman that the wording should be "is to be permitted" rather than "shall be permitted". I hope that this will not cause any great rift between either side of the Committee. I should be grateful if we could bring forward our own Amendments at the next stage.
The Earl of GOWRIE
In the debate on the last Amendment, I unreasonably used the term paranoia. I think I meant the Bill's paranoia rather than the union's paranoia. I still think the Bill has a persecution complex, and uses this complex to persecute employers; but I have no such complex, and I am happy to accept what the noble Lord has said.
§ Amendment, by leave, withdrawn.
§ Clause 49, as amended, agreed to.
§ Clause 50 agreed to.239
§ Clause 51 [Time off for public ditties]:
Lord MELCHETT moved Amendment No. 33:
Page 40, line 38, after ("Wales") insert ("includes the Common Council of the City of London but otherwise").
§ The noble Lord said: This is a technical drafting Amendment. For reasons at any rate obscure to me the Common Council of the City of London has never been classed as a normal "local authority" in legislation, but has received separate mention. This Amendment does just that. I beg to move.
§ Clause 51, as amended, agreed to.
§ Clauses 52 to 55 agreed to.
§ Clause 56 [Employee's rights on insolvency of employer]:
§ 6.17 p.m.
§ Lord JACQUES moved Amendment No. 34:
Page 46, leave out lines 9 to 11 and insert—
("(3A) For the purposes of subsection (3)(a) above any such amount as is referred to in section 55(2) above shall be treated as if it were arrears of pay").
§ The noble Lord said: The effect of this Amendment is to treat debts listed in Clause 55(2) as wage arrears. The purpose is to make the eight weeks' limit on payment from the Redundancy Fund of these debts and wage arrears an aggregate one. For example, as it at present stands, it would theoretically be possible for one employee, in the event of the insolvency of the employer, to obtain up to eight weeks' wage arrears, and if he had medical suspension remuneration due to him, or some payment of that kind, he could claim up to eight weeks of that, making an aggregate of 16 weeks' remuneration, whereas the person who had 20 weeks' wage arrears due to him could only claim eight. That was never intended. This Amendment closes that loophole in the Bill. I beg to move.
Lord JACQUES moved Amendment No. 35:
Page 46, line 41, after ("creditors") insert ("or under a trust deed for his creditors executed by the employer").
§ The noble Lord said: In moving this Amendment, I should like to speak also to Amendment No. 38. These are drafting Amendments. They amend the definition of "relevant officer" in Clauses 56 and 57 to embrace trustees acting on behalf of creditors in those situations in Scotland where a trust deed has been executed. I beg to move.
Lord JACQUES moved Amendment No. 36:
Page 46, line 42, leave out ("includes") and insert ("and "receiver or manager" include").
§ The noble Lord said: In moving this Amendment, I should like to speak to Amendments Nos. 37, 39 and 40. The effect of these Amendments is to include interim receivers in the definition of "relevant officer" for the purposes of Clauses 56(8) and 57(6), and to specify that references to receivers and managers include the official receiver in his capacity as an interim receiver or manager. I beg to move.
Page 46, line 43, at end insert ("or interim receiver or manager").—(Lord Jacques.)
§ Clause 56, as amended, agreed to.
§ Clause 57 [Payment of unpaid contributions to occupational pension scheme].
Page 48, line 27, after ("creditors") insert ("or under a trust deed for his creditors executed by the employer").—(Lord Jacques.)
Page 48, line 28, leave out ("includes") and insert ("and "receiver or manager" include").—(Lord Jacques.)
Page 48, line 29, at end insert ("or interim receiver or manager.")—(Lord Jacques.)
§ Clause 57, as amended, agreed to.
§ Clauses 58 to 60 agreed to.
§ Clause 61 [Interpretation of ss. 56 to 60]:
§ Lord JACQUES
Amendment No. 41 is technical. Its purpose is to expand the definition of "insolvency" in relation to bankruptcy so that the operative date of the insolvency, where appropriate, is the date on which a receiving order is made. I beg to move.
Page 51, line 19, at end insert ("or a receiving order is made against him").—(Lord Jacques.)
§ Lord JACQUES
Amendment No. 42 is drafting. References to "managers" are inapplicable in the context of Scottish insolvency law, and the Amendment therefore deletes this reference from Clause 61 which defines "insolvent" as it applies to Scotland. I beg to move.
Page 51, line 44, leave out ("or manager").—(Lord Jacques.)
§ Clause 61, as amended, agreed to.
§ Clause 62 [Written statement of reasons for dismissal]:
§ 6.24 p.m.
The Earl of GOWRIE moved Amendment No. 42A:
Page 52, line 30, after ("on") insert ("written").
§ The noble Earl said: This Amendment can quickly be dealt with, and I think it could also quickly be accepted by the Government. The right to a written statement already exists only where a request is made for it. In order to avoid subsequent arguments on whether such a request was made, we suggest as a 242 purely practical Amendment that the request should also have to be in writing. Obtaining things in writing is surely a good principle in all contractual relationships. I beg to move.
§ Lord MELCHETT
I am sorry to say that this Amendment cannot be quickly agreed to. Where a dismissed employee has clearly indicated to his former employer that he wishes to have a statement of the reasons for his dismissal, it would seem both unnecessary and unjust to deny the employee the right to such a statement merely because he had failed to make his request in writing. There are many areas of employment, such as work on a building site, where it is quite usual for employers and employees to communicate their requirements verbally. Industrial tribunals already have to rely on oral evidence in many complaints of unfair dismissal in determining whether the employer or the employee was responsible for terminating the contract. Tribunals also have to rely on oral evidence in deciding whether and, if so, when the employer gave the employee notice of dismissal. There is, in our view, no reason to believe that the provisions of this clause will cause tribunals greater difficulties in establishing the facts than in the situations I have already mentioned.
There is one point I should like to make in addition which in our view makes the noble Earl's Amendment unnecessary. The employer will of course receive written confirmation of the employee's request at the point when the employer receives a copy of the employee's complaint to the tribunal. At that point the employer can avoid the need for a tribunal hearing by giving the employee the written reasons for his dismissal.
The Earl of GOWRIE
I should have thought that if there were, say, an altercation on a building site, equally an employer could shout back his reasons for dismissing the man. I accept what the noble Lord said in the last part of his speech, and, although I think it is a little mealy-mouthed of him, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 62 agreed to.243
§ Clause 63 [Order for re-instatement or re-engagement]:
The Earl of MANSFIELD moved Amendment No. 42B:
Page 55, line 12, leave out subsection (8).
The noble Earl said: Under the provisions of this Part of the Bill employees will be able to complain to a tribunal in respect of allegedly unfair dismissal at any time after receiving notice of dismissal up to three months after dismissal has taken effect. As I understand the position, when this Bill originally came to be debated in another place, subsection (8) did not include paragraph (b), so that it merely said that for the purposes of considering re-instatement or re-engagement of an employee who had been found to be unfairly dismissed the tribunal shall not take into consideration the fact that permanent replacement has been engaged unless the employer can show,
that it was not practicable for him to arrange for the dismissed employee's work to be done without engaging a permanent replacement".
The flaw in the logic of that argument—indeed, it was almost an absurdity when pointed out—was that in effect employers would have to wait for three months before taking on a permanent replacement for any dismissed man. On Report, although in haste and without debate, the Government added paragraph (b) to subsection (8). In my respectful submission, this is an admission of the absurdity without any real, sustained attempt to cure it.
§ To return to the main theme of my argument, it is unrealistic and indeed unfair to ignore the existence of a permanent replacement as a factor which is relevant to the practicability of reinstating an employee. In a real life situation, an employer dismisses an employee because he believes him to be unsatisfactory for one reason or another. The employer dismisses him and takes on a replacement who he thinks will do the work more satisfactorily, so that the business will function efficiently. The underlying assumption of this provision seems to be that all dismissed employees' jobs must be left open for three months or until it is decided by a tribunal whether or not an employee ought to be reinstated. This is, I suggest, an unrealistic view, and 244 indeed a somewhat cynical one because it seems to be based on the twin presumptions not only that all dismissals are unfair but that all employers know that at the time they make the dismissals they are unfair and hope to get away with them.
§ So far as paragraphs (a) and (b) are concerned, I suggest that (a) is of little help because it will be very difficult for an employer to prove, as he has to, that it was not practicable for the dismissed employee's work to be done without engaging a permanent replacement. After all, in these circumstances it is always going to be said that the work can be shared out in one way or another or that a temporary could have been taken on. In any event, an employer who will have believed as I suggest in the vast majority of cases, that the dismissal was justified, will normally have acted on that belief and taken on somebody he believes would be a better employee in that job.
§ Paragraph (b) takes what I might term the simplistic approach. It admits, as it were, the unsatisfactory nature of the paragraph before the Amendment, so what the Government say is that if, after a reasonable period has elapsed, the employer has not heard from the employee that he wants his job back presumably by word of mouth, or if no official complaint has been made, he may fill the vacancy. But, one may ask: what is a reasonable period, and how is it to be judged as such by an employer, or indeed, by a tribunal when it comes to consider the matter? If, for instance, the time is six weeks, what is the justification for an employer to have to wait six weeks as opposed to twelve weeks? It is just as silly and unfair for an employer to have to wait six weeks as to have to wait for twelve weeks.
§ Turning the penny over, so to speak, there is also unfairness to the replacement employee himself, because in most cases by the time the matter comes to be considered he will not have worked for the employer for six months and will have no entitlement to compensation when he is removed from his job to allow the man he has replaced back into it. In some cases he will have worked for six months and therefore will be entitled to compensation for unfair dismissal—and one assumes it would be unfair dismissal—and so the employer, who by this time 245 will be a wretched employer, may be subject to a second complaint of unfair dismissal arising from the same facts. We are gradually getting into Cloud Cuckoo-land. I do not know, but employers might well be justified in thinking that this part of the Bill is one more evidence of bias shown by this Government against employers. No doubt the noble Lord, when he replies, will refute that. It may be said that employers can get round the provisions of subsection (8) by employing temporary people, but there are two matters to be considered in this connection. First, there are many occupations for which one cannot obtain temporary staff and, secondly, one gathers from recent pronouncements that, for various reasons, it is not the Government's policy to encourage "temps", as they are sometimes called. In the event, therefore, I should not have thought that a good employer would seek to replace a dismissed employee by temporary labour.
§ In this particular instance I suggest that the answer to the problem is really to leave the rights of the employer and the dismissed employee to the good sense of the tribunal. These tribunals are going to be set up and I suggest that these matters should be left to them. It was said, I think by the Minister of State, that in practice under the present unfair dismissal provisions, the employer has only to say that he has filled the employee's job with a permanent replacement and the tribunal automatically passes on to him an assessment of compensation. This was, I think, an unfair denigration of tribunals. This Bill places great emphasis, apart from the character of tribunals, on reinstatement as the first remedy; and tribunals will no doubt take this into account. I beg to move.
§ 6.35 p.m.
§ Lord MELCHETT
When my honourable friend said that in another place, he was of course talking about the current situation, before this Bill becomes an Act. We are hoping, as the noble Earl has said, that when this Bill becomes an Act a great deal more emphasis will be placed by tribunals upon reinstatement and re-engagement, but that simply will not be possible if this Amendment is accepted, and it would not be possible in the majority of cases for tribunals even to consider the question of reinstatement. In 246 fact, at the moment one or two tribunals have questioned the employer's right to fill the vacancy with a permanent replacement and have recommended the employee's reinstatement where a replacement has been appointed. But such cases have been very much the exception. If we are to make real progress towards improving prospects of reinstatement or re-engagement being adopted as the remedy for unfair dismissal something must be done to deter employers from pre-empting the possibility of reinstatement by filling a dismissed employee's job with a permanent replacement as soon as the first employee has left the premises.
Subsection (8) of Clause 63 is a modified version of the provision as it appeared in the first draft of the Bill. As originally drafted, the Bill provided that a tribunal, in considering whether to recommend re-engagement or reinstatement, could take account of the fact that the employer had engaged a permanent replacement, only if the employer was able to show that it would not have been practicable for him to arrange for the dismissed employee's work to be done without replacing him. During Committee stage in another place the Opposition sought to amend this provision on the grounds that it could cause serious practical difficulties for employers, particularly where the employee did not complain to a tribunal until some time after his employment had ended. As the noble Earl said, the Government recognised the force of that argument. We did not recognise the whole position as an absurdity, as the noble Earl tried to imply, but as noble Lords opposite arc fond of telling us, Parliamentary democracy is a process of some give and take and on this occasion we saw the force of the argument being put to us and on Report stage the Amendment was introduced as paragraph (b).
Subsection (8), as amended at Report stage, enables the tribunal, in considering whether to recommend reinstatement or re-engagement, to take account of the fact that a permanent replacement has been engaged in two situations. These are where it would not have been practicable for the employee's work to be done without arranging a permanent replacement—and the noble Earl said he thought this would be of very little use, but later on in his speech, he said, if I understood him 247 correctly, there would be some situations where it would be impossible to obtain temporary workers. If it is impossible to obtain a temporary replacement, obviously that is a situation where it is only practicable for the employer to take on a permanent replacement. If I may say so, the noble Earl's objection to the clause was later overridden by his own remarks regarding that paragraph of a subsection. The second case is where an employer can show that he recruited the replacement after the lapse of a reasonable period, without having heard from the dismissed employee that he wished to be reinstated or re-engaged and that it was no longer reasonable for him to arrange for the dismissed employee's work to be done, except by a permanent replacement.
Then the noble Earl asked what was to be "reasonable". This will vary from case to case, from industry to industry and from circumstance to circumstance in the workplace. The noble Earl also said this was something which should be left to the good sense of the tribunals. I would advocate to your Lordships that what is a reasonable period of time is something which has to be left to the good sense of the tribunal, as it will vary from case to case. Once again, if I may, I would use the noble Earl's remarks to refute what he said earlier. The provision, as it stands, should enable an employer to justify his decision to engage a permanent replacement in all circumstances where to manage without a replacement would involve serious practical problems for the employer. At the same time, in our view, it should discourage an employer form engaging a replacement when this is not strictly necessary, in order to frustrate the possibility of a tribunal recommendation of reinstatement or re-engagement.
§ Lord HARMAR-NICHOLLS
Even if one were to accept what the noble Lord said with sympathy, we ought to know a little more about what would be a reasonable period. It is perfectly true that a reasonable period would vary, to some extent, according to the business, but it would not vary to the point where you could not put a maximum to it. I believe that this reflects bias unless some indication is given of what is the maximum reasonable period that could be 248 permitted. Without that it smacks of bias and will be looked upon as bias by the people who have to work in order to make it work properly. If a move could be made to put in a maximum reasonable period, on the understanding that it could be less because of the special circumstances of the job, that may be more acceptable. At the moment I do not think it can be.
§ Lord MELCHETT
There is a maximum period specified in the Bill as drafted. An employee will have to complain to the tribunal within a period of three months or he will lose his ability to claim. Therefore, the maximum of three months already exists in the Bill as drafted.
§ The Earl of MANSFIELD
I am trying to be more conciliatory. I did not hint that it was an absurdity I said absolutely that it was an absurdity and I stand by that. However, in the words of the Bill, I must now conciliate. What is between the noble Lord, Lord Melchett, and me is paragraph (b). Obviously the Government would not go further than to say that the clause as it stands with paragraph (a) is perhaps less than satisfactory, and they may even go so far as to say that it is unhappy. Let us not argue the toss about temporary employees. That point was thrown out by me so far as paragraph (b) is concerned. In these circumstances, I do not believe that the Government are anxious to make a new body of "temps". If it is practical to get a temporary replacement, paragraph (a) comes in and there is no question but that the employer will have to have the dismissed employee's work done on a temporary basis. So let us forget about that.
Then we come to what is to happen if it is not practicable for the employer to arrange for a dismissed employee's work to be done without engaging a permanent replacement but he cannot prove it. As I have said before, on a three months' basis it is always possible to share out work and in some way to gloss over the difficulty. It may make the organisation of that employer's undertaking a good deal less efficient and in the end may prove to be an expensive exercise. However, it is always practicable within the meaning of the term.
249 More in hope than in expectation, I am asking the noble Lord to have another look at paragraph (b). An alternative Amendment would be to require tribunals to take into consideration the conflicting rights of the dismissed employee and his replacement. This is something which comes to mind and that strikes me as being essentially a thoroughly fair and equitable provision. There the tribunal is judging what I might call a tripartite situation. There is the dismissed employee who has made the complaint, the employer who has replaced him and the employee who is the replacement. It seems to me that that would get over the difficulty I have spoken about of what is to happen to the replaced man. One cannot laugh off the "reasonable period" in paragraph (b). It will be something which will be very difficult for an employer to gauge; namely, what is the effect on the tribunal if, for instance, after six weeks—I threw out that period as being half of 12—he concludes that he had better find another employee, because he may think it is reasonable to do so. Unlike courts of law where there is precedent and, acting on those precedents, anybody can build up a body of case law into what is or is not reasonable in given circumstances, there will not be precedents or the precedents will be so far flung in their effect that for a very long time it will be very difficult for an employer to know where he stands. Therefore, a possible alternative would be to do what I have suggested: that the tribunal should take into consideration all three. However, I hope that the noble Lord, Lord Melchett, will say, like the noble Lord, Lord Jacques, that he will look at it again. If he is determined not to do so I will withdraw the Amendment, but in that case I will look at it again.
§ Lord MELCHETT
I hesitate to look at anything again, even though the noble Baroness, Lady Ward, is not in the Chamber, because I know what trouble it gets us into if we do so. However, I do not think there is anything that we can look at again. There are just two points I should like to make to the noble Earl. I bow to his greater experience than mine in industry, but I do not think it is true that in all situations it is possible for an employer merely to gloss over or share out the work done by a dismissed employee. It may 250 well be that the employee who is dismissed is the only person in the works with the necessary skills to perform some vital function and it would be necessary for the employer immediately to reengage somebody else for the whole works to continue. There will be a great many circumstances where that will be true. It would not be possible for the employee, or whoever was representing the employee before the tribunal, to say that a steelworks should be closed because the computer operator's work could be glossed over or shared out between other employees.
One point which the noble Earl made earlier to which I did not reply was the question of the second dismissal; namely, the dismissal of the replacement employee. Once again I bow to the noble Earl's considerably greater experience than mine of the law, but in a situation where an employer was told by a tribunal to dismiss an employee and reinstate the first employee, I should have thought there would be no question but that that dismissal would not be an unfair dismissal. It would be done at the order of the tribunal. However, if the noble Earl's legal experience leads him to think otherwise it is certainly something I will look into. As I have said, however, I do not think that this is something about which we have very much more to say.
§ Lord WIGG
Before we depart from this Amendment may I throw a discordant note into the sweet reasonableness that has crept into the argument. I accept entirely the views which have been expressed by the Minister and I entirely accept also what has been said by the noble Earl, Lord Mansfield. If a person is dismissed and presents his case within the three months and if in the meantime his employer has taken on somebody else, a tripartite difference exists between the employer on the one hand, the person who was originally sacked and the man who has replaced him. But what about cases which are quite common and not all that far away from the industry of the noble Lord, Lord Harmar-Nicholls, and his own particular interests where an employer sees that a settlement is pending between himself and the union and then, almost overnight, sacks about 50 people and says that there is redundancy because he wants to make absolutely sure that when the strike is over the 251 people with whom he has been in conflict do not get jobs again? It could mean that in some cases there would be a declared interest. It is quite common in that part of the country from which both the noble Lord and I come that they will not have them in the union at any price.
It seems to me that this subsection represents a kind of adjudication and a debating society in which there are three equal interests. If there are three equal interests and everybody is very reasonable, a reasonable solution can be found. However, I want this subsection to remain in the Bill because it gives protection against the employer who is a son of a bitch. I want it to remain in the Bill with no watering down, because I do not accept the idea presented by the noble Earl, Lord Mansfield, that in every single case everybody is sweetly reasonable. It would be improper for me to give tonight a current case but the noble Lord, Lord Harmar-Nicholls, knows what I am talking about—it lies not very far from his industry and his direct interests—where there has been anything but sweet reasonableness. Therefore I congratulate the Government on standing firm. Good luck to them!
§ Amendment, by leave, withdrawn.
§ Lord MELCHETT
I spoke to Amendment No. 43 when we were discussing whether Clause 34 should remain part of the Bill. I beg to move.
Page 55, line 38, leave out paragraph (c).—(Lord Melchett.)
§ Clause 63, as amended, agreed to.
§ Clause 64 [Enforcement of s.63 order and compensation]:
§ 6.50 p.m.
Lord MELCHETT moved Amendment No. 44:
Page 55, line 43, after ("with") insert ("then, subject to paragraph 20 of Schedule 1 to the 1974 Act (limit on compensation)").
§ The noble Lord said: While speaking to Amendment No. 44, I will take with it Amendments Nos. 46, 47, 48 and 147. 252 Amendment No. 44 is consequential upon the new clause which is introduced by Amendment No. 48 and, if I may, I will begin by outlining the provisions of that new clause. During the Committee stage of the Bill in another place, the Opposition asked whether an employer who had dismissed an employee for reasons falling within the definition of "sex discrimination" contained in the Sex Discrimination Bill could be held liable to pay compensation under both the sex discrimination and the unfair dismissal provisions. It was suggested that to avoid any possibility of such double jeopardy special provision should be made in this Bill, to deal with complaints relating to dismissals which might also be the subject of a complaint under the Sex Discrimination Bill.
§ The Government have considered the question raised by the colleagues of noble Lords opposite, and we accept that there is a need for a limited overlap to avoid any possibility that an employer may incur a double liability for compensation in respect of a dismissal which may give rise to complaints under both the sex discrimination and the unfair dismissal provisions. The new clause introduced by Amendment No. 48 gives effect to such a provision. We are putting forward this provision with a restricted scope, as compared with the overlap provisions for race dismissal cases contained in paragraph 28 of Schedule 1 to the 1974 Act. This is because paragraph 28 precludes an employee from bringing a complaint under the Race Relations Act if he is eligible to appeal against unfair dismissal under the 1974 Act. The requirement that complaints relating to dismissal on grounds of race must be made (where eligible) under the unfair dismissals provisions rather than under the Race Relations Act, was intended to avoid the administrative complications and possible inequities which would arise if such complaints could be made to either of the two sets of bodies responsible for the two separate jurisdictions.
§ Unlike that situation, the overlap provision for sex dismissal cases contained in this new clause does not restrict the employee' right to make a complaint under whichever jurisdiction he or she prefers. The arguments which justify restriction of choice in relation to race dismissal cases, do not, in our view, apply 253 in the present context, chiefly because complaints under the sex discrimination and unfair dismissal jurisdictions are to be dealt with by the same bodies—the industrial tribunals. There should thus be no difficulty in dealing with complaints on an equitable and consistent basis, irrespective of the jurisdiction under which they are originally brought.
§ Furthermore, while the compensation which may be awarded under the unfair dismissal provisions will generally be more generous than that which may be awarded under the Sex Discrimination Bill, there seems no good reason to deny a woman, who has succeeded in a complaint under both jurisdictions in relation to the same dismissal, the right to take advantage of the special provision in Clause 66(4) of the Sex Discrimination Bill. The compensation may include an element in respect of injury to feelings.
§ Turning to the consequential Amendments to the new clause—that is Amendments Nos. 44, 46, 47 and 147—Amendments Nos. 44 and 47 insert in Clauses 64(1) and 68(1) respectively, which provide for the calculation of compensation for unfair dismissal, cross-references to the upper limit which will apply to these provisions by virtue of paragraph 20 of Schedule 1 to the 1974 Act, as amended by the Bill. In addition, Amendment No. 47 makes calculation of the compensatory award subject to the new clause but regulating the overall amount of compensation, which may be awrded to an employee who successfully pursues a complaint under both the sex discrimination provisions and the unfair dismissal provisions in relation to the same dismissal. Amendment No. 46 is a parallel Amendment which makes the calculation of the basic award subject to the new clause as well. Amendment No. 147 modifies the provision for an upper limit for compensation for unfair dismissal made under paragraph 20 of Schedule 1 to the 1974 Act, as amended by paragraphs 15 and 17 of Part III, Schedule 15 to the Bill.
§ This series of Amendments has been drawn up, like the new clause, with possible problems of overlap and discrepancy between this Bill and the Sex Discrimination Bill largely in mind. The new clause regulates the overall amount of compensation which may be awarded to an employee who successfully pursues 254 a complaint under both the sex discrimination and unfair dismissal provisions in respect of the same dismissal. Amendment No. 46 is strictly consequential on the new clause and, as I have already said, it makes the calculation of the basic award under Clauses 66 and 67 subject to the provisions of the new clause, which may in certain circumstances require a reduction in the basic award. The new clause may also require a reduction in the compensatory award, and Amendment No. 47 accordingly inserts a similar proviso in Clause 68, which deals with the calculation of the compensatory award.
§ Amendments Nos. 44 and 47 insert in Clauses 64(1) and 68(1), respectively, cross-references to the upper limit, which is £5,200, and this applies by virtue of paragraph 20 of Schedule 1 to the 1974 Act. Cross-references are not strictly necessary. However it seems useful to give early warnings of the upper limit, since the effective provision is not reached until Schedule 15, which is page 168 of the Bill, and seems a long way away at the present moment.
§ Amendment No. 147 to Schedule15 is also related to the changes consequent upon the Sex Discrimination Bill, but it makes a change in provisions regarding the upper limit for the compensatory award for unfair dismissal. At present the limit has two limbs: there is an overall limit of£5,200, and also a limit of 104 weeks' pay. The sum of £5,200 is 104 weeks' pay at £50 a week, and if a worker earns less than £50 a week the lower limit applies; that is the week's pay multiplied by 104. Under the Sex Discrimination Bill the limit of £5,200 applies, but there is no 104 weeks' pay rule. This is because such a rule would be inappropriate to compensation where dismissal is not involved, but of course a worker might be dismissed as a result of sex discrimination. Awkward problems might be posed if the limits were slightly different and it seems right to bring the unfair dismissal provisions into line with the Sex Discrimination Bill. In fact, the experience with the unfair dismissal provisions over the last three years shows that the upper limit has not operated in many cases. There have been relatively few maximum awards. Therefore, to bring the two Bills into line does not, in practice, call for any major change in the 255 unfair dismissal provisions. I beg to move.
§ 6.59 p.m.
The Earl of GOWRIE moved Amendment No. 44A:
Page 56, line 18, leave out ("less than 26 or").
§ The noble Earl said: With the leave of the Committee, I should like to move Amendment No. 44A and to speak also to Amendment 44B and also to debate a second Amendment which is No. 45A. The additional award of compensation for unfair dismissal represents a penalty on the employer who fails to comply with an order for reinstatement or re-engagement. It appears to be assumed that where a recommendation is made, an employer who fails to comply with it is always behaving unreasonably and the penalty on him is therefore substantial. I accept that there might be occasions when an employer failed to comply with an order for reinstatement or re-engagement, in which the employer might be behaving unreasonably, but in practice there may also be good practical reasons why an employer is unable to comply with a recommendation, and among such practical reasons could be industrial pressure from other groups of workers. Consequently, we believe that the severity of the additional award should be reduced without modifying it, hence our two Amendments.
§ The first Amendment is aimed at removing the provision for minimum additional award. Under the present proposals, the tribunal has discretion to make an additional award of an amount between 13 weeks' pay and 26 weeks' pay, or between 26 weeks' pay and 52 weeks' pay in certain defined circumstances. It is suggested that the tribunal should be given complete discretion to award any amount up to the maximum, and not to be fettered by a minimum award. This makes it easier for a tribunal to carry out a reasonable assessment of whether an employer is satisfied that it would be practicable to comply with an order. Otherwise, there will be a black and white view of whether or not he has satisfied them.
§ Amendment No. 45A is simply designed to produce a cash limit on the amount of 256 an additional award. Under the existing law and under the proposals for the payment of compensatory awards, there is a cash Emit on what is compensation for redundancy on unfair dismissal, and there seems no reason why the award should be related to unlimited earnings. We suggest that the same weekly limit should be applied to the additional award as is applied to the basic award under present proposals for compensation for unfair dismissal and redundancy payments under existing law
§ Lord MELCHETT
The rigours of the Marshalled List compel me to give the noble Earl, Lord Gowrie, bad news first. The provisions of Clause 64(2)(b) of the Bill are designed to remedy the deficiencies which became apparent in the operation of the comparable provisions of the 1974 Act. The provisions of that Act left it entirely to the discretion of the tribunal, where it found the employer's non-compliance unreasonable, to decide on the extent of the increase of compensation to be awarded, according to what it considered to be just and equitable in the circumstances. This provision gave rise to wide variations in the additional compensation awarded for employers' noncompliance, and often to such small additional awards as would clearly offer no effective deterrent to other employers who might in future be inclined to ignore tribunal recommendations.
One of the main objectives of the Government in improving the remedies available for unfair dismissal is to give much greater prominence to reinstatement and re-engagement—this is something we have touched on several times while discussing this group of clauses—as the primary remedies for unfair dismissal. This objective will not be achieved if employers can continue to reject reinstatement and re-engagement as feasible remedies at little extra cost to themselves, where they know that the employee will have difficulty in establishing a quantifiable loss directly due to the failure of the employer to reinstate or re-engage him for example, where an employee has already found suitable alternative work. If employers are to take seriously tribunal orders for reinstatement and re-engagement it is essential to provide for a substantial minimum level of additional compensation which an employer must pay in every 257 case where he cannot prove that it was impractical for him to comply with the tribunal's order.
I would stress that point. I should like to stress that this is a case where the employer has failed to comply with an order made by a tribunal after a proper hearing at which the employer has had a chance of putting his side of the question, and where on legal grounds he has had the right to appeal to a higher jurisdiction. These two Amendments would take us back to the pattern of the 1974 Act, by removing any compulsory minimum level of additional compensation when the employer has failed to comply with the tribunal's order. We cannot possibly accept an Amendment of this sort. It strikes at the very roots of the provisions in the Bill designed to put the emphasis on reinstatement and re-engagement as a remedy available to employees unfairly dismissed. I hope the noble Earl, Lord Gowrie, will see fit to withdraw the first two Amendments, Nos. 44A and 44B.
Turning to the good news, under the provisions of Clause 64(2)(b) a tribunal cannot award more than the equivalent of 26 weeks' pay in additional compensation, except where the unfair dismissal was due to the employee's trade union membership or activity, or to discrimination on grounds of race or sex, and the limit is then the equivalent of 52 weeks' pay. In the case of a highly paid executive, 26 or 52 weeks' pay could amount to thousands of pounds, but Amendment No. 45A prevents this result by limiting to £80 the amount of a week's pay which the tribunal may take into account.
In formulating the upper limit which appears in Clause 64(2)(b) we started from the premise that when an employer fails to reinstate or re-engage an unfairly dismissed employee, the additional compensation awarded to the employee for the loss of continued employment in that job ought to reflect his actual earnings in that job. However, where an order for reinstatement or re-engagement is not complied with, the tribunal must in any event make a basic and compensatory award under the principles laid down in Clauses 65 to 68, as well as the additional award under Clause 64, which we are now discussing. In these circumstances, it seems to us reasonable to impose some 258 upper financial limit on the additional award and, indeed, an upper limit of £80 a week, as has been suggested by the noble Earl, Lord Gowrie, would be consistent with the upper limits applied for the purpose of calculating a statutory redundancy payment and a basic award of compensation for unfair dismissal, and presumably could be made subject to the same annual review under the provisions of Clause 77. So we accept Amendment No. 45A and, subject to the usual consultations with Parliamentary draftsmen, we would expect to bring forward our own Amendment at the next stage, if the noble Earl would withdraw the Amendment at this stage.
§ Lord DRUMALBYN
What happens if it is not the employer but his fellow-workers who will not take back the employee?
§ Lord MELCHETT
I imagine that that is something the tribunal would take into account when deciding whether reinstatement or re-engagement was a practical possibility, and whether the employer could reasonably be expected to reinstate the employee. When the employer goes back to the tribunal, having failed to comply with its order, he has the opportunity of explaining why it was not practical for him to reinstate or re-engage the employee, and I imagine that is something the tribunal would take into account.
§ Lord MELCHETT
If the employer has a reason for not being able to comply with the tribunal's order, no, he would not.
§ Amendment, by leave, withdrawn.
§ 7.8 p.m.
Lord MELCHETT moved Amendment No. 45:
Page 56, line 33, leave out ("sex discrimination") and insert ("discrimination (within the meaning of the Sex Discrimination Act 1975) which is unlawful by virtue of that Act").
§ The noble Lord said: This is another Amendment on the subject of sex discrimination. A reference to sex discrimination appears in Clause 64(3)(c) of the Bill. That clause, in conjunction 259 with Clause 64(2)(b)(i) provides for a higher additional award of compensation of 26 weeks' pay to 52 weeks' pay to be awarded against an employer who has failed to comply with a tribunal order for the re-engagement or reinstatement of an unfairly dismissed employee, where the original dismissal had been an act of sex discrimination.
It was always our intention that the concept of sex discrimination as applied under this clause in this Bill should be the same as that applied under the Sex Discrimination Bill. By inserting in Clause 64(3)(c) the words:
discrimination (within the meaning of the Sex Discrimination Act 1975)",
we ensure that the provision applies to dismissals on any of the grounds which would be held to constitute discrimination under that Act. This includes not only dismissal on grounds of sex, but also dismissal on grounds of marriage, or for asserting or attempting to assert rights under the Sex Discrimination Act or the Equal Pay Act. It would not have been appropriate to bring forward the present Amendment at an earlier stage while the possibility remained of Amendments being made to the Sex Discrimination Bill. That Bill has now completed all its steps in this House. Lords Amendments will be considered by the other place on 15th October, and the Bill is likely to receive the Royal Assent before the end of that month, so it seemed appropriate to bring this forward, and I hope the Committee will agree.
§ Clause 64, as amended, agreed to.
§ Clause 65 agreed to.
§ Clause 66 [Calculation of basic award]:
§ 7.10 p.m.
Page 57, line 21, after ("below") insert ("and section (Compensation for act which is both sex discrimination and unfair dismissal) below")—(Lord Melchett.)
§ Clause 66, as amended, agreed to.
§ Clause 67 agreed to.260
§ Clause 68 [Calculation of compensatory award]:
Page 60, line 3, at beginning insert ("Subject to paragraph 20 of Schedule 1 to the 1974 Act (limit on compensation) and to section (Compensation for act which is both sex discrimination and unfair dismissal) below")—(Lord Melchett.)
§ Clause 68, as amended, agreed to.
After Clause 68, insert the following new clause:
§ Compensation for act which is both sex discrimination and unfair dismissal
§ ". —(1) Where compensation falls to be awarded in respect of any act both under the Sex Discrimination Act 1975 and under the provisions of this Act relating to unfair dismissal, an industrial tribunal shall not award compensation under that Act or this Act in respect of any loss or other matter which is or has been taken into account by the tribunal or another industrial tribunal in awarding compensation on the same or another complaint in respect of that act.
§ (2) Without prejudice to paragraph 20 of Schedule 1 to the 1974 Act (limit of compensation), whether as set out in Part III of Schedule 15 to this Act or as applied by section 65 of the Sex Discrimination Act 1975, in a case to which subsection (1) above applies the aggregate of the following amounts of compensation awarded by an industrial tribunal, that is to say—
- (a) any compensation awarded under the said Act of 1975; and
- (b) any compensation awarded under section 64(1) above or, as the case may be, which is calculated in accordance with section 68 above,
§ Clause 69 [Interim relief pending determination of complaint of unfair dismissal]:
§ On Question, Whether Clause 69 shall stand part of the Bill?
§ The Earl of MANSFIELD
It may be convenient for the Committee, and it will certainly save time, if at the same time I 261 speak to similar Amendments to the effect to leave out Clauses 70 and 71. These three clauses are all part of the same thing, in the sense that they purport to give interim relief pending determination of a complaint of unfair dismissal under certain circumstances. These clauses were added to the Bill at 12 noon on the very last occasion that the Committee in the other place sat. The effect of them is to single out for preferential treatment an employee who claims that he has been dismissed unfairly for being or proposing to become a member of an independent trade union or taking part in the activities of such a union. The preferential treatment consists of the right to have an early preliminary hearing of his case, and, if he is successful in persuading the tribunal that he is likely to have his complaint upheld at the end of the day, an interim order for reinstatement or re-engagement may be made.
I will not do more than mention in passing that these clauses, at least to noble Lords on this side, have a distinctly Orwellian flavour about them, in that there are some classes of dismissed employees who are to be treated better than others. It would indeed be of interest to hear the Government's explanation of how some workers are to be treated as much more equal than others. It is difficult to resist the impression, although it may well be wrong, that these clauses were added to give special relief to those whom the Government might choose to think of as special people. One wonders how it comes about that people dismissed on the grounds of, in short, trade union activity should stand in a more favourable position than, for instance, ladies dismissed because of their sex, or people who have been discriminated against on grounds of their colour. We do not accept that sufficient case has been made out to justify this sort of preferential treatment for this class of person.
The Government's stated reason, if I reproduce it fairly, is that it is part of the spirit and intention of the Bill to promote collective bargaining and it is necessary to recognise the special place which trade union activities and trade union representatives play. Some of us are beginning to feel that the Bill now goes far too far in favouring trade unions and their representatives; is there not really a case for equality of treatment over this matter of 262 unfair dismissal? In their justification—and a short justification it was—of these clauses in another place, the Government made use of a number of statistics, which I do not propose to bandy about at this time of night unless I am forced to. Regarding the statistics of the proportion of successful complainants who get their jobs back, I would say that we do not hear how many dismissals of people in relation to trade union activities resulted in claims of unfair dismissal, or whether these claims were substantiated if they were made.
I am taking this shortly, at this stage at any rate. Taking the three clauses as they stand, one has to ask whether this procedure, which is somewhat cumbersome, in my submission, will succeed in setting out what the Government want or intend. The complainant has a week, as I understand the situation, to put in his complaint, and that has to be accompanied by a certificate from a trade union official, and I emphasise that as an extremely important part of the procedure. The tribunal then has to process the application and it has to give the employer at least seven days' notice of the interim hearing. So that it is impossible, as I am advised, for there to be a time lapse of fewer than three weeks, and probably more, before the interim hearing is held. So even assuming the efficiency of this rather cumbersome procedure, it certainly is not going to resolve the matter with any great speed.
Secondly, we then come to the question of whether the tribunal is going to be satisfied that there is a likelihood of the case eventually succeeding, because at the time that it hears the interim application it is bound to be ill-prepared and one wonders how it can make up its mind as to likelihood. How many cases, one asks, will result in temporary reinstatement, how much time will be saved, and in the circumstances what reasons are there for justifying the cost and the trouble and difficulty of this double hearing.
Finally, on this matter, I want to refer briefly to Clause 69(2)(b), to which I have referred very briefly before. It provides in effect that the complainant must present a written certificate, signed by an authorised official of an independent trade union of which he is or proposes to become a member, saying that there 263 appears to be reasonable ground for believing that the alleged complaint is true. Quite apart from the question of whether the trade union official can be, or is expected to be, fair about the matter, is it a fair duty to put on a trade union official? He is expected to say to somebody who may well be trying to join his own union, "Here is a certificate upon which the tribunal can act in order to start the first stage of your interim relief." Can the trade union official be expected to give an impartial opinion when, as I say, he is asked to prejudge a matter which concerns his own membership or would-be membership? If he says, No, and refuses to give the certificate he is acting, as he may think—and he may be right—contrary to the interests of the union.
More importantly, perhaps, one asks whether it is right that a trade union official should be asked to undertake what I might describe as a quasi-judicial function, because unless he issues the certificate the application will not get off the ground. We have heard again and again over the last few months the expressed belief of the Government that there should be a dichotomy between courts of law and trade unions, and by analogy I would have thought that that would extend to a trade union and a tribunal. Nevertheless, the one important point about this part of the clause is that the trade union official has to make a preliminary decision on whether to issue a certificate before the dismissed person can go to the tribunal. I cannot think that that is right, and I cannot believe that the Government have sufficiently thought out the consequences of this legislation.
What I am asking the Government to do—and I cannot do any more than ask at this stage—is at least to give some undertaking that the matter will be looked at again. As I have tried to show, quite apart from the fact that this is extremely unfair on an employer, we think it is a cumbersome machinery. We realise that the Government are anxious to give extra privileges to the people about whom they particularly care, but this is likely to be a series of provisions which would cause the maximum of ill will and the minimum of good or beneficial effect.
§ Lord DRUMALBYN
May I ask a question arising out of this? As a layman I find the procedure rather difficult to understand. Subsection (3) says:An industrial tribunal shall determine an application under this subsection as soon as practicable…Subsection (4) says that it shall not exercise the power of postponing the hearing. Subsection (5) says:If on hearing an application … it appears to an industrial tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find that the complainant was unfairly dismissed …If the industrial tribunal complies with subsection (3) and determines the application as soon as practicable, the occasion on which it is not able to determine the complaint will presumably arise only under subsection (4) where it exercises its power to postpone the hearing of the case, or to adjourn it after having had a hearing. What I am asking here is: why, if it can get to the stage of forming the view that it is likely to determine the complaint in favour of the applicant, it does not determine the complaint in compliance with subsection (3) and finish with it? How often will it, in the opinion of the Government, have to adjourn the case while making use of this interim procedure in the meantime?
§ 7.24 p.m.
§ Lord MELCHETT
First of all, the noble Earl has again slightly, and I am sure not intentionally, misrepresented what happened in another place about these three clauses. They were added towards the end of the proceedings in another place. But, on the other hand, the noble Earl did not mention that my honourable friend the Minister of State told another place what was proposed to be done with these three subsections during the Second Reading. Therefore, ample notice was given that these provisions were to be introduced.
In our discussions on previous Amendments, I drew attention to the importance which the Government attach to the measures included in Clauses 63 and 64 of the Bill to strengthen the remedies of reinstatement and re-engagement. However, none of those measures can be applied until the tribunal has heard the employee's complaint and decided that his dismissal was unfair, which does not 265 usually happen until several weeks after he made his original complaint. Where an employee is dismissed for his trade union activities in circumstances which he and other members of his union regard as unfair, they may be tempted to take immediate industrial action to secure his reinstatement unless the law can offer some more rapid form of redress. The noble Earl suggested that the union was being put into a quasi judicial role in having to supply a certificate to the employee.
§ Lord MELCHETT
I am sorry. The trade union official was put into a quasi judicial role in having to supply a certificate. But the trade union official is not; he is merely being asked to give an opinion about the employee's dismissal. The significance of that is that the trade union official will know whether he and his colleagues feel that the dismissal is unfair and whether industrial action, for example, is likely to be taken as a result of this dismissal. So the union official will have already in his mind whether or not he feels that the dismissal is an unfair one.
Results from research carried out by the Department of Employment show that in recent years stoppages due to the dismissal of worker representatives have tended to lead to a more serious loss of production than other stoppages due to dismissals. The right to apply for interim relief under the provisions of Clauses 69 to 71 is an attempt to tackle this special problem. Under these provisions, an employee who is making a complaint that he was unfairly dismissed because of his trade union membership or activities can also asked the tribunal to decide at a preliminary hearing whether his contract of employment should remain in force and his wages continue to be paid until his complaint of unfair dismissal has been settled by agreement or decided by the tribunal.
The interim relief procedure is designed to operate with the minimum of delay. To be eligible to make use of the procedure an employee must make his application within seven days of the date when his dismissal takes effect; but if he applies as soon as his dismissal has 266 taken effect it should usually be possible for his application to be heard within a fortnight of the dismissal. It is not three weeks, as I think the noble Earl suggested. The chairmen of tribunals will be able to hear these cases without lay members present, which will further speed up the procedure.
The procedure offers little incentive to employees who were not dismissed for their trade union activities to make an application under false pretences. To be eligible for interim relief an employee must be able to supply the tribunal with a certificate from the relevant trade union, signed by an authorised representative, which confirms that he is (or has applied to be) a member and supports his claim that his dismissal was mainly due to his trade union membership or activities. However, the employee's claim can, of course, be challenged by the employer at the tribunal's preliminary hearing, and the employee will not win his application for interim relief unless the tribunal is convinced that the decision at the full hearing of his complaint of unfair dismissal is likely to be that he was unfairly dismissed and for the reason alleged in his complaint.
Of course, at that stage the tribunal has to decide only what is the likely outcome. That I would suggest again, with deference to the noble Earl's legal experience, is likely to be a less onerous task than coming to a final decision. Therefore, the tribunal can decide it much more quickly with only the chairman present, and no doubt without taking nearly as much evidence as would be necessary when coming to a final decision. In any event, before the tribunal comes to a final decision some conciliation will have to be tried under the procedures, and that step will not be taken when the tribunal's chairman comes to an interim decision on the likely outcome of the case.
On the other hand, the possibility of securing full payment of wages for the period up to the settlement or final hearing of the unfair dismissal complaint offers employees a real incentive to make use of the procedure if they have clear evidence that they were dismissed for their trade union activities. Where an employee succeeds in his application his employer will not be obliged to pay wages for no work. He will have the option 267 to offer the employee temporary reinstatement or re-engagement in another job until the unfair dismissal complaint has been resolved, and if the employee unreasonably refuses such an offer he will lose his right to be paid wages in the interim period. We do not pretend that these provisions will be relevant to more than a small minority of complaints of unfair dismissal. According to our present estimates there are about 500 complaints a year of unfair dismissal due to trade union membership or activity. Nevertheless this volume of complaints is not negligible and in our view fully justifies the provision of special procedures.
I mentioned earlier that research has been carried out by the Department of Employment. Noble Lords might like to know that a detailed analysis of strikes due to dismissal was carried out for the period 1966 to 1973. The most remarkable feature of the information available for this period is the data relating to worker representatives. Although this category of worker accounted for rather less than one-fifth of all strikes due to dismissal between 1966 and 1973 their share of the man days lost through such strikes increased dramatically from 17 per cent. at the beginning of the period to over 40 per cent. at the end.
Moreover, while just over 60 per cent. of dismissal strikes for the period were caused by the dismissal of one employee, nearly 90 per cent. of strikes over dismissals of worker representatives concern the dismissal of one employee. These statistics, in our opinion, tend to confirm the view that it is the dismissal of a single shop steward which often brings the whole workforce out on strike and leads to the most damaging loss of production. The noble Earl mentioned the cost and difficulty, as he saw it, of introducing these special provisions. I hope that the statistics which I have been able to give him underline the enormous cost of the problems which are caused by these very difficult disputes, which often lead not only to a large number of employees coming out on strike but to very long and bitter disputes. It is these that we hope these provisions will go some way to minimising.
We do not, of course, claim that the provisions will always, or even frequently, avoid industrial disruption when an 268 employee is dismissed because of his trade union activity. Sometimes the resentment caused by the dismissal of a trade union representative may be so great that no statutory procedure could prevent industrial action being taken. The point of Clauses Nos. 69 to 71 is that they provide a realistic alternative to industrial action, which does not exist at present. In a Bill which rightly stresses the importance of protecting legitimate trade union activity and in the face of clear evidence, as I have outlined, of the damaging effect on production of strikes over the dismissal of trade union representatives, this must be the right way to proceed. It is in this spirit that I commend these three clauses to your Lordships.
§ Lord HARMAR-NICHOLLS
It is a pity that the Government are introducing these clauses rather late in the day, as my noble friend said, because it is a fact that many people think that the trade unions have undue influence over this Government. It may not be true, but that is the feeling that many people have and there is much evidence which causes that feeling to be held in so many quarters. This is another unnecessary piece of Government effort which gives colour to that point of view. The idea of having for this special type of dismissal special clauses which give them all sorts of priorities over, as has been said, discrimination on the grounds of sex or colour gives that impression, which is sad. At the end of the day I do not think it will add to the feeling of co-operation which it is necessary to have in this country between all sides of industry. Nor can one accept the explanation which the noble Lord gave for the late tabling of these clauses. He said it was mentioned in Second Reading.
The theory of Second Reading in any debate is that you lay out the general proposition which will form the basis of the legislation and that, if in opposing that other Members are able to show that there is weakness in one part or another of the general proposition, then it is not proceeded with when it is put into Committee form and when the legislation is being framed. The impression, when this was not included originally, could only have been that this piece of legislation was not so trade union orientated as it turns out to be. It may 269 be clever tactics; it may not be tactics, it may be accidental. But the general impression it leaves with me—and I have some knowledge of the procedures of Second Reading and Report stages of Bills—is that they were deliberately left out when the Bill was originally printed in order to give the impression that it was more reasonable and unbiased and at an appropriate time when it could be rushed through these clauses were added, which, as I say, can only produce an atmosphere which is not good.
At this minute in this country we have a situation where trade unions do not trust one form of government and where management and employers, for good reasons, do not trust another form. We have to get to the stage where Government can be seen to be impartial so far as possible and work only in the interests of the nation. These two clauses do not give that impression. The way they have been introduced at a late stage reflects tactics which add fuel to the people who are prepared to think that undue influence is being brought upon this Government by the trade unions. No doubt now they are in they will have to remain. I suppose it is too late to do anything about it, but the Government ought to know that they are not making it easier for themselves in the future or easier for the nation to get out of its economic difficulties so long as these feelings of uncertainty and bias are allowed to exist.
§ Lord WIGG
This is the most extraordinary speech I have ever heard. Here we are being told that one side does not trust the other, that that side does not trust this one. Less than an hour ago when I was saying that there were feelings of disquiet and distrust—and I was very careful not to try to fetch the bogy out of the box—the noble Lord, Lord Harmar-Nicholls, was reminding me that I come from the West Midlands as he does, the industrial heart of England. He was saying that everything in the garden was lovely, everybody trusted everyone else. What has happened in the last hour to make him say what he said now, which is the exact opposite of what he said an hour ago?
§ Lord HARMAR-NICHOLLS
The noble Lord made out a most convenient lapse of memory. He remembers exactly what I said and it was this—that 270 the rank and file trade union members have no time for these manoeuvres, but I did admit that the manoeuvres existed. I said that politically orientated trade union leaders who want to expand their own influence produce these things. Some of the employers may do so in extreme circumstances, but the rank and file trade union members have no time for these manoeuvres. They recognise the danger that lies within it, and am suggesting that these two clauses are such manoeuvres.
§ Lord WIGG
We have now an even more extraordinary statement. We have now the noble Lord, Lord Harmar-Nicholls, posing as the interpreter of rank and file opinion. It is a wonder he did not stand for a West Midland constituency. He had one dose and knows what happened to him. I won a Conservative seat and held it through seven elections, and I shall therefore pit my knowledge of the West Midlands against his. He knows very well that he is indulging in special pleading. What he said an hour ago was not true and what he says now is not true so he can balance out the two. He was not telling the truth on either occasion.
§ Lord BROWN
May I make an appeal to these two probably ancient protagonists in another place to have their argument elsewhere so that we can get on with the Bill.
§ Lord DRUMALBYN
I think we would all be anxious to support any kind of provision which would reduce strikes and disturbances. What I found a little dismal about what the noble Lord had to say was that he did not seem to envisage that this would avoid strikes in some cases and he did not seem particularly optimistic about the effect that this would have in avoiding strikes. I wonder whether he could add anything to that. It is important if we are to support this that we should have a more optimistic viewpoint.
§ Lord MELCHETT
The reason I said what I did is that it would be foolish to be optimistic about bringing relief in every single situation where an employee representative has been dismissed and that dismissal was seen by the trade union as beng an unfair one. The statistics which I quoted tend to 271 show that these commonly lead to prolonged industrial action and particularly bitter disputes, and I am not coming before your Lordships' Committee and saying that these three clauses will solve the problems overnight. I was being perfectly frank with your Lordships in saying that. I did not say that they would do no good in any case, as the noble Lord almost said at one stage. I would certainly hope that they would be used in all cases, but I am not prepared to say that they will be. Certainly I believe that they will be very effective in bringing some relief to an area of industrial relations which is bedevilled by particularly bitter and prolonged industrial action.
§ The Earl of MANSFIELD
I want to return for a moment to a matter which I regard as being of supreme importance in these three clauses, and that is the provision in Clause 69(2)(b). I do not say this offensively, but my impression was that the noble Lord, Lord Melchett, glossed over the duties of a trade union official in a situation where he is required to sign a certificate as an authorised official of an independent trade union before these interim proceedings can get off the ground. Subsection (2)(b) is quite specific in what is expected of that official. He is expected to sign a certificate which states that,… the employee was or had proposed to become a member stating that on the date of the dismissal the employee was or had proposed to become a member of the union and that the reappear to be reasonable grounds for supposing that the reason for his dismissal (or, if more than one, the principal reason) was one alleged in the complaint.There is nothing there about the trade union official going in any way, shape or form into the merits of the complaint or into whether the dismissal is unfair. All he has to do is certify for the purposes of this clause that the dismissal was in the line of his trade union activities or would-be trade union activities. If the trade union official—who is, after all, slipping back into the vernacular, going to help his own bloke; if he does not he is not human—is simply issuing a certificate, will he not be acting just as a sort of slot machine screwed to the factory wall? Why not just put in a penny and get a certificate? If, on 272 the other hand, the official is going to exercise some sort of discretion—and I assume that that is envisaged—then, presumably, he is going to exercise a quasi-judicial function. This is what worries me and what I know worries a number of other noble Lords. Is it contended by the Government that it is right, and is it contended that it is likely to be a help in these matters, for officials of unions to act in this manner?
§ Lord BROWN
I am rather amazed at the sort of naivety of some of the comments that are being made, and I do not mean that disrespectfully. The idea of shop stewards behaving like slot machines and issuing certificates is not real. There are, I suppose, a number of shop stewards who can at times behave extremely irresponsibly and, indeed, could almost be described as wreckers, but I do not know what proportion of those are represented among all shop stewards. I have lived all my life in industry and I would say that, on the whole, shop stewards are extremely helpful people. As I said earlier, I believe that they stop 10 times as many strikes as they succeed in starting, and I say that on the basis of my experience in industry.
§ The Earl of MANSFIELD
We are talking not about strikes, but about interim relief for a man claiming to have been dismissed unfairly.
§ Lord BROWN
I am trying to disabuse the noble Earl of the opinion he holds of shop stewards; that they are irresponsible people who would simply sign and issue these certificates.
§ Lord BROWN
I hope the noble Earl will allow me to finish a sentence without interruption. The noble Lord, Lord Drumalbyn, asked a perfectly proper question about whether these procedures were likely to be any good. I have been watching the news—and, admittedly, it is often superficial news—of strikes that occur as a result of dismissals over the years, and the one thing that is always missing is a quick reference to a tribunal which could decide the rights of the case. I cannot believe that the institution of these proposals is not long overdue. I can believe that initially they will not be much used, but after they have been in 273 existence for two or three years I think it will become more or less second nature, when these unfortunate instances occur and it is necessary perhaps for somebody to be dismissed who is also a shop steward, for other shop stewards to say, "Use the procedure first. We are not backing you until you do. "That has been my experience when in charge of a substantial engineering company for 25 years. It happened like that when we introduced our own procedures.
It is obviously necessary, before people take advantage of the procedure, that there should be some evidence that they have grounds for appeal to these tribunals. One cannot get management to give it; they cannot say whether a man wanted to become a member of a trade union. The only man who can say that is a trade union official. One thing about industrial life has been that when a citizen moves from his citizen role into his employment role he will as a citizen die on the barricades to defend the right of appeal, and when he gets into industry he has not, up till very recently, had it at all—and then one wonders why people feel a sense of injustice. This is an extension of the right of appeal which now exists and which exists under the Industrial Relations Act and it is a quick procedure for dealing with special cases. I was amazed to find that 500 cases had arisen. Perhaps 500 does not sound much, but think of the loss of production and wealth that has been poured away as a result. People should welcome this proposal. It is an essential feature of our civilisation that every man should have a right of appeal when he feels that his rights have been abused, and this is simply a procedure to enable that to happen.
§ Lord MELCHETT
As the noble Earl, Lord Mansfield, has narrowed it down from the three clauses to Clause 69(2)(b), I just want to say that I agree, as usual, with my noble friend Lord Brown and that I will not waste the time of the Committee by quibbling over whether or not somebody is acting in a quasi-judicial manner, although I cannot see how a trade union official is. He is signing a bit of paper which goes to the tribunal, which in turn makes a decision whether or not to grant interim relief. Surely the tribunal is acting ill a judicial 274 capacity and the trade union representative is giving evidence to the tribunal by way of a written certificate. I may not have my terms right and there are better legal brains in the Committee to put me right if I am wrong, but I cannot see why my analysis of the situation is wrong.
§ Clause 69 agreed to.
§ 7.48 p.m.
§ Clause 70 [Orders for revival or continuation of contract of employment]:
Lord MELCHETT moved Amendment No. 49:
Page 63, line 22, leave out from second ("for") to first ("the") in line 24 and insert ("any purpose").
§ The noble Lord said: Subsection (1) of Clause 70 defines the scope of an order for revival or continuation of a contract of employment. This Amendment is concerned with the last four lines of that subsection, which provide that under such an order the employee is to be regarded as remaining in ordinary employment when calculating his period of continuous employment for the purpose of certain statutory rights which depend on a qualifying period.
§ As drafted, the lines in question refer specifically to various employment rights. Further examination of the subsection has shown that there are other statutory rights, dependent on a qualifying period of employment, which also need to be included in this provision; in particular, there are the unfair dismissal provisions of the Trade Union and Labour Relations Act 1974, and the Bill's provisions for statutory payments during a period of suspension on medical grounds. The Amendment does not, however, extend the list of provisions referred to in subsection (1). Instead, it generalises the wording by substituting a provision to the effect that art employee covered by an interim order is to be regarded as remaining in employment for the purpose of determining the employee's period of continuous employment "for any purpose". I hope your Lordships will accept that this is a simpler and safer course to adopt.
§ Clause 70, as amended, agreed to.275
§ Clause 71 [Supplementary provisions as to interim relief]:
§ Lord MELCHETT moved Amendment No. 50:
Page 64, line 27, at end insert—
(1A) If on the application of an employee an industrial tribunal is satisfied that the employer has not complied with the terms of an order for the reinstatement or re-engagement of the employee under section 69(7) or (8) above,—
§ The noble Lord said: This Amendment remedies an omission which was not noticed when the interim relief provisions of Clauses 69 to 71 were first drafted. Clause 69already provides three alternative remedies for an employee who succeeds in an application for interim relief pending determination or settlement of the employee's full unfair dismissal complaint. These are, briefly, that the tribunal may make an order for reinstatement, under subsection (7); or it may make an order for re-engagement; or, where the employer does not agree to reinstate or re-engage the employee or the employee refuses a re-engagement offer on reasonable grounds, it may make an order for revival or continuation of a contract of employment. Clauses 70 and 71 as drafted, however, make no provision for a remedy in what we hope will be the rare cases where the employer initially agrees to the making of an interim reinstatement or re-engagement order, but fails to comply with such an order once made. This Amendment remedies the deficiency by inserting in Clause 71 a new subsection (1A).
§ Subsection (1A)(a) provides that, where an interim order for reinstatement or re-engagement has not been complied with, the tribunal must make an order for revival or continuation of the contract 276 of employment, as already provided for under Clause 70. Subsection (1A)(b) requires the tribunal to make an award of compensation to be paid by the employer to the employee; the award must be such amount as the tribunal considers just and equitable in all the circumstances, having regard to the infringement of the employee's right to be reinstated or re-engaged, and also to any loss he has suffered in consequence of the noncompliance. I beg to move.
§ The Earl of MANSFIELD
In paragraph (b) of the Amendment, we come back to the proposal that there should be compensation for an infringement of the employee's right to be reinstated. We have had a debate on this matter already which was of fair length and I see the gaze of the noble Lord, Lord Brown, on me so I shall shut up, but, while reserving the right to go back to this matter on Report, I want to register my unease and, indeed, distate at the provision.
§ Clause 71, as amended, agreed to.
§ Clauses 72 to 78 agreed to.
§ Clause 79 [Appeals from industrial tribunals and Certification Officer]:
§ Lord JACQUES moved Amendment No. 51:
§ The noble Lord said: This Amendment adds the Sex Discrimination Act 1975 to the list of Statutes in Clause 79, subsection (1). The effect of this is that an appeal may be made to the Employment Appeal Tribunal on a question of law arising out of a decision by an industrial tribunal under the Sex Discrimination Act or arising in any proceedings by such a tribunal under that Act. The jurisdiction of industrial tribunals under the Sex Discrimination Act is confined to hearing complaints of unlawful acts of discrimination in the field of employment. It is therefore quite appropriate that appeals in such cases should lie to the Employment Appeal Tribunal, which is also to hear appeals in cases brought under the Equal Pay Act 1970. I beg to move.
§ Clause 79, as amended, agreed to.277
§ 7.26 p.m.
§ The noble Lord said: I believe that it will be for the convenience of the Committee if we consider Amendments Nos. 52 to 79 inclusive, with the exception of Amendment No. 68, and Amendments Nos. 108 to 125 inclusive. All these Amendments affect the same issue. The substantive Amendment is Amendment No. 55 which proposes a new clause to follow Clause 81. Its purpose is to fulfil an undertaking which was given in the other place that Amendments would be produced by the Government either at a later stage in the other place or in this House to cover a principle which had been accepted. That was that there should be a provision in the Bill to allow the Agricultural Wages Boards to be converted to Statutory Joint Industrial Councils if it were considered necessary in due course; that is to say, this would be a simple enabling power. As I have said, the new clause fulfils an undertaking given by the Government in Standing Committee F. It was not possible because of drafting difficulties to introduce the Amendments in the other place. The undertaking was in response to Amendments which had the purpose that I have outlined, but drafting difficulties were involved. However, the Government had already accepted the principle and it was merely a question of tidying up.
§ Lord SANDYS
If I may interrupt the noble Lord, it was not, if I may say so, a question just of tidying up. The Agricultural Wages Boards are established by Act of Parliament.
§ Lord JACQUES
I believe the noble Lord has misunderstood me. It was a question of tidying up the Amendments which were proposed in the other place so as to redraft them and to put them into suitable form. This we have done.
In the new clause, subsection (1) gives the enabling power to the "appropriate Agricultural Minister"—that is, the Minister of Agriculture, Fisheries and Food as regards England and Wales, and 278 the Secretary of State for Scotland. This is in distinction to the corresponding provision for Wages Councils, where the enabling power resides with the Secretary of State for Employment and preserves responsibility for agriculture in the hands of those Ministers and Departments who are responsible for Agricultural Wages Boards.
Subsection (2) enables the Minister to make an order, either of his own volition or on an application from a representative trade union or employers' association, limited only by the obligation upon him to consult all such employers' associations and trade unions involved in agriculture. A difference arises between this subsection and the corresponding subsection (2) of Clause 81 on account of the diffuse nature of the agricultural industries. Clause 81(2) provides that the change of status of a Wages Council to a Statutory Joint Industrial Council may be made on an application by either, or both, the employers' association or trade union nominated in relation to that council under paragraph 1(2) of Schedule 2 to the Wages Councils Act 1959, or without such an application but after consultation with such nominated associations and unions. In the agricultural industry, substantial sections of the manpower involved are not represented by associations or unions, and it is felt that the nomination provisions are unsuitable. The solution adopted leaves it to the Minister's judgment to decide what is a competent application on the basis of the proportion of employers or workers represented by the association or union which makes the application. Subsection (3) provides that before making an order the Minister shall consult the Advisory, Conciliation and Arbitration Service and give consideration to its report on the suitability or otherwise of conversion.
In conclusion, I should emphasise three points. First, this is simply an enabling power and there is no intention by anyone on the employer's side or on the employee's side, or on the part of the Minister, to use that power in the near future. All the parties have either agreed or disagreed with the proposal in principle, but none has said that it is proposing to use this power in the future. Even the agricultural workers' union has made it clear that while it thinks that this enabling power should be in the Bill, it 279 does not intend to ask the Minister to use his power in the future. I should also point out that this enabling power simply enables either a body on the employer's side, or the trade union side, to make application to the Minister for the setting up of a statutory joint industrial council. It also allows the Minister to decide that there should be a statutory joint industrial council, but he then has to consult exhaustively on both sides of industry before he comes to any decision. Whether the proposal is made by the employer's side, the employee's side, or by the Minister, it has to go to ACAS for its views, and so there is provision for exhaustive inquiry before a final decision is made.
I should think that a statutory joint industrial council, as laid down in the Bill, is something which should receive the support—indeed, the wholehearted support—of all sides of the Committee. Let us look at what it provides. It provides that the representatives of the two sides of industry shall get together and negotiate terms and conditions of employment, and that once those terms and conditions have been negotiated they shall be compulsorily applied in the same way as the Wages Board decisions are compulsorily applied, and would be subject to the same inspection as the Wages Board decisions at the moment. There is also provision that if there is a difference between the employer's side and the employee's side which cannot be resolved, then they must go to conciliation. They must go to ACAS and have the matter conciliated. If it is then not resolved, they must go to arbitration and then, when the arbitrator's award is given, that is final and binding on both sides.
I suggest that if we are to make any headway in industrial relations, this is the kind of proposal that should be supported. We should support free negotiation between both sides on terms and conditions of employment, but we should have provisions whereby there can be a settlement of differences between them. This is done thoroughly in the case of statutory joint industrial councils, and I submit that there is nothing here which any side of the Committee could reasonably oppose.
My final word is this. If this Amendment and the associated Amendments are 280 rejected, then agriculture will be left out on a limb. All other industries which are subject to statutory wage control can be converted in due course into statutory joint industrial councils. If this Amendment is defeated, agriculture will be the only industry where that cannot happen. I suggest that that would be unreasonable, and that agriculture should not be different from any other industry when it comes to the negotiation of wages and to the proper machinery for finalising by way of conciliation and arbitration. Therefore, I submit that there is a very strong case for this Amendment. Even though there is no intention on anyone's part to use this enabling power, I should like to see the time come when we could use this enabling power and put agricultural wages and conditions on the terms upon which they ought to have been put a long time ago.
§ Lord SANDYS
The noble Lord may have convinced himself and he may have convinced some of his supporters, but he leaves us on this side of the Committee wholly unconvinced of the whole nature of his proposal. Your Lordships will be aware that we are considering here a batch of 26 Amendments together and that contingent upon them are a further, I think, 18 consequential Amendments, which are being moved at quite a late hour of the evening. I suggest to your Lordships that it is one of the misfortunes of our discussion on return to this House that we are looking at this matter at a late hour, because we have here a very important proposal which the Government have brought forward. They have brought this very long set of Amendments to the Committee. They are Amendments which have never before been discussed in another place. The noble Lord fairly said that there had been mention in Standing Committee, but these Amendments have not seen the light of day hitherto.
The noble Lord said that it was reasonable to permit this enabling power to be established in the Bill, and he assured your Lordships that that probably would not be used but could be used later. I suggest that it is a most dangerous precedent for any Party to propose an enabling power and then deny its possible use. Amendments Nos. 55 to 63, which we have in front of us, and 281 Amendments Nos. 64 to 79 all hang together, and they grant powers of conversion, at the Minister's discretion, to Agricultural Wages Boards to become statutory joint industrial councils. But a little further on in the Bill there is Clause 84, at which point it is possible to reverse the whole process. Clause 84 permits the Secretary of State for Employment to disestablish one of the statutory joint industrial councils, and so the noble Lord has told us the means whereby the Agricultural Wages Board should ha reestablished. This is the most prodigiously unusual and unnecessary set of powers. It permits a jack-in-a-box Act. It permits the establishment of statutory joint industrial councils, their disestablishment, and the return to a system that we have at the present moment.
I interrupted the noble Lord to make the point—which I believe is very important—that the Agricultural Wages Boards (that is one Board for England and Wales and another Board for Scotland) were established a long time ago by Act of Parliament. These Amendments wish to detract from those Boards and to remove all those powers which Parliament thought fit to place in the negotiating bodies. Here I should turn to the best source, which is really the key document which we have with us and which has been referred to by many previous speakers while discussing this Bill. I refer to the Royal Commission on Trade Unions—the Donovan Report. This very eminent Commission discussed all aspects for a period of three years and in the Report special mention was made of agriculture. I hope that I will not be wearying your Lordships at this comparatively late hour if I delve into the Donovan Report, because it is particularly important.
The noble Lord said that he felt that it was highly desirable to establish these statutory joint industrial councils. But we have only to turn to paragraph 260 of the Donovan Report to see the view of that very eminent Committee. I will quote paragraph 260 which says:Wages Councils are even less capable than most voluntary industry-wide colective bargaining bodies of exercising effective control over actual pay and conditions of work. Since their task is to settle minimum standards this is almost inevitable. Such control could be provided only by voluntary machinery concerned with standard arrangements over the whole industry, 282 or with the promotion of effective company or plant agreements; but in most Wages Councils such machinery is lacking or weak.In paragraph 261—and this is the point—they say:Agriculture is an exception.This fact was denied by the noble Lord and we wish to establish our argument as the noble Lord, Lord Donovan, and his Commission very clearly set it out in paragraph 261 which continues:Organisation is relatively strong on both sides of the industry and the representative bodies negotiate with considerable authority. Because employment is spread over a very large number of small and scattered units, however, statutory regulation is needed to secure adequate enforcement. In these circumstances the minimum standards laid down by the Agricultural Wages Boards come far closer to exercising control over earnings than do those of most Wages Councils.I cease my quotation and I am obliged to your Lordships for bearing with me. But it is a very important fact that Donovan singled out the Agricultural Wages Boards as being of unique importance in this field. They laid stress on this at a further point in their Report, in Paragraph 271, but I will not weary your Lordships with that unless it proves necessary at a later stage.
What lies behind this prodigiously lengthy list of Amendments? I suggest to your Lordships that it was minimal pressure placed on the Government at a fairly late stage in the proceedings. The fact is that the situation in the agricultural wage negotiating sphere was stable. I do not think that the National Farmers' Union or the National Union of Agricultural Workers or the Transport and General Workers' Union would seek to deny that. All parties were satified with the operation of the system of Wages Boards as it existed. I have referred to the Wages Boards at some length, and I should not pass from their establishment without mentioning the independent members. Stress was laid on this in Standing Committee. The independent members are a very significant part of their establishment, because they act in both arbitration and conciliation fields.
I and my noble friends feel that it is rather a paradox here that the noble Lord should say that agricultural wages should be combined with other fields of wage negotiations; because, as the noble 283 Lord will recollect, agricultural training, the Agricultural Training Board is under the Minister of Agriculture. As for safety, despite the impressive progress in the safety field over 20 years, the Government now feel—and we shall come on to this in a later Amendment—that the responsibility should not rest with the Ministry. It is our assertion, as we shall stress later, that it should continue to rest with the Ministry. As we see it, clearly the Government have no policy as such in this field; but they tend to react to pressure and to promote expedients.
My noble friend Lord Gowrie earlier said something which I think we should all take to heart. He said that we should try to learn from our mistakes. We hope that the Government will do the same. We hope that in this spirit Her Majesty's Government will reappraise these Amendments, because we feel that they are wholly unacceptable.
§ Lord COLLISON
May I apologise for intervening. I dashed in a few minutes ago. I want to make a comment about these proposals. I am not opposing them: but I wonder whether proper reference has been made to my old union, the National Union of Agricultural and Allied Workers. Although it is true—and this is why I do not oppose the proposals as a whole—that the Wages Councils are in general inadequate, it is also true that Donovan made an exception in the case of agriculture. I was a member of that Commission and your Lordships will know that for six years I have been engaged as Chairman of the Supplementary Benefits Commission and I have been unable to take part in controversial debates. I hope you will not consider this controversial; my interest in agriculture is well known.
As I said, the Donovan Commission made an exception in respect of agriculture. I must tell your Lordships that my old union has not contacted me or consulted me about this at all; but there are one or two questions I should like to ask my noble friend on the Front Bench before this is proceeded with or before the proposals have been implemented now or later. As I understand it, while I was with the union they were very much opposed to allowing the decease of the Agricultural Wages Board. It did perform 284 the function of fixing wages and conditions in agriculture. It had wide powers and it has statutory backing, which we felt to be necessary. The situation may have changed since then—I do not know. But I am told that, when the question of whether this was acceptable to the union was put to the Agricultural Wages Board, the Board agreed (that is, the employers, the Board and the workers, including the NUAAW and the Transport and General Workers' Union) that they were satisfied with things as they were and did not want to see any change.
It could be that as things develop and as agriculture is accepted more and more as a major industry in the industrial sense compared with engineering and so on, that a change of procedure may be necessary. But I would want to be satisfied that the change did not take place until and unless the unions concerned, the AWU and the TGWU, concurred with the proposition. I intended—and this is why I was not in the Chamber earlier—to speak on the Amendment to be moved by my noble friend Lord Shepherd after Clause 81 because that indicates that the Minister could make an order under the section without any application being made to him or on an application by an employers' association or a trade union which appears to him to be relevant in the circumstances. This power to allow the Minister to make the change independently of any reference, as I read it, seems to me to ignore the need for the Minister and the Government to be sure that the trade unions concerned are agreeable to what is taking place.
I should like to ask this. Has the Agricultural Workers' Union been consulted about these proposals which are to go into the Bill? if the proposals become law, can I have an absolutely cast-iron guarantee that before any Minister agrees to take this step to change the status of the Wages Board to that of a joint industrial council, the concurrence of the unions concerned will be obtained.
§ Lord JACQUES
It may be helpful if I reply to the points which have been raised. First of all, I will deal with the last point. The Minister can use his enabling power, but if he is using it on his own initiative he will be under a statutory obligation to consult all the parties on the employer' side and all the parties 285 on the employees' side. Ho would also have to consult ACAS. I should like to quote a letter from the National Union of Agricultural and Allied Workers addressed to the Secretary of State on 18th June 1975. It said:My Executive Committee have noted that Section 80 and the other relevant Sections do not include the Agricultural Wages Board and feel that although it is not the intention at this time to proceed the Agricultural Wages Board should be named in the Sections. I am instructed to inform you accordingly.The sections concerned are those dealing with the conversion to the Statutory Joint Industrial Council. The letter goes on:My Executive Committee have no intention of seeking such a change in relation to the Agricultural Wages Board".I think it can be said that that union have said explicitly, "We want the Minister to have the enabling power, but we have no intention of using it in the near future".
§ Lord COLLISON
May I thank my noble friend for that explanation? It has cleared up a doubt which was in my mind, and I am grateful to him.
§ Lord MIDDLETON
I do not understand why the agricultural industry should deserve this Amendment which seems aimed at the Agricultural Wages Board. So far as I know—and this was confirmed by the Donovan Commission, as the noble Lord, Lord Sandys, told us—the Board has been a very successful and effective instrument in our wage determinations. I believe this view to be held by both the farmers' organisations and the farm workers. This seems to be confirmed by what the noble Lord, Lord Collison, said. I always listen to the noble Lord with the greatest respect in these matters. But it seems to me—
§ I may be wrong—that the object of giving the Agricultural Minister the enabling power to convert the Board into a Statutory Joint Industrial Council is to create an agency for wage determination that cuts out the independent membership. As the noble Lord, Lord Sandys, told us, the contribution of these members has, over the years, been a most valuable one, and their presence has I believe eased relations between the parties time after time. This Amendment is unsatisfactory in that it is irrelevant to the task to which the Government should be addressing themselves. It has already outlined that task in the White Paper, The Achievement of Greater Self-Sufficiency in Home Food Production. This kind of legislative "tinkering" will not get us any further clown that road and it should be resisted.
§ Lord SANDYS
I should like to support what my noble friend Lord Middleton said. On this side of the Committee, we are always pleased to hear what the noble Lord, Lord Collison, from his great experience, has to say on the activities of the agricultural workers' union. I should like to remind the noble Lord, Lord Jacques, that when the Department of Employment consulted the Wages Board prior to the publication of the Bill, it resolved with the full support of both the workers' side, representing representatives of the NUAAW, the T and GW and the independent members, that the Agricultural Wages Board was the best agency suited to meet wage determination.
§ 8.25 p.m.
§ On Question, Whether the said Amendment (No. 52) shall be agreed to?
§ Their Lordships divided: Contents, 22; Not-Contents, 40.287
|Balogh, L.||Houghton of Sowerby, L.||Pitt of Hampstead, L.|
|Brockway, L.||Jacques, L.||Popplewell, L.|
|Brown, L.||Kirkhill, L.||Ritchie-Calder, L.|
|Champion, L.||Lee of Newton, L.||Shepherd, L. (L. Privy Seal)|
|Collison, L.||Lovell-Davis, L. [Teller.]||Strabolgi, L. [Teller.]|
|Gardiner, L.||Maelor, L.||Taylor of Mansfield, L.|
|Hale, L.||Melchett, L.||Wallace of Coslany, L.|
|Aberdare, L.||Carrington, L.||Gainford, L.|
|Balerno, L.||Cowley, E.||Gowrie, E.|
|Belstead, L.||Davidson, V.||Hailsham of Saint Marylebone, L.|
|Boyd of Merton, V.||Denham, L.|
|Campbell of Croy, L.||Drumalbyn, L.||Hanworth, V.|
|Headfort, M.||Northchurch, B.||Strange, L.|
|Hunt of Fawley, L.||Rankeillour, L.||Strathcona and Mount Royal, L.|
|Inglewood, L.||St. Aldwyn, E.|
|Kemsley, V.||St. Davids, V.||Sudeley, L.|
|Long, V.||Sandford, L.||Terrington, L.|
|Mansfield, E.||Sandys, L. [Teller.]||Trefgarne, L.|
|Middleton, L.||Savile, L.||Vickers, B.|
|Molson, L.||Somers, L.||Ward of North Tyneside, B.|
|Mowbray and Stourton, L. [Teller.]||Stanley of Alderley, L||Young, B.|
Moved accordingly, and, on Question, Motion agreed to.
§ Resolved in the negative and Amendment disagreed to accordingly.
§ Clause 80 agreed to.
§ Clauses 81 to 85 agreed to.
§ Clause 86 [Power to obtain information]:
Page 73, line 4, leave out ("such a council") and insert ("a council making such an order").—(Lord Jacques.)
§ Clause 86, as amended, agreed to.
§ Clauses 87 to 89 agreed to.
§ Lord SHEPHERD
I wonder whether it would be for the convenience of the Committee for me to say this. We now go on to deal with a new section of the Bill and it might be convenient to take it on Thursday. I have not had a chance to consult with noble Lords opposite. There are a number of matters here they may wish to develop and we undertook to adjourn at 9 o'clock. I should be quite willing to adjourn now if that would be for the convenience of the Committee.
The Earl of GOWRIE
My noble friend Lord Mansfield was going to handle these clauses and he has just whispered sotto voce that if we deal with them on Thursday I shall have to handle them myself. If your Lordships are prepared to risk that, I am very agreeable.
§ The DEPUTY CHAIRMAN of COMMITTEES (Lord Champion)
Is it established that Lord Mansfield is going to leave it to Lord Gowrie to develop the clauses on Thursday?
§ House resumed.