§ 3.3 p.m.
§ Report received.
§ Clause 1 [Private households and small undertakings]:
§ The Secretary of State for Employment (Lord Young of Graffham) moved Amendment No. 1:
Page 2, line 4, at end insert—
("(2A) In section 11 of the 1975 Act, in subesection (1) (which deals with discrimination against a woman in relation to a position as partner in a firm consisting of six or more partners), the words "consisting of six or more partners" shall cease to have effect.")
§ The noble Lord said: My Lords, with the leave of the House I should like to take Amendments Nos. 1 and 6 together. My noble friend Lady Platt tabled an amendment at Committee stage designed to bring partnerships consisting of five or fewer within the Sex Discrimination Act's requirement not to discriminate in the selection or treatment of partners. She kindly agreed to withdraw her amendment when my noble friend Lord Trefgarne indicated the Government's sympathy and undertook that we would bring forward 419 an amendment of our own. Ours differ from my noble friend Lady Platt's amendment in drafting but not in substance. I hope they will be acceptable to the House.
§ May I also take this opportunity to mention a matter in which several noble Lords expressed an interest on the day of Second Reading; namely, the European Court of Justice ruling in the case of Marshall v. South West Hampshire Area Health Authority. I said that I would consider urgently whether amendments should be made to the Sex Discrimination Bill to comply with the court ruling. My department issued on 1st April a consultative document containing proposals to change United Kingdom legislation. The proposed amendment would make it unlawful to dismiss a woman or compulsorily retire her at an age when a man in comparable circumstances would not receive this treatment. In addition, women will be given the right to claim unfair dismissal up to the same age as men. The consultative document has been placed in the Library of your Lordships' House. The consultation period will end on 30th April. Amendments to this Bill will be introduced in another place. I beg to move.
§ Lord McCarthy
My Lords, we should like to thank the Minister for accepting the argument put forward at Committee stage by the noble Baroness and for introducing this amendment at this stage. It was a general argument which had general support in the Committee at that stage, that if the Government were acceding to the request to remove discrimination from small firms then they should also do it for small partners, as it were. We are glad that the Government have done this; and we are interested to hear of the further amendments that the Government are going to introduce in another place as a result of other decisions.
Since the noble Lord is ranging widely in this area, I should like to ask him at this stage whether the Government have thought again about a further amendment which was put down by the noble Baroness at Committee stage. That was Amendment No. 2, which dealt with her desire to leave out what might be called the second limb of the Government's definition of the types of discrimination that would still be possible in private households. She argued, and we supported her at that stage in relation to this clause, that there was no need for the second limb.
The first limb, which dealt with the degree of social or physical contact, in fact dealt with all the examples that the Minister gave us on that occasion, and the second limb, which dealt with knowledge of private affairs, in fact did not deal with any of the examples. Therefore, while the Government are in this rather conciliatory mood, as they are this afternoon, and they are prepared to accept at least one of the noble Baroness's amendments, could they tell us how they now feel about the other amendment and whether they will be doing anything about that in the other place?
§ Baroness Seear
My Lords, I was interested to hear what the noble Lord said about the questions arising from the Marshall case. I have not had the opportunity to read the document that has been put in the Library, but may I ask two questions? First, are the 420 Government considering, in relation to this case, the whole question, the much wider but surely related question which cannot indefinitely be ducked, of a common retirement age? As it stands at the moment, and in relation to the Marshall case, I realise that this is not strictly required within the narrow limits of the finding of that case, but surely it must be linked, and it does not make good sense to consider the one without the other.
Secondly, since the amendment arising out of the case is going to be moved in another place, may I ask the Secretary of State whether we here will have an opportunity to discuss it?
§ Baroness Platt of Writtle
My Lords, it is with great pleasure that I express my gratitude to my noble friend the Secretary of State, and support this amendment to Clause 1. The Equal Opportunities Commission was concerned that without the amendment the Bill might fail to comply with the European Equal Treatment Directive. It is important that small professional partnerships should be treated in the same way as small firms, and I am grateful to my noble friend for introducing this amendment, which I hope the House will accept.
I am also naturally pleased, as we supported Miss Marshall, to hear that amendments will be put in another place as a follow-up to her case. Like the noble Baroness, Lady Seear, we too at the Equal Opportunities Commission would welcome the equalisation of pension age.
§ Lord Harris of Greenwich
My Lords, may I just say that I think we are all gratified to hear from the noble Lord that he has moved with such dispatch to deal with the judgment of the European Court on this question. We also hope that we shall have an opportunity of getting at Third Reading, in perhaps slightly more detail, the character of the amendments which may be tabled in another place.
§ Lord Young of Graffham
My Lords, may I take this opportunity of dealing with the matters raised by my noble friend Lady Seear and other noble Lords—
§ Lord Young of Graffham
Forgive me, my Lords: the noble Baroness, Lady Seear, who I hope is a friend outside this Chamber as well as in other places.
These matters concerned the Marshall case. Under that case, we are dealing solely with the requirement laid by employers on any employee to retire at a specific age and any discrimination which the court felt that that entailed. The financial results relating to retirement are quite another matter. They are the responsibility of my right honourable friend in another place and are matters which involve the whole range of interests outside discrimination on the grounds of sex. I am sure that these are matters which can be raised, but I am not sure that they are appropriate to be raised in legislation which deals solely with discrimination. The consultation period ends on 30th April and we wish to reflect on the results of the consultation. Therefore it may not be possible to determine 421 precisely what amendments will be moved in another place by that date. I have no doubt that it is open to anyone in your Lordships' House to consider any changes that come from another place and to come back here before the Bill is passed.
I shall now deal with the precise matter of private households. At the moment, I am afraid we are still looking for a better and more appropriate form of words. I hope that we may be able to get a little further along this way when we return on Third Reading.
§ On Question, amendment agreed to.
§ Clause 2 [Amendments of section 77 of 1975 Act]:
Lord Young of Graffham moved Amendment No. 2:
Page 2, line 13, leave out ("employed by him") and insert ("who are employed by him or who apply to be, or are, considered by him for employment").
§ The noble Lord said: My Lords, this amendment arises from your Lordships' debate at Committee stage. The noble Lord, Lord Wedderburn, drew attention to a potential limitation in the coverage of Clause 2(1)(b) relating to employers' rules, and I am happy to remedy that now. The amendment will ensure that employers' rules which are unlawfully discriminatory will be void not only where they relate to existing employees but also in relation to applicants or those who are considered for employment. This brings the provision in line with what we have provided for collective agreements and with the existing employment provisions of the 1975 Act, which cover offers of employment as well as conditions for existing employees. I beg to move.
§ Lord Wedderburn of Charlton
My Lords, briefly, we express our pleasure at this amendment. The Government amendment brings this Bill into line with the Sex Discrimination Act 1975 more completely than the amendment that we moved at Committee stage. Therefore we express our happiness with it. This is a Bill that has gone through many changes already. Your Lordships have heard this afternoon that the portents are perhaps that the Bill will go through many changes again. In the hope that some of those can come this afternoon and that this is a hopeful sign of the Government's willingness to think again about parts of the Bill, we welcome the amendment.
§ On Question, amendment agreed to.
§ 3.15 p.m.
§ Lord Wedderburn of Charlton moved Amendment No. 3:
Page 3, line 16, at end insert—
(" (5A) Where—
§ (5B) Where a person has reported a matter to the Secretary of State in accordance with subsection (5A) above, the Secretary of 422 State or any other appropriate person may refer that collective agreement or, as the case may be, that rule or the rules of which that rule forms a part, to the Central Arbitration Committee constituted under section 10 of the Employment Protection Act 1975, to declare what amendments need to be made so as to remove discrimination on grounds of sex and the date or dates on which amendments are to have effect, not being in any case earlier than the date of the reference to the committee.
§ (5C) In subsections (5A) and (5B) above, the appropriate persons are—
- (a) in the case of a collective agreement, an employer or a trade union party to it;
- (b) in the case of a rule, the employer who made it or a trade union recognised by him in respect of persons to whom it applies within subsection (1)(b) above;
- (c) in either case, the Equal Opportunities Commission.
§ (5D) Where the Central Arbitration Committee has declared what amendments need to be made under subsection (5B) above then, in so far as terms and conditions of employment of any person are dependent upon the collective agreement or the rule or rules, whether by way of contract or otherwise, they shall be ascertained by reference to the collective agreement or, as the case may be, the rule or rules as so amended.").
§ The noble Lord said: My Lords, this is a matter of substance which arises from your Lordships' discussion in Committee on 11th March, especially in cols. 535 to 553. My noble friend Lady Turner moved an amendment to restore the jurisdiction of the Central Arbitration Committee in a form that would be suitable to this Bill rather than its complete repeal as a jurisdiction, which is effected by this Bill by the repeal of Section 3 of the Equal Pay Act 1970. That proposal to your Lordships was negatived in Committee. The present amendment is a half-way house to deal, as we see it, with an acceptance of the Government's view as then expressed, plus the problem which still remains, having accepted it. The issue arises because of the form of the Bill chosen by the Government to comply with the 1984 judgment of the European Court of Justice in respect of collective agreements and employers' rules—what used to be called employers' pay structures under the Equal Pay Act, but more broadly employers' rules—which turn out to be discriminatory on grounds of sex.
§ The method in Clause 2—we have never complained of this basic method—is to make all these, if they are discriminatory, unlawful under Section 77 of the 1975 Act as though they were contracts which are also made unlawful under that section if they are discriminatory. If they turn out to be discriminatory it is unlikely, as your Lordships' debates have already shown, that direct discrimination will be very much the problem. The problem is indirect discrimination, because indirect discrimination which is unintended is the problem likely to arise in such rules and in such collective agreements. Indeed, persons of reasonable and honest views can often disagree about what constitutes indirect sex discrimination. It is a difficult matter. Where persons of reasonable and honest views can disagree, lawyers can have violent argument. The problem is complex and somewhat uncertain. Where that is so, enforcement of the law and its economical enforcement acquires a new and important aspect.
§ The Secretary of State said on Second Reading on 27th February, at col. 1179, that the effect of Clause 2 would be to make void any term of a collective agreement or rule made by an employer which was discriminatory. He said at the same column that he thought this would not have very important practical effects for two reasons; that the negotiators would 423 avoid discrimination (we agree that would happen in the vast majority of cases); and, secondly, that the individual employee who suffered discrimination could take a case to an industrial tribunal under the general provisions of the 1975 Act. We agree with that.
In Committee, at col. 537, the noble Lord, Lord Trefgarne, said that there is no specific enforcement mechanism provided in Clause 2 because none is necessary. He went on to say that such provisions would simply be void and could be cured in the way suggested by negotiation or, if the employer would not agree, this could be,
a good way of putting pressure on employers. They [unions] can support an individual employee affected by the offending agreement in a complaint to an industrial tribunal".
That was part of the Government's insistence that the effective enforcement would be in the industrial tribunal. So far, we can and must travel with the Government because our different way of doing things was defeated in Committee.
But what happens if the step of a case to the industrial tribunal is taken in regard to a set of internal undertakings rules (to use the European phrase) or a collective agreement which affects thousands of workers? The Government had an answer to this and it is here that we say the Government should think again. The answer was given by the noble Lord, Lord Trefgarne, at col. 538, when he said:
If the employer is intransigent"—
in regard to such a case that involved many workers—
the union still has at its disposal, as it has had all along, the weapon of backing a whole string of tribunal cases".—[Official Report, 11/3/86: cols. 537–38.]
Albeit the individual worker's right to go to tribunal is important, albeit we must accept that that must be the primary method of enforcement—and we do so accept because of the decision in Committee; that is the reason for our subsection (5A) in our Amendment No. 3—we think that where there is such a case it is surely reasonable to say that where negotiation has not succeeded in ironing out perhaps the disagreement as to what is the discriminatory clause, there really should be the option of a different way of easing the industrial problem for both the employer and the union apart from a whole string of 2,000 individual industrial tribunal cases.
§ If the noble Lord the Secretary of State has one thing engraved upon him—not upon his tombstone, but as he marches forward—it is not "Calais", it is "Burdens on Business". What could be a greater burden on business than to insist that in any case where discrimination arises by reason of this Bill every single case must go through the industrial tribunal. That does not make sense, and I am glad to get some indication from the Secretary of State that he is not going to say that it does. If it does not, then, with one other proviso, our case is nearly made.
The other proviso is that the noble Lord, Lord Trefgarne, said at col. 539 of the Official Report at the Committee stage:
The revision of discriminatory collective agreements is surely best left to the experts; that is, to the parties who originally negotiated them".
And he left it there. But he was answered by the noble Baroness, Lady Seear, who said (in the same column):
It is quite unreasonable, not to say naive, to assume that it can be left entirely to the negotiators to see that the matter is properly handled".
And one reason for that is the difficulty of an assessment of indirect discrimination in employers' rules or in agreements.
§ There are other expert bodies. The EOC (the Equal Opportunities Commission) is an expert body and that is why in our proposed halfway house structure we suggest that it should have a role in referring the matter to the Central Arbitration Committee after the matter has been reported to and considered by the Secretary of State. The Central Arbitration Committee itself is an expert body. It has a reputation which is unblemished and which the Government more than once have told us in these debates they do not wish to attack. At one stage I was guilty of the thought that the Government were hostile to the CAC, as it is usually known in the trade, though I am told by the Secretary of State in debate and by other Ministers that that is not so.
§ I have the highest regard for the CAC. There is the body to deal with the issue if the parties wish to put it to it. What could be more sensible, while accepting that the industrial tribunal judgment must be the first stage, because that is what the Government insisted upon in Committee and that is what we accept in this amendment, than enacting at least the option of referring to the Central Arbitration Committee on industrial relations structure which has been revealed to have some aspect of discrimination, albeit no doubt unintended, and to have its help where the parties wish it in order to solve the problem rather than wasting the cost and expense of thousands of individual industrial tribunal cases? However, I hasten to add that our amendment would not take away from any individual employee the right to go to a tribunal on any occasion which he or she deemed right and proper.
§ There is a final point, and I shall put it in a sentence. There is I think a lingering doubt as to whether the clause fully meets the judgment of the European Court at Luxembourg. I put it no higher than that. But there is the issue of whether the absence of a procedure for enforcement, apart from the industrial tribunal cases, really will satisfy the Luxembourg Court for all time. Indeed, it would be a brave person who could say that anything would satisfy the Luxembourg Court for all time. But there is a doubt among those who disagree in the area; and if that were added to our case, I would say that we are moving an amendment which surely makes industrial sense and, as a footnote, would surely cure that doubt. I beg to move.
§ Lord Denning
My Lords, may I support this amendment? I gather that the question of whether or not a collective agreement or rule made by an employer is void will come to be decided by an industrial tribunal. Many of these industrial tribunal cases are not reported. They might be reported in some trade paper or the like, but they may go unknown. Surely it is important that there should be some way of getting to know the determination of an industrial tribunal as to whether or not a particular agreement is void or a particular rule is void, and there ought to be 425 some record which is available just as in the law courts where we have reported cases.
Furthermore, rather than let many cases go time after time to an industrial tribunal or beyond, why not let the necessary amendment—because it will be necessary to have an amendment to a collective agreement or to a rule—be made straight away without people having to go to a tribunal? Let it be made by proper machinery which is suggested here; and I do not know whether there may be others made by the Central Arbitration Committee. I would support the principle of this amendment so that people should know; and it should be recorded what clauses are void or unenforceable and, if need be, amendments made.
§ Lord Young of Graffham
My Lords, I am very grateful for the admission this afternoon by the noble Lord, Lord Wedderburn, that we are "marching forward". I trust that he means not only with regard to the elimination of discrimination for reasons of sex but also with regard to all other policies of Her Majesty's Government. Perhaps I may say to the noble and learned Lord, Lord Denning, that it is many decades since I was a law student, but I was always told that the reason cases are published by courts, the Court of Appeal and by your Lordships' House, is for a doctrine of precedent to apply. I am not sure that the doctrine of precedent should apply in cases of tribunals. This, I think, is a very real distinction.
But in any event the prospect of 2,000 individual cases (which the noble Lord, Lord Wedderburn, said will be a burden on business) should provide an incentive to employers to renegotiate. Negotiation and renegotiation are ways for business to protect itself from burdens rather than having those burdens laid upon it.
Regrettably, I was not present when your Lordships discussed this clause at Committee stage, but I have read carefully the Hansard report. I must confess to being somewhat puzzled by some of the things that I read. The noble Baroness, Lady Seear, called my noble friend Lord Trefgarne "naïve" for arguing that trade unions would seek to remove discrimination from collective agreements when it came to their notice. She spoke about collusion between employers and male-dominated trade unions to continue discriminatory practices. Other noble Lords opposite supported her and I suspect that many still think so.
How far the suspicion may have been well founded in the past I shall not presume to say. But it has been a major aim of this Government to establish and strengthen democratic rights for individual members within trade unions. I hope that women trade union members will use their secret votes in union elections, now guaranteed by law, to get themselves leaders who will be genuinely committed to equal opportunities; and there are signs that this is already happening. The Financial Times of 3rd April reported that the first elections held by APEX under the Trade Union Act 1984 have resulted in women gaining another three seats on the executive, giving them five out of 16 instead of two out of 16 in a union which has 55 per cent. female members.
It has also been suggested that Clause 2 may not meet the requirements of the European Community 426 equal treatment directive. The very purpose of the clause is to implement a European Court ruling and we have naturally satisfied ourselves that we are doing that. A copy of the Bill was sent in February to the European Commission, which initiated the proceedings against the United Kingdom, and I do not think that it would have hesitated to tell me if it thought that the Bill was not remedying the breach of that directive. The directive states that:any provisions contrary to the principle of equal treatment which are included in collective agreements … shall be, or may be declared, null and void or may be amended".There is thus a choice of methods for implementing the directive in relation to collective agreements, and the Government have chosen to provide that unlawful discriminatory provisions shall be null and void.
It was suggested that the clause merely says that unenforceable terms of collective agreements are unenforceable if they are discriminatory. I grant noble Lords opposite the fact that the directive makes relatively little sense in the United Kingdom context. That is because it was designed for the European Community as a whole, many of whose member states have a system of legally binding collective agreements.
§ 3.30 p.m.
§ We do not need a new system of enforcement for sex discrimination cases and the European Court ruling did not suggest this. Its judgment was essentially a technical one and we are implementing it with this Bill. The court accepted that Section 77 of the Sex Discrimination Act implemented the directive in relation to legally binding collective agreements, but held that the lack of corresponding provision for non-binding agreements meant the directive was not fully implemented. In our view, the court saw a formal voiding provision as an important presentational measure which would set the tone for collective agreements and filter through to practical results on the ground. This change implements the court's judgment and the Government do not see the need to establish a special enforcement procedure beyond what is required of us.
§ As soon as the Bill comes into force, terms in collective agreements will be void in so far as they lead to discrimination which is unlawful under the Sex Discrimination Act or the Equal Pay Act. In such situations renegotiation of the agreement will be necessary to fill the void. The Government consider that such renegotiation is best left to parties to the agreement, not to the decision of an outside body (however expert it may be) unless the parties both want this. There are, of course, long-standing arrangements for voluntary arbitration by the CAC. The CAC's function under the Equal Pay Act has not been used for some years and we see no reason to revive it. We already have the industrial tribunals; we already have the Equal Opportunities Commission, with its power of formal investigation into any matter connected with the elimination of discrimination and the fostering of equal opportunities; and we do not need the CAC to have an enforcement role in this area as well.
§ I appreciate that this amendment is more limited in scope than the one discussed at Committee stage. But I still believe it is inappropriate. As the amendment recognises, individuals who suffer unlawful discrimi- 427 nation in employment (whether or not as a result of a collective agreement) already have the right to complain to an industrial tribunal and obtain redress. If the individual wins and the negotiating parties still insist on maintaining a collective agreement which gave rise to the discrimination, there are likely to be more cases on the same issue. Industrial tribunal decisions on discrimination are published with reasons and are available to the public for consultation, even though not all of them are reported in the law reports. The employer will then be faced not only with the expense of trying to defend such cases before a tribunal but possibly with compensation, too. Indeed, such a case would be a prime candidate for a pre-hearing assessment and an award of costs against the employer for acting "frivolously, vexatiously or otherwise unreasonably" if he persists to a full hearing. I doubt if any employer would be foolish enough to expose his or her firm to such wanton risks. The new voiding provision will give an added incentive to renegotiate the discriminatory agreement with all speed.
§ Indeed, I suspect that the renegotiation would be completed more speedily than a reference to the CAC. Let me give an example. Suppose a collective agreement provides for women to work 38 hours per week and be paid accordingly, and for men to work 40 hours per week and be paid accordingly. A women who would prefer the longer hours (or a man who would prefer the shorter hours) takes a tribunal case and wins it. The employer is naturally concerned that he might lose more cases, so negotiations take place. The employer and trade union obviously need to find out how other employees in that workplace feel about the issue. Are they all happy, except the one who took the case? Do they prefer 38 hours, 40 hours or indeed 39 hours? Would a free choice of hours be feasible in the context of that firm? There are many factors to consider, but at least they do not have to worry about all the other firms which may be covered by the original collective agreement before reaching a new agreeement for their particular workplace. The CAC, under the proposals before us, has power to influence the contracts of employment of every employer and employee covered by the collective agreement. It is not to be supposed that the CAC would be so unreasonable as to take a decision without consulting extensively. But meanwhile the particular problems of individual firms could have been resolved quickly and satisfactorily, if necessary with a variety of solutions, at local level.
§ Not only is the scheme proposed bureaucratic; paradoxically, it has to become even more bureaucratic and inflexible before it can work at all. We should need to prescribe what happens if there is an appeal against the tribunal decisions, for example. We should need to prescribe how soon after a tribunal decision the case can be referred to the CAC. We should need to prescribe what happens if there is another tribunal case pending. And what happens if there is more than one union party to the collective agreement and they do not agree? As the amendment is drafted, the case may be referred to the CAC immediately after the tribunal decision (so long as the Secretary of State has been notified) with no period allowed for negotiation or conciliation or lodging an 428 appeal. I have to say to the House that this scheme can only complicate and delay the removal of discriminatory terms from collective agreements.
§ The Government have assured my noble friend Lady Platt that we shall issue notes of guidance for employers and trade unions about the effects of the Bill on collective agreements. We have said that we shall urge negotiators to examine all agreements to which they are party and to eliminate any terms which give rise to unlawful discrimination, either directly or indirectly. The Equal Opportunities Commission will be fully consulted about this guidance, and I know my noble friend is anxious for us to alert bargaining parties to sources of outside help which they can seek on a voluntary basis.
§ I hope negotiators will start the review process even before this Bill comes into force. If they are not able to decide what action to take about an agreement, one or both of the parties can request advice or assistance from ACAS or, of course, the EOC. A discussion with either body could well overcome the problem. If not, and if both parties agreed, ACAS could appoint an arbitrator or even refer a possible dispute to the CAC. The EOC code of practice will be of considerable help to employers and trade unions in determining what kinds of practice may constitute unlawful discrimination.
§ I hope I have been able to explain why the Government regard this amendment as unnecessary and why we shall, if it is pressed, oppose it.
§ Baroness Seear
My Lords, I very much regret that the Minister does not feel able to accept this amendment. I have listened with great care to the arguments that he has put forward, but I am afraid that I find them totally unconvincing. If I may say so with respect, they are based on a view of what goes on in industry which is not quite realistic. The noble Lord referred to the idea that everybody will take a case to the industrial tribunal and that industrial tribunal results will be published and will be available. It is not every woman—it is very far from every woman—who, in these days of unemployment, is really prepared to take her employer to a tribunal. It is a difficult thing to do. And as for the idea that the law reports will always be read by all and sundry up and down the country, that seems to be an unrealistic assumption of a very extreme order.
Then the noble Lord says that because women are now getting in rather larger numbers on to the executives of unions, they need not fear collusion. I am not making any accusation against trade unions when I say that collusion between male employers and male trade unions has been a common experience; and I doubt whether anybody who is familiar with the industrial scene is going to deny that. Nor do I believe that there has been a sudden conversion as the result of certain legislation on the part of the Government which means that women are in fact going to get a better deal inside the trade union movement than they have in the past. If the noble Lord wishes, although I do not want to burden the House, I can give examples of the way in which that collusion in fact works. I am totally unconvinced that there is a complete commitment to equal opportunity on both sides of 429 industry of the kind the noble Lord now seems to think is the case.
My Lords, I simply cannot understand why, with a proved and approved system through the CAC, able to deal with this matter, the noble Lord persists in refusing to do it and to rest instead on the use of industrial tribunals with all the consequences that the noble Lord, Lord Wedderburn, has spelt out in detail; and I hope very much that since the Government have totally rejected this amendment we shall be able to test the opinion of the House.
§ Lord Wedderburn of Charlton
My Lords, I found the noble Lord the Secretary of State's answer as disappointing as did the noble Baroness Lady Seear. I wish to make seven brief points about it. First, the European Court of Justice judgment did not, with great respect, regard the need to legislate on the equal treatment directive as merely presentational. On the contrary, if the Secretary of State looks at the passage in the judgment at page 215 of the Industrial Court Reports for 1984 he will find that the court put the terms of the directive rather differently from the directive itself, which of course that court is known sometimes to do. It said that there is a need to ensure that the directive is completely effective, and that requires that clauses in such agreements which are incompatible with the obligations imposed by the directives may be annulled, amended or eliminated by appropriate means. That can mean a number of different things.
I merely say to the Secretary of State that I do not think that he is well advised to believe that it is impossible to think that Clause 2 necessarily falls within that interpretation of the directive, so there is substance in the point. That was not our main point. I found the Secretary of State's reply astonishing in this respect: that of course these matters were put to him in December by more than one body, as I understand it, but certainly by the Trades Union Congress. Then it was put to him that there would be a need for either some procedure to the Central Arbitration Committee or possibly a procedure by way of class action, which is something we know little of in this country but which might well be considered. It is not our amendment. The Government went away to consider both of those, not ruling them out, not rejecting them, as he has now done, as impossible. Yet in Committee and here again with a more moderate amendment we find that they cannot have it.
The third point is that as the Government's case has been developed in the course of this Bill we have seen that there is an insistence upon the individual employee tribunal action as the only form of enforcement that they will admit. It is the only form that they will admit. Individualism can be a very practical and noble principle but it can also be a dogmatic fetish. It really begins to look as though the Government's adherence to the notion of individual employment enforcement procedures is the latter rather than the former.
Fourthly, as to the string of industrial tribunal cases, the noble Lord said, yes, there may well be the possibility of a string of industrial tribunal cases but that will be an incentive to renegotiate. It may be; we do not deny that. He says employers are not foolish 430 enough to go on with other cases when one has been shown to be a matter of discrimination. He gave a very simple example of 38 hours and 40 hours. It would be nice if life was as simple as that. There are more complex considerations. We tried to develop these. There will be individual cases which are not necessarily within the previous individual case. In the 2,000 cases, there will be at least 400 or 500 that need to be tested. Many will be women employees who do not feel able in this labour market that the Government have partly created to go to the tribunal to enforce their rights. It is a paradox that in a labour market where the Government have created weakness in the individual employee they now insist that the only way for people to enforce their rights should be through individual action within the tribunals.
Fifthly, the noble Lord went over a large amount of ground which was, with great respect, difficult of relevance, such as the democratic rights of members within unions. He twitted us with the fact that our amendment was not wholly well drafted. There could be an appeal from the tribunal: true. There should be conciliation and negotiation periods after the judgment: true. We could deal with those matters in five minutes and I suspect the noble and learned Lord, Lord Denning, could do it on the back of an envelope in two minutes for the noble Lord the Minister if he really wanted to have the scheduled bits added in.
Sixthly, when the noble Lord says that we do not need a new system of enforcement, that really is rather rich. The Central Arbitration Committee is there. It has been there since 1965. Indeed, it has been there longer because it is the successor of the Industrial Court of 1919. It is an established part of our industrial relations and our industrial relations legal system and the Government are depriving it of jurisdiction by this very Bill. There is nothing about the new system of enforcement. It is the Government who are tearing up a very useful mechanism in our industrial life. It is the Government who, by refusing to accept an adaptation of those long-standing procedures, are creating cost for workers, employers and unions alike.
The seventh point is that the reply was so disappointing that we do indeed, as the noble Baroness, Lady Seear, suggested, intend to test the opinion of the House.
§ 3.46 p.m.
§ On Question, Whether the said Amendment (No. 3) shall be agreed to?
§ Their Lordships divided: Contents, 81; Not-Contents, 93.431
|DIVISION NO. 1|
|Amherst, E.||Crawshaw of Aintree, L.|
|Ardwick, L.||David, B. [Teller.]|
|Attlee, E.||Davies of Penrhys, L.|
|Bernstein, L.||Dean of Beswick, L.|
|Bottomley, L.||Denning, L.|
|Brooks of Tremorfa, L.||Diamond, L.|
|Bruce of Donington, L.||Donaldson of Kingsbridge, L.|
|Burton of Coventry, B.||Elwyn-Jones, L.|
|Carmichael of Kelvingrove, L.||Ennals, L.|
|Cledwyn of Penrhos, L.||Ewart-Biggs, B.|
|Fisher of Rednal, B.||Oram, L.|
|Fitt, L.||Paget of Northampton, L.|
|Gallacher, L.||Phillips, B.|
|Galpern, L.||Platt of Writtle, B.|
|Graham of Edmonton, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Harris of Greenwich, L.||Prys-Davies, L.|
|Hatch of Lusby, L.||Rathcreedan, L.|
|Heycock, L.||Rea, L.|
|Houghton of Sowerby, L.||Ritchie of Dundee, L.|
|Hughes, L.||Rochester, L.|
|Irving of Dartford, L.||Sainsbury, L.|
|Jeger, B.||Seear, B.|
|Jenkins of Putney, L.||Serota, B.|
|John-Mackie, L.||Silkin of Dulwich, L.|
|Kearton, L.||Stallard, L.|
|Kilbracken, L.||Stewart of Fulham, L.|
|Kilmarnock, L.||Strabolgi, L.|
|Leatherland, L.||Strauss, L.|
|Listowel, E.||Taylor of Blackburn, L.|
|Llewelyn-Davies of Hastoe, B.||Taylor of Mansfield, L.|
|Lloyd of Kilgerran, L.||Tordoff, L.|
|McCarthy, L.||Turner of Camden, B.|
|McNair, L.||Underhill, L.|
|Mayhew, L.||Wallace of Coslany, L.|
|Mishcon, L.||Walston, L.|
|Molloy, L.||Wedderburn of Charlton, L.|
|Morton of Shuna, L.||Wheatley, L.|
|Mulley, L.||White, B.|
|Murray of Epping Forest, L.||Wigoder, L.|
|Nicol, B.||Wilson of Rievaulx, L.|
|Ampthill, L.||Long, V.|
|Belhaven and Stenton, L.||Lucas of Chilworth, L.|
|Beloff, L.||Macleod of Borve, B.|
|Belstead, L.||Mancroft, L.|
|Bessborough, E.||Marley, L.|
|Boyd-Carpenter, L.||Maude of Stratford-upon-Avon, L.|
|Brabazon of Tara, L.|
|Brougham and Vaux, L.||Merrivale, L.|
|Bruce-Gardyne, L.||Milverton, L.|
|Butterworth, L.||Molson, L.|
|Caithness, E.||Mountgarret, V.|
|Cameron of Lochbroom, L.||Mowbray and Stourton, L.|
|Campbell of Croy, L.||Norrie, L.|
|Cottesloe, L.||Nugent of Guildford, L.|
|Cox, B.||Onslow, E.|
|Cullen of Ashbourne, L.||Orkney, E.|
|Davidson, V.||Pender, L.|
|Denham, L. [Teller.]||Porritt, L.|
|Derwent, L.||Portland, D.|
|Drumalbyn, L.||Rankeillour, L.|
|Dudley, B.||Rodney, L.|
|Duncan-Sandys, L.||Saint Brides, L.|
|Effingham, E.||St. Davids, V.|
|Ellenborough, L.||Sandford, L.|
|Elliot of Harwood, B.||Seebohm, L.|
|Elliott of Morpeth, L.||Selkirk, E.|
|Elton, L.||Shannon, E.|
|Fraser of Kilmorack, L.||Shaughnessy, L.|
|Gainford, L.||Skelmersdale, L.|
|Gardner of Parkes, B.||Somers, L.|
|Glanusk, L.||Strathcarron, L.|
|Glenarthur, L.||Strathclyde, L.|
|Gray of Contin, L.||Strathspey, L.|
|Greenway, L.||Sudeley, L.|
|Gridley, L.||Swansea, L.|
|Hailsham of Saint Marylebone, L.||Swinton, E. [Teller.]|
|Harmar-Nicholls, L.||Trefgarne, L.|
|Home of the Hirsel, L.||Trenchard, V.|
|Hooper, B.||Trumpington, B.|
|Hylton-Foster, B.||Vaux of Harrowden, L.|
|Kaberry of Adel, L.||Vickers, B.|
|Kimball, L.||Vivian, L.|
|Kinloss, Ly.||Ward of Witley, V.|
|Kitchener, E.||Whitelaw, V.|
|Lauderdale, E.||Young, B.|
|Lindsey and Abingdon, E.||Young of Graffham, L.|
|Lloyd-George of Dwyfor, E.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ Clause 5 [Repeal of Baking Industry (Hours of Work) Act 1954]:
§ 3.54 p.m.
§ Baroness Turner of Camden moved Amendment No. 4:
Leave out Clause 5 and insert the following new clause:
("Amendment of Baking Industry (Hours of Work) Act 1954.
5.—(1) Section 11(2) of the Baking Industry (Hours of Work) Act 1954 shall cease to have effect.
(2) Part VI of the Factories Act 1961 shall not apply to any woman to whom the Baking Industry (Hours of Work) Act 1954 applies.").
§ The noble Baroness said: My Lords, similar amendments were moved by me and the noble Baroness, Lady Platt, in Committee. I withdrew my amendment in Committee because I thought that hers was rather better, but I think that neither of us was satisfied by the response of the noble Lord the Minister at that time and both indicated that the matter would be brought back on Report. That is what I am now doing.
§ As I understand it, the Government intend their clause, which is still in the Bill, to remove all restrictions on night work in the baking industry. They believe that there is an anomaly with regard to the baking industry, in that the restriction in the 1954 Act applies only to men and not to women. There are of course two options available. One is to do what the Government clearly intend and remove restrictions altogether, and the other is to apply the 1954 Act provisions to men as well as to women.
§ I favour the latter approach, and that is what my amendment seeks to do. I believe that the Government favour the first approach because they believe that the Act is outdated and that it is one of the burdens on business to which reference was made earlier by my noble friend Lord Wedderburn which the Government are apparently so anxious to remove. Clearly, the Act is seen as a restriction on the right of employers to do as they please. It is, however, a union view, and one which I believe has already been put to the Government and ignored, that if the 1954 Act is abolished there will be a number of very undesirable consequences affecting workers and employers.
§ First, it will open up the possibility of permanent night work. That could lead to a loss of jobs. The introduction of permanent night shifts, particularly in some areas such as dispatch, would negate the need for alternative shifts. One federation empoloyer has suggested that, resulting from such a measure, job losses in two major firms could amount to 2,000. Plainly, job losses on that scale would be resisted by the union. It is of course the union's function to protect its members' jobs and I should not have thought it a good idea at a time of substantial unemployment to encourage any measure that would result in job losses.
§ Secondly, such deregulation will lead to a free-for-all. Unions and employers could thus be caught up in a series of confrontations. The existence of the 1954 Act has in fact assisted industrial relations generally in this industry. It has provided a background against which acceptable agreements have been negotiated.433
§ The provision will not improve conditions in the industry. There is the danger that it will harm business, reduce employment opportunities, worsen conditions for workers in an industry where hours of work are already longer than in most industries and generally lead to a worsening of industrial relations. That will not improve matters either for employers or employees and ultimately it will be worse for the consumer.
§ The more sensible and farsighted employers themselves know that, and that is why there has been no pressure from either side of the industry for a change in the 1954 Act. The measure has been introduced entirely by the Government as a part of their "lifting the burden" philosophy, and, because the Government wanted to utilise this opportunity, has brought in the Bill—a Bill that arises from quite different considerations—the EC requirements in regard to non-discrimination in collective agreements.
§ It is quite clear, and this also arose during discussion in Committee, that protection is still needed in the industry. There are cowboy operators in this industry as in others. Their activities are opposed not only by the unions but also by responsible employers in the industry. During the course of debate in Committee attention was drawn to operations such as those of cowboy operators in the Barnsley area, where they have been employing 14 year- olds and generally exploiting those who work for them. At present, there is some form of restriction in the 1954 Act. If it disappears, such outfits will not be restrained by any requirements whatsoever.
§ On the international front, within the EC there are countries—this was referred to in Committee—where there are restrictions on night working for both men and women. It is regarded as a health hazard, and with some justification. The International Confederation of Free Trade Unions recently made a survey of the operation of ILO Convention 98, which, as your Lordships well know, prohibits night working for women in industry. It concluded that the convention should not only be retained but that night working should be banned for both men and women and exemptions granted only in the case of necessity and under conditions which guarantee the health and safety of such workers and protect them against exploitation.
§ In Committee, your Lordships agreed to an amendment moved by my noble friend Lord Wedderburn which might make provisions of that kind through the concept of the equal protection order. It may, therefore, be argued that it is no longer necessary to proceed with this amendment because it has already been partly covered by the amendment of my noble friend Lord Wedderburn, which will be part of the Bill. I should like to hear from the Minister on that point. I should like to know what consideration has been given to it because I want to make absolutely certain that baking is covered. It is for that reason that I am putting the amendment before your Lordship's this afternoon.
§ As I said in the discussion in Committee, the equality argument can be satisfied by extending the protection of the 1954 Act to women as well as to men, which is what the Equal Opportunities Commission originally proposed. The Government 434 should heed what has been said to them by those directly concerned in the industry and by a specialist body like the Equal Opportunities Commission. I therefore beg to move my amendment.
§ Lord Young of Graffham
My Lords, I am grateful to the noble Baroness, Lady Turner, and I agree with her when she says that it is the duty of unions to save jobs. Of course it is, and I hoped very much that the unions would in their wisdom have seen fit to support the Government's position in this matter, since it is the continuation of jobs within the industry with which we are concerned. Nor should we allow ourselves to be side-tracked by individual cases of employing 14 year-olds within the baking industry. That is clearly wrong under other legislation and is not covered by the matter which we are discussing this afternoon, which is fully in the spirit of the Sex Discrimination Bill and is concerned with the removal and elimination of employment practices based upon sex. Surely we should seek the elimination of both protections in this instance.
Clause 5 of this Bill repeals the Baking Industry (Hours of Work) Act 1954, which currently places restrictions on the night working only of men who work in bakeries. As my noble friend Lord Trefgarne emphasised when this clause and an amendment very like this one were considered in Committee, the Act came into being not so much to protect bakery workers' health and safety, but to find a remedy for the difficulties the industry had faced in reaching sensible and workable collective agreements on hours of work at that time.
Women were excluded from this Act when it was passed in 1954, as they were barred from night work by factories legislation which Clause 4 of this Bill will repeal. If this Act remains in its present form while the restrictions on women's hours go, men's employment in night baking will be controlled while women's employment will be entirely unregulated. The need to avoid this anomaly made this the moment to ask whether the 1954 Act had any continued usefulness. At the heart of the Act is Section 9, which has enabled my predecessors to grant exemptions where they were satisfied that a voluntary agreement exists which makes the application of the Act's restrictions on hours of work unnecessary. More than two-thirds of the industry's workers are now working hours set out in collective agreements which have been the basis of such exemptions. The amendment tabled by the noble Lord, Lord McCarthy, would keep the current Act in force and extend its provisions to women and to young people.
Instead of the repeal of statutory protection for men and the protection of existing male employees through their contracts, the amendment would give statutory protection for men and women. One undesirable, and perhaps unintended, result of the amendment is that young people would be covered by both the Baking Industry (Hours of Work) Act and the Factories Act. A side effect of the new clause would be to remove the contractual protection for men provided by Clause 7 of the Bill. Since this clause was inserted by your Lordships in Committee, the matter will now go to another place for consideration there. This goes also for Clause 3, which, in relation to the Baking Industry 435 (Hours of Work) Act, sits unhappily with this amendment.
Turning now to the substance of the amendment, we were surprised during Committee to hear that repeal of the Act as proposed by the Government, instead of its extension, had no support. We consulted widely both employers' federations and trade unions in the baking industry before reaching our conclusions last year. The master bakers had last considered this matter in plenary session at their 1980 conference when it was decided to abandon their campaign for repeal—a very different thing from the opposition that has been suggested. The Federation of Bakers, whose members include many of the biggest plant bakers, told us in December that they remain firmly committed to repeal of the Act. The Cake and Biscuit Alliance welcome the proposal. We heard, too, from the Co-operative Union Limited's Parliamentary Committee that they had no objections to this repeal.
Extending the Act to women would clearly conflict with our policy of removing burdens on business to encourage the spirit of enterprise. And let us make no mistake—improving the climate for enterprise generally is essential if we wish to see the present rise in the number of jobs continue. We must also have good industrial relations if enterprise is to flourish. During the years before 1954, the two sides of this industry had failed to establish satisfactory collective bargaining machinery for setting hours and conditions of work and this had fuelled the demand for this Act.
But, the Act has now been in operation for more than 30 years and there has been ample opportunity during that time for the industry to put its house in order. We believe from the evidence available to us that this has, in fact, happened. The majority of the industry's workers are now covered by the terms of collective agreements for which exemptions have been agreed by my predecessors. We believe that today's circumstances in the baking industry, with its much greater element of plant baking for which collective bargaining machinery is now well established, make the current legislation largely redundant and ripe for repeal. Hours of work in other sectors of the economy are, after all, a matter for collective or individual bargaining, requiring no statutory underpinning.
It has been put to us that without the Act the health and safety of bakery workers would suffer, and that for this reason it should be extended to women rather than be repealed in its entirety. But there is no convincing evidence that the Act in today's circumstances achieves useful safeguards in this respect. It has been argued that repeal would result in more night work, longer hours and job losses. But there is no good reason to believe that employers will want to impose substantially different hours of work. On the contrary, night work is costly and is kept to the minimum consistent with customer needs. For all these reasons, I urge that this amendment be withdrawn.
§ Baroness Turner of Camden
My Lords, I am very disappointed to hear what the noble Lord has had to say this afternoon. I had hoped that in the time that has elapsed since we had our discussion in Committee the Government would perhaps have rethought their position so far as repeal of the 1954 legislation is 436 concerned. I have to say that, categorically, the unions are against the repeal of this legislation. It is true that they were consulted, and my information is that they made their views known to the Government at the time. That is still their position. They are against the repeal. They believe that it will not help the job situation. On the contrary, they think that the absence of the background legislation, against which they have been negotiating all these years, will be extremely bad for industrial relations in this industry and will lead to a worsening of relations, which cannot possibly help the employers, the employees or ultimately the consumers, in so far as the baking industry is concerned.
It is not true to say, I think, that this is the only industry where there are special provisions. There are many industries where there are special provisions governing various kinds of working conditions, and the baking industry is no exception in that regard. But there is a special history in baking to which successive committees have had regard and the 1954 Act was introduced only after several committees had sat and made recommendations. The Equal Opportunities Commisssion has considered the matter relatively recently and, as a result of its consideration, recommended not that protection for men should be entirely repealed but that the protection should be extended to women. That would answer the equality argument. In view of what the Minister said this afternoon, I intend to press this amendment to a Division.
§ 4.8 p.m.
§ On Question, Whether the said amendment (No. 4) shall be agreed to?
§ Their Lordships divided: Contents, 88; Not-Contents, 91.437
|DIVISION NO. 2|
|Amherst, E.||Harris of Greenwich, L.|
|Ardwick, L.||Hatch of Lusby, L.|
|Attlee, E.||Heycock, L.|
|Banks, L.||Houghton of Sowerby, L.|
|Bernstein, L.||Hughes, L.|
|Bottomley, L.||Irving of Dartford, L.|
|Brooks of Tremorfa, L.||Jeger, B.|
|Bruce of Donington, L.||Jenkins of Putney, L.|
|Burton of Coventry, B.||John-Mackie, L.|
|Carmichael of Kelvingrove, L.||Kilmarnock, L.|
|Cledwyn of Penrhos, L.||Leatherland, L.|
|Crawshaw of Aintree, L.||Listowel, E.|
|David, B. [Teller.]||Llewelyn-Davies of Hastoe, B.|
|Davies of Penrhys, L.||Lloyd of Kilgerran, L.|
|Dean of Beswick, L.||Longford, E.|
|Denington, B.||McCarthy, L.|
|Diamond, L.||McNair, L.|
|Donaldson of Kingsbridge, L.||Mayhew, L.|
|Elwyn-Jones, L.||Mishcon, L.|
|Ewart-Biggs, B.||Molloy, L.|
|Falkender, B.||Morton of Shuna, L.|
|Falkland, V.||Mulley, L.|
|Fisher of Rednal, B.||Murray of Epping Forest, L.|
|Fitt, L.||Nicol, B.|
|Foot, L.||Oram, L.|
|Gallacher, L.||Phillips, B.|
|Galpern, L.||Pitt of Hampstead, L.|
|Graham of Edmonton, L.||Platt of Writtle, B.|
|Grey, E.||Ponsonby of Shulbrede, L. [Teller.]|
|Hanworth, V.||Prys-Davies, L.|
|Ritchie of Dundee, L.||Tordoff, L.|
|Rochester, L.||Turner of Camden, B.|
|Sainsbury, L.||Underhill, L.|
|Seear, B.||Wallace of Coslany, L.|
|Serota, B.||Walston, L.|
|Shackleton, L.||Wedderburn of Charlton, L.|
|Silkin of Dulwich, L.||Wheatley, L.|
|Stallard, L.||White, B.|
|Stewart of Fulham, L.||Wigoder, L.|
|Stoddart of Swindon, L.||Williams of Elvel, L.|
|Strabolgi, L.||Wilson of Langside, L.|
|Strauss, L.||Wilson of Rievaulx, L.|
|Taylor of Blackburn, L.||Ypres, E.|
|Taylor of Mansfield, L.|
|Airey of Abingdon, B.||Lloyd-George of Dwyfor, E.|
|Ampthill, L.||Long, V.|
|Auckland, L.||Lucas of Chilworth, L.|
|Belhaven and Stenton, L.||Mancroft, L.|
|Beloff, L.||Marley, L.|
|Belstead, L.||Maude of Stratford-upon-Avon, L.|
|Boyd-Carpenter, L.||Merrivale, L.|
|Brabazon of Tara, L.||Milverton, L.|
|Brougham and Vaux, L.||Mountevans, L.|
|Butterworth, L.||Mountgarret, V.|
|Caithness, E.||Mowbray and Stourton, L.|
|Cameron of Lochbroom, L.||Norrie, L.|
|Campbell of Croy, L.||Nugent of Guildford, L.|
|Cottesloe, L.||Onslow, E.|
|Cox, B.||Orkney, E.|
|Cullen of Ashbourne, L.||Orr-Ewing, L.|
|Davidson, V.||Pender, L.|
|Denham, L. [Teller.]||Plummer of St Marylebone, L.|
|Derwent, L.||Porritt, L.|
|Drumalbyn, L.||Portland, D.|
|Effingham, E.||Rankeillour, L.|
|Ellenborough, L.||Rodney, L.|
|Elliot of Harwood, B.||Sandford, L.|
|Elliott of Morpeth, L.||Seebohm, L.|
|Elton, L.||Selkirk, E.|
|Fraser of Kilmorack, L.||Shannon, E.|
|Gainford, L.||Skelmersdale, L.|
|Glanusk, L.||Somers, L.|
|Glenarthur, L.||Strathcarron, L.|
|Gray of Contin, L.||Strathspey, L.|
|Greenway, L.||Sudeley, L.|
|Gridley, L.||Swansea, L.|
|Hailsham of Saint Marylebone, L.||Swinton, E. [Teller.]|
|Harmar-Nicholls, L.||Teynham, L.|
|Home of the Hirsel, L.||Trefgarne, L.|
|Hooper, B.||Trenchard, V.|
|Hylton-Foster, B.||Trumpington, B.|
|Kaberry of Adel, L.||Vaux of Harrowden, L.|
|Kimball, L.||Vickers, B.|
|Kinloss, Ly.||Vivian, L.|
|Kitchener, E.||Ward of Witley, V.|
|Lane-Fox, B.||Whitelaw, V.|
|Lauderdale, E.||Young, B.|
|Lindsey and Abingdon, E.||Young of Graffham, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.16 p.m.
§ Baroness Platt of Writtle moved Amendment No. 5:
§ After Clause 7, insert the following new clause:
§ ("Change of hours of work.
§ .—(1) If an employer proposes to make a substantial change in the hours of work of any of his employees he shall be under a duty to consider the health, safety, welfare and interests of those employees (particularly employees with domestic and family responsibilities) and to make appropriate provision for their health, safety and welfare having regard to the nature and size of his business.438
§ (2) The Health and Safety Commission after consultation with the Equal Opportunities Commission may make a code of practice containing practical guidance on the duty created by subsection (1) above and the provisions of section 16 of the Health and Safety at Work etc. Act 1974 shall apply to the making of a code of practice under this subsection as they apply to the making of a code under that section of that Act.
§ (3) In any proceedings before an industrial tribunal the extent to which an employer has carried out his duty under this section shall be relevant in determining the reasonableness of his actions.")
§ The noble Baroness said: My Lords, noble Lords will remember that I raised the question of a code of practice both at Second Reading and at Committee stage in the form of an amendment. The amendment suggested that ACAS might be the agent for formulating a code of practice. My predecessor as chairman of the Equal Opportunities Commission, the noble Baroness, Lady Lockwood, favoured the Health and Safety Commission as the nominating body. The noble Baroness, Lady Seear, while supporting the idea of a code of practice, questioned whether one could have a code of practice that did not interpret legislation.
This amendment relates the proposed code of practice to a duty on employers when changing hours of work substantially to consider the health, safety, welfare and interests of those employees, particularly those with domestic and family responsibilities, and to make appropriate provision for them, men as well as women, in a proper spirit of equality. The wording comes from Section 97(7) of the Factories Act 1961, now to be repealed, which states:
In granting any application under this section the Minister shall impose such conditions as he considers necessary for the purpose of safeguarding the welfare and interests of the persons employed on the system of shifts, and in considering any such conditions shall, in particular, consider the expediency of requiring the provision of suitable accommodation for clothing and of facilities for meals and of transport facilities for workers residing at a distance and, in the case of young persons, of reasonable facilities for attending courses of further education".
§ As my noble friend Lord Trefgarne pointed out at Committee stage, the Health and Safety at Work Act 1974 allows the Health and Safety Commission to prepare codes of practice. So we have dropped the idea of ACAS in the commission's favour and related it to their normal machinery in Section 16 of the Act. At Second Reading, my noble friend Lord Young quoted the Equal Opportunities Commission document of 1979—this rather thick and heavy document—Health and Safety Legislation: Should we Distinguish between Men and Women? and stated that the commission's recommendations in part prompted this anti-discriminatory measure in the present Bill. As my noble friend stated, the commission at that time, with a minority dissenting, decided there was no longer justification for maintaining legal provisions in hours of work which require men and women to be treated differently and recommended that the legislation be removed or, where health, safety and welfare demanded, replaced so that it applies equally to men and women. It particularly recommended then that minimum standards of welfare should be specified and that a code of practice should be agreed that could be used at tribunals.
§ The amendment now before the House therefore closely follows the commission's original recommendations of 1979, so that with the improved job 439 opportunities allowed to women by the removal of restrictions they should not find themselves, due to their domestic responsibilities, unable to take advantage of those opportunities.
§ Our streets today are not safe at night. Muggings take place, unfortunately, of both men and women. The matters of meal breaks and rest periods and of domestic responsibilities are important to both men and women. In this clause, we have attempted to set the right balance between imposing a duty that is so restrictive as to make it difficult for employers to change hours of work and one that is so vague as to have no effect at all. The proposed duty only applies when an employer proposes to change hours of work substantially. We are not suggesting interference with existing arrangements otherwise. We expressly state that the nature and size of the business are to be taken into account so as not to put excessive burdens on small businesses.
§ There is no direct enforcement suggested and no need for the development of a new bureaucracy. However, like the Equal Opportunities Commission's own code of practice, the proposed code would be admissible in evidence if a complaint of dismissal or of constructive dismissal as a result of changes in hours of work were brought before an industrial tribunal, so that it could decide if an employer was acting reasonably in that respect when coming to its decision.
§ A few good employers lead the field, I am glad to say, in providing such a provision on a voluntary basis, so one might perhaps say that such employers do not need a code of practice. However, there are always the cowboys in any situation and they need the possibility or actuality of an industrial tribunal finding against them to make them conform to reasonable standards for vulnerable employees. The middle group will vary between the two extremes. With the removal of restrictions, many will welcome an official standard or framework of guidance to help decide how to set up conditions of work that are reasonable in the changed circumstances.
§ I know that my noble friend is not on the side of the cowboys. I hope very much that he will accept the idea of this modified clause, so as to ensure good conditions of work for both men and women at a time of change. In the past, exemptions from the Act have been negotiated against the background of the Act's existence and under the eye of the factories inspectorate, which has ensured some degree of control.
§ In this House, considerable sympathy was expressed recently in favour of those employees affected by the proposed changes in legislation due to the Shops Bill, which led to an amendment in their favour. I hope that this amendment also will obtain the support of my noble friend the Minister and of your Lordships' House today, in order to give protection to members of the workforce who are in a vulnerable position at a time of substantial change. I beg to move.
§ Lord McCarthy
My Lords, we wish to support this amendment. As we understand it, and as the noble Baroness has said, the amendment is an attempt to return to the code of practice that very carefully and clearly seeks to take into account the objections that 440 were made to this form of amendment when it was put down by the noble Baroness at the Committee stage.
I should like to say a few words about two aspects of this matter. First, what would be the position if this amendment were passed? Secondly, so far as we have heard from the Government on their own evidence—and we shall of course hear from the Secretary of State later—what is the case against a modest amendment of this kind? On the first point, I understand the noble Baroness to be saying with this amendment that employees would have a legal duty to consider the health, safety, welfare and interests of their employees—particularly in respect of their domestic and family responsibilities—when introducing substantial changes in hours of work.
If, for example, an employer employed a significant number of single parents, or employees who had relatives suffering from long-term sickness, or employees with a considerable number of young children whom they had to look after, or if he employed a large number of married women in part-time work, such an employer would be under a legal duty to consider the consequences of a significant and substantial change in hours of work from such employees' point of view.
The code of practice would help such employers in carrying out that responsibility, and it would seek to influence the way in which they sought to carry it out. It would give them examples of where it was reasonable and of where it was unreasonable to introduce certain patterns of change in hours of work. It would suggest what kind of alternatives might be offered to such employees when significant changes were made. The code of practice would suggest also what kind of transport arrangements, creche facilities, and so on, would be reasonable in the circumstances when making substantive changes to hours of work. The point we would make about all that is that we do not see how the Government can resist the notion that such a code of practice would, in this context, be useful. It would provide a set of guidelines and provisions that would advise and assist good employers in making substantial changes to hours of work.
The other aspect of the proposal is, as the noble Baroness has said, that there is no prescribed set of legal liabilities or levels of compensation stipulated under the amendment for failure to observe any of those duties. They would simply be taken into account before an industrial tribunal when calculating the test of reasonability. That is what these very modest proposals are intended to do. What possible arguments can the Government adduce against them?
What arguments did the Government adduce last time? The noble Lord, Lord Trefgarne, said on 11th March, at col. 614 of the Official Report, that the Government were against Amendment No. 29, by the noble Baroness, and he said why. The first point to make is that the noble Lord did not say much. He made a speech of about two minutes in length and of about 450 words, in which he stated that the Government were against this outdated and unnecessary measure. He reiterated all the phrases that the Secretary of State had used on Second Reading: outmoded, outdated, burdensome, out of place. In the case of the Secretary of State on Second Reading, he 441 made mention five times of stopping sensible arrangements and of such an amendment being unnecessary.
However, in his two-minute speech of 450 words the noble Lord—as might be expected—did not have time to tell the Committee precisely why it was all outmoded, outdated, burdensome and unnecessary. We therefore have to ask whether the Government have anywhere provided evidence that such an amendment is unnecessary and indeed burdensome. The only evidence that the Government have supplied—and the Secretary of State is fond of quoting the title of that evidence if not the details of the evidence—is the Government's publication, Burdens on Business. The fact is that when one reads that remarkable document, one finds that it must be quite the most deplorably superficial survey. It is the most imperfect sample of any survey known to me. It uses some 200 quota samples and another imperfect sample of 85. A sample size of at least five times as much would be required before any reasonable conclusions could be drawn.
If one studies Burdens on Business, the remarkable thing is that it does not mention changes in hours of work, and regulations and restrictions on hours of work, at all. In fact, it says that legal regulations on business as a burden are only the third most important burden on business. A far more important burden on business is the activity of government in respect of the level of unemployment, the lack of capital investment or such things as VAT.
§ 4.30 p.m.
§ In so far as anybody thinks about employment protection this is confined to a minority of this very small sample—some 29.5 per cent.—and only 4 per cent. of this small sample who considered employment protection to be some kind of burden on business mentioned it without a prompt. In other words, 96 per cent. never even thought of it until the government and the people carrying out the survey suggested it. Moreover, if one looks at the answers to the question it is difficult to believe that that 4 per cent. were not referring to unfair dismissal rather than to restrictions on hours. Therefore, there is absolutely no evidence whatever, except constant assertions, that a modest, small amendment of this kind simply proposing that there should be a code of practice where all these things are swept away would be regarded as a burden on business.
However, we must be fair. The fact is that the only decent argument against the amendment was not that put forward by the Minister during the Committee stage but the doubts expressed by the noble Baroness, Lady Seear, who said on 11th March, reported at col. 613 of Hansard:
As I understand it, codes of practice are related to legislation. They are interpretative of legislation. As we know, they do not have the force of law but they are interpretative of legislation. If the amendments that have been passed this evening are accepted and remain in the legislation, then the code will of course be interpretative of the law including those amendments. But",
the noble Baroness added,
since the Government are set to remove the fact of the legislation, I fail to see to what legislation the code of practice will relate".
I consider that to be a reasonable point to make about the code of practice in the Bill at this time.
§ However, I make three comments to the noble Baroness, and I think there are at least three answers which can be made. The first point is, as the noble Lord, Lord Trefgarne, and the noble Baroness, Lady Platt, said, we do have voluntary codes of practice. The EOC publishes voluntary codes of practice. The Department of Employment publishes, I see in the current edition of the Department of Employment Gazette, no less than, in effect, 16 guides to various aspects of the present employment legislation. They are all, in a way, voluntary codes of practice. Therefore, even if this code was imperfectly related to particular substantive penalties and offences in the Bill there is no reason why we should not give advice in this field.
§ Secondly, as the noble Baroness, Lady Platt, said, it is reasonable to suggest that this code of practice, in the way suggested in the amendment, would be of use in cases of contructive dismissal. It may well be of assistance in determining reasonableness from the point of view of industrial tribunals in cases of constructive dismissal. Thirdly, we have amended the Bill. We have done so in two ways. We passed Amendment No. 9, which gives the Secretary of State the right to publish equal protection orders and a code of practice might be required for that purpose. Even more directly, we passed Amendment No. 10, and other subsequent amendments, which require a right of unfair dismissal and compensation for unfair dismissal for established employees after the passage of this Bill. Both those would give rise to liabilities and would provide a role for a code of practice.
§ Therefore, it seems to me that there is no substantive case advanced by the Government so far for opposing this amendment. The Secretary of State said earlier in this debate that he hoped we would be marching forward together. We like to march forward, and if people march with us that is jolly good. Some progress has been made, and provided it is sustained in another place—but I note the Secretary of State is rather hesitant to enter into that this afternoon—then we will have marched forward. However, on Second Reading the Secretary of State said that the Government saw this Bill as a way of achieving, as I understood him, four objectives. The question is whether those four objectives can be combined. One of the ways in which I suggest they could be combined is for the Government to accept this amendment.
§ The first objective was the removal of discrimination; the second was the promotion of opportunity, the third was the removal of restrictions on industry, and the fourth was the stimulation of competition in the labour market. As I said, the question is whether those four objectives can be combined. They can be achieved only if it is done very carefully and very precisely. This amendment is one of the ways in which we believe they can be combined. If the Government say that they cannot accept the amendment I suggest to the House that what they are really saying is that their primary interest is with the third and fourth of those objectives—the removal of restrictions on industry and the stimulation of competition—even at the cost of the promotion of equal opportunities.
§ Baroness Seear
My Lords, as the noble Lord, Lord McCarthy, has quoted me from a previous stage of the 443 Bill I should like to say that I accept the value of a voluntary code. The point I raised was, in fact, a technical point on what would be the standard of the code, having regard to the changes which would be made in the legislative pattern.
I am not, of course, privy to what the noble Lord the Minister is to say in reply, but I will make a guess and say that he will tell us that these matters are best dealt with through collective bargaining, that there is no need to have a code and that it can be left to negotiators to fix the conditions under which people work. He will no doubt also tell us that sensible, responsible employers will see to it that the conditions of work are of an order which is satisfactory from the point of view of the employee as well as the employer.
I accept that collective bargaining can do a very great deal in this field. I accept that a considerable number of employers will have the kind of conditions which are acceptable. However, legislation of this kind, not only now but throughout time, has been introduced not for the majority of responsible employers and not for the majority of industries in which there is well-established, well-respected and well-monitored collective agreements, but for the proportion of employers—no doubt a very small proportion—who go out on a wing and behave in a way which is discreditable to the industry and which is repudiated by the responsible employers. But they remain. There are "cowboys" in every industry. Legislation has been introduced not just in this respect, where we are asking for a code of practice, but in many other fields, to deal with those people who do not behave properly and where there are no properly monitored trade union agreements. That is why we are asking for it.
It will be unnecessary for those employers who are already applying this kind of practice but it is necessary for those employers who do not and who, whenever they have the chance, try to get away with it, and who will continue to do so. The number of such people who try to get away with it will probably increase if there is no legislation of any kind to force them to comply. In many cases there are a large number of employers who have employees who are not in trade unions and where the organisations are too small to make effective trade union organisation a practical proposition. It is in those cases that a code of practice is particularly desirable. Therefore, I very much hope that the Government will accept the amendment.
§ Lord Somers
My Lords, I support this amendment and I congratulate the noble Baroness on the way she has worded it. It covers three paragraphs without once mentioning that forbidden word "women", although we all know perfectly well what the amendment means. I should also like to congratulate the noble Baroness on having inspired the noble Lord, Lord McCarthy, actually to mention the name of a Conservative Front Bench Peer in support of his argument. That is surely an event that should go down in the Guinness Book of Records. I congratulate the noble Baroness, therefore, on all counts.
§ Lord Denning
My Lords, may I also support what is an apparently minor amendment but nevertheless 444 one of some importance? It is to deal with what has been called the cowboy employers. Almost every employer will easily fulfil the requirement mentioned in subsection (1)—namely, that when making a change of hours,he shall be under a duty to consider the health, safety, welfare and interests",of his employees. Every ordinary employer will do so. There is no difficulty at all about that. It is only the cowboys who will ride roughshod over the health and welfare of employees. But no legal obligation arises and no offence is created if he does not carry out that duty. So what is to happen? I refer to the next subsection.
Codes of practice are a modern innovation. They have begun to appear in our legislative machinery within the last 20 years. They are not binding in law but serve as advice or guidance to people in carrying out their everyday affairs. In that way, they give a great deal of help, without being legally binding, to those who want to know or should know how to behave.
A code of practice I should therefore have thought was the appropriate machinery in relation to the matter under discussion. The only means of enforcement of this duty and consideration is its relevance in determining whether in some future proceedings the employer has been reasonable. All those provisions, it seems to me, are very sensible. It is difficult to see what legitimate objection could be raised against the amendment. I support it.
§ Lord Seebohm
My Lords, I shall be brief, your Lordships will be glad to hear. I have been impressed by the arguments of the noble Baroness, Lady Platt. There is, however, an additional point that is well worth making. In a debate not long ago, I pointed out that there are over 4.3 million workers who work part time. They work part time voluntarily because of strong interests elsewhere, mainly for family reasons. Someone in the family may be disabled, or perhaps there is an elderly relative. To these part time workers, it is vitally important that their hours of work should not change without serious consideration. These 4.3 million people, who are not unionised, must be given particular attention. Few of them have anyone officially supporting them. I support the amendment strongly.
§ Baroness Elliot of Harwood
My Lords, I also should like to speak in support of my noble friend Lady Platt, who moved the amendment with great skill and wisdom. One could not possibly disagree with the words in the first part of the amendment, which simply state that the employer shall be under a duty to consider the health, safety, welfare and interests of the employees. That is exactly what we want. We do not want discrimination between men and women. We want all legislation and all care regarding matters of this kind to apply to both men and women. I believe that the amendment would apply to both men and women and that this would be a great advantage. I hope that the Government will recognise that this is not a political issue but purely a matter of common sense. I support the amendment strongly.
§ Baroness Gardner of Parkes
My Lords, I should like to support the amendment of my noble friend Lady Platt. It is sensible that in the first subsection of the amendment she has included the words,having regard to the nature and size of his business".The employee is actively concerned and interested in the future of the employer. If the employer goes out of business, the job goes with him. So that is highly relevant. I sit on an industrial tribunal on a regular basis. It is amazing to find how many employers who go there to defend cases have not given any thought or displayed any awareness of industrial legislation until they arrive for the hearing. A code of practice is very helpful in these cases.
I am convinced that a code of practice would be of great value to a person who would like to know more about how they should be going about these matters. Subsection (3) of the amendment is also of great importance in setting out the relevance that the tribunal would attach to the implementation of such a code of practice. I support the amendment strongly.
§ 4.45 p.m.
§ Baroness Lockwood
My Lords, I should like to support the noble Baroness's amendment. In doing so, I must first apologise to the noble Baroness and to the House for my absence when she moved the amendment. The noble Baroness will, however, forgive me, I believe, when I say that I was fulfilling a long-standing engagement dealing with equal opportunities. I am sure that I would have agreed with the remarks of the noble Baroness in support of an amendment the terms of which I support completely. It is important to have an amendment such as this embodied in the Bill, not only for the reasons given by the noble Baroness, Lady Seear—namely, that there are a considerable number of employees who are outside the scope of organised trade unions and who are not always party to collective agreements—but also because of the cowboy firms described by the noble and learned Lord, Lord Denning.
There are many women now in employment who would feel more confident about continuing their employment and also many women who feel much more confident about entering employment if they feel that their interests would be covered by a code of practice similar to that envisaged in the amendment. It is suggested that the code should be under the auspices of the Health and Safety Commission. But such a code would complement that already drawn up by the Equal Opportunities Commission and that has received the approval of Parliament for ensuring equal opportunities for men and women in employment. I hope therefore that the House will give the amendment its full support.
§ Lord Young of Graffham
My Lords, I must confess to the noble Baroness, Lady Seear, that I have heard so much about cowboys this afternoon that I am beginning to feel a little like the Lone Ranger. But cowboys are a state of mind. Whatever the law may or may not be, we have to ensure that we do not have cowboys in our midst by means other than simply legislating them out. I would assure the noble and learned Lord, Lord Denning, and my noble friend Lady Elliot that Section 16 of the Health and Safety at 446 Work Act 1974 already allows the Health and Safety Commission to prepare and issue approved codes of practice to assist employers in fulfilling their general duties to ensure the health, safety and welfare at work of employees. This amendment seeks something rather different. I would say to the noble Lord, Lord McCarthy, that it is a curious view to take of the best way to promote employment and to help the growth of the economy to propose that employers should amend their working practices to suit the domestic arrangements of their employees at a particular time.
All your Lordships should be concerned to see the growth of employment. I assure the noble Lord, Lord Seebohm, that part-time employment is of increasing importance. We are looking towards a world in which part-time employment not only grows but is also increasingly attractive. We must ensure, wherever possible, the growth of part-time employment rather than place restrictions upon it. I do not pay too much attention to the comments of the noble Lord, Lord McCarthy, about burdens of business. I shall not rest until we see unnecessary restrictions removed from the growth of employment.
I am not talking about removal of protection, but the removal of unnecessary restrictions. Therefore we have to ask ourselves this afternoon what we are proposing. The main effect of this amendment is to impose upon all employers a new statutory duty. I stress the word "all" because it is important to understand that we are not talking merely of women in manufacturing or men in the baking industry. This amendment would apply to all employers great and small across the economy.
As my noble friend Lady Platt has explained, the effect of this amendment would be that an employer who proposed to make a "substantial change" in working hours would have to consider the health, safety, welfare and interests of his employees and to make appropriate arrangements bearing in mind the nature and size of his business.
I do not think that we can take refuge in the thought that the size of the business will in the end be taken into account. We have seen the European court decide that the size of the business is an irrelevancy and that these restrictions apply right the way across the board. I can assure my noble friend Lady Gardner that we should be concerned to see and promote the growth of small firms. It would be difficult—in fact we see no way—to ensure that there were special rules for very small firms alone. In particular—this is where the new duty arises—the employer will have to consider the employees' domestic and family responsibilities.
Section 97 of the Factories Act 1961—which we have had quoted this afternoon—used wording, as my noble friend Lady Platt has mentioned, which is similar to that of the amendment, but in some respects only. It provides that when granting an authorisation under that section to work shifts which would otherwise be prohibited the Minister may impose such conditions as he thinks necessary to safeguard "the welfare and interests" of the employees on the shift system. The section then goes on to describe the interests envisaged, including meal facilities and accommodation for clothing. I should make it absolutely plain that my department has always encouraged employers to consider the welfare and 447 interests of their employees in the furtherance of good industrial relations. We go much further than encouragement when considering people's health and safety at work. The Health and Safety at Work Act 1974 puts all employers under a general duty to ensure the health and safety and welfare at work of all employees. I have already referred to the possibility of issuing codes of practice on that aspect. To this extent therefore this amendment duplicates an obligation which employers already have.
However, this amendment goes beyond that. It imposes as a new statutory requirement on an employer the duty to consider the interests of employees, and, in particular, the interests of his or her employees with domestic and family responsibilities when changes in working hours are contemplated. It would be the employer's duty to consider the health, safety and welfare of his employees not only at work but elsewhere.
We believe that employers will in the main already be doing this so far as it is reasonably practicable for them to do. An employer not sensitive to his work people's interests, either collectively or to the level of the individual, is not well placed to persuade them to give of their best. An employer not already adopting such an approach may need to pay more to obtain willing recruits.
There is no evidence to suggest that there is any need to place an inflexible statutory obligation on employers requiring an approach which, to all intents and purposes, most adopt already. To do so would be to impose yet another burden on employers which, even if the duty were clear cut, would put further strain on the willingness of enterprise to expand and to create jobs. Everything I do is concerned solely with creating jobs in a spirit of safety.
However, the duty is not clear cut. Even with the code of practice that is proposed there would be difficulty in interpretation. For instance, what is meant by "substantial change in hours"? For some workers dependent upon public transport, a change of only minutes might be the difference between catching or missing the only convenient bus. Such small changes can currently be introduced almost unhindered even for the employees directly affected by the legislation we propose to repeal. What precisely comprises the "interests of those employees"?
§ Baroness Seear
My Lords, I hope that the noble Lord will forgive me for interrupting him. I must draw his attention to the fact that this simply says "consider". It does not say that they have to negotiate or agree. The noble Lord can do that in five seconds in the bathroom in the morning.
§ Lord Young of Graffham
My Lords, may I assure the noble Baroness that what starts off as "considering" shortly becomes an inflexible duty. That is the way in which these matters get interpreted and develop.
§ Lord Young of Graffham
My Lords, I assure the noble Lord that that does not refer to the duty to take a bath. How would employers take account of conflicting interests between individual or groups of employees? Not all employees will have the same interests.
We believe that the new employer's duties sought by this amendment would be a gift to the legal profession providing them with endless opportunities for equally endless interpretations. How is the employer to cope with this?
Finally, noble Lords will recognise that the amendment seeks to widen the scope of the Health and Safety Commission's terms of reference. They would have a duty to consider matters outside the workplace. For the very first time they would be called upon to advise on family and domestic responsibilities. These issues bear no relation to the Health and Safety Commission's current expertise and skills, involved as it is with questions of health, safety and welfare at work.
The Government could not agree that it would be sensible to ask the Commission to equip itself to issue guidance on these largely social aspects of change in the workplace. In conclusion, we believe that it would be ill advised to impose this statutory burden on employers and to widen the Health and Safety commission's terms of reference in the ways proposed. For those reasons, I urge rejection of this amendment.
§ Baroness Platt of Writtle
My Lords, I am very disappointed that my noble friend the Secretary of State does not find it possible to accept what we believe is a very reasonable amendment. At a time when there is a substantial change, both in legislation and—if this proposal is agreed—in hours of work, we feel that protection is needed.
I quoted from the Factories Act. We used the words that are in the Factories Act 1961. It talks about "safeguarding the welfare and interests of the persons employed". It goes outside the place of work in talking about transport facilities for workers residing at a distance, and, in the case of young persons, of reasonable facilities for attending courses for further education. This is something that is provided at the moment and would go if nothing is put forward to provide other protection.
In terms of a code of practice, in the case of our own code of practice with regard to the Equal Opportunities Commission, this went through Parliament with parliamentary support. There is reference to the period of 40 days which it has to lie before Parliament. There are a great many restrictions and protections on a code of practice. One is therefore not talking about something that is considered very lightly. It is a reasonable document. It is a voluntary document.
I have spoken to many employers over our own code of practice. As my noble friend Lady Gardner said just now, they welcomed that guidance. Faced with difficult and complex legislation, they find it a help to have a code of practice which provides guidance.
If I may refer to the "cowboys" as several noble Lords and Baronesses have said today, one does not 449 come to an industrial tribunal lightly. It is an ordeal for the applicant just as it will be for the respondent. However, at that time account will be taken of the reasonableness of the irresponsible employer. I am therefore grateful for the support I have had from the House today. I am disappointed in my noble friend. I still hope that at Third Reading he may have a last minute conversion. In the meantime I must press the amendment.
§ On Question, Whether the said amendment (No. 5) shall be agreed to?
§ Their Lordships divided: Contents, 107; Not-Contents, 88.450
|DIVISION NO. 3|
|Allen of Abbeydale, L.||Lawrence, L.|
|Amherst, E.||Leatherland, L.|
|Ardwick, L.||Llewelyn-Davies of Hastoe, B.|
|Auckland, L.||Lloyd of Kilgerran, L.|
|Banks, L.||Lockwood, B.|
|Barnett, L.||Longford, E.|
|Bernstein, L.||Lovell-Davis, L.|
|Bottomley, L.||McCarthy, L.|
|Brooks of Tremorfa, L.||McIntosh of Haringey, L.|
|Bruce of Donington, L.||McNair, L.|
|Burton of Coventry, B.||Mishcon, L.|
|Caradon, L.||Molloy, L.|
|Carmichael of Kelvingrove, L.||Morton of Shuna, L.|
|Cledwyn of Penrhos, L.||Mountevans, L.|
|Crawshaw of Aintree, L.||Mulley, L.|
|David, B.||Murray of Epping Forest, L.|
|Davies of Penrhys, L.||Nicol, B.|
|Dean of Beswick, L.||Oram, L.|
|Denington, B.||Parry, L.|
|Denning, L.||Phillips, B.|
|Diamond, L.||Pitt of Hampstead, L.|
|Donaldson of Kingsbridge, L.||Platt of Writtle, B. [Teller.]|
|Elliot of Harwood, B.||Ponsonby of Shulbrede, L.|
|Elwyn-Jones, L.||Prys-Davies, L.|
|Ennals, L.||Ritchie of Dundee, L.|
|Ewart-Biggs, B.||Rochester, L.|
|Faithfull, B.||Ross of Marnock, L.|
|Falkender, B.||Sainsbury, L.|
|Foot, L.||Seear, B.|
|Gallacher, L.||Seebohm, L.|
|Galpern, L.||Serota, B.|
|Gardner of Parkes, B. [Teller.]||Shackleton, L.|
|Silkin of Dulwich, L.|
|Graham of Edmonton, L.||Somers, L.|
|Greenway, L.||Stallard, L.|
|Gregson, L.||Stewart of Fulham, L.|
|Grey, E.||Stoddart of Swindon, L.|
|Grimond, L.||Strabolgi, L.|
|Hampton, L.||Taylor of Blackburn, L.|
|Hanworth, V.||Taylor of Mansfield, L.|
|Harris of Greenwich, L.||Tordoff, L.|
|Hatch of Lusby, L.||Turner of Camden, B.|
|Hayter, L.||Underhill, L.|
|Henderson of Brompton, L.||Vickers, B.|
|Heycock, L.||Wallace of Coslany, L.|
|Houghton of Sowerby, L.||Walston, L.|
|Hughes, L.||Wedderburn of Charlton, L.|
|Jeger, B.||Whaddon, L.|
|Jenkins of Putney, L.||Wheatley, L.|
|John-Mackie, L.||White, B.|
|Kennett, L.||Wigoder, L.|
|Kilbracken, L.||Williams of Elvel, L.|
|Kilmarnock, L.||Wilson of Langside, L.|
|Kinloss, Ly.||Wilson of Rievaulx, L.|
|Ailesbury, M.||Ampthill, L.|
|Airey of Abingdon, B.||Belhaven and Stenton, L.|
|Alexander of Tunis, E.||Bellwin, L.|
|Beloff, L.||Marshall of Leeds, L.|
|Belstead, L.||Maude of Stratford-upon-Avon, L.|
|Boyd-Carpenter, L.||Merrivale, L.|
|Brabazon of Tara, L.||Milverton, L.|
|Brougham and Vaux, L.||Mowbray and Stourton, L.|
|Butterworth, L.||Norrie, L.|
|Caithness, E.||Nugent of Guildford, L.|
|Cameron of Lochbroom, L.||Onslow, E.|
|Campbell of Croy, L.||Orr-Ewing, L.|
|Coleraine, L.||Pender, L.|
|Cottesloe, L.||Perth, E.|
|Craigavon, V.||Plummer of St Marylebone, L.|
|Cullen of Ashbourne, L.|
|Davidson, V.||Porritt, L.|
|Denham, L. [Teller.]||Portland, D.|
|Derwent, L.||Rankeillour, L.|
|Drumalbyn, L.||Reay, L.|
|Ellenborough, L.||Rodney, L.|
|Elliott of Morpeth, L.||St. John of Bletso, L.|
|Elton, L.||Sandford, L.|
|Erroll of Hale, L.||Selkirk, E.|
|Fraser of Kilmorack, L.||Shannon, E.|
|Geddes, L.||Sharples, B.|
|Glanusk, L.||Shaughnessy, L.|
|Glenarthur, L.||Skelmersdale, L.|
|Gray of Contin, L.||Strathcarron, L.|
|Hailsham of Saint Marylebone, L.||Strathspey, L.|
|Harmar-Nicholls, L.||Swansea, L.|
|Home of the Hirsel, L.||Swinton, E. [Teller.]|
|Hooper, B.||Teviot, L.|
|Ironside, L.||Teynham, L.|
|Kimball, L.||Thorneycroft, L.|
|Kitchener, E.||Trefgarne, L.|
|Lane-Fox, B.||Trumpington, B.|
|Lauderdale, E.||Vaux of Harrowden, L.|
|Lindsey and Abingdon, E.||Vivian, L.|
|Long, V.||Ward of Witley, V.|
|Lucas of Chilworth, L.||Whitelaw, V.|
|Macleod of Borve, B.||Young, B.|
|Mancroft, L.||Young of Graffham, L.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ 5.7 p.m.
§ The Deputy Speaker (Lord Nugent of Guildford)
My Lords the next amendment is Amendment No. 6, which I understand has already been spoken to.
§ Schedule [Repeals]:
§ Lord Young of Graffham moved Amendment No. 6:
§ Page 8, line 14, column 3, at end insert—
|("In section 11(1), the words "consisting of six or more partners".|
|In section 80(1), paragraph (d).").|
§ On Question, amendment agreed to.
§ Lord Young of Graffham moved Amendments Nos. 7 and 8:
§ Page 10, line 7f, column 3, after ("91") insert—
|in subsection (1),").|
§ Page 10, line 9, column 3, leave out ("and the words "her or" in subsection (3)") and insert—
|in subsection (2), the words "woman or a"; and|
|in subsection (3), the words "woman or" and the words "her or".").|
§ The noble Lord said: My Lords, with the leave of the House I should like to move Amendments Nos. 7 and 8 together. They are technical drafting amendments consequential on Clause 4 of the Bill. As your Lordships know, Clause 4 amends the Factories Act 1961 and associated legislation so that the provisions restricting women's hours of work cease to apply. Part II of the schedule makes the detailed amendments to the provisions, including Section 91 of the 1961 Act. The amendments simply tidy up and clarify the way in which the references to women are removed from Section 91. I beg to move.
§ On Question, amendments agreed to.
§ Lord Young of Graffham moved Amendment No. 9:
§ Page 11, line 27, at end insert—
|("1974 c. 37||The Health and Safety at Work Etc. Act 1974.||In Schedule 1, the entry relating to the Baking Industry (Hours of Work) Act 1954.|
|1975 c. 65.||The Sex Discrimination Act 1975.||In Schedule 5, paragraph 3.").|
§ The noble Lord said: My Lords, this is simply a drafting amendment. It is consequential on Clause 5 of the Bill which, as your Lordships know, proposes to repeal the Baking Industry (Hours of Work) Act 1954.
§ Part II of the Schedule to the Bill already contains two small consequential amendments to Acts which refer to the 1954 Act. This amendment ensures that two more such "consequentials" are added—they are Schedule 1 to the Health and Safety at Work Act 1974 and Schedule 5 to the Sex Discrimination Act 1975, both of which refer to the 1954 Act. I beg to move.
§ On Question, amendment agreed to.