Sex Discrimination Bill [H.L.]

HL Deb 11 March 1986 vol 472 cc589-617

House again in Committee on Clause 3.

[Amendments Nos. 17 to 20 not moved.]

Lord Wedderburn of Charlton moved Amendment No. 21: Page 4, line 17, at beginning insert ("Subject to section (Protection of existing conditions) below").

The noble Lord said: My noble friend Lord McCarthy spoke to this amendment in moving the previous amendments which the Committee approved. I beg to move it formally.

On Question, amendment agreed to.

Lord Wedderburn of Charlton moved Amendment No. 22:

Page 4, line 28, at end insert— ("( ) Where under any enactment or any subordinate legislation provision is made for the holding of a secret ballot to ascertain the opinions of workers before an exemption order may be granted to an employer, no order shall be made by the Secretary of State under subsection (4) of this section or section 6(3) below in respect of that enactment or subordinate legislation unless a secret ballot has been held to ascertain the opinion of the workers affected and a majority vote recorded in favour of the order proposed by the Secretary of State.").

The noble Lord said: This amendment is still as relevant to the Bill as before the passing in Committee of Amendment No. 9 and the debates which have preceded it. It arises from the circumstance that certain types of shift work have for many years been open to a special type of procedure. What is now Section 97 of the Factories Act 1961 is derived from the Employment of Women and Young Persons Act 1936 and an order made under that Act which is still in existence.

The provision has for many years opened the way to a vote by workers as to whether or not certain types of shift work should be accepted. At the moment it works in the following way. Under Section 97 of the Factories Act, the Minister may, where the employer applies, authorise the employment of women and young persons over 16 on a system of shifts which begin not earlier than six in the morning and end not later than 10 at night or two o'clock on a Saturday. Before the authority can be given, however, the Minister will have made provision by regulations for the workpeople to be consulted. Section 97(4) of the 1961 Act provides, as it has been provided since 1936, that the workpeople's opinion shall be consulted, for the ascertainment of their opinions by secret ballot before any application is granted under this section". The Health and Safety Executive now plays a role in granting that application, but that is not central to the point at issue.

On the basis of a ballot form which is provided for under the order of 1936 in an election which is run jointly by the employer and the workpeople's representatives, which of course in most cases is their union, unless a majority of workpeople votes in favour of the shift system the Minister cannot grant that application. It is perfectly true that at the moment that applies only to women workers. It is true also, however, that there is a case in some industries for considering whether it should not apply to men and women workers alike. We hope that that is one of the matters the Minister will review when considering equal protection orders.

However, on the present provisions the introduction of the scheme was of some importance. In introducing it in 1936, the Home Secretary of the day, who had responsibility, said that it was a very important provision and that a very careful procedure had been laid down. He added: All of us want to do the right thing for the workpeople, and hope every honourable Member will think that was a right thing to do".—[Official Report, Commons, 17/12/36; col. 1674.] He reminded the House of a number of statements by the chief inspector of factories, who had in previous years approved that experiment, as it then was, in factory legislation which proved, to quote the chief inspector, useful and beneficial to employers and workers alike".

It is true that the provision does not apply where there is, as the Act puts it, a recently-established or newly-established factory. The explanation for that, in the discussions of the procedure at the time, was that workers would then have the choice as to whether or not they went to work at a particular factory.

As it stands, it is a procedure that introduces something that the Government, in other circumstances, frequently state that they wish to pursue; namely, the involvement of workpeople, and here, the involvement of workpeople by way of a ballot. It would be incomprehensible if a government of the complexion of the present Government did not take seriously, as I am sure the Minister will, the statements of the Home Secretary at the time, Sir John Simon, as he was—the scourge of the General Strike. That is another example of how some provisions derive from a stable that is scarcely Bolshevik. I am sure that the Minister will remember the name of Sir John Simon when he comes to reply.

More important still, the Government like ballots. They are always going for ballots. Of course the Government like ballots according to their own rules and according to the results that they want. That is why the Government are so cross about the political fund ballots that workers in trade unions have held recently. Not liking the results, the Government have threatened to change the rules. However, when the Government see a provision for ballots where the result is to prohibit the prerogatives of management—as is the case here—then they do not seem to encourage ballots at all. The Government then deregulate ballots and sweep them away. They then call ballots outmoded and outdated.

When is a ballot outmoded and outdated? It is when the Government do not like it, and when it is a ballot that gives rights to workers in respect of management as against the relationship of workers within their own union. Whatever may be the merits of ballots within unions, this is a ballot that is an aspect of industrial democracy of a kind to which the Government say they are pledged, although when it comes to management the Government then talk about achieving their ends by voluntary means.

Here is a provision where workers have had the right to ballot in certain circumstances. It has applied mainly to women workers and to young persons. We say in this amendment that that right should not be taken away. The Committee has already voted in principle, and indeed specifically, for the protection of workers' rights, in the sense that workers must not be dismissed for refusing to do that which they could lawfully refuse to do under the present protective legislation. Surely the same principle applies to this amendment. It is true that the amendment achieves it in a slightly different way. The amendment says that where they would have the right to ballot on the shift work under existing provisions, they should have the right to ballot on the question of whether that provision should be repealed.

8.45 p.m.

That is a perfectly logical proposal. The Government can take their chances. If they are not afraid of what workers will say about their suggestions, the Government can accept the amendment. It has been said—not least by the Secretary of State—that many women want to work different shifts. Indeed we know that it is a fact in some industries that such is true. So why not have a ballot rather than sweep the whole thing away as being something rather tedious and not to be thought about after dinner?

This is a very serious matter. The balance of the evidence suggests, as many articles and studies have shown, that certain types of shift work involve great problems for all workers and especially women workers in the recent past and at the moment. There are unsocial hours, problems in relation to families, and problems in relation to transportation—problems that have affected the deliberations of this Committee earlier this afternoon, not to the Government's advantage.

This is surely a consequential provision. If the Government cannot accept it as it stands, will they come forward with their own way of consulting workers, who have a right to be consulted at the moment but who will lose that right if the Bill goes through as it is now drafted? If the Government can suggest a better way in which workers can retain their right to be consulted then of course we shall be only too happy to withdraw the amendment completely. I beg to move.

Lord Trefgarne

As the Committee will know, under the existing provisions of the Factories Act the Health and Safety Executive can issue special exemption orders that enable women to work outside the hours normally prohibited. Before doing so, the HSE must be satisfied that the wishes of the workpeople have been taken into account. But that is not the only means by which the normal restrictions can be varied. Section 97 of the Act also is concerned with authorising shift working involving hours that would otherwise be prohibited, and that section goes further than general consultation providing that, except in the case of newly-established factories, the majority of the workpeople concerned must have agreed to that pattern of working by means of a secret ballot.

It may be that the amendment aims to keep in being arrangements for the Section 97 ballots in certain circumstances. It is defective if that is the aim, partly because of its reference to exemption orders, as under Section 97, authorisations, not exemption orders, have been granted.

Even if we consider the spirit rather than the letter of the amendment, we are in difficulties. The effect would be that before the provisions as they affect women in Section 97 are repealed, as proposed by Part II of the schedule to this Bill, secret ballots must be held and majority votes obtained. But on what question would the workforces affected be balloted? They would need to be asked what their views were on the repeal of a section of the Factories Act that provided for exceptions from otherwise defunct legislation once the rest of the repeals proposed by this Bill have been implemented.

There would be no requirement in the case of workplaces where authorisations on the basis of a secret ballot had in the past been granted to test the views of the workforce on whether their working practices should be changed. The question to be answered in those workplaces, and in every other workplace currently within the scope of the Act, would be the same; the test would be of views on whether or not Section 97 should be repealed. That would not make sense.

It may be worth noting that since the 1936 order was introduced, between 1,800 and 1,900 authorisation orders have been issued—an average of some 40 each year. As they do not have to be renewed, and employers do not always notify the executive if they cease to work the shift system, identification of employees currently covered by an order would be time-consuming and difficult. If workers are to be affected in the future who can say who these workpeople are and how we identify them? I think what the noble Lord wants is that this repeal should take place only by means of a referendum; but I am afraid I cannot accept that that would be the right way forward. I hope that, on reflection, the noble Lord will agree and will not press his amendment.

Lord Mottistone

Perhaps I might be allowed to add to what my noble friend said. Reading the noble Lord's amendment, it strikes me that whereas it may be—although that is pressing it a lot—he has logic behind him in continuing his argument about Section 97 of the Factories Act being repeated, as it were, on a wider scale, and that in subsection (4) of this clause he has an outside of a point, surely he is being a little greedy in his amendment to include subsection (3) of Clause 6 which purely relates to an administrative process exercised by the Secretary of State; the relevant sections already having been voted into existence by Parliament, if that is relevant. Therefore, it seems to me that the noble Lord has spoiled his amendment by being over-ambitious, quite apart from the very sound arguments of my noble friend the Minister.

Lord Wedderburn of Charlton

I am grateful to noble Lords for their comments and especially the noble Lord, Lord Mottistone, for his paternal concern for the state of my amendment. He feels that it is over-ambitious or has vaulted too much. I thought the noble Lord said Clause 3 subsection (6) but I must have misheard him because there is no such subsection.

Lord Mottistone

I said subsection (3) of Clause 6, which the noble Lord includes in his amendment.

Lord Wedderburn of Charlton

I am grateful to the noble Lord. Now I follow him, but I do not agree with him about that. There would be a ballot—and this answers what was said by the noble Lord and by the Minister—of the workers concerned who would be subject to this procedure before an authorisation order could be granted to an employer. I am grateful to the Minister for correcting my amendment; it is defective in that it refers to an exemption order when it should be an authorisation order. Those workers concerned would be asked to ballot on whether or not the right under Section 97 would be taken away.

The noble Lord says that it is not clear what the question would be, and the amendment of course may be defective in another way: that there would be a need to give the Minister the power, if we did not have it under Section 97, to put an appropriate question. At the moment the question is clear. It is in the schedule to the order: those in favour of the shifts described and those against the shifts described. It could be either in that form or in the form of whether or not they give up their right to ballot. I do not mind. There are half-a-dozen questions which are appropriate. The noble Lord can take his pick.

The noble Lord said that it would be difficult to identify these workers. However, this shows the new approach that is coming out of the Secretary of State's department. It is always terribly difficult to know things. We do not know how many orders there are for women on shift work. We no longer have the figures for women who work by night. We do not know, how many people can be identified as coming under Section 97. It is terribly difficult to find out. Goodness me! in the old days the old Ministry of Labour would have known these things and the Department of Employment would have found out. If they did not know, they would have made sure that an investigation took place if it was needed. The modern view is rather like the attitude of the noble Lord in regard to our successful amendment. He is out of date. He is way back before investigations and inquiries. We are in favour of finding out. I do not believe—and this is a serious point—that it would be so impossible to find out who are these workers. What an idea that it is not possible! That is ridiculous.

The Minister said that ballots are now defunct; but all the Government have been doing for the past five or six years is inventing new ballots. Why does he say this ballot is defunct? It would put some curb or limitation—a reasonable limitation—upon management introducing shifts, or double shifts. That is why he says it is defunct. I am disappointed in the noble Lord because I thought that after dinner, after what we hoped before the meal would be a working meal when he could take in what happened this afternoon—

Lord Tregfarne

No.

Lord Wedderburn of Charlton

The noble Lord says, "No". I understand. The Minister is entitled to his rest just like anyone under the Factories Act at the moment; although their rights will be destroyed if the Bill goes through and the Minister has his way.

However, the Minister and the Government have had time to consider the state of the Bill and to come forward and say, "All right, we will consider this matter of workers who have the right to ballot. We do not think there is any need for it, although I have not heard any reason why they should not have it. I have heard certain difficulties about what is the question, and who are the workers, and there are certain practical problems, but I think they can be cured." No value judgment has been placed by the Government contrary to workers having this right. I respect the Government for that because they are in favour of ballots. Therefore, could not the Government, in the time they now have and in considering the amendments which have been passed today, beseech themselves to reconsider this issue and see whether a few ballots might not be a good thing for workers who have had the right to ballot in the past? I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3, as amended, agreed to.

Baroness Platt of Writtle moved Amendment No. 23:

After Clause 3 insert the following new clause:

("Further protection for existing women workers.

.The dismissal of a woman who—

1. (a) immediately before the coming into force of section 3 of this Act was employed in work to which any of the provisions referred to in that section applied, and
595
2. (b) remained continuously employed in the same work until the effective date of termination of her employment,

shall be regarded as unfair for the purposes of Part V of the Employment Protection (Consolidation) Act 1978 if the reason for it (or, if more than one, the principal reason) is that she had refused to work at hours at which her employment would have been unlawful if those provisions had remained in force.")

The noble Baroness said: I take the advice of the Government as to whether I should now put forward this amendment, proposing a new clause, in view of the passing of Clause 3.

Baroness Seear

Yes, go ahead.

Lord Trefgarne

Yes.

Baroness Platt of Writtle

I therefore beg leave of the Committee to move Amendment No. 23. While agreeing in 1979, and again now, that the Factories Act should be repealed in order to equalise the conditions under which both men and women work, the Equal Opportunities Commission then, as now, propose minimum standards of welfare, a code of practice in the longer term and transitional measures to protect women currently employed subject to the present restrictions.

While we welcome the freedom women would gain to work shifts if they wish, we are also anxious that some women may be subjected to pressure to work shifts against their will, and therefore be forced out of work. In the Shops Bill the Government made provision for the protection of existing shopworkers from being dismissed if they refused to do shop work on Sundays. We feel that similar protection should be available to existing women workers who are unable to work shifts or other hitherto protected hours. I emphasise that this protection applies only to those already employed in the industry so it would gradually become ineffective. I beg to move.

Lord McCarthy

We have no objection to this amendment, or had no objection to this amendment as it stood, but we believe that our own series of amendments which were passed earlier this evening in effect supervene this amendment. Nevertheless, since the noble Baroness has moved it, we see no reason why we should not support it.

All the arguments used by the noble Baroness are parallel ones to the amendments we advanced earlier this evening and which found the approval of the Committee. Everything involved in this amendment is a logical extension of what the noble Lord, Lord Glenarthur, said when he proposed a similar pattern of protection for existing workers in the Shops Bill. Indeed, we accept that in some ways the words in the amendment are an improvement on our drafting in the series of amendments that we moved earlier this evening. For example, we believe that her use of the term "immediately before" is probably better than our term "at the date of". Moreover, she specifies the need for continuous employment, and we accept that. In some ways the detailed provisions in her amendment are an improvement on those in ours.

9 p.m.

Our criticisms of the amendment of the noble Baroness are, first, that she protects only workers who refuse to do whatever they are asked; for example, to do night work. She does not seek to deal with the situation, as we tried to, in which employers may indirectly put pressure on workers; where they may assume that workers will not work night work and may engage other workers who will work night work and who are not covered by the protection of provisions that we are both trying to introduce. I feel that in that sense what she is saying is somewhat narrower than the provisions in our amendment.

Moreover, the noble Baroness stipulates only those who do the same work, so that, for example, minor job changes might mean that workers are outside the protection of the amendment; whereas we say quite clearly that the protection that we suggested earlier would arise unless a worker agreed in writing to do the work which previously was not allowable under the legislation that the Bill seeks to set aside.

But the most important objection that we have, and the reason why we argue that the amendment in general terms is narrower than ours, is that the noble Baroness is concerned only with protecting women workers from the consequences of the Government's legislation. She is not concerned with what would happen as a result of Clause 4 of the Bill, which would remove the protection that exists in the baking industry under the 1954 Act; whereas our series of amendments were designed to do those things. Nevertheless, in general terms, if she wishes to press the amendment on the Government, we cannot say that we are against it.

Lord Trefgarne

I recognise that my noble friend, speaking from the particular point of experience and authority that she does, feels strongly. The amendment presents us with difficulties. The Government's general views on this matter were deployed at an earlier stage this evening on similar amendments. However, I give her an assurance that if she agrees to withdraw the amendment, I shall happily receive her between now and the Report stage of the Bill to discuss the matter further, or, if she would prefer, ask one of my noble or right honourable friends to receive her in the Department of Employment to discuss the point.

Baroness Platt of Writtle

I thank my noble friend, and, with the leave of the Committee, withdraw the amendment. I shall take pleasure in visiting the department to discuss the matter.

Amendment, by leave, withdrawn.

Clause 4 [Repeal of Baking Industry (Hours of Work) Act 1954]:

The Deputy Chairman of Committees (Lord Hayter)

It may be helpful if I point out to the Committee that if Amendments Nos. 24 and 25 are agreed to, they would fall if Amendment No. 26 were carried.

Lord McCarthy moved Amendment No. 24: Page 4, line 32, at beginning insert ("Subject to section (Protection of existing conditions) below").

The noble Lord said: This was part of a series of amendments which, in effect, I moved on Amendment No. 10 which was passed by the Committee and therefore is entailed in that amendment. I move Amendment No. 24 formally.

On Question, amendment agreed to.

Baroness Turner of Camden moved Amendment No. 25: Page 4, line 32, leave out from ("1954") to end of line 36 and insert ("(which imposes restrictions on the hours of work of bakery workers) shall apply equally to men and women workers.").

The noble Baroness said: The intention of this amendment is to ensure that the restrictions on night working for men which apply in this industry should apply equally to women. The issue of restrictions on night baking has a long history. There were numerous inquiries into night baking and conditions in bakeries during the last century, and there has been a series of committees in this century: the Mackenzie Committee in 1919, the Peat Committee in 1925, a committee on night baking in 1951 and eventually, of course, we had the 1954 Act.

The baking union, which represents many people working in the industry, is concerned that if the 1954 Act is repealed that will open up the possibility of permanent night work. The removal of the 1954 Act and the protection that it provides could put increased pressure on some parts of the workforce to increase already long hours, and those hours are exceptionally long. I am advised that in the bread, flour and confectionery sector 49.9 hours is the average working week. That is according to the New Earnings Survey 1984; and those are the highest hours in manufacturing industry. Additional problems will also be created if food is to be retailed on a Sunday, and thus Saturday night baking becomes a real issue. At present that occurs only at Christmas and New Year, and that is by agreement.

Although it may be true that some people prefer working night shifts, they tend to be in a minority. Since the mid-1950s I believe that the industry has generally regulated night work, and the vast majority of people currently employed in the industry have therefore based their lives around the 1954 Act. The Government may say, as I believe that the Department of Employment has already said, that they believe that the Act is outdated and unnecessary; that the particular problems of the industry which the Act sought to solve in the 1950s are no longer prevalent; and that it is anomalous that the baking industry should be singled out for special treatment. I may say that the union emphatically believes that that is not so, and it has been willing to give evidence to the department to prove its point.

Moreover, there does not seem to have been pressure from employers' organisations either for the repeal of the 1954 Act. As I understand it, the National Association of Master Bakers is officially opposed to its repeal, and main plant bakers who produce about 60 per cent. of the country's bread are indifferent. There has been no pressure whatsoever from either side of the industry for repeal of the restrictions contained in the Act.

It would be seen as a grave worsening of conditions for bakery workers were it to be repealed. I beg your Lordships not simply to sweep those protections aside as an afterthought in a Bill that has been about something entirely different. The European Court decision on sex discrimination in collective agreements has nothing whatsoever to do with night working in bakeries. It is an attempt to deregulate by stealth and, in my view, it should be strongly opposed. However, it is our view that we should support what the EOC recommended some years ago and extend to women the protection that exists for men against being required to work at night in bakeries. In that way, the equality argument is satisfied. If it is felt, as it may well be felt, that the Act is outdated and should be repealed, then all I can say is, "Please, do not do this without further investigation". We have, again, legislation that has been in existence for a long time after a series of committees have looked at conditions in the industry. The union, representing members in the industry, has no objection, I understand, to further investigation into the general situation. What it does object to—and I would also urge your Lordships to object to it—is having this legislation swept aside without adequate investigation. Pending such investigation, the equality argument should be satisfied by extending the protections to women. I beg to move.

Baroness Platt of Writtle

Do I understand that my amendment, Amendment No. 26, together with the consequential amendment, Amendment No. 32, must be taken at the same time?

Viscount Long

No.

Lord Trefgarne

That is entirely a matter for my noble friend. If she chooses not to speak now, may I reply to the amendment proposed by the noble Baroness? Clause 4 of the Bill aims to repeal, as the noble Baroness understands, the Baking Industry (Hours of Work) Act 1954. That Act is framed to apply only to male bakery workers and makes specific reference to the exclusion from its scope of women and young people, whose hours are regulated by the Factories Act 1961. If the 1954 Act continued to control men's hours in baking while those provisions in the 1961 Act dealing with women's hours of work were repealed, a discriminatory anomaly would arise. Men's hours would continue to be controlled, but it would be entirely open to employers and their workforces to negotiate whatever hours of work for female employees they saw fit. This would clearly be nonsense.

There are two ways out of this conundrum. The first is to repeal the 1954 Act, which is the way the Government have chosen. The second is to extend the 1954 Act, as proposed by the amendment. Clearly, extending the scope of the Act, already more than 30 years old, is in direct conflict with our policy of removing unnecessary burdens on business to encourage enterprise to thrive. I do not claim that repeal will galvanise the baking industry overnight. Obviously, it will not. But to keep in being and, in some respects, to extend the paraphernalia of exemptions by collective agreements and the liability to official intervention that keeping the Act would entail is clearly not the right course. It would simply amount to yet another variation on the theme of Government-imposed regulation on enterprise which acts as a brake on the wealth and job-creating process.

There is another strand to our argument that extending the scope of the 1954 Act would be wrong. It is our view that we can no longer justify this statutory underpinning of the baking industry's collective bargains. After all, baking is alone among all other sectors of the economy in having this sort of statutory provision. As I have said, the Act is more than 30 years old. It is perfectly true that in the first half of this century a number of committees examined the problems of the industry and that the 1954 Act followed the last of these. It is equally true that none of the committees judged that there were any good grounds for saying that nightwork was detrimental to the health of the operatives.

Let us be clear that the 1954 Act came into operation because of the difficulties the industry faced in reaching sensible and workable agreements on hours of work. The Rees Committee in 1951 concluded: Agreement is always a more suitable method of regulation than legislation and if the Industry had not shown so clearly in England and Wales its inability to reach agreement, the proposals we have made would be unnecessary. We trust that the influence of this, the third and we hope the last Committee on Night Baking, will stimulate progress towards an effective system of joint organisation and negotiation which is desirable in the best interest of the Baking Industry and the public which it serves".

Lord Wedderburn of Charlton

Would the Minister, in quoting the extract from the Rees Committee report, not agree that if he read out the rest of the report we would find that the committee recommended that there should be legislation; that the Government, in moving that legislation, accepted that it was the basis of collective bargaining; that such legislation remains the basis of collective bargaining; and that before it is swept away and without deleterious effect perhaps another committee should look at the matter in the way that the Rees Committee did?

Lord Trefgarne

No. The trouble was that it was not possible to reach a sensible collective bargain in this matter and that is why legislation had to be introduced as the basis upon which a collective bargain could be agreed. If we had to introduce legislation for every collective bargain that now exists in British industry we should be very busy indeed.

With this view in mind, the 1954 Act was drafted to enable the Secretary of State to exempt from its provisions employers who are covered by an effective voluntary agreement which makes the application of the Bill unnecessary. Today over two-thirds of the employers in the industry have hours of work which are set by collective agreements and are therefore exempt from the provisions of the Act. Indeed, the Equal Opportunities Commission in 1979 found that agreements between employers and unions have replaced the provisions of the Act throughout a large part of the industry.

We believe therefore that the industry now has that effective system of joint organisation which the Rees Committee hoped would develop. Furthermore, there is no reason to believe that, without the underpinning given to these agreements by the Act, employers would impose substantially different hours of work. I believe that these provisions ought now to be swept away and I hope that the noble Lord will not press his amendment.

9.15 p.m.

Baroness Lockwood

I am rather sorry that the noble Baroness, Lady Platt, did not speak to her amendments because that would have given us an opportunity to assess the relative merits of the two sets of amendments.

It seems to me that the Minister has now preempted any discussion of her amendments because he has in effect turned down any likelihood of amending this section of the Bill. The Minister has again referred to the report of the Equal Opportunities Commission in 1979, but of course the recommendation of that particular report was in relation to the baking industry—that the protection should not only be kept but should be extended to women as well. Everyone will agree that it is a nonsensical situation that women are less well protected than men in the baking industry.

As the Minister has said, there are two ways of action: repeal the 1954 Act or extend it to women. It seems to me that in the light of the recommendation of the Equal Opportunities Commission and of what has been said this evening the sensible and constructive course would be to extend it to women.

Lord Mottistone

I should like to take issue with the noble Baroness on one small point, which is her suggestion that this proposal is brand new and has been thrust upon people and that we should have more time for discussion. Discussions about this matter have been continuing on and off both unofficially and sometimes officially. I had the privilege of being the employers' secretary for the Joint Industrial Council for the biscuit industry for some years during the last decade and from time to time we discussed this very point. Because we had a collective agreement which effectively pre-empted the need for that particular Act, there was really no need to make a great fuss about it. At that time also there was no real suggestion that there were women in large numbers who wanted to work at night. I have since found, rather interestingly, that there are rather more than one ever thought who do want to work at night. So that is a new factor which changes the situation.

As my noble friend the Minister and the noble Baroness, Lady Lockwood, said, there are the two alternatives. It seems to me quite strange that the baking industry should have a particular Act of Parliament when nobody else has one in this particular respect. I should have thought that as collective bargaining is now in a much better form than ever it was earlier in the century, the arguments for sweeping away this Act of Parliament on the principle that we are over-legislated for anyhow is a very sound one. I should have thought that the solution which the Government have produced is much the best one and I hope very much that noble Lords opposite will withdraw their amendment.

Lord Wedderburn of Charlton

Before the noble Lord sits down, perhaps I can ask him a question. I shall preface my remarks by saying that, as the noble Lord has said that he knows of cases of women wanting to do night work and so on, I hope that he will make that sort of experience concrete and feed it into the discussions which must take place if the Government are to take seriously anything that happens in this Committee.

I should like to ask the noble Lord this question. He has mentioned the biscuit industry, which I believe is governed by orders under the Factories Act and not under the 1954 Act. In his experience of employers does he know of any communication—at least any major communication—from any part or section of the baking industry employers which has asked for the repeal of this legislation, which is an integral part of the bargaining structure in that industry and not merely an adjunct to it?

Lord Mottistone

Certainly there have been parts of the biscuit baking industry which have sought to have it abolished, but they have not made a great issue of it. We have had a perfectly good collective agreement through the JIC, so there has been no need to make a great issue of it. On the other hand, there has not been suitable legislation on which to tag it, and it does not deserve a Bill of its own. When now confronted with the fact that the ladies want to be treated just like the men, which is a new idea which has been growing in recent years, it provides an opportunity for sizing up the situation. All my colleagues in the biscuit industry, whom I do not now serve directly in the way that I used to do, are delighted with the legislation as it stands, and welcome very much Clause 4 of the Bill. Perhaps that answers the noble Lord's question.

Baroness Turner of Camden

I am rather disappointed with the response that we have received from the Minister this evening. He has spoken often about burdens on industry. I draw attention to a copy of the British Baker which is the organ of the baking industry. I am looking at the issue for 22nd February 1986 which says that the national association's official line on the Baking Industry (Hours of Work) Act 1954 is that it would oppose a repeal, and to the best of my knowledge that is still the situation. As I said earier, there is no pressure at all from either side of this industry for any change.

On the other hand, let me repeat what I said earlier. As far as the union at least is concerned, it is willing to have an investigation. Nobody is saying that we should continue with this legislation. If, indeed, it is out of date, then let us look at it. However, let us not sweep it aside as a part of a Bill on something quite different; namely, sex discrimination in collective agreements.

Therefore, while I do not intend to press my amendment this evening, I think that it would be rather a good idea to allow the noble Baroness, Lady Platt, to move her amendment. In order to do that, I propose to withdraw my amendment and to allow the noble Baroness to move hers. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Platt of Writtle moved Amendment No. 26:

Leave out Clause 4 and insert the following new clause:

("Amendment of Baking Industry (Hours of Work) Act 1954.

.—(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 women to whom the Baking Industry (Hours of Work) Act 1954 applies.").

The noble Baroness said: I beg to move Amendment No. 26 and to speak to Amendment No. 32 which is consequential. Clause 3 removes restrictions on the hours and times of work of adult women and my noble friend the Secretary for State said, at Second Reading, that with the repeal of those restrictions for women a major anomaly would occur if the Baking Industry (Hours of Work) Act, were not also repealed, because it would continue to prevent men working in night bakeries while the women's employment would be unregulated. The Equal Opportunities Commission felt that that anomaly would be better removed by including women within the protection rather than removing both sexes. We feel that it is necessary to protect them from permanent nightwork.

At Second Reading, my noble friend the Secretary of State stated that over two-thirds of the employees in the industry work hours set by collective agreements which are, therefore, exempt from the Act's provisions, and that assertion has been repeated tonight. That may be so, but just as with our present Sex Discrimination Act the provisions of which are there as a legally enforceable fall-back, the same must be borne of the bakery Act. If it were repealed, there would be no obligation on the employer to consider seriously the proper control of permanent night work. The Act was brought in for men only in 1954 and we regard it as still relevant and necessary.

At a time when, by new legislation, we are making it possible for women to work at night, surely it would be prudent to keep the existing protection for men and to extend it to women rather than sweeping away all protection at one fell swoop. That would make it more difficult for women to work in the baking industry rather than less so, which is not, I imagine, the intention of the Bill, I beg to move.

Lord Trefgarne

I do not really have very much more to say to my noble friend in addition to my remarks on the earlier amendment on this topic. However, let me just say this. The special provisions which we are now seeking to repeal with regard to the bakery industry are, as my noble friend Lord Mottistone has said, unique to the baking industry. That is not quite correct. I must not exaggerate the position. The noble Lord, Lord Wedderburn, referred to the sheet glass industry in his earlier remarks, and I am advised that there is indeed certain statutory provision with regard to their hours of work; but that is a different matter because I am told that that particular provision stems from a certain international agreement which places an obligation upon us to have that legislation in place. Of course that is not the case so far as the bakery industry is concerned.

What my noble friend Lady Platt is seeking is to extend the essentially unique provision that we have made for the bakery industry. That unique provision has been falling into increased disuse in recent years. As I explained during my earlier remarks, the majority of the baking industry—and I am told an increasing proportion of the industry—now rely upon negotiated agreements and do not therefore need the provisions of this Act. I anticipate that that will be increasingly the position as the years pass.

The Act in due course may very well fall into almost complete disuse. I think we are right therefore to propose to your Lordships that this provision should be repealed. If we are going to do that, clearly I could not agree that we should extend its provisions to cover the employment of women in this particular industry, and in this industry alone. I hope that my noble friend will be persuaded by that and not seek to press her amendment.

Baroness Lockwood

If the noble Minister believes that this particular protection is falling into disuse, or is likely to fall into disuse as the number of collective agreements increase, would it not be a better approach to allow it to fall into disuse instead of amending the provision under the present Act? The noble Baroness, Lady Platt, referred to the fear of the Equal Opportunities Commission that if we were to remove the protection now it might lead to permanent night working, and almost nothing but night working, in the baking industry, which would be a deterrent to many women joining the industry.

The noble Lord, Lord Mottistone, has rightly said that among some women there is a desire to work nights. It suits their particular family and domestic arrangements. On the other hand, there are other women who find it absolutely impossible to work nights because of their family commitments. Therefore it seems to me that in the light of developments it would be much better to extend this protection to women until such time as there was no need for any legislation in the baking industry to cover night working.

Baroness Seear

I should like to ask the Minister to look again at his argument that it is not necessary to have the legislation because collective agreements are, as I understand him to be implying, following the same line in control over hours. But of course they are only following this line because the legislation is there. If the legislation were removed the collective agreements might over time—and perhaps not over a very long time—take on a different complexion altogether. You have to see the two things together. The way in which collective bargaining has developed is because of the existence of the legislation. If you remove the legislation, in five years' time collective agreements will probably read quite differently.

Lord Trefgarne

I have made it clear that this provision applies to the baking industry alone. This special protection which the noble Baroness is seeking is for the baking industry alone, and I do not think that that is right or proper. If I could follow the remarks of the noble Baroness, Lady Lockwood, the one option we do not have, I suggest, is to do nothing, because that would mean that the employment of men was controlled in the baking industry but not of women. That is not, I think, the arrangement she wants.

Baroness Lockwood

I am sorry if I was misunderstood. I certainly did not intend to imply that we should do nothing. Indeed, I think my final remarks were concerned to extend the protection of women, because I am well aware of the anomaly and some of the problems that have been caused.

9.30 p.m.

Lord Wedderburn of Charlton

This Committee must press the Minister and the Government to think again on this matter. The record will show by the time this clause is completed in Committee an overwhelming case against merely the sweeping away of the 1954 Act in regard to the baking industry. I limit myself to two matters because the noble Baronesses, Lady Seear and Lady Lockwood, and others have made the point. But these are still not understood by the Minister because of his latest intervention.

First, the idea that collective bargaining is counter-posed to legislation in this industry is false. It is historically false, it is industrially false and it is even conceptually false. The Minister seems to have some complaint that he finds a piece of legislation that deals with an individual industry. That is the attitude which he must somehow overcome, with the leave of his noble and right honourable friends. It is legislation which is concerned with particular industries and real people in particular situations that we are asking the Government to consider and have made them consider, so that collective agreements and legislation all play a part in life. In the baking industry they play a part integrally in the arrangements in the industry and they are directed at night work. That seems to me what is also wrong with the noble Minister's argument, which has been repeated again and again by the Government.

The Government say in relation to night work that what is wrong with this piece of legislation is that it applies to men only. We follow them a long way with that. It applies to men only, so the Government say: "Let us get rid of the legislation without looking to the problem that the legislation is about". They are considering it merely from the formal argument of discrimination, without asking whether it should apply to others. It is as though they had found a house in which only the woodwork was painted but yet some part of the woodwork, because it was discriminated against, had not been painted. Instead of saying, "Let us paint the rest of the woodwork to care for it against the weather of night work and the strains of the weather" they say, "We will rip the woodwork out. Get rid of it and get rid of the protection".

The noble Lord the Minister laughs. He thinks this is a funny matter, but it is not very funny to the baking industry workers. It is not funny to the workers organised in their trade union. The union has given notice, not that it wants trouble in this industry—indeed one could hardly find an industry where the arrangements have not improved so directly and clearly—but that there will be trouble. The employers know this as well. Why the Minister cannot produce a letter from the Employers' Federation and from the majority of employers is clear, because most employers know that it will be the cowboys who force women and men into night work who will cause the trouble. Then the Government will complain. They will say, "Look at those workers going on strike". Or, "Look at those workers demanding that the employers should protect them against competition". Do the Government believe in a flaw to competition? That is what faces them, not a unique piece of legislation. Each industry will have its problems. Each set of workers and employers will have their problems. But this is a problem that faces the Government for which they have no friends among the employers, among the workers; they do not even have enough friends behind them. If they go on with this issue on baking they will be defeated and soundly trounced on that as well.

Lord Mottistone

The noble Lord carries himself away as though this were a great theatrical performance. This is not so. It is nonsense to say that the employers do not back the Government. The employers do back the Government. Noble Lords opposite forget that the 1954 Act came about quite soon after the war when the old methods of manufacture were still in use. There has been a great change in the baking of biscuits and also in the making of bread. There are more preservatives, there is much less need for night work than there ever was in the 1920s. As a result, because it is more expensive to have night work, the amount of night work is at the minimum that the companies can reasonably afford. The whole pattern is nothing like it was when the foundations for the 1954 Act were created. It will become more so rather than less so.

We want to look forward rather than backwards. Do not let us assume that there are a lot of cowboys trying to compete. The cowboys have all been swept away. They just do not exist in these sorts of industries in the way that they used to. Noble Lords opposite are living in the past. It is a great shame because the only future for this country is to live in the future. I trust that my noble friends will be convinced that this amendment is not going to help.

Lord McCarthy

The noble Lord really cannot expect to come to this House in Committee at this time of night and get away with those things. He is going back again into the dichotomy, into the contradiction, which we have had all day long on that side of the Committee. First of all, they say that nobody wants to do these things so therefore we can get rid of the protections. Then they say that if we are not allowed to get rid of the protections then nobody will be allowed to do what it is essential that they should do. You cannot have it both ways.

The fact is that baking is special. The Minister seems to be annoyed at the fact that these regulations are concentrated in the baking industry. That is not an accident. The workers in the baking industry and farsighted employers in the baking industry have been trying to get regulations of this kind from 1844—and they got them in 1954 and they got them from a Conservative Government.

The fact is that there is a congenital predisposition in the baking industry, particularly among the small-scale employers, to have continuous night work in appalling conditions. The large bakers, I quite agree with the noble Lord, do not need to do it because they are too efficient to need it. But the small cowboys do! We know and we have ample evidence that individual members of the master bakers, for example, who represent on the whole the small people as against the federation who, on the whole, represent the big people, have tried to get the present collective agreements reduced so that they can introduce night baking on a wide scale and they have been prevented by the present legislation.

They are the cowboys, the small boys. If this legislation is got rid of by this Bill that is what will happen. It is perfectly true that the large bakers do not need night work and they do not need the crippling conditions of night work. But the cowboys do and this Government, as always, when they have to choose, choose cowboys.

Baroness Platt of Writtle

From all sides of the Committee there have been pleas to the Government to think again. I will withdraw this amendment with the leave of the Committee this evening; but I am dissatisfied with the Government's reply. I reserve the right to bring it back and I shall be very likely to do so. I hope very much that in the meantime the Government will reconsider this in the light of what has been said this evening. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 4 shall stand part of the Bill?

Lord McCarthy

The Committee will not be surprised to learn that we oppose this clause standing part of the Bill. The purpose of Clause 4 is to abolish the 1954 Baking Industry (Hours of Work) Act. The Government are very fond of saying that things are out of date, old-fashioned and so on. We would say that in the present context the regulations in the 1954 Baking Industry (Hours of Work) Act are eminently reasonable.

What do they mean? They mean, in fact, that subject to the negotiation of exception orders—and nobody can tell you of a firm which had the agreement of its workers but which could not get an exception order; and nobody can even tell you of a group of workers who, when they were consulted in the proper way, did not accept that there was a need for an exception order—and unless you can get such an order, certain minimum restrictions are placed upon the use of night work and the extent of night work in this industry: that certain days shall not be worked and that certain bank holidays shall be allowed.

The provisions of the 1954 Baking Industry (Hours of Work) Act, we would say, are eminently reasonable at the present time. What the Government want to do is to abolish these provisions, and to abolish them by a side wind. Because they are asked to do something about a decision of the European Court, they drag into this Bill all sorts of provisions which are not essential, which are not necessary and which do not derive from the decisions of the European Court, because that is the way they look at legislation. Every time they are forced to introduce a piece of legislation they ask what else they can get away with in that context.

The Government tell us, and the Minister this evening has told us, that the whole history of exploitation and excessive use of night work in the baking industry is in no danger of being repeated. That is essentially what the Government are arguing: we can get rid of these regulations and nothing will follow, or very little will follow.

What is the position today, for example, in relation to hours of work and conditions in the baking industry? The Bakers' Union recently did a survey, not of the master bakers, who are the tail-end of the trade, and certainly not of the non-union employers, to whom they could not get access anyway. They did a survey of the Federation of Bakers—the best end, one might say, of the trade; that area of the large employer where the unions are most well represented. And what did they find in respect of hours of work? They found that so far as day work is concerned—I am not talking yet about night work-10 per cent. of the federated employers are working below 50 hours a week; that 30 per cent. of federated employers are working between 50 and 60 hours a week; that 40 per cent. of baking employees are working between 60 and 70 hours a week, and that 20 per cent. are working between 70 and 76 hours a week. Those are the hours of day work in the baking industry at the present time.

If you look at nights there is the same range of distribution, except that it starts at a rather lower figure. That is, as we all know, and as I have said, the good end of the trade, and it is the good end of the trade with the present legislation of the 1954 Baking Industry (Hours of Work) Act.

If you go outside the federation, what do you find? In the National Association of Master Bakers and in the non-unionised section of the trade you find conditions of work and hours of work which are significantly worse than anything which occurs at the federation end. A recent controversy, for example, has arisen in Barnsley in the non-unionised end of the trade, where young people are being paid £1 an hour for 50, 60 or 65 hours a week. That is the true situation in the baking industry; that is the situation which the Government say is in no danger of getting worse.

Of course, we do not suggest that the 1954 Act transformed industrial relations in the baking industry, and we certainly do not suggest that it removed excessive hours of work; but because there was the 1954 Act there was a need, if the employers wanted to have night work, to get union agreement, to get exemption orders. And, as the Minister has said and as the Government have said on many occasions, as a result of that 70 per cent. of the workers in the industry are now covered by collective agreements which in effect regulate the degree of night work.

But the union argues that the position will significantly deteriorate if the provisions of the 1954 Act are repealed. Why? First, because the pressure for early starts and for continuous shift work is growing. Why is that so? It is because the employers see this as a way of cutting staff ratios still further. And why, in turn, is this so? It is because they believe that a significant number of employees who are now employed on day work can in fact be done away with and their jobs can be linked with workers on extended night work, and therefore that staff ratios can be reduced.

As evidence of this we would pray in aid the fact I have mentioned in this Chamber before, that in 1980 there was a major dispute with the master bakers in which the master bakers wished to introduce an extended working-hour pattern and a significant use of night work. That was frustrated only when the union was able to argue that in fact the 1954 Act would not accept it and was not compatible with it.

The union believes—and it seems to me that it has significant evidence to support what it says—that the moment the Baking Industry (Hours of Work) Act 1954 is repealed it will be faced with demands from the National Association of Master Bakers significantly to change the present collective agreement. Secondly, we know that the average hours worked in the industry are still in the region of 50 hours per week. We know that only among merchant seamen and road transport workers are hours of work longer than that.

9.45 p.m.

We know that, given the move towards Sunday opening which the Government have introduced and will carry forward as a result of their Shops Bill, there will be a significant increase in the pressure for extended overtime and night work on Saturdays. We know that, given the rise in unemployment, and the Government's legislation which significantly reduces the power of trade unions to defend their members, it is difficult, in the absence of legislation, for the Bakers' Union to believe that it can prevent a significant deterioration in working conditions in general and in hours of work in particular. That is essentially our argument against the clause.

In our amendments, we have tried to take the Government on their face value. The Government say to us that they want only to abolish the regulation, not because they are against regulation and against the protection of workers and not even directly, when we challenged them, because it is all part of the burdens on business which of course were never mentioned, as we see if we look at the Government's famous publication Lifting the Burden. No employer who was interviewed in that survey said that he was bothered about the Baking Industry (Hours of Work) Act 1954, but if we press the Government on that they say, "No, it has nothing really to do with that; it is to do with the fact that we want to be fair as against men and women. As we are taking action to remove the protection of women against night work, we must take action in the baking industry to get rid of the legislation which protects men in relation to night work".

Our argument is that we have, as I say, moved amendments to test the Government. We have said to the Government, "If that is your justification, you can accept our amendment which will extend the protection so that it does not merely protect women but protects men". We know, and we knew before we put down such amendments, that the Govenment are not interested in that argument. The measure is, in fact, all part of the argument for deregulation.

I want to make two final points. First, as usual, what the Government want to do, and are suggesting in the Bill, is against all international trends. The Government are, as ever, out of step with all progressive governments. In Belgium, Sweden, Finland, Norway and France all such night work is prohibited. Always, as the noble Lord, Lord Wedderburn, has said, extensions of protection for workers in baking, as elsewhere, have been introduced after detailed investigation and inquiry into the consequences of night work, continued shift work and long working hours. When investigations and inquiry uncover the fact that not all workers concerned, but a significant minority, are seriously disturbed as a result of what is being done, one country after another suggests restrictions and controls; but of course this Government do not want to keep in step with progressive governments elsewhere. This Government have their ideology and they press on. Facts are merely an embarrassment.

My final point is, let us not record the fact—because it would not be true—that the trade union in the industry concerned is opposed to any form of inquiry or any form of change. Where employers need more flexibility, where employers can significantly argue that the present system of exemption orders is not what they require, the union is not saying—and certainly we are not saying—that there is not a case for change, flexibility and modification. What we are saying is that there is no case at this moment for this kind of sweeping, totally unresearched, uninvestigated, ideological commitment to the abolition of all restrictions.

Lord Trefgarne

I hope your Lordships will forgive me if I do not reply at the same length as the noble Lord in introducing his remarks. The fact of the matter is that Clause 4 of the Bill repeals the Baking Industry (Hours of Work) Act 1954. The Act, as the noble Lord well knows, covers the manufacture of all bread and flour confectionery, but excludes biscuits. Women are excluded from the Act, being generally prohibited from night work by the factories legislation at which we have already looked under Clause 3.

The essence of the objection to the noble Lord's point of view is this. If this Act remains on the statute book while the restrictions on women's hours are repealed, a major anomaly will result. As I have already indicated to your Lordships, the Act would prevent men working in night bakeries, for which no exemption had been granted by the Secretary of State under the Act, while women's employment would be entirely unregulated. I cannot think that that is what the noble Lord has in mind, and I hope your Lordships will agree with me, therefore, that this clause ought to remain in the Bill.

Clause 4 agreed to.

Clause 5 [Consequential amendment, repeals and saving]:

The Deputy Chairman of Committees (Lord Ampthill)

Before calling Amendment No. 27, I should remind the Committee that if it is agreed to I cannot call Amendment No. 28.

[Amendment No. 27 not moved.]

Lord McCarthy moved Amendment No. 28: Page 5, line 1, at beginning insert ("Subject to section (Protection of existing conditions) below")

The noble Lord said: This is one of the many amendments to which I spoke in relation to Amendment No. 10, which was passed by the Committee. Therefore, I wish formally to move Amendment No. 28. I beg to move.

On Question, amendment agreed to.

Clause 5, as amended, agreed to.

Baroness Platt of Writtle moved Amendment No. 29:

After Clause 5, insert the following new clause:

("Code of Practice.

.—(1) The Secretary of State may issue, or require any body nominated by him (known for the purposes of this section as the "nominated body") to issue, a Code or Codes of Practice containing practical guidance in respect of hours of work for men and women for either or both of the following purposes—

1. (a) to ensure that the needs of workers with domestic and family responsibilities are accommodated;
2. (b) to ensure minimum standards of health, safety and welfare.

(2) When the Secretary of State or the nominated body propose to issue a Code of Practice they shall prepare and publish a draft of that Code, shall consider any representation made to them about the draft and may modify the draft accordingly.

(3) In the course of preparing any draft Code of Practice for publication under subsection (2) the Secretary of State or the nominated body shall consult with—

1. (a) such organisations or associations of organisations representative of employers or of workers; and
2. (b) such other organisations or bodies, as appears to them to be appropriate.

(4) Where the Secretary of State has nominated a body to issue a Code of Practice and that body determines to proceed with the draft, it shall transmit the draft to the Secretary of State for Employment who shall: —

1. (a) if he approves of it, lay it before both Houses of Parliament; and
2. (b) if he does not approve it, publish details of his reasons for withholding approval.

(5) If, within the period of 40 days beginning with the day on which a copy of a draft Code of Practice is laid before each House of Parliament, or, if such copies are laid on different days, with the later of the two days, either House so resolves, no further proceedings shall be taken thereon, but without prejudice to the laying before Parliament of a new draft.

(6) In reckoning the period of 40 days referred to in subsection (5), no account shall be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days.

(7) If no such resolution is passed as is referred to in subsection (5), the Code shall be issued in the form of the draft and the Code shall come into effect on such day as the Secretary of State may by order appoint.

(8) Without prejudice to section 6(3) an order under subsection (7) may contain such transitional provisions or savings as appear to the Secretary of State to be necessary or expedient in connection with the Code of Practice thereby brought into operation.

(9) The whole or any part of the Code of Practice issued under this section may be revised and such revised Code issued and subsections (2) to (8) shall apply (with appropriate modifications) to such a revised Code as they apply to the first issue of the Code.

(10) A failure on the part of any person to observe any provision of a Code of Practice shall not of itself render him liable to any proceedings; but in any proceedings before an industrial tribunal any Code of Practice issued under this section shall be admissible in evidence, and if any provision of such Code appears to the tribunal to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.")

The noble Baroness said: Similarly to the last amendment, the code of practice was suggested by the EOC in 1979 when suggesting a repeal of the Factories Act to equalise conditions of work between men and women. They felt that the protection of both sexes was sensible and that the preparation of a code of practice, to be approved by Parliament, would ensure that employers paid due regard to the health and welfare of their employees in the changed circumstances after the repeal of the Act. I refer to such matters as welfare provisions, meal breaks, transport to and from work in the escalating climate of violence in our country today—and this would be true for men as well as for women—health and safety provisions and provision for family responsibilities, including the question of child care. We mentioned a nominating body and we had in mind, possibly, ACAS as that body.

The code of practice that we are suggesting would be a longer term measure, just as the Equal Opportunities Commission's code of practice was a longer term measure after the passing of the Sex Discrimination Act. It would therefore give time for consultation with the parties concerned, who are closely involved with the actual facts and conditions of work for men and women, and would allow for proper protection of conditions of work for both sexes. I beg to move.

Baroness Lockwood

I should like to support the noble Baroness in this amendment. It is in line with what I have been saying in relation to the various debates we have had during the course of the day.

The important part of the amendment is to be found in subsection (1)(a) and (b):

1. (a) "to ensure that the needs of workers with domestic and family responsibilities are accommodated;
2. (b) to ensure minimum standards of health, safety and welfare".

It is important in the context of this amendment to emphasise that it refers to the needs of workers—both men and women—with domestic and family responsibilities. This is in line with the growing move—not perhaps an avalanche—for men to take much greater responsibility within the family for caring for children and perhaps for elderly people, relatives and so on who are in need of constant attention. Therefore I hope that we shall treat this part of the amendment as being of great importance.

The amendment refers to, minimum standards of health, safety and welfare". It is recognised that certainly during the course of night work we do not have operating in factories the same standards of welfare as operate during the daytime. There are not the same facilities. Very often there are not the same welfare facilities. The same managerial and personnel facilities are not available for night workers. This needs to be taken care of.

I noticed that in moving the amendment the noble Baroness referred to the possibility of ACAS being the nominating body which would be responsible for the code of practice. I should have hoped that the Health and Safety Commission would be considered as a suitable body because codes of practice under the health and safety legislation have much more force in the tribunals than other codes of practice. However, that is a detail; and if the Minister were favourably disposed to the amendment it could be looked at.

The Minister will no doubt say in response, as he seems to have been saying all day, that this amendment is unnecessary and that we want to remove from industry restrictions that impede individual decision making and impede the development of collective agreements. But it is important that, having removed, if we do remove, the protection from women workers, we signify as a Parliament that this does not mean that all protection and all concern for workers is removed. Good employers probably will not be in need of a code of practice, but it is the not-so-good employers and the employees of those companies about whom we are concerned. Therefore, although a code of practice would apply to all the industries at present covered by the Factories Act, there would be no need for those setting good standards to be concerned about a code of practice. It would hit those who needed to raise their standards.

The question has been asked during the course of the debates today: why should we be particularly concerned about factory workers? After all there are other workers who have to work at night and do not have protection. That is quite true. Certainly within the nursing profession there is a growing concern about the welfare and safety of night workers. It is possible that something will have to be done in that respect to safeguard the interests of medical workers.

10 p.m.

Again, there is special concern that we should bear in mind in relation to factory workers. Transport is always a problem for women. It is usually women who do not have access to the family car. Very often, professional workers who might be called upon to work at night do have access to a car, whereas the majority of women working in factories are most unlikely to have such access. They are the one group among women that is most unlikely even to be drivers, let alone to have access to the family car.

Matters of that kind need careful attention, not only by your Lordships but also by whoever will be responsible for drafting a code of practice. I hope that the amendment will receive support from all sides of the Committee.

Baroness Seear

While I very much support the idea behind the code of practice, I see a problem in connection with a point upon which I should very much like the Minister to elucidate. 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 since the Government are set to remove the fat of the legislation, I fail to see to what legislation the code of practice will relate. I know of no precedent in which there is a code of practice not related to any substantial legislation. Can the Minister clarify that point?

Baroness Turner of Camden

As far as this amendment is concerned, we on this side of the Committee find it admirable—at least in sentiment, although I agree that the noble Baroness, Lady Seear, has raised a point that requires clarification. We regard the code of practice as a good idea, for the simple reason that codes of practice are, as has been my experience, of considerable value to negotiators. Indeed, throughout the debate the noble Lord opposite has often made reference to the desirability of collective bargaining and to the resolving of issues by collective bargaining rather than through legislation. My experience is that if there are codes of practice available to negotiators on both sides of industry—to people who want to do the right thing and who require some guidance—then those codes of practice can provide great support.

I was glad to learn from the Minister earlier today that he has taken seriously the comments of the TUC regarding dangers to women who have to be out at night because of night work, and so on, and because of the urban problems of which we are all aware. As several other speakers have said, a code will at least enable the Government to take on board some of the problems that exist and to consider them in the light of the draft code. Moreover, and as always with codes of practice, there is provision for consultation with both sides of industry. That is also very important; and it involves both Houses of Parliament, who have to approve the details of the code, as has been done previously.

Although there may be some problems yet to be resolved on the whole question of the code and the Bill as it stands as a result of our amendments, in principle we support the idea of codes of practice as a guide to both sides of industry. I hope that the Minister will not say that we do not need to put anything into the statute because matters can be resolved by collective bargaining. What will happen if the employer says, no? Generally speaking, unions do not want to come out on strike and exert pressure, and if we may rely upon codes of practice in our negotiations, then it may help industrial relations. In general, therefore, we support the amendment.

Lord Trefgarne

What we propose in Clause 3 of this Bill is the removal of restrictions on the hours of work of women employed in manual work in factories because they are discriminatory and, we believe, outdated and an unnecessary burden on employers and the Health and Safety Executive. What is proposed in this amendment is that these limited restrictions should be replaced with a code of practice which will provide guidance on the hours of work for all employees.

What evidence do we have that this is necessary? Available evidence suggests that during recent years there has been a general downward trend in the length of the basic working week and there will be many men and women who would not welcome restrictions—even in the form of well-meaning guidance—on their hours of work and, therefore, their earnings potential. Employers and employees require flexibility to decide in the light of their particular circumstances the work pattern which best suits them.

The EOC has powers to issue codes of practice giving guidance on the elimination of discrimination and the promotion of equality of opportunity in employment. This it has already done in a code of practice issued last year. Any additional code giving guidance solely on one employment condition—namely, hours of work—would surely rest uneasily with the existing code. Might an employer not be in some difficulty if he is asked to bear in mind two separate codes of practice dealing with employment issues and possibly not issued by the same body?

The Health and Safety at Work Act 1974 already contains provisions which allow the Health and Safety Commission to prepare and issue approved codes of practice or general or specific guidance on health and safety standards, and it would clearly be unnecessary, misleading and confusing to give some other body power to issue a code of practice on hours of work. I am sure that the commission would consider very carefully any representations made to it about the need for a code or guidance on minimum standards of health, safety and welfare for night workers. In addition, Section 2 of the Health and Safety at Work Act gives the Health and Safety Executive powers to ensure that minimum standards of health and safety generally are being observed and this would include hours of women and of workers generally. I really fail to see the necessity for this amendment which enables the creation of yet another code of practice, and urge that this amendment should be rejected.

Baroness Platt of Writtle

I am interested to hear what my noble friend the Minister said about the Health and Safety Executive in suggesting that ACAS was the nominating body. Obviously the Equal Opportunities Commission was very cognisant of the fact that the Health and Safety Executive had jurisdiction in this area. That might therefore be the answer.

We find with our own code of practice that it is of value to people. A great many people have read it. It has been a best seller from the Stationery Office. There have been seminars. A great deal of work is being done. It is something which helps both sides of industry to see where discrimination lies. Very often discrimination lies in ignorance. Therefore, the code of practice we have in mind is one which would give practical guidance, taking into account the opinions of both sides of industry which are involved in the work place and therefore will know the practices and what is possible and what is not possible.

Therefore, we are not suggesting some impractical guidance; it is practical guidance that we want to see. I will look at the question of the Health and Safety Executive and I reserve my position on the matter of a code of practice; but at this time of night I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Platt of Writtle moved Amendment No. 30:

After Clause 5 insert the following new clause:

("Notes for Guidance.

. Where it appears to the Secretary of State that it may be necessary to clarify the effect of this Act on collective agreements he shall issue notes for guidance to employers and organisations of workers.")

The noble Baroness said: The Government are removing the jurisdiction of the Central Arbitration Committee over collective agreements in connection with the Sex Discrimination Act and the Equal Pay Act. The Government rely on the power of individuals to bring cases before industrial tribunals. We believe that this individual consideration of collective agreements could lead to inconsistencies which would, in turn, lead to increased litigation and subsequent confusion for individual employees, trade unions and employers which would be to nobody's benefit.

We suggested alternatives, either utilising the existing Central Arbitration Committee procedure, or modifying it, or using the Employment Appeal Tribunal as a court of first instance. None of those suggestions has been incorporated in the Bill, and so I am putting this amendment which would give the Secretary of State the power to clarify the situation on collective agreements by issuing notes of guidance to employers and organisations of workers. Those might include advice that they should renegotiate any existing collective agreements affected by the Act as soon as possible so as to remove those sections made void as a result, so that no one in the future could have the mistaken impression that they still carried weight. That would remove unnecessary confusion.

Secondly, it would allow the Secretary of State to advise employers or organisations of workers to submit voluntarily to the Central Arbitration Committee any collective agreements about which there was uncertainty on the method of bringing them within the new law. I understand that the Central Arbitration Committee is accustomed to carrying out voluntary arbitration and indeed has done so on nearly 30 occasions during the past three years. That could be of great assistance in resolving consequential difficulties in collective agreements as a result of the Act and it could relieve many individuals of the difficult responsibility of taking the agreements separately to industrial tribunals which may make individual, contradictory findings. I beg to move.

Baroness Turner of Camden

We propose to support the amendment, although we think it is very weak compared with the one that we moved earlier which would have provided a proper system of enforcement of collective agreements. We should have preferred a system whereby, if the parties to an agreement felt that it was inadequate, they could take it before a suitable body, argue it out and have a decision and guidance at the end. But if this is the best that can be done at this late stage, we are prepared to support it. I repeat that it seems a very weak provision to us. It is simply that it is better than having absolutely nothing. There ought to be a suitable method of enforcement.

Lord Trefgarne

I hope that my noble friend will forgive me if I say that I think that this amendment is rather taking a sledgehammer to crack a nut. It is entirely usual practice for departments to issue guidance on new legislation. The Department of Employment invariably issues free leaflets and booklets which are widely available through Jobcentres, unemployment benefit offices and small firms centres round the country. There is every intention to issue guidance on the changes to the Sex Discrimination Act contained in the Bill before us now, including, of course, the changes affecting collective agreements. The Committee may recall that my noble friend the Secretary of State at the Second Reading of this Bill undertook to ensure that simplified explanatory guidance would be made available to help small firms come to grips with their new obligations when the Bill comes into force. I can also assure my noble friend that the Equal Opportunities Commission will be given the chance to make its usual constructive comments on the new explanatory material.

My noble friend was quite right, if I may say so, to raise this important issue, but I hope she will agree that it is totally unnecessary to require my noble friend the Secretary of State by law to do what he is certainly going to do anyway. In the light of this, I hope that she will feel able to withdraw the amendment.

Baroness Platt of Writtle

Do I take it that my noble friend is giving an undertaking that the notes of guidance will be issued? I know that notes of guidance are normally issued by the Department of Employment.

Lord Trefgarne

Yes. I assure my noble friend that we intend to follow the normal practice in this case.

Lord Wedderburn of Charlton

I do not think that that is what the noble Baroness asked. Perhaps I did not hear her correctly. I think that she asked whether notes of guidance would be issued in the terms of the amendment; that is, to clarify the effect of the Act on collective agreements, which presumably means particular and specific collective agreements or agreements of a particular kind.

Lord Trefgarne

I am sorry if I did not make myself clear earlier. I said that that point would be covered.

Baroness Platt of Writtle

I am most grateful to my noble friend for that undertaking, and I withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCarthy moved Amendment No. 31:

After Clause 5, insert the following new clause:

("Protection of existing conditions.

.— (1) This section applies to employees who at the date of commencement of this Act are subject to restrictions in respect of their hours of work or other working conditions imposed by virtue of any of the provisions to which section 3, 4 or 5(2) above apply (in this section called "protected conditions").

(2) Notwithstanding the repeal of any of the said provisions, the protected conditions shall continue to constitute conditions of employment under or in accordance with which such an employee is required and entitled to work save in so far as that employee agrees otherwise in writing.

(3) The dismissal of an employee by an employer shall be unfair for the purposes of Part V of the Employment Protection (Consolidation) Act 1978 if the reason for it (or, if more than one, the principal reason) was that—

1. (a) the employee refused, or proposed to refuse, to agree to any variation in the protected conditions when they constituted conditions of employment by reason of subsection (2) above; or
2. (b) the employer dismissed the employee in order to engage another employee on terms and conditions of employment which did not or would not include the protected conditions.").

The noble Lord said: This is the last of many amendments to which I spoke in moving Amendment No. 10 which, as the Committee may remember, was passed. It is part of a general package of amendments. I move it formally at this stage.

On Question, amendment agreed to.

Clause 6 agreed to.

[Amendment No. 32 not moved.]

Schedule agreed to.

[Amendment No. 33 not moved.]

House resumed: Bill reported with the amendments.

House adjourned at sixteen minutes past ten o'clock.