HL Deb 26 February 1992 vol 536 cc349-55

8.17 p.m.

Baroness Turner of Camden

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Baroness Turner of Camden.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Deputy Chairman of Committees (Lord Airedale) in the Chair.]

Clause [Unfair dismissal of employees]:

The Parliamentary Under-Secretary of State, Department of Employment (Viscount Ullswater) moved the amendment: Leave out Clause 1 and insert the following new Clause:

Protection against victimization

(".—(1) In relation to an offshore employee, the Employment Protection (Consolidation) Act 1978 and the Trade Union and Labour Relations (Consolidation) Act 1992 shall each have effect as if—

  1. (a) the purposes specified in section 146(1) of the 1992 Act (action short of dismissal on grounds related to union membership or activities) included preventing or deterring him from carrying out any relevant functions, or penalising him for doing so; and
  2. (b) the reasons specified in section 152(1) of the 1992 Act (dismissal on grounds related to union membership or activities) included the reason that he had carried out, or proposed to carry out, any such functions.

(2) In this section— offshore employee" means an employee (within the meaning of the 1978 Act) who is or was employed on an offshore installation; offshore installation" means any installation which is an offshore installation within the meaning of the Mineral Workings (Offshore Installations) Act 1971, or is to be taken to be an installation for the purposes of sections 21 to 23 of the Petroleum Act 1987; relevant functions", in relation to an offshore employee, means any functions conferred on him, as a safety representative or as a member of a safety committee—

  1. (a) by the Offshore Installations (Safety Representatives and Safety Committees) Regulations 1989; or
  2. (b) by any corresponding regulations made under Part I of the Health and Safety at Work etc. Act 1974.
(3) In relation to any time before the commencement of the 1992 Act, subsection (1) above shall have effect as if—
  1. (a) the reference to that Act were omitted; and
  2. (b) the references to sections 146(1) and 152(1) of that Act were references to sections 23(1) and 58(1) respectively of the 1978 Act.")

The noble Viscount said: I said during Second Reading debate on this important Bill brought forward by the noble Baroness, Lady Turner, that, with her agreement, the Government would seek to bring forward for consideration in Committee amendments to ensure that the Bill properly achieves its intended purpose; that is, to implement recommendation 30 of the Cullen Report on the Piper Alpha disaster, which stated: Safety representatives should be protected against victimisation by a provision similar to Section 58(1) (b) of the Employment Protection (Consolidation) Act 1978". The Government, as I have previously made clear, fully accept that recommendation, as they do all the recommendations made in Lord Cullen's report.

In the event, it transpires that the necessary changes to the noble Baroness's Bill can be incorporated in just a single amendment—admittedly a substantial one —and it is this which is now before us. Members of the Committee will see that the amendment refers to the Trade Union and Labour Relations (Consolidation) Act 1992. That Act has not yet reached the statute book but is passing through its parliamentary stages and is expected to receive Royal Assent next month.

It will, inter alia, repeal those aspects of the Employment Protection (Consolidation) Act 1978 to which the Cullen Report refers and replace them with new provisions of equivalent effect. Clearly, therefore, the 1992 Act is the one to which this Bill should relate —although subsection (3) of the new clause does allow for the eventuality that this Bill may become law before the 1992 Act, during which period the 1978 Act will still contain the appropriate legislation.

The amendment aims to deal with a number of technical and other points in the Bill as published. It would do this by leaving out Clause 1 of the Bill—the clause which contains the Bill's substantive provisions —and replacing it with a new one.

The overall effect of subsection (1) (b) of the proposed new clause would be to provide that the dismissal of an offshore employee shall be regarded as unfair if the reason, or the principal reason, for it was that he had carried out, or proposed to carry out, any functions conferred on him as a safety representative or as a member of a safety committee. Similarly, the overall effect of subsection (1) (a) is to give an offshore employee the right not to have action short of dismissal taken against him for the purpose of preventing him or deterring him from carrying out any functions conferred on him as a safety representative or as a member of a safety committee or penalising him for so doing.

I should like to comment briefly on some of the principal ways in which the new clause proposed in the amendment differs from Clause 1 of the Bill as published.

First, as I have mentioned, the amendment provides protection not only from dismissal but also from action short of dismissal, which is of course another form which victimisation can take. It does this by referring not only to Section 152(1) of the Trade Union and Labour Relations (Consolidation) Act 1992, which will replace Section 58(1) of the 1978 Act concerning dismissal on grounds related to union membership or activities, but also to Section 146(1) of the 1992 Act, which will replace Section 23(1) of the 1978 Act concerning action short of dismissal on the same grounds.

Where an industrial tribunal upholds an employee's complaint of action short of dismissal, it will make a declaration to that effect. There is no upper limit on the amount of compensation which may be awarded. The tribunal may award such compensation as it considers appropriate having regard to the infringement of the employee's rights and any consequent loss suffered by the employee.

Secondly, although Lord Cullen's recommendation mentioned only safety representatives, and this is reflected in the Bill as published, the amendment extends the same protection to all members of safety committees, and where they are performing any of their functions.

Lastly, by referring directly to Section 152(1) of the 1992 Act (equivalent to Section 58(1) of the 1978 Act), the amendment ensures that no qualifying period of employment or upper age limit applies in the case of an offshore employee who was dismissed because he had carried out, or proposed to carry out, any functions conferred on him as a safety representative or as a member of a safety committee. Furthermore, an offshore employee dismissed in such circumstances could qualify for the higher levels of compensation, including the special award of compensation, currently available in cases of unfair dismissal on grounds related to trade union membership or activities, and for interim relief.

The purpose of the amendment, then, is to fulfil our commitment to implement Lord Cullen's recommendation 30. That is what I undertook to do when we debated the Bill at Second Reading. Although, in line with Lord Cullen's recommendation, the amendment restricts its ambit to safety representatives and other members of safety committees, I am satisfied that in practical terms the Bill, if our amendment is accepted, would provide very real protection for everyone working offshore. Employees have a statutory right to elect safety representatives and I am advised that it is the universal practice that every manned offshore installation already has in place a safety committee. Accordingly, any employee who had a concern about health and safety would have the opportunity to voice his concern to a safety representative and through him to the safety committee, as the procedures intended. Members of the committee could then take action safe in the knowledge that they enjoyed the protection given by these provisions.

Given the goodwill which exists on all sides of the Committee towards the Bill brought forward by the noble Baroness, Lady Turner, I hope that the Committee will accept the Government's amendment as fulfilling the commitment I gave at Second Reading to bring forward provisions to ensure that the Bill fully achieves the result Lord Cullen proposed. I beg to move.

Baroness Turner of Camden

I thank the Minister for that explanation of the amendment which in my view substantially improves the Bill on a number of counts. I am grateful for the introduction of the concept of action short of dismissal which, when we debated the Bill at Second Reading, my noble friend Lord Wedderburn, indicated that we should want to see written into the Bill when it eventually reached the statute book.

I am grateful also for the comments made in regard to the amounts of compensation—there are to be no upper limits on compensation—and for the Government's intention to fulfil the recommendations of Lord Cullen in item 30 of the second part of his report.

There are of course certain aspects of my Bill which do not appear if the amendments are accepted by the Committee. In particular the Bill is limited to safety representatives and members of safety committees. That is in line with what Lord Cullen proposes. We shall probably have to wait for other legislation at a later date to give much more widespread protection to individual members working on the oil rigs as a whole. In the meantime this Bill goes a considerable way to meeting the objections that we had when the original Offshore Safety Bill was before your Lordships. I very much welcome those improvements.

Lord Rochester

There is very little left for me to say. At Second Reading I expressed the hope that as the Bill enabled the Government to deal with the one recommendation in Lord Cullen's report—namely, that of victimisation—which was not included in the Government's own Offshore Safety Bill, the noble Viscount would welcome the opportunity to legislate on that matter. In fulfilling that hope he, in turn, expressed the wish that we should all feel able to co-operate in finding an appropriate way to implement the findings of Lord Cullen in this respect. The noble Viscount has now provided us with an amendment to Clause 1 which enables us to achieve that joint aim.

Like the noble Baroness, Lady Turner of Camden, I too welcome the fact that the amendment deals not only with the question of dismissal but also with action short of dismissal. I also welcome the fact that it covers both safety committee representatives and members of safety committees. Therefore from these Benches I should like to thank the Minister for having done that, and again I congratulate the noble Baroness, Lady Turner, on her initiative in bringing forward this Bill.

Lord Wedderburn of Charlton

This is a very notable occasion. It is an employment matter on which the Committee seems to be united. On these Benches we can take great pleasure in the general support that the Government have given. I must congratulate my noble friend on piloting through to the statute book the first proposal from this side of the House that has seen favour with the Government since 1980. The only moral I can draw from that is that we should have done a lot better making our arguments from the Back Benches, as my noble friend has done with this Bill. Of course we welcome part of the amendment: the addition of "action short of dismissal", which I suppose in a sense goes beyond Cullen but is a logical result of the argument.

There are two matters on which, without in any way wishing to hold up the Bill, I should like to ask the Minister for some clarification. The first relates to the Community framework directive and the second relates to the position of trade unions and the evidence given by the unions, most notably by MSF, which gave strong evidence to the Cullen inquiry. On the framework of that directive, the Minister has taken out of the Bill, as I suspected he might, the right of the individual worker, for example, to approach the safety inspectorate. I quite understand why he has done that. On the logic of Cullen—reading the text as it were —it only goes as wide as safety committees and safety representatives. On the other hand the framework to that directive on safety has to be put into effect by the end of 1993. One wonders whether it will be done through a single Bill or a single set of regulations. Different industries may need slightly different treatment. I wonder why the Government have taken the individual workers out completely when in the framework directive there is a suggestion in Article 8—it is more than a suggestion—that the individual worker should have a right to stop work and, secondly, in Article 11, that he should have the right to approach the inspectorate.

However, that is less important than my second point. The Bill will now go forward as one limited to safety representatives and members of safety committees. That is welcome. But the Bill does not refer only to the Health and Safety at Work etc. Act 1974—the Minister did not deal with the difference between his amendment and the Bill—and the safety representatives under that Act and under the regulations of 1977. In a slightly strange subsection in what will be Clause 1(2) (a) and (b) the Bill defines "relevant functions" by reference to the functions of a safety committee or representative under the Offshore Installations (Safety Representatives and Safety Committees) Regulations 1989 or under Part I of the Health and Safety at Work etc. Act 1974, which is where we normally find health and safety at work representatives.

In my noble friend's Bill they were limited to the 1974 design. When one looks at them one sees that there is only one major difference between the 1989 regulations and the 1974–77 regulations. Under the latter, the safety representatives emerge from the machinery of recognised trade unions, whereas under the 1989 regulations the constituencies for election of safety representatives are organised under statutory rights by the management. This is a genuine question. Can the Minister tell those who will have to operate what will undoubtedly become the Act in this form when they can expect to see the 1989 regulations operating and when they will see the 1974 regulations operating, as there is an alternative? Secondly, when do we expect the review of the 1989 regulations to be completed? They are under review now, as has been stated by the Health and Safety Commission.

The second point is important because in paragraphs 21.84 and 21.85 of Chapter 21 of the Cullen Report Lord Cullen makes it absolutely clear that the only reason he is not recommending the changeover from the 1989 regulations to the 1974/77 apparatus is that those regulations are under review. He goes as near as he can to accepting the argument of the unions, especially of MSF, that the offshore committees should be organised in the same way as the others. It may be that the Government are simply saying that they prefer to have the 1989 regulations. In that case it is rather odd to find the alternative in the amendment.

I am genuinely seeking information as much as expressing doubt on our part as to whether we would have drafted it in this way. I am seeking information from the Minister either at this stage or on Report. We are happy to support the Bill in its amended form as it will be when the amendment goes through.

Viscount Ullswater

I am grateful to the noble Baroness, Lady Turner of Camden, for the welcome that she gave to this amendment. I believe, and I think the noble Baroness accepts, that it substantially improves the Bill as originally drafted. She commented about restricting it to the rather narrow framework set by Lord Cullen in his recommendation. I sought to outline in my opening remarks that we also intended that that should be the case. The noble Lord, Lord Rochester, has accepted it now that I have acceded to his request about implementing the recommendation as I suggested that I should. Having said that, I believe that the amendment tabled tonight actually improves on the recommendation. So not only have we taken the recommendation but we have sought to improve it as well, a point that the noble Lord, Lord Wedderburn, also accepted. I am glad to think that the noble Lord feels that we are at last united. It is a very nice feeling to have. On such an important Bill as this I am pleased that he accedes to it because I do not believe that he has acceded to many of the recommendations put forward from this side of the House since 1980.

The noble Lord asked me one or two questions which I shall do my best to answer. His first question related to the Community framework directive. He rightly indicated that that should be implemented by the end of 1992; if that date is wrong I shall seek to correct it. The framework directive provisions relating to victimisation go considerably wider than Recommendation No. 30 of the Cullen Report. It has always been our intention to extend implementing measures offshore. This would meet Lord Cullen's concerns and indeed go beyond his recommendation providing more comprehensive coverage. We shall have to consider, in the light of what happens to this Bill, how to deal with the wider provisions, but my current understanding is that our proposals would be likely to overtake any provisions in operation on the lines of this Bill which could then be repealed.

The noble Lord also asked me why there were two provisions in the amendment regarding relevant functions. First, the 1989 regulations are, as he rightly suggested, being reviewed at this moment. That review should be completed by the spring of 1993. The amendments to the 1989 regulations would need to be made under the Health and Safety at Work etc. Act because the Offshore Safety Bill will make these relevant statutory provisions of the Health and Safety at Work etc. Act. The 1977 regulations do not apply offshore and the Bill would have no effect if it referred to them. This is technical point but I hope that it clears up some of the points at issue.

I believe that we have done what we suggested we should do. I am extremely pleased that we have had the co-operation of the noble Baroness. I understand that the clause that we have sought to include has perhaps rather changed the face of her original Bill but I believe that it has improved it.

On Question, amendment agreed to.

Clause 2 agreed to.

House resumed: Bill reported with the amendment.