Employment Relations Bill

HL Deb 07 June 1999 vol 601 cc1234-92

8.40 p.m.

House again in Committee on Schedule 1.

[Amendment No. 54 not moved.]

Lord Wedderburn of Charlton moved Amendment No. 55:

Page 26, line 26, at end insert— ("(7A) No interlocutory proceedings shall be entertained by any court where the only remedy available is specific performance under sub-paragraph (6).")

The noble Lord said: The amendment relates to the terms of the remedies available for the breach of a binding collective agreement as specified by the CAC. In view of our recent debates, it is necessary that I should read out Schedule 1, paragraph 27. Sub-paragraph (3) states: If at the end of the agreement period the parties have not made such an agreement the CAC must specify to the parties the method by which they are to conduct collective bargaining". Sub-paragraph (4) states: Any method specified under sub-paragraph (3) is to have effect as if it were contained in a legally enforceable contract made by the parties". Sub-paragraph (5) is not relevant. Sub-paragraph (6) states: Specific performance shall be the only remedy available for breach of anything which is a legally enforceable contract by virtue of this paragraph".

Members of the Committee will note that the remedy is limited to the breach of anything 'which is a legal enforceable contract under this paragraph. That includes all the forms of CAC declaration and the like.

The amendment seeks to exclude a form of procedure in the High Court which is interlocutory in its nature; that is to say, theoretically it is interim. However, the Scots courts use the word "interim" rather more sensibly than the English courts, but always refuse to accept that the two are the same. Therefore, I shall use the English term "interlocutory injunction." It is a case where the claimant comes to the court and says, "You are about to commit a wrong [a breach of collective agreement that is binding] and I want the remedy available to me, which at the moment is an interlocutory injunction."

Therefore, first, the procedure is an Alice in Wonderland procedure. It speaks as though the orders requested are effective until the full trial or order. In fact, the interlocutory order is usually what the plaintiff wants; he wants to stop the other side from doing what he complains about.

In order to establish that an interlocutory proceeding could come into play with the High Court, which is all I seek to do, I shall state in not academically correct order the nine most important reasons why the interlocutory injunction is an undesirable procedure. The noble Baroness need not look afraid; each point will be dealt with in a short sentence. First, the applicant—normally the employer—ought to give notice of some two days, but usually and frequently gives less. In one notorious application for an injunction, the judge was contacted on a Sunday and the order was made against the union without any notice.

Secondly, the cases are regularly heard not only with little or no notice but also ex parte; that is, without the defence being heard at all. Thirdly, the judge may grant an injunction if the plaintiff proves that he has a serious case to be tried. The plaintiff does not have to prove that he has a bona fide case, as he used to under previous case law. Fourthly, the judge has a discretion to decide whether damages are adequate and whether the balance of convenience favours the applicant. What the balance of convenience is is a highly subjective matter.

Fifthly, the employer has his damage assessed on the assumption that it will be as he says it will be and on that basis the court decides whether an order will be made. Sixthly, injunction to a trial or further order is the nature of the interlocutory proceedings, but invariably the employer, under present case law, has little intent of taking the case on to full trial. Seventhly, the court should and must grant an injunction if the alleged damage is about to hit the employer, or third parties, or the interests of the public. A number of cases have recently increased the importance of that last phrase, such that the public interest is to the fore. One Lord Justice of Appeal in the dock strike case in 1989 said that there could be a "complete stoppage" in all the scheme ports under the action. There would then be a major impact on innocent third parties and the economic well-being of the nation.

Eighthly, the normal rule is that the court must not grant an interim declaration of rights. A declaration of rights should be a final declaration. However, in interlocutory cases within the past decade or more such declarations have been made and they normally give rise to the defendant not pursuing the action.

Ninthly, the judge should consider the desirability of a return to the status quo. When Mr. Justice Millett, as he then was, did that in the dock strike case, putting the position back to where the strike began, the Court of Appeal immediately struck him down and said that the status quo means where it was when the ports were under normal working. In other words, status quo means before the industrial dispute began.

I accept that as the present case law stands, those points are relevant to interlocutory injunctions. I say to the Government that if they would like to write them all out and insert an order for specific performance in a number of the cases where interlocutory injunction occurs they will see why it must be possible for specific governments to come as part of a dispute between the two parties, which is extremely undesirable.

The reason that it must be so is found in sub-paragraphs (4) and (6) of paragraph 27. The paragraph is about parties in dispute, even though its language is parties in agreement, because the agreement between two parties is always tested by what happens when they come into dispute. If it were not the case that such orders of specific performance could not affect the parties, there would be no reason to have paragraph 27 (6) at all.

Before the dinner break, my noble friend said that it would be impossible for a specific performance order to intervene and affect industrial action. However, I must add that the threat of industrial action—

Lord McIntosh of Haringey

The word I used was "restrain".

Lord Wedderburn of Charlton

I am happy with that. We could spend some time with a dictionary, but I shall accept what my noble friend says. However, it is interesting that he prefers "restrain" to "intervene". This paragraph makes no sense unless it includes a remedy for parties who are in dispute and in respect of which one of them has allegedly acted in breach of the imposed contractually binding procedure. If it does not mean that, I do not know what it means. If it does mean that, to put it at its lowest, the Government should decide whether they want interlocutory proceedings to be brought. Do they want to allow for interlocutory proceedings in respect of breaches of paragraph 27? I say that they should not. I say that it would be very silly. If the question were put in a straightforward way, I believe that most employers and unions would want to exclude the possibility of interlocutory proceedings, as they know perfectly well that they give rise to enormous legalism in proceedings, which is undesirable; and in many cases they give rise to enormous legal costs because matters are taken to appeal.

Are the Government happy that the refusal of a specific performance order could allow for an appeal to the Court of Appeal and then to your Lordships' Judicial Committee on the basis that the parties have disagreed?

Parties who agree do not need the schedule. They may just need it in the vocabulary of the bargain. Parties who disagree will look to the schedule, first, as to whether the CAC will impose an agreement, and, secondly, for remedies under paragraph 27. Very often, perhaps always, the remedy is characteristic of the rights. If the Government are saying that no employer will ever receive a specific performance order that will restrain, in part, action by the union—whether or not industrial action—it will give rise to an enormous new proposition on which we should have a debate on Report. I beg to move.

Lord McIntosh of Haringey

I have listened carefully to my noble friend's argument. I recognise that it is in line with the arguments that he has used on previous amendments. I shall deal with the amendment but, after that, I believe that it is best if we deal with these matters off line. Perhaps my lawyers should talk to him and to any other lawyers whom he wishes to bring to court with him. It is difficult to envisage circumstances in which a court would entertain an application for an interlocutory order to compel compliance with an imposed procedure agreement. I do not think a court would make an order simply because one party feared the other might not comply in due course. The fear would have to be well-founded. I suppose it is conceivable—I shall use an example which works in the other direction from that which my noble friend has used—if an employer, for example, had announced publicly that he had no intention of complying with the procedure imposed by the CAC, then a union might be able to obtain an interlocutory order compelling compliance with the procedure. Presumably, that could work in both directions. However, I have to say that that sounds somewhat far-fetched.

I have listened carefully to the nine reasons given by my noble friend. It still seems to me that it is unlikely that the procedure would give rise to interlocutory proceedings but equally I am not convinced that we should rule out such proceedings if, for example, circumstances, such as those I have just outlined, were to arise.

However, clearly, we have to talk about this. If my noble friend is willing to do so, I would ask him to withdraw the amendment so that we can do that before Report stage.

Lord Wedderburn of Charlton

In anticipation of the session with my noble friend, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Simon of Highbury moved Amendment No. 56:

Page 26, line 28, leave out ("28") and insert ("20 working")

On Question, amendment agreed to.

Lord Wedderburn of Charlton moved Amendment No. 57:

Page 26, line 31, at end insert— ("( ) Where it is alleged that a party is vicariously liable for a breach of an agreement or method made legally enforceable by virtue of this paragraph, he shall be so liable by reason of the act of another person only where that person was—

1. (a) an employee acting in the course of his employment, or
2. (b) an agent acting within the scope of his authority,

and where in addition such an act would have constituted a breach of that agreement or method if done by that party: In this sub-paragraph the word "act" includes a deliberate failure to act, and similar words shall be construed accordingly.")

The noble Lord said: Amendment No. 57 touches on the same areas as previous amendments. It concerns responsibility of a party for what has been done where the collective agreement, or collective contract, has caused that party to be in breach of the obligations.

My next point is different from previous ones. Let us take the most common situation in a collective agreement as we know it. I am sure that my noble friend will have met many of these types of cases, not just in the Law Reports. Indeed, there are very few reported in the Law Reports as we do not have binding collective agreements. There have been many such situations where one side says to the other, "These are the procedures that we set out in the collective agreement". There can be little difficulty about that. However, the employer will say, "Your people"—in the case of the union "your members" or sometimes "your shop stewards"—"have acted precipitously and have not gone through the procedure"; the holy words of British industrial relations. It may be the other way round: the union may object that the employer's action is not consistent with the procedure. Much can be said about that in terms of paragraph 27; but let us leave it there. That could occur. If it occurred after the Act was given Royal Assent, he could be in breach of contract. The only remedy is specific performance.

One way out is for the employer or union to say, "Those were not my people at all". On the union side the people concerned may not have had any authority to act as they did. The Minister may recall the case of Heaton's Transport in 1973 Appeal Cases, better known as the "stuffing and stripping case". The Transport and General Workers' Union shop stewards took it upon themselves to bring out a lot of workers in the docks who objected to the new transportation system for goods which could and did deprive them of their jobs. I see that the Minister knows about that case.

I can assure the Minister that everything will turn on such legal points. It is all very well to have quoted in the courts what the Government believe but it is what is in the Bill that counts. There was nothing in the 1971 Act about whether or not the union was liable for the shop stewards' actions. This Bill will be like that if something is not done about it. The matter went to the Court of Appeal and the Court of Appeal said, "Yes, you looked from the top down on the union and the shop stewards really do not have the authority". The matter came to your Lordships' House and the Judicial Committee said, "No, the union is liable because the shop stewards had implied authority to commit the union, as such, to this form of action".

One can find dozens of cases on the employers' side, but they are not so remarkable. I note that that point has been ignored in some of your Lordships' debates. The employer is normally a company; and a company will have employees and other agents who will cause the company to be responsible for what they do, if it is within the course of their employment or within the express or implied authority. The amendment asks the Government to make the position clear on the face of the Bill.

The normal authority tests are set out here. Noble Lords may not like the drafting; if so., I am sure that it can be improved. All that is set out here is the common law test. Why, it may be asked, do we have to do that? There is already some confusion about whether the very special rules about agency and the like apply to this Bill. Those special rules are in Sections 20 and 21 of the Trade Union and Labour Relations Consolidation Act 1992. I shall not go through them because I allege that it is wrong to transpose statutory authority rules put in there in terms of industrial action or the industrial torts, as they are sometimes called.

If one leaves it blank there may be confusion in the courts that somehow the Government meant to go to Section 20 of the Act. I am sure that is not what it means. At least, I hope that is not what it means because a large number of people will withdraw from this field if that sort of thing is put in in terms of action. The fact that parties have done a deal does not mean that they will abide by it, however defective it is later seen to be. I hope the Minister will at least give us some chance to come back to this matter on Report. I beg to move.

9 p.m.

Lord Meston

I did not follow the noble Lord, Lord Wedderburn, in his argument about interlocutory proceedings—or interim proceedings as we are meant to call them since the reforms introduced under the initiative of the noble and learned Lord, Lord Woolf. However, I follow his argument about vicarious liability.

It seems to me, particularly in employment, that vicarious liability has different meanings in different contexts, as the noble Lord explained. For example, in the fields of racial and sex discrimination, the courts have recently come to give an extended meaning to the phrase—many of us would say quite rightly. In this amendment the noble Lord invites the Government to indicate the parameters of vicarious liability, and on that basis I look forward to the Government's response.

Lord McIntosh of Haringey

This amendment deals with the complicated subject of vicarious liability. I am advised that the concept is well established in law. Vicarious liability can arise only where the person causing, in this case, the breach of contract is an employee acting within the course of his employment or an agent acting within the scope of his actual or ostensible authority, ostensible authority being the authority that the agent gives the appearance of having to outsiders. I appreciate that that could fit some of the examples given by my noble friend in moving this amendment.

My noble friend confirmed that he is concerned primarily with the possibility that a union could be held vicariously liable for a breach committed by a member or lay officer, perhaps acting, as he said, precipitously, on the basis that the member or official is an agent who, even if he has no actual authority from the union to commit the breach, may be viewed by the courts, in the terms of the definition I have given, as having the ostensible authority to do so.

Except in the area of liability for inducing industrial action where special rules apply, trade unions are subject to the same common law principles as everyone else. My noble friend referred to the case of Heaton's Transport v. Transport and General Workers' Union which was decided by the Judicial Committee of this House in 1972. In that case it was held on the facts and having regard to the union's rules that the union was responsible for the acts of lay officials in inducing industrial action. My noble friend will be aware that, because the case concerned the inducement of industrial action, it could not occur today because the rules in Section 20 of the 1992 Act would apply. I appreciate that my noble friend referred at some length to the provisions of Section 20 of the 1992 Act, but my advice is that the Heaton's case could not occur in the same way.

It is true that common law rules will apply. Section 20 of the 1992 Act applies only to industrial action, not to the range of subjects covered by the schedule, which is concerned with collective bargaining. I am not aware of any examples where the application of the ordinary principles of vicarious liability to unions in other areas has caused them particular problems and I see no particular reason for thinking that they will do so here. I also have a high opinion of trade unions' ability to train and brief their officials and members. The prospects of a union finding itself in a position where it is vicariously liable for the acts of an official who has no actual authority to undertake them are remote. There is therefore no need to try to narrow it in the way proposed by the amendment. The courts can be trusted to apply the concept sensibly and reasonably.

My noble friend will be aware that, since his amendment is quite properly even-handed, it gives employers the same leeway as unions. If we made the changes in his amendment, it would be difficult indeed not to apply it to both unions and employers. But I am far from convinced that it is appropriate in relation to employers.

Clearly this is a matter where lawyers must speak to some extent to lawyers. I repeat the offer which I made to my noble friend on earlier amendments; that is, that we should talk together between now and Report stage. My present inclination is to take the view that this is an unnecessary amendment; that the fears expressed by my noble friend are not likely to be realised, indeed, are not in danger of being realised. However, I am happy to talk to him about it between now and Report stage and I hope that he will see fit to withdraw his amendment.

Lord Wedderburn of Charlton

I am grateful to my noble friend for that invitation. When we have all read Hansard I am sure that we will see that it is necessary.

I wish to raise two points; one concerns the past and one the future. I am amazed that my noble friend should suggest that in the Heaton's case the Transport and General Workers' Union had not been sufficiently careful in its selection of officials or shop stewards. It is nothing to do with how careful it had been. It was simply that the Court of Appeal saw the authority test one way—three to nothing—and the House of Lords reversed that decision.

Lord McIntosh of Haringey

I did not say that the Transport and General Workers' Union was insufficiently careful. In that case it was held on the facts and having regard to the union's rules that the union was responsible for the acts of lay officials in inducing industrial action. It was nothing to do with whether or not it was careful.

Lord Wedderburn of Charlton

I misunderstood my noble friend. He talked about the way in which unions would not be confronted with this problem if, as I understood him, they were careful in their selection. But we can look at Hansard. I withdraw my comments, of course, if it was not said and they must be stricken out in some way.

The point in relation to the future is more important. The Minister says that we will not have a case like this in the same way; there are no examples outside the Heaton's case type of industrial action and there are no problems. Of course we have not had examples of paragraph 27(6) and its effect in law. Our complaint is that we have not had an example from the Government as to what would happen, except that the common law would apply, which is what we all assumed in the Heaton's case. That is the problem. Let my noble friend look again at the reason why there is not such a problem and why paragraph 27(6) might give rise to one in the future, and therefore why it would be undesirable to leave the Bill blank when some people will be only too happy to apply Section 20 of the 1992 Act. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 58 not moved.]

Lord McIntosh of Haringey moved Amendments Nos. 59 to 71 en bloc:

Page 26, line 33, leave out ("to the CAC under this Part of this Schedule") and insert ("under paragraph 10 or 11")

Page 26, line 42, leave out ("that a union is already") and insert ("there is already in force a collective agreement under which a union is (or unions are)")

Page 26, line 43, at end insert—

("(1A) An agreement for or declaration of recognition which is the subject of a declaration under paragraph 64(3) must for the purposes of sub-paragraph (1) be treated as ceasing to have effect on the making of the declaration under paragraph 64(3).")

Page 26, line 46, after ("have") insert ("(or none of the unions has)")

Page 27, line 40, leave out ("for decision an application under paragraph 10 or 11") and insert ("a relevant application")

Page 27, line 42, after ("19(2),") insert ("23(2),")

Page 27, line 44, leave out ("application under paragraph 10 or 11") and insert ("relevant application")

Page 27, line 48, at end insert— ("(2A) A relevant application is an application under paragraph 10 or 11.")

Page 28, line 2, leave out ("for decision an application under paragraph 10 or 11") and insert ("a relevant application")

Page 28, line 4, leave out ("application under paragraph 10 or 11") and insert ("relevant application")

Page 28, line 5, leave out ("date") and insert ("day after that on which the CAC gave notice of acceptance")

Page 28, line 10, at end insert— ("(2A) A relevant application is an application under paragraph 10 or 11.")

Page 28, line 20, leave out ("date of the declaration,") and insert ("day after that on which the declaration was issued,")

The noble Lord said: I spoke to these amendments earlier when dealing with Amendments Nos. 2, 3, 9, 12, and 18. Therefore, with the leave of the Committee, I should like to move them en bloc. I beg to move.

On Question, amendments agreed to.

[Amendments Nos. 72 to 75A not moved.]

Lord McIntosh of Haringey moved Amendment No. 76:

Page 30, line 16, at end insert— ("(9) An order made under paragraph 6(6) may also—

1. (a) provide that sub-paragraphs (2)(a), (3) and (5) to (8) of this paragraph are not to apply, or are not to apply in specified circumstances, or
2. (b) vary the number of workers for the time being specified in sub-paragraph (3).")

[Amendment No. 76A, as an amendment to Amendment No. 76, not moved.]

On Question, amendment agreed to.

Baroness Miller of Hendon moved Amendment No. 77:

Page 30, line 18, after ("made") insert ("in writing")

The noble Baroness said: In moving the above amendment, I should like to speak also to Amendments Nos. 78 and 186. These amendments are intended to rectify small administrative omissions from the wording of the Bill. I do not find it surprising that we have detected such omissions. After no fewer than 14 sessions in Committee in the other place, the Government are still tabling amendments in this Chamber. Indeed, we have had well over 100 amendments on this first day of Committee and, as we heard earlier, there are many more to come. Therefore, as I said, it is not surprising that we have found one or two omissions of an entirely minor nature.

My amendments are simple and self-explanatory. However, I shall take just a few moments to go through them. Amendment No. 77 requires applications to the CAC to be in writing. It might be said that, obviously, they will be. But I believe that nothing is obvious and I should like to see it stated. The amendment would avoid any dispute as to the contents of an application or indeed as to whether it was made at all; and, as there are time limits involved, as to when it was made. That would be important.

Amendment No. 78 requires that the grounds of the application must be stated, unless the CAC has already provided for this in the form it prescribes under paragraph 41(1)(a). As a copy of the application will have to be provided to the other party under paragraph 42(5), it is only right that he should not only know the nature of the application but also the grounds for it.

It is an elementary rule of common justice that a person shall know the case that he has to meet. Perhaps the CAC would be ensuring that this happens under its own new procedures, but the proposed wording is to ensure that it does happen. Following the new procedures in the civil courts which came into effect on 26th April, perhaps the evidence should be detailed as well. But that is a matter for the CAC.

Amendment No. 186 is a reciprocal provision which requires that the employer should give specific reasons when he applies to end the bargaining arrangements with the union. I have tabled it to demonstrate an even-handed approach over this aspect. I feel certain that Members opposite will appreciate that I am being very even-handed in everything that I am doing this evening. I beg to move.

Lord McCarthy

I believe that the noble Baroness has spoken to Amendment No. 78. I should like to know what she means by the inclusion of the word "grounds". What would the noble Baroness regard as adequate grounds in this respect? One might say, "We want recognition because the members want it". Should they decide at this stage whether or not they are going to go forward by saying that they have the support of a majority of members? Alternatively, are they to go in and say, "We are not saying that we have a majority of members, we are saying that we can get the support from the majority in the bargaining unit"? Are they to go in and say, "We are underpaid"? What does the noble Baroness mean by the use of the words "grounds"?

Baroness Miller of Hendon

Earlier I believe that I used the word "reasons" in connection with a different amendment. What I seek in this group of amendments is clarification; people should understand exactly what we are saying. The rules of the CAC may refer to provisions being given in writing. However, if there are extra reasons, they should be stated.

Lord McCarthy

Is the noble Baroness saying that there must be reasons and there must be grounds, but she does not know what they are?

9.15 p.m.

Baroness Miller of Hendon

I do not wish to enter a debate about what will happen in a ballot. Perhaps I am not making myself sufficiently clear to the noble Lord. I believe that my amendment would clarify the procedures that are necessary for these applications that we are discussing. That is all I am saying. If the noble Lord does not like the word "grounds" he may be able to suggest another word. However, I do not think he need worry too much about this as I have not yet received any sympathy from the Minister on this matter in terms of meeting me half way or inviting me to discuss the matter further or in terms of initiating any of the provisions he has suggested to other people. That would have been nice.

Lord Wedderburn of Charlton

What the noble Baroness appears to be saying is that she wants a union to say something more than the Bill makes it say at the moment. However, she does not know what that is and she does not know what it is about. Have I misunderstood her? Can she give us an example of what she means?

Baroness Miller of Hendon

I am afraid I would find it absolutely impossible to get inside the head of a union. I should have thought the noble Lord, Lord Wedderburn, would know that only too well. I believe that the relevant provisions should be in writing. I seek to clarify the whole situation. As I say, I would find it totally impossible to get inside the mind of a union. I often do not know what unions want when they tell me that.

Lord McIntosh of Haringey

I shall try to return to the text of Amendments Nos. 77, 78 and 186. I have problems which are not quite the same as those of my noble friends. Amendments Nos. 77 and 78 are intended to affect paragraph 4l of the schedule which governs the form of applications to the CAC under the voluntary recognition part of the schedule. Paragraph 41 is the direct equivalent of paragraph 28, which prescribes the form of applications to the CAC under Part I, which is the recognition part of the schedule. At present, both paragraphs allow the CAC to prescribe the form of requests. Amendments Nos. 77 and 78 together would restrict the freedom of the CAC to choose the most helpful form of application under paragraph 41, and would break the symmetry with paragraph 28. In other words we would not have the same provisions for statutory recognition as for voluntary recognition.

Amendment No. 77 would require the application to be in writing. I would expect the CAC to require that it should be in writing. I think that is implicit in the idea of supporting documents that the application should be in writing as well. In that sense the amendment is unnecessary. However, the CAC may want a phone call to be part of the application process: the application is not made until a telephone call confirms its authenticity, for example. I do not see why that may be necessary but I do not wish to remove that possibility entirely. Amendment No. 77 would remove it and I believe it to be unhelpful as well as unnecessary.

Amendment No. 78 is unnecessary for the same reason as Amendment No. 77: surely the CAC will require that provision anyway. In any case, if the CAC is to judge whether an application is valid, it must be presented with evidence that there are grounds for the application. I do not understand what is meant by "grounds" and I sympathise with my noble friends who have questioned the use of that word. A failure to state the grounds would prejudice the chances of a successful application. Therefore I believe that self-interest will ensure that all applications state their grounds.

I am also unsure about the requirement to state fully the grounds on which the application is being made. An application is made because the union believes either paragraph 40(4)(a)—which occurs when there is no agreed method of collective bargaining—or 40(4)(b)—where the method of collective bargaining has been agreed but there has been a failure to carry it out—to be true. A full statement of the grounds would be, in effect, "(a)" or "(b)," as it is in the Bill. Evidence that the grounds are correct is another matter. Therefore I do not believe that the amendment would require the union to go into additional detail.

Amendment No. 186 would require an employer to give his or her reasons for seeking derecognition. I am sure that in most cases this would be sensible and reasonable but I am against having a statutory requirement to do so. Requiring an employer to give reasons for an application invites a challenge. It would be open to the union to say, "Ah, no, the real reason for this application is such and such, it is not valid" and the CAC would have to decide what the employer's actual motivation was. That would add an unacceptably subjective element to the CAC's consideration of whether an application was valid under paragraph 18.

I understand the desire of the noble Baroness to clean up the schedule. I also understand that she has some doubts about our ability in view of the number of amendments we have had to bring forward to adequately clean up the schedule. I know she is trying to help, but these amendments will not work.

Lord McCarthy

Before the Minister sits down, as I understand it we are now into Part II. I understood that there was to be some kind of statement about the validity and utility of Part II if we only waited for it. When is it coming?

Lord McIntosh of Haringey

I suppose I invited that. I have considered the matter since I made that statement. It is clear that there will have to be amendments to Part II. It is also clear that at this time of night, with this kind of House, it would be undesirable for me to rely on Hansard to say more specifically what we propose to do with Part II. I suggest instead that, in terms of effective communication, I should make a public statement about our intentions in respect of Part II in good time before Report stage. That would enable discussions to take place between my noble friends and both Benches opposite before we come to consider any amendments the Government may put down. I think it would be inappropriate for me to go beyond that at this stage.

Baroness Miller of Hendon

I am perfectly happy at this stage for the Minister not to go beyond what he has just said on Part II. However, I am disappointed that he did not accept my small Amendment No. 77. I anticipated in my speech that he would say it was not necessary; that the CAC would have it within its regulations. He then said that if the CAC did not have it within its regulations it might be satisfied with a telephone call. Either the CAC will have it in its regulations or not. It would be totally inappropriate for the procedure to start by someone making a telephone call. I think that is what the Minister said.

Lord McIntosh of Haringey

On the contrary. I said that although it would have to be in writing at the outset it could be that a confirmatory telephone call would be part of the procedure to ensure that an application was properly based.

Baroness Miller of Hendon

I am sorry if I misunderstood the Minister. I think he is saying that the application would be in writing because the CAC rules would provide that it should be in writing. Let us hope that that is so. The amendment was purely to make sure that that is how it would be. That is how we believe it should be. At this stage I shall seek to withdraw the amendment. If it should turn out at some later stage that an application in writing is not in the rules, we will have a coffee together and discuss the matter.

Amendment, by leave, withdrawn.

[Amendment No. 78 not moved.]

Lord McIntosh of Haringey moved Amendment Nos. 79 and 80:

Page 30, leave out lines 20 to 28 and insert— ("(2) An application which is made by a union (or unions) to the CAC is not admissible unless the union gives (or unions give) to the employer—

1. (a) notice of the application, and
2. (b) a copy of the application and any documents supporting it.

(3) An application which is made by an employer to the CAC is not admissible unless the employer gives to the union (or each of the unions)—

1. (a) notice of the application, and
2. (b) a copy of the application and any documents supporting it.")

Page 30. line 44, after ("day") insert ("after that on which")

The noble Lord said: I spoke to Amendment No. 79 with Amendment No. 18 and to Amendment No. 80 with Amendment No. 9. I beg to move.

On Question, amendments agreed to.

[Amendments Nos. 81 to 83 not moved.]

Lord McIntosh of Haringey moved Amendments Nos. 84 and 85:

Page 31, line 21, leave out ("28") and insert ("20 working")

Page 31, line 22, after ("acceptance") insert ("of")

The noble Lord said: I spoke to Amendment No. 84 with Amendment No. 9 and to Amendment No. 85 with Amendment No. 18. I beg to move.

On Question, amendments agreed to.

Baroness Miller of Hendon moved Amendment No, 86:

Page 31, line 23, at end insert— (" . This part of this Schedule shall not apply to any agreement made by an employer and a union (or unions) prior to the passing of this Act to the extent that such agreement is inconsistent with the provisions of this Part, in which case the prior agreement shall prevail and paragraph 38(a) shall be construed accordingly.")

The noble Baroness said: Amendment No. 86 is another short and self-explanatory amendment which is designed to clear up an obvious omission from the Bill. As I understand it, one of the main objects of the Bill is to encourage union representation wherever it is appropriate. The Government said in various responses to amendments in the other place that there are many satisfactory arrangements already in place between large and small employers on the one hand and unions on the other. Maybe there are. The amendment is to ensure that where there are agreements between unions and employers which were made prior to this legislation corning into force, the new Act should not apply to them; in other words, that it should not act retrospectively or interfere with them. Try as I might, I really cannot think of anything more to say on the point. It is absolutely clear what I mean. I am sure that that is a relief to your Lordships.

Lord McIntosh of Haringey

I am rather inclined to agree with the noble Baroness that Part II of the Bill should not apply to existing voluntary agreements. One of the Government's aims in framing the legislation is to maintain stable bargaining agreements. We would have preferred to leave voluntary recognition out of the Bill altogether.

However, as we said in paragraph 60 of the Explanatory Notes, that would have created a loophole. The loophole would have allowed an employer to claim to recognise a union voluntarily but fail to negotiate with it. We have designed Part H of the schedule to plug that loophole, and that is where we have gone wrong. My noble friends are clearly right when they say that Part II does not meet its points.

In another place, Michael Wills, the Minister for Small Firms, Trade and Industry, responded to a similar amendment. He said: We think that we have found a simpler, more elegant way to deal with the problem that does not interfere with existing voluntary recognition agreements but deals fully, and better than the current wording does, with the risk of evasion".—[Official Report, Commons, Standing Committee E, 16/3/99: col. 411.] He said "We would seek to incorporate this method into the Bill if it were satisfactory", but asked for time to make sure that it was a genuine improvement.

We have taken time to consider an improvement to Part II and we believe that it is satisfactory. However, I promise your Lordships that we will put down an amendment on this subject for report. I refer back to what I said in answer to the challenge of my noble friends. Since our amendment will have the same effect as the noble Baroness's amendment that we are debating, I would like to ask her to withdraw her amendment.

Baroness Miller of Hendon

I am absolutely amazed. I am so surprised that I am not sure I can continue with the remainder of my amendments! Clearly, in view of what the noble Lord the Minister has said, I most certainly will withdraw the amendment. It seems extraordinary to me—and I must agree on one point with the noble Lord, Lord McCarthy—that after all the debate in the other place, after all the extra amendments that were put down here, after all the time that has been taken, and after all the promises that Mr. Wills gave in the other place, we are still here. I shall withdraw my amendment, because when the Government deal with Part II, they intend to do something. I do not like to sound churlish, a phrase which I used earlier, but it seems to me impossible to believe that in a government Bill that has been thought about for a long time, which followed Fairness at Work, here we stand—on Part II, at half past nine at night. I shall withdraw the amendment and the noble Lords will have to go back to the drawing board with the officials and come up with something else. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Miller of Hendon moved Amendment No. 86A:

Page 31, line 36, at end insert— ("( ) If there is a voluntary agreement, any dispute concerning its interpretation or either party's performance there... shall be resolved in such forum or by such other arbitrator as the employer and the union shall mutually agree from time to time, and in default of such agreement, by ACAS and not the CAC.")

The noble Baroness said: I am so surprised by the response to the last amendment that I find it difficult to continue with the next.

Amendment No. 86A seeks to improve the arrangements between employers and unions regarding recognised bargaining units when this recognition has taken place as a result of a voluntary agreement.

I was interested to hear that the noble Lord the Minister said that he would have preferred not to have had voluntary agreements within the ambit of this 13ill at all, not only to improve those arrangements, I understand, but also to encourage them.

It is quite possible that, in negotiating a voluntary recognition agreement across a table, the representatives of employers and the unions may make a mistake, leave: something out or genuinely misunderstand each other. With the best will in the world, there are endless possibilities for misunderstanding. It would be regrettable, after the parties had gone to the trouble of negotiating a recognition agreement, if some misunderstanding were to destroy the purpose of union recognition and that a strike should ensue. This additional clause inserts arbitration provisions into the agreement, something that a properly negotiated agreement would have had in the first place. I beg to move.

9.30 p.m.

Lord McCarthy

I have to say, "Welcome to the club". It is quite remarkable at this time of night to see—I understand that the noble Baroness is speaking for her party—the conversion of the Conservative Party to the use of arbitration. It is a good job the noble Lord, Lord Tebbit, has gone to bed. It is astonishing. We are now dealing with Part III of Schedule 1, which is entitled, "Changes Affecting Bargaining Unit". Paragraph 44(2)(b) states that, references to the bargaining arrangements are to the declaration and to the provisions relating to the collective bargaining method". What the noble Baroness is telling us is that we should add to that what is in effect a compulsory arbitration provision. Is she serious? Is the Conservative Party really saying that when there is a voluntary agreement and a dispute we should enact a system of arbitration? Is that now Conservative policy?

Baroness Miller of Hendon

I am speechless. Perhaps it is the time of night. Is the noble Lord suggesting that because the noble Lord, Lord Tebbit, is not sitting behind me, I have strayed out of line or I have committed my party to something it would not wish to be committed to? I put down the amendment. That is it. I am sure that it will be rejected.

Lord McIntosh of Haringey

The noble Baroness can treat that as a rhetorical question, particularly as I think that the amendment is based on a misapprehension. The noble Baroness seeks to insert it after sub-paragraph (2) of paragraph 44 at the beginning of Part III of the schedule which deals with changing the bargaining unit. But sub-paragraph (1) makes it clear that the part applies only where the CAC has issued a declaration of recognition; that is, following a ballot or on the basis of majority union membership. The part does not apply to voluntary recognition. If that was the point of the intervention of my noble friend Lord McCarthy, I think that he may have been unjustly accusing the noble Baroness of breaking ranks. The presumption is that if parties are capable of agreeing on recognition in the first place, they are capable of dealing with a change in the bargaining unit. In the last resort a union always has the option of ending voluntary recognition and applying under the schedule. The amendment is therefore entirely unnecessary.

Lord Wedderburn of Charlton

Before my noble friend sits down, perhaps I may thank him for explaining the problem that some of us had with the amendment. It is in the wrong place.

Lord McIntosh of Haringey

Yes.

Lord Wedderburn of Charlton

But in view of the hour, if we were kind to it and it were moved some 20 or 30 lines up the page, would we then be in favour of it?

Lord McIntosh of Haringey

That is a hypothetical question.

Baroness Miller of Hendon

If it is found suitable to put it in a different place, so be it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 87:

Page 32, line 23, leave out ("there is prima facie evidence") and insert ("it is likely")

The noble Lord said: In moving Amendment No. 87, I wish to speak also to Amendments Nos. 89 to 104, 118, 120, 122 to 155, 157 and 159 to 161. I shall have to turn over a number of pages in order to get beyond the text and effect of these amendments.

This is a large group of amendments to Part III of the schedule. Although there is a large number of them, they make only two substantial changes: a minor alternation in one criterion for the acceptance of an application, and a number of changes which together allow the CAC to decide that a bargaining unit has split into several new units.

Amendments Nos. 87, 118 and 120 alter the standard of proof required for the CAC to consider an application in line with similar changes made in another place. Instead of considering whether there is prima facie evidence that the bargaining unit has changed, the CAC will have to decide whether it is likely that the unit has changed. It will be able to consider evidence about this, whether or not it is prima facie evidence. This is a slightly higher standard of proof to ensure that only well-founded applications go forward.

The rest of the amendments in this group—I shall not try the Committee's patience by listing them all—are intended to make one important alteration across Part III of the schedule. At present, an employer or union may apply to the CAC to determine whether a bargaining unit has changed. If it has, the CAC may specify the single new unit which it believes to be appropriate. The changes we are seeking will allow the CAC to specify more than one new unit as "appropriate".

I should like to give two examples of where this might be desirable. An employer might have two factories covered by a single collective bargaining arrangement. The employer might, for good business reasons, choose to manage each factory separately. We want the CAC to be able to decide that each factory is a new bargaining unit.

Another example is a firm which is restructured so that, instead of setting pay rates centrally, half a dozen regional offices will each set pay for workers in that region. I remember some controversy about nurses' pay on that subject in recent years. There could therefore be six new bargaining units arising from one original unit. In this situation, it is not appropriate for the CAC merely to identify one of the new units; it should identify all six.

The amendments fall into four categories. First, there are the amendments which merely alter references to a new unit, so that they read "unit or units". Amendments Nos. 89, 92, 94 and 96 are the first four such amendments in this group. They are essentially straight forward.

Secondly, there are amendments which are intended to prevent decisions by the CAC from interfering with other recognition arrangements. Amendment No. 90 is the first example of these. We have invented the concept of an outside bargaining unit—in other words, workers covered by another collective agreement. These amendments deal with a new unit which includes any workers who are members of an outside bargaining unit. If a union and an employer agree a new unit which includes such workers, the CAC will take no further action, in order not to interfere with existing arrangements. In other words, we are seeking to prohibit "overlapping" bargaining units. Amendment No. 100, for example, requires the CAC to determine new units in such a way that they do not overlap with each other.

The amendments also deal with the situation where the CAC decides that the bargaining unit has changed, and that one or more new units contain workers covered by another collective agreement. The CAC will "wipe out" recognition for all workers in a new unit which overlaps with an outside bargaining unit. The unions may then discuss between themselves whether they wish to apply for recognition, and, if so, whether they should make a joint application, or if one of them should apply on its own. We are proposing two changes to this procedure. Amendment No. 140 allows the CAC to deal separately with each new unit, so it may decide that new unit A overlaps with an outside unit, whereas new unit B does not. Amendment No. 150 means that the CAC will not interfere with a voluntary recognition agreement, but will only "wipe the slate clean" of recognition if the outside bargaining unit was recognised through the statutory procedure. It also provides for a 65-clay interim period, which is three months in my calculation, during which the original bargaining arrangements will continue unless the CAC decides that they should cease immediately in the interests of good industrial relations.

I know this is getting hard to follow, so I shall give an example in a minute. I should first like to say that the third type of amendment in this group is consequential on the first two. Amendment No. 91 is an example.

There are a number of amendments which remove references to "a bargaining unit which is no longer appropriate". Amendments Nos. 98 and 102, are examples. On reflection, the Government believe that the CAC should always decide the most appropriate new bargaining unit if the unit has changed. That is the fourth category.

I promised to give an example. It is wholly fictitious, but I hope it will illustrate the kinds of situation which the amendments are intended to deal with. Consider a firm which employs widget-makers and widget-painters. A union is recognised to conduct collective bargaining on behalf of both groups. The employer then expands by taking on some widget-packers as well. A separate union is recognised for the widget-packers, under Part I. The employer then applies to the CAC to rule that the bargaining unit of widget-makers and widget-painters has changed.

The employer and the union representing the makers and painters cannot agree a new unit or units. The CAC then decides that there are two new units. It decides that the units are as follows: Unit A is all the widget-makers and most of the painters, and Unit B is those widget-painters who used to parcel up the widgets for transport, plus the packers who now deal with the widget-painters. I trust that noble Lords are with me! The CAC then looks at each unit separately. The union continues to be recognised for Unit A. In Unit B, the CAC decides that it contains workers who are members of another bargaining unit—the packers—for which another union was recognised via Part I, and therefore decides that the bargaining arrangements should cease for all workers in Unit B, and that, in the interest of good industrial relations, they should cease immediately.

I admit that this is a rather contrived narrative—although I enjoyed it. But each of the CAC's decisions that I have just mentioned is one which it could not make without these amendments being made. The amendments add flexibility to the procedure for changing the bargaining unit, and will help the CAC to make appropriate decisions. I commend them to the Committee.

Baroness Turner of Camden

I thank my noble friend the Minister for his comprehensive explanation, which I shall follow with a great deal of interest when I read it in Hansard, as I do not think I have understood it so far.

I should like to ask my noble friend about amendment No. 90, which states that, If in the CAC's opinion the new unit (or any of the new units) contains at least one worker falling within an outside bargaining unit no further steps are to be taken under this Part of this Schedule". There could be a situation in which an outside union recruits a substantial number of the workforce but one individual in that group maintains membership of another union where there is possibly some kind of national bargaining unit. Does that mean that no further progress can be made because of that one worker?

Lord McIntosh of Haringey

No. The provision prevents the overlap of the new units with outside units and with each other, and it allows the CAC to deal with each of them separately.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendments Nos. 88 to 162:

Page 32, line 46, after ("day") insert ("after that on which")

Page 33, line 5, leave out ("(the new unit) which differs") and insert ("or units (the new unit or units) differing")

Page 33, line 7, at end insert— ("(1A) If in the CAC's opinion the new unit (or any of the new units) contains at least one worker falling within an outside bargaining unit no further steps are to be taken under this Part of this Schedule.")

Page 33, leave out line 8 and insert ("If sub-paragraph (I A) does not apply—")

Page 33, line 11, at end insert ("or units")

Page 33, line 12, at beginning insert ("so far as it affects workers in the new unit (or units) who fall within the original unit,")

Page 33, line 16, after ("unit") insert ("or units") Page 33. line 23, at end insert— ("(4) An outside bargaining unit is a bargaining unit which fulfils these conditions—

1. (a) it is not the original unit;
2. (b) a union is (Or unions are) recognised as entitled to conduct collective bargaining on its behalf;
3. (c) the union (or at least one of the unions) is not a party referred to in paragraph 44 or 45.")

Page 33, line 27, leave out ("which differs") and insert ("or units differing")

Page 33, line 32, leave out ("appropriate or that no other unit is") and insert ("or units are")

Page 33, line 44, leave out ("whether another bargaining unit is appropriate, and what the unit is,") and insert (-what other bargaining unit is or units are appropriate")

Page 33, line 46, after ("unit") insert ("or units")

Page 34, line 6, at end insert— ("(5A) If the CAC decides that two or more bargaining units are appropriate its decision must be such that no worker falls within more than one of them.")

Page 34, line 14, leave out ("in relation to the application under paragraph 47")

Page 34, leave out lines 15 to 22

Page 34, line 25, after ("is") insert ("(or units which are)")

Page 34, line 25, at end insert— ("54A.—(1) This paragraph applies if—

1. (a) the parties agree under paragraph 50 a bargaining unit or units differing from the original unit,
2. (b) paragraph 50(1A) does not apply, and
3. (c) at least one worker falling within the original unit does not fall within the new unit (or any of the new units).

(2) In such a case—

1. (a) the CAC must issue a declaration that the bargaining arrangements, so far as relating to the worker or workers 1254 mentioned in sub-paragraph (1)(c), are to cease to have effect on a date specified by the CAC in the declaration, and
2. (b) the bargaining arrangements shall cease to have effect accordingly.")

Page 34, leave out lines 27 to 30 and insert— ("(1) If the employer—

1. (a) believes that the original unit has ceased to exist, and
2. (b) wishes the bargaining arrangements to cease to have effect,

he must give the union (or each of the unions) a notice complying with sub-paragraph (2) and must give a copy of the notice to the CAC.")

Page 34, line 37, after ("day") insert ("after that")

Page 34, leave out lines 39 to 41 and insert— ("(3) Within the validation period the CAC must decide whether the notice complies with sub-paragraph (2). (4) If the CAC decides that the notice does not comply with sub-paragraph (2).

1. (a) the CAC must give the parties notice of its decision, and
2. (b) the employer's notice shall be treated as not having been given.

(5) If the CAC decides that the notice complies with sub-paragraph (2) it must give the parties notice of the decision. (6) The bargaining arrangements shall cease to have effect on the date specified under sub-paragraph (2)(d) if—

1. (a) the CAC gives notice under sub-paragraph (5), and
2. (b) the union does not (or unions do not) apply to the CAC under paragraph 56.

(7) The validation period is—

1. (a) the period of 10 working days starting with the day after that on which the CAC receives the copy of the notice, or
2. (b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension.")

Page 34, line 43, leave out ("a notice is given which purports to be given under paragraph 55") and insert ("the CAC gives notice under paragraph 55(5)")

Page 34, line 44, after ("day") insert ("after that")

Page 34, line 46, leave out ("one or more of")

Page 35, leave out line 2

Page 35, line 27, after ("day") insert ("after that on which")

Page 35, line 33, leave out ("question or")

Page 35, line 35, leave out ("question or")

Page 35, leave out lines 37 to 40

Page 35, line 41, leave out ("that the employer's notice is given in accordance with paragraph 55 and")

Page 35, line 46, leave out ("that the employer's notice is given in accordance with paragraph 55,")

Page 35, line 47, leave out ("there is no evidence") and insert ("it is not the case")

Page 36, line 2, leave out ("that the employer's notice is given in accordance with paragraph 55,")

Page 36, line 3, leave out ("there is prima facie evidence that")

Page 36, line 8, after ("day") insert ("after that on which")

Page 36, line 17, leave out ("(the new unit) which differs") and insert ("or units (the new unit or units) differing")

Page 36, line 19, at end insert— ("(1A) If in the CAC's opinion the new unit (or any of the new units) contains at least one worker falling within an outside bargaining unit no further steps are to be taken under this Part of this Schedule.")

Page 36, leave out line 20 and insert ("If sub-paragraph (1A) does not apply—")

Page 36, line 23, at end insert ("or units")

Page 36, line 24, at beginning insert ("so far as it affects workers in the new unit (or units) who fall within the original unit,")

Page 36, line 28, after ("unit") insert ("or units")

Page 36, line 35, at end insert— ("(4) An outside bargaining unit is a bargaining unit which fulfils these conditions—

1. (a) it is not the original unit;
2. (b) a union is (or unions arc) recognised as entitled to conduct collective bargaining on its behalf;
3. (c) the union (or at least one of the unions) is not a party referred to in paragraph 44 or 45.")

Page 36, line 39, leave out ("which differs") and insert ("or units differing")

Page 36, line 40, leave out from beginning to end of line 4 on page 37 and insert— ("(2) During the second period the CAC—

1. (a) must decide what other bargaining unit is or units are appropriate;
2. (b) must give notice of its decision to the parties.")

Page 37, line 5, leave out ("whether another bargaining unit is appropriate, and what the unit is,") and insert ("what other bargaining unit is or units are appropriate")

Page 37, line 7, after ("unit") insert ("or units")

Page 37, line 17, at end insert— ("(5A) If the CAC decides that two or more bargaining units are appropriate its decision must be such that no worker falls within more than one of them.")

Page 37, leave out lines 23 to 26

Page 37, leave out lines 27 to 34

Page 37, leave out lines 36 and 37 and insert ("a decision as to the bargaining unit which is (or units which are) appropriate.")

Page 37, line 37, at end insert— ("63A.—(1) This paragraph applies if—

1. (a) the parties agree under paragraph 59 a bargaining unit or units differing from the original unit,
2. (b) paragraph 59(1A) does not apply, and
3. (c) at least one worker falling within the original unit does not fall within the new unit (or any of the new units).

(2) In such a case— (a) the CAC must issue a declaration that the bargaining arrangements, so far as relating to the worker or workers mentioned in sub-paragraph (1)(c), are to cease to have effect on a date specified by the CAC in the declaration, and (c) the bargaining arrangements shall cease to have effect accordingly.")

Page 37, line 39, leave out ("or paragraph 60")

Page 37, line 42, leave out ("(the new unit)") and insert ("or units which are appropriate")

Page 37, line 42, at end insert— ("(1A) This paragraph also applies if the CAC gives notice under paragraph 6(1) of a decision as to the bargaining unit which is appropriate or units which are appropriate. (1B) The CAC—

1. (a) must proceed as stated in paragraphs MA to 69 with regard to the appropriate unit (if there is one only), or
2. (b) must proceed as stated in paragraphs 64A to 69 with regard to each appropriate unit separately (if there are two or more).

(1C) References in those paragraphs to the new unit are to the appropriate unit under consideration.")

Page 37, leave out lines 43 to 48

Page 38, leave out lines 1 and 2 and insert— ("64A.—(1) If in the CAC's opinion the new unit contains at least one worker falling within an outside bargaining unit—")

Page 38, line 10, leave out ("other") and insert ("outside")

Page 38, line 13, leave out ("other") and insert (outside")

Page 38, line 14, leave out ("agreement or")

Page 38, line 16, leave out ("other") and insert ("outside")

Page 38, line 21, leave out ("other") and insert ("outside")

Page 38, line 25, leave out ("other") and insert ("outside")

Page 38, line 27, leave out ("other") and insert ("outside")

Page 38, line 27, at end insert— ("(8) An outside bargaining unit is a bargaining unit which fulfils these conditions—

1. (a) it is not the original unit;
2. (b) a union is (or unions are) recognised as entitled to conduct collective bargaining on its behalf by virtue of a declaration of the CAC;
3. (c) the union (or at least one of the unions) is not a patty referred to in paragraph 44 or 45.

(9) The date specified under sub-paragraph (3)(a) trust be—

1. (a) the date on which the relevant period expires, or
2. (b) if the CAC believes that to maintain the relevant bargaining arrangements would be impracticable or contrary to the interests of good industrial relations, the date after the date on which the declaration is issued;

and the relevant period is the period of 65 working days starting with the day after that on which the declaration is issued.")

Page 38, line 27, at end insert— ("64B.—(1) This paragraph applies if—

1. (a) the CAC issues a declaration under paragraph 64A, and
2. (b) in the CAC's opinion the outside bargaining unit contains at least one worker not falling within the new unit.

(2) In this paragraph—

1. (a) references to the residual unit are to the worker or workers falling within the outside bargaining unit but not within the new unit;
2. (b) references to the outside union (or unions) are to the union (or unions) recognised as entitled to conduct collective bargaining on behalf of the outside bargaining unit.

(3) The CAC may issue a declaration that the outside union is (or outside unions are) recognised as entitled to conduct collective bargaining on behalf of the residual unit. (4) But no such declaration may be issued if the CAC has received an application under paragraph 47 or 56 in relation to the outside bargaining unit. (5) If the CAC issues a declaration under this paragraph—

1. (a) the declaration shall have effect in place of the existing declaration that the outside union is (or outside unions are) recognised as entitled to conduct collective bargaining on behalf of the outside bargaining unit, so far a; the existing declaration relates to the residual unit;
2. (b) the method of collective bargaining relating to the outside bargaining unit shall have effect in relation to the residual unit, with any modifications which the CAC considers necessary to take account of the change of bargaining unit and specifies in the declaration.")

Page 38, line 28, leave out from ("If') to ("it") in line 29 and insert ("the CAC's opinion is not that mentioned in paragraph 64A(1)")

Page 38, line 38, at beginning insert ("so far as it affects workers in the new unit who fall within the original unit,")

Page 39, line 2, after ("arrangements") insert (", so far as relating to workers falling within the new unit,")

Page 39, line 34, at beginning insert ("so far as it affects workers in the new unit who fall within the original unit,")

Page 40, line 1, after ("day") insert ("after that")

Page 40, line 7, after ("arrangements") insert (", so far as relating to workers falling within the new unit,")

Page 40, line 12, leave out ("19 or 20") and insert ("20A")

Page 40, line 19, at beginning insert ("so far as it affects workers in the new unit who fall within the original unit,")

Page 40, line 30, after ("arrangements") insert (", so far as relating to workers falling within the new unit,")

Page 40, line 31, at end insert— ("69A.—(1) This paragraph applies if—

1. (a) the CAC decides an appropriate bargaining unit or units under paragraph 51 or 60, and
2. (b) at least one worker falling within the original unit does not fall within the new unit (or any of the new units).

(2) In such a case—

1. (a) the CAC must issue a declaration that the bargaining arrangements, so far as relating to the worker or workers mentioned in sub-paragraph (1)(b), are to cease to have effect on a date specified by the CAC in the declaration, and
2. (b) the bargaining arrangements shall cease to have effect accordingly.")

Page 41, leave out lines 40 to 45 and insert— ("(1) This paragraph applies if—

1. (a) the employer believes that he, taken with any associated employer or employers, employed an average of fewer than 21 workers in any period of 13 weeks, and
2. (b) that period ends on or after the relevant date.

(1A) If the employer wishes the bargaining arrangements to cease to have effect, he must give the union (or each of the unions) a notice complying with sub-paragraph (2) and must give a copy of the notice to the CAC.")

The noble Lord said: I have already spoken to these amendments. With the leave of the Committee, I beg to move them en bloc.

On Question, amendments agreed to.

[Amendment No. 163 not moved.]

Lord McIntosh of Haringey moved Amendments Nos. 164 and 165:

Page 41, line 47, at end insert— ("(aa) specifies the period of 13 weeks in question,")

Page 41, line 48, at end insert— ("(ba) is given within the period of 5 working days starting with the day after the last day of the specified period of 13 weeks,")

On Question, amendments agreed to.

[Amendment No. 165A not moved.]

Lord McIntosh of Haringey moved Amendments Nos. 166 to 169:

Page 42, line 2, leave out ("period of 13 weeks ending with the day preceding that on which the notice is given") and insert ("specified period of 13 weeks")

Page 42, line 6, after ("day") insert ("after that")

Page 42, leave out lines 8 to 10

Page 42, line 12, leave out ("period of 13 weeks ending with the day preceding that on which the notice is given") and insert ("specified period of 13 weeks")

On Question, amendments agreed to.

[Amendment No. 169A not moved.]

Lord McIntosh of Haringey moved Amendment No. 170:

Page 42, line 27. at end insert— ("(7) An order made under paragraph 6(6) may also—

1. (a) provide that sub-paragraphs (1) to (6) of this paragraph and paragraphs 76 to 78 are not to apply, or are not to apply in specified circumstances, or
2. (b) vary the number of workers for the time being specified in sub-paragraphs (1)(b) and (2)(c).")

The noble Lord said: I spoke to this amendment with Amendment No. 7. I beg to move.

[Amendment No. 170A, as an amendment to Amendment No. 170, not moved.]

On Question, amendment agreed to.

9.45 p.m.

Lord McIntosh of Haringey moved Amendments Nos. 171 to 185:

Page 42, line 27, at end insert— ("75A.—(1) Within the validation period the CAC must decide whether the notice complies with paragraph 75(2). (2) If the CAC decides that the notice does not comply with paragraph 75(2)—

1. (a) the CAC must give the parties notice of its decision, and
2. (b) the employer's notice shall be treated as not having been given.

(3) If the CAC decides that the notice complies with paragraph 75(2) it must give the parties notice of the decision. (4) The bargaining arrangements shall cease to have effect on the date specified under paragraph 75(2)(d) if—

1. (a) the CAC gives notice under sub-paragraph (3), and
2. (b) the union does not (or unions do not) apply to the CAC under paragraph 76.

(5) The validation period is—

1. (a) the period of 10 working days starting with the day after that on which the CAC receives the copy of the notice, or
2. (b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension.")

Page 42, line 29, leave out ("a notice is given which purports to be given under paragraph 75") and insert ("the CAC gives notice under paragraph 75A(3)")

Page 42, line 30, after ("day") insert ("after that")

Page 42, line 32, leave out from first ("whether") to end of line 34 and insert ("the period of 13 weeks specified under paragraph 75(2)(aa) ends on or after the relevant date and whether the statement made under paragraph 75(2)(c) is correct")

Page 42, line 35, leave out ("to the CAC")

Page 42, line 38, leave out ("to the CAC")

Page 43, leave out lines 5 and 6 and insert— ("(5) If the CAC decides that the application is admissible it must—

1. (a) accept the application, and
2. (b) give notice of the acceptance to the parties.")

Page 43, line 8, after ("day") insert ("after that on which")

Page 43, line 14, leave out from ("the") to end of line 16 and insert ("questions whether the period of 13 weeks specified under paragraph 75(2)(aa) ends on or after the relevant date and whether the statement made under paragraph 75(2)(c) is correct")

Page 43, line 17, leave out ("question (or questions)") and insert ("questions")

Page 43, line 19, leave out ("paragraph 75(1)(b) is fulfilled and that the notice is given in accordance with paragraph 75") and insert ("the period of 13 weeks specified under paragraph 75(2)(aa) ends on or after the relevant date and that the statement made under paragraph 75(2)(c) is correct")

Page 43, line 22, leave out ("paragraph 75(I)(b) is not fulfilled or that the notice is not given in accordance with paragraph 75, the notice") and insert ("the period of 13 weeks specified under paragraph 75(2)(aa) does not end on or after the relevant date or that the statement made under paragraph 75(2)(c) is not correct, the notice under paragraph 75")

Page 43, line 26, after ("day") insert ("after that on which")

Page 43, line 34, leave out ("84") and insert ("85")

Page 43, line 38, at end insert— ("(aa) is received by the union (or each of the unions),")

The noble Lord said: These amendments have already been spoken to. I beg to move.

On Question, amendments agreed to.

[Amendment No. 186 not moved.]

Lord McIntosh of Haringey moved Amendments Nos. 187 to 190:

Page 43, line 43, leave out ("in relation to the request")

Page 44, line 1, leave out ("in the second period")

Page 44, line 3, leave out ("in") and insert ("before the end of")

Page 44, line 4, leave out ("in relation to the request")

On Question, amendments agreed to.

[Amendment No. 191 not moved.]

Lord McIntosh of Haringey moved Amendments Nos. 192 and 193:

Page 44, line 11, leave out ("28") and insert ("20 working")

Page 44, line 25, leave out ("in") and insert ("before the end of")

The noble Lord said: These two amendments were spoken to with Amendment No. 9. I beg to move.

On Question, amendments agreed to.

[Amendment No. 194 not moved.]

Lord Mclntosh of Haringey moved Amendments Nos. 195 to 208:

Page 44, line 31, leave out ("and the employer rejects the proposal") and insert ("and—

1. (a) the employer rejects the proposal, or
2. (b) the employer fails to accept the proposal within the period of 10 working days starting with the day after that on which the union makes (or unions make) the proposal.")

Page 44, line 33, leave out ("to the CAC")

Page 44, line 37, leave out ("to the CAC")

Page 45, line 5, after ("is") insert ("made in accordance with paragraph 81 or 82 and")

Page 45, line 8, at end insert ("made in accordance with paragraph 81 or 82 or is not")

Page 45, line 13, after second ("is") insert ("made in accordance with paragraph 81 or 82 and is")

Page 45, line 18, after ("day") insert ("after that on which")

Page 46, line 8, after ("day") insert ("after that on which")

Page 46, line 20, leave out ("28 days starting with the day") and insert ("20 working days starting with the day after that on which")

Page 46, line 37, leave out ("28") and insert ("20 working")

Page 46, line 42, at end insert ("or (c) by a combination of the methods described in paragraphs (a) and (b),")

Page 47, line 1, at end insert— ("(7A) The CAC may not decide that the ballot is to be conducted as mentioned in sub-paragraph (6)(c) unless there are special factors making such a decision appropriate; and special factors include—

1. (a) factors arising from the location of workers or the nature of their employment;
2. (b) factors put to the CAC by the employer or the union (or unions).")

Page 47, line 11, leave out ("has decided") arid insert ("is required under sub-paragraph (3)")

Page 47, line 13, leave out ("of the decision") and insert ("that it is so required")

On Question, amendments agreed to.

[Amendment No. 209 not moved.]

Lord McIntosh of Haringey moved Amendments Nos. 210 to 220:

Page 47. line 32, at end insert ("after that on which")

Page 48, line 37, leave out ("written")

Page 48, line 41, leave out ("21 days starting with the day") and insert ("15 working days starting with the day after that on which")

Page 50, line 18, at end insert— ("(aa) is received by the union (or each of the unions),")

Page 50, line 25, leave out ("in relation to the request")

Page 51, line 16. after ("day") insert ("after that on which")

Page 51, line 35, after ("group") insert ("or groups")

Page 51, line 46, at end insert ("(or the groups taken together)")

Page 52, line 37, after ("day") insert ("after that on which")

Page 53, line 2, leave out ("28 days starting with the day") and insert ("20 working days starting with the day after that on which")

Page 53, line 26, leave out from ("whether") to ("hut") in line 27 and insert ("sub-paragraph (1) is fulfilled")

On Question, amendments agreed to.

Lord McIntosh of Haringey moved Amendment No. 221:

Page 53, line 28, at end insert—

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