HL Deb 08 September 2004 vol 664 cc638-65

(1) In paragraph 22(4) of Schedule Al to the 1992 Act (qualifying conditions requiring the CAC to hold a ballot of workers in bargaining unit), for paragraph (b) substitute— (b) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;".

(2) In paragraph 87(4) of that Schedule (qualifying conditions requiring the CAC to hold a ballot of workers in new bargaining unit), for paragraph (b) substitute— (b) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the new bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;".

The noble Lord said: My Lords, Amendment No. 1 deals with an issue we discussed in Grand Committee in response to an amendment tabled by my noble friend Lord Lea of Crondall. At the time I indicated that we would give further consideration to the matter he had raised and, in response, he was good enough to withdraw his amendment.

The issue concerns the circumstances in which the CAC must order a ballot of the relevant workforce to assess whether they want a union to bargain on their behalf, even though the union has more than half of the workers in membership.

Currently, the CAC must apply three criteria when assessing this issue. These are listed in paragraph 22(4) of the recognition procedure in cases where a non-recognised union is applying for recognition. The same criteria are also listed in paragraph 87(4) of the procedure which concerns changes to bargaining units following a CAC award of recognition. Our amendment changes both paragraphs in identical ways. For simplicity, I shall confine my remarks to the changes to paragraph 22(4), which is a part of the procedure that comes into play more frequently as it deals with the central case of a union seeking recognition.

The first and third criteria in paragraph 22(4) give the CAC some discretion to assess the evidence put before it and judge whether a ballot should be held. That is not the case in relation to the second criterion.

According to the second criterion, a ballot must be held if a, significant number of union members in the bargaining unit inform the CAC that they do not want the union or unions to conduct collective bargaining on their behalf". The wording emphasises the quantity and not the quality of the information that has been provided to the CAC. This has created a problem in cases where the CAC has received such communications from "a significant number" of union members, but there were grounds to believe that the union members were pressurised into sending those communications. In other words, there was evidence that questioned whether union members genuinely did not want the union to negotiate on their behalf which the CAC could not take into account. In Grand Committee, I drew attention to one particular case—Brian Hewitt Construction Limited and the Iron and Steel Trades Confederation—where this issue had arisen in practice.

The amendment therefore changes the wording of the second criterion to provide extra discretion to the CAC when applying it. It does so by requiring the CAC to consider whether there is "credible" evidence that a "significant number of union members" do not want the union to undertake bargaining on their behalf. The amendment therefore adds a necessary qualitative dimension to the way in which the second criterion is expressed.

I am sure that CAC panels, whose members are most certainly experts in industrial relations, will be able to apply the criterion fairly and sensibly. Amendment No. 1 would improve the statutory procedure by removing an unhelpful rigidity within it.

I am grateful to my noble friend Lord Lea for drawing this matter to our attention at each stage. I commend the amendment to the House. I beg to move.

Lord Lea of Crondall

My Lords, I am grateful to my noble friend for bringing forward the amendment. As he indicated, there are other examples of where this issue has presented a difficulty in addition to the case he has specifically cited.

Perhaps I may take the opportunity to check whether I have understood how this will work in practice. Let me take the case of letters from union members stating that they do not want the union to negotiate on their behalf, but these are letters which the CAC concludes the employer asked the workers to send—indeed, the employer may have helped draft the letters. How does the Minister envisage the panel would deal with those letters? How would it assess whether they represented credible evidence?

Lord Triesman

My Lords, the panel is required to assess whether the evidence is such as to lead it to believe that the workers do not want the union recognised. It will judge this on the arguments and the information put before it by the parties—that is, by the employer and the union—or submitted directly to it by individual workers.

Of course, each case will be different, at least to some extent, and will need to be judged on its merits. But, as a general rule, the amendment would enable CAC panels to disregard or place much less weight on evidence where employers have placed pressure on the workers to sign such letters. In deciding the question of credibility, the panel could take account of overt threats and inducements as well as more subtle forms of undue influence.

By the same token, we do not think that the involvement of the employer in facilitating the production of letters should of itself mean that the evidence lacks credibility. Throughout the procedure we would expect unions and employers to gather evidence in support of their position and to help others present evidence. So we do not object to employers providing information to the workers involved about the CAC's timetable or about the way in which they might express their views to the CAC. The key issue is whether such endeavours have distorted the true view of the union members concerned.

Lord Lea of Crondall

My Lords, I thank my noble friend for that clarification. Now that it is on the record, I trust that the Minister can also confirm that the CAC's attention will also be drawn to what he has said in this exchange to assist its understanding of the intention of the amendment.

Lord Triesman

My Lords, I know that the CAC has followed the consideration of the Bill in both Houses and that it regularly receives the official reports in Hansard. I hope and expect that my explanation is helpful to the CAC and all those involved in this area.

Baroness Miller of Hendon

My Lords, the amendment and the explanation given by the noble Lord appear to give the CAC the ability to take a more flexible and less prescriptive view. We certainly support the amendment.

On Question, amendment agreed to.

Clause 9 [Unfair practices in relation to recognition ballots):

Lord Triesman moved Amendment No. 2:

Page 11, line 36, leave out "anything" and insert "to pay money or give money's worth"

The noble Lord said: My Lords, this large group contains various amendments which relate to the clauses of the Bill concerning unfair practices during recognition and derecognition ballots. In fact, despite their number, the amendments concern only three issues, two of which are technical in nature. But one relates to the more significant issue concerning the definition of an unfair "offer" to workers in the bargaining unit. This issue was raised in Grand Committee and I propose to deal with it first before briefly discussing the two technical issues towards the conclusion of my remarks.

Let me start by moving Amendment No. 2 and speaking also to Amendments Nos. 3 to 8, 46 and 48. As noble Lords will recall, Clauses 9 and 12 insert various new paragraphs into the statutory recognition procedure. New paragraph 27A sets out a number of unfair practices during recognition ballots, and new paragraph 119A defines unfair practices during derecognition ballots. Amendments Nos. 2, 3 and 4 amend new paragraph 27A, and Amendments Nos. 6, 7 and 8 amend new paragraph 119A. These two sets of amendments are virtually identical and for simplicity I will confine my remarks to the amendments to Clause 9 to avoid any repetition.

As I said, new paragraph 27A defines various unfair practices. The first of these concerns the bribing of workers by either the employer or the union in exchange for their vote. Sub-paragraph (2)(a) refers to this unacceptable practice as offering, anything … in return for the worker's agreement to vote in a particular way or to abstain from voting". Unions and, to a degree, employers have expressed concern at this wording which they, in my view understandably, consider to be too broad. In particular, they fear that it might interfere with normal campaigning activity.

In Grand Committee, I indicated that we would reconsider the wording at this point. We have concluded that the use of the word "anything" is too broad. At the least, it might encourage a party to make a speculative complaint to the CAC about standard campaigning activities. Amendment No. 2 therefore removes the word from the definition. In its place, the amendment substitutes references to the offering of "money" and the giving of "money's worth". The wording is therefore more precise.

The term "money's worth" is new to employment law, but it appears frequently in other areas of the law and has been relatively straightforward to interpret in those other settings. It basically covers the provision of goods or services or other things which have a monetary value. In our context, the offers of improved benefits in kind—such as a better company car or subsidised healthcare—would be covered. The term would also cover the offering of extra holidays or other forms of paid time off. Such offers constitute "money's worth" because the worker receives money for not working.

In re-examining the definition of an unfair offer in sub-paragraph (2)(a), we noticed that we had not covered all the ways in which a party could bribe members of the relevant workforce. In particular, it did not cover situations in which a party offered money if the outcome of the ballot went a particular way. Of course, such offers would be intended to influence voting behaviour. But they are not limited only to those who agree to vote in a particular way, or not to vote at all; the reward is given to all, regardless of their actual voting behaviours, as long as the outcome of the ballot goes in the desired direction.

We feel that there is a potential for parties to make offers of this type and to distort the balloting process. Amendments Nos. 3 and 4 address the potential loophole by establishing a new unfair practice of making "outcome specific" offers to pay money or give money's worth which are contingent on the outcome of the ballot, as declared by the CAC.

In defining this new unfair practice we have taken care to make sure that normal campaigning activity is not inadvertently caught. We were cautioned many times during the earlier debates about this potential problem. It can be expected that both the employer and the union will make statements about what they think will occur if recognition is awarded or not. The union may well say that pay and conditions will improve as a result of collective bargaining. Equally, the employer might assert that the business would he more profitable without collective bargaining and therefore pay will be higher and jobs more secure if recognition is not awarded.

It is conceivable that some statements about the consequences of life after recognition could constitute "offers" to the workers involved. Amendment No. 4 therefore makes it clear that an offer which is conditional on anything which is done or occurs as a result of the CAC declaration does not constitute an outcome-specific offer.

As I have already indicated, Amendments Nos. 6, 7 and 8 apply the same changes to the treatment of offers made during derecognition ballots. Amendments Nos. 46 and 48 to Schedule 1 to the Bill are consequential.

Let me deal with the two sets of technical changes we are making. Amendments Nos. 5 and 9 replace certain references in new Clauses 9 and 12 to the holding of a ballot. Throughout the recognition procedure, we have used references to ballots being held as meaning the conclusion of the ballot. As drafted, the use of "held" in new paragraphs 27B(2)(b) and 119B(2)(b) potentially has a broader meaning, and we think that it could cause confusion. To ensure consistency across the recognition schedule, we have substituted new wording at these points.

Finally, Amendments Nos. 10, 11, 47 and 49 change some imprecise and outdated wording about the way in which certain CAC orders can be enforced as an order of the county court. The current wording is deficient. Scotland does not have any county courts and the reference to the order having been "recorded" at the court has no clear meaning in modern court procedures. We have therefore substituted clearer wording and added a reference to the Scottish legal process. The amendments also clearly indicate who is entitled to take such action.

Amendment No. 42 in Schedule 1 updates similarly outdated wording used in another part of trade union law—namely, Section 82 of the Trade Union and Labour Relations (Consolidation) Act 1992. This section relates to the enforcement of certain orders made by the certification officer.

This group of amendments mainly fulfils a commitment that we made in Grand Committee to look again at the definition of particular unfair practices in making offers. We believe that the new wording has much less scope to cut across normal campaigning activity while covering a wider range of offers. I therefore commend the amendments to the House and the technical improvements they contain. I apologise for the number of amendments, but it is as well to get the whole process right. I beg to move.

8 p.m.

Baroness Turner of Camden

My Lords, during the course of discussions on the Bill, my noble friends and I raised the possibility that the present wording of a party offering anything to a worker entitled to vote could be interpreted to cover unions campaigning when they campaign for recognition and seek to set out their agenda for looking after workers, should they join the union or vote for recognition.

I thank my noble friends on the Front Bench because I feel that they have met the concerns that we voiced in Grand Committee and afterwards. These amendments improve the Bill.

Baroness Miller of Hendon

My Lords, we do not oppose any of the modifications that the noble Lord, Lord Triesman, outlined. In fact, we welcome the clarification and better wording proposed.

On Question, amendment agreed to.

Lord Triesman moved Amendments Nos. 3 to 5:

Page 11, line 38, at end insert— (aa) makes an outcome-specific offer to a worker entitled to vote in the ballot,

Page 12, line 4, at end insert— ( ) For the purposes of sub-paragraph (2)(aa) an "outcome-specific offer" is an offer to pay money or give money's worth which—

  1. (a) is conditional on the issuing by the CAC of a declaration that—
    1. (i) the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the bargaining unit, or
    2. (ii) the union is (or unions are) not entitled to be so recognised, and
  2. (b) is not conditional on anything which is done or occurs as a result of the declaration in question."

Page 12, line 18, leave out from "if" to end of line 19 and insert "votes may be cast in the ballot on more than one day, the last of those days."

On Question, amendments agreed to.

Clause 12 [Unfair practices in relation to derecognition ballots]:

Lord Triesman moved Amendments Nos. 6 to 11:

Page 15, line 43, leave out "anything" and insert "to pay money or give money's worth"

Page 15, line 45, at end insert— (aa) makes an outcome-specific offer to a worker entitled to vote in the ballot,

Page 16, line 13, at end insert— (2A) For the purposes of sub-paragraph (2)(aa) an "outcome-specific offer" is an offer to pay money or give money's worth which—

  1. (a) is conditional on—
    1. (i) the issuing by the CAC of a declaration that the bargaining arrangements are to cease to have effect, or
    2. (ii) the refusal by the CAC of an application under paragraph 106, 107 or 112, and
  2. (b) is not conditional on anything which is done or occurs as a result of that declaration or, as the case may be, of that refusal."

Page 16, line 27, leave out from "if' to end of line 28 and insert "votes may be cast in the ballot on more than one day, the last of those days."

Page 19, leave out lines 14 to 16.

Page 19, line 20, at end insert—

"1191 (1) This paragraph applies if—

  1. (a) a ballot has been arranged in consequence of an application under paragraph 112,
  2. (b) the CAC has given the employer an order under paragraph 119(1), 119C(3) or 119H(4), and
  3. (c) the ballot for the purposes of which the order was made (or any other ballot for the purposes of which it has effect) has not been held.

(2) The applicant worker (or each of the applicant workers) and the union (or each of the unions) is entitled to enforce obedience to the order.

(3) The order may be enforced—

  1. (a) in England and Wales, in the same way as an order of the county court;
  2. (b) in Scotland, in the same way as an order of the sheriff."

On Question, amendments agreed to.

Clause 21 [Information about employees to be balloted on industrial action]:

Baroness Turner of Camden moved Amendment No. 12:

Page 26, line 27, leave out "at which the employees concerned work" and insert "of the employees concerned"

The noble Baroness said: My Lords, I suppose that I should have raised this matter at an earlier stage of the Bill's proceedings. However, it became apparent to me only when I received a copy of the Bill as amended on Report. Under the Bill as it stands, a union must notify an employer of not only the categories of workers who are to be balloted about dispute action but also the workplaces at which the employees concerned work. I think that notification of categories ought really to be sufficient, but in present circumstances, workplaces may be widely distributed. An employee may work at one at a particular time and then at another. Some workplaces may in fact have few people working there at a given time. With very few workers, it rather nullifies the provision that the employer does not have to be told the names of those concerned. With a small number of employees at some workplaces, he would not need to be told. The union may not know where everyone is at a given time. If mistakes are made, that could lead to challenges and further difficulties.

I think that the Government must have had some idea that there were problems because of the provision in proposed subsection (2I)(b) of Clause 21(4) concerning, the premises with which his employment has the closest connection". I still think that that could lead to problems.

A union calling an official dispute already has a number of hurdles to surmount to ensure that the action remains within the law and that members are entitled to the limited protection afforded by the law. This workplace requirement adds to the difficulties. Our amendment highlights these in the hope that the Government will agree that this needs to be looked at, even at this very late stage. We wanted very much to highlight the difficulties that we think it could present. I beg to move.

Lord McCarthy

My Lords, we fully admit that this amendment should have been raised before. Indeed, what we are trying to get the Government to consider affects both Clauses 21 and 24. It is all about the kind of information that a union has to provide an employer. Under Clause 21 it has to provide information about a ballot; under Clause 24, we assume that the ballot has been held, there has been a majority and now there will be a strike. It has to give the same kind of information under Clause 24 as under Clause 21.

I am not blaming the Minister, but in introducing these changes he said a number of things quite fast. Until one read what he said on Report in Hansard, it was not quite clear. He said that the changes being included here would improve the wording. We are not sure that they do. He said that they would remove the confusion but we do not think that they do. He said that they were technical but, when you think about it, they are much more than technical. We are in fact extending quite significantly—and we have done this since 1992 and 1993 when the measure was introduced by the previous government—the kind of information that the union has to provide in a potential industrial dispute.

We must think about that, because it was said at the time, as many noble Lords will remember, that it is very important that certain types of information should not be given. For example, we should not make the union tell the employer who the workers are. That was admitted at the time and I am not suggesting that we are doing that. It was said that there had to be a balance. In other words, the things that go on the forms that are sent to an employer help him or her. If those things are of a certain type they may not help the union. That is why we said that the names of the workers involved should not be included.

However, I am not at all certain that an employer could not work out who the workers were, because we have to declare all the workplaces involved, the number of workers and the categories of work. It might be quite easy in certain circumstances to work out who was likely to be involved in the industrial action. You might say, "Well you'll find out when it starts so what's the difference?" However, if one knows a fortnight or three weeks in advance that a union is planning industrial action that is not quite the same, is it?

Moreover, I am not saying that employers should not be allowed to do such things, but the employer might say, "The problem is really in workshop four, because hardly anybody is coming out anywhere else. But it is critical because 200 or 300 people are involved and they are all coming out. They all voted in favour. That is the place where we have to divert the work. It is no good sending any work to them because there will not be anybody there to do it". Or he might say, "This is where we have to get the supervisors to do the work". Different information is being given to the employer and one would not expect the employer to do anything other than make the best use of it. We might be creating serious problems for a union organising a strike.

Finally, the union might be inaccurate. That is dealt with in the Bill, I know. However, if the union were inaccurate and put down the wrong names, included people who had moved somewhere else or thought that all it had to do was send a check-off return of people who had their money taken out through DORCAS— deduction at source—that might very well be out of date or inaccurate and might not include all the people involved in the dispute. Technically, the return could be inaccurate. If it were inaccurate and if an employer were bloody-minded enough and alleged that it was inaccurate, the employer could get some kind of interim injunction to prevent the action.

I am not criticising an employer who does such things. If they are allowed by the law they should be done. But we have to provide a balance. We have to find something that is fair and equitable to both sides. This measure is creeping forward. I ask the Government, even at this late stage, to think about whether all these words, clauses and conditions are strictly necessary. I support the amendment.

The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville)

My Lords, my noble friend raised some interesting questions, but they do not relate to what can fairly be described as a technical amendment. The amendment proposes that we leave out, workplaces at which the employees concerned work and insert, workplaces of the employees concerned", which is a fairly technical point. The amendment relates to the terminology used in the pre-industrial action ballot notices to describe the workplaces of those involved. It has the effect of reversing one of the technical amendments that were tabled by the Government on Report.

At Report we stated that our purpose in referring to the, workplaces at which the employees work", was to ensure consistency and clarity across various provisions in trade union law. New subsection (2I) of Section 226A, which Clause 21 would insert, defines the meaning of "workplace" in this context and clarifies the position of a person who works from several premises.

Let me assure my noble friends that the amendments in this area that were accepted at Report were designed entirely to ensure the consistency and clarity mentioned. They were not intended to narrow the scope of the provisions, but to improve the way in which they deal with the position of workers working at or from more than one set of premises. I do not believe that they have any effects with which my noble friends would not agree. In our view, there would be potential for unnecessary confusion to arise if different constructions were used to describe "workplaces". The courts might be tempted to infer that some difference in meaning was intended between, workplaces at which the employees concerned work", and, workplaces of the employees concerned", simply because those different formulations had been used.

My noble friend Lady Turner raised the question of peripatetic workers, or people who work in more than one place. The union would, as she said, normally need to indicate the premises with which the employer's employment had the closest connection. Of course, the information given by the union is required to be as accurate only as is reasonably practicable, in the light of the information available to it. It follows that if there was inadequate information available about the premises with which a peripatetic employee's employment had the closest connection, a failure to include information in the notice would not result in any breach of the clause's requirement. Clause 21 does not extend the information which the union should supply.

I hope those explanations satisfy my noble friends, and I urge my noble friend to withdraw the amendment.

Baroness Turner of Camden

My Lords, I thank my noble friend the Minister for that explanation. I fully agree that we should perhaps have raised this matter on Report, when the whole issue of workplaces was before the House. As I explained, I did not do so until I looked at the Bill as amended on Report; then the problem arising from workplaces immediately became apparent to me. However, I am grateful to my noble friend the Minister for his assurance that the union must produce information only as reasonably accurately as it can be expected to do so. In other words, there is a certain cover for a union not being able to produce information because of the spread of the workplaces, and so on. Of course, we shall have to see how that works out in practice. I hope that our fears are not justified, and I am grateful for the assurances that have been given, which now appear on the record. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 [Dismissal where employees taking protected industrial action locked out]:

Lord McCarthy moved Amendment No. 13:

Page 29, line 42, leave out "eight" and insert "twelve"

The noble Lord said: My Lords, we have a quite unique position here, which we are very pleased about. This is really an amalgamated amendment; those who saw the previous amendments will know that we tabled an amendment in precisely the same words, only to find when the list came out that the Government had tabled an amendment in precisely the same words as us. I have been in this House for almost 30 years, and I have never known the Government and Back Benchers to table identical amendments. At least it means that the amendment is likely to go through. We are very pleased about that.

The point is that we have tried to get this amendment into other Bills; we tried to get it into this Bill, and we tabled it in Committee and on Report. The Minister gave very good arguments for his point of view, which I shall not go through because it would not be fair. The fact is that the Government have agreed with us, but I cannot give them 10 out of 10.

What are we doing with this amendment? We are extending the period in which there is protected industrial action, in our sense. I say in our sense because one is not protected—one can be dismissed. If one was dismissed one might get compensation, but one will not get reinstatement. So it is not a proper right, but a right not to be dismissed without compensation. That is what it is.

The period is going to be extended from eight weeks to 12 weeks. Some people said, when we tabled the amendment before—I believe they were members of the Opposition, but perhaps it was in another place—that such a measure would foster a great deal of industrial action. The Government in reply said that it would not, because there were only three or four strikes that lasted eight weeks last year, and that there would not be a lot more that lasted 12 weeks. That is right: people go on strike, and in my experience as an arbitrator or mediator of 30 years or so, if they do not get something in the first fortnight, they had better go back to work, because they are not going to win. Nevertheless, some of them do; some of them feel that they have to protest; some of them feel that they are defending the position of people who have been dismissed. That is what they do.

I fully accept that this Government have done quite a lot to improve on that condition and make the eight weeks a real eight weeks; that has been their defence so far. Now they are making the period 12 weeks. However, there is something that they are not doing—and we must say this, because we say it every time, and all of a sudden the Government do something, so we must go back and say it again. What workers are entitled to, and what workers have in virtually every other European country, is an indefinite right to strike—because in that case, one does not break the contract, one suspends the contract. In virtually every other European country you suspend the contract. That constitutes a right to strike. That means that you cannot he dismissed and if you were dismissed you would be reinstated. That is a proper right to strike. However, we do not have that in this country. The measure does not result in a vast number of strikes in Switzerland, Germany or France because people go back to work. They go back to work because they are losing money. We are not suggesting that they should be paid. They go hack to work because in most cases they know that if they cannot get somewhere in a short period of time, they had better go back to work. That is a right, or it should be a right, but it is not. Therefore, I am afraid that I cannot give the Government 10 out of 10.

When I was at school we were marked for effort and achievement. I give the Government two for effort but I cannot give them more than one for achievement. They have to do better. However, they have done well tonight and I am very pleased to move this amendment. I beg to move.

Baroness Miller of Hendon

My Lords, unlike the noble Lord, Lord McCarthy, I have never been a teacher. Therefore, I would not dream of giving the Government marks out of 10. However, in the meeting that we had with the noble Lord, Lord Triesman, he certainly satisfied me that the amendments were perfectly acceptable. We therefore obviously accept them.

Lord Triesman

My Lords, I wish to speak to Amendment No. 13 and to Amendment No. 43 to the schedule. I thank the noble Baroness, Lady Miller, for her kindness in responding to what we have attempted to do. I appreciate how hard it will have been for the noble Lord, Lord McCarthy, to have waited 30 years for a first, but I would have hoped that, having achieved one, he might have accorded us more than one or two out of 10. I always thought in the days when I taught in universities that when you had exactly the same words as on the examiners' guide script, 10 out of 10 was about right. That was the basis on which I always worked.

As my noble friends have explained. the aim of this amendment is to extend the basic period of protection against unfair dismissal for employees taking lawfully organised official industrial action from eight to 12 weeks. The amendment itself increases the protected period accordingly.

We have debated the protections for those taking part in industrial action many times both during our consideration of this Bill and in the passage of the Employment Relations Act 1999. Trade unions have called for an indefinite protection for workers taking part in lawful action. My noble friends have pointed out that several European countries have laws which ensure workers cannot be sacked at all for taking industrial action. The noble Lord, Lord McCarthy, made the point that there is not an explicit right to strike in UK law. I do not think that there is a need for such an explicit right. Our law is very clear: it provides the necessary freedoms to take industrial action as it stands. In particular, Section 236 of the Trade Union and Labour Relations (Consolidation) Act 1992 ensures that no court can compel a person to work. The Government take the position that it is necessary to put a time limit on the period during which it is automatically unfair to dismiss someone taking protected legal industrial action. We need to balance the legitimate interests of the employer with those of the union members.

However, we have taken note of the very strong views that have been expressed by trade unions and others on this point. On reflection, we consider that a modest extension of the protected period would address their concerns adequately. Of course, most industrial action is shortlived. The existing eight-week period covers the bulk of industrial action. Estimates by the Office for National Statistics indicate that 93 per cent of stoppages last fewer than eight weeks. The corresponding figure for industrial action lasting fewer than 12 weeks is 96.5 per cent. So we are really talking about a tiny number. Stoppages are themselves at an all time low since records started 84 years ago, in 1920. In 2003, there were just 133 stoppages.

Our review of the Employment Relations Act 1999 noted that industrial action remained relatively low in the UK since the eight-week period of protection was introduced. In fact, stoppages have been going down to an all time low. The extension to 12 weeks will not adversely affect the amount of strike activity. It may give valuable additional time on occasions for parties to resolve disputes amicably before the potential sanction of dismissal becomes available to the employer.

We have listened to the views on all sides, and believe that the Government should lend our support to the amendment and the amendment grouped with it. We do not believe that it will adversely affect employers or the climate of industrial relations, so I strongly commend it to the House. I thank the Opposition for their attitude to it.

Baroness Turner of Camden

My Lords, I welcome the amendment. As has been said, it is the same as an amendment that my noble friends and I tabled at an earlier stage of the Bill. The unions welcome the change. It is progress, so I thank my noble friends for the acceptance of the case that we made.

On Question, amendment agreed to.

Clause 28 [Inducements relating to union membership or activities]:

Lord McCarthy moved Amendment No. 14:

Page 31, line 42, leave out "sole or main"

The noble Lord said: My Lords, we are coming back now to our old friend "sole or main". We do not apologise for that. We are coming back to our old friend the Wilson-Palmer judgment, and we do not apologise for that. We accept that the Government have gone a long way in trying to come to terms with the Wilson-Palmer judgment. It is difficult in the sense that we get decisions out of the international courts, but they do not always give us the precise words that we should put in our statutes in order to comply with what they want us to do. Therefore, there is an area in which the Government have to work it out for themselves, which is what they have done.

In our opinion, and in that of all kinds of authorities—I trotted them out last time that we debated the matter, so I shall not do so tonight—there are two ways in which the Government have not yet fully complied with the Wilson-Palmer judgment. The second—the provision of appropriate rights for the trade unions involved—will be dealt with by my noble friend on the next amendment. I am talking not about that, but about our old friend "sole or main".

The Government have said that there must not be discrimination or inducement short of dismissal if the "sole or main purpose" is to discriminate. We say that the provision should simply say "purpose", not "sole or main purpose", for several reasons. The most important reason is that it is unenforceable, in practice. Once one says "sole or main", the employer can say, "That wasn't my main purpose; it was just a passing purpose. It is true that as a result of this, people do not have collective bargaining rights and cannot have grievances any more. It is true that a lot of people dropped out of the union, but that's incidental. My main purpose was to improve industrial relations or some other thing". There is nothing in the provision to say what that other thing should be. Making the provision unenforceable is not what the court wanted the Government to do.

The employer could do many things if the provision did not say "sole or main", but simply "purpose", which is what we want. The argument of the Government against our attempt to take "sole or main" out of the Bill, if I understand it so far, is that it would unfairly restrict the ability of British employers to maintain and improve their efficiency. We never get examples of what British employers will not be able to do if the Bill says "purpose", not "sole or main purpose". I would like to know.

Suppose an employer wants to promote someone because he thinks that they are a better performer than someone else. So long as he does not discriminate—so long as it cannot be shown at a tribunal that the only people whom he promotes are non-unionists—what is the problem? It is only if he has the nefarious purpose of an undercover desire to discriminate against trade unionists that he cannot do what he wants to do.

Suppose he wants to give plus payments based on performance. Suppose he wants to rejig the joint valuation scheme. No one is preventing him from doing that—you could do that in unionised and non-unionised places of work. There is no reason why certain aspects of the relationship between the employer and the individual worker should not be subject to collective bargaining—and many agreements have that provision. Collective bargaining does not count for everything anywhere. So I can see no reason, if the amendment was accepted. that it would prevent in any way a British employer keeping his organisation up to date. But, it would do something to prevent some discrimination. Therefore we ask the Government to consider the matter again. I beg to move.

8.30 p.m.

Baroness Turner of Camden

My Lords, we return to this issue because it is an important part of the Bill. Part 3 is about inducements to workers made by employers to make them abandon union representation. As it stands, the Bill would allow an employer to plead that offering inducements to abandon union membership or activities or the right to be represented was not his sole or main purpose. The words "sole or main" give the employer a loophole to construct all kinds of other reasons, once challenged at a tribunal. The Select Committee on Human Rights has already drawn attention to the problems that this matter could raise and the Government have been inclined to agree that, in any event, the whole issue should be kept under review.

The Third Reading presents a last chance, as I see it, to try to get the wording right—and by that I mean, beyond challenge, because I do not believe that it is beyond challenge now. What is wrong with having wording that simply refers to the "purpose" of the employer, as suggested by my noble friend in moving the amendment? I hope that my noble friends on the Front Bench will reconsider their attitude, because the matter is important.

Baroness Miller of Hendon

My Lords, the noble Baroness and the noble Lord have pursued this amendment throughout the passage of the Bill. The reasons why it cannot be accepted that have been given previously are still valid. They are reasons with which I entirely agree. It would be too rigid and too prescriptive. It would mean that there could be no deviation whatever, for whatever cogent reason there may be for an individual employer and employee to vary a collective agreement made with the union, or for that matter, for an individual firm, or branch to enter into a separate agreement with all of its employees, varying a collective agreement affecting a whole ind ustry.

I have the greatest respect, admiration and, indeed, affection for the noble Baroness. But her attitude to the immutability of a collective agreement reminds me of the Ruhaiyat of Omar Khayyam: The moving finger writes; and, having writ, moves on: nor all thy piety nor wit shall lure it back to cancel half a line, nor all thy tears wash out a word of it". Collective agreements are not written by the moving finger of fate nor are they set in concrete. There will undoubtedly be occasions when employers and employees may find it necessary and reasonable to enter into arrangements that vary from some collective agreement.

In a free society there is no reason whatever why they should not be allowed to do so. There is no reason why they should be bound by a rigid regime based on the principle that the union knows what is best for individual workers or for their employers.

I am not going to cite specific examples, but your Lordships will be aware of instances where strict adherence to demarcation lines have resulted in industrial disputes and even inter-union disputes—in one set of cases contributing to the demise of the ship-building industry. It may be necessary to depart from a collective agreement to allow for more flexible working, either as to hours worked or flexibility over the tasks to be performed.

If the amendment is carried it would mean that there could be no variation from a collective agreement, however valid, however necessary and however urgent the need. I also have strong personal reasons for supporting the wording as it now appears in the Bill. Perhaps my one and only historical claim to legislative fame is, or was, Section 17(4) of the 1999 Act, which specifically permitted variations from collective agreements under clear and strict conditions.

Those conditions expressly prohibited variations which might inhibit a worker from being a member of a union, or from supporting a recognition vote, or from participating in union activities. In that respect, I had anticipated by some five years the decision of the European Court of Human Rights in the cases of Wilson and Palmer.

This amendment was designated by the TUC as "the Miller amendment" when it immediately demanded its repeal. It will in fact be removed from the statute book when this Bill is passed, the section never having been brought into effect by the Government.

Throughout the passage of this Bill, and particularly when I reintroduced the Miller amendment in Grand Committee, the Government have insisted that the provision to which they had solemnly bound themselves in a compromise agreement made with me at the beginning is that it would be covered by the inclusion of "sole or main", which they say means that some variations from a collective agreement can be definitely permitted.

I want to quote the words of the noble Lord, Lord Sainsbury, in response to my amendment. He said: To motivate employees, all sorts of performance pay systems are in force…We have no desire to restrict employer freedoms in this area, as long as their actions are driven by the right business motives. We believe, however, that the existing wording of these clauses, including Clause 28, already provides the necessary safeguards and flexibilities".—[Official Report, 15/6/04; col. GC148.]

I promised the Minister that I would carefully consider his remarks, as I always do, and in fact during the Recess I had a very useful meeting with the noble Lord, Lord Triesman, and subsequently some discussions with officials at the DTI. I have again been reassured that the use of the words "sole or main" in the Bill absolutely ensures that bona fide agreements between employers and employees varying collective agreements are still permitted as long as they are for genuine business motives and do not inhibit a worker's rights to belong to a union or to engage in its activities. I have also been assured by the noble Lord, Lord Triesman, that the Government have had their opinion confirmed by counsel.

Finally, I have been promised that the Minister, when he replies to the debate, will confirm the Government's and counsel's interpretation of the legal position as well as their attitude stated in Grand Committee. I look forward to hearing the Minister repeat his rejection of this amendment and re-assertion of the principles of freedom of negotiation that I had previously established with the Government in the 1999 Act.

Lord Sainsbury of Turville

My Lords, I shall speak to Amendments Nos. 14, 17, 22, 23, 24 and 26. These amendments remove the various references in Clause 28 to the "sole or main" purpose of the employer making offers. We discussed the same or very similar amendments both in Grand Committee and on Report. This is therefore well-trodden ground and, in responding to these amendments, I will need to repeat points I made at those earlier stages in the Bill's passage.

The words "sole or main" are an essential component of the regime we are seeking to construct. They are necessary to ensure that employers have some flexibility in setting their reward systems. The noble Lord, Lord McCarthy, asked for examples of what we meant and then proceeded to give some good ones. The noble Baroness, Lady Miller, gave some more.

Why do we not agree to the proposal? We do not consider that employers should be prevented from making offers for justifiable business purposes just because a by-product is that a worker accepting the offer will not or will cease to have some of his terms determined under a collective agreement. That would, I fear, be the effect of these amendments.

I assure the noble Baroness that our proposals would retain the freedom of employers to pay workers more than the amount set in collective agreements in recognition of the extra contribution they make to the business. As I said in Grand Committee, we want to allow employers to reward success and keep hold of key staff. Often collective agreements give considerable scope for such additional payments to be made to key workers. However, in cases where they do not, our proposals will ensure that offers of additional payments which represent a departure from the collectively agreed amount would be lawful where the sole or main purpose of the offer was not to undermine the collective agreement to reward the workers involved.

That has been our deliberate policy intention from the outset in devising our response to the Wilson and Palmer judgment. Indeed, we made our intentions clear in this matter over a year ago when the initial findings of the review of the 1999 Act were published. As ever, the legal draftsmen have carefully carried out our wishes in this respect: necessary pay flexibility will be retained.

My noble friends consider that the sole or main test will allow employers who are ill-intentioned to evade the law. We do not share that view as tribunals are expert at making the kind of judgments required and can distinguish between true and fabricated accounts by employers of their underlying purpose. That is what they do every day in unfair dismissal cases. To assist the tribunals, we have placed the burden on the employer to demonstrate what was the sole or main purpose of his actions.

We believe that our proposal is compatible with the Wilson and Palmer judgment and fully respects the human rights of trade unionists. The Joint Committee on Human Rights has considered the matter in some detail and it accepts that there is a case for retaining the sole or main purpose test.

As we confirmed on Report, the Minister with responsibility for employment relations, Gerry Sutcliffe, has also written to the Joint Committee confirming that the Government will monitor the operation of these provisions when they come into force. Therefore, we shall monitor the provisions to make certain that they act in the way that we want. In the light of that explanation, the Government cannot accept the amendment and, once again, I ask my noble friend to withdraw it.

Lord McCarthy

My Lords, what surprises one most is the a priori certainty that the people who oppose the amendment have in the face of what is basically an empirical question. I am perfectly prepared to take the empirical test, and in effect that is what the Joint Committee is saying. If, in the next two or three years, we have a spate of cases before tribunals in which workers allege that they have been discriminated against and the tribunals say, "Well, sole or main; we haven't proved that", surely that would be evidence.

The Minister says that he is certain that if we pass this provision as it is and if our amendment is not accepted, it will be perfectly all right. I cannot prove that it will not be perfectly all right, and so there is an empirical proof. If workers go to a tribunal, they may think that it is all useless, but ultimately we should have some information as to whether it is true that tribunals can distinguish. Perhaps I may say to the Minister that it is not saying much to state that tribunals distinguish other things. They sometimes do it very badly, and we have evidence of that.

Therefore, we are not automatically satisfied with the distinctions that tribunals make and we do not know how this measure will work out. In a few years' time, an empirical investigation somewhere will tell us whether this sole or main test is worth the paper that it is written on. I am saying that we should give the workers the benefit of the doubt. I say that because I am never told—I have not been told tonight—what the improvements in efficiency and effectiveness are that will raise productivity, which cannot be done unless trade unions are discriminated against. If you want variations, you can negotiate them. Collective agreements are not monoliths. Of course, you can negotiate them or you can give people things because they are meritorious and efficient so long as you do not do so with a discriminatory purpose in order to drive them out of a union. That is all.

The Government say, "Oh, it will be all right because the tribunals will be able to tell". We say, "We don't think so", and so we say that we should wait and see. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.45 p.m.

Lord Triesman moved Amendment No. 15:

Page 32, line 26, after "worker" insert "or former worker"

The noble Lord said: My Lords, this group of amendments makes two specific sets of changes to the clauses of the Bill that implement the European Court's judgment in the cases of Wilson and Palmer. The first set of amendments deals with an issue raised by the Joint Committee on Human Rights about members of non-recognised unions. The second set deals with the definition of a worker for the purposes of the new rights and the existing protections against detriment. I shall deal with them in turn.

The Joint Committee on Human Rights has drawn attention to the fact that new Section 145B provides rights to the members of recognised unions only. They consider that, in cases where a union is seeking recognition, new Section 145B needs to provide comparable protections to ensure that members have the right not to be offered inducements by the employer for the purpose of securing that their terms will not be determined by collective agreement in the future. In Grand Committee we gave an undertaking to look closely at the point.

Having looked at the arguments put forward and consulted with stakeholders, we have concluded that the Committee's analysis is correct. We had previously considered that the statutory recognition procedure would provide sufficient protection in these circumstances, and deter employers from making offers of this type. However, as the JCHR has pointed out, the statutory procedure has many stages within it and does not provide a speedy remedy. And, of course, it does not apply to all sizes of employer.

My noble friend Lord Sainsbury also mentioned in Grand Committee that extending the protections in Section 145B might create inter-union difficulties where a non-recognised union could use the new right as a lever to challenge or inconvenience an established union which was already recognised. We have examined that possibility very carefully. We have concluded that union rivalry, although much diminished in today's climate of industrial relations, can still surface from time to time. However, although we think it conceivable that an employer might make offers of this kind to the members of a rival non-recognised union, we do not think this is likely to occur in practice. If it did, we do not think the members should be without the protection given by the clause; an employer has a number of ways in which he can resist granting recognition rights to a rival unrecognised union and he should not attempt to do so by offering inducements to its members.

Finally we do not think, having further considered the matter, that there are any circumstances in which it is realistic to envisage an unrecognised union being able to make use of the protections as a lever to challenge the position of a recognised union. So, to ensure our compliance with the ECHR judgment, we believe that the scope of new Section 145B can safely be extended without threatening the stability of industrial relations.

The amendments will work in this way. Currently, Section 145B applies to a worker who is a member of an independent trade union which is recognised. Amendment No. 16 includes workers of a union which is seeking to be recognised, thus ensuring that those workers are protected. Amendment No. 18 accordingly expands the "prohibited result" provided for in Section 145B(2) to ensure that inducements made with the sole or main purpose of preventing individuals from having their terms of employment agreed by collective bargaining in the future are also covered. Amendment No. 25 makes a consequential change to new Section 145D(4) which sets out a number of matters which the tribunal must take into account when assessing the employer's sole or main purpose.

I shall describe the second set of amendments briefly. It concerns the definition of a worker for the purposes of Sections 145A to 145E, and for the purposes of the existing Sections 146 to 150 of the 1992 Act.

The facts of the Wilson and Palmer cases concerned the position of employees who were union members. However, the court's reasoning would equally apply to other categories of worker in employment. Clauses 28 and 29 of the Bill therefore apply both the new rights regarding offers and the related existing rights within Section 146 of the 1992 Act to the broader group of worker.

We have, however, noticed a technical flaw in the result produced by the new provisions. The definition of worker, which is given in Section 296 of the 1992 Act, covers people seeking work and, unlike the definition of employee, is not limited solely to those who are in, or have been in employment. It was never our intention that the protections should extend to those seeking work. Their trade union rights are contained in Section 137 of the 1992 Act. It would create confusion and uncertainty if we created overlapping rights for that particular group of people within different parts of trade union law.

So, to avoid such confusion and ensure that the rights are confined to the target group, these amendments secure that the definition of "worker" is adjusted so as not to apply to those seeking work.

These amendments implement a recommendation of the Joint Committee on Human Rights. They make technical changes to ensure that the Bill fits more smoothly into the substantial body of existing trade union law. I am sorry about the complexity of them but I do commend them to the House. I beg to move.

Baroness Turner of Camden

My Lords, as my noble friend has said, the issue of unrecognised unions was raised by a number of noble Lords during previous discussion of the Bill. We were concerned that the protections did not at that time extend to members of unions seeking recognition. That has now been remedied in these amendments and I am very grateful for it.

On Question, amendment agreed to.

Lord Triesman moved Amendment No. 16:

Page 32, line 31, after "recognised" insert ", or seeking to be recognised,"

On Question, amendment agreed to.

[Amendment No. 17 not moved.]

Lord Triesman moved Amendments Nos. 18 and 19:

Page 32, line 39, leave out "no longer" and insert "not (or will no longer)"

Page 33, line 1, after "worker" insert "or former worker"

On Question, amendments agreed to.

Baroness Turner of Camden moved Amendment No. 20:

Page 33, line 3, at end insert— ( ) An independent trade union may present a complaint to an employment tribunal on the grounds that an employer has made an offer or offers to a member or members of that union in contravention of this section. ( ) If the tribunal finds the complaint well-founded, it may make a declaration to that effect.

The noble Baroness said: My Lords, noble Lords will recall that one of our complaints during an earlier debate on the Bill was that although a remedy existed for an individual employee offered an inducement to abandon union membership or representation, no remedy was offered to the union, although its rights had also been breached by the employer's activity. Indeed, the Joint Committee on Human Rights also drew attention to the fact that in these activities the union's rights would also have been breached.

During earlier discussions we sought to write into the Bill a remedy for a union so affected, but the Government were not disposed to accept it. We slightly reworded our original amendment and I think that we have made the situation a bit clearer. The amendment provides: An independent trade union may present a complaint to an employment tribunal on the grounds that an employer has made an offer or offers to a member or members of that union in contravention of this section", and, If the tribunal finds the complaint well-founded, it may make a declaration to that effect". It seemed to us a reasonable way in which to offer some sort of remedy to the union.

The Government have said in previous discussions that the amendment was not necessary because the union had other means of enforcing its rights. I do not think that that will meet the situation. It is not clear from the Bill because the Bill deals specifically with inducements offered to get people to abandon union representation. It is necessary to set out in this Bill a remedy for the union whose rights have been breached by the activities of the employer. I beg to move.

Lord McCarthy

My Lords, this is the issue on which the Joint Committee was most specific. It said that the unions should have rights and that these rights were specified in the judgment of the court. There is no debate about this at all. The Government have helped to do something, as my noble friend just said, to implement a bit more of the judgment, but they have not got there yet, and certainly not on this one. Indeed, when we discussed this on Report, the Minister said that that was true. You are right, he said, that is what the Joint Committee said. So he submits that he is out of step with the Joint Committee.

I want to read what he then said because I want to ask what he has done about it. He said: This is in fact a far-reaching idea which runs counter to the way all other individual employment rights are currently enforced". So far, we are not coming to terms with what the Joint Committee said. So I would like to ask what that means. I have asked several noble lawyers this and they cannot tell me what it means to say that to give a union a right in front of an industrial tribunal because its members have been wronged would be counter to the way all other individual employment rights are currently enforced. But all other individual employment rights are not of this kind. What problem would there be—especially since that is what the Joint Committee says and what the Wilson and Palmer judgment says? What would be the difficulty?

He continued: it requires very close consideration indeed. We are therefore seeking the views of key stakeholders"— I thought that we might get a definition of stakeholders. I have never yet seen a definition of stakeholders, but perhaps the Minister will give us one tonight— both employer bodies and unions"— so that is what they are, really— before finalising our position". But which unions? All the unions in the TUC? All unions that say that they have had this problem? He said: For example, just yesterday my colleague Gerry Sutcliffe met a delegation from the NUJ that included Mr Dave Wilson of Wilson and Palmer". So there is a bit of research going on here. That is good. These consultations will be completed by Third Reading". But we have not heard about them. In the light of the ongoing consultations on both issues, I ask my noble friends to withdraw their amendments".—[Official Report, 8/7/04: col. 938.]

The Government ought to tell us what has happened with all that talk to all those stakeholders. Have they found ways in which the judgment does not say what I think it says but what the Minister told me it says? Have they found ways in which enforcing the judgment would run counter to the way that individual employment rights are currently enforced? I should be very interested to know what Mr Dave Wilson of Wilson and Palmer thinks of it all so far. I support the amendment.

Lord Triesman

My Lords, this amendment deals with whether the union should have a right to seek a remedy in its own name. As has been pointed out, that is one of the issues raised by the Joint Committee on Human Rights. We indeed discussed the point in Grand Committee and on Report. In response, we said that the Government would look closely at the points raised by the JCHR and return to the matter on Third Reading.

Consultations have taken place with key stakeholders. The DTI has consulted the TUC, the CBI, the EEF and the NUJ, including Mr Wilson, and I know that others have also written and made their views known. I do not intend, nor would the House expect me, to comment on the views of some individual members in unions, other than to say that their views were considered in some detail.

I can respond to the amendment and come back, as we promised that we would, with our considered view. It is a difficult issue. I know that my noble friends and the trade unions hold strong convictions on this subject. However, on balance, we believe that the Bill should be left as it is. As a result, we resist the amendment. There are several reasons for that attitude and I think that, in view of what has been said, I should go through them.

At the moment, the clauses are constructed in a way that provides rights to individual union members. The rights are then enforced in the normal way by those individuals complaining to an employment tribunal. The construction of the new rights therefore follows the established pattern which, by and large, has worked satisfactorily. We therefore do not want to move away from that tried and tested approach by creating an entirely new enforcement mechanism for unions to complain independently.

9 p.m.

My noble friends have said that the terms of the European Court's judgment in the Wilson and Palmer case require us to establish this new remedy for unions. They quoted from the judgment at some length on Report. However, we have considered this matter carefully, in the light of all the representations and arguments made to us and the Joint Committee's comments. We do not think that it follows that we need to create a separate union remedy in our domestic law simply because the European Court refers to the rights of unions under Article 11 of the European convention. The Article 11 rights of the union can be adequately safeguarded by assigning rights to union members under our domestic law and providing remedies for those members to enforce their rights. In other words, we remain strongly of the view that we are adequately protecting the Article 11 rights of the union, as the judgment requires, by providing a right for union members to complain about breaches of their own rights.

I think that the Joint Committee on Human Rights saw the strength of that argument. It expressed concern, however, about the protections available to the union where none of its members was prepared to make a complaint. This is largely a practical issue. Of course, neither the Government nor unions can force union members to make complaints; that is quite rightly a matter for them as individuals. However, it is normal practice in such situations for unions to advise and assist their members in making complaints and in providing free of charge the legal advice and services that they may need. I have seen that over many years in practice. There are also strong statutory protections against the victimisation of workers who make complaints to tribunals about infringement of statutory rights. I am therefore confident that individuals would complain if significant breaches of their trade union rights arose in practice.

I understand that my noble friends take a different view and feel that union members might well be intimidated by their employers and therefore unwilling to complain to a tribunal. However, if that issue is really a problem in practice, it will not disappear by providing a separate remedy for unions. To progress their own cases, unions will need the active support and participation of those very members in providing evidence. If they are so intimidated by their employers as to prevent them from making complaints in their own name, it is highly unlikely that they will lend their support to the union in bringing its complaint. Anyone who has operated in the practical world of trade unions when trying to remedy such issues will know the truth of that.

We have tabled further amendments for Third Reading which extend the new protections to union members seeking recognition. We are satisfied that with these further amendments the Wilson and Palmer judgment will be given full effect through the provisions in the Bill. I know that my comments will disappoint my noble friends, but the Government are satisfied that their proposed approach to enforcing these rights is robust and compatible with our obligations under the European convention. In that light, I ask my noble friend to withdraw her amendment.

Baroness Turner of Camden

My Lords, I thank the Minister for his comprehensive response, although he will not be surprised to know that we find it rather disappointing. He acknowledged that unions would be disappointed because their view is that they should have a right that should be enforced within the context of the Bill. I am disappointed because reliance on individual rights does not always produce justice; it is often difficult for individuals to stand up and be counted and to have their case taken forward. That applies in other legislation, including equal rights legislation, where one must find individuals to take forward a case. It is not always easy to do that. That is one of the reasons why unions, my noble friends and I wanted written into the legislation a protection of union rights. That proposal was supported by the Joint Committee on Human Rights, which recommended that there should be a remedy for unions and that it should be written into the Bill.

One can only hope that, when the legislation is in place, it will be possible for the protection to which the Minister refers to be fully operative, and for individuals to be protected. That is really what we are talking about. If you give unions the right to take cases forward, you are protecting individuals, who do not have to stand up to be counted and run the risk of being intimidated by their employer. There is no point in proceeding any further with the matter at this stage. I am disappointed: I had hoped that there would be a change of view as a result of the consultations that I knew were taking place. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Triesman moved Amendment No. 21:

Page 33, line 9, leave out "worker" and insert "complainant"

On Question, amendment agreed to.

[Amendments Nos. 22 to 24 not moved.]

Lord Triesman moved Amendment No. 25:

Page 33, line 32, at end insert— ( ) that when the offers were made the employer did not wish to enter into arrangements proposed by the union for collective bargaining,

On Question, amendment agreed to.

[Amendment No. 26 not moved.]

Lord Triesman moved Amendments Nos. 27 and 28:

Page 34, line 30, at end insert—

"(2A) In sections 145A to 145E worker" means an individual who works, or normally works, as mentioned in paragraphs (a) to (c) of section 296(1), and employer" means—

  1. (a) in relation to a worker, the person for whom he works;
  2. (b) in relation to a former worker, the person for whom he worked."

Page 34, line 31, leave out "worker" and insert "person"


On Question, amendments agreed to.

Clause 29 [Extension of protection against detriment for union membership etc.]:

Lord Triesman moved Amendments Nos. 29 to 31:

Page 34, line 38, leave out ", (3) and (5)" and insert "and (3)"

Page 35, line 2, at end insert— ( ) In subsection (5), for "An employee" substitute "A worker or former worker".

Page 35, line 10, leave out subsection (7) and insert— ( ) In section 151 of the 1992 Act (interpretation of sections 146 to 150 and supplementary provision), after subsection (1A) (which is inserted by section 30) insert—

"(1B) In sections 146 to 150— worker" means an individual who works, or normally works, as mentioned in paragraphs (a) to (c) of section 296(1), and employer" means—

  1. (a) in relation to a worker, the person for whom he works;
  2. (b) in relation to a former worker, the person for whom he worked."
( ) In subsection (2) of that section, for "an employee" substitute "a person".

On Question, amendments agreed to.

Clause 32 [Exclusion or expulsion from trade union attributable to conduct]:

The Deputy Speaker (Lord Geddes)

My Lords, before I call Amendment No. 32, I should advise the House that, if it is agreed to, I will not be able to call Amendment No. 33, due to pre-emption.

Lord Triesman moved Amendment No. 32:

Page 37, line 40, leave out from "of" to "it" in line 43 and insert "conduct of the complainant which was contrary to—

  1. (a) a rule of the union, or
  2. (b) an objective of the union,"

The noble Lord said: My Lords, Clause 32 gives employment tribunals greater discretion to decide the amount of a compensatory award in cases in which an exclusion or expulsion was unlawful because it was mainly attributable to membership of a political party. It disapplies the current minimum award where there were other subsidiary reasons for the union's decision that concerned conduct that was contrary to the union's rules.

During the passage of the Bill, we have discussed the need to ensure that the statute places reasonable obligations on individuals to act in accordance with widely available and accessible information on the union's policies and positions. That is why we refer to the union's rules in the current wording of the clause. However, it must be said that union rule books vary. Some explicitly refer to the union's opposition to racist attitudes or conduct, while others specify only a few proscribed behaviours and leave it to other union documents to set out the union's position on such matters. It is often in such documents that a union's objectives on equality are made known to union members and others.

We recognise, therefore, that there are justifiable concerns about the adequacy of relying only on rule books to ascertain the union's position on equality issues. As a result, we gave commitments in Grand Committee to look again at the area. We have worked closely with the TUC to devise alternative wording that meets the needs of unions and our requirement for transparency, and I am pleased to be able move Amendments Nos. 32 and 34 to meet that need.

I shall say a word about how the amendments will work. In combination, the amendments disapply the minimum award, where the subsidiary conduct is contrary to the union's rules or contrary to the union's objectives, provided that it was reasonably practicable for the person concerned to have ascertained the objectives in question. Because we think that more information about a union's objectives is likely to be available to union members than non-members, the requirements are cast differently for those different groups.

The amendments give the degree of transparency that we have been aiming for and improve the practical implementation of the clause. They satisfy the TUC's concerns on this point, and I hope that noble Lords in all parts of the House will accept them.

The Deputy Speaker referred to the amendment tabled by my noble friend Lady Turner of Camden. She seeks to achieve a similar result by broadening the test that disapplies the minimum award by adding subsidiary behaviour that is contrary to the stated objectives of the union. As was mentioned in Grand Committee and on Report, the fact that something is stated does not necessarily mean that it is sufficiently accessible to the relevant individuals and therefore capable of influencing their conduct. Our fear is that the wording of the amendment would give rise to unnecessary legal debate before the tribunals. The Government have tabled amendments on the matter that meet all the concerns, and, in that light, I invite my noble friend to withdraw her amendment.

In summary, one of the tremendous strengths of the discussions in all parts of this House was the desire to ensure that racist conduct does not afflict unions any more than any other institutions in our society. That has been one of the guiding and driving principles. I thank noble Lords on all sides for their absolute determination to ensure that that happened. I beg to move.

Lord McCarthy

My Lords, we have withdrawn our amendment because the Minister made some very effective points when we last discussed this issue. Now our amendment is not suitable. However, I am not sure about the Government's amendment. I understand that the TUC thinks that it is probably better than the previous one, which it believes was subject to the kind of difficulties of interpretation that the Minister mentioned in the House.

The words, reasonably practicable for that objective to be ascertained worry me. I do not know who has to ascertain the objective. There are the two conditions that have to be accepted in order for a person to be rightfully expelled. New subsection (1D) of Amendment No. 34 states: A declaration by virtue of subsection (1B)(b) shall not be made unless the union shows that, at the time of the conduct of the complainant which was contrary to the objective…it was reasonably practicable for that objective to be ascertained".

Does that mean that the tribunal believes that the objective can be ascertained? "Ascertained" is a funny word. Does it mean that the union should say that it has ascertained it? I do not understand why a statement that someone is anti-racist or if members are caught in racist activities or if they express racist statements of various kinds indicates that the objective can be ascertained. The amendment does not refer to evidence: it refers to "ascertained". I am asking very nicely, late at night, for the Minister to tell me what ascertained means and whether it could be improved on and made clear on going back to the other place.

Lord Triesman

My Lords, in circumstances where an individual's subsidiary behaviour is considered by an employment tribunal, without question it will have the expertise to determine what information was generally accessible by looking at the union's statements and documentation at the time of the exclusion or expulsion and taking account of availability and whether there was any reasonable impediment to someone seeing that material. Perhaps I may say that employment tribunals do that routinely when they consider the general platform of equality and discrimination, in particular when it is said that the union might have been the body that discriminated. That is part of their expertise in looking across the evidence. The evidence is always looked at in very considerable detail.

On Question, amendment agreed to.

The Deputy Speaker

My Lords, as already advised to the House, since Amendment No. 32 has been agreed to, I cannot call Amendment No. 33 due to pre-emption.

Lord Triesman moved Amendment No. 34:

Page 37, line 43, at end insert—

"(1C) For the purposes of subsection (1B), it is immaterial whether the complainant was a member of the union at the time of the conduct contrary to the rule or objective.

(1D) A declaration by virtue of subsection (1B)(b) shall not be made unless the union shows that, at the time of the conduct of the complainant which was contrary to the objective in question, it was reasonably practicable for that objective to be ascertained—

  1. (a) if the complainant was not at that time a member of the union, by a member of the general public, and
  2. (b) if he was at that time a member of the union, by a member of the union."

On Question, amendment agreed to.

Lord Triesman moved Amendment No. 35:

After Clause 43, insert the following new clause—