DOCK WORK REGULATION BILL: CLAUSE 7 (Hansard, 4 November 1976)

§ Lord JACQUES

I am grateful for the opportunity to clear up some of the confusion which arose last night as to the way in which Clause 7 of the Dock Work Regulation Bill is intended to operate and which may partly have arisen because of misunderstandings about the structure of the Bill.

The present Dock Labour Scheme does three separate things: it establishes the specific geographic areas—a list of ports—within which the Scheme is to apply; it sets out the particular work within each particular area to which the obligations and requirements of the Scheme are to apply; and it sets out what those obligations and requirements are to be. The limits of each area and the details of the work are determined by reference to previous legislation. Paragraph 1(3) of the 1967 Scheme states: The Scheme shall relate to the ports set out in Appendix I hereto and at each such port it shall apply to the same classes or descriptions of dock work and dock workers as, immediately before the coming into operation of the said Scheme of 1947, were included in any dock labour scheme or port registration scheme then in operation in respect of that port, that is to say—

(a) at the Port of Glasgow, the Port of Greenock and the Ports in the Merseyside, Manchester and Preston areas, the Ministry of Transport Schemes for Dock Labour at those Ports;
(b) at each of the other ports, the approved dock labour scheme for that port under the Essential Work (Dock Labour) Orders 1943 to 1945(a), or as the case may be, the port registration scheme approved as respects that port under the Dock Labour (Compulsory Registration) Order 1940(b)."

Appendix 1 defines a "port" as: the area of that port as laid down by or under any Act of Parliament, Order in Council, Provisional Order or any instrument made under an enactment passed or made with reference to that port, except where otherwise defined for the purposes of any dock labour scheme referred to in Clause 1(3) of the Scheme, in which case it shall have the meaning set out in that dock labour scheme. 1614WA In fact, nearly all Scheme ports have their limits defined by reference to a war-time dock labour scheme. These are invariably very different from harbour land limits as defined by private Acts and in some cases there are no statutory limits applying to land as opposed to the sea. No other statutory definitions of the area of a "port" exist.

We have made clear our belief that the existing application of the Scheme is unsatisfactory because it is based on definitions drawn up over 25 years ago and that better procedures are needed to determine where the obligations and requirements are to be applied. The Bill therefore sets out the separate mechanisms for the matters covered by the present Scheme. The new Scheme sets out the obligations and requirements which are to apply to those performing "dock work"—and it does no more than that; Clauses 6 to 9 set out procedures for determining whether or not it is appropriate to regard particular work at particular premises as "dock work (or "classified" in the language of the Bill); the cargo-handling zone sets out the area within which it would be possible to consider work for classification and Schedule 3 sets out for the future the work which may be considered for classification. I have set this out in considerable detail because I think there may still be some confusion although I did seek to explain, perhaps unsuccessfully, these complicated matters at Second Reading.

Lord Drumalbyn said yesterday (at col. 1214) that: it seems that the first step that has to be taken is to designate those areas in which the Dock Labour Scheme is to apply; in other words, the Dock Labour Scheme areas. This was not our intention under the Bill as it was before amendment at Committee stage and much of the confusion has arisen because a "dock labour scheme area" was originally a very different concept from the position under the Bill as it now stands. I should like first to explain its significance under the unamended Bill. A "dock labour scheme order" was intended primarily to provide a smooth transition from the 1967 Scheme arrangements to those envisaged under the new Bill. A dock labour scheme order could only be made after the draft of the new Scheme had been approved by Parliament. It would have the effect of applying the 1615WA obligations and requirements contained in the Scheme to any work classified as "dock work" by an order made under Clause 11(1), which was in the area designnated by the dock labour scheme area order. If no work had been classified in the area, then application of the Scheme would have no meaning. Conversely if work had been classified in an area which was not the subject of a dock labour scheme area order, then the obligations and requirements contained in the new Scheme could not be applied and classification would also be meaningless.

In practice, therefore, initially one order would not be made without the other. Subsequently, nearly all classification orders would be made in areas already covered by dock labour scheme area orders. This may seem unnecessarily complicated. But the procedure is needed so that there is no doubt whatsoever about where the 1967 Scheme applies and where the new Scheme applies. Clause 12 sets out the consequences that flow from the application of a dock labour scheme area order. Once a dock labour scheme area order is made, the old Scheme ceases to apply in that area and the new Scheme has effect. Therefore dock labour scheme area orders would not be applied to 1967 Scheme ports until the Clause 6 procedures for that port had been completed. Moreover, although classification orders could be made under Clause 8, they would also have no effect in 1967 Scheme ports until the dock labour scheme area order was made. As far as timing for this part of the procedures is concerned, Clause 6(1) requires the Board to report within six months of the appointed day and then further periods for consultation and consideration are possible.

Clause 7 allows the Board nine months from an appointed day to make its initial report and a further period for representations to the Secretary of State. We envisage that the two procedures would be started off at more or less the same time. The conclusions should also emerge at much the same time. However, the procedures are deliberately designed to allow a much longer period for consideration and consultation where this is needed at a particular place.

Before leaving the dock labour scheme area orders, could I explain the effect, as we see it, of the Amendments and consequential 1616WA Amendments to Clause 4. Clause 7(7) says that the Board shall not make a recommendation under that clause if the work under consideration is done at premises which would be outside a dock labour scheme area designated under subsection (2) of Section 4. The words "would be" seem to us to suggest that the Board has to make a judgment as to whether it would be possible for the Secretary of State to make an order under Clause 4(2) which would apply to those premises. In other words, the Board has to decide whether the premises fall within or without a "dock labour scheme area" as defined by Clause 4(3)-6). Clause (8)1, on the other hand, says that the Board may, in the case of any work done at premises in a dock labour scheme area … make a recommendation. We think it certainly open to doubt whether these words mean that the area has already to be designated by order of the Secretary of State under Clause 4(2) or whether it can apply to an area which might sub-sequently be designated. On balance we incline to the former view because the areas designated by the orders "are then to be known as dock labour scheme areas". This point does recur at various points throughout the Bill.

You may well feel that this does not matter: that the Secretary of State should always make an order before the Board can consider work for classification, and that is a tenable view. The complexities of the definitions of "harbour" and "small harbour" would mean that a great deal of work would be needed which might subsequently be unnecessary if the Board decided not to make a recommendation. There is also the danger that people might think that where he made such an order, the Secretary of State was making a judgment about the desirability of extending the Scheme before hearing the evidence. However, you may feel it right that the Secretary of State should make that judgment. I mention these matters because the point was brought up and, while we are totally opposed to the Amendments on broader grounds, I think you should know our view of these technical aspects.

Perhaps I could now turn to the points raised on Clause 7 and the question of the statement which employers are required to submit. Subsection (4) is intended to contain the minimum information which 1617WA the Board will need to identify the place where the work of loading and unloading cargo is carried on (paragraph (a)); to identify the employer and where he can be contacted (paragraph (b)); to learn the name of any recognised union so that the Board can inform the union of the statutory procedures required by the Bill and invite it to make representations (paragraph (d)); and to decide on its future priorities by learning the numbers employed during the month in question (paragraph (c)). I did not detect any controversy about paragraphs (a), (b) and (d) so I will deal only with the question of priorities under paragraph (c).

There are at least 600 places in Great Britain where cargo has in the past been loaded or unloaded. Many will no longer be in active use. The only public body with anything approaching complete information is the National Ports Council. However, it collects its information under powers in the Harbours Act 1964 to fulfil its statutory functions and, under that Act, is not permitted to disclose that information to anybody. We think it would be quite wrong to change that position. The Department of Employment has acquired much information about ports outside the Scheme during its consultations leading to the Bill. Again we do not think it right that that information should be passed to the Board. Therefore the new Board, when established, will be in the situation where its only knowledge of ports outside the Scheme (in particular of the number of employees engaged at the port on loading and unloading operations and of the extent of their activities) will be fragmentary and based on such information as it is able to acquire from published reports. We think it should, at the time it starts considering to which ports the Scheme should be extended, have as complete a picture as possible.

The information which it receives about numbers employed will enable it to do the following: First, it will be able to decide which are the larger employers who would appear to be of a size able to maintain a permanent labour force. Secondly, it can determine where there are a number of employers operating in the same area who, taken together, Could 1618WA also appear to be of a size able to maintain a permanent labour force. Third, it can see where there might be doubt about whether a permanent labour force could be maintained. We envisage that the Board would wish to tackle examination of the ports in that order.

I fully accept the point that a period of one month may give an untypical picture of the actual employment situation at a particular place because, for example, of seasonal factors. But so equally could a picture of employment over the past twelve months. The port concerned might be in the process of introducing new installations which would lead to its expansion. Alternatively it might be on a river which was silting up so that fewer people might be employed in future so that application of the Scheme would be inapplicable. We would expect the Board to discover the true picture in the course of its investigations. As a long-stop we have specifically provided for the Board to consult the National Ports Council under Clause 7(9) because that body will be aware of such matters and be able to provide advice.

We had not thought it necessary to require that the Board carries out further investigations and consultations after receiving the statement and before reaching its conclusions because it would be unable to fulfil its statutory duties without doing so. It would be impossible, for example, for it to decide whether the criterion in Clause 7(7)(i) was fulfilled. However, I would he prepared to consider this again if you could let me know your reactions in time to draft a suitable Amendment for Third Reading.

The question of sending the statement to the recognised union was also raised. Again, I did not detect any concern in the debate about the information in subsection 4(a), (b) and (d). The union should be aware of the information in paragraph (c) since its own members will be involved in the work. We can see no objections to the union knowing what the employer has said so that it can comment on whether it is typical or not. I am sorry if I misled the House by mention of a trade union veto. That is of course not relevant to work which is being considered under this clause.