House of Commons Hansard Debates for 17 May 1990

New clause 5

Change in terms and conditions of employment

Every trade union shall be given sufficient time to ballot its members on whether or not they wish to take industrial action if their employer seeks to change any of the terms and conditions of his employees' contract of employment.'.-- [Mr. John Evans.]

Brought up, and read the First time.

Mr. John Evans : I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker (Sir Paul Dean) : With this it will be convenient to take new clause 9--

Column 1098

Notice of change in terms and conditions of

employment

Section 15 of the Employment Act 1982 (liability of trade unions in certain actions in tort) will remain in force if an employer changes or attempts to change, without giving at least 14 days notice to the trade union concerned, any of the terms and conditions of his empoloyees' contract of employment.'.

Mr. Evans : Time is pressing, and I shall be brief.

The purpose of the new clauses is to attempt to retain the status quo in what are frequently difficult industrial situations where the work force is at loggerheads with the employer. The specific purpose is to seek to prevent a vicious employer from using clause 6 of the Bill for whatever nefarious ends he may have. Clause 6 would outlaw all unofficial action, not just strikes. If workers take unofficial action--frequently it is taken because an employer procrastinates on some particular problem--their union must "without delay" repudiate the action of its members using the following abrupt and callous words :

"Your union has repudiated any call for industrial action to which this notice relates and will give no support to such action. If you are dismissed while taking unofficial industrial action, you will have no right to complain of unfair dismissal."

If the Government insist on going ahead with this monstrous legislation, they must find a better form of words than that. The point at issue is that, if the union does not repudiate the action of its members, and if any union official, paid or unpaid, down to the lowliest shop steward, has been in any way involved in the industrial action, the union's funds are placed in jeopardy because the employer or customer of the employer is able to sue the trade union. I will not repeat the instances that I gave in Committee, but the vast majority of actions occur when an employer upsets the status quo.

New clause 5 would give trade unions time to ballot their members when such situations arise. New clause 9 would allow the status quo to remain in place for 14 days. In other words, it would allow the union to go into the place where the dispute was taking place and seek to resolve it without bringing in the whole panoply of the law. There is any amount of evidence that the overwhelming majority of unofficial actions in Great Britain have been brought about by employers unilaterally altering the status quo at the place of work. The Minister has already accepted the spirit of one of my amendments. I hope that, in the same spirit, he will accept the two new clauses and recognise that they will assist in difficult industrial situations.

9.30 pm

Mr. Nicholls : I can certainly understand why the hon. Gentleman is concerned, but I cannot go as far as accepting the spirit of the amendments. It is clear that the hon. Gentleman does not like the Bill at all. He does not like repudiation structures and looks at a case where he imagines unofficial action breaking out--where an employer unilaterally alters the terms of contract. The hon. Gentleman will know that there are remedies in the civil courts for employers who try to behave in that way. Is there something so special about that type of employer abuse that the repudiation structures in the Bill should be set to one side? I do not see it that way. No extra time needs to be given, because the matter is not time-limited.

Column 1099

As the hon. Gentleman says, the repudiation has to be carried out without delay and even then the union has only to do its best. I understand the hon. Gentleman's motives. He is returning to a matter which he feels strongly about, but I do not agree with him.

Mr. John Evans : The Minister is a lawyer and to say that there is a civil remedy in such cases demonstrates that he does not live in the world of ordinary working people. It is monstrous to make such a suggestion. I hope that my noble Friends in another place will have more time to deal with this matter than I have. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 6

Collective Bargaining Rights

"It is unlawful for any employer to refuse to grant collective bargaining rights to his employees provided that a majority of the employees have, in a secret ballot, voted in favour of collective bargaining rights exercised through the trade union of their choice.'.-- [Mr John Evans.]

Brought up, and read the First time.

Mr. John Evans : I beg to move, That the clause be read a Second time.

The clause seeks to establish bargaining rights for employees when a secret ballot has been carried out and it has been demonstrated that the employees wish to be represented for collective bargaining purposes by the union of their choice.

Clause 1 of the Bill makes it unlawful to refuse employment to a person because he is or is not a member of a trade union. The Secretary of State claims that he has demonstrated his

even-handedness. The Bill is not even-handed ; I should be amazed if it were. It is difficult to imagine any situation in which an employer would refuse to employ someone and tell him to his face that he refused to do so because he was a member of a trade union. The chances are that the employer would think up a thousand excuses before he got round to that one.

There is another side to the matter that I should like to draw to the attention of the House. While it would be illegal for an employer to refuse employment on the ground that the person was a member of a trade union, it would not be illegal to refuse employment on the ground of previous industrial activity. The employer would be perfectly free to tell somone to his face that he would not employ him because of the trade union activity in which he had indulged in the past. That needs to be stressed, because perhaps the Secretary of State has overlooked it.

There is another important issue. If the Secretary of State is giving the right to belong to a trade union, surely another right should go with that- -the right to representation. The fact that a person is allowed to be a member of a trade union but is then denied the right to have that trade union represent him, which applies in many cases, means that the worker has gained precisely nothing. An increasing number of companies are unilaterally withdrawing union recognition from their employees. I recently received a letter from SOGAT and the National Union of Journalists protesting about Associated Newspapers withdrawing trade union rights from the members of those two unions and imposing individual

Column 1100

contracts on union members. The union makes the point that no other country in the EEC imposes such a policy. It is asking for the right to be recognised.

I hope that the Minister will recognise the strength of what I am saying. Although I do not expect him to accept my new clause, as a member of the Labour party who has always taken a great interest in trade union affairs, I assure him that, now that the Tory party has given the right to individuals to belong to a trade union, the next Labour Government will give the recognition rights that must go with that.

Mr. Nicholls : If a Labour Government, some time in the future, were to do that, they would be turning back the clock a very long way. The hon. Gentleman is aware that one of the first legislative steps that the Government took in industrial relations was to repeal sections 11 to 16 of the 1975 Act, which provided for what one might call compulsory recognition procedures. It is one of those issues on which one must decide where one stands. The Government do not doubt that it is for the employer to decide whether to recognise a trade union for a particular purpose. It would not be a progressive step to turn back the clock.

The hon. Gentleman should cast back his mind to the unique position of the 1970s, when ACAS told the Government that the recognition procedures were not constructive. To return to the atmosphere of the 1970s, with all the recognition disputes of that time, would be wrong. It was not appropriate for the 1970s, it was not appropriate for the 1980s and it certainly is not right for the 1990s.

Mr. John Evans : The Minister has missed my point. I referred to a majority of employees holding a secret ballot and voting for collective bargaining rights. It is clear that the Government's thoughts lie entirely with the employers. The Opposition believe that collective bargaining is a joint exercise between employers and trade unions. We shall seek to redress the balance that has been heavily tilted in favour of employers and against employees. I shall be seeking a more equitable state of affairs--in about, I suggest, 18 months.

Again, I have not had the opportunity to develop my argument because of the pressure of time. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 13

Limited Extension of legal aid to industrial tribunal proceedings

In schedule 2, Part I to the Legal Aid Act 1988, after paragraph 3 there shall be inserted :

"3A. Proceedings in industrial tribunals relating to the question of whether or not the tribunals jurisdiction is excluded by section 62 or 62A of the Employment Protection (Consolidation) Act 1978, or which are proceedings under schedule 1 of the Employment Act 1990.".'.-- [Mr. Wallace.]

Brought up, and read the First time.

Mr. Wallace : I beg to move, That the clause be read a Second time.

The principle of the new clause is to extend legal aid to industrial tribunal proceedings as specified in the new clause. We believe that legal aid could be more generally applied to proceedings before industrial tribunals. After

Column 1101

all, the issues raised are often fundamental to an individual's rights, and not least his employment. Important issues can arise and, as in the civil courts, individuals should have the right to legal aid if they meet the financial criteria. Employment rights should be of equal importance.

To get the new clause within the scope of the long title, we have had to restrict it to two particular matters. They are relevant matters in respect of which we believe that individuals should rightly receive legal aid assistance to enable them to pursue their cases. The first relates to circumstances where, under clause 7, an employee would lose the right to go to an industrial tribunal if he was dismissed while engaged in an unofficial industrial action. During earlier debates there was considerable discussion about the circumstances in which action might or might not be considered to be industrial action. The Minister agreed that that was a matter which the industrial tribunal could determine. Having a mind as to what would come up later, I noted that he said that such matters could be complicated and technical. The fact that they might be so complicated and technical means that the individual who wishes to take such a matter to an industrial tribunal should have recourse to legal aid so that he is properly represented before the tribunal.

The new clause also applies to tribunal hearings under such schedule, which relates to the protection given to individuals--their right to belong or not to belong to a trade union. Hon. Members have asked whether that includes trade union activities. That may give rise to important litigation and the new clause would bolster up the right, which I welcome, to belong or not to belong to a trade union. Starred new clause 14 would make the same provisions for Scotland and if, in his wisdom, the Minister is prepared to allow my new clause, he will ensure that in another place equivalent Scottish provisions will also be legislated.

Mr. Nicholls : The new clause caused me something of a dilemma because I could not decide whether to take the statesmanlike approach, realise that the hon. Member for Orkney and Shetland (Mr. Wallace) had to frame it in the way that he had and deal with what he would have liked it to deal with, or to take my usual approach and castigate him for deficiencies in the drafting. I decided to be magnanimous. I understand that the only way in which the hon. Gentleman could bring the new clause within the scope of the Bill was to tie it to the jurisdictional points.

It might be possible, even if ingenuity was not necessary, to consider the jurisdictional points as crucial to whether a person could get himself before a tribunal, but at the end of the day it would produce some curious anomalies. For example, if in the middle of a hearing a jurisdictional point was satisfied, the person would find that he did not have legal aid. This is all about, in intent if not in form, whether legal aid would be available for industrial tribunal hearings.

The hon. Gentleman and I share a common guilt in that we are both lawyers and that may frame our attitudes in a particular way. But putting aside the commercial possibilities, industrial tribunals are supposed to be a relatively informal mechanism, and the provision of legal aid will only encourage their formalism by bringing people

Column 1102

like us into them more readily. Therefore, I cannot accept the spirit or the form of the new clause, but I compliment the hon. Gentleman on his ingenuity.

Mr. Wallace : The Minister's response comes as no surprise, and I thank him for his compliment. When the important issue of employment arises, it would not be unreasonable to have legal representation. I understand that moves are afoot to bring litigation on contracts of employment into the scope of industrial tribunals which at present qualify for legal aid in the civil courts. If that change comes about, we shall have to look afresh at having legal aid for tribunals. However, clearly, I shall not make much progress on the words on the amendment paper. Therefore, I beg to ask leave to withdraw the new clause.

Motion and clause, by leave, withdrawn.

Clause 3

Interpretation and other supplementary provisions

Amendment made : No. 1, in page 3, line 36, at end insert (1A) Where a person may not be considered for appointment or election to an office in a trade union unless he is a member of the union, or of a particular branch or section of the union or of one of a number of particular branches or sections of the union, nothing in section 1 applies to anything done for the purpose of securing compliance with that condition although as holder of the office he would be employed by the union.

For this purpose an "office" means any position--

(a) by virtue of which the holder is an "official" within the meaning of section 30(1) of the Trade Union and Labour Relations Act 1974, or

(b) in relation to which the duty in section 1 of the Trade Union Act 1984 (duty to hold elections) applies.'.-- [Mr. Eggar.]

Clause 5

Minor amendments relating to ballots

Amendments made : No. 3, in page 5, line 10, leave out section 10' and insert Part II'.

No. 4, in page 5, line 13, at end insert

; and related expressions shall be construed accordingly.'. No. 5, in page 5, line 25, leave out

137 of the Employment Protection (Consolidation) Act 1978' and insert

127 of the Employment Protection Act 1975'.-- [Mr. Nicholls.]

Mr. Howard : I beg to move amendment No. 6, in page 5, line 30, at end insert--

(4) In section 4(1B) of the Trade Union Act 1913 and section 2(5) of the Trade Union Act 1984 (requirements with respect to voting papers in political fund ballot or ballot for union office), in paragraph (a) after "must", insert "state the name of the independent scrutineer and".

(5) In section 15(2) of the Employment Act 1988 (duties of trade union with respect to independent scrutineer in case of political fund ballot or ballot for union office), after paragraph (b) insert-- "(bb

(must, before the scrutineer begins to carry out his functions, either--)

(send a notice stating the name of the scrutineer to every member of the union to whom it is reasonably practicable to send such a notice, or)

(ii

(take all such other steps for notifying members of the name of the scrutineer as it is

Column 1103

the practice of the union to take when matters of general interest to all its members need to be brought to their attention ;".'. ( Mr. Speaker : With this, it will be convenient to take amendment (a), leave out lines paragraph (bb) and insert

(bb) must supply any member of the union, upon demand, with the name of the scrutineer and the address at which he may be contacted.'.

Mr. Howard : Amendment No. 6 springs directly from the recent ballot rigging in the election for the executive of the Transport and General Workers Union.

The House will recall that, on 9 February this year, the general secretary of the Transport and General Workers Union announced that, because of irregularities in the voting for the executive, he had suspended the ballot and was ordering the election to be held all over again. It subsequently emerged that up to 10,000 voting forms had been forged, affecting the elections for 11 of the 39 seats on the union's executive.

The law requires that an independent scrutineer be appointed to oversee union executive elections, but the ballot rigging was apparently discovered by the Electoral Reform Society, which had been engaged to count the votes and not to act as independent scrutineer for the ballot. The scrutineer appointed by the union was someone entirely different.

9.45 pm

No doubt Mr. Todd, the union's general secretary, had reasons for this arrangement. It was, of course, entirely proper for him to appoint one organisation to count the votes and someone else to act as scrutineer. What was curious and, for reasons I will explain, disturbing was that very few people appeared to know about that arrangement. According to newspaper reports, not even the candidates in the election knew the scrutineer's identity.

There was a natural assumption that the Electoral Reform Society was acting as scrutineer. The society is, after all, one of only three organisations specified by name in a statutory instrument as eligible to undertake independent scrutiny of such ballots. The society has a long and honourable record and has been used in that way by a number of other trade unions.

Furthermore, I understand that the members of the union were asked to return their completed voting forms to

"The Scrutineer, c/o the Electoral Reform Society".

In all the circumstances, therefore, it was natural for members of the union to assume that the society was indeed the appointed scrutineer for the election.

Clearly, that was a profoundly unsatisfactory situation. Parliament has laid down that unions must appoint independent scrutineers to oversee union elections. The Employment Act 1988 makes it clear that an independent scrutineer must be someone whom the union has no reason to believe will carry out his functions incompetently, or who could reasonably have his independence in relation to the union or the election called into question. In addition, the qualifications that must be satisfied to be eligible as an independent scrutineer of trade union elections are set out in some detail in an order made by my predecessor.

If the scrutineer appointed by a trade union does not meet those qualifications, the law allows the members of that union to challenge the validity of that election. But, of

Column 1104

course, those rights are worthless if the union members do not know who the scrutineer is. Nor is it likely to occur to any of them to challenge the appointment if, as in this case, there is a widespread impression that the scrutineer is an organisation as widely respected as the Electoral Reform Society.

As the House will recall, when the identity of the scrutineer became known, there were reports of considerable concern within the union. Allegations were made--and strongly denied--about the role that the scrutineer himself had played in the first, invalid, election. Any such allegations are properly a matter for the police investigation that is now taking place.

Under the 1988 Act, the scrutineer has a clear and specific duty to supervise the production and distribution of all the voting papers. What is abundantly clear in this case is that, whatever arrangements were made for producing and distributing the voting papers, they were not proof against activities so serious that Mr. Todd felt obliged to order the elections for all 39 seats--not just the 11 directly affected--to be held all over again. As a result of the controversy within the union over his role in the first election, the scrutineer resigned before the second ballot took place.

Those are the facts as they have emerged since Mr. Todd's announcement on 9 February. It is a great pity that those responsible have not been identified. Calling in the police was delayed for a total of six weeks while an internal investigation was carried out under the personal supervision of the union's general secretary. It has been widely reported that the internal investigation was unable to establish who was responsible. If that is the case, the delay in calling in the police is all the more unfortunate.

What concerns us here is not so much the irregularity involved in the ballot--serious as that clearly was--as the fact that the members of the TGWU were kept in ignorance of the identity of the scrutineer appointed by their union to oversee the election, and were thus denied the right to challenge his appointment--had they wished to do so--until after the ballot rigging had been discovered.

In Committee, my hon. Friend the Member for Elmet (Mr. Batiste)--who cannot be present this evening as a result of a long-standing engagement--moved an amendment designed to meet that problem. His amendment was technically defective, but amendment No. 6 deals directly with the problem. It adds a new requirement to the duties of trade unions with respect to the independent scrutiny of ballots and elections that are set out in section 15(2) of the Employment Act 1988.

Amendment No. 6 requires a union to notify its members of the identity of the scrutineer before he begins to carry out his functions. That can be done in whatever way the union normally communicates matters of general interest to its members, but the amendment also requires the union to include the name on each voting paper, so that every member of the union knows, before he casts his vote, who is the scrutineer. That is an entirely reasonable addition to the rights of union members. There can be no justification for a union to withhold the name of the scrutineer, especially in circumstances where union members may be misled into thinking that an entirely different organisation, such as the Electoral Reform Society, has been appointed to do the job.

Column 1105

Mr. Wallace : Have the Minister and his Department any estimate of the likely cost to unions, for example to the Transport and General Workers Union, if they were to implement the new statutory requirements?

Mr. Howard : Since all they would have to do is to specify the name of the scrutineer on the ballot paper, I cannot believe that there would be any significant cost.

Mr. Martin Flannery (Sheffield, Hillsborough) : We all want fairness in ballots ; that is clear. Does the Minister want the same for companies' shareholders? Does he want their ballots to be accurate and checked on carefully?

Mr. Howard : I have never before heard it alleged that shareholders are deprived of any information about any matter on which they have the right to cast their vote. If they have that right, they are given all the information that they require.

This is not a minor matter. If union members do not know who the scrutineer is, they are effectively denied the rights that they were given by the Employment Act 1988 to challenge the scrutineer's competence and qualifications to do the job. As a result, the validity of a whole election may be cast in doubt. Therefore, I hope that--contrary to some of the indications that we have been given tonight--we can look to the whole House to support the amendment.

Mr. Wallace : We have heard an interesting speech from the Secretary of State. How many times have hon. Members and the Chair heard Ministers refuse to commit themselves or take any action on an issue, pending the outcome of an inquiry? Today, however, the Secretary of State is jumping the gun. The amendment does not seem to add much to what is already in the Bill, but the Minister seems to want to make some cheap points at the expense of the Transport and General Workers Union. So far as I can tell, the general secretary of that union took a responsible course of action and called the police in to investigate. The Minister could have had the decency to wait for the investigation to take place before coming up with proposals which do not add up to very much.

If I have misunderstood the position, I would not insist on pressing the amendment in my name, but as I understand it, the Government's amendment uses the words :

"must, before the scrutineer begins to carry out his functions". That might mean that things have to be done in advance of the ballot. Notice will have to be given of the identity and address of the scrutineer. It was for that reason, to avoid possible expense and unnecessary time-wasting, that I suggest that any union member who wished to find out the name and address of the scrutineer or where he or she or the body concerned could be contacted could simply ask and the union would be obliged to tell them. That seems to me a simple way to achieve much the same end.

Mr. Speaker : Has the hon. Member moved his amendment?

Mr. Wallace : I have not.

Mr. Tony Lloyd : As the Secretary of State is one of the better-paid Members of the House, I should have thought he had better things to do with his time than waste it on such a ridiculous amendment. But for the fact that the Secretary of State has clearly decided to put trade unions

Column 1106

back on the political agenda to appease the Prime Minister or the lunatic right of his party, he would recognise that the amendment is totally irrelevant.

The hon. Member for Orkney and Shetland (Mr. Wallace) made the valid point that a police investigation is under way. In other circumstances, Ministers would come to the Dispatch Box to say that it would be premature to take any action before the investigation is concluded. At best, the amendment is premature--at worst, it is totally irrelevant to trade union members and to the Government.

Mr. John Evans : Tory Members talk a great deal of humbug about the election of trade union officials. When the Tory leadership election took place, my hon. Friend the Member for Bolsover (Mr. Skinner) went into the Committee Room where the Tories were conducting their ballot and discovered that there was no protective cover for Tory Members voting in that election --they had to mark their ballot papers in front of the scrutineer. Yet they criticise trade union ballots.

Mr. Lloyd : My hon. Friend makes a powerful point. As the Secretary of State is paying attention to the fine details, I have no doubt that he will wish to respond to it.

If the Secretary of State has nothing better to do than spend his time on this kind of amendment, he ought to look for something else to do.

Mr. Howard : In the election for the leader of the Conservative party, there was no doubt about who the scrutineers were. The purpose of the amendment is to make clear to trade union members who the scrutineer is when they exercise their vote. The Opposition's reaction is truly astonishing. This modest measure simply ensures that trade union members have the information that they require so that they can complain if anything goes wrong. It does not prejudice the inquiry. These general procedures will lead to an improvement in the rights of trade union members. The hon. Member for Orkney and Shetland (Mr. Wallace) has proved once again that his party is the party of trade union officials, not trade union members.

Amendment agreed to.

Clause 6

Responsibility of trade union for acts of officials, &c.

Amendments made : No. 7, in page 6, line 7, leave out is' and insert

was at the material time'.

No. 8, in page 6, line 7, leave out include' and insert included'.-- [Mr. Howard.]

Next Section

Home Page