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subscription deductions are calculated, subsection (5) above shall have effect with the substitution, in paragraph (a), for the reference to the amount of the increase and the increased amount of the deductions of a reference to the percentage before and the percentage after the increase.'No. 25, in page 25, line 45, at end insert--
( ) Where arrangements, whether included in subscription deduction arrangements or not, exist between the parties to subscription deduction arrangements for the making from workers' wages of deductions representing payments to the union which are additional to subscription deductions, the amount of the deductions representing such additional payments shall be treated for the purposes of this section (where they would otherwise not be so treated) as part of the subscription deductions.'-- [Mr. Michael Forsyth.]
Clause 12
Extension of right not to be unjustifiably disciplined
Amendments made : No. 26, in page 27, line 14, leave out or' No. 27, in page 27, line 18, at end insert or
(j) requiring the union to do an act which the union is, by any provision of this Act, required to do on the requisition of a member.'
No. 28, in page 27, line 18, at end insert--
(2) In section 65(7) of the 1992 Act (definitions), at the end, there shall be inserted the following--
" require" (on the part of an individual) includes request or apply for, and "requisition" shall be construed accordingly".'-- [Mr. Michael Forsyth.]
Clause 13
Requirement of postal ballot
Mr. McLoughlin : I beg to move amendment No. 29, in page 27, line 22, at beginning insert
Except as regards persons falling within subsection (2A)'.
Madam Deputy Speaker : With this it will be convenient to discuss Government amendments Nos. 30, 33, 31, 34, 35, 32 and 36.
Mr. Galbraith : Is it permissible for me to talk about Government amendment No. 33 at this stage, Madam Deputy Speaker?
Madam Deputy Speaker : Yes, that is in order.
Mr. Galbraith : Thank you. I shall not delay the House long. As the Minister will point out, the amendment is one of the concessions that the Government made to the Opposition, following our frequent well-reasoned and eloquent propositions in Committee.
The following issue is at stake : according to the wording in the Bill, when employers are notified of people taking industrial action, is it necessary for them to be informed of the employees' names and addresses? The Minister and I had a long debate on the matter and he agreed to consider it.
As a result of the amendment, the word "identify" has been changed to "ascertain". Of all the amendments that the Minister has given to us, this is the least satisfactory. There is a subtle difference between identify and ascertain. For example, in the House we have to identify the Minister by the area that he represents. Ascertain is similar to identify but leaves the second party with an element of investigation if he wishes to identify the hon. Member concerned. Will it not be necessary to give the employees'
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names and addresses to the employer if he or she is to ascertain their identities? The amendment does not deal with our worries.Mr. McLoughlin : I thought that the amendment, which was the result of representations made by the hon. Member for Strathkelvin and Bearsden (Mr. Galbraith), met the requirements requested of us. However, if the hon. Gentleman is concerned, I shall look at the amendment again to ascertain that it meets his requirements.
Mr. Galbraith : Having identified the Minister's generosity, I have been able to ascertain that that is a splendid response and I am happy not to pursue the matter any further.
Amendment agreed to.
Amendment made : No. 30, in page 27, line 27, at end insert-- (2A) Where a merchant seaman to whom this subsection applies is entitled to vote in the ballot he must, so far as is reasonably practicable--
(a) have a voting paper made available to him while he is on board the ship or is at a place where the ship is ;
(b) be given an opportunity to vote while he is on board the ship or is at a place where the ship is.
(2B) Subsection (2A) applies to a merchant seaman who the trade union reasonably believes will, throughout the period during which votes may be cast in the ballot, be employed in a ship either at sea or at a place outside Great Britain.
(2C) In subsections (2A) and (2B) "merchant seaman" means a person whose employment, or the greater part of it, is carried out on board sea-going ships.'-- [Mr. Michael Forsyth.]
Clause 14
Notice of ballot and sample voting paper for employers
Amendments made : No. 33, in page 28, leave out lines 14 to 19 and insert --
(c) describing (so that he can readily ascertain them) the employees of the employer who it is reasonable for the union to believe (at the time when the steps to comply with that paragraph are taken) will be entitled to vote in the ballot.'
No. 31, in page 28, line 33, at end insert--
(5) This section, in its application to a ballot in which merchant seamen to whom section 230(2A) applies are entitled to vote, shall have effect with the substitution in subsection (3), for references to the voting paper which is to be sent to the employees, of references to the voting paper which is to be sent or otherwise provided to them.'-- [Mr. Michael Forsyth.]
Clause 16
Scrutiny of ballots
Amendments made : No. 34, in page 29, line 37, at end insert-- (a) state the name of the independent scrutineer,'.
No. 35, in page 29, line 38, leave out from beginning to clearly'.
No. 32, in page 29, line 45, at end insert--
This subsection, in its application to a ballot in which merchant seamen to whom section 230(2A) applies are entitled to vote, shall have effect with the substitution, for the reference to the address to which the voting paper is to be returned, of a reference to the ship to which the seamen belong.'
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No. 36, in page 30, line 27, at end insert--(4) After section 226B of the 1992 Act there shall be inserted-- "Exclusion for small ballots.
226C. Nothing in section 226B, section 229(1A)(a) or section 231B shall impose a requirement on a trade union unless--
(a) the number of members entitled to vote in the ballot, or (b) where separate workplace ballots are held in accordance with section 228(1), the aggregate of the number of members entitled to vote in each of them,
exceeds 50".'-- [Mr. Michael Forsyth.]
Clause 19
Right to maternity leave and right to return to work
Amendments made : No. 1, in page 36, line 44, after shall' insert
subject to sections 36 and 37'.
No. 2, in page 37, line 6, at end insert--
(3) An employee who has both the right conferred by this section and a corresponding right conferred by her contract of employment or otherwise may take advantage of whichever right is, in any particular respect, the more favourable.'
No. 3, in page 37, line 8, leave out from with' to end of line 14 and insert--
(a) the date which, in accordance with section 36, she notifies to her employer as the date on which she intends her period of absence from work in exercise of her right to maternity leave to commence, or
(b) if earlier, the first day on which she is absent from work wholly or partly because of pregnancy or childbirth after the beginning of the sixth week before the expected week of childbirth.' No. 37, in page 37, line 26, at end insert
or until the birth of the child, if later'.
No. 38, in page 37, line 32, leave out from first of' to by' and insert
the period mentioned in subsection (1)'.
No. 4, in page 37, line 43, at end insert--
Notice of commencement of leave.
36.--(1) An employee shall not have the right conferred by section 33 unless--
(a) she notifies her employer of the date (within the restriction imposed by subsection (2)) ("the notified leave date") on which she intends her period of absence from work in exercise of her right to maternity leave to commence--
(i) not less than twenty-one days before that date, or
(ii) if that is not reasonably practicable, as soon as is reasonably practicable,
(b) where she is first absent from work wholly or partly because of pregnancy or childbirth before the notified leave date or before she has notified such a date and after the beginning of the sixth week before the expected week of childbirth, she notifies her employer as soon as is reasonably practicable that she is absent for that reason, or
(c) where childbirth occurs before the notified leave date or before she has notified such a date, she notifies her employer that she has given birth as soon as is reasonably practicable after the birth,
and any notice she is required to give under paragraphs (a) to (c) shall, if her employer so requests, be given in writing.
(2) No date may be notified under subsection (1)(a) which occurs before the beginning of the eleventh week before the expected week of childbirth.
(3) Where, in the case of an employee, either paragraph (b) or (c) of subsection (1) has fallen to be satisfied, and has been so satisfied, nothing in paragraph (a) of that subsection shall impose any requirement on the employee.'.
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No. 5, in page 38, leave out lines 33 to 37. -- [Mr. Michael Forsyth.]Clause 20
Dismissal rights
Amendments made : No. 6, in page 39, line 6, at end insert ( ) the reason (or, if there is more than one, the principal reason) for her dismissal--
(i) where, before the end of her maternity leave period, she gave to her employer a certificate from a registered medical practitioner stating that by reason of disease or bodily or mental disablement she would be incapable of work after the end of that period, and (ii) her contract of employment was terminated within the four week period following the end of her maternity leave period in circumstances where she continued to be incapable of work and the certificate relating to her incapacity remained current,
is that she has given birth to a child or any other reason connected with her having given birth to a child,'
No. 43, in page 39, line 39, leave out (a)'.
No. 44, in page 39, line 46, leave out (a)'.-- [Mr. Michael Forsyth.]
Clause 29
Constitution of industrial tribunals
Amendment proposed : No. 45, in page 44, line 29 at end insert-- ( ) No order shall be made under subsection (2D) unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.'.-- [Mr. McLoughlin.]
Mr. Jeff Rooker (Birmingham, Perry Barr) : I wish to speak to the amendment as I believe that legislation passed in the House should have our constituents' footprints across it. While the title of the clause to which the amendment relates is : "Constitution of industrial tribunals", one should rightly call it the "unibunal" clause as I cannot think of another word to describe a tribunal which has one person sitting alone. The amendment is important as the factors set out in subsection (2D) can be brought into effect only by an affirmative resolution.
I wish to illustrate with a constituency case why the House must be careful before it allows a tribunal to become a "unibunal", especially in a case which is not contested, where the employer does not turn up. It is a case with which Ministers, particularly the Parliamentary Under-Secretary of State, should be familiar, as he has dismissed most of the parliamentary questions that I have asked on the matter in recent months. I have corresponded with Ministers, asked parliamentary questions and even contacted the chair of the tribunal, which took me back to where I started, as he said that he could not tell me any more than he had already said.
I shall take a few minutes to outline the case, as it is crucial. One of my constituents, Mr. Colin Yates, was dismissed by his employers in January 1991 on the ground of redundancy. He appealed to a tribunal against the dismissal, claiming that it was unfair as he had not been consulted or offered alternative employment, which was available.
He won his case at a tribunal hearing in July 1991. The employer did not turn up. The tribunal did not even make a basic award because my constituent had already received
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a redundancy payment, but it made a very large compensatory award--more than £33,000--for the loss of salary. That is the highest award made by a tribunal that I have located in my researches. That led my constituent to believe that he was due to obtain a considerable amount of compensation.At the time of the award there was a maximum statutory level on compensatory awards of £8,925. Yet the chair of the tribunal awarded more than £33,000. My constituent lost £1,400 in unemployment benefit, leaving an expectation of over £7,500.
Here comes the rub. The firm, Bygging Rust Proofing, went into voluntary liquidation in 1991. The law does not allow compensatory awards in respect of unfair dismissal to be paid out of the national insurance fund : the employee goes to the back of the queue, which means that he will never see a penny piece.
That strikes me as ludicrous. In the instance that I have raised, one party did not turn up to contest the case, as set out in new subsection (2C)(f), and a huge compensatory award was made on the merits of the case. Yet, by means of a quirk--the wheeze of voluntary liquidation--the firm was able to avoid paying a penny to an aggrieved ex-employee. I might add that the company is still operating under another name, and that its chief director, Henry Gold, is still a director of what is effectively the same company.
In correspondence, Ministers and--before the general election--their predecessors have dismissed my constituent's case out of hand. They have flatly refused to say that compensatory awards should be met from within the national insurance fund, as is the basic award in unfair dismissal cases.
We may legislate tonight to allow tribunals to engage in City-style procedures, whereby a single person can make a decision which will apparently be fairly easy to accept if it is not contested. Because an employer did not turn up and thus avoided contesting the case that I have cited, a huge award will never be paid. My constituent will not receive a penny.
If the Minister is not prepared to answer my point now, I hope that he will go away and think about it. Perhaps he will look at the volumes of correspondence. It is grossly unfair that, following the making of an award in a public tribunal, a citizen who expects to receive some, if not all, of the money should not receive a penny because of a quirk in the law.
I am sorry to have detained the House at this late hour, but I promised my constituent Colin Yates that, if an occasion arose for me to put his case to the House succinctly without going into laborious detail, I would do so. I have tried every other avenue : I have tried correspondence, parliamentary questions and even writing to the chairman of the tribunal, which got me nowhere. The amendment seemed to be the best hook on which to hang what, in other circumstances, would have been an Adjournment debate. I am grateful to the House for its tolerance.
Mr. McLoughlin : We are to allow industrial tribunal chairmen to sit alone in some very specific cases. As the hon Member for Birmingham, Perry Barr (Mr. Rooker) said, the change that we are making is to invoke the affirmative-resolution procedure, which was welcomed by
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the Committee and, indeed, will probably be welcomed by the hon. Gentleman. The case to which he referred raises serious questions ; perhaps we could meet and discuss it more fully.Mr. Peter Bottomley : I welcome the amendment, which improves new subsections (2C) and (2D). I hope that the Government will continue to find ways in which initial tribunal claims can be heard more quickly, and that they will find more ways of keeping the lawyers out whenever possible. In particular--this applies to a certain extent to clause 30--I hope that there will be some way of ensuring that the appeal tribunal waiting time no longer remains at two years in England and Wales, when it is only five months in Scotland. Amendment agreed to.
Clause 33
Fees for exercise of functions by ACAS
Amendment made : No. 46, in page 47, line 24, leave out from person' to unless' in line 26.-- [Mr. McLoughlin.]
Clause 34
Careers services
Mr. Dobson : I beg to move amendment No. 84, in page 48, line 8, at end insert--
(1A) In exercising his functions under subsection (11) the Secretary of State shall meet the requirements of disabled persons or persons having learning difficulties.'.
Madam Deputy Speaker : With this, it will be convenient to consider amendment No. 85, in page 48, line 31, at end insert--
(3A) For the purposes of this section a disabled person is defined in section 1 of the Disabled Persons (Employment) Act 1944, and persons having learning difficulties as defined under section 120, subsections (11) and (12), of the Education Reform Act 1988.'.
Mr. Dobson : I do not want to detain the House unduly, but it is an important principle that if the Government are to privatise the schools careers service they should write into law requirements to meet the particular needs of disabled persons, or persons with learning difficulties. The Government do not want to accept our amendment at this stage, but I should like an undertaking from them that they will reconsider the issue and possibly table amendments in the other place.
Mr. McLoughlin : We have covered some of the points raised by the hon. Gentleman and his colleagues in Committee. I understand the hon. Gentleman's concern about the amendment. I think that we have the powers to deal with the matter. However, I take on board the point made by the hon. Gentleman and his hon. Friends, and also the representations that have been put to me by my hon. Friends. I very much hope that we can come to an agreement. I hope, too, that, even though we cannot accept the amendment, we shall be able to satisfy the hon. Gentleman by means of orders and the way that we implement the changes.
Mr. Peter Bottomley : I am grateful to my hon. Friend for the way he has responded to the sensible points that have been made by the hon. Member for Holborn and St. Pancras (Mr. Dobson) in trying to meet the requirements of disabled people, or people with learning difficulties. I
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understand why it is not possible to debate my suggestion that there should be an annual report from the careers service in its new form. If that point could be discussed in another place, it would be possible to consider how the careers service would want to adapt to the changing situation. This, however, is not the time to do that.Mr. Dobson : I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn.
Clause 41
Commencement
Amendment made : No. 10, in page 54, line 7, at beginning insert Subject to any other commencement provision,'.-- [Mr. McLoughlin.]
Schedule 1
Political fund ballots
Amendments made : No. 60, in page 56, line 43, at end insert-- (3C) The duty of confidentiality as respects the register is incorporated in the scrutineer's appointment.'
No. 61, in page 57, line 35, at end insert--
( ) The duty of confidentiality as respects the register is incorporated in an appointment under this section.'-- [Mr. McLoughlin.]
Schedule 3
Suspension from work on maternity grounds
Amendments made : No. 39, in page 62, line 22, leave out from first employee' to the' in line 23.
No. 40, in page 62, line 24, at end insert--
(1A) For alternative work to be suitable for an employee for the purposes of this section--
(a) the work must be of a kind which is both suitable in relation to her and appropriate for her to do in the circumstances ; and (b) the terms and conditions applicable to her for performing the work, if they differ from the corresponding terms and conditions applicable to her for performing the work she normally performs under her contract of employment, must not be substantially less favourable to her than those corresponding terms and conditions.'
No. 41, in page 62, line 45, leave out from beginning to and' in line 47 and insert
work which is suitable alternative work for the purposes of section 46.'-- [Mr. McLoughlin.]
Schedule 4
Provisions substituted for sections 1 to 6 of 1978 Act
Amendment made : No. 51, in page 66, leave out lines 26 to 49.-- [Mr. Michael Forsyth.]
Schedule 5
Employment protection in health and safety cases
Amendment proposed : No. 54, in page 68, line 10, at end insert-- (bb) being an employee at a place where--
(i) there was no such representative or safety committee, or
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(ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,'.-- [Mr. Michael Forsyth.]
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