Second Standing Committee on Delegated Legislation
Monday 22 May 2000
[Mr. John Cummings in the Chair]
Draft Code of Practice: Access to Workers during Recognition and Derecognition Ballots
The Minister for Competitiveness (Mr. Alan Johnson): I beg to move,
That the Committee has considered the draft Code of Practice: Access to Workers during Recognition and Derecognition Ballots.
First, may I say what a pleasure it is to serve under your chairmanship, Mr. Cummings, for the first time?
The code of practice forms an integral part of the statutory recognition procedure under section 1 and schedule 1 of the Employment Relations Act 1999. As members of the Committee will recall, the statutory procedure provides for ballots to be held by the Central Arbitration Committeethe CACin certain circumstances to ascertain the level of support for union recognition among the relevant work force. The statute also provides for derecognition ballots to be held, either by post, at the workplace or by a combination of those methods.
It is important that the ballots are held fairly and in an orderly fashion. The statute therefore places various duties on employers to ensure the smooth functioning of the balloting process. Paragraph 26 of schedule 1 sets out the three duties on employers who are involved in recognition ballots. Paragraph 118 sets out identical duties in respect of derecognition ballots. I shall summaries the three duties. First, there is a general duty on the employer to co-operate with the union or unions involved and to co-operate with the person appointed by the CAC to conduct the ballot. Secondly, the employer must provide the CAC with the names and home addresses of the workers involved. Thirdly, the employer must given the union
such access to the workers constituting the bargaining unit as is reasonable to enable the union to inform the workers of the object of the ballot and to seek their support and their opinions on the issues involved.
The interpretation of what constitutes ``reasonable access'' in practice is obviously important. The schedule expressly provides for the Secretary of State to issue a code of practice concerning that third duty using his powers under section 204 of the Trade Union and Labour Relations (Consolidation) Act 1992, which is what we are discussing today. The code is designed to provide practical guidance to employers, unions and the CAC on what is meant by reasonable access. It can be taken into account by the CAC if it is asked to determine complaints made by unions that they have been denied such access. That is the legal background.
We took the opinion of Advisory, Conciliation and Arbitration Service before drafting the order, as we did of the Confederation of British Industry, the Trades Union Congress and other interested parties. Those prior discussions culminated in the publication in February of a consultation document containing the draft code. We received more than 70 responses and the draft code incorporates many of the points and revisions that were suggested by the consultees.
I turn now to the contents of the code. It emphasises the desirability of the partiesthe employers and the unionsagreeing in advance the forms of access that should take place. It advises that the parties should meet as a priority as soon as it is known that a ballot will be called, with the aim of reaching an access agreement. That is a practical necessity because the employer controls access to his or her premises. It is also fully in keeping with the recognition procedure and encourages the parties at every stage to sort out issues voluntarily. The CAC should intervene as a fallback if the parties cannot reach agreement. The period of access is the time between the CAC's appointment of the qualified independent person who undertakes the ballot and the ending of the ballot itself. The statute envisages that that will normally be no more than 20 working days. The code does not discuss, and has no bearing on, a union's access to the work force at other times. For example, it does not relate to the ways in which unions might approach workers when organising recruitment campaigns in the run-up to making a recognition application to the CAC.
The access period is short. That has its advantages. Short campaigns before ballots generally reduce the scope for animosity to arise. The issue put to the ballot is resolved quickly and crisply. However, a short access period has practical implications for the behaviour of the parties. It is incumbent on the parties to settle access plans quickly before the access period begins. They must commit themselves to sorting out speedily any difficulties that may arise in the implementation of agreed access arrangements. For the most part, the code discusses how the union should access the workers at their workplaces and during working time. Obviously, there is a need to minimise the possible disruption to normal business activity during this period. I think that the code strikes the right balance between the need to avoid unnecessary disruption and the duty to provide adequate access to the union.
The code is also drafted to allow for the myriad different circumstances that will arise in practice. Businesses and business premises vary enormously, as do the characteristics of a work force. The code provides plenty of scope for access to reflect those local circumstances. For example, it stresses that special arrangements might need to be made for the circumstances of those small firms that are covered by the statutory recognition procedure. Allowance for local circumstances is already catered for in the ways
in which the employer usually communicates with the work force. The code therefore stresses that the employer's custom and practice can be used as a guide to determine the practical questions that may arise in setting access arrangements.
The code is drafted in the knowledge that access can take many forms. Much communication now takes place via e-mail; in some places it has displaced paper as a method of communication. The code provides guidance based on the employer's custom and practice for the ways in which information technology may be used by the union to achieve access.
There is no complete substitute for face-to-face communication. An important aspect of the code is therefore devoted to the organisation of both large and small-scale meetings at which designated union representatives can put across the union's case to the work force. It is made clear that there is no compulsion on workers to attend meetings, but workers should be able, as the statute states, to express their opinions on the recognition issue directly to the union. I believe that our proposals are measured and balanced. There is scope to organise meetings away from the workplace if the premises are unsuitable. We also recognise that small meetings--so-called surgeries--may be inappropriate in certain circumstances: for example, if they give rise to increasing tensions at the workplace, and if the employer does not organise similar meetings.
The code provides invaluable assistance to all concerned. It is a fact of life that recognition and derecognition ballots are potential areas of conflict. Employers and unions will be hoping for different outcomes. The code of practice recognises that and gives helpful guidance to minimise the scope for conflict over a key aspect of the balloting process. It is fair, workable and sufficiently flexible to cater for individual circumstances. I warmly commend it to the House.
Mr. Nick Gibb (Bognor Regis and Littlehampton): I welcome you to the Committee, Mr. Cummings.
When I read the draft code of practice, a bygone era re-emerged in its sentences: an era typified by the Ian Carmichael and Peter Sellers film ``I'm All Right, Jack'', an era of conflict between what in those days were regarded as the two sides of industry. It conjures up everything that was grotesque about Britain in the 1960s and 1970s: the conflict between management and workerscapital and labourwhich led to the decline of British industry and the British disease of dull management and lethargic employees.
I thought that that era had gonewiped out in the 1980s when Margaret Thatcher revitalised the British entrepreneurial spirit. The model of industry used in the draft code is unrecognisable. It uses the word ``worker''which is in the original employment relations legislationinstead of ``employee''. What company in Britain today still uses the word ``worker'' to describe a member of its staff? There are phrases that refer to workers belonging to the employer. Paragraph 16 states:
It would be reasonable for the employer to want to give his prior permission before allowing a full time union official to enter his workplace and talk to his workers.
The assumption behind the draft code is that there is a division within the firm between employer and worker.
Who is a worker? Is it the technical director who spends 95 per cent. of his time on the shop floor, assessing and examining the machinery and its design? Is it the bought ledger clerk in the comfortable offices on the first floor? Is it the management trainee serving cooked meat at the counter in Safeway? Is it the machine toolist with £6,000 of share options? Is he a worker or an employer in terms of the old-time language used in the draft code? What about the trainee chartered accountant who hopes to be a partner one day, but who is whisked off to serve his country on Committees such as this? What about the self-employed IT consultant on a six-month contract, or the self-employed sandwich lady, who earns £12,000 a year supplying sandwiches to the factory and the two neighbouring businesses? What about the millionaire caretaker of a recently floated .com company?
The divisions referred to in the code reveal the degree to which the Government are out of touch with the real business environment today. Clearly, some companies in Britain operate in an old-fashioned way, but they are not the majority. In business today, there is no clear line between management and worker. It is a gradual slope, or a greasy pole that people try to climb. There is no clear chasm between those who work and those who manage.
In an advertising agency, who are the workers? Are they the talent, who earn £300,000 a year, or the trainee account executives who earn £35,000 a year? The Employment Relations Act 1999 is one of many examples of the Government loading on to business huge administrative burdens, which now amount to an additional £10 billiona significant amountduring this Parliament alone. On top of that, business has suffered £30 billion of extra taxation. That has taken its toll, as multinationals have undergone a complete change of attitude to investing and remaining located in this country.
The Employment Relations Act 1999 also provides a classic example of the way in which the Government gold-plate directives from Brussels. It imposes trade union recognition on firms with more than 20 employees, whereas the EU defines a small firmwhich need not be covered by the new rulesas one employing 50 or fewer. A whole range of small firms, employing between 20 and 50 employees, will be subject to burdensome rules and regulationsthe draft code alone is 17 pages of close type, not to mention the 172 paragraphs of the schedule to the Act. Those companies need not be subject to such rules; gold-plating by the Government has resulted in their inclusion. The Government cannot pass the blame on to others.
Aside from the flaws in its basic premise, the code is generally reasonable in its approach, apart from one or two exceptions to which I shall refer later. Paragraph 10 states:
This Code also aims to encourage reasonable and responsible behaviour by both the employer and the union.
That seems entirely reasonable. Paragraph 14 stipulates that, once the Central Arbitration Committee has notified the employer and the union that a ballot is to be held,
There then follows a period of ten working days before the CAC proceeds with arrangements for the ballot.
All Committee members would find that reasonable. Unions' claims that it gives the employer an unfair advantage are wrong.
It also seems entirely reasonable for full-time trade union officials to need prior permission before entering a workplace and to determine as set out whether such permission should be granted. Paragraph 16 says:
the employer may have security and health and safety issues to consider.
If there are key health and safety issues, employers can refuse permission to the full-time trade union official to enter the premises. That is entirely reasonable, and I am sure that it seems so to all members of the Committee.
It is reasonable that employers should tell the union about how they communicate with their employees or, in the term used in the code, their ``workforce''. It is essential--I quote from paragraph 19--that the
employer should not...disclose to the union the names or addresses (postal or e-mail) of the workers who will be balloted, unless the workers concerned have authorised the disclosure.
That must be right. When one joins a company and hands over to the personnel or human resources department one's bank details and home address, one does not expect them to be disclosed to anyone outside the firm.
There are many paragraphs in the draft code that are entirely reasonable and with which all members of the Committee should be comfortable. However, we are concerned about two aspects of the draft code, as well as the outmoded view of industry on which it is based. We are concerned about the implications that the employer will be the one who objects to the notion of trade union recognition rather than a proportion of employees. During the heyday of Britain's decline as an industrial nation, at the height of the British disease era--