S.C.D.

Amendment Paper as at
Thursday 26th February 2004

STANDING COMMITTEE D

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New Amendments handed in are marked thus *

EMPLOYMENT RELATIONS BILL

NOTE

The Amendments have been arranged in accordance with the Orders of the Committee [3rd, 10th and 24th February 2004].

NEW CLAUSES

Provision of money for trade union modernisation

   

Mr Gerry Sutcliffe

NC5

To move the following Clause:—

    '(1)   Before section 117 of the 1992 Act (and before the cross-heading immediately preceding that section) insert—

"Union modernisation

    116A Provision of money for union modernisation

    (1)   The Secretary of State may provide money to a trade union to enable or assist it to do any or all of the following—

(a)	improve the carrying out of any of its existing functions;

(b)	prepare to carry out any new function;

(c)	increase the range of services it offers to persons who are or may become members of it;

(d)	prepare for an amalgamation or the transfer of any or all of its engagements;

(e)	ballot its members (whether as a result of a requirement imposed by this Act or otherwise).

    (2)   No money shall be provided to a trade union under this section unless at the time when the money is provided the union has a certificate of independence.

    (3)   Money may be provided in such a way as the Secretary of State thinks fit (whether as grants or otherwise) and on such terms as he thinks fit (whether as to repayment or otherwise)."

    (2)   In section 118 of that Act (federated trade unions), after subsection (7) add—

    "(8)   In the application of section 116A to a federated trade union, subsection (2) of that section shall be omitted." '.

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Dismissal after end of protected period

   

Mr Gerry Sutcliffe

NC7

*To move the following Clause:—

    '(1)   In section 238A (6) of the 1992 Act (dismissal after end of protected period), after paragraph (d) insert—

"(e)	where there was agreement to use either of the services mentioned in paragraphs (c) and (d), the matters specified in section 238B."

    (2)   After section 238A of the 1992 Act insert—

    "238B Conciliation and mediation: supplementary provisions

    (1)   The matters referred to in subsection (6)(e) of section 238A are those specified in subsections (2) to (5); and references in this section to "the service provider" are to any person who provided a service mentioned in subsection (6)(c) or (d) of that section.

    (2)   The first matter is: whether, at meetings arranged by the service provider, the employer or, as the case may be, a union was represented by an appropriate person.

    (3)   The second matter is: whether the employer or a union, so far as requested to do so, co-operated in the making of arrangements for meetings to be held with the service provider.

    (4)   The third matter is: whether the employer or a union fulfilled any commitment given by it during the provision of the service to take particular action.

    (5)   The fourth matter is: whether, at meetings arranged by the service provider between the parties making use of the service, the representatives of the employer or a union answered any reasonable question put to them concerning the matter subject to conciliation or mediation.

    (6)   For the purposes of subsection (2) an "appropriate person" is—

(a)	in relation to the employer—

(i)	a person with the authority to settle the matter subject to conciliation or mediation on behalf of the employer, or

(ii)	a person authorised by a person of that type to make recommendations to him with regard to the settlement of that matter, and

(b)	in relation to a union, a person who is responsible for handling on the union's behalf the matter subject to conciliation or mediation.

    (7)   For the purposes of subsection (4) regard may be had to any timetable which was agreed for the taking of the action in question or, if no timetable was agreed, to how long it was before the action was taken.

    (8)   In any proceedings in which regard must be had to the matters referred to in section 238A(6)(e)—

(a)	notes taken by or on behalf of the service provider shall not be admissible in evidence;

(b)	the service provider must refuse to give evidence as to anything communicated to him in connection with the performance of his functions as a conciliator or mediator if, in his opinion, to give the evidence would involve his making a damaging disclosure; and

(c)	the service provider may refuse to give evidence as to whether, for the purposes of subsection (5), a particular question was or was not a reasonable one.

    (9)   For the purposes of subsection (8)(b) a "damaging disclosure" is —

(a)	a disclosure of information which is commercially sensitive, or

(b)	a disclosure of information that has not previously been disclosed which relates to a position taken by a party using the conciliation or mediation service on the settlement of the matter subject to conciliation or mediation,

to which the person who communicated the information to the service provider has not consented."'.

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Exclusion or expulsion from trade union attributable to conduct

   

Mr Gerry Sutcliffe

NC8

*To move the following Clause:—

    '(1)   Section 174 of the 1992 Act (right not to be excluded or expelled from trade union) is amended as follows.

    (2)   In subsection (2)(d) for "his conduct" substitute "conduct of his (other than excluded conduct) and the conduct to which it is wholly or mainly attributable is not protected conduct".

    (3)   For subsection (4) substitute—

    "(4)   For the purposes of subsection (2)(d) "excluded conduct", in relation to an individual, means—

(a)	conduct which consists in his being or ceasing to be, or having been or ceased to be, a member of another trade union,

(b)	conduct which consists in his being or ceasing to be, or having been or ceased to be, employed by a particular employer or at a particular place, or

(c)	conduct to which section 65 (conduct for which an individual may not be disciplined by a union) applies or would apply if the references in that section to the trade union which is relevant for the purposes of that section were references to any trade union.

    (4A)   For the purposes of subsection (2)(d) "protected conduct" is conduct which consists in the individual's being or ceasing to be, or having been or ceased to be, a member of a political party.

    (4B)   Conduct which consists of activities undertaken by an individual as a member of a political party is not conduct falling within subsection (4A)."

    (4)   In section 176 of that Act (remedies for infringement of right not to be excluded or expelled), after subsection (1) insert—

    "(1A)   If a tribunal makes a declaration under subsection (1) and it appears to the tribunal that the exclusion or expulsion was mainly attributable to conduct falling within section 174(4A) it shall make a declaration to that effect.

    (1B)   If a tribunal makes a declaration under subsection (1A) and it appears to the tribunal that the other conduct to which the exclusion or expulsion was attributable consisted wholly or mainly of acting in a way which was contrary to the rules of the union (whether or not the complainant was a member of the union at the time at which he acted in that way) it shall make a declaration to that effect."

    (5)   In subsection (3)(a) of that section, after "declaration" insert "under subsection (1)".

    (6)   After subsection (6) of that section insert—

    "(6A)   If on the date on which the application was made the applicant had not been admitted or re-admitted to the union, the award shall not be less than £5,900.

    (6B)   Subsection (6A) does not apply in a case where the tribunal which made the declaration under subsection (1) also made declarations under subsections (1A) and (1B)."

    (7)   In sections 174 and 176 of the 1992 Act references to the conduct of an individual include references to conduct which took place before the coming into force of this section.'.

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Applications no longer to be made to Employment Appeal Tribunal

   

Mr Gerry Sutcliffe

NC9

*To move the following Clause:—

    '(1)   Section 67 of the 1992 Act (compensation for infringement of right not to be unjustifiably disciplined) is amended in accordance with subsections (2) to (6).

    (2)   In subsection (1) after "application" insert "to an employment tribunal".

    (3)   Omit subsections (2) and (4).

    (4)   In subsections (5) and (7) omit "Employment Appeal Tribunal or".

    (5)   In subsection (8) omit the words after paragraph (b).

    (6)   After that subsection insert—

    "(8A)   If on the date on which the application was made—

(a)	the determination infringing the applicant's right not to be unjustifiably disciplined has not been revoked, or

(b)	the union has failed to take all the steps necessary for securing the reversal of anything done for the purpose of giving effect to the determination,

the amount of compensation shall be not less than the amount for the time being specified in section 176(6A)."

    (7)   Section 176 of the 1992 Act (remedies for exclusion or expulsion from trade union) is also amended in accordance with subsections (8) to (11).

    (8)   In subsection (2)—

(a)	after "an application" insert "to an employment tribunal"; and

(b)	omit the second sentence.

    (9)   In subsection (4) omit "or the Employment Appeal Tribunal".

    (10)   In subsection (5) omit "or Employment Appeal Tribunal".

    (11)   In subsection (6) omit the words after paragraph (b).'.

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Intimidation

   

Mr Henry Bellingham
Mr Jonathan Djanogly
Mr Peter Atkinson

NC1

To move the following Clause:—

'After paragraph 51 of Schedule A1 to the 1992 Act insert—

"Intimidation

51A

If during the union recognition procedure a union uses undue force or intimidating measures to get recognition then the CAC shall have the right to investigate this at the request of the employer or any worker and if such measures are found to have been used the CAC shall terminate the recognition procedure immediately.".'.

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Prepared 26 Feb 2004