S.C.D.

Amendment Paper as at
Tuesday 2nd March 2004

STANDING COMMITTEE D

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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

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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Unofficial industrial action

   

Malcolm Bruce
Brian Cotter

NC4

To move the following Clause:—

    '(1)   Section 237 of the 1992 Act (dismissal of those taking part in unofficial industrial action) is amended as follows.

    (2)   After subsection (2) there is inserted—

"(2A)

The Secretary of State shall make appropriate arrangements for the provision of penalties to be incurred by an employee who takes part in an unofficial strike or other unofficial action when a member of a trade union and the trade union when it is considered not to have acted in a manner appropriate to the discouragement of the unofficial strike or action.

(2B)	The Secretary of State shall consult such persons as he considers appropriate on the form penalties will take and shall publish the responses received pursuant to those consultations.".'.

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Tips, etc., not to be taken into account as remunerations contributing to National Minimum Wage

   

Mr Bill Tynan

NC6

To move the following Clause:—

       'The National Minimum Wage Regulations 1999 are amended, in Regulation 31(1)(e), by leaving out "that is not paid through the payroll" and inserting "whether paid through the payroll or by any other method".'.

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Mr Gerry Sutcliffe

55

Clause     44,     page     36,     line     27,     after 'sections' insert '(Information and consultation: Northern Ireland),'.

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Prepared 2 Mar 2004