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“A worker has the right not to be subjected to any detriment by any act, or deliberate failure to act, by his employer”.
Does that not give an employee who has not been promoted a year and a half after industrial action the right to claim constructive dismissal on the basis that he was denied promotion because he had taken part in that strike?
Mr. Djanogly: I think that my hon. Friend’s point is very arguable, and is of huge concern in the context of the real impact of these provisions.
The new clause goes on to offer striking workers immunity from dismissal proceedings by the company. That too goes one step further than the current provisions of section 238A, thus pushing the new clause further into the category of what we see as unacceptable. I am afraid that, from a pro-business standpoint, it loses none of its initial unreasonableness as it proceeds. Taken as a whole, the new clauses would tie the hands of business in an unacceptable manner, at a time when we should be unburdening businesses to allow them to survive these turbulent times.
What I have said about new clause 1 could just as easily be applied to new clause 2. Again, trade union representatives are seeking preferential treatment for those on strike, or, in this particular case, those about to strike. On a fundamental level, I find the new clause difficult to swallow. It would place a duty on an employer to assist in an action that would harm their own business, which is akin to asking a condemned man to tie his own noose.
Section 226 of the 1992 Act requires unions to hold a ballot before industrial action is taken for it to fall within the category of “protected action”, and the Act goes on to secure a union’s right to strike. That right should not be further extended to impose a duty on companies to assist union members in bringing their action within the protection of the legislation. If union officials cannot do that themselves, and also need the company to supply the details of their own members, I cannot see why they deserve the protection that the new clause would provide.
New clause 3 would prevent companies from employing workers to fill the places left by those taking industrial action, which I think the hon. Member for Blyth Valley (Mr. Campbell) called a scam.
Mr. Ronnie Campbell (Blyth Valley) (Lab): That is what it is.
Mr. Djanogly: The new clause would hamstring businesses and prevent them from continuing their business during such action, which in turn would artificially exacerbate the effect of any industrial action, and would hand a powerful bargaining tool to the unions.
Given the anti-business rationale of the new clauses, we in the Conservative party oppose them wholeheartedly, and strongly suggest that the Government do the same.
Lorely Burt (Solihull) (LD): Following that speech, I hope to throw a little more light than heat on our proceedings.
Unlike some Members, I have listened carefully to both sides of the argument, and have taken advice from both the TUC and the CBI. On new clause 1, I cannot quite agree with the CBI, which has said:
“Implying that industrial action is inherently lawful would represent the most fundamental change to industrial relations law in generations—and could empower trade unions to bring our economy to its knees”.
I do not recognise that description, nor do I recognise the description that we heard from the hon. Member for Huntingdon (Mr. Djanogly).
New clause 1 would replace the section of the Trade Union and Labour Relations (Consolidation) Act 1992 which deals with the dismissal procedures applying to those who participate in official industrial action with a new section that strengthened the protection of employees participating in lawful industrial action. The question is whether the onus should be on the employer to prove that a dismissal was not related to a strike, or on the employee to prove that it was. If the dispute was about wages the new clause would work, but if it related to disciplinary charges or charges of victimisation, it might well encourage workers to go on strike in the knowledge that they could not be sacked. Although I am very sympathetic to the aims of the hon. Member for Hayes and Harlington (John McDonnell), I hope that the Government will investigate the new clause further, and return with a proposal on which all Members can agree.
Mr. Ronnie Campbell: Wishy-washy!
Lorely Burt: From a sedentary position, the hon. Member for Blyth Valley (Mr. Campbell) describes my position as wishy-washy. I would suggest— [Interruption.]
Mr. Deputy Speaker (Sir Michael Lord): Order. We must not have these continued interruptions. They seriously disrupt the debate. If the hon. Member for Blyth Valley (Mr. Campbell) wishes to intervene, he should do so in the usual way.
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Lorely Burt: One man’s wishy-washy might turn out to be another person’s honest attempt to take a balanced view. I am sorry that the hon. Member for Blyth Valley does not recognise that.
The Liberal Democrats are not in a position to support the new clause at this stage, but we believe that the hon. Member for Hayes and Harlington has made an interesting and valid point. I hope that the Government will be able, on another occasion, to present us with a measure that could work in any number of circumstances.
I am afraid that we are not in a position to support new clause 2 either, because it appears to place an onerous requirement on employers to supply information to unions in relation to industrial action ballots. As I am sure all Members know, strike action can have extremely serious consequences for a business or organisation.
Ian Stewart: The hon. Lady says that strike action can have an onerous effect on employers. I was an officer for the Unite trade union for 20 years, and never once encountered a trade union member who wished to go on strike. Employees never gain from strike action: they lose money that they never get back, and they can only ever achieve what they were aiming for.
The hon. Lady should bear in mind the fact that although employers have legitimate claims about industrial action, so do employees. That is why the law is couched in a way that protects employees against detriment. Any employee whose name is not on the list is not protected; the aim of including all the names on the list is to protect the employees as well as the employer.
Lorely Burt: I certainly did not intend to imply that strike action does not have serious consequences for employees as well. When industrial relations reach that point it is always a tragedy, and I am sure that both sides would want to avoid that at all possible costs.
I consider it right for any union proposing a strike to keep meticulous records, and to supply full information as specified in the current legislation. If subsequent stages are problematic in the way described by the hon. Member for Hayes and Harlington—for instance, if judges grant injunctions in apparently unreasonable circumstances—that is surely a matter for the judicial system rather than the employer.
Mr. Gordon Marsden (Blackpool, South) (Lab): I am listening carefully to the hon. Lady’s speech, and I understand the balance that she is trying to strike, but may I ask her what redress employees have in a poisonous industrial dispute in which an employer furnishes false information about their status?
Lorely Burt: The hon. Gentleman probably knows the answer to that question better than I do. Perhaps he will be able to inform the House later.
How does an employer know whether all the categories of staff on whom the union asks for information are actually union members? I suggest that he cannot know. Is it not up to unions to keep records of their own members? In my view, the new clause imposes an onerous additional requirement on employers.
New clause 3 is reasonable, and we would support it. It seems that there are loopholes in existing law and that employers and agencies are colluding to get round current legal requirements. If, as some Members might wish to imply, such loopholes do not exist, there is no harm in adding the new clause to the Bill.
We do not support new clauses 1 and 2. I believe that the hon. Member for Hayes and Harlington will press only new clause 2 to a Division. That is a shame, as I would have welcomed the opportunity to support him on new clause 3.
Mike Penning (Hemel Hempstead) (Con): I will not detain the House for long. Many of the old Labour Members who are present will know that I am a trade unionist: I was a proud member of the Fire Brigades Union for many years. When I joined the FBU—which was before it was thrown out of the Labour party—it was a closed shop, although I am pleased to be able to say that the union has moved on from that.
I have grave concerns about two aspects of these amendments. New clause 1 has been extensively discussed, but I wish to talk about proposed new section 238AB(4)(b), relating to complaints to employment tribunals. It states:
“and for the avoidance of doubt, compensation may be awarded in respect of injury to feelings whether or not awarded under any other head.”
That measure would allow an unlimited sum of compensation to be awarded for “injury to feelings”. How will that be assessed? My feelings are very upset that old Labour Members are not screaming and shouting at me, as a former trade union member, for standing up to speak against new clause 1. Am I to be compensated for that? Should I approach a trade union and say, “Come and represent me, and see if my feelings have been hurt”? This is a ludicrous situation.
Mike Penning: No, I will not give way.
Under this proposed measure, an unlimited sum of compensation could be imposed on a large or small company because somebody’s feelings had been hurt. I am sure that this proposed new section was drafted with the best intentions, but it should have been drafted much better, and that could also be said of several other parts of new clause 1.
Rob Marris: Will the hon. Gentleman give way on that point?
As for new clause 2, I am astonished that so many of the trade union members and former trade union members who are at this moment sitting on the Labour Benches—some of them with 20-odd years’ experience as officials in trade unions—do not have a clue where their members are. How can they turn to an employer and say, “Excuse me, but I’m not quite sure where my membership is at present, so will you please be kind enough to let me know where my members are?” What sorts of organisations are you Labour Members members of? My fishing club knows where I live, let alone a trade union with thousands or millions of members around the country. Perhaps some of your members should have more contact from you. Perhaps some of your members should know—
Mr. Deputy Speaker: Order. The hon. Gentleman must remember that they are not my members.
Mike Penning: If you were a member, Mr. Deputy Speaker, I am sure you would know where your office was and where your membership was.
Mr. Iain Duncan Smith (Chingford and Woodford Green) (Con):
For the avoidance of doubt, my hon. Friend should know that for a number of years now one of the larger unions has insisted that I am a member of that union, and I repeatedly get voting rights papers coming through the door. The unions had got themselves
into quite a mess even when I was leader of the party, and this is why these Labour Members have tabled this new clause.
Mike Penning: My right hon. Friend highlights the complete chaos that still exists within the trade unions. Perhaps before the unions go to the employers and ask where their members are, they should make a point of contacting their members and explaining to them how much of their contribution to the trade union goes to the Labour party and is bankrolling the Government. That is crucial, because if they are doing that— [Interruption.] Labour Members say from a sedentary position they are doing that now, but if they are doing that, they do not need an employer’s help to find out where their members are. On that basis, any sensible person would oppose new clause 2.
Hywel Williams (Caernarfon) (PC): I am pleased to express my support for the new clauses. If there is a Division I shall support new clause 2, and I hope the Government will take account of our discussions on new clauses 1 and 3 and will look to make changes to the provisions.
As Friction Dynamex has been referred to, I shall speak briefly about that company. I am the MP for Caernarfon where it was located, and I represent the bulk of workers. The other workers are represented by the hon. Members for Ynys Môn (Albert Owen) and for Conwy (Mrs. Williams), and I hope they will be able to make their views clear if there is a Division.
I shall not rehearse the events at Friction Dynamex in detail, except to say that the workers did win their case at the industrial tribunal in the face of provocations and manipulations, and evasions and underhand and infamous tactics on the part of the employer. They and the union concerned were very careful to follow the rules and the law. They acted properly, and they remained united with the support of the local community. They won their case at the industrial tribunal because, fortuitously, my predecessor, Dafydd Wigley, kept recorded contemporaneous accounts of a telephone conversation with the employer, which revealed his real intentions, which were to provoke a strike, sack the workers, strip the assets from the company and make away with large sums of money. That is what happened at Friction Dynamex, and the aftermath is that Friction Dynamex has closed, the factory is derelict, the workers have been dispersed and have received no compensation, and the employer has now set up in another town and, from all accounts, is up to his old tricks again.
These new clauses seem to me to be eminently reasonable in their intention. They would have led to this case not having to come before an industrial tribunal and to the avoidance of years of struggle, stress, loss of earnings and loss of compensation, which my constituents, and those of other Members, faced in this long drawn-out industrial dispute. Had these provisions been in place, there would also have been a disincentive to bad employers to set up in the first place, setting in train the sort of wicked plans the employer at Friction Dynamex followed. I hope the Government take notice of this debate and look carefully at changing the provisions so that good employment practices can drive out the bad. That is no small prize.
The Minister for Employment Relations and Postal Affairs (Mr. Pat McFadden): Let me begin by thanking the many hon. Friends who have turned up to support this important Bill, which deals with a number of issues that are close to our hearts.
I think it is safe to say that the new clauses would take the Bill into some new areas compared with the debates we have had so far, and, as my hon. Friend the Member for Hayes and Harlington (John McDonnell) said, some of them reflect the private Member’s Bill that he and other Members sponsored not long ago.
New clause 1 proposes extensive changes to the law protecting individuals against dismissal or the suffering of other detriment for taking, or proposing to take, industrial action. My hon. Friend is always modest when proposing these changes; he describes them as modest and minor tidying procedures, but although I appreciate that these are sometimes subjective judgments I am not sure whether everything he has said would be regarded as such.
The law with which new clause 1 deals was changed by the Employment Relations Acts 1999 and 2004, which introduced two new forms of protection against dismissal for employees taking part in protected industrial action—in other words, action that is official and lawfully organised. The first protection was that it became automatically unfair to dismiss individuals for taking protected industrial action lasting 12 weeks or less—we also discounted lock-out days from the calculation of that 12-week period. My hon. Friend the Member for Hayes and Harlington and the hon. Member for Caernarfon (Hywel Williams), who spoke for the Welsh nationalists, mentioned the Friction Dynamics dispute. Some of these changes came in after that dispute, and reflect the changed legal picture since.
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The second protection covers the actions taken by an employer to resolve a trade dispute with a trade union. Under the law, it is unfair to dismiss a person for taking any form of protected industrial action, including action lasting more than 12 weeks, where the employer has failed to take reasonable procedural steps to try to resolve the trade dispute—a protection does extend beyond the 12 weeks where the employer refuses to engage. Those significant protections have come into force since some of the disputes that have been mentioned, and they cover the vast bulk of official industrial action. Most industrial action is relatively short-lived; few disputes last more than 12 weeks. We can argue about the past, but the statutory protections against dismissal are greater than have been in place for a long time.
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