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John McDonnell (Hayes and Harlington) (Lab):
This legislation has the potential to be a landmark Bill for the Government, and I welcome it overall. As an aside, however, may I say that because we have only a little over five hours to debate all the amendments, we will not have sufficient time to address many of them? Indeed, we may deal with less than half of them. That is surprising, because tomorrow in this House there will be a debate on European affairs with no Division, and the next day the House is not even sitting. I therefore wish to put on the record my concern about the
management of this business. I shall address both the amendments standing in my name and some that I support standing in the name of my colleagues. Bearing in mind my concerns about time, I shall be as brief as possible.
New clause 24 would introduce statutory recognition for equality representatives. When we introduced other employment legislation-particularly on health and safety, but also on learning within the work setting-we tried to ensure that the representatives of the work force were fully engaged in the implementation of that legislation. Such legislation has been generally supported in the House. There have been debates recently about health and safety, but I think we have got beyond most disputes with regard to health and safety in the workplace. There is broad support in all parts of the House for the idea that on key issues such as health and safety and learning in employment, and also, now, equality issues, it is useful for representation from the work force to be involved in the implementation of the policy itself. In order to do that properly, we need to ensure that these representatives are effective and give them statutory recognition that enables them to have time off and the authority to meet employers to resolve matters on behalf of their work force. This amendment simply seeks to put equality reps, which already exist in many areas of the work force, on the same statutory footing as health and safety representatives.
One argument in favour of this Bill that is supported on both sides of the House is that greater equality in employment matters increases the efficiency of organisations. There is the potential for the companies and agencies people work for to become more effective as a result of being more equal, and therefore more representative of the community overall. I accept that some people may say there are issues to do with the cost of allowing equality reps to have time off for training and so forth, but let me offer the example of what has happened in respect of health and safety. Where health and safety reps have been effective, they have saved the employer money and increased the efficiency of the company because it has been able to avoid litigious disputes on certain issues. That will also be true of equality reps. They will become trained in equality matters, and as a result they will be able to advise both their fellow workers and employers in the implementation of the equality legislation that we shall enact over the coming months. They will be able to assist the company to become more efficient and to avoid lengthy employment tribunals and other forms of legal action. As a result, they will avoid that cost burden in the future.
This has been generally recognised, even by employers. I have seen one survey showing that 70 per cent. of the employers asked about the role of equality representation were supportive of the work that could be done, feeling that there should be at least partial, and perhaps considerable, involvement of trade union reps in the implementation of these polices, and that such involvement would be helpful to them. As I said, there has been widespread support for this approach elsewhere. In 2006 the Women and Work Commission particularly emphasised how effective equality reps could be, and the piloting work done since then as a result of the support that the Government have given through the trade union modernisation fund has demonstrated their effectiveness in practice.
Mr. David Drew (Stroud) (Lab/Co-op): Does my hon. Friend accept that one of the most acute roles that equality reps can play is with regard to people with disabilities? I am thinking in particular of people who are coming back into work having had a mental health problem and who need friends to help bring them back into the workplace in an appropriate manner; as constituency MPs, we are all aware of examples of that being done very badly. If proper training is provided, this key role will help the Government, because it is part of their agenda.
John McDonnell: In an informal way, that is what is happening on the ground. The hon. Member for Weston-super-Mare (John Penrose) made the point that some equality issues can be best tackled through a mentoring process, whereby fellow workers give the support. However, we need to ensure that there is some authority to that, which is why I wish to put equality reps on a statutory footing. That will increase the impact and effectiveness of this legislation.
Jeremy Corbyn (Islington, North) (Lab): A little later we will deal with a group of provisions dealing with discrimination on the basis of caste and descent. All the reports on that indicate that a lot of discrimination goes on, but the victims are very frightened and are unable to turn to anybody for help or advice because of the whole atmosphere and community in which they are at the time. Does my hon. Friend agree that properly trained and resourced equality reps could be extremely helpful in at least beginning to address this terrible problem?
John McDonnell: The worst thing that can happen is that we enact this legislation without making it effective and then rely on too many informal arrangements that allow the untrained barrack room lawyers to become involved, which in turn places a burden not only on the other members of the work force, but on the company or the agency employing the members of staff. That is why we must put all this on a professional and statutory footing. The recognition of equality reps should not be a contentious matter. As I said before, this has been done in other areas of employment legislation, and I hope that the Government will accept this new clause.
Secondly, I wish to dwell for a short while on new clause 25, relating to the minimum wage for seafarers, tabled by my hon. Friend the Member for Dover (Gwyn Prosser); I hope that he will permit me to do so. He will speak more eloquently than I, but I wish to discuss this matter because it has become a personal crusade for a number of Members over the years. It is eight years since I first raised it in the House and I was hoping that today would be the day when we would resolve it once and for all.
I chair the National Union of Rail, Maritime and Transport Workers parliamentary group, of which my hon. Friend is a member, as is my hon. Friend the Member for North Ayrshire and Arran (Ms Clark)-she, too, has taken up this issue. I wish to pay tribute to the RMT, which has valiantly pursued this campaign over the years. I shall name the officers involved because I want them to receive recognition for standing up for some of the most vulnerable workers in our work force. Thus I pay tribute to the RMT general secretary, Bob Crow, and to Steve Yandell, Steve Todd, James Croy and Malcolm Dunning, all of whom have worked alongside hon. Members from all parts of the House to try to get
this matter resolved, and have given advice to the Government on how that should be done.
This process started as a result of an exposé of the low rates of pay of certain workers on British-flagged ships. A number of years ago we emphasised those rates of pay, particularly those of Filipino workers, but I must say to hon. Members that this still goes on; it has not gone away. On the rates of pay for Filipino able seamen on P&O ferries between Liverpool and Dublin-we are not talking about seafarers who are crossing the world, but about seafarers operating on ferries close to us-a Filipino on the Norbay receives £313 a month and a Filipino on the Norbank receives £328 a month. Given that the UK minimum wage is about £1,000, those are poverty wages for people working less than 200 miles away from here, on a UK-flagged ship.
Nearly eight years ago we made proposals in negotiation in which we sought to ensure that at least those people would be paid the minimum wage. We took the matter to the Deregulation and Regulatory Reform Committee-I was allowed to speak, even though I was not a member-and we were given the assurance that they would be paid a minimum wage within British waters. We came back to this House and celebrated a success, only to be told by the Government that this would apply not to "territorial waters", but to "internal waters": that means a boat that is moored, because the term has extremely limited coverage. I used to tell jokes about the Norfolk broads, where I sail, but this is no longer a jocular matter; it is a serious matter because it has gone on for so long.
We then went back into negotiations with the Government to discuss how we could overcome this situation. We were told that the reason why the Government could not move beyond that position was because of various international laws, so we took our own legal advice. We supplied the Government with that advice-on two occasions they were supplied with separate forms of advice-in which it had been confirmed to us that it is extremely doubtful whether their hand is restricted in this way by international laws of the sea. Our latest advice, from Mr. Jonathan Chambers of Quadrant Chambers, clearly states:
"In my view, the proposed amendment"-
the proposal we made previously-
"probably does not interfere with the right of innocent passage protected under section 3 of UNCLOS".
As of yesterday, the Government remain of the view that their legal opinion says that we cannot implement the minimum wage in our territorial waters because of this "interference" with "innocent passage". Even if we cannot resolve this today-if the Government cannot accept the new clause tabled by my hon. Friend the Member for Dover-I must say to them that there must be a way through this. So far they have not been willing or able to share their legal opinion with us. Can we at least share the legal opinions upon which the Government are basing their decision? Perhaps we should hold a seminar-I make this offer-where we get the lawyers together with Ministers and Members of Parliament who are interested in this subject to try to resolve it. I am sure that nobody in this House would want to support a situation whereby people are paid this minimal level of income, on which it is basically impossible to survive. This is poverty pay within the UK jurisdiction.
My hon. Friend the Member for North Ayrshire and Arran has tabled new clause 33 on pay audits, which I wholeheartedly support, and I shall leave it to her to discuss it. As for the difference between the numbers, we simply felt that the numbers would reflect the Government's own attitude on other employment legislation, so we chose 21. Even if we could get the Government to agree to the proposal today, large numbers or workers would still not be included in the overall scheme.
Lynne Featherstone: May I say that 21 or 100 would be fine?
John McDonnell: That is extremely helpful.
I shall now discuss amendment 33, which stands in my name. Ministers have worked extremely hard on this legislation to try to attack harassment. I welcome the part of the Bill that seeks to outlaw harassment at work and tries to place duties on employers to ensure that they deal with the matter. Under the Government's current proposals, clause 38(2) provides that an employer will be liable for harassment by a third party if the third party harasses the worker in the course of their employment-that is excellent-and the employer
"failed to take such steps as would have been reasonably practicable to prevent the third party from doing so."
Again, that is superb. Then, in my view, it undermines the real protection that could be given to employees, because it says that a worker must be
"harassed...on at least two other occasions"
before the employer has a duty to act.
2 pm
That flies in the face of the spirit of the legislation and, I believe, of what the Government originally intended. It means that an employer will be able to send someone out on more than one occasion to a vulnerable situation in which they will be harassed. It flies in the face of the original judgment, if Members can remember, in the Bernard Manning case, where black members of staff were subjected to racial abuse from that comedian when they were placed in such a vulnerable position by their employer.
My amendment seeks to ensure that it does not have to take at least two other occasions before an employer's duty comes into play. The employer should have that duty on all occasions and in that way vulnerable workers will be better protected. The employer will still have a responsibility placed on them, but if they fail to take such steps as would reasonably have been practicable to prevent the third party from behaving in such a way, the legislation would cover them. They would still be protected. They would have to behave reasonably and, of course, if they could not predict that a person would be abused it is not unreasonable that they should not be covered by this clause. To send someone out on a number of occasions on which they are abused, in my view, flies in the face of what the Government originally intended in terms of the responsibilities placed on the employers.
May I discuss amendment 34, tabled by my hon. Friend the Member for Dover, who will also go into it at some length? We have worked so hard on this together, so I want to try to get some clarity about where we are going in terms of the Government's proposals. I would welcome any interventions from Ministers to clarify the process by which they envisage that this next stage will be implemented.
Let me give the background to the amendment. We have worked on this over the past decade, and some hon. Members will remember the debate that we had on the subject more recently. When the Race Relations Act 1968 was implemented 40 years ago, shipping was exempt. We were in a disgraceful position. Discrimination, although it was outlawed on land, could take place on ships. If people did not like the ethnicity of another passenger, they could legitimately refuse under those exemptions to share a cabin. Discrimination took place across the work force.
In 1976, the Government tried to tackle some of those aspects of discrimination in reviewed legislation, but they still left employers' ability to discriminate against seafarers, particularly on wages. As I mentioned earlier, Filipinos are working on poverty wages because of that ability to discriminate. As a result of EU demands for compliance with EC law, the Bill seeks to outlaw all discrimination as regards seafarers and shipping. It also gives the Minister the power to designate who is included within the ambit of outlawing discrimination against seafarers. We sought to ask the Government to publish the regulations by which the Minister will determine the aspects of discrimination against seafarers that will be outlawed.
I am grateful to the Under-Secretary of State for Transport, my hon. Friend the Member for Gillingham (Paul Clark), because he provided us with a letter on 30 November, which was also laid before the House via the Vote Office and the House of Commons Library and which followed up on a letter of 3 August. He enclosed a copy of the draft regulations, which set out the detail, as I understand it, of those seafarers who will be included in the ambit of the legislation. As far as I can see, it includes seafarers from the EC or the European economic area-the list of countries has been circulated in earlier discussions-and ensures that there is a definition of an employment relationship with this country, so that we have some clarity and certainty for those seafarers who will be included in the legislation to outlaw discrimination.
Let me place on the record what the letter says. It says that the employment provisions of the Bill would apply
"to every seafarer on a UK ship with a port of choice in Great Britain, so long as the seafarer either works at least partly in Great Britain, or is a UK or other EEA national (or has corresponding EC law rights) and has an employment relationship sufficiently linked to Great Britain."-[ Official Report, 30 November 2009; Vol. 501, c. 115WS.]
I would be extremely pleased if we could get some clarity about what
"an employment relationship sufficiently linked to Great Britain"
is at some stage. It adds to the confusion about the ambit of the regulations.
The Government have written to the various stakeholders to say that there will be a further consultation on the issue of pay, requesting evidence from industry representatives and the trade unions and evidence-based financial estimates of the likely impact of either outlawing differential pay rates altogether or continuing to allow the payment of differential rates to seafarers, but only where such differential rates would not operate to the disadvantage of nationals of EC or EEA states or to that of seafarers recruited in Great Britain.
That consultation will now take place. We had a consultation, which lasted six months, in 2007. My understanding is that if the Government are convinced
that there are evidence-based financial estimates that demonstrate that there should be some continuation of differential pay rates, the regulations will be subject to affirmative resolution after the Bill is enacted. That means, in fact, that if the Bill is enacted on 1 April, for example, and implemented next October, the regulations will be honed down during that period and only then will they come into force. That is almost a year in which people will be subjected to discriminatory pay rates.
May I suggest to the Government that the simplest way of doing this would be for the consultation that is taking place, which Ministers have suggested will be short and sharp, to end early in the new year and for the decisions on the regulations to be made fairly swiftly? Rather than awaiting the enactment of the legislation and the publication of the amendments, the regulations could be enacted through the Bill. When the Bill gained Royal Assent on 1 April, so would the conditions and the import of the regulations. In that way, we could tackle discriminatory pay among some of the poorest workers immediately. That would send out a message about the Government's determination to seek equality in this field, where we have had such inequality for such a long time.
I await the Minister's response on all this and the advice of my hon. Friend the Member for Dover about which issues he will press to a vote. This is such a fundamental issue of principle that I hope we will see some Government movement. I am sure other hon. Members will wish to see that, too.
May I now discuss amendment 24, which I have tabled? It has been raised in the discussions already and is a further amendment on the subject of the minimum wage. I cannot remember on how many occasions I have tried this-it becomes like a hardy perennial. My intention is to try to remove the discrimination against young people in the minimum wage legislation.
I come from a basic trade union background, and I believe that someone should be paid the rate for their job. That rate should be based on the work that they do and the value that they add to the company's work-and therefore their assistance towards its overall profit and future sustainability. A person who is making that contribution should be paid the rate for the job, no matter what age they are. This amendment would remove the ability to discriminate on the basis of age. If there are arguments to be made about the deterrent effect that such a change would have on the employment of young people, we need to see the evidence behind them because it has never been produced. We have never had any quantitative estimation of how many young people would be disbarred from employment as a result of being paid the rate for the job. The argument is the same as the one we had about the basic principle of having a minimum wage. We were told that it would cost jobs and would undermine the profitability of companies, but that has not happened. [ Interruption. ] I am happy to give way if the hon. Member for East Antrim (Sammy Wilson) wants to say something.
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