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Baroness Turner of Camden moved Amendment No. 2:

Page 2, line 35, at end insert ("or
( ) to an independent adviser falling within the terms of sections 9 and 10 of the Employment Rights (Dispute Resolution) Act 1998.").

The noble Baroness said: I beg to move Amendment No. 2. It will perhaps be recalled that at Second Reading several noble Lords referred to the need to refer to unions as being appropriate organisations to which individuals could report dangerous or fraudulent practices. I referred to the Private Member's Bill that I, with the help of my two noble friends, Lords Wedderburn and McCarthy--I am glad to see them here today--succeeded in getting adopted several years ago.

It will be recalled that the appalling Piper Alpha disaster might have been prevented had reports been made earlier about dangers inherent in the practices being carried out or omissions that had occurred. In that incident, it became clear that the unions to which many of the employees belonged were not recognised. Indeed, the employers were hostile. Moreover, since employees were employed on short-term contracts, they were unwilling to be identified as possible trouble makers since they otherwise would probably not have had their contracts renewed. Our whistle blowers' Bill gave such individuals who reported on unsafe practices protection without their having to wait two years for it as was normal in the case of other unfair dismissal cases. That Bill was later absorbed in a more general health and safety at work measure now on the statute book.

However, it was natural for the employees at that time to report their concerns to the unions. Our amendment makes that explicit in the new Bill. We have taken wording that already exists in legislation and which has, moreover, been used by a Bill recently accepted by the Government (now an Act), the Employment Rights (Dispute Resolution) Act. That defines who is a relevant independent adviser. I quote from the schedule to the Employment Rights (Dispute Resolution) Act 1998. A relevant independent adviser is such for the purposes of the legislation,

    (b) if he is an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union,

    (c) if he works at an advice centre (whether as an employee or a volunteer) and has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre; or

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    (d) if he is a person of a description specified in an order made by the Secretary of State".

It seems to us that this is a comprehensive, good and complete definition. It deals also with the situation if the union is not recognised.

It is important to have such a measure in the Bill. As at present drafted, protection exists if the union's solicitor intervenes on behalf of a member. But if the intervention is by an authorised union official who may know a great deal more about the circumstances involved than perhaps an outside lawyer, then the protection is not explicit. I believe that that was not the Government's intention, or that of the noble Lord, Lord Borrie, in drafting the Bill. I am certain that it was intended that unions should be given status within the context of the Bill. I beg to move.

Lord Gladwin of Clee: I support the amendment because, together with my noble friend Lady Dean of Thornton-le-Fylde I am a member of the council of the Public Concern at Work. I am anxious that the Bill should reach the statute book as soon as possible. I believe that every effort should be made to encourage industry and commerce to create credible machinery in which employees have faith so that perceived malpractices and wrongdoing can be handled internally. The Bill deals with circumstances where such machinery does not exist. That brings me directly to Amendment No. 2.

In my experience as a trade union official, the normal channel for an employee to seek to reveal a perceived wrongdoing is to his or her trade union official, usually a fairly senior official outside the immediate place of work; in other words, the kind of union official described several times in Schedule 1 to the Employment Rights (Dispute Resolution) Act which my noble friend has already cited. If someone has been certified as competent and authorised to give advice, why cannot disclosure to such a person be protected?

Secondly, I find a lack of clarity between disclosure made to a trade union official in a workplace where the union was recognised, and one where there was no recognition. Where unions are recognised, there is normally a collective agreement covering terms and conditions of employment, grievance handling and disciplinary procedures. My guess is that as yet few of the collective agreements specifically refer to whistle blowing. In those circumstances, will a disclosure made in good faith to a union official--after all, he may be the signatory of such a collective agreement--be a protected disclosure; and, if not, why not?

The third situation relates to an employee who is a trade union member but works in a workplace which does not recognise trade unions for collective bargaining, so there is no collective bargaining agreement; there is no whistle-blowing procedure. The employee goes to his union official and in good faith discloses his concern about perceived wrongdoing. My noble friend has pointed out that it would appear that if the union's solicitor writes to the employer the disclosure is protected. But if the union official takes the matter up, then the disclosure is not protected. Is that correct? If it is, is it not quite unreal?

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Finally, I have a direct question of the Minister. How does the exclusion of trade union involvement in this Bill square with the proposal in the Fairness at Work White Paper which proposes the creation of a legal right for employees to be accompanied by a trade union representative during grievance procedures? I welcome clarification from both my noble friends.

1.15 p.m.

Lord Haskel: When my noble friend Lord Borrie spoke to the first amendment, he reminded us that we want to encourage the use of proper internal procedures. That is why the purpose of Section 43C in Clause 1 of the Bill is to encourage workers to raise their concerns with the employer first, whether directly or through proper internal company procedures. They need only act in good faith in doing so, which is deliberately not an onerous condition.

The Bill is therefore very much in line with the Government's partnership approach, which seeks to encourage greater co-operation between employers and workers and trade unions.

I appreciate my noble friend's wish to see a role for trade unions in internal whistle-blowing procedures. But the amendment is not the best way to go about it. My noble friend Lord Gladwin asks how this is reconciled with the Fairness at Work White Paper. The Government have already set out a package of proposals in the Fairness at Work White Paper. It is in that context that we should regard the role of employers, workers and their representatives, including trade unions, in establishing greater co-operation. The White Paper includes welcome proposals on trade union recognition and proposals making it unlawful to discriminate by omission on grounds of trade union membership or non-membership. Indeed, the paper lays down proposals about workers being able to be accompanied by a trade union official

The Bill is a specific measure. It is about protecting responsible whistle blowers. As drafted, it delivers necessary protection and will encourage the use of proper agreed procedures and greater openness between employers and workers. On that basis, it has received widespread support. The Bill contains powers to prescribe persons for the purposes of disclosure. When we come to make the order, we shall consider which persons or bodies should be prescribed. We will consider my noble friend's views in that context and also the views of the noble Baroness, Lady Turner.

But our present intention is to prescribe those such as the Health and Safety Executive or the Financial Services Authority with a specific role in regulating and investigating wrongdoing. Our present view is that it would not be appropriate for trade unions to be fitted into the structure, but we are open to further discussion. For those reasons, the Government cannot support the amendment.

The Fairness at Work White Paper proposes to create a legal right for employees to be accompanied by a colleague or a trade union representative of their own choice at grievance and disciplinary procedures. We believe that that will help to assure employees that they

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will receive a fair hearing. The proposal is a contribution to the way in which we would like to see problems resolved in the workplace, involving all interested parties working together to ensure that companies can maintain their competitiveness and that workers are treated fairly.

Lord McCarthy: The noble Lord invites us to respond and we must do so. He said that the Government are listening and we must respond. He said that the Government are interested in proper procedures. But he also said that this is a specific measure and that is the difficulty. The noble Lord rightly mentioned many times Fairness at Work, but the Government propose to encourage a legal right for all employees to be accompanied by a fellow employee or trade union representative of their choice during grievance and disciplinary procedures. With great respect, we are not talking about grievances or discipline. We are talking about alleged corruption and alleged illegality. It is not a grievance on the part of the worker that illegality and corruption is occurring. The employee wants to make a public protest and to put it right. This is a specific measure.

I am worried when the Minister goes on to say that these public activities are not the functions of trade unions. In Heaven's name, why not? If one looks at the history of trade unions one sees that we have a Labour Party because it was interested in public concerns, not only in the grievances and disciplinary activities of its members. It had a role and a function.

I hope that the Minister will listen to the argument that on any reasonable case the trade unions should be involved.

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