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Lord McCarthy: If a union was in the course of an industrial dispute, as my noble friend the Minister said, surely to engage in the activities set out in paragraphs (a), (b) and (c) would be secondary action. Indeed, if it were secondary action, it would be unlawful under the terms of the 1992 Act. I do not know what the noble
Baroness is complaining about, unless she is talking about individuals. However, if this were to be done collectively as part of a dispute, the noble Baroness must admit that it would be secondary action and, therefore, unlawful.
Baroness Miller of Hendon: I heard very clearly what the Minister said: he liked my speech but saw no need for it. Perhaps he is right. I certainly think about things in the context of "fair's fair". However, I shall take the matter away and read most carefully in Hansard what the Minister said.
On Question, amendment agreed to.
[Amendment No. 235A not moved.]
Clause 3, as amended, agreed to.
Schedule 3 [Ballots and notices]:
Baroness Miller of Hendon moved Amendment No. 236:
The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 238, 241, 243 and 245. All these amendments affect Schedule 3. This is a small group of amendments relating to information to be supplied to employers in relation to ballots conducted under the Bill, plus one item relating to information which should be given to employees. None of them reduces the amount of information to be provided; on the contrary, the amendments call for the information to be fuller, clearer or more explicit. I shall take each of the points item by item. Paragraphs 3(2) and 9(2) reduce the liability of the union to provide detailed information about employees entitled to take part in a ballot. Instead, the union has only to give such information as is in the union's possession. We believe that that makes life too easy and that it provides a simple excuse for the union not to be too diligent in supplying the information that the employer needs and is entitled to have.
Amendments Nos. 236 and 243 require the union to make reasonable inquiries to find any information which it does not have. I personally do not believe that this puts any undue burdens on the unions. Similarly, Amendments Nos. 238 and 245 would substitute new sub-paragraphs for those printed in the Bill. The Bill qualifies the obligation to provide information by saying that the rules apply,
This is an area of great practical importance because the legislation of the 1980s left us with a provision to give notice to the employer, first, of the strike ballot paper, and secondly, of the forthcoming action if there was a majority in the ballot. However, in both those cases among the matters which had to be revealed was a description of all the employees in the union who were included in the industrial action. The relevant words are printed rather usefully on page 59 of the Bill in Schedule 3; namely, that among other things, the union must describe the employees entitled to vote. The union must state who those workers are to enable the employer readily to define them. That phrase gave rise to great ill will. It was interpreted by some people and some employers to mean that the union must give names or even names and addresses in respect of the two sets of notices.
Recently the Government made it plain that they did not want to have such an obviously discriminatory provision. There were cases where workers' names had to be revealed in the sense that they could only readily be described if some identification were made which made it clear who they were. Whether one regards the right to take industrial action as a right or as a liberty, it is rather unattractive to add to it the requirement that the union has to give suitable and sufficient description of those concerned which in many cases will enable them to be identified.
We strongly support the Bill in respect of paragraph 3 on page 59 of the Bill and the other notice provision because that provision is now knocked out. However, in its place comes what I can regard only as a quite extraordinary provision; namely, that the union must give vital information, including that which would help the employer "to make plans". If one is to talk about employers, unions and employees as partners, one has to rub one's eyes to believe that when the partnership is in trouble such that one side or the other is party to a dispute, the law will say to one of them, and one only, "You must give to the other partner the information which is required to help him to make plans". Perhaps I should express that in a different way. The Bill as it stands means that in a trade dispute the union must give to the employer information to help him to make plans. In the middle of a dispute situation where notices are to be given by one side or the other, the employer can make his plans not only on the basis of information which he can normally obtain but also on the basis of what the union must give to him. That is not as bad as requiring identification of individuals among the workforce as it will not make any kind of discrimination so easy. However, from the point of view of the union and the majority of the employees it is surely quite absurd to require them unilaterally to give to the employer the information which will help him to "make plans" in the context of a dispute.
Our real objective in the amendment I am proposing is to ask my noble friend to look again at the wording of the provision. If the provision comprises making plans about a particular matter there may be a justification for it. But this is a case of making plans generally in the context of a dispute where both parties are otherwise acting lawfully. However, one of them must give specific and unrivalled information to the other. I speak to Amendment No. 237 and to Amendment No. 244 in the hope that my noble friend will reconsider the matter as I believe the wording I propose is similar to the wording that it seeks to replace. People used to say that the requirement concerning names and addresses would never happen and that an employer would not demand them. Most employers did not demand them but there were cases where that provision gave rise to extreme ill will. I believe that if this provision is not at least rephrased it will give rise to disputes which need never occur.
Page 59, line 36, after ("possession") insert ("or which is ascertainable by it after reasonable enquiries")
"if the union possesses information as to the number, category or work-place of the employees concerned",
and so on. The amendments would oblige unions to provide the information without the excuse of saying that they do not know. I find it totally inconceivable that a union claiming to represent a group of workers can do so without knowing how many there are, what they work at, or where they work. The amendments prevent obstruction by the unions. If they are genuinely launching a ballot without knowing who they are representing, then, in my view, the very least the unions must do is bestir themselves and find out. Having done
16 Jun 1999 : Column 296so, they should then pass that information on to the employer. It is axiomatic in English law that a person involved in a dispute should know in advance the case against him; and, indeed, that he should know who is making the claim.
Amendment No. 241 deals with information to be given to an employee in connection with a strike ballot. The information will be required by the Act to be printed on the ballot paper. I wish to read a slightly shortened version of the text which appears in full on page 60, lines 18 to 21 of the Bill,
"if you are dismissed for taking part in strike or other industrial action which is called officially ... the dismissal will be unfair if it takes place fewer than eight weeks after you started taking part".
The text continues,
Lord Wedderburn of Charlton: My noble friends and I have tabled an amendment to the same schedule as the amendment we are discussing but which in no other way supports the noble Baroness in what she has just said. I hope that my noble friend will resist these amendments. However, as I have an amendment in the group we are discussing it behoves me to explain the seemingly small change that we called for in Amendments Nos. 237 and 244 as regards the notices to be given by the trade union.
"and may be unfair if it takes place later".
There is an omission which makes this particular phrase misleading and may encourage a worker to continue in a prolonged strike and expose himself to dismissal. It is no use arguing that the words "may be unfair" should alert the worker to the fact that it could equally be fair. With no disrespect to anyone, the majority of the workers receiving the ballot paper will neither be professors of semantics nor Chancery lawyers.
If the notices are intended to tell the workers their rights they should be clear and unambiguous. They should not contain theoretical fine print, or in this case require the worker to have to read between the lines. Amendment No. 241 simply alters the notice to read,
"and may be fair or unfair if it takes place later".
I would like to assume that the Government will accept all five of these amendments--perhaps I hope that in vain--in the interests of full information being available to everyone involved in a ballot. I beg to move.
3.45 p.m.
Lord McIntosh of Haringey: I am grateful to the Committee for agreeing to discuss these amendments
to Schedule 3 together. They are not of course the same and they certainly do not go in the same direction but it is useful to consider the whole issue at one time.I start with Amendments Nos. 238 and 245. The Bill specifies that if the union possesses the information the notices should include at a minimum a description of the number of employees involved, the broad kinds of job they perform and their workplace. The unions will be required to describe as accurately as they possibly can the broad occupational characteristics of their members, their workplace, location and the number of their members involved. But, inevitably, the unions will be limited by the information at their disposal. There may be rare occasions when they will be unable to provide in full the details required by the notice provision. These amendments seek to require unions to provide the information regardless of whether or not it is in their possession.
In most cases, unions should have the necessary information to hand. In the rare cases where they may not, the amendments would, inevitably, require unions to undertake special exercises to collect the information. We have repeatedly said that we will retain the key elements of the law on industrial action--including the requirement on unions to give the employers concerned advance notice of both the ballot and of any official industrial action which may result. I hope that, on reflection, the noble Baroness will agree that it would not be right to require unions to undertake special exercises to collect information in addition to those obligations.
My hope is immediately dashed when I look at Amendments Nos. 236 and 243. These amendments seek to require the unions to make additional enquiries to collect information for the notice other than that already in their possession. We do not want to require unions to do that. We want to reform the law on industrial action ballots in order to reduce the very large administrative burdens on unions. The amendments would serve only to provide additional burdens on unions which would delay or frustrate the organisation of the industrial action.
As the noble Baroness will recognise, that does not mean that we are in favour of industrial action. All are agreed that industrial action is a last resort. But if there is one thing worse than industrial action which takes place according to efficient procedures and as soon as it can once those procedures are gone through, it is industrial action which is threatened and delayed because of administrative procedures and the need to obtain additional information.
The amendments are unnecessary. In general, the notice provisions will mean that employers will receive much the same information as they do now, short of naming the members involved. In all circumstances employers will be able to communicate with their workers by issuing a general letter to all those potentially involved. I hope that the noble Baroness will, on reflection, consider that that is sufficient and will not press the amendments.
Before dealing with my noble friend's amendment, perhaps I may turn to Amendment No. 241, which deals with the wording of the statutory statement which all voting papers must contain--the "health warning", as the noble Baroness quite rightly referred to it.
There is general agreement that the existing wording is inadequate because it fails to reflect the new protections against the unfair dismissal of strikers contained in Schedule 5 to the Bill. We have come forward with proposals in paragraph 5 of Schedule 3 which add new wording to the health warning describing the new protections. The wording is intentionally short. A voting paper is not the place to write a detailed account of the new protections. If it contained such an account, people would not read it. Our proposed wording gives an accurate summary of the main protections against dismissal. The amendment seeks to add further wording. I know that it is only two words but, nevertheless, the amendment seeks to draw particular attention to the possibility that dismissal after the first eight weeks of a strike could be fair.
The amendment is unnecessary. Under our proposals the health warning would state that dismissal in this period "may be unfair". I hope that the noble Baroness will concede that the wording already conveys the notion that dismissals could be fair or unfair. That is why we say "may be unfair". I know that the noble Baroness anticipated this argument, but it is still correct. There is no need to complicate the statement by adding the further wording she proposes.
I shall now turn to Amendments Nos. 237 and 244. The fact that these amendments have been grouped does not imply any support for the Opposition amendments. I am glad to have my noble friend's welcome for the changes proposed in the Bill. I agree with him in his criticisms of the previous wording.
The Government believe that the notices are useful to employers, enabling them to act responsibly when faced with the threat of industrial action. However, they are not designed to provide the employer with the information for its own sake. Nor are they designed to enable an employer to victimise the individual employees concerned. The Bill explicitly defines the purpose of the notices. They are to enable the employer to put his side of the argument to his workforce, for them to take into account when participating in the ballot or responding to the union's call to take action; and they are to help the employer to make plans to minimise the adverse effects of possible industrial action on his organisation, on his customers and on the general public. These are sensible objectives and are two justifiable reasons why employers need this information. However, the amendments would seek to remove the latter purpose--that is, the purpose of making plans--from the face of the Bill.
I am sure that my noble friend had in mind the scope of information that unions will be asked to provide in order to enable an employer to make plans but--unless the Committee were unwise enough to accept the Opposition amendment--all the union has to do is to provide information in its possession. There is nothing sinister about this.
Let me give as an example the case of a further education college. My noble friend will know the case of Blackpool and Fylde College v. NATFHE. I seldom get an opportunity to quote cases against him. I choose this case because it concerned a college which confirmed that the current law requires the union to provide names. The management knows that a number of lecturers will be called out on strike on a certain day. Unless the union provides the information, the management has no way of knowing which lecturers or where. So they cannot warn students whose classes will be cancelled. But unless the union tell the management, "We are calling out 50 lecturers in the English department and 30 in chemistry" or "There will be 200 lecturers at site A and 100 at site B", the college cannot give its students some warning of the scale of the action.
Perhaps I may give another example--the London Underground. If a union in calling a strike intends to target, say, the Central Line, it is only fair that it should tell London Underground that that is what it is going to do in order that the public using the line can be warned and have the chance to make other arrangements, while users of other lines should know that they will not be affected. Businesses and all organisations depend on their customers, the users of their services. It is in the interest of workers as well as that of management that customers are given as much warning as possible of the likely effects of industrial action. Otherwise they will take their custom elsewhere and they will not come back. The public reaction to a number of public transport strikes is evidence of that.
It may be that this information will reduce the impact of industrial action. I hope that all unions have moved beyond trying to make industrial action as damaging as possible, regardless of the effect on the long-term survival of the business. We are trying to promote a long-term partnership approach. During a short-term dispute, it is important not to lose sight of the overriding common interest of workers and employers in the success of the business.
No additional kind of information will be required to be provided; only that information already in the possession of the unions. We will not place any further burden on unions by requiring them to collect information they do not already hold; and employers cannot insist on receiving information which the unions do not have. The changes we are proposing--including the ability to make plans--are in the interests of employers, unions and workers. They give greater clarity about the nature and purpose of the information to be provided by the unions and they protect workers from having their union membership disclosed to their employer against their will. I believe that we have reached the right balance. In those circumstances, I hope that the noble Lords who have tabled these amendments will either withdraw them or not move them.
4 p.m.
Lord Monkswell: My noble friend talks in terms of the unions having to give virtually all the information that they have to employers to reduce the impact of a dispute on the employer. What is the quid pro quo? Will
there be a similar requirement on the employer to provide all the information that the employer has to the union in order to ensure that there is a balance?My noble friend gave the unfortunate impression in speaking to these amendments that industrial disputes are solely caused by unions. That is not the case. I know of a high-profile national dispute that was engendered by the employers in order to discontinue the production of goods with which there was a problem. The employer engineered a strike in order to stop production, effectively at no cost to itself. I was slightly concerned at the tone of my noble friend's remarks and his suggestion that the cause of industrial disputes lies solely with the trade unions. That is one of my reasons for asking that question.
There is a more significant reason. If trade unions and workers are prevented from having an effect on employers if they are engaged in a dispute they will find some other way of impacting on employers. These are practical issues relating to day-to-day industrial relations. They need to be taken on board. I revert to my original question. Is there a quid pro quo? Will employers have to provide unions with all the information that they have in order to balance the requirement on unions to provide all their information?
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