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Lord McIntosh of Haringey: In the course of a short speech my noble friend has managed to impute to me words that I certainly did not say and motives that I certainly do not have. First, he said that the Bill states that unions have to give all the information in their possession to the employers. That is not what the Bill states, and it is not what I said. The Bill spells out very clearly the information that has to be provided. It is information that is in the possession of the unions. It cannot include the names and addresses of those who will be involved in the proposed industrial action, and it is defined by the purpose for which it is to be used.
My noble friend went on to suggest that I implied--he does not think that I said--that all strikes are caused by unions and not by employers. I am aware of the word "lock-out" as well as he is. I am aware that there are, and have been, employers who choose to provoke strikes in order to promote their own interests. The law as proposed in the Bill is deliberately and conscientiously even-handed. It has been, as my noble friend knows well, the result of consultation with the TUC as well as the CBI.
My noble friend returned to his first question: what is the quid pro quo? There is already a reciprocal duty, in so far as employers are obliged to disclose information, to recognise unions for the purposes of collective bargaining.
Lord McCarthy: I must stress that we are trying to help. At the same time we are trying to understand. I am not sure that I do understand. Perhaps I may turn the Minister's attention to paragraph 3(2) of Schedule 3 to the Bill. The Government are amending the situation in which in the past an employer could ask for names.
As I understand it, the Government want to end that situation. It is stated on the face of the Bill:
- "In subsection (2)(c) (notice of ballot must describe employees entitled to vote) for 'describing (so that he can readily ascertain them)"--
that is the present situation--
"the employees of the employer' substitute 'containing such information"--
these are the new words--
"in the union's possession as would help the employer to make plans".
I had assumed that the kind of information that would now have to be supplied to enable the employer to make plans, whatever it might be, would not include names or information that would enable the employer to ascertain names. That was the point of the amendment to the Bill.
Lord McIntosh of Haringey: No. I made it entirely clear that there are no circumstances under which a union can be required to give names and addresses.
Baroness Miller of Hendon: I understand what the Minister is saying in regard to Amendments Nos. 236, 238, 243 and 245. I still feel that it is inconceivable that a union would act for employees in the matter of a ballot without knowing for whom it was being done. However, I shall leave that aside for the present.
I am absolutely amazed at Amendment No. 241. I was delighted to hear the Minister agree that the wording was not correct. However, I knew that he would say that "may be unfair" meant that it also "may be fair". I anticipated his remarks. But since the Minister and the Government are concerned that the matter should be clear--which is why they redrafted this section--I cannot see why, even in this small part, the words cannot be "fair or unfair". That would indicate exactly the meaning given by the Minister. However, I shall not press for a Division. As I plead every time, I should like the Government at least to find one small part that makes all the hours that I spend on these speeches worth while. Since the Minister says that "may be unfair" also means "may be fair or unfair", why he cannot simply give in and say, "You can have it, because that is what it means", I know not--which makes me wonder if that really is what it means. But at this stage--
Lord McIntosh of Haringey: Let me look again at that issue before Report stage, without any commitment.
Baroness Miller of Hendon: That is most generous of the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 237 and 238 not moved.]
Lord Wedderburn of Charlton moved Amendment No. 238A:
The noble Lord said: This is a substantial amendment. The Committee will see in Schedule 3 that the issue addressed by this amendment, and now Amendment No. 242, goes to the central features attending the legality of official industrial action. It is spelt out in paragraph 5 on page 60 that,
There are a number of difficulties, three of which I mention. First, the formula as to what is a strike and what is industrial action short of a strike applies not only here but also to a situation in which the employer faces a claim that dismissals in a dispute are improper because they have occurred in the course of industrial action. We come to that in Schedule 5. A strike is defined in Section 246 of the Trade Union and Labour Relations (Consolidation) Act 1992 as,
Noble Lords may well be surprised that I rather approve of this decision. Connex, which, in hours, went to the High Court, as our procedures allow, and then to the Court of Appeal, had its claim for an injunction turned down. The Court of Appeal said that the definition of a strike--a concerted stoppage of work--left open the possibility of the union imposing an overtime ban from the very beginning. Whereas that might look like an inconsistency, here it was not. The concept of industrial action short of a strike might therefore have a different customary meaning in various industrial sectors. Worse, even at this point the Bill makes the 1992 Act appear self-contradictory. Section 246 of the Act defines "strike" in the way that I have outlined, but the Bill now by law insists on a special meaning according to the provisions in Schedule 3 which it has never had before.
What is more, if your Lordships look at the provision in respect of a strike and industrial action short of a strike, you will see that it now says that an overtime ban and call-out ban constitute industrial action short of a strike. I make no complaint about the Bill overturning a decision of the Court of Appeal. Very often one feels that the sooner it is done the better, but in this particular case one cannot but feel that the provisions on overtime and call-out bans and their mandatory status as industrial action short of a strike relate to the decision of the Court of Appeal in the Connex case that such bans are to be looked at in this context, if it allows, as strike action.
This becomes a little more complex. I seek to avoid some of the complexities. The Bill will make obligatory under terms of employment what may not be, in any sensible terms, a contract of employment and therefore a breach, as was said in the Connex case. The Connex case looked at whether those workers should have been working an overtime ban and said that they had and that went to feed the notion that it was a strike.
By this time the law has turned so many circles that one hesitates to add more, but there are more. In the words of one of the judges of the Court of Appeal, to regard an overtime ban as a refusal to work certain periods of time required under a contract of work makes the Bill rather odd. If that is the normal case for workers
What is more, not only is it a question which the union must put, even if it and its members believe that what they are doing is taking strike action in the linguistics and semantics of that particular area, but the reported judgments also suggest that whether it is a strike or industrial action short of a strike is a matter to be determined in the context of the bodies concerned: the employer perhaps; the union certainly; the employees who are members of the union, and so on.
What the Bill seeks to do is to remove the decision in Connex, which is a perfectly proper thing for a legislature to do, in regard to Section 229 voting papers. There is the subsidiary point that the Bill changes matters only in respect of voting papers. There are other issues, such as the unfair dismissal of a group of workers who take action, where a different meaning may be given, although I cannot easily see a court saying that it should be. However, it is definitely limited to notices and ballot papers for the purposes of the industrial action.
The Committee may believe that this is a matter of interest to employers, workers and present and former trade union leaders, who are now represented in this House, although not as well as they should be. Now that the issue has been raised and there are at least four sets of contradictions arising from various legal statements, would it not be a good idea to take the opportunity at Report stage to make sense of this area of the law? People's rights depends upon this. I refer not only to the rights of employees and trade unions but also rights of employers in the context of unfair dismissal.
In trying to cut down the matter it is in no one's interest to do less than justice to the extraordinary state of the law. I note that my noble friend has an interest at least. It is no radical ambition to ask the Government to look again at this matter, which is an amendment to the existing law--that is to say, paragraph 5(2)(2A). I would like to know why that was included. Why did the Government suddenly decide on all overtime matters, whether or not they were contractual? The Government know as well as I that some workers are on contractual overtime and some are on voluntary overtime. There are different parts of the spectrum in between. Why did they suddenly launch this bombshell? Why was it kept to overtime and call-out bans? Our amendment suggests a few others. But, if a proper job were to be done, our amendment would have to be reworded and cover a much greater area.
But there is a matter which is much more important than that. Have the Government understood the difficulties which employers, trade unions and employees will be in? If a union has always talked about an overtime ban as a right to strike, which was the case in Connex, why should it be prevented? It is in no one's interests for it to be prevented from giving to the members a ballot paper which says that our action has been a strike and everyone knows about overtime bans. But the Bill says that one cannot say that. Not only cannot one do it, but one cannot say it without losing
Page 60, leave out lines 13 and 14 and insert--
(""(2A) For the purposes of subsection (2), the union may state on the ballot paper that relevant action is industrial action short of a strike.
(2B) In subsection (2A) "relevant action" means an overtime ban, a ban on contingency or contact arrangements, a call-out ban, and forms of discontinuous action within subsection (6) of section 234A below."").
"For the purposes of subsection (2) an overtime ban and a call-out ban constitute industrial action short of a strike".
It is important for the Committee to note that this is a statutory prescription as to the character of two types of industrial action which would not normally be regarded as full strike action--but only two.
In order to have industrial action which is legally acceptable, the union is required to put to the members involved either or both of two permitted questions; namely, whether they will strike or whether they will register a view regarding industrial action short of a strike. Many people think that action short of a strike is either a go-slow or an overtime ban or other action of that kind. I must make it clear to the Minister that much of this is not the Government's fault. This has long been a problem, but we submit that it is made worse by the part of the Bill to which I have referred. To explain why, the union must get the voting question right. Members are asked whether they want to take strike action or industrial action short of a strike. If the majority vote for action on one of the questions but the union calls for action on another, the legality is lost. These are very severe limits on the British so-called right to strike. On this technicality (as most people see it) many cases have been taken to court, many by employers who are the obvious plaintiff. To be even remotely fair, the law must give the union and employer a clear definition, as far as possible, of what is a strike and what is action short of a strike.
"any concerted stoppage of work".
That is about the least helpful definition that anyone has ever put in a statute about labour law. It does not even say what the purpose is. Students are always quick to note that a concerted stoppage of work would cover those who went off to a football match. Obviously, by implication it means that there is some kind of dispute by virtue of which the stoppage takes place. But the statute does not say so. A stoppage of work can include
16 Jun 1999 : Column 304a stoppage of two minutes, two weeks or two years; it leaves it open to a total stoppage, a go-slow or an overtime ban.
The Court of Appeal faced this problem squarely for the first time in December 1998 in an action in which a rail company, Connex South East, sought an injunction against the National Union of Rail, Maritime and Transport Workers. The case is to be found in Industrial Relations Law Reports [1999]. A new judicial answer was given to the problem. A ballot was taken of some 230 conductors employed by Connex who were asked, "Are you prepared to take strike action?" After that, having gained a majority in the ballot, the union called on members to impose a ban on overtime and rest-day working. Most people thought that perhaps the court would regard that as industrial action short of a strike and therefore that the strike did not count because members had taken part in action short of a strike. Not a bit of it.
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