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Lord McIntosh of Haringey : As always, I am grateful to my noble friend for his critique of the previous legislation which this legislation seeks to amend. When he used the phrase "concerted stoppage of work" and said that it could last for two minutes, two days or two months, I was tempted to ask him whether the two minutes' silence on Armistice Day would count as a concerted stoppage of work for the purposes of the legislation. I shall not ask for an answer because I am sure that he would have to charge me.
I remind the Committee that we are dealing with a voting paper. That is what this part of the legislation is about. We should not go wider than the issue of what should appear on it. The Government propose to amend Section 229 of the 1992 Act which sets the legal framework within which unions must operate when designing the voting papers that they use in industrial action ballots. It provides that the union must describe the proposed industrial action on ballot papers as either a strike or action short of a strike. Clearly, it is important to have that distinction from the point of view of being sure that those being asked to vote know how serious is the issue. Despite the final words of my noble friend, it is not important in terms of rights being lost. There are no rights being lost as to whether it is a strike or action short of a strike.
Lord Wedderburn of Charlton: Whether or not one calls it a right is a matter of taste. But if one asks the wrong question and the court says that one has asked one kind of question instead of another, then one loses one's "right" to pursue an industrial dispute.
Lord McIntosh of Haringey: I thought that the noble Lord was suggesting that there were more rights for action short of a strike than for a strike itself. If there is a misdescription, then it is clearly important that the union should get it right, and that is our intention in this legislation.
We recognise that the term "strike" can be used in a variety of ways. Some occupations and industries give it one meaning and in others it is used differently. But we believe that most workers and employers are likely to consider that a strike is occurring when it involves the withdrawal of labour during normal working hours. That is the basis on which we have framed Schedule 3 and on which we have said that overtime and call-out bans constitute action short of a strike. I shall return to the Connex case in a moment when discussing Amendment No. 242. That is the definition of the term that we shall use to assess the amendments which my noble friend has tabled.
I begin with Amendment No. 238A. My first worry about it is that it says,
- "the union may state on the ballot paper that relevant action is industrial action short of a strike".
-
It does not say that it has to mention one or the other. The second problem is the phrase "contingency or contact arrangements". My noble friend's knowledge of employer relations is far greater than mine. I am not familiar with the phrase and I do not really know what it means.
Lord McIntosh of Haringey: I am grateful to my noble friend for that. As it is unreported it means that I do not know about it. I might even have a justification for not knowing.
The effect of the amendment is to give unions the discretion to describe a wide range of potential forms of action as "action short of a strike". In effect, only an all-out strike would have to be categorised as a strike. The intention of the amendment is to require a form of action to be described as "action short of a strike", but that is not what it says. Two kinds of problems arise. First, it seems to give the unions the discretion of describing the actions as a strike or action short of a strike. It could describe an overtime ban as a strike on one occasion, but action short of a strike in an identical case. That would create confusion for both employers and union members. There would be no consistency and people simply would not know what they were voting for.
Secondly--and this applies whatever the intention of the amendment--I am unhappy about the categorisation of all discontinuous industrial action as action short of a strike. It would mean that a strike on certain days of the week need not be described as a strike on the ballot paper. I doubt whether many workers would share that understanding of the meaning of a strike. For them, any non-attendance at work during normal working hours would be seen as a strike. So describing it as action short of a strike, which would be permitted by the amendment, would be seriously misleading and would potentially subvert the purpose of the ballot.
The current wording of the schedule is the right way ahead. It clarifies the status of overtime bans and call-out bans. It ensures that the various forms of industrial action are categorised on ballot papers in ways which most union members would readily understand.
I turn now to Amendment No. 242. In introducing both these amendments my noble friend referred to the judgment of the High Court in Connex v. RMT. That was clearly an important ruling and it helped to remove the uncertainty about the status of overtime bans. As my noble friend reminded the Committee, the court ruled that overtime bans should be treated as strikes.
We studied the High Court judgment when the schedule was drafted. We took the view that although the judgment had largely removed the uncertain status of overtime bans, it had nonetheless placed the bans in a category which would make less sense to those voting
in industrial action ballots. Overtime bans are outside normal working hours and selective in their effect. Most workers would not normally classify such bans as strikes. Indeed, the Court of Appeal accepted that that was the case. Workers tend to see strikes as events which affect normal working in a non-selective way. We therefore decided to classify overtime bans as "action short of a strike", thus ensuring that the law reflected the general understanding of the term. I believe that that will limit the potential for misunderstanding among union members.However, there is potentially a tension between the wording in Section 246 and the definition of an overtime ban as "action short of a strike" for the purposes of Section 229. Amendment No. 242 seeks to remove that possible tension. As such, it serves a useful purpose and I am grateful to my noble friend for bringing it to my attention.
We are not entirely sure that the exact wording of the amendment is ideal and would like to consider the matter further. Nevertheless, my noble friend has skilfully drawn an important issue to our attention and I assure the Committee that the Government will return on Report with an amendment of their own to deal with this matter. On that basis, I hope that my noble friend will not press his amendment.
4.30 p.m.
Lord Wedderburn of Charlton: In view of his last remarks, I am sure that my noble friend will expect me to say a few words. We are grateful to my noble friend for reconsidering the definition. That is what Amendment No. 242 seeks to achieve.
Perhaps I may make a twofold prediction. First, if one changes the definition by reference to Section 229, it will be found necessary to refer to the main section with regard to what the ballot paper must provide. In doing that--this is my second point--I predict that the Government will be driven to certain results if they do not want certain provisions on the statute book, although I add that these are not necessarily worse than those which preceded them. Those earlier provisions were characterised by hostility to workers.
In trying to find a new definition, I predict that the Government will find that they really should seize the moment. There are very few moments when such a question may be raised. It has been raised by the Connex case. Indeed, the Government raised it in paragraph 5(2). I did not raise it; the Government did. If they are raising the issue, surely they are obliged to look again at the usage of the terms "strike" and "industrial action short of a strike". Even if their conclusion goes against me, I ask them to do that. I beg leave to--
Lord McIntosh of Haringey: Before my noble friend withdraws the amendment, I have already said that I should like to meet him to discuss the matter between now and Report. I hope that he will put this on the agenda.
Lord Wedderburn of Charlton: I should be delighted. It is always a delight to meet my noble friend
and it will be even better with the agenda with which I shall provide him! I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
[Amendments Nos. 239 and 240 had been withdrawn from the Marshalled List.]
[Amendments Nos. 241 to 245 not moved.]
Baroness Miller of Hendon had given notice of her intention to move Amendment No. 245A:
The noble Baroness said: Purely in response to the Minister's generosity, I do not intend to move this amendment or the other two amendments in the group. I know that he has undertaken only to "consider" Amendment No. 241, but I shall take away these three amendments in the same spirit and shall reconsider them at home.
[Amendment No. 245A not moved.]
[Amendments Nos. 245B and 245C not moved.]
Clause 7 [Maternity and parental leave]:
On Question, Whether Clause 7 shall stand part of the Bill?
Page 2, line 36, after ("must") insert ("if required to by the decision of the Central Arbitration Committee")
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