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Lord McIntosh of Haringey moved Amendment No. 76:

Page 59, leave out line 42

The noble Lord said: My Lords, in moving Amendment No. 76 I shall speak also to Amendment No. 77. These amendments remove references to a worker's breach of contract from the provisions on detriment and dismissal connected with recognition in Part VIII.

I should start by explaining what these amendments are not intended to do. They are not intended to allow workers to breach their contracts in pursuit of union recognition. The purpose of the amendments is to prevent employers from circumventing the provisions which protect workers from detriment or dismissal arising from campaigning about recognition.

The existing text of the Bill is deficient in two ways. First, it would allow employers to write into workers' contracts a requirement not to campaign about recognition. Obviously, that would undermine the entire purpose of providing protection for workers in the schedule--indeed, of providing the schedule itself.

Secondly, in providing that actions in breach of contract are not protected, the schedule is currently different from other detriment and dismissal provisions--for example, Section 44 of the Employment Rights Act 1996--because those provisions do not contain any mention of breach of contract. Retaining the existing text in the Bill might be taken to imply that a worker is always protected under other similar provisions where he acts in breach of contract. Again, that is obviously not desirable.

These amendments would continue to protect a worker from detriment or dismissal if, and only if, the worker's action is reasonable. In most cases it will be unreasonable for a worker to breach his or her contract, so I do not believe this change represents a substantial alteration of the provisions. It does, however, reduce the risk of circumvention of the provisions by unscrupulous employers and of unintended consequences on other legislation. On that basis, I hope that the House will agree that this is a desirable change. I beg to move.

Baroness Turner of Camden: My Lords, I thank my noble friend for introducing this amendment. My recollection is that this was one of the issues we raised in Committee. I am very glad that the point has been accepted and I hope the House will give it full support.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendments Nos. 77 to 80:

Page 61, leave out lines 32 and 33
Page 62, line 14, after ("20") insert ("or 70")
Page 62, line 24, after ("20") insert ("or 70")

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Page 62, line 44, at end insert--
("Directions about certain applications

139A.--(1) The Secretary of State may make to the CAC directions as described in sub-paragraph (2) in relation to any case where--
(a) two or more applications are made to the CAC,
(b) each application is a relevant application,
(c) each application relates to the same bargaining unit, and
(d) the CAC has not accepted any of the applications.
(2) The directions are directions as to the order in which the CAC must consider the admissibility of the applications.
(3) The directions may include--
(a) provision to deal with a case where a relevant application is made while the CAC is still considering the admissibility of another one relating to the same bargaining unit;
(b) other incidental provisions.
(4) A relevant application is an application under paragraph 81, 86, 87, 91 or 106.")

The noble Lord said: My Lords, I have spoken to Amendments Nos. 77 to 80. I beg to move them en bloc.

On Question, amendments agreed to.

Clause 3 [Blacklists]:

Lord McIntosh of Haringey moved Amendment No. 81:

Page 2, line 2, leave out ("recruitment") and insert ("discrimination in relation to recruitment or in relation to the treatment of workers")

The noble Lord said: My Lords, in moving Amendment No. 81, I shall speak also to Amendments Nos. 83 and 84 which are consequential upon it.

When the House last debated this matter, I referred to the fact that the Delegated Powers and Deregulation Committee had questioned aspects of our approach. We have reflected in particular on the comments made by the committee that the power should define more clearly the prohibition. We have looked again at Clause 3(1)(b) of the Bill, which describes the purposes to which blacklists are put. As drafted, the subsection seeks to prohibit lists which are,

    "compiled with a view to being used by employers or employment agencies for the purposes of recruitment".

The main use of blacklists is undoubtedly in recruitment. However, the Government acknowledge that there exists a very real possibility that lists may be compiled and used to discriminate against workers already in employment. For example, the information could be used to encourage the dismissal of workers currently in employment.

The Government have therefore reflected on this issue and we conclude that the current form of words has too narrow a focus. It contains a potential loophole that might permit the use of blacklists to discriminate against existing members of a workforce.

Amendment No. 81 amends subsection (2)(b). It does so by expanding the prohibited purpose to include the use of lists for the purposes of discrimination against the existing members of a workforce as well as against prospective workers who are applying for work. I think it will be agreed that this is a sensible amendment. It closes the loophole

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that I have described and ensures that employers can be prevented from relying on the lists to sack or otherwise penalise their existing employees.

Amendment No. 83 is a consequential amendment to the interpretative subsection (5). It provides that the use of "worker" in Amendment No. 81 has the same meaning as it has in Clause 13 of the Bill, so ensuring that it covers agency workers, home workers and persons in Crown employment. This is a sensible definition. It will ensure that some of the more vulnerable members of the workforce are protected.

Finally, I turn to Amendment No. 84, which is also consequential. As currently drafted, subsection (6) states that terms used in the clause have the same meanings as they have in the Trade Union and Labour Relations (Consolidation) Act 1992.

The amendment ensures that the term "worker" in this clause, which is defined in subsection (5), is excluded from that rule of interpretation. That is necessary because the 1992 Act gives a different and narrower meaning to "worker". The amendment is therefore clarificatory and avoids interpretative confusion that might otherwise occur. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 82:

Page 2, line 8, at end insert--
("( ) include provision for or about the grant and enforcement of specified remedies by courts and tribunals;
( ) include provision for the making of awards of compensation calculated in accordance with the regulations;
( ) include provision permitting proceedings to be brought by trade unions on behalf of members in specified circumstances;
( ) include provision about cases where an employee is dismissed by his employer and the reason or principal reason for the dismissal, or why the employee was selected for dismissal, relates to a list to which subsection (1) applies;")

The noble Lord said: My Lords, this provision amends Clause 3, which gives a power to the Secretary of State to bring forward regulations to prohibit the compilation, dissemination and use of blacklists. The clause does not contain the substantive provisions themselves.

We know that the drafting of these regulations will be a complicated matter. We want to ensure that they are well targeted and deal with wrongdoing without outlawing the proper use of information about trade unionists.

We have repeatedly stated our intention to consult in detail on the draft regulations. We shall be especially interested in views about how the sanctions against blacklisting should be defined and how the prohibition can be enforced in the courts or in the tribunals.

As currently drafted, the clause unnecessarily confines the range of enforcement methods and remedies which can be included in the regulations. Some important options might be closed off before we even began to consult on them. For example, it is

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unclear whether the Government would have the power to introduce regulations which gave the courts or the tribunals the authority to order blacklisting organisations to stop disseminating their lists and to ensure that such orders can be enforced. It is also unclear whether the regulations could enable compensation to be awarded to individuals who have lost their jobs or failed to find employment because their names were included on the lists.

In addition, we want to explore the possibility that unions should be able to bring proceedings on behalf of their members. It might be possible for multiple cases to be handled as one by a union, saving time for the tribunals or the courts, as well as the parties.

The amendment allows such options to be explored during the consultations by expressly stating on the face of the Bill that the regulations could include such remedies. Obviously, I do not wish to pre-judge the results of the consultation. There is no presumption on our part that the regulations will definitely include such solutions. But certainly they appear to be worth examining in closer detail.

The amendment therefore removes an unhelpful rigidity in the power to regulate in this area. It opens up the possibility that the regulatory regime can be more finely attuned to the views of those who are being consulted. I beg to move.

On Question, amendment agreed to.

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