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Lord Wedderburn of Charlton: I know that the TUC has given some support to the form in which he puts it but I do not have to agree with the exact legal formulation of a proposal, even though the spirit of the two amendments is common.
The problem with my noble friend's amendment, which does away with the eight weeks and protects strikers in regard to unfair dismissal without limit of time, is not only the difficulties that that may give rise to in itself but the fact that it will leave those strikers in breach of contract of employment. By not grasping that central nettle, the protection in regard to unfair dismissal will leave them in a highly ambiguous situation.
I understand the argument that employers have put forward that such an amendment would protect workers who go on strike—protected strike and lawful strike as far as the union is concerned. Those who join in that will be protected against unfair dismissal but they will still be in breach of contract of employment.
It is, as it were, to close that logical gap that the principle, which is inherent in our Amendment No. 131, says that the breach of contract should be cured. If that could be done, there would be no objection to the amendment of my noble friend Lord Lea. I would join with him in his Amendment No. 262A once that logical gap was closed. It is with that quite inadequate presentation to the Committee of what is involved in this very important, central issue of labour law and labour relations that I beg leave to move.
Lord Lea of Crondall: I rise to speak to Amendment No. 262A in echoing my noble friend Lord Wedderburn. There are unique features of the history of the right to strike in Britain. Indeed, we do not find there is a right to strike. We find that there is protection in the 1906 Act, as he has said, against inducement to breach of contract of employment in consultation or in furtherance of a trade dispute and so forth. That is the line that we have all been brought up to understand. But, of course, it runs into all the difficulties to which my noble friend has referred when it comes to unfair dismissal.
One of the things that can be said and no doubt will be said is, "Well, this sort of thing may be true in theory but it does not really happen in practice, does it?". Perhaps I may remind the Committee about the specific case to which my noble friend has referred.
Friction Dynamics is a company in the Caernarfon area. There has been a year long dispute which involves the whole community in that area. Indeed, April is the first anniversary of this dispute. It has not received a great deal of press attention but it certainly is exercising people in that area very considerably. It exemplifies the inadequacies of our employment law. We were pleased to hear Alan Johnson say in the other place that this matter will be reviewed and that action following that review will be taken in the life of this Parliament.
Let me say what happened in this dispute. It involves 87 workers who were sacked by their employer after taking part in a lawful strike. By the way, it is worth reminding ourselves that we now have a very restricted right to strike in a number of other respects in addition to what has been mentioned. I refer to the ballot etc. However, this is a lawful dispute and they were on strike. The industrial action was called by the Transport and General Workers Union, in which I declare an interest as a member of that union, following the serious deterioration in working conditions at the plant, including the proposed removal of statutory health and safety rights, reductions in holiday allowances and changes in shift patterns.
Following the strike, the workers returned to find that they had been locked out of the factory, placed on an enforced holiday and 50 temporary staff had been recruited to fill their places. After eight weeks of stalemate the workers were given an ultimatum to return to work or face dismissal. They were sacked. Members of the Committee will agree that this raises the question in a rather acute form and the example proves it is not theoretical. If it is unfair to dismiss an
employee for taking part in a lawful strike during the first eight weeks of a dispute, why is it not equally unfair for the remainder of the strike? The fact is—and we know the history—that eight weeks is an arbitrary figure. It has nothing, on any obvious reasoning, to do with fairness or to do with equity or common sense.One is conscious it can be argued that this whole matter is not really the territory of the Bill. I have to say I was sympathetic to that argument and, until recently, I was very sympathetic to it. However, the more we have gone into the whole question of unfair dismissal in the previous two or three Sittings, the more it has led me to think we should table this measure even though it entails, as I am advised by the Public Bill Office of the House of Lords—although, oddly enough, that did not seem to be the view of the Public Bill Office in the House of Commons—a change in the Long Title, hence Amendment No. 264. I am certainly on a learning curve on esoteric matters such as that. However, it is important to emphasise that the right to strike in this country is an indirect right to strike. In no other European country is there such a restriction on the length of a strike as we have in this eight week rule. I am not even sure that we can find it in any other part of the world, but I have not done my research sufficiently to do a total dragnet.
The amendment is a probing amendment and the Government have indicated that a great debate has to take place on the matter. I trust that it will not simply be a case of splitting the difference between eight weeks, 10 weeks and 12 weeks. The time has come when we could take a more logical view of where the right to strike fits into our legal structure than has previously been the case. It is in that spirit that I speak to the amendment.
Lord Falconer of Thoroton: These three amendments draw us into a debate about the effectiveness of the protections against dismissal for taking certain types of industrial action, which were introduced in the Employment Relations Act 1999.
As my noble friends Lord Wedderburn of Charlton and Lord Lea of Crondall have said, the issue has come to prominence again because of the dismissal of a group of employees at Friction Dynamics last year. I refer to proceedings that raise the legal issues arising out of that dispute.
This matter was debated at length during the Report stage in the other place. Important undertakings were made in that debate. They are worth mentioning again. The Government believe that the Bill is not the right place to change the law on the dismissal of people taking industrial action. This law has been in place for a relatively short time—in fact since April 2000. The Government fully understand the difficulties experienced by the sacked workers at Friction Dynamics. However, it would be wrong in our view to change the law on the basis of one, unresolved case.
That said, the Government are committed to undertake a review of the Employment Relations Act. We will begin the review in May or June this year. The Government will include within the review an examination of the Act's provisions on the dismissal of
strikers. We will consult in full on the issues, in the course of that consultation dealing with the point made by my noble friend Lord Wedderburn of Charlton, who will be free to raise the issues of convention obligations. This should give us a far better basis on which to assess the law's effects.This is an important undertaking given by my honourable friend Mr Alan Johnson in another place. Should the review contain recommendations to change the law in this or other areas, the Government have committed themselves to come forward with the necessary legislation in the life of this Parliament. In that context, these amendments are premature.
Amendment No. 131 would in effect make it unfair to dismiss any person taking protected industrial action because it would remove the main grounds for dismissal; namely, that the striker has broken his contract of employment.
This is a very radical step. It would in principle overturn long established law on the effect of industrial action on contracts of employment that my noble friend Lord Wedderburn of Charlton set out in full for us. It would make it considerably more difficult for employers to protect what they would regard as their legitimate business interests during prolonged periods of industrial action. It is therefore not an approach that readily commends itself to the Government, but again I refer to the review.
Amendments Nos. 262A and 264 also seek to make it unfair in all cases for the employer to sack those taking protected industrial action. As my noble friend Lord Lea of Crondall said, it achieves this end directly by introducing a new clause into the Bill which would remove parts of Section 238A of the 1992 Act which currently qualify the protection against dismissal in these circumstances. The Government have similar concerns to those referred to in relation to the amendments of my noble friend Lord Wedderburn. We have similar concerns about this amendment; namely, that it is premature and probably goes too far.
The text of 238A was inserted by the Employment Relations Act 1999. It was introduced following prolonged and difficult but productive talks with interested parties. Yes, it is possible to say where something is the result of long, difficult and productive talks, it does not measure up to what either side would regard as equitable and fair, but that is the nature of things that come out of long, productive and difficult talks. It represents a compromise that was acceptable to employers and unions at that time. The amendments would unpick that carefully constructed compromise. If a new settlement on this issue is to be reached, we need to involve all parties in deciding which way we should go. As I have stated, the forthcoming review of the Employment Relations Act is the correct place to engage other parties in this exercise.
In light of my remarks, I invite my noble friend Lord Wedderburn to withdraw his amendment and, when the time comes, the noble Lord, Lord Lea of Crondall, not to move his amendment.
6 p.m.
Lord Wedderburn of Charlton: Of course, I am not surprised that the Government did not fall into raptures and accept even the probing spirit of all these amendments. However, I am a little disappointed by the terms in which the Government have addressed themselves to the problem at this early stage. It may not be the right place, in their view, in the Bill.
The problems, in my submission, are not based on a law that has been the law for a short time. Law on breach of contract, if one can transpose it into earlier language of status and property, has been the law since the Statute of Labours 1351. There has been a long time to think about it and a long time to get employers to see what French, German and Italian employers seem able to see. They did not all see it at one point—they have of course resisted it. In the different histories of the industrial legal systems of these countries, employers resisted the application of international human rights to labour relations, but it is not an issue in those countries now. Why are English employers—British employers—thought to be so deficient in common understanding of international human rights that they could not possibly accept what employers elsewhere accept?
Of course, there is a surrounding panorama of legal provisions which deal—for example, in France—with replacement workers. That is a very relevant point of the dispute—the astonishing and outrageous treatment of workers—to which my noble friend Lord Lea of Crondall referred. There was a case in Wales recently in which replacement workers were used and then the workforce was dismissed after waiting for eight weeks. It is remarkable that British employers still engage in that sort of activity. It happens elsewhere, I have to admit, but when it happens the breach of law is immediately apparent.
Here it seems—although no doubt there will be further consultation on the legal position of this dispute—that it is something that the Government, at the moment at any rate, are happy that they can get away with. The approach in my amendment, said my noble and learned friend—I apprehend I have him right—is not one that readily commends itself to the Government. That will not be good news in Brussels in light of the Charter of Fundamental Rights. It will not be good news in Geneva for the International Labour Organisation, which is fed up with the way in which the United Kingdom Government constantly defy the most basic principles of the Convention on Freedom of Association. It will not be good news to British workers or to British trade unions, which have to cope. They are the people who have to cope with the mess that is caused by this absurd antediluvian, stone-like attitude to international human rights in regard to collective action. I appreciate that there is more protection than there was. In 1999, the Government made a step forward both in regard to recognition and to unfair dismissal. It is a small, teetering little step that does not address the fact that this country is virtually alone in Europe—not, of course, in Latin America—by being in breach of the most fundamental principle of the International Labour Organisation. When the
review comes, I hope that it will commend itself to the Government to face that very simple fact and to do something about it. This is an early stage. We have put the matter on the agenda. We give notice to the Government that we expect better of a Labour government than merely to look at such principles and have them not commended to themselves at an early stage. Let them keep an open mind on whether they should observe those standards, which are internationally applicable. At the present stage, there is nothing more to be done. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Clause 31 [Non-completion of statutory procedure: adjustment of awards]:
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