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Baroness Miller of Hendon: Perhaps I may say a few words to the noble Lord. The first issue that he addressed was the regulatory impact assessment, particularly with regard to Investors in People. He referred to the benefit being six times the cost—I believe he said that the ratio was six to one. I understand that, but the point that I was making was that it is very difficult to achieve the status of Investors in People. Many companies would like to reach that status but are unable to do so. They invest a tremendous amount of money in the training necessary to achieve that particular award.
I am not sure whether, even with that award, if it was obligatory to have union learning representatives with the costs that those would involve, one might find in the distant future that fewer companies would seek Investors in People status. I make that point only to suggest that such representatives might in some way be excluded. The noble Lord has a different view, which is why I made that point.
The other issue that I wanted to raise in view of what the noble Lord said was that at Second Reading I made the point that union learning representatives, of whom there are already many, who work in companies on a voluntary basis, have been shown to work extraordinarily well. The point is that that is done on a voluntary basis. I always believe that, if you force people to do things, that sometimes does not work very well. Although the amendment seeks to make adjustments to the clause, those adjustments involve simple requirements: that the employer had to be reasonable, that the employer could not delay and that if there was a difficulty with a particular person, that
should be taken into account. I appreciate what the noble Lord said. The Minister will no doubt tell us his views.5.30 p.m.
Lord Gladwin of Clee: I hope that the noble Baroness will forgive me if she has already covered this point in introducing Amendment No. 206. The amendment refers to,
- "the employee providing appropriate prior written notice".
Baroness Miller of Hendon: I suppose that I would be happy if the employer had to provide written notice but, in the circumstances of the case, if the employee downed tools that day and said, "By the way, I'm going off to do that", that would not necessarily be appropriate. It would be appropriate according to the conditions and time when it was said. It might well be that that would need refining and perhaps different words could be added. However, the arrangement is a two-way process and in those companies that operate it on a voluntary basis, it works very well, because all the parties agree and operate in an appropriate way. I use the word to mean, "appropriate for the circumstances of the particular time". It would be difficult for a company that was doing something very involved if an employee were suddenly to drop a notice on the desk saying that he was off in half an hour. I would probably not consider that to be appropriate, but that might vary according to the circumstances.
Lord McIntosh of Haringey: I had better start by saying that I am informed on this subject as well, having produced training-at-work surveys for the Department of Employment for a number of years, and having done a number of studies on workplace training.
I also say that I am a little surprised at the implicit tone of the amendments. I would have thought that a trade union movement that produced something in excess of 3,000 union learning representatives without any statutory support or an entitlement to time off work or other support, and who operate in the common interests of employers and employees to secure a better skilled workforce, deserves all the support it can get. I believe that that is what Clause 43 does.
I make a final introductory comment about what the noble Baroness, Lady Miller, says about consolidation. Yes, we consolidate from time to time but I suspect that, even in 1992 when the last Consolidation Bill was produced, employers and employees did not read it. What they read was the guidance produced by the department for their use, and that can as easily be produced in relation to individual legislation as to a Consolidation Bill.
Having said that, I have an obligation to respond to each of the amendments, which I shall do. Amendments Nos. 205 and 218 relate to the time off that the union learning representatives may take to fulfil their duties, and to the time off an employee may
take to access their services. Both amendments insert the word "reasonable" in relation to time off. Amendment No. 214 relates to the guidance that will be provided on what constitutes "reasonable".Amendment No. 205 is unnecessary as the restrictions that it seeks to place on a union learning representative's time—I shall refer to them as ULRs—have already in place. Under subsection (8) of new Section 168A, ULRs are already entitled only to reasonable time off during working hours. A union would be restricted from seeking unlimited time off or time off which would disrupt or damage the employer's business. So the amendment serves no purpose.
Amendment No. 218 is also unnecessary. It replicates an existing reasonableness provision. Under subsection 4 of this clause, an employee will be entitled to have time off without pay to access the services of the ULR. It operates by inserting new subsections into Section 170 of the Trade Union and Labour Relations (Consolidation) Act 1992. These new entitlements to time off must therefore be read in conjunction with the existing provisions of Section 170. Subsection 3 of that section already specifies that the time off must be "reasonable" in all the circumstances. Therefore, that is superfluous.
Amendment No. 214 seeks to remove subsection 6 from new Section 168A. That provides for the issuing of guidance by ACAS or the Secretary of State regarding sufficient training. We wish a code of practice to be produced, which will give practical guidance on what constitutes "sufficient training". Removing that subsection would remove the power for ACAS or the Secretary of State to do so. The experience and attributes of individuals seeking to become ULRs will vary greatly. To cover all instances, the definition of "sufficient training" must not be too prescriptive. Removal of the section would mean that in the event of a dispute it would be left to the courts to decide what is "sufficient training". I am sure that Members of the Committee would agree that that would be entirely undesirable. It would be much better if a code of practice providing straightforward, well-researched advice were available to help avoid disputes.
The remaining amendments place restrictions of one kind or another on union learning representatives. Amendment No. 206 seeks to place a requirement on the ULR to notify the employer in writing that they will be taking time off for their ULR duties. The noble Baroness, Lady Miller, has explained that that could be a slip of paper on a desk. However, it places an administrative burden on both the employer and the ULR that is unnecessary. As we have said throughout the passage of the Bill, Clause 43 provides rights that are broadly equivalent to those that are currently enjoyed by shop stewards and other lay union representatives. My noble friend Lord Lea reminded us of health and safety representatives. There is no requirement on shop stewards to request time off in writing to undertake their duties.
Under subsection 8 of new Section 168A, either ACAS or the Secretary of State will provide guidance on reasonable time off rights. What we envisage is that this guidance will closely mirror the code of practice on time off rights for trade union duties provided by ACAS. This code gives guidance on requesting time off and what information they should supply to the employer but does not specify what form the request should take. The approach has no significant problems for employers. There is no reason to believe that problems would arise in the case of ULRs where they have not done so for shop stewards. As I said, there is no requirement for the notice to be in writing but if they all agree that written notice is the most appropriate, there is nothing to stop that.
Amendment No. 209 provides that a ULR's appointment must be approved by the employer for the ULR to qualify for time off. That really is a step backwards. It gives at first instance a veto to employers over a ULR's right to time off. A ULR would be unable to take time off unless the employer had given their written consent to them doing so. By withholding their consent, an employer can prevent a ULR operating, which we cannot accept.
There are currently 3,500 ULRs in place. Agreeing to the amendment would hinder the appointment of more. There would be more workers who would be denied the valuable services of a ULR. The amendment states that the approval cannot be unreasonably withheld or delayed but it does not give an indication of what would be unreasonable. Good employers, who want their workforce to be properly trained and who can see the benefits of ULRs, will not withhold their consent. However, bad employers who do not recognise the important role that unions can play in training the workforce and the partnership approach will use this amendment to avoid appointing ULRs. They will, as a consequence, be denying themselves the benefits of ULRs.
We have already provided that the amount of time off must be reasonable in all the circumstances. It is unclear what the amendment would add. Such a condition would lead to disputes and bad feeling in the workplace. It would probably lead to more employment tribunal cases. We want to increase the number of ULRs in place and to do this they need clear entitlements to time off. The amendment would restrict the growth of the ULR network and be thoroughly undesirable.
Amendment No. 215 seeks to place a restriction on the number of days off that a ULR can take each year to undertake their duties. Restricting the time off that a ULR can take to provide advice will reduce their effectiveness and create inflexibility. A ULR needs to be free to take off the time that is necessary to provide advice. However, as I have said, all time off must be reasonable so there are safeguards against excessive amounts of time off.
The regulatory impact assessment indicates that the average ULR will take 14 days each year—five days' training and nine days to carry out their duties. I imagine that that is where the noble Baroness, Lady
Miller of Hendon, took the 14 day-figure from. But these figures are averages. All the circumstances will be different in different cases. Newly appointed ULRs will need more time for training; successful ULRs will have more people coming to them for advice. Some will require less and some will require more. If employers are seeking Investors in People status, they will need to involve the ULR, and the time off that a ULR would need will increase.What happens if a ULR is responsible for advising a large number of employees? A limit of this kind would reduce the effectiveness of ULRs and limit the number of people who could be helped.
Amendment No. 207 restricts the location where a ULR may operate. It would mean that, in order to be entitled to paid time off, the ULRs would have to undertake their duties at their place of work or at an authorised trade union location. That would hinder the ULRs and affect the advice that they can provide. There will be occasions where the ULRs will need to go somewhere else; for example, for their own training. What about training at training centres or the local college?
I am sure that the noble Baroness, Lady Miller, does not want us to bar these more formal places of learning; it would not fit in with her general support for training. In any case, what is meant by an "authorised trade union location"? Who will do the authorising?
I assume that the intention is to stop ULRs travelling around the country and claiming paid time off. But Section 168A clearly defines the purposes for which a ULR may take time off, and that time off must be reasonable. If a ULR attempts to take time off that does not fall within this, he will not get it. It is likely that most advice will be provided in a ULR's own locality, but there will be occasions when ULRs will have to go further for specialist training, and that would be prevented. What about the health and safety implications of the amendment? What about the situation where the place of work is a building site? Would that be appropriate?
I turn to Amendment No. 208. Subsection (2) lists the purposes for which a ULR can be entitled to paid time off. Subsection (2)(b) provides for the ULR to be entitled to reasonable time off to consult the employer about performing these activities. Amendment No. 208 adds to the wording of the subsection by mentioning that these consultations could include discussions about integrating the ULR's work with the employer's training activities.
Many employers have elaborate training and development arrangements to encourage workers to develop their potential. We envisage that ULRs would complement this activity wherever it is possible and in the interests of their members.
The consultations could cover the issues raised by the amendment. Most ULRs would want to know about employer initiatives and plans, and the employer would have an incentive to explore the interaction between his own training activities and those of the ULR.
Therefore, the clause already enables the ULR to be granted time off for consultations on this core subject. I do not see the purpose of complicating the wording of the clause by specifically referring to the issue. If we did, we should have to refer to all kinds of other topics as well.
Amendment No. 213 seeks to exempt employers with IIP status from the scope of Clause 43. We strongly support Investors in People. It is a sign that employers have recognised the need to train their employees. To exempt ULRs from workplaces with IIP status would be not only wrong; it would be perverse.
In order to achieve IIP status, an employer must demonstrate that he has procedures and practices in place that allow for training and learning issues to be regularly reviewed. In many instances, a union will have been heavily involved in helping an employer to gain IIP status. Why should the union then be excluded once it has been gained? It would be strange for a trade union and its ULR to help with workplace training and to work with a partnership to gain IIP status only to have trade union rights and the trade union contribution removed upon its attainment. I suspect that unions would be more reluctant to help an employer to gain IIP status if the amendment were agreed.
We see the role of the ULR as complementing training activities that are already in place, not working against them. I see no reason why the attainment of IIP status should mean that a ULR is no longer necessary. In fact, Investors in People UK, the public body responsible for the IIP standard, does not support this amendment.
Amendment No. 211 seeks to remove subsections (4)(b) and (4)(c) from new Section 168A. There will be occasions when a union member wishes to become a learning representative but has not yet received the training required for the role. Removing these subsections would mean that these individuals would not have the right to time off work to undergo their required introductory training.
These subsections allow untrained ULRs to function as such for an initial six-month period. During that time the ULR would also have the right to undergo the initial training. However, if they did not receive the required training during this six-month period they would no longer qualify for time off.
We have also included a training condition in the new Section 168A and we must ensure that union members are given the opportunity to meet this condition. We need these subsections if we are not going to exclude people from having the opportunity to undertake the role.
Amendment No. 219 deals with the definition of a learning representative of a trade union provided for the purposes of the amendments to Section 170. I am delighted to see the noble Baroness, Lady Blatch, is in her place. I remember when she was a Minister her exercises in speed reading of complicated Government briefs and I can only attempt to emulate her. It is not
clear what this amendment is for. I suspect that the noble Baroness, Lady Miller, fears that there is a loophole allowing an employee to have reasonable time off to access a union learning representative who does not meet the training condition. That is not so. An employee only has the right to time off to access a ULR when that ULR is entitled to time off under new Section 168A. That means that he must meet the training condition.Finally, let me turn to Amendment No. 220. This amendment seeks to remove the order-making power. ULRs have been around for about five years. They are relatively new creations and it is possible that their functions could change over time. We need to ensure that we have the powers to deal with any future changes and so we have included this order-making power in subsection (6). It is not intended as a means to establish collective bargaining rights for unions over training. We have always made it clear that it is drafted to ensure that no collective bargaining rights are assigned to unions or to the ULRs they appoint.
Bargaining about training and learning remains an entirely voluntary matter. Employers and unions are free to engage in such bargaining only where they both wish to do so. We intend to apply the affirmative resolution procedure and that is what is achieved by Amendment No. 221, which I hope we shall deal with shortly. I hope that goes some way to relieving the concerns of the noble Baroness, Lady Miller.
5.45 p.m.
Baroness Miller of Hendon: That was a bravo performance by the Minister. When one puts down a big group of amendments the Minister at least knows what the amendments are and has time to prepare his speech. When the Minister comes back with a bravado performance like that—I started to write things down, but I am afraid I got lost. I shall obviously read very carefully what the Minister had to say about all of those matters—I was disappointed—
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