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Lord McIntosh of Haringey: I am asked to answer three points. First, is it desirable for union learning representatives to have training qualifications? To have training is certainly desirable; that is provided for and we expect them to have training in doing their job. There will have to be a wide range of training for different purposes. Those who are encouraging their colleagues to undertake basic skills training will want that particular kind of training. Those who are looking for other kinds of training that are relevant to the workplace will have different training. We agree about training but it does not follow from that—I hope I gave enough examples to show this—that they must have formal qualifications.
The second question concerned the definition of "excessive". I do not think that you can define that. It is in nobody's interests to take extra time off to do work that is not necessary or not valuable. It has never been a serious problem in industry, so far as I know, that there is no definition of what is excessive for shop stewards or health and safety representatives. They do different jobs in different places and you cannot be prescriptive about it. The same is true of numbers. My answer to the noble Baroness, Lady Miller, was that there should not be a restriction on the number of union representatives but there should be an ultimate constraint on the number of hours taken off, which is quite different. There the restriction of not being excessive does apply.
Baroness Miller of Hendon: I want to make a few points. I will let the Minister know now that I intend to withdraw the amendment, but before I do so there are a few points that I want to make and I shall read
very carefully what has been said. Twice the noble Lord, Lord Lea, happened to say that the competition has improved—I think they were the words he used.
Lord Lea of Crondall: Competitiveness.
Baroness Miller of Hendon: He said that competitiveness improved. I think the Minister talked about many of these things being very successful and have improved results and so on and so forth. If that is so, why it is that we still have so few union learning representatives on a voluntary basis? Companies want to do well and if they find that a neighbouring company which has one of these systems in place is becoming more competitive, is doing better, is having better results, they may hasten to get involved.
The Minister started by saying that I had said I am not in for union bashing, and unless I am very much mistaken, a note came up from behind recalling what I said. Without the Minister knowing that I was going to say that, he had it at his fingertips. That is even more of a bravura performance.
Finally, before I withdraw the amendment, the fact remains that one does not know what is going to happen when the Bill becomes law and companies have to impose it. The Minister indicated that the Government did not want it to be too prescriptive; they do not like the idea of the word "reasonable"; and they do not like the fact that the employer has to be content and happy as well. They are not prepared to put any limit on the number of union learning representatives, and they are only going to ensure that the hours are not excessive. They are not prepared to say what is excessive.
I say to the Minister that I am happy to withdraw my amendment, but I think he should look again at some of the measures and see whether there is a way that they can ensure that they will definitely work when the Bill becomes law. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 211 to 220 not moved.]
Lord McIntosh of Haringey moved Amendment No. 221:
- Page 48, line 10, after "order" insert "made by statutory instrument"
The noble Lord said: I rise to move Amendment No. 221 and speak also to Amendments Nos. 222 and 223.
Amendments No. 221 and 222 deal with the order-making power in Clause 43. They make this order-making power subject to the affirmative resolution procedure.
Subsection (2) of the new Section 168A defines the range of union learning representative functions. However, it is possible that, with experience, these activities might change and evolve. They may well develop in ways which are outside the purposes of union learning representatives as defined by subsection (2). For example, it is possible that ULRs might become more involved in organising childcare
arrangements for workers who are undergoing training, and that activity is not caught by subsection (2)(a)(iii) of new Section 168A.We would want to be able to respond if the ULR's job evolved in an unforeseen direction in the future. Hence, subsection (6) of the clause provides an order-making power to vary the purposes for which a ULR is entitled to time off. This order-making power is currently subject to the negative resolution procedure. We now think that the affirmative resolution procedure should apply to orders made under this power. This should ensure an adequate level of scrutiny. Amendment No. 223 has been tabled to ensure that the issuing of a code of practice under Clause 43 is subject to the affirmative resolution procedure.
Clause 43 provides for codes of practice on reasonable time off and sufficient training to be produced by either ACAS or the Secretary of State. If the codes are issued by the Secretary of State, they would be subject to the affirmative resolution procedure. However, that is not necessarily the case if they are issued by ACAS.
ACAS already produces a code of practice which provides guidance on the existing time off rights for shop stewards. This code has worked well and reduced the scope for disagreement. It is probable that ACAS would produce the corresponding code on the time off for ULRs. ACAS could meet this remit by producing a single code covering time off rights for both shop stewards and ULRs or a completely separate code just for ULRs. In the latter case, the code would be subject to the negative resolution procedure and therefore not debated.
As I have said, the guidance on sufficient training can be produced by either ACAS or the Secretary of State. If the code of practice were to be introduced by ACAS, it would be subject to the negative resolution procedure.
We think that both Houses should have the opportunity to scrutinise and debate these codes. Amendment No. 233 ensures that, if ACAS produces one or both of the codes, the issuing of the codes would be subject to the affirmative resolution procedure. I beg to move.
Baroness Miller of Hendon: The Minister will not be in the least surprised when I say that I welcome these amendments. We were very keen, as I mentioned at Second Reading, that many of the orders should not be by the negative resolution procedure but by the affirmative resolution procedure. I am delighted that the Government have agreed.
On Question, amendment agreed to.
Lord McIntosh of Haringey moved Amendments Nos. 222 and 223:
- Page 48, leave out lines 13 to 15 and insert—
On Question, amendments agreed to.
Clause 43, as amended, agreed to.
Baroness Sharp of Guildford moved Amendment No. 223A:
The noble Baroness said: In moving Amendment No. 223A, I wish to speak also to Amendments Nos. 223B to 223F.
A little earlier, the noble Lord, Lord Lea, talked about Clause 43, relating to union learning representatives. There has been an attempt to improve the benchmark through quite an ingenious system. I hope that I have presented here a rather ingenious way of extending the proposals put forward in the Bill a little further.
The issue picked up one that I raised at Second Reading; that is, statutory time off for study. The issue underlying this is one we have already touched on with union learning representatives; namely, the whole question of the relatively low level of skills in the British workforce. In particular, there is the low level of skills among those with what are known as Level II and Level III skills—Level II skills being equivalent to five GCSEs at A to C grades, and Level III being the equivalent of A-level.
The lack of skills in the British workforce has been the centre of many reports for the past century or century and a half. If we look back just over the past 10 years, the competitiveness reports produced by the previous government referred constantly to the problems of a skills gap. Since that time, we have seen both in the Budget and in the Pre-Budget reports the problems of productivity and skills gaps referred to frequently.
I was inspired to put forward this amendment by the statement in last year's Budget that the current voluntary approach has not secured increased participation in the workforce in terms of training.
The problem of the free rider has long perplexed British industry in this sense. It is far too easy for firms to poach other people and not to pay the costs of training. There are attempts to overcome the problem of poaching. The levy grant system that was used for many industrial training boards was dismantled, as we know, during the 1980s and the early 1990s. As I said, the voluntary system, as the Government themselves have concluded, has not worked.
In the Pre-Budget Report of November 2001, the Government went somewhat further in terms of suggesting a number of pilot schemes and ways in which the situation could be improved. This reflected a report from their own Performance and Innovation Unit. Perhaps I may quote one short paragraph from the Pre-Budget Report:
I have sought to help the Government by tabling this new clause in this Employment Bill. They could now carry this suggestion forward and need not
I apologise for the length of the new clause, as proposed in Amendment No. 223A. It states, first, that there shall be a right to ask for time off for study; but a limit is nevertheless placed on that. It is necessary to show that such study is relevant to the work that the employee does. Secondly, it states that the study should lead to a qualification of a level that satisfies the requirements laid down by the Secretary of State. At present, the Secretary of State, or at least the Pre-Budget report, is very concerned about people obtaining Level II qualifications. I would hope that, over time, this could be increased to Level III qualifications, but the provision allows the Secretary of State to lay down the level of qualification that shall be sought, that the employee is capable of benefiting from such time off, and that he or she will make good use of it.
Subsection (2) again limits the degree to which the situation can be exploited. The application must specify the amount of time off required and the dates on which it is proposed to begin and to end, and it should explain what effect, if any, the employee thinks it will have on the employer and how, in his opinion, that effect could be dealt with. The application must also explain how the employee meets, in respect of study time, the required conditions laid down in subsection (1). Thus, there are limitations on what can be done.
Under subsection (4), the Secretary of State may lay regulations relating to the form of application and the level of qualification. Under subsection (5), an employee can make an application only once in every 24 months, so it will not be time off for ever. Subsection (6) defines "a qualifying employee" and specifies when an agency worker qualifies under the provisions.
Subsequent provisions are taken from the flexible time off provisions and are essentially an appeals mechanism. I apologise for the length of the amendment. I had words with the Clerk to see whether it might be possible to use the wording already in the Bill rather than repeat it, but he informed me that it was necessary for us to repeat it at considerable length, and this is why it has taken up so many pages in this group of amendments. That is the purpose of Amendment No. 223A. I beg to move.
"( ) No order may be made under subsection (3) unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.""
Page 48, line 18, at end insert—
"( ) For section 200(3) there is substituted—
"(3) A Code containing practical guidance—
(a) on the time off to be permitted to a trade union learning representative in accordance with section 168A (time off for training and carrying out functions as a learning representative),
(b) on the training that is sufficient to enable a trade union learning representative to carry on the activities mentioned in section 168A(2) (activities for which time off is to be permitted), or
(c) on any of the matters referred to in section 199(2),
shall not be issued unless the draft has been approved by a resolution of each House of Parliament; and if it is so approved, ACAS shall issue the Code in the form of the draft.""
6.30 p.m.
After Clause 43, insert the following new clause—
"TIME OFF FOR STUDY
(1) A qualifying employee may apply to his employer for time off during his working hours for study if—
(a) the study is relevant to the work he is doing and promotes his understanding of and value in that work,
(b) his purpose in applying for time off is to enable him to prepare and sit examinations which lead to a qualification of a level which satisfies conditions laid down by the Secretary of State, and
(c) the employee has undertaken sufficient study in his own time to satisfy those supervising his studies that he would benefit from time off for further study and use that time to good effect.
(2) An application under this section must—
(a) state that it is such an application,
(b) specify the amount of time off required and the dates on which it is proposed it begin and end,
(c) explain what effect, if any, the employee thinks his taking this time off would have on his employer and how, in his opinion, any such effect could be dealt with, and
(d) explain how the employee meets in respect of the study time required the conditions laid down in subsection (1).
(3) An application under this section must be made at least three months before the proposed time off is due to take effect.
(4) The Secretary of State may by regulation make provision about—
(a) the form of applications under this section, and
(b) the level of qualification to which subsection (1)(b) applies.
(5) If an employee has made an application under this section, he may not make a further application under this section to the same employer before the end of a period of twenty four months beginning with the date on which the previous application was made.
(6) For the purpose of this section an employee is—
(a) a qualifying employee if he—
(i) satisfies such conditions as to the duration of employment as the Secretary of State may specify by regulations, and
(ii) is not an agency worker;
(b) an agency worker if he is supplied by a person ("the agent") to do work for another ("the principal") under a contract or other arrangement made between the agent and the principal."
"The Government is already looking at possible fiscal measures to improve UK skills. The PIU set out a range of options to overcome barriers to training, one of which is a statutory right to time off for training and development. The Government is considering the suggestion as one of the possible ways of taking forward the commitment made in Budget 2001 and will carry out a full regulatory impact assessment and wide consultation on the development and implementation of any new policy".
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