| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Baroness Sharp of Guildford: I thank the Minister for his reply. I am sorry that he thinks this amendment is premature; I thought it was very nice that we were able to path the way with legislation before the pilots were completed, and then if the pilots were successful, we could use the legislation.
I am glad that he has sympathy with the sentiments here. The issues are important and I very much look forward to seeing legislation when it does come forward. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 223B to 223F not moved.]
Baroness Turner of Camden moved Amendment No. 224:
- Page 48, line 28, leave out "employees" and insert "workers"
The noble Baroness said: In moving Amendment No. 224 I shall speak also to Amendments Nos. 225 to 230, and to Amendment No. 234, all amendments in the name of myself and my noble friend that have been grouped together.
Generally speaking, on this side of the Committee we thoroughly welcome Clause 45, and I believe that is also the position of the TUC.
Clause 45 of the Bill creates the power for the Secretary of State to make regulations implementing the EU fixed-term work directive. As the directive has to be implemented in the UK by July 2002, the Government have, as I understand it, started the final round of consultation on the draft Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. Indeed, we made reference to that when we were talking about the Bill at Second Reading.
The aim of the directive and the regulations appears to be two-fold: to prevent workers on fixed-term contracts from being treated less favourably than comparable workers in permanent work; and to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.
As I have said, generally speaking we welcome the regulations but we are concerned about the term used in the Bill. As we understand it, the Bill limits the rights to those who legally qualify as employees. The TUC has consistently argued that the Government are legally required to extend the new rights for those employed on fixed-term contracts to wider categories of workers than those who are simply legally qualified as employees. I understand that legal advice has been sought on this issue, and counsel has advised that Clause 45 of the current Employment Bill does not fully give effect to the UK's obligations under the fixed-term work directive and the framework directive.
I understand the directive applies to all employment relationships not just to employees. That would mean that it would cover workers on what used to be called "the lump" on building sites, who employers liked to regard as self-employed. They are of course in an employment relationship, and they would perhaps not be covered by Clause 45.
Also, the regulations would appear to exclude agency workers, apprentices and employees whose fixed employment, training or work experience is funded either wholly or mainly by the European Social Fund. I understand that the regulations also exclude individuals employed on the new deal subsidised employment option.
The Bill provides for many of the requirements to be brought in by regulation. It is not possible to deal with what the regulations say in detail here because that is a matter for consultation, no doubt with the appropriate organisations. Nevertheless, I believe the use of the
term "employees" presents a rather strong restriction, and certainly limits the cover of what we believe is a very good exception of the Bill to those legally regarded as employees. The Government do not seem to know where they stand on this because I see that page 30 of the Explanatory Notes refers to employees in Clause 110 and then goes on to state:
- "being less favourably treated than comparable full-time workers".
Baroness O'Cathain: Before we listen to a long debate about this, can I ask the noble Baroness, Lady Turner, whether there should really be an Amendment No. 224A, because on page 48, line 30 the term "employee" appears. Should not that be "worker", too, otherwise we are going to fall into the same trap?
Baroness Turner of Camden: Certainly, yes.
Lord Razzall: I rise to speak to Amendments Nos. 235 and 236. On the list that was circulated today—apart from the triumph of hope over expectation indicating that we are now meeting on Thursday, 11th March—there is also a mistake in the grouping here in that I think a hyphen is omitted between Amendments Nos. 234 and 236. I think it is intended that I am moving Amendments Nos. 235 and 236, which raise the same point as that indicated by the noble Baroness, Lady Turner.
In the absence of our two academic experts this afternoon, for the completion of Hansard so that they can read it, it is probably important to get into Hansard the reasons why those of us who are moving this amendment do not feel that the legal advice that the Minister has received is correct. I have no doubt he is going to tell us because in another place the argument was used that the definition here complies with the European directive, and I would like to record why we believe that advice is incorrect. I fear that it is necessary to become slightly technical on this.
The purpose of the amendments tabled by myself and my noble friend Lord Sharman are intended to solve the problem by defining "worker" and "employee" with the meaning given by Section 230 of the Employment Rights Act 1996. There are many different ways of doing that; we have chosen to do that, and we believe that amendment would include satisfactorily fixed-term workers who would not otherwise be categorised as employees.
The difficulty that the Government's lawyers have not satisfactorily dealt with is this. The directive that puts into effect the framework agreement on fixed-term workers was referred to by the noble Baroness, Lady Turner. Clause 2 of that agreement provides that it should apply to,
- "fixed term workers who have an employment contract or employment relationship as defined in law, collective agreement or practice in each member state".
Clause 3 of the framework agreement defines a fixed-term worker as,
- "a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event".
It does not seem to those of us who have looked at this matter—I include the very helpful comments made by the Law Society—that the way in which the Government have drafted the Bill covers the words that I paused on in either Clause 2 or Clause 3 of the agreement. It does not explain why the words in Clause 2 of the agreement,
- "or employment relationship as defined in law, collective agreement or practice in each Member State",
- "or relationship entered into directly between an employer and a worker",
I have gone on at some length because, as I indicated, it is important in the absence of our academic experts that Hansard reflects the argument correctly. However, I shall add one aside. When debating this clause in another place, the Minister noted that the directive specifically included agency workers. Two issues arise in relation to that. The implication must be that if the directive did not specifically exclude agency workers, they would have been covered by it. By the same logic, therefore, it must be the case that other workers who are not agency workers and not specifically excluded from the directive must be covered by it. Therefore, from these Benches I commend the amendment. We believe that the Government's legal advice is wrong on this matter. I believe that the noble Baroness, Lady Turner, indicated why she considered it to be wrong. I beg to move.
7 p.m.
Baroness Gibson of Market Rasen: I rise briefly to support noble Lords who have spoken to these amendments. It has been explained why we believe that the term "employee" is not adequate in this context. I wish to reassure the Minister that we do not argue this terminology only nationally; indeed, in the past, we have from the TUC point of view argued it internationally. In particular, in relation to the part-time workers' directive in discussions in which I took
part in Brussels, we made the point very firmly that the term "worker" represents a much wider concept than "employee".
Lord Sainsbury of Turville: Members of the Committee have tabled two slightly different groups of amendments, both questioning the scope of the power in Clause 45 in relation to fixed-term work. One amendment seeks to extend the power to a broader group of workers using the new definition of "worker". The other seems to question whether the powers on fixed-term work contained in Clauses 45 and 46 should apply to all workers in line with the part-time workers' regulations. I shall address both amendments together.
I shall explain in a moment why we have decided that the fixed-term regulations should apply to employees. First, perhaps I may address the new definition of "workers" proposed by the first group of amendments. The amendment seeks to extend the power in Clause 45 so that it covers a broad category of working people. The definition proposed would introduce an entirely novel meaning of "worker" into employment law. That would risk causing confusion, particularly since more recently introduced rights that apply to a category called "workers", including the part-time regulations and the right to be accompanied, use the definition of "worker" in the Employment Rights Act 1996.
This is probably the most important point in the amendment. We are now conducting a review of employment status. As part of that review, later this spring we intend to publish a discussion document on employment status, following consultation with stakeholders. The review will look at the coverage of certain employment rights. It therefore seems inappropriate to introduce this further new definition to employment law at this juncture.
We considered and rejected the idea that the clause should have required the Secretary of State to make regulations covering all fixed-term workers. We take the view that in making provision about employees, we are fully implementing the European Community Fixed-Term Work Directive. The directive does not require us to cover workers other than employees. As the noble Lord mentioned, the directive requires us to legislate in respect of,
- "fixed-term workers who have an employment contract or employment relationship as defined by national law and/or practice".
In our view, both the part-time and fixed-term directives required us to cover only employees. However, we extended the part-time legislation to all workers, since this was seen as a special case. In particular, the overwhelming majority of part-time workers are women, so there is substantial overlap with existing sex discrimination legislation which has a wide scope.
The Explanatory Notes are correct in that when referring to fixed-term we use "employees" and when referring to part-time we use "workers". That is one of the issues that needs to be covered by the review we are doing as to whether this is sensible and consistent across the whole board. The wording in the fixed-term directive was also used in the parental leave directive. Regulations implementing that directive apply to employees only.
Where workers have a casual employment relationship, it may be possible to identify short contracts of employment corresponding to periods of work. While they are working under these contracts, the workers concerned are employees. For example, agricultural casual workers are employed on a daily or hourly basis without any obligation on a worker or a hirer to work or provide work beyond that day or hour. They would probably be regarded as employees with fixed-term contracts corresponding to periods they have agreed to work.
In summary, we have a review of employment status which is now beginning. When we have completed the review, we can see whether we are applying employment legislation fairly across the board in this respect. I hope this explanation of our thinking is helpful and I would ask the noble Baroness to withdraw the amendment.
Next Section
Back to Table of Contents
Lords Hansard Home Page