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Lord Wedderburn of Charlton: No.
Lord Rooker: No, I am not, but I say to my noble friend that sometimes I have a little more common sense than the lawyers and I do not use as many words as they do. I apologise for that but I cannot read in long paragraphs. However, I am reliably informed that in the definition of conditions of service is the word "includes". That is an important word, as are the words that follow it. So far as concerns the lawyers, it means that only certain things may be added to the list of pay, allowances, hours of duty or leave. The list is not as long as a piece of string.
I sought expertise because I was wondering how on earth to pronounce eiusdem generis. I am sure the lawyers say that this is the same kind of thing; in other words, that the word "includes" means that only things of the same kind can be added to a list. One thing not in the list is the constitution of the National Joint Council because that is not the same kind of thing as issues relating to pay, allowances, hours of duty or leave. I rest my case.
Lord Wedderburn of Charlton: The Minister may rest his case. I appreciate that in England it is a disadvantage to be clever on these matters. In Scotland, the term is used in an approbatory way. I find that in Wales it is acceptable, but in England it is always used in a pejorative sense. One is not being clever; one is saying some very simple things. First, the eiusdem generis rule applies only where there is a definition or finite description. A clause which sets out that word "A" includes "B", "C" and "D" is not something to which an eiusdem generis rule will apply. If the Minister wishes, I shall fetch the authorities on this matter, but his advice is bad on that. Where there is an inclusive description, it allows for argument as to what else is included. That is my first point.
The second point is that he accepts that things are implied in contracts of employment. I urge him to look at the authorities which show how complex that
question is. I do not have a habit of saying that other people's arguments are nonsense, but I do have a habit of submitting that they are wrong if I consider them to be wrong. I would never say that a judge could not possibly find against me, and I would not say that a judge could find absolutely 100 per cent in favour of me. Laymen always believe that their case is right. Lawyers have to learn that there may be another point of view.I have submitted that it is highly arguable that aspects of the National Joint Council arrangements, including, in particular, its composition, chair and so on—nothing is more fundamental to arrangements than who is there to discuss and settle disputes on these matters— which are relevant to the individual rights, as my noble friend Lord McCarthy put it, of workers and employers can be incorporated by implication into a contract of employment. I stand by that proposition and, until the Minister can produce an authority which says that that is impossible, he should accept the amendment.
Lord McCarthy: I have only three or four points to make. First, I am still trying to pour oil on this matter but I am not getting very far. We do not say that the Secretary of State intends to use the powers in the Bill for the purposes that we wish to set aside and make possible in the amendment. Of course, we do not say that. We are not saying that he wants to do, intends to do and will do that. Of course, he will not.
Secondly, we cannot say that, if he tried to do so, he would not have the legal balance. It is an arguable case. In any event, I do not really care because I am trying to go deeper and to raise something more fundamental than that. I am trying to warn the Government and the party about what they are putting in the White Paper.
I return to the point that I made at the beginning. There will be negotiations—for all I know, they are taking place now—but in what atmosphere? Trade unionists can read this and see what the Secretary of State is suggesting he will have power to do and would like to see happen when a subsequent Bill is brought forward. When the parties are negotiating to try to find a way out of a dispute and to achieve a simpler, more effective disputes procedure—which was very much one of the basic reasons that the dispute lasted as long as it did—they will say, "This is blackmail. The employers are not serious because they have big brother coming up at the back. They have these powers coming up. They are saying to us, 'Agree to this monstrosity. Decide who the workers' side is going to be, otherwise it will be worse when we get the Bill'". That is not the way to start.
It may be said, "It's against the ILO. We don't care for the ILO". It may be said, "It's the European Social Charter. We don't care". But—this is my final point—let us listen to the ACAS code of practice. This matter concerns who chooses whom in the sides in collective bargaining. It is clear that, given recognition, unions provide those who put forward collective views. They must be accredited union representatives, chosen by
unions and responsible to them. That is what ACAS says. This matter goes back to 1971 when the Conservatives were in power.The ACAS code states that the parties seek agreement on the number of groups to be covered. Of course, that is all negotiated. No one is saying that the Secretary of State or his representatives cannot have policies. But, again, the ACAS code states that it is for the unions to decide the conditions for election, age, length of service and so on. But this is an issue of mutuality, and one problem is that the Government do not understand any more. It is amazing, but they do not understand mutuality. It is for the unions to decide the conditions of election, age, length of service and so on, and it is for management to decide the facilities and report back for elections and so on. It is a mutual process.
What the Secretary of State will one day take power to do and is telling the unions—they can read it anyway—is that that is where he wants to go. Where tasks are undertaken by full-time officials, they are trade union officials. That is in the ACAS code. That is what happens whenever there is recognition. Those are the rights that workers enjoy when they come before their employer and have recognition.
However, the White Paper and a Labour Government want to destroy the whole process. I say, "Be careful. Be warned. Try to enter these negotiations not threatening them with a big stick. Try to accept what is agreeable and what can be accepted. Don't go down this road". I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCarthy moved Amendment No. 21:
- Page 2, line 15, at end insert—
The noble Lord said: I am sorry to say that, again, we are going back over the same ground. This matter concerns the White Paper and, no doubt, the Minister will become annoyed.
Lord Rooker: The answer will be the same.
Lord McCarthy: Yes, I know, and he has not heard the argument.
Lord Rooker: But the answer will be the same.
Lord McCarthy: I know, but he is going to hear the argument. The amendment states:
I want to say only that the provision is a monstrosity. The Government do not understand the principle of mutuality. Once again, that is what they will say to the boys and girls when they seek to renegotiate the disputes procedure. They will say that if the procedure is not acceptable to the sides, then their objective will be to impose it by law at some future date.
The concept of joint reference to a disputes procedure is a joke and a farce. The disputes procedure is the balance. It is the workers' part, just as the disciplinary procedure is the employers' part. Those balance the two sides and always have done. In fact, in past industrial relations Acts, the Government have legislated to give workers a right of this kind. But there would not be a right at all if a worker had a grievance and he or she had to go to the employer and say, "I have a grievance against my supervisor", or, "I have a grievance against the contract", or, "I have a grievance about the way that I am treated", and the employer said, "No, no, I can't sign that. Go away". That is not a grievance procedure; it is a joke.
Of course, grievances and disputes are one side of the exercise. I could not find the quotation from Flanders v. Clegg, but it would have been found to be self-evident. However, I found a quotation from one of the newer fellows, Professor Salaman, who wrote on industrial relations trade union practice and expressed the point about the interactivity and inter-relationship between, on the one hand, grievance and disputes procedures, which belong to the workers, and, on the other, disciplinary procedures. He states at paragraph 19.2 of his book:
Lord Rooker: I apologise to my noble friend for speaking from a sedentary position. I should have been standing when I said that the answer will be the same. I refer back to everything that I said in regard to
"(5B) An order under this section shall not include any requirement on a negotiating body connected with its procedures related to the negotiation of conditions of service of fire brigade members, other than as provided in subsection (3), and in particular shall not provide that disputes may be referred by way only of a joint reference to a disputes procedure used for the determination of issues relevant to the fixing or modification of conditions of service of fire brigade members."
"An order under this section shall not include any requirement on a negotiating body connected with its procedures related to the negotiation of conditions of service of fire brigade members, other than as provided in subsection (3), and in particular shall not provide that disputes may be referred by way only of a joint reference"—
this is the heart of the matter—
"to a disputes procedure used for the determination of issues relevant to the fixing or modification of conditions of service".
I shall cut out all that when we argue—although I hope that we shall not argue—about whether this issue is covered by this Bill or a subsequent one. We shall not agree, and therefore I shall not inflict it upon the Minister or the Committee.
"The grievance/dispute process is concerned with the right of employees to express, and seek to resolve, dissatisfactions they may have in respect of any aspect of their work situation. Consequently, all organisations require some grievance process to resolve this dissatisfaction—irrespective of whether trade unions are recognised or not. It is complementary, but opposite, to the disciplinary process",
which, of course, belongs to the employer. He continues that it is,
"complementary in that they both seek to express and resolve dissatisfaction, but opposite in that the disciplinary process is initiated by management whereas the issues which form the substance of the grievance/dispute process are originated by employees".
Everyone who knows anything about industrial relations—every personnel manager and every supervisor—knows that, but not the Government. If they cannot do so now, I ask the Government to think again and not do so in future. I beg to move.
5 p.m.
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