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Official Report of the Grand Committee on the

Employment Relations Bill

(First Day) Monday, 7 June 2004.

The Committee met at half past three of the clock.

[The Deputy Chairman of Committees (Viscount Allenby of Megiddo) in the Chair.]

The Deputy Chairman of Committees (Viscount Allenby of Megiddo): Before I put the Question that the Title be postponed, perhaps I may remind your Lordships of two points of procedure. Noble Lords will speak standing, and the House has agreed that there will be no Divisions in Grand Committee. Therefore, unless an amendment is likely to be agreed to, it should be withdrawn. If there is a Division in the Chamber while we are sitting, and I understand that that is likely to be the case, the Committee will adjourn as soon as the Division Bells are rung and resume exactly 10 minutes later.

Title postponed.

Clauses 1 and 2 agreed to.

Clause 3 [Duty of employer to supply information to union]:

Baroness Miller of Hendon moved Amendment No. 1:

The noble Baroness said: In speaking to Amendment No. 1, I shall speak also to Amendments Nos. 2, 9, 10, 32, 33 and 36. Amendment No. 1 is purely technical. It would facilitate the recognition process and enable the employer to comply with its obligations under the Act. Clause 3(2) requires the employer to supply the Central Arbitration Committee in a very short time—five working days—with details of the number of employees in various categories in various workplaces. However, some of those data will also have been supplied to the CAC by the union. The amendment would simply ensure that the data supplied by both sides matched.

The data supplied by the union to the CAC in support of its claim for recognition and the definition of a bargaining unit are not confidential. The union should be prepared to see that it and the employer are both talking about the same thing. The amendment would ensure that there was no delay while a possible dispute about the catchment area of the claim was resolved.

Amendments Nos. 2, 9, 10, 32, 33 and 36 all relate to the same issue—namely, information that might be required by the CAC which might be regarded as
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confidential either by the employer or, as is possibly more likely, by the employee or employees whose personal details the union is seeking to acquire.

Amendments Nos. 2, 9 and 33 are in identical terms. They would entitle the employer to withhold any information from the CAC—and, hence, from the union seeking recognition—which either the employer deemed to be commercially confidential or which might affect the security of the company or its employees. It is, I agree, less theoretically possible that information required in the course of the recognition procedures will be significantly commercially confidential. Nevertheless, that possibility exists. It is rather difficult to come up with an example because, like an elephant, it is impossible to describe, but you certainly recognise one when it comes in front of you.

Every business is different and has different concerns and different interests. In the case of one business, the number of employees that it has or their locations in the different branches of the concern are matters that the employer, for sound reasons—I stress, for sound reasons—may wish to keep secret from his competitors. If there is a valid reason for doing so, there is no reason why the employer should be forced to disclose the information for the furtherance of the union's recognition campaign. I cannot accept that the matter would be covered by some implied duty of confidentiality on the part of the union.

I certainly do not seek to impugn the integrity of any union in any way whatever. But, of course, unions, like everything else, are staffed by ordinary, fallible human beings, and an indiscreet piece of gossip, with no malicious intent at all, could do the damage that the employer was seeking to avoid with no adequate redress. However, of more serious concern is the situation of the employee whose details the union wants to obtain in order to contact him or her.

In Standing Committee in the other place my honourable friend the Member for Huntingdon drew attention to the plight of some of his constituents who were employed by Huntingdon Life Sciences and who were subject to campaigns of vilification, intimidation and attacks on their homes and property, such as their cars, and physical assault by gangs of what one could only describe from their behaviour as a kind of terrorism. Not only that, but in one instance their families were similarly intimidated as well as the suppliers of goods and services to the company.

Members of the Committee will recall the campaign against the export of live cattle and sheep—a perfectly legitimate, even reasonable, campaign, but carried to excess by the intimidation of individuals. One can envisage similar forms of violent protest against individuals in support of other campaigns exceeding the normal rights of free speech and the legitimate rights and forms of protest. I shall certainly not catalogue them here, for fear of putting ideas into some heads, but, doubtless, your Lordships could compile your own lists. But that sort of personal violence in support of one cause or another is nothing new, especially when the protagonists feel that they are driven to desperation.
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I should like to draw Members' attention to the fact that the companies registry now permits companies in cases that the registrar accepts as appropriate to withhold the personal details of directors or shareholders from the public register. That provision was expressly established with the case of Huntingdon Life Sciences in mind. However, the point is that if the shareholders and directors in any appropriate case are allowed to keep their personal details secret, why should the workers not be allowed the same right and privilege? I would have thought that that was the sentiment with which the unions would have agreed and accepted without hesitation.

The Minister in the other place did not dispute the point made by my honourable friends in support of a similar amendment to this. However, the honourable Member for Gordon, went on to say,

Well, my honourable friends and I—and, indeed some employers in sensitive fields—do have a legitimate concern and the Minister will, I am sure, be pleased to note that the amendment has been more tightly drafted to overcome the objection regarding who should decide whether the information is, in fact, commercially confidential or whether workers' security is at risk.

The answer to that is to be found in the second sub-paragraph of each of the three amendments. The Central Arbitration Committee itself will decide whether the case for an exception has been made out and the onus of proof will be on the employer to make that case to the satisfaction of the CAC.

Amendments Nos. 10 and 32 relate to the right to privacy, which is now part of the law of the land, relating to employees. The first of those amendments requires the consent of the individual employees before their addresses are disclosed to the union. Undoubtedly, obtaining that consent may hold up the recognition process a little, but there is no case that I can envisage where there would be some dire urgency in the recognition procedure. The delay would probably be minimal—for example, a simple note in the pay packet for those employees who still get them, or a notice in the factory to the effect that, "The union wants your address and we will be required by law to give it to them unless you tell the management that you object". In other words, silence will imply consent. Bearing in mind that the direct marketing industry, of which I used to be a member, has a "mail preference scheme" that enables individuals to opt out of receiving mail order offers, it is only right that workers should be able to protect their privacy in exactly the same way.

Amendment No. 32 defines "address". This is necessary as a result of modern means of communication. I propose that e-mail addresses should be excluded, because Members of both Houses have expressed concerns about unwanted e-mails or "spams". I also exclude mobile telephone numbers
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because that is another means of sending circular communications to people—in this case, ones that might arrive with a loud, audible signal at an inopportune time. I have not sought to exclude telephone canvassing, because that is regarded as a legitimate form of communication in elections these days, and it is obviously up to the employee to make his telephone number ex-directory if that is what he wishes.

Amendment No. 36 is similar to, but slightly different from, Amendments Nos. 2, 9 and 32. Those amendments relate to the withholding of commercially confidential information or information which might have an adverse effect on the security of the employer or any worker. Amendment No. 36 relates to a slightly different category of information—that which might damage the interests of the employer, the business or its workers.

There is no purpose in my burdening Members of the Committee with a series of hypothetical examples. The addresses of employees, while not necessarily affecting security and the nature of who does what work in a company and where, and while not necessarily commercially confidential, might need to be withheld to prevent, for example, the poaching of workers or harassment. The detail is unimportant at the moment. The amendment simply plugs a theoretical gap in the other three amendments.

None of the amendments in this group seeks in any way to wreck or nullify the recognition procedure. They are simply intended to provide an even-handed regime, whereby a union's right to campaign for recognition—from which we do not, even for one moment, dissent—is balanced against the legitimate rights of the employers and individual employees. Those are the rights to protect the employer's legitimate, commercially confidential interests, the security of the employee and the entitlement of the employee to privacy under the European Convention on Human Rights. I beg to move.

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