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Baroness Miller of Hendon: Before the Minister replies, I want to thank the noble Lord, Lord Razzall, for at least saying that he did not agree with the tone. I want to place on record that I very much objected to the tone when we debated the Grand Committee stage of the Employment Bill in one of the Committee rooms. That became extraordinarily unpleasant for me—not because of the noble Baroness, Lady Turner, or, indeed, at that stage, because of the noble Lord, Lord McCarthy. However, there were suggestions that I was obviously one of the bad Conservative employers and so on. That is out of place when we are dealing with these matters in a Committee room and not on the Floor of the House, when the tone might be moderated somewhat.

Lord Razzall: Especially under "The Judgment of Daniel".

Baroness Miller of Hendon: I had not noticed that we were sitting under the picture of "The Judgment of Daniel", but the noble Lord, Lord Razzall, is correct. I await with interest the reply of the Minister.

Lord Campbell of Alloway: The noble Lord, Lord McCarthy, and I have known, and opposed, each other for near on 22 years. We understand each other perfectly. I wholly understand his approach and I am not at all surprised at the way in which he has expressed himself today. We shall continue to remain friends.

However, I want to say that there is a principle behind the amendment that is worthy of serious consideration. It has been well put by the noble Baroness. I am not sure where the 25 per cent comes from—I do not like it—but let us forget the percentage and get on to the principle. There is scope for accommodation to be made in this regard and I ask the Government to consider how they might wish to address it.

Baroness Turner of Camden: This is a matter of principle. However, in my view, it is different from that enunciated by the noble Baroness, Lady Miller, and the noble Lord, Lord Campbell. We are talking about collective bargaining; in other words, if a majority votes for collective bargaining, the result should be collective bargaining and an agreement to that effect.
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If some people do not support the union's drive for collective bargaining, they do not have to join the union. However, there is no reason why the union's position should be undermined because a minority decide that they want some sort of breakaway arrangement. In my view, employers are unlikely to welcome that arrangement. They would sooner have everything determined by ballot, an agreement negotiated, and then the collective bargaining conducted in accordance with the terms of that agreement.

I can see no virtue in making provision in legislation for what amounts to breakaway organisations on the floor of a bargaining unit. I hope that my noble friend the Minister will not feel inclined to give much consideration to the amendment.

Lord Triesman: I have represented trade unions in bargaining and I have also been an employer and negotiated as an employer in bargaining. I hope that I can try to strike some of the balances necessary to achieve satisfactory industrial relations, bringing both those perspectives to view.

Amendments Nos. 6 and 7 are closely linked and I will take them together. Amendment No. 7 is a drafting and consequential amendment, which would be needed if Amendment No. 6 were accepted. I shall therefore confine the bulk of my remarks to Amendment No. 6, which contains the substance of the suggestions posed by the noble Baroness, Lady Miller.

The amendment seeks to create an opt-out from the scope of a statutory recognition award where a significant minority of the bargaining unit would prefer separate arrangements to determine their pay and other terms of employment. Major principles are at stake in the amendment, which cuts across some of the essential pillars of recognition procedure as a whole.

We have built a large number of checks and balances into the statutory procedure. In doing so, we have taken on board the genuine interests of all parties. As a result, the procedure has worked well, and people who have used it and spoken of it have tended to say that they found that it worked well—irrespective of whether they were employers or union representatives.

Recognition is achieved only after the union has demonstrated its case that the bargaining unit makes sense and that a substantial proportion of the unit favours recognition. For example, in recognition ballots, at least 40 per cent of the bargaining unit, plus a simple majority of the workers who vote, must vote for recognition in order for the union to succeed in its application. That 40 per cent threshold is controversial—not least with the unions and with some who sit on our Benches in the House.

However, it also has the great advantage of demonstrating that there is genuine and serious support for recognition to exist. It is only right and proper in any democratic process that the ballot result should be respected. The positioning of the amendment suggests that workers would be allowed to
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opt out of the recognition that would result if the union were successful in the ballot before it even took place. That may not be the intention of the noble Baroness, and we certainly would not want a situation in which parties were able to distance themselves from the outcome of an independent test of opinion that the ballot represents in advance of that test taking place.

I am sure Members of the Committee will accept that if workers were allowed to opt out at that stage, it would not be right for them to vote in the ballot at all.

But that appears to be what is achieved by this amendment. It allows workers, in effect, to opt out of the procedure. It is likely to destabilise bargaining arrangements and the democratic process by which they are established. It should also be noted that the Amendment does not seek to provide for the opposite circumstance where a minority of workers wish to continue to be represented by a union where the union is derecognised in respect of a larger bargaining unit. It seems to me that if the Amendment is motivated solely by a desire to respect the interests of minority groups, then it should also propose a converse right in respect of derecognition. I am not inviting that, I am just saying that that would have been the equity of the argument.

We have heard, quite understandably, about the case of the Brethren, who object to collective bargaining on religious grounds. The Government take very seriously our responsibility to ensure that religious freedoms are respected in this country. Ministers have met with representatives of the Brethren and listened to their concerns, both in respect of the Bill and at the time of the 1999 Act.

I accept that this is a very difficult issue. On the one hand, we want to respect the important freedoms of religious belief. Equally, we must respect the rights of workers to associate with one another in trade unions and to seek to be represented through their trade union. On balance, the Government take the view that allowing a minority of workers to opt out of the statutory procedure, even where they wish to do so on religious grounds, would inevitably damage the procedure as a whole. Therefore, we cannot accept the amendment.

Of course, the drafting of the amendment does not restrict the right of Brethren workers to opt out. I am sure that most reasonable employers would wish to be sympathetic to the concerns of religious minorities among their workforce. However, I suspect that employers would not relish the prospect of having to deal with a multiplicity of overlapping bargaining arrangements simply because that is the preference of a minority of workers. The noble Baroness, Lady Miller, as a useful shorthand for the problem that we would face at the very least, used the term "two-tier". I am grateful for Thomas Jefferson's endorsement of it, but bringing it into a slightly more modern context requires us to think about the matter carefully.

This proposal would potentially create two or more sets of bargaining units for the same types of worker. Two people doing the same job could be covered by two separate pay determination systems. One would
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be established for the recognised union and the other would be created for the minority of workers who would want to opt out. The paradox is that during the whole of the period that I was an active trade union negotiator, I faced employers who were very eager to ensure that the union side itself did not fragment in a way which meant that it would be impossible for them to achieve sustainable bargaining arrangements. They would frequently argue strongly and convincingly that unions, who did not always see eye to eye with one another, should, none the less, ensure that their efforts to reach a common bargaining position, common aims and a common bargaining process were put in place. There has been great encouragement from the TUC to try to achieve that kind of clarity and simplicity of operation, because of the benefits to all concerned. Sometimes a highly specialised group could not be fitted in, but, generally speaking, everyone wanted to avoid the problem that must inevitably occur where two people doing the same job could be covered by two separate pay determination systems. That way almost always led to conflict and a degree of chaos. I know that that is not the intention of the noble Baroness, but that is what would happen as a result of the amendment.

I shall not continue at greater length, because I believe that everyone would recognise that what is being tested here was not workable in practice. In that light, I invite the noble Baroness to withdraw the amendment.

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