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Lord Lea of Crondall: The difficulty is that we have a substantive proposition on the statute book that where 50 per cent of the bargaining unit are members of the union there should be the right to award the recognition without a ballot.

Noble Lords make extensive references to the delicate balances struck in 1999. Those delicate balances go back years before then. As is well known, I was, wearing my TUC hat, involved in writing the report, Your Voice at Work, of which the matter that we are discussing was a principal component. If there is evidence that this measure is continually being eroded, and that we have missed the opportunity to consider the matter at this stage, I fear that it will not
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add to people's confidence in the ability of the parliamentary process to deal with this kind of problem.

It was never intended that panels should be put in the position whereby the easy way out—everyone is human—is to say, "Let us require a ballot". That always sounds reasonable, but that was not Parliament's intention. It was not intended that whenever an employer says that there ought to be a ballot, that mantra should be accepted. I use the word "mantra" advisedly as who can be against good industrial relations? Who can be against having a ballot? However, the fact is that a ballot in many circumstances, not only from the union viewpoint—one has to see the opposite argument too—will involve the whole caravanserai of the hustings—I shall discuss Amendment No. 13 in a moment—and everything that concerns the manipulation of opinion.

All is fair in love and war but I refer to a certain tendency on the part of employers. This applies exclusively to employers because obviously all three of the provisos that we are discussing are employers' provisos, not union provisos, and will be deployed by employers. It would be a sad day if it were felt—I believe that trade unions consider that this is the case—that together the three measures undermined the 50 per cent membership provision and rendered it nugatory.

As has been said, the CAC is comprised of experienced people, but there are three people on a panel: one is independent, one represents the workers' side and the other the employers' side. People try to take a collegiate view, but it was not the intention that the easy way out, when there is any difficulty, should be to call a ballot. I shall reflect on the matter before Report. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lea of Crondall moved Amendment No. 13:

"REQUIREMENT OF CAC TO ARRANGE FOR BALLOT (NO. 2) In paragraph 22(4)(b) of Schedule A1 to the 1992 Act (duty of the CAC to make arrangements for a ballot), after the words "on their behalf" insert "and the CAC is satisfied that the provision of the information was not initiated or induced by the employer"."

The noble Lord said: This is another modest amendment—it may be a mistake to make modest amendments—to make explicit what I believe is Parliament's intention; namely, to make explicit a way of handling what is now an unintended loophole in the wording of the 1999 Act.

Paragraph 22(4)(b) of Schedule 1 to the 1999 Act provides that the procedure for recognition without a ballot is subject to three different provisos. We discussed one of them a moment ago.

This one concerns the scenario where it is alleged that a significant number of employees in the bargaining unit who are union members do not want union recognition for collective bargaining purposes and they write to the CAC to this effect.
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What is perplexing is that the consequence of the present wording is that any employer who does not want union recognition—and that, let us remember, is 100.000 recurring per cent of employers in the case we are studying, or else they would have concluded voluntary agreements, as my noble friend has already pointed out—is sorely tempted to go down the road of ghost writing letters or inspiring letters—a road full of moral hazard. It is easy to see how this can seem attractive. An employer will identify one or two union members, have a quiet word in their ear about their prospects—not too much need be said—and get them to help with a letter or a petition. Everyone in this room will, I think, appreciate that this is light years away from what was intended by the authors of the 1999 Act. We talked of members who of their own volition were to inform the CAC that they did not want the union to represent them for collective bargaining purposes. Such letters, if any such emerged, were meant to be considered if written individually direct to the CAC and certainly not if written on employers' headed notepaper or photocopied letters drafted by the employer with a space for the person to sign.

It was never intended that such letters should be put in front of workers in a one-to-one interview—a typical American technique—accompanied by hints about the worker's future prospects, and then transmitted to the CAC. Hence the purpose of the amendment is to make it absolutely clear that information under paragraph 22(4)(b) should not be taken on board if it is initiated or induced by the employer.

I know that the point could, of course, be made that if the union does not like this sort of interference with the views of its members, all it has to do is to agree to a secret ballot—I refer to the discussion we had five minutes ago—but that is a sort of blackmail and would be strongly considered a threat to good industrial relations on the part of the trade union.

I wish to say a few words about confidentiality and the protection of human rights. I was interested to hear the earlier discussion in this regard. A balance has to be struck between the need for the CAC to validate information and the protection of individuals who could be victimised. We can all agree on that. However, the rights of the individual are not protected if the employer can demand to know who has signed a letter as a union member stating that he or she does not wish the union to represent them in pay negotiations.

The fact that the union has, of course, already had to demonstrate its support through a petition—that is a quite separate part of the procedure—shows that we must be careful to use terminology with care.

The form of words that I have put down makes it absolutely clear that the CAC will not take into account as evidence—as purported evidence of the views of union members—"round robins" initiated or induced by the employer. The elimination of such letters would be no more and no less than what
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Parliament intended in the first place. I trust that there will be general support for this amendment. I beg to move.

Lord Triesman: The first and third conditions of paragraph 22(4) give the CAC some discretion. There is no corresponding discretion for the CAC to judge, in the light of the evidence before it, the issues that my noble friend Lord Lea has just raised—whether the information presented to it shows that a significant number of union members do not want to be represented in a collective bargaining arrangement by their union.

As my noble friend said, unions have alleged in some cases that employers have asked workers to sign letters under duress in order to make the case for ending the collective bargaining arrangement and the recognition that goes with it. They claim that the wording of paragraph 22(4)(b) is problematic because the CAC cannot consider whether the information provided to it is a genuine expression of union members' views or has been coerced or accumulated in some other way. This view appears to have been shared by at least one CAC panel. In the case of Brian Hewitt Construction Limited and the Iron and Steel Trades Confederation union, the panel's decision states:

The panel's decision continues:

I do not intend to comment in any detail on any judgment of the CAC. However, when discussing the previous amendment, I said that the expertise of members of a CAC was a decisive factor regarding the CAC's judgment and jurisdiction. Therefore, I give weight to what a CAC panel has said. Clearly, however, this condition has posed difficulties for the CAC and the parties. As we have consistently made clear, the Government strongly condemn the pressuring or coercion of workers to sign anything or to make any statement against recognition. We equally condemn any attempt by a union to pressure workers to support it. Coercion is ruled out in either direction.

We consider, therefore, that there may be value in looking at this question. We are not convinced, however, that my noble friend's amendment gets it quite right. We must ensure that we do not prevent an employer letting union members know that they can inform the CAC if they want an issue raised. Nor would we wish to prevent an employer from assisting a worker to do so, if that was the genuine wish of the worker rather than the result of coercion.

Unions also initiate petitions and letters of support from workers at other stages of the process. It is obviously important that both parties should be able to inform workers about the ways in which they can make their views known.
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The issue is whether the CAC can take into account any evidence that undue pressure was involved. That is something we accept that we should give further consideration to. I am grateful to my noble friend for raising the matter. I hope that we can have further discussions with him to see what can be done. In that light I respectfully urge him to withdraw his amendment.

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