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The amendments seek to narrow the scope of unfair practices and unfair practice provisions by replacing the unfair practice of using or attempting to use undue influence with coercing or attempting to coerce a worker so as to influence or persuade him to vote for or against any proposition. I promise the noble Baroness, Lady Miller, that I will go back to the 1857 judgment
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to make sure that I have that right. All I can say now is that it is more recent than Thomas Jefferson, and is therefore closer to my own life.
I must confess that I find the formulation used in Amendment No. 18 a little difficult to grasp. It seems to conflate the concepts of coercion, persuasion and influence so that it would be an offence to attempt to coerce a worker so as to attempt to influence or persuade him. This seems more convoluted than I think was the intention, from what the noble Baroness said. I am not sure that the references to influence or persuasion add to the meaning. It would be simpler just to make it an unfair practice to coerce or attempt to coerce a worker to vote or not to vote a particular way. In addition, these amendments would create an imbalance in the schedule. Similar amendments would have to be made to Clause 12 to ensure that derecognition provisions mirror those for recognition.
I should add that the amendment does not deal with the possible case, important in these situations, where a worker is coerced to abstain from voting. So I think that the amendment is defective, even in its own terms.
However, let me address the noble Baroness's difficulty with the existing wording of the clause. It appears she is concerned that undue influence is too broad a concept. Undue influence is a term borrowed from the lawthe Representation of the People Act 1983prohibiting illegitimate campaigning in public elections. It is borrowed from that because its clarity is always seen to be the greatest when trying to determine whether someone is being induced to vote in a fair or unfair way.
However, it also includes behaviours such as the threat to coerce or use force; causing or threatening injury, damage, harm or loss; and the impediment of the free exercise of the vote by fraudulent device or contrivance. Reducing the scope of this provision would mean, therefore, that activities other than coercion, but perhaps equally reprehensible activities, would not be caught. In particular, it is not clear that threatening behaviour would be an unfair practice under the procedure; nor would deliberately making false or misleading statements, impersonating another party or interfering with the voting process. I am sure that the noble Baroness, Lady Miller, would not wish any such behaviour to go unpunished under the statutory procedure; nor would she have intended that.
We are aware that the stakeholders have been unsure about the meaning of the words "undue influence". As we have made clear to them, attempting to provide an exhaustive definition of this term would limit the effectiveness of the unfair practices provisions in a way that no one would wish for or intend. We would inevitably miss some forms of improper campaigning, and experience in other countries has shown that, where parties are determined to intimidate, they can be very creative indeed in finding ways of getting round the law.
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We therefore need a general test that will catch all possible cases of intimidatory or similar behaviour. The term "undue influence", which exists in other legal statutes and whose efficacy has been seriously tested, serves a necessary purpose and the clause would be poorer without it.
The Government intend to produce a code of practice on unfair practices which will provide clear guidance to the parties on the meaning of "undue influence" and the kind of conduct it is likely to cover. We will of course consult fully with stakeholders on that code in draft.
These amendments could potentiallywe believe that they wouldundermine the effectiveness of the unfair practices provisions. Therefore, I respectfully urge the noble Baroness to withdraw them and I give the undertaking that the code of practice should deal with these matters exhaustively.
Lord Triesman: I was looking at that very question this morning. We would expect to have consultation in draft form within about three months. It would require affirmative resolution, so your Lordships' House will have the opportunity to look at it in proper detail, and we anticipate that it will be available for use early in 2005. Nothing in Clause 9 will come into effect until the code is in place.
The noble Baroness said: In moving Amendment No. 19, I shall speak also to our Amendment No. 26 to Clause 12, with which it is grouped. Both amendments deal with a similar issue: the first concerns recognition and the second derecognition.
Obviously, the Bill seeks to prevent pressure being put on employeeseither by direct threat or in other waysto try to ensure a particular result. There needs to be protection against intimidation and, of course, against violence. In the Bill, the Government have been anxious to ensure that they are seen to be even-handed. Therefore, the strictures apply to both employers and unions.
The Government's own amendments, which we shall shortly be debating, seek to clarify this clause. They specifically refer to the inadmissibility of violence or the dismissal of any employee. I am sure that most people would agree with that.
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I think that those constraints are important, but a union seeking recognition and an employer opposing it are not in positions of equality. An employer holds all the cards. He can indicate in all kinds of ways that a pro-recognition vote would have devastating consequences. Therefore, the Government are right to spell out in their amendment that certain actions cannot be taken.
However, as the wording now stands, it would be possible for an employer to claim that a union was in breach of the provisions in these clauses simply because it was setting out as part of its general campaign the benefits of union membership. The employer could make an application to that effect to the CAC, claiming that offers were being made to employees in order to get them to vote for recognition.
Without an appropriate amendment to the wording of the Bill, the CAC could well feel that there was merit in such an application. Hence the wording of our amendment, which sets out clearly that it would not be an unfair practice within the meaning of the relevant sections of the Billeither in relation to recognition or derecognitionif the union, as part of its campaign, set out in general terms the benefits of union membership. Of course, that is what unions do all the time. They produce leaflets setting out benefits for individuals, often including very important ones, such as access to legal aid and other individual benefits. That is part of a union's function.
The TUC is aware of this and has already written to me to point out that, without an amendment, the CAC could very well have cause for action simply because a union had emphasised the benefits of union membership as part of its general campaign for recognition.
I note that a code of practice will be produced and I am very pleased to hear about that. But it seems to me that, without something such as this on the face of the Bill, a difficulty could arise. A union rightly setting out in very general terms the benefits of union membership could, to some extent, have the whole recognition process interfered with by a reference to the CAC when that would not be necessary at all and, in any event, the union is simply setting out, as part of its general process, its benefits in order to attract members. I hope that the Government will see that the amendment has some merit. I beg to move.
Lord McCarthy: This is one of the most important amendments that we are asking the Government to consider. In a way, it is a very simple matter. The problem has been that the word "benefits" has been confused with the concept of a "bribe". A benefit is not a bribe and a bribe is not a benefit.
Recently, as a result of attempts to reverse the consequences of the Ullswater amendment, we have been talking a great deal about bribesthat is, bribes by an employer who tries to get people to leave a union by giving them certain incentives. We frequently said that employers were offering benefits, but they were offering a rather differentindeed, a totally differentkind of benefit from the kind that a union says it offers to its members and would-be members.
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Therefore, the whole idea of Clause 9, which concerns unfair practices in relation to recognition ballots, did not come about because of any specific bribes which unions gave, or were said to give, in order to get people to vote in ballots; it came about partly because of the benefits, which were really bribes, that employers gave to get people to leave a union.
Nevertheless, we are not against Clause 9. We favour the clause and we think that all, or most of, the items in itthose relating to coercion, undue influence and so oncould, and therefore should, apply to unions but not benefits because, in this context, benefits are different. Perhaps a different word should be found, but that is not the solution that we are putting forward in our amendment.
It is not only unions that use the argument of benefits. When a union is trying to gain recognition or membership, it says, "We handle grievances; we handle discipline cases; and we have a legal service. We got this much for our members last year". It quotes its achievements. There is no reason why employers should not quote their own achievements when they struggle to get people to vote the other way in the ballot. They may say, "Well, we gave you very good conditions. You are already earning more than most people who belong to trade unions". They say, "We have an effective, adequate system of information and consultation that does not require trade unions". They talk about their benefits and say, "If you join these unions, they will involve you in strikes and you will lose money". They put forward their argument for not having union representation and the workers and the workers' union put forward their argument regarding the benefits of trade union representation. That has nothing whatever to do with the kind of things that we are trying to strike at in Clause 9. That is why the Government should listen to what we are arguing and take an interest in, and be concerned about, our amendment.
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