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Line 38, at end insert "and in the event of such a declaration being made, the union shall not make another application to the CAC for recognition in respect of the same (or any similar) bargaining unit within the same employer for a period of 3 years of the making of such declaration"
The noble Baroness said: Before I begin, I sent a message to the Government side saying that I simply cannot stay tonight beyond 7.30 p.m. Therefore, I hope that we do not have to end in the middle of the grouping, and I shall be as quick as I can.
The Government's amendments to Clauses 9 and 12, introduced on 24 May, are intended to remedy deficiencies in the Bill following the Government's introduction of the concept of dealing with unfair practices in relation to recognition ballots in new Clause 9 and in relation to unfair practices in relation to derecognition ballots in new Clause 12.
Subject to what I shall say in a moment about Amendment No. 21, I say at once that I appreciate the fact that the Government have implemented the promise that the Minister, the noble Lord, Lord Sainsbury, made to me to introduce amendments to
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meet the concerns that we had expressed to him about the original provisions, which we found to be very one-sided.
The new amendments do, indeed, go a very long way to meeting those concerns. In consequence, I was able to withdraw what I considered to be my somewhat more succinct amendments on that subject. However, I believe that some further tightening up of the provisions would not go amiss, and I hope that the Government will consider what I am about to say with a view to further tweaking. I do not expect the Minister to make a decision about that today. However, if, at some stage, he would like to write to me, I shall be happy to receive a letter.
I should like to see a union prohibited from relying on votes of persons who have been members for less than three months, who are in arrears with their union subscriptions or who have been made members of the union without paying any subscription. Members of the Committee who are members of a political party will recognise that that is a fairly standard provisionat least, it is in my partyto prevent a meeting being packed or a ballot box being stuffed.
I say at once that I do not suggest that to take part in a recognition ballot an employee must either be a member of a union or must promise to become one. The Bill, and the previous Acts that it is amending, do not impose any such qualification on an employee before he can vote in a recognition ballot. If the Government are willing to accept the principle of this point, I certainly agree that they should simultaneously remove any possible misunderstanding or ambiguity relating to the matter. I think that it is clear but the noble Lord may not agree.
The new paragraph and the Government's amendment should also make it absolutely clear that the decision about the existence of coercion or intimidation rests entirely within the discretion of the CAC. To avoid disruption of recognition procedures and litigation over possibly minor infractions by either side, the CAC should have the power to ignore it if it believes that any such activity is not significant to the outcome of the ballot.
That brings me to my Amendment No. 21. New paragraph 29D(4) proposed by the Government gives the CAC power to close down the recognition procedure if it is satisfied that a union has been guilty of what sub-paragraph (1) of that paragraph calls an "unfair practice".
My amendment to the Government's amendment would provide that, if the CAC found itself obliged to impose that drastic sanction, the recognition process should not be restarted for a period of three years. That is identical to the period already stipulated by Parliamentburied, I believe, somewhere in Schedule A1 to the 1992 Act, as amended by the 1999 Act, and referred to in the amendment tabled by the noble Lord, Lord Lea, which follows Clause 10.
It would be farcical for the CAC to dismiss the recognition claim because of union misconduct on Monday, only to find it starting it again on Tuesday.
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For the sanction to have any meaning at all, it needs to be coupled with a suitable period of self-denial. For the union to avoid the sanction, which only the CAC can impose, it simply must not indulge in what the Government have defined as an unfair practice.
The noble Lord, Lord Triesman, wrote to me following my speech at Second Reading. He complained that the amendment tabled in the other place by my honourable friend the Member for North West Norfolk to deal with intimidation said nothing about intimidation of workers by employers. I agree with that criticism as I know my honourable friend would, had he been allowed to debate his amendment, which under the rules of the other place he was prevented from doing.
The government amendment to Clause 12 covers the point. It gives the CAC the same sanctions over derecognition procedures if there is intimidation by employers as applies to unions in the case of the recognition procedure. The Minister in his letter to me mentioned union complaints of,
I do not doubt for one moment that such allegations may have been made. I cannot, of course, comment on their validity. I certainly do not want to get into a tit-for-tat argument about who has done what. I place on record that I am sure that the Minister and the Committee are at one in deploring any bad behaviour on either side in this kind of procedure. I beg to move.
Baroness Turner of Camden: The amendment is directed at unions in particular, so that they cannot apply for recognition for a period of three years. Does the noble Baroness, Lady Miller, consider that the same provision would be appropriate to an employer seeking derecognition but failing to get it? Would he be ruled out on the same basis? Would an employer be unable to attempt derecognition for three years?
Lord Triesman: I thank the noble Baroness, Lady Miller, for the way in which she has made her point. It was conspicuously even-handed. I also apologise for the length of my comments in introducing the new raft of material. It would have been silly to deal with serious new material casually.
Amendment No. 21 ensures that where the CAC has issued a declaration that the union is not entitled to be recognised because it has committed serious or repeated unfair practices, the union may not make a further application in respect of the same employer and the same bargaining unit for a period of three years.
The amendment is not necessary to achieve exactly that result. The Government's policy is that where the CAC declares that a union is not entitled to be recognised on the grounds of unfair practices, that union may not apply for recognition for the same bargaining unit, or a very similar one, for a period of three years. Like the noble Baroness, Lady Miller, the
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Government believe that it is important that once an application under the statutory procedure has reached its conclusion, there should be a period in which industrial relations are allowed to settle without the risk of continuous disruption through repeated applications. In the negotiations which led to the settlement contained in the 1999 Act, it was agreed that three years is a suitable period of time.
This policy is certainly not explicitly stated in Clause 9 because it is already provided for in the recognition schedule. Paragraphs 33 to 42 of the schedule set out the admissibility criteria which any application for recognition must meet in order to be accepted by the CAC. Paragraph 39 provides that an application for recognition is not admissible if the CAC has accepted an application in respect of the same or substantially the same bargaining unit in the previous three years (paragraphs 33 to 42).
Paragraph 39 will also apply without any need for amendment where the CAC had issued a declaration that the union is not entitled to be recognised under paragraph 27D(4). Such a declaration may be issued where the union has committed a violent unfair practice or repeated unfair practices, or because it has failed to comply with an order of the CAC to take action to mitigate the effects of an unfair practice that it has committed.
I should add that the three-year moratorium also applies in the case of derecognition, which was a question asked by my noble friend. I note that the noble Baroness has not tabled a corresponding amendment to government Amendment No. 27, but she was generous enough to say that it was an issue to which she would wish to attend. However, it is covered in the legislation. Where an employer's application for derecognition fails because he is guilty of committing unfair practices, a similar three-year moratorium will
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apply on further applications to derecognise the union. The same will apply to failed applications by a worker or workers.
The Government have already ensured that there will be a moratorium on further applications where a party loses its case as a sanction for having committed an unfair practice. For clarity that is needed. I respectfully ask that the amendment be withdrawn, given the assurances that I have been able to give. I believe that we have made the changes that my noble friend Lord Sainsbury said we intended to make. I am grateful to the noble Baroness for reminding the Committee of that as well.
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