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Lord Triesman: My Lords, the panel is required to assess whether the evidence is such as to lead it to believe that the workers do not want the union recognised. It will judge this on the arguments and the information put before it by the parties—that is, by the employer and the union—or submitted directly to it by individual workers.

Of course, each case will be different, at least to some extent, and will need to be judged on its merits. But, as a general rule, the amendment would enable CAC panels to disregard or place much less weight on evidence where employers have placed pressure on the workers to sign such letters. In deciding the question of credibility, the panel could take account of overt threats and inducements as well as more subtle forms of undue influence.

By the same token, we do not think that the involvement of the employer in facilitating the production of letters should of itself mean that the evidence lacks credibility. Throughout the procedure we would expect unions and employers to gather evidence in support of their position and to help others present evidence. So we do not object to employers providing information to the workers involved about the CAC's timetable or about the way in which they might express their views to the CAC. The key issue is whether such endeavours have distorted the true view of the union members concerned.

Lord Lea of Crondall: My Lords, I thank my noble friend for that clarification. Now that it is on the record, I trust that the Minister can also confirm that
 
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the CAC's attention will also be drawn to what he has said in this exchange to assist its understanding of the intention of the amendment.

Lord Triesman: My Lords, I know that the CAC has followed the consideration of the Bill in both Houses and that it regularly receives the official reports in Hansard. I hope and expect that my explanation is helpful to the CAC and all those involved in this area.

Baroness Miller of Hendon: My Lords, the amendment and the explanation given by the noble Lord appear to give the CAC the ability to take a more flexible and less prescriptive view. We certainly support the amendment.

On Question, amendment agreed to.

Clause 9 [Unfair practices in relation to recognition ballots]:

Lord Triesman moved Amendment No. 2:

The noble Lord said: My Lords, this large group contains various amendments which relate to the clauses of the Bill concerning unfair practices during recognition and derecognition ballots. In fact, despite their number, the amendments concern only three issues, two of which are technical in nature. But one relates to the more significant issue concerning the definition of an unfair "offer" to workers in the bargaining unit. This issue was raised in Grand Committee and I propose to deal with it first before briefly discussing the two technical issues towards the conclusion of my remarks.

Let me start by moving Amendment No. 2 and speaking also to Amendments Nos. 3 to 8, 46 and 48. As noble Lords will recall, Clauses 9 and 12 insert various new paragraphs into the statutory recognition procedure. New paragraph 27A sets out a number of unfair practices during recognition ballots, and new paragraph 119A defines unfair practices during derecognition ballots. Amendments Nos. 2, 3 and 4 amend new paragraph 27A, and Amendments Nos. 6, 7 and 8 amend new paragraph 119A. These two sets of amendments are virtually identical and for simplicity I will confine my remarks to the amendments to Clause 9 to avoid any repetition.

As I said, new paragraph 27A defines various unfair practices. The first of these concerns the bribing of workers by either the employer or the union in exchange for their vote. Sub-paragraph (2)(a) refers to this unacceptable practice as offering,

Unions and, to a degree, employers have expressed concern at this wording which they, in my view understandably, consider to be too broad. In particular, they fear that it might interfere with normal campaigning activity.

In Grand Committee, I indicated that we would reconsider the wording at this point. We have concluded that the use of the word "anything" is too broad. At the least, it might encourage a party to make
 
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a speculative complaint to the CAC about standard campaigning activities. Amendment No. 2 therefore removes the word from the definition. In its place, the amendment substitutes references to the offering of "money" and the giving of "money's worth". The wording is therefore more precise.

The term "money's worth" is new to employment law, but it appears frequently in other areas of the law and has been relatively straightforward to interpret in those other settings. It basically covers the provision of goods or services or other things which have a monetary value. In our context, the offers of improved benefits in kind—such as a better company car or subsidised healthcare—would be covered. The term would also cover the offering of extra holidays or other forms of paid time off. Such offers constitute "money's worth" because the worker receives money for not working.

In re-examining the definition of an unfair offer in sub-paragraph (2)(a), we noticed that we had not covered all the ways in which a party could bribe members of the relevant workforce. In particular, it did not cover situations in which a party offered money if the outcome of the ballot went a particular way. Of course, such offers would be intended to influence voting behaviour. But they are not limited only to those who agree to vote in a particular way, or not to vote at all; the reward is given to all, regardless of their actual voting behaviours, as long as the outcome of the ballot goes in the desired direction.

We feel that there is a potential for parties to make offers of this type and to distort the balloting process. Amendments Nos. 3 and 4 address the potential loophole by establishing a new unfair practice of making "outcome specific" offers to pay money or give money's worth which are contingent on the outcome of the ballot, as declared by the CAC.

In defining this new unfair practice we have taken care to make sure that normal campaigning activity is not inadvertently caught. We were cautioned many times during the earlier debates about this potential problem. It can be expected that both the employer and the union will make statements about what they think will occur if recognition is awarded or not. The union may well say that pay and conditions will improve as a result of collective bargaining. Equally, the employer might assert that the business would be more profitable without collective bargaining and therefore pay will be higher and jobs more secure if recognition is not awarded.

It is conceivable that some statements about the consequences of life after recognition could constitute "offers" to the workers involved. Amendment No. 4 therefore makes it clear that an offer which is conditional on anything which is done or occurs as a result of the CAC declaration does not constitute an outcome-specific offer.

As I have already indicated, Amendments Nos. 6, 7 and 8 apply the same changes to the treatment of offers made during derecognition ballots. Amendments Nos. 46 and 48 to Schedule 1 to the Bill are consequential.
 
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Let me deal with the two sets of technical changes we are making. Amendments Nos. 5 and 9 replace certain references in new Clauses 9 and 12 to the holding of a ballot. Throughout the recognition procedure, we have used references to ballots being held as meaning the conclusion of the ballot. As drafted, the use of "held" in new paragraphs 27B(2)(b) and 119B(2)(b) potentially has a broader meaning, and we think that it could cause confusion. To ensure consistency across the recognition schedule, we have substituted new wording at these points.

Finally, Amendments Nos. 10, 11, 47 and 49 change some imprecise and outdated wording about the way in which certain CAC orders can be enforced as an order of the county court. The current wording is deficient. Scotland does not have any county courts and the reference to the order having been "recorded" at the court has no clear meaning in modern court procedures. We have therefore substituted clearer wording and added a reference to the Scottish legal process. The amendments also clearly indicate who is entitled to take such action.

Amendment No. 42 in Schedule 1 updates similarly outdated wording used in another part of trade union law—namely, Section 82 of the Trade Union and Labour Relations (Consolidation) Act 1992. This section relates to the enforcement of certain orders made by the certification officer.

This group of amendments mainly fulfils a commitment that we made in Grand Committee to look again at the definition of particular unfair practices in making offers. We believe that the new wording has much less scope to cut across normal campaigning activity while covering a wider range of offers. I therefore commend the amendments to the House and the technical improvements they contain. I apologise for the number of amendments, but it is as well to get the whole process right. I beg to move.


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