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Lord Sainsbury of Turville: My Lords, I shall speak to Amendments Nos. 14, 17, 22, 23, 24 and 26. These amendments remove the various references in Clause 28 to the "sole or main" purpose of the employer making offers. We discussed the same or very similar amendments both in Grand Committee and on Report. This is therefore well-trodden ground and, in responding to these amendments, I will need to repeat points I made at those earlier stages in the Bill's passage.
The words "sole or main" are an essential component of the regime we are seeking to construct. They are necessary to ensure that employers have some flexibility in setting their reward systems. The noble Lord, Lord McCarthy, asked for examples of what we meant and then proceeded to give some good ones. The noble Baroness, Lady Miller, gave some more.
Why do we not agree to the proposal? We do not consider that employers should be prevented from making offers for justifiable business purposes just because a by-product is that a worker accepting the offer will not or will cease to have some of his terms determined under a collective agreement. That would, I fear, be the effect of these amendments.
I assure the noble Baroness that our proposals would retain the freedom of employers to pay workers more than the amount set in collective agreements in
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recognition of the extra contribution they make to the business. As I said in Grand Committee, we want to allow employers to reward success and keep hold of key staff. Often collective agreements give considerable scope for such additional payments to be made to key workers. However, in cases where they do not, our proposals will ensure that offers of additional payments which represent a departure from the collectively agreed amount would be lawful where the sole or main purpose of the offer was not to undermine the collective agreement to reward the workers involved.
That has been our deliberate policy intention from the outset in devising our response to the Wilson and Palmer judgment. Indeed, we made our intentions clear in this matter over a year ago when the initial findings of the review of the 1999 Act were published. As ever, the legal draftsmen have carefully carried out our wishes in this respect: necessary pay flexibility will be retained.
My noble friends consider that the sole or main test will allow employers who are ill-intentioned to evade the law. We do not share that view as tribunals are expert at making the kind of judgments required and can distinguish between true and fabricated accounts by employers of their underlying purpose. That is what they do every day in unfair dismissal cases. To assist the tribunals, we have placed the burden on the employer to demonstrate what was the sole or main purpose of his actions.
We believe that our proposal is compatible with the Wilson and Palmer judgment and fully respects the human rights of trade unionists. The Joint Committee on Human Rights has considered the matter in some detail and it accepts that there is a case for retaining the sole or main purpose test.
As we confirmed on Report, the Minister with responsibility for employment relations, Gerry Sutcliffe, has also written to the Joint Committee confirming that the Government will monitor the operation of these provisions when they come into force. Therefore, we shall monitor the provisions to make certain that they act in the way that we want. In the light of that explanation, the Government cannot accept the amendment and, once again, I ask my noble friend to withdraw it.
Lord McCarthy: My Lords, what surprises one most is the a priori certainty that the people who oppose the amendment have in the face of what is basically an empirical question. I am perfectly prepared to take the empirical test, and in effect that is what the Joint Committee is saying. If, in the next two or three years, we have a spate of cases before tribunals in which workers allege that they have been discriminated against and the tribunals say, "Well, sole or main; we haven't proved that", surely that would be evidence.
The Minister says that he is certain that if we pass this provision as it is and if our amendment is not accepted, it will be perfectly all right. I cannot prove that it will not be perfectly all right, and so there is an
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empirical proof. If workers go to a tribunal, they may think that it is all useless, but ultimately we should have some information as to whether it is true that tribunals can distinguish. Perhaps I may say to the Minister that it is not saying much to state that tribunals distinguish other things. They sometimes do it very badly, and we have evidence of that.
Therefore, we are not automatically satisfied with the distinctions that tribunals make and we do not know how this measure will work out. In a few years' time, an empirical investigation somewhere will tell us whether this sole or main test is worth the paper that it is written on. I am saying that we should give the workers the benefit of the doubt. I say that because I am never toldI have not been told tonightwhat the improvements in efficiency and effectiveness are that will raise productivity, which cannot be done unless trade unions are discriminated against. If you want variations, you can negotiate them. Collective agreements are not monoliths. Of course, you can negotiate them or you can give people things because they are meritorious and efficient so long as you do not do so with a discriminatory purpose in order to drive them out of a union. That is all.
The Government say, "Oh, it will be all right because the tribunals will be able to tell". We say, "We don't think so", and so we say that we should wait and see. In the mean time, I beg leave to withdraw the amendment.
The noble Lord said: My Lords, this group of amendments makes two specific sets of changes to the clauses of the Bill that implement the European Court's judgment in the cases of Wilson and Palmer. The first set of amendments deals with an issue raised by the Joint Committee on Human Rights about members of non-recognised unions. The second set deals with the definition of a worker for the purposes of the new rights and the existing protections against detriment. I shall deal with them in turn.
The Joint Committee on Human Rights has drawn attention to the fact that new Section 145B provides rights to the members of recognised unions only. They consider that, in cases where a union is seeking recognition, new Section 145B needs to provide comparable protections to ensure that members have the right not to be offered inducements by the employer for the purpose of securing that their terms will not be determined by collective agreement in the future. In Grand Committee we gave an undertaking to look closely at the point.
Having looked at the arguments put forward and consulted with stakeholders, we have concluded that the Committee's analysis is correct. We had previously considered that the statutory recognition procedure would provide sufficient protection in these circumstances, and deter employers from making offers of this type. However, as the JCHR has pointed
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out, the statutory procedure has many stages within it and does not provide a speedy remedy. And, of course, it does not apply to all sizes of employer.
My noble friend Lord Sainsbury also mentioned in Grand Committee that extending the protections in Section 145B might create inter-union difficulties where a non-recognised union could use the new right as a lever to challenge or inconvenience an established union which was already recognised. We have examined that possibility very carefully. We have concluded that union rivalry, although much diminished in today's climate of industrial relations, can still surface from time to time. However, although we think it conceivable that an employer might make offers of this kind to the members of a rival non- recognised union, we do not think this is likely to occur in practice. If it did, we do not think the members should be without the protection given by the clause; an employer has a number of ways in which he can resist granting recognition rights to a rival unrecognised union and he should not attempt to do so by offering inducements to its members.
Finally we do not think, having further considered the matter, that there are any circumstances in which it is realistic to envisage an unrecognised union being able to make use of the protections as a lever to challenge the position of a recognised union. So, to ensure our compliance with the ECHR judgment, we believe that the scope of new Section 145B can safely be extended without threatening the stability of industrial relations.
The amendments will work in this way. Currently, Section 145B applies to a worker who is a member of an independent trade union which is recognised. Amendment No. 16 includes workers of a union which is seeking to be recognised, thus ensuring that those workers are protected. Amendment No. 18 accordingly expands the "prohibited result" provided for in Section 145B(2) to ensure that inducements made with the sole or main purpose of preventing individuals from having their terms of employment agreed by collective bargaining in the future are also covered. Amendment No. 25 makes a consequential change to new Section 145D(4) which sets out a number of matters which the tribunal must take into account when assessing the employer's sole or main purpose.
I shall describe the second set of amendments briefly. It concerns the definition of a worker for the purposes of Sections 145A to 145E, and for the purposes of the existing Sections 146 to 150 of the 1992 Act.
The facts of the Wilson and Palmer cases concerned the position of employees who were union members. However, the court's reasoning would equally apply to other categories of worker in employment. Clauses 28 and 29 of the Bill therefore apply both the new rights regarding offers and the related existing rights within Section 146 of the 1992 Act to the broader group of worker.
We have, however, noticed a technical flaw in the result produced by the new provisions. The definition of worker, which is given in Section 296 of the 1992
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Act, covers people seeking work and, unlike the definition of employee, is not limited solely to those who are in, or have been in employment. It was never our intention that the protections should extend to those seeking work. Their trade union rights are contained in Section 137 of the 1992 Act. It would create confusion and uncertainty if we created overlapping rights for that particular group of people within different parts of trade union law.
These amendments implement a recommendation of the Joint Committee on Human Rights. They make technical changes to ensure that the Bill fits more smoothly into the substantial body of existing trade union law. I am sorry about the complexity of them but I do commend them to the House. I beg to move.
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