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Baroness Turner of Camden: My Lords, as my noble friend has said, the issue of unrecognised unions was raised by a number of noble Lords during previous discussion of the Bill. We were concerned that the protections did not at that time extend to members of unions seeking recognition. That has now been remedied in these amendments and I am very grateful for it.
"( ) An independent trade union may present a complaint to an employment tribunal on the grounds that an employer has made an offer or offers to a member or members of that union in contravention of this section.
( ) If the tribunal finds the complaint well-founded, it may make a declaration to that effect."
The noble Baroness said: My Lords, noble Lords will recall that one of our complaints during an earlier debate on the Bill was that although a remedy existed for an individual employee offered an inducement to abandon union membership or representation, no remedy was offered to the union, although its rights had also been breached by the employer's activity. Indeed, the Joint Committee on Human Rights also drew attention to the fact that in these activities the union's rights would also have been breached.
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During earlier discussions we sought to write into the Bill a remedy for a union so affected, but the Government were not disposed to accept it. We slightly reworded our original amendment and I think that we have made the situation a bit clearer. The amendment provides:
"An independent trade union may present a complaint to an employment tribunal on the grounds that an employer has made an offer or offers to a member or members of that union in contravention of this section",
The Government have said in previous discussions that the amendment was not necessary because the union had other means of enforcing its rights. I do not think that that will meet the situation. It is not clear from the Bill because the Bill deals specifically with inducements offered to get people to abandon union representation. It is necessary to set out in this Bill a remedy for the union whose rights have been breached by the activities of the employer. I beg to move.
Lord McCarthy: My Lords, this is the issue on which the Joint Committee was most specific. It said that the unions should have rights and that these rights were specified in the judgment of the court. There is no debate about this at all. The Government have helped to do something, as my noble friend just said, to implement a bit more of the judgment, but they have not got there yet, and certainly not on this one. Indeed, when we discussed this on Report, the Minister said that that was true. You are right, he said, that is what the Joint Committee said. So he submits that he is out of step with the Joint Committee.
So far, we are not coming to terms with what the Joint Committee said. So I would like to ask what that means. I have asked several noble lawyers this and they cannot tell me what it means to say that to give a union a right in front of an industrial tribunal because its members have been wronged would be counter to the way all other individual employment rights are currently enforced. But all other individual employment rights are not of this kind. What problem would there beespecially since that is what the Joint Committee says and what the Wilson and Palmer judgment says? What would be the difficulty?
The Government ought to tell us what has happened with all that talk to all those stakeholders. Have they found ways in which the judgment does not say what I think it says but what the Minister told me it says? Have they found ways in which enforcing the judgment would run counter to the way that individual employment rights are currently enforced? I should be very interested to know what Mr Dave Wilson of Wilson and Palmer thinks of it all so far. I support the amendment.
Lord Triesman: My Lords, this amendment deals with whether the union should have a right to seek a remedy in its own name. As has been pointed out, that is one of the issues raised by the Joint Committee on Human Rights. We indeed discussed the point in Grand Committee and on Report. In response, we said that the Government would look closely at the points raised by the JCHR and return to the matter on Third Reading.
Consultations have taken place with key stakeholders. The DTI has consulted the TUC, the CBI, the EEF and the NUJ, including Mr Wilson, and I know that others have also written and made their views known. I do not intend, nor would the House expect me, to comment on the views of some individual members in unions, other than to say that their views were considered in some detail.
I can respond to the amendment and come back, as we promised that we would, with our considered view. It is a difficult issue. I know that my noble friends and the trade unions hold strong convictions on this subject. However, on balance, we believe that the Bill should be left as it is. As a result, we resist the amendment. There are several reasons for that attitude and I think that, in view of what has been said, I should go through them.
At the moment, the clauses are constructed in a way that provides rights to individual union members. The rights are then enforced in the normal way by those individuals complaining to an employment tribunal. The construction of the new rights therefore follows the established pattern which, by and large, has worked satisfactorily. We therefore do not want to move away from that tried and tested approach by creating an entirely new enforcement mechanism for unions to complain independently.
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My noble friends have said that the terms of the European Court's judgment in the Wilson and Palmer case require us to establish this new remedy for unions. They quoted from the judgment at some length on Report. However, we have considered this matter carefully, in the light of all the representations and arguments made to us and the Joint Committee's comments. We do not think that it follows that we need to create a separate union remedy in our domestic law simply because the European Court refers to the rights of unions under Article 11 of the European convention. The Article 11 rights of the union can be adequately safeguarded by assigning rights to union members under our domestic law and providing remedies for those members to enforce their rights. In other words, we remain strongly of the view that we are adequately protecting the Article 11 rights of the union, as the judgment requires, by providing a right for union members to complain about breaches of their own rights.
I think that the Joint Committee on Human Rights saw the strength of that argument. It expressed concern, however, about the protections available to the union where none of its members was prepared to make a complaint. This is largely a practical issue. Of course, neither the Government nor unions can force union members to make complaints; that is quite rightly a matter for them as individuals. However, it is normal practice in such situations for unions to advise and assist their members in making complaints and in providing free of charge the legal advice and services that they may need. I have seen that over many years in practice. There are also strong statutory protections against the victimisation of workers who make complaints to tribunals about infringement of statutory rights. I am therefore confident that individuals would complain if significant breaches of their trade union rights arose in practice.
I understand that my noble friends take a different view and feel that union members might well be intimidated by their employers and therefore unwilling to complain to a tribunal. However, if that issue is really a problem in practice, it will not disappear by providing a separate remedy for unions. To progress their own cases, unions will need the active support and participation of those very members in providing evidence. If they are so intimidated by their employers as to prevent them from making complaints in their own name, it is highly unlikely that they will lend their support to the union in bringing its complaint. Anyone who has operated in the practical world of trade unions when trying to remedy such issues will know the truth of that.
We have tabled further amendments for Third Reading which extend the new protections to union members seeking recognition. We are satisfied that with these further amendments the Wilson and Palmer judgment will be given full effect through the provisions in the Bill. I know that my comments will disappoint my noble friends, but the Government are satisfied that their proposed approach to enforcing these rights is robust and compatible with our
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obligations under the European convention. In that light, I ask my noble friend to withdraw her amendment.
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