§ 8.13 p.m.
§ House again in Committee.
LORD HOY moved Amendment No. 168
Page 126, line 34, leave out ("may") and insert ("shall")
§ The noble Lord said: It seems to me that this is a very good Amendment on which to re-start our consideration of this Bill, because it is simple and we can all understand it. Throughout our whole discussions on this Bill we have been told that it is so complicated and so legalistic that it is beyond the comprehension of most members of the Committee, so I thought we might have an Amendment to distinguish between "may" and "shall". I raised this matter the other night, because the Government were unable to distinguish between two words of a similar character, and I told the noble Lord, Lord Drumalbyn, that I could not understand why he found it so difficult to reply to the question. If there is one argument which has gone on throughout all my years in the Houses of Parliament, it is the one about whether "may" means "shall" or "shall" meant "may". It has been my privilege, to hear the noble Lord, Lord Drumalbyn, argue both cases in different circumstances, and with a tremendous amount of conviction. But he himself is responsible for replying tonight, and he must make up his mind whether "may" means "shall" or "shall" means "may".
§ I always felt that this was one of those arguments which arose on Scottish affairs, as if it were our prerogative, but after a little research I found that it has been going on for a very long time. During the debates in another place on the Consolidated Fund Bill in 1961, Members there spent many hours finding out whether "may" meant "shall" or "shall" meant "may". I was interested to find that my noble friend, who is now Lord Diamond, played a very conspicuous part in that debate, but he did not give me that information and I had to find 1297 it out for myself. Again, in February of this year there was a very long debate in another place which upset my calculations and proved how ill-informed I had been. In the course of that debate, it was said that this problem had been with the Houses of Parliament for many years, and debates were quoted which took place in the 18th and 19th centuries —
§ LORD HOY
—on this subject. I am delighted to have the agreement of the noble and learned Lord the Lord Chancellor because he rather reminds me of the old story of the noble and gallant Viscount, Lord Montgomery of Alamein, who read the Lesson from the Bible and said, "'And God said'—and I agree with him". If the noble and learned Lord wants to adopt that pose I have no objection.
Throughout the centuries there has been this difficulty, and I thought I should raise the matter once more. I found that a few days ago there was a ruling on this matter in another place. The Chair said, "You can discuss the word 'may' in a clause, but I warn you that you must not compare it with the word 'shall' ". So they were in the very difficult position that they could discuss the word may" as long as they liked, provided that they did not mention the alternative. We are now in a very different position and your Lordships can discuss "may" and "shall" this evening. Your Lordships were very good on an earlier occasion in accepting an Amendment that I moved—perhaps because it was uncomplicated your Lordships were able to understand and agree with what I said. May I expect the same to-night?
This Amendment deals with workers who have to make a choice whether or not to pay into a trade union. If your Lordships will look at page 126 of the Bill, you will see that that gives a choice which is left to the man who does not want to make a contribution to a trade union. Paragraph 22 states:) Any worker who—… may propose to the trade union that, instead of becoming a member of it, ho should agree to pay appropriate contributions to a charity to be determined by agreement between him and the trade union".1298 I am suggesting that if such an individual is to have a choice, there should not be any ambiguity in the alternative. In fact, if we are going to lay down legislation of this kind we ought to be saying to him if he is not going to pay into a trade union then he must accept the obligation and shall pay into some alternative organisation. To say that he may do it is, in fact, to leave the whole thing in doubt once more. First of all, he has made a choice that he is not going to pay into the trade union, and, secondly, has been left with this word "may" as to whether he wishes to do so or not. I think that is going much too far to meet the requirement of an individual of this kind. He can make the choice but we ought not to leave him with the further one, and I hope I have convinced your Lordships' House that the word "shall" is the word we are looking for and not the word "may".
§ 8.22 p.m.
I have obtained the leave of my noble friends to reply to this Amendment. All my Parliamentary life—and that goes back to 1938—I have wanted to know the sort of thing that goes on in the Scottish Grand Committee and now at last the truth has been revealed and, being almost entirely of Scots ancestry myself. I feel I should like at last to take part in such a discussion. I am bound to tell the noble Lord opposite that this is not, on the whale, an Amendment which we can accept. The dispute between "may" and "shall" usually relates to Government or local authorities, but in this case the worker who is within the two conditions laid down by 22(1) has three or four different options open to him.
He has a conscience. He realises that he has objections on the grounds of conscience to being a member of a trade union. Of course he can, he may, propose to the trade union as the clause provides that instead of becoming a member of it he should agree to pay appropriate contributions to a charity, but again he may not. He may have a struggle with his conscience and lose, and in that case he may become a member of the trade union in spite of his conscientious objection. He is perfectly free to do so under this Bill. Thirdly, he may have a tremendous battle between himself and his conscience and he may draw. Whereas 1299 he may recognise the validity of the objections to joining a trade union, he may on the whole recognise the enormous weight of his obligations to his fellow workers and, on balance, may think that the latter overcomes the former. So again he may take that option. Fourthly, he may say: "I do not like this place, anyway, and I am going to work elsewhere where they do not have these extraordinary arguments about contributions to trade unions. I am going to work in another occupation in another part of the country ". He may do that, too. So I hope I have persuaded your Lordships that he has several courses open to him without in any way breaching the terms of the Schedule. Thus I have achieved a lifelong ambition and have taken part in a Scottish theological dispute.
§ LORD POPPLEWELL
Is it not astonishing for the noble and learned Lord, the Lord Chancellor, to come up with a reply of this description? We are dealing in this instance with a man who is not leaving but is remaining in employment; a man who is refusing to join his trade union on conscientious grounds, but here it says that he "may". These particular clauses indicate that if a man remains in this employment he either pays his contribution dues or he pays a sum of money equal to the trade union contributions, or alternatively he pays to a charity. This word "may" surely is innocuous in this direction. Many of these people who object to paying these trade union contributions are extremely difficult people, and if they get an escape clause like this they will certainly take it. As they are not compelled, it is only "may", there will be the greatest difficulty in getting them out of a job and that may create difficulties—threatened strike action or whatever it may be—with the people engaged in the industry. This question of "shall" and "may" has been a recurring decimal ever since I entered Parliament many years ago, but I am absolutely astonished at the excuse for rejecting this put forward by the noble and learned Lord. If the Government are seeking to get some co-operation they cannot possibly insist on this word "may".
§ THE LORD CHANCELLOR
Unfortunately the noble Lord is an English- 1300 man; he cannot understand these fine theological distinctions. He has betrayed his absence of Scottish blood by his total incomprehension of the argument and what it is about. This man cannot remain in his employment, whether "may" or "shall" is put in. He has got to leave it, if he does not comply with the provisions of paragraph 22, or he can comply with paragraph 22 by joining a union. He has not only one option, he has three and there is no reason why he should not take any of them.
§ LORD POPPLEWELL
I suggest that the observations of the noble and learned Lord amplify the reasons why this Bill should be rejected completely. If this is the attitude of the noble and learned Lord, if this is the law that is going to speak on these matters, it indicates how dense law is, and the sooner we get back to common sense trade union type of negotiation and representation the better for everyone concerned. I suggest that the noble and learned Lord— learned in law—has indicated his abstruse denseness to understand anything at all to do with industrial relations and for that reason the sooner we cut this Bill's throat the better for everyone concerned.
§ LORD DRUMALBYN
Before the noble Lord sits down may I ask whether at some time in his life he was in a position to propose or not to propose?
§ BARONESS GAITSKELL
I am in the enviable, or perhaps unenviable, position of having agreed with my noble friend, Lord Hoy, when he made his explanation, and agreeing for once with the noble and learned Lord, the Lord Chancellor, when he made his explanation; I can only assume that somehow this is a reflection of this Bill which seems to me not the result of a deeply laid master-mind plan but of a thoroughly do-it-yourself job, so I am in a quandary. I do not know what the right answer is. I do not find it in either of the speeches which has been made.
§ LORD CONESFORD
I agree with the answer given by my noble and learned friend, the Lord Chancellor. The trouble about the Scots in this matter is that they never learn from experience; they 1301 can never get the distinction of "shall" and "may" right, or the distinction between "will" and "shall". The whole Committee is probably familiar with the case of the man drowning in Scotland and saying, "I will drown and nobody shall save me"— and, of course, he did drown by his own expressed determination. For that reason, I think it is in the interests of Scotsmen, among others, that the English usage should prevail. The only other thing I would add is one of my favourite quotations in politics, "He had a lifelong struggle with his own conscience but he always won."
§ LORD SLATER
It is always interesting, and most fascinating, to listen to Lord Conesford. Some of us used to listen to him in the other place when he was a junior Minister and one thing or another. He used to get some "stick" then, and he is getting some "stick" now during the course of this Bill, because he has been looking for Communists under the bed, and so on. Now we find he is entering into the field of Scottish operations. Let me say this to the noble and learned Lord the Lord Chancellor. He said he has been looking forward to the day when he can participate in a Scottish debate with a Scottish Member. He will remember that there used to be a Member of the other place who sat for one of the Edinburgh seats and who if he were here to-night in our place and had got hold of this Bill, would have been saying. "He may? He may what? Mr. Speaker, he may propose. Propose what? He may propose to a trade union that instead of becoming a member of it he should agree to pay appropriate contributions to a charity. What charity?". Then he would carry on and would say, "To be determined by whom? It has to be determined, Mr. Speaker, by agreement. By agreement with whom? Between the trade union and the individual." That is the type of Scottish debate that we became accustomed to in the other place, as the noble and learned Lord knows.
But here we have a situation which I think is absolutely ridiculous, where we are leaving the door wide open for an individual to come along and say that he "may" propose. I would say to Lord Drumalbyn and the noble and 1302 learned Lord, the Lord Chancellor, just as we used to get the hilarity of the Prime Minister with many of his Back Benchers, let them calm down a bit and let us get on with this, because to us as trade unionists it is most serious. It is no laughing matter. We are proposing that the word "shall" shall come here instead of "may". This will put an obligation on the individual, and will not leave the door wide open for him—because this is what you are doing. You are leaving this man with a form of relief whereby, if he feels so disposed, he can escape from what he has already said he was prepared to do. But if we put the word "shall" in, then it becomes an obligation on him, and the Lord Chancellor knows that to be correct. With all his legal knowledge, for which many of us respect him as we do for the stand that he has been able to take—and we have been able to read many of the judgments and everything else—he cannot get over that. I submit to him that he cannot get over the fact that he is leaving the door wide open to the individual by keeping this word "may" instead of "shall", because it is leaving a form of escape to that individual against the trade union in regard to charitable sources.
§ 8.34 p.m.
§ LORD SHINWELL
As usual, I have a solution to this problem. This disputation relates to a matter of conscience. As we know, conscience is a very elastic part of one's anatomy; one can operate it in several directions. So my solution is this—and this is not of my own volition; I have been prompted to this solution by the observation of my noble friend Baroness Gaitskell, who began by agreeing with my noble friend Lord Hoy and then, after hearing the noble and learned Lord, the Lord Chancellor, decided to agree with the noble and learned Lord. This is another variety which affects one's conscience, and so my solution is a simple one. Let us have both "may" and "shall". That should satisfy everybody.
§ LORD SHINWELL
What is even more startling, he regards my observations as being of a flippant character.
§ LORD SLATER
My noble friend and I belonged to neighbouring constituencies and I never always agreed with him and what he had to say when he was in his constituency, nor do I on this particular issue. I still stand by "shall" and not "may".
§ LORD SHINWELL
I have no objection to my noble friend Lord Slater standing by anything. In fact, I go further: he can either stand or sit according to his conscience. I have had the occasion during the course of these debates to offer various solutions. Unfortunately, all my propositions have been rejected. So I make a further effort and suggest it would read very well if the section read, "The person concerned" —that is, the person with a conscience—" can either decide according to 'may' or 'shall'." So he gets an additional option. because the noble and learned Lord the Lord Chancellor based his case in proposing the rejection of the Amendment—that has not been settled yet; it has to be put to a Division, I suppose —on the options. I am not sure whether my noble friends want to divide on an important matter of this kind, but the noble and learned Lord based his case on the options which were available to this person with a conscience. Here is a further option.
§ LORD SHINWELL
Certainly. This accords with an observation I made in an earlier part of our debates, when I referred to the number of adjectives which have been injected into this Bill. There are far too many. But on the other hand there is an advantage from the point of view of the Opposition, to those who want to see this Bill never implemented in a pragmatic form, and that is that if we add adjectives one after the other —"may" and "shall", and now "perhaps"; this is an excellent idea which has been proposed by the noble Lord, Lord Byers. If we have "may" and "shall" and "perhaps"—and I am open to any other suggestions —then, of course, we have got further 1304 options. Nothing could be better from our point of view, because I can imagine the legal luminaries associated with either the Commission or the Industrial Court, and even the entourage associated with the Secretary of State, to whom these matters may in the ultimate have to be referred according to what I heard to-day—and, if I may say so, I accept that view from a Parliamentary standpoint—taking a part. After all, the ultimate decision, if there is a dispute, must be taken by the Secretary of State; and, therefore, because of all these arguments that occur to me if they do not occur to any other noble Lord, I suggest we extend the options as far as we possibly can, with all the elasticity that is available. I am quite sure that that would satisfy everybody, even if my noble friend Lord Slater finds it difficult to accept.
§ LORD DAVIES OF LEEK
The trouble with the English and the Scots is that they do not understand their own language, and it takes a Welshman to look at it. That is what is wrong with this. I have said this before: that this Bill is the most ambiguous thing possible. It could not happen in Welsh or Latin. Let us look at it. My noble friends are correct, despite the effort of the noble and learned Lord the Lord Chancellor. What are we saying? The subject of this involved, tautological sentence is a worker—and it is not one worker; it is "any worker". What should this worker do? The operative word is "may". May what? He may pay. This is where the English language mixes it all up.
§ LORD DAVIES OF LEEK
The operative word is that he has to "pay" something. The question we are discussing is whether it is obligatory on him to pay. We are now told that, instead of becoming a member of a union he "may" pay. I hope there is a learned judge who will take part in this debate; I really and sincerely do. I think, with all due respect to the noble and learned Lord Chancellor, that it does need the operative word "shall", because although it says "instead", it does not tie it up. It should be "shall pay", otherwise it is left in the air. I should like to bet, like Mr. Rippon is betting we are in the 1305 Common Market (God help him!), that I am right.
THE EARL OF HALSBURY
This might be an occasion when the Cross-Benches could be of assistance to your Lordships. The Government and the Opposition have been conducting this debate on friendly and good terms, and perhaps neither of them would wish to be aggressive in the face of the other, but I really do believe that nothing that is likely to he said on this matter is likely to change anybody's opinion. I therefore move that the Question be now put.
§ Moved, That the Question be now put. —(The Earl of Halsbury.)
§ 8.42 p.m.
§ THE DEPUTY CHAIRMAN OF COMMITTEES (LORD FERRIER)
The Question is, That the Question be now put. The Motion, That the Question be now put, is considered to be a most exceptional procedure that the House will not accept save in circumstances where it is felt to be the only means of ensuring the proper conduct of the business of the House. Further, if the Motion, That the Question be now put is proposed, the practice of the House is that the Question on this Motion is put without debate. The Question has been put without debate, but no Tellers have been appointed for the Not-Contents. The Contents therefore have it.*
§ The Question now is, That Amendment No. 168 be agreed to?
§ LORD HOY
May I say one or two words? I started off to move a very simple Amendment in your Lordships' House which I thought might provide a reasonable debate. Indeed, I quite willingly gave way to the noble Earl on the Cross-Benches. I was about to withdraw my Amendment, but I thought it would be quite unfair of me to deny him the right to make a contribution. I regret very much that he abused that privilege, and I am bound to say so to him without any equivocation. One of the lessons I have learned, perhaps, is that I shall not always be so generous in giving way in your Lordships' House. I regret more than anything else that it should have come from a Member who sits on the Cross-Benches. May I say that when I put this Amendment down at least I did one thing: I allowed the noble and 1306 learned Lord, the Lord Chancellor, to say I hat this was the first occasion in forty years of Parliamentary life that he had been able to take part in a Scottish theological argument. This had nothing to dc with Scottish theology. The noble Lord apparently has been infected because he spent a very happy weekend in Scotland last weekend. All I was saying was that this discussion started not in a Scottish debate but in English debates centuries ago. I have had many suggestions as to what I might add to it. I notice that the noble Lord, Lord Drumalbyn, did not take part. If he had, I might well have quoted what he had to say on this subject, but I think he chose the lesser part. All I want to say to your Lordships is that I am grateful to every Member who has taken part, and on the strict understanding that I shall be allowed to put this Amendment down once more, and any further Amendments, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 8.44 p.m.
LORD DIAMOND moved Amendment No. 181:
Page 127, line 13, leave out from ("may") to end of line 18 and insert ("be referred to a joint panel of employers and trade unions or independent organisations of workers to be resolved")
The noble Lord said: I think it would be convenient if the next Amendment, which relates to this, was discussed at the same time. This Amendment speaks for itself. It is in line with our general philosophy, first, that where matters affecting trade unionists are concerned they can best be settled, if not entirely by trade unionists then partly by trade unionists, rather than seeking an outside body, and secondly, that where there is a simple way and a complicated way of resolving a difficulty, it would be more sensible to go for the simple way. The Schedule as it stands at the present time proposes, under Part IV, paragraph 23, that if a dispute arises between a worker and a trade union on any of the questions there set down, such as charity contributions, and so on, then the issue should be resolved by submitting the matter to an industrial tribunal. We do not think that it is necessary, appropriate or quick to refer a matter to an industrial tribunal. We think that the method we have proposed would be far more suitable; that
is, the method of referring a dispute to a joint panel of employers and trade unions or independent organisations. When I look at the wording as it is printed on the Marshalled List I see that it says, in fact:
be referred to a joint panel of employers of trade unions",
but that is obviously a misprint for: "employers and trade unions". I hope that your Lordships will agree that this is a far simpler and more relevant method of resolving a dispute. I beg to move.
§ LORD DRUMALBYN
The arrangements set out in Schedule 1 for resolving a dispute related to objections on grounds of conscience, payments to charity and so on, are similar to those in the agency shop provisions. What the noble Lord has not shown is why there should be different arrangements in the closed shop from those already agreed in the agency shop. The Industrial Tribunals will adjudicate in disputes on other related matters and there is no reason why they should not adjudicate on this sort of matter as well. The Industrial Tribunals have the advantage of informality, independence and experience in industry. They are well suited to the task that is involved here. I think that one must say quite squarely that there are some applicants who would not like a joint panel of employers and trade unions to have the last word in this matter. The reason is that they will already have been turned down once by the trade union and the trade union will again appear on the panel and may even have the casting vote. In many cases the applicant will have just as much objection to an employer being on the panel as to a trade union representative being on the panel. This is one of the occasions when we think it is a good thing to have an independent decision. We have already gone past and taken in our stride the provisions affecting the agency shop in this matter. It seems only sensible that the same arrangements should apply in the closed shop.
§ LORD DIAMOND
I am in a little difficulty. I do not recall how we dealt with this matter when it applied to agency shops. Is the noble Lord saying that this is something which escaped our attention in that discussion? I can only apologise for not having brought it up then. But 1308 the fact that we overlooked it then is no reason to overlook it now. I am grateful for his reminder and we will remedy it at the Committee stage. If, on the other hand, he is saying that we did take it up but did not succeed in persuading the Government as to the correctness of our cause then obviously it is necessary for me to have a second go to try to persuade the Government that this is the wiser thing to do.
I do not think that the reply, helpful though it was, was satisfactory. There are a number of possible disputes which are listed in this paragraph. The noble Lord referred to paragraph 23(1)(a) which says:whether his objections to being a member of a trade union are genuinely objections on grounds of conscience.With respect, it was sensible and wise of him to refer to that one category because that category suited the rest of his argument: that the applicant might not wish to display his conscience to a panel which included a member of a trade union. But there are sub-paragraphs (b), (c), and (d). Sub-paragraph (b) reads,to which charity the contributions should be payableI do not think that the noble Lord, Lord Drumalbyn, would have extended his argument to this case: that it is sensible to have to go to an industrial court to decide to which charity the contributions should be payable. Surely that is a simple straightforward matter; if there is a dispute in which one person prefers a dogs' home and the other a cats' home, intelligent human beings can resolve it without incurring the trouble of going to the Industrial Tribunal. I do not know what the present situation is, but I do know that when I had a certain financial responsibility I was not anxious as a Member of the Government that the Industrial Tribunal should extend unnecessarily. Industrial tribunals cannot function efficiently except at some considerable cost to the public purse. We must justify that kind of expenditure. I find it difficult to think of any argument for justifying public expenditure; that is to say, for dipping into our pockets in terms of additional taxation, to provide for the machinery and the individuals to enable an industrial tribunal to be set up in order to determine whether it is a dogs' home or a cats' home which 1309 should be the recipient of a charity payment.
I recognise that there is a different kind of dispute to be settled where matters of conscience are concerned and I hope the noble Lord will recognise that there is a different kind of dispute to be settled where the matter of a dogs' home or a cats' home is concerned. If he will be good enough to say that he will consider this matter further and that if he cannot meet us completely on the question of reference to a joint panel for all these issues (which, with the exception of the first, are minor issues) he will consider whether some such arrangements could not be accepted for settling sub-paragraphs (b), (c), (d) we feel that we shall not have wasted the time in Committee in considering this matter.
§ 8.55 p.m.
§ THE LORD CHANCELLOR
There is a very much more important question of principle involved here than the noble Lord has apprehended; and it is a serious one. The panel proposed by the Opposition is a panel of employers and trade unionists, but the person who is aggrieved and is in dispute with the trade union is not an employer but an independent worker, perhaps a Plymouth Brother, who has a dispute of conscience. I am not saying that a sensible Plymouth Brother and a sensible trade union would not settle amicably between themselves in all four cases. May I say in passing that if the noble Lord will look at Clause 9 he will find that we have there passed the same wording, except for the last which is peculiar to this schedule. The point is that if a tribunal of any kind is set up to decide a dispute between a and b there are only two fair ways of doing it. The first is to have arbitration set up by both sides—which would be an arbitrator nominated by the worker and not the employer, an arbitrator set up by the trade union, and an umpire to decide in the event of disagreement. The other way is to refer it to an independent referee of some kind, which is what is proposed by the Government. What cannot be fair in a dispute between a and b is to set up a tribunal on which one of the two parties is represented and the other is not. That is exactly what the Opposition have proposed here. I could never agree to that. I could never 1310 agree it its being taken back and looked at again from that point of view. It would be absolutely against my professional conscience to agree with it.
May I just say this to the noble Lord? He made a great deal of fun about a cats' home and a dogs' home, but I think he will realise that in this class of case—that is, in the case of a conscientious objector—you are dealing with people who do not have conscientious objections about precisely this kind of thing. It is no good mistaking it. If you are dealing with Plymouth Bretheren, Jehovah's Witnesses, anti-vivisectionists or whathave-you— and they are just the sort of people that you will be dealing with in conscience cases—
§ THE LORD CHANCELLOR
—forgive me—you get people who are extremely particular as to what kind of charity they will let their money go to. It may be that many of us think that what they believe is nonsense. It is not for me to say whether it is nonsense or truth. All I am saying is that if you think this is the kind of thing which is necessarily agreed by sensible people you are making a big mistake about the nature of conscientious objection. The nature of the charity might be a matter of serious dispute, and it is far better to refer it to an independent tribunal, which is what is proposed in the case of this agreement between the parties. The noble Lord, Lord Brockway, wished to intervene. I did not intend not to yield to him; I just wanted to conclude my sentence.
§ BARONESS GAITSKELL
I think the difficulty that noble Lords on this side of the Committee have arise from the refusal of the Government not to acknowledge the trade union dues after services rendered. The Government talk about there being three types of workers—the conscientious objector; the worker who, for some odd reason does not want to join a trade union, and the trade unionist. So we are here not talking just about a man who has a conscientious objection to joining a trade union. It is fundamental nonsense, absolute nonsense, for a man to pay to a charity when he has no conscientious abjection, because it is not 1311 the charity that renders the services to the trade union.
§ LORD TAYLOR OF GRYFE
My Lords, I am sorry to delay this debate but I agree with the noble and learned Lord the Lord Chancellor when he says that this is a matter of fundamental importance. In my lifetime I have had a good deal of experience of dealing with conscientious objectors. I know how precious is the right of a conscientious objector. I have been engaged in an industry in which there was a closed shop and we were compelled to dismiss conscientious objectors because there was a closed shop regulation with no protection.
The conscientious objector has to establish the genuineness of his objection. This is an extremely difficult thing for him to do, as I am sure that my noble friend Lord Brockway, who spent a good deal of time establishing a conscientious objection to war, will agree. That means that anyone who is going to make that judgment should be substantially above the conflict. In the nature of a conscientious objection in industry the man who, through religious beliefs or other principles, refuses to join a union —and there are such people—is not a popular individual. He is the odd man out. He is not highly regarded by the trade union and by his fellow workers, who consider him substantially as a "free rider" on the negotiations which they have completed to his advantage, so he is not essentially popular with the trade union.
Neither is he popular with the employer who likes to see a well-organised labour force, and order and peace in his establishment. It is easy to buy peace by making agreements with the majority and sacrifice minority rights. So I feel that it is far better to ensure the defence of this precious right of conscientious objection in our constitution that we should have, so far as possible, independent judgment. I believe that that is much more likely to arise from the industrial tribunal than from a body of trade unionists and employers who both have a vested interest, perhaps, in eliminating the odd man out.
§ LORD BROCKWAY
I was a little surprised on coming into the Chamber 1312 to find that we were still discussing conscientious objection. I am also surprised that there should now be so much support for the principle of conscientious objection from noble Lords on the opposite side of the Committee. That has not been my experience during the long years that I have been concerned about this issue. I do not want to make a partisan contribution; I want to make a constructive proposal, and I hope that the spokesman for the Government will consider it, and if necessary will give a reply at some later time.
I accept a great deal of what the noble Lord, Lord Taylor of Gryfe, has said. The judgment of the genuineness of a conscientious objection is probably the most difficult and the most sensitive judgment that anyone can make. I am very doubtful whether either the association of trade unionists and employers or the Industrial Court is adequate to reach a decision in these matters. The proposal that I want to make for the consideration of the Government is this. There is already an appeal tribunal on conscientious objection. Its members have long years of experience in this matter and I can say from my own appearance before them that they judge the issues, and they judge the sincerity and the depth of objection, from a long experience which I do not believe that a joint association of trade unionists and employers, or the Industrial Court could have. I am asking the Government seriously to consider this suggestion: that if there is to be an appeal on the ground of conscientious objection it should go to the existing appeal tribunal for conscientious objectors which has the knowledge, the experience and the sensitivity and which will come with all these advantages to a judgment. I hope, because I do not put this forward in a controversial way, that Her Majesty's Government will at least consider this proposal without insisting upon settling the matter which is before us now.
§ LORD BYERS
May I support what the noble Lord, Lord Brockway, has just said. It seems to me that we are searching here for something which will give real justice to people who hold genuine and sincere conscientious views. I agree with the noble and learned Lord the Lord Chancellor that it cannot be right to avoid an independent judgment 1313 by having a panel of employers and trade unionists. The next best thing would be the independent industrial tribunal. Bat it had not occurred to me that it could be the same as normal conscientious objection. I think that what the noble Lord, Lord Brockway, has said has added a new dimension to this debate and one well worthy of consideration by the Government.
§ THE LORD CHANCELLOR
I do not want to come to a hasty judgment about this, and I think it would be indecent if I did so. My first impression is that the existing Tribunal, although it might be adequate for matters falling under paragraph (a), could not deal with those under (b), (c) and (d). But the right thing for me to do is to refer what has been said to my right honourable friend. I cannot give any undertaking beyond that. What I am sure of is that the proposal in the Amendment will not do.
§ THE EARL OF CRANBROOK
I have had some experience of this just before the recent war, when I was a member of the conscientious objectors' tribunal for a quite considerable time, and I do not think that the noble Lord, Lord Diamond, really understands fully the mentality of the true conscientious objector. My recollection is that it was difficult, but not impossible, to find out whether a man's fundamental objection to fighting was due to conscious or to a subconscious dislike of having to kill somebody. When we got to the next step—as to whether it is to be a cats' home or a dogs' home —it was exceedingly difficult, even if one had been doing it for some time and had a reasonably practised, impartial outlook, to determine whether all of the tiny things that followed on it were really conscientious or not. I am certain, with the greatest respect, that the noble Lord, Lord Diamond, in saying that that is an unimportant thing, which can be dealt with by anybody else, is entirely wrong and I hope that he will not press this.
§ LORD DIAMOND
I think that the debate has been extremely useful. It has been educative to me and no doubt to other noble Lords. If I can take it to bits for a moment, I hope that I made it clear earlier, on Amendment No. 231A, which dealt with disputes as to whether objections are genuine on 1314 grounds of conscience, that I regard this as in a separate category. At first sight, I am attracted by what my noble friend Lord Brockway has said, with his great experience. The noble Earl has just said, out of his practical knowledge, that he found that this was a method by which we could with difficulty arrive at a decision. So I am inclined to favour a sensible method (or it may be "methods" in the plural) of settling that kind of dispute, which we all recognise is on a difficult level from other disputes.
Here we have a conflict of evidence. My noble friend Lord Delacourt-Smith, who has given great thought to this (if I may say so without embarrassing him) has enlightened us by what he has said on this topic. From a lifetime of experience as the chief officer of a large trade union, my noble friend made it clear earlier on that trade unionists immediately recognised and respected the sincere objections of the conscientious objector. My noble friend Lord Taylor of Gryfe takes a different view. No doubt his view is based on his experience and his experience is to the contrary. It may be, therefore, that I am wrong in hoping that we could find a lesser and simpler method of arbitrating and arriving at an acceptable, just and fair decision than the rather heavy method proposed here.
I have taken on board what the noble Lord said— I should be a fool not to do so, in view of his knowledge and experience. I am particularly grateful to the noble and learned Lord the Lord Chancellor, who gave me to understand that he would take this away and look at it. He knows what we are trying to do. We are trying to find an appropriate method to resolve disputes based on conscience which is at a very different level; namely, at the top level, and disputes relating to the dogs' home or the cats' home, which may be at a much lower level, or may be, in consequence, as the noble Lord told us from his experience, at a similar level, because it is all tied up with the psychology of the conscientious objector. I do riot think I want to press the noble and learned Lord to do more than that at the present stage. I think the Committee would like to leave it there now, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.1315
§ LORD STOW HILL moved Amendment No. 187A.
§ Page 127, line 35, leave out ("consulted") and insert ("construed").
§ The noble Lord said: The object of this Amendment is to correct what I believe is simply a typographical error. I see the noble and learned Lord the Lord Chancellor nods his head, and therefore I do not think I need take the time of the Committee in explaining the matter. It seems to me obvious that the word "construed" should replace the word "consulted". I beg to move.
§ 9.18 p.m.
§ BARONESS WHITE moved Amendment No. 188:
Page 127, line 39, at end insert—
("( c) every employer of relevant workers shall be covered by such agreement whether or not the employer is a member of the employer's association or associations").
§ The noble Baroness said: I beg to move the Amendment standing in the names of my noble friends. I hope that it might be for the convenience of the Committee, and I understand it is agreeable to those who support the Amendment, that we should discuss Amendment No. 188A together with this Amendment, because in effect they cover the same point. I should have thought that in some respects Amendment No. 188A was more comprehensive than our Amendment, quite apart from the fact that our Amendment has a slight blemish of a misplaced apostrophe in "employer's".
§ The object of both these Amendments is to try to ensure that where there is an approved closed shop agreement it shall be universally applicable to that particular industry or section of industry, and the particular type of worker who is included in it. The reason for this is quite simple. The reason is that it is the bad employer, the bogus employer, the fly-by-night employer, who is likely to create the real difficulty in this situation. If he is not caught by the provisions of the agreement, then the workers concerned will undoubtedly suffer. The respectable employer, the conscientious employer, the good employer in all senses, 1316 is likely to be a member of his association, and likely therefore to observe the agreement and the conditions thereof. In the entertainment industry, particularly, it is well-known that one sometimes has employers who are not men of great substance, who may be speculative, and who may not belong to their association —indeed, whom the appropriate association, as I understand it, would not perhaps particularly wish to take into partnership. There is also, so far as the cinema industry is concerned, the situation where the employer legally is a firm, which is established simply for the production of one film and then goes out of existence. The firm itself may well not be a member of the association, although the body from which the finance is coming may be. That does not help in this particular situation, of course, because the closed shop agreement is with the employer, not with, say, the distributor, who may be providing the finance and so on.
§ I do not wish to go further into detail at this point. Those who are sponsoring the second Amendment, No. 188A, have a much greater knowledge of this matter and are likely to deploy all the arguments. I thought we should move our Amendment, although it is not quite as broad as the second Amendment, because we would wish to indicate clearly that we are well aware of this problem in at least one of the industries where the closed shop conditions are likely to prevail. We are very much in sympathy with the fears and apprehensions of those who want to be quite certain that if one does have a closed shop arrangement it shall be a genuine protection, not only for the workers, but also for the good employers, which is so important. They suffer from the standards of an industry being dragged down by irresponsible employers, or men of little worth. For those reasons, I have pleasure in moving this Amendment, and look forward to hearing the arguments of other noble Lords in support of the next Amendment.
§ 9.21 p.m.
§ LORD STOW HILL
My noble friend Lady White has very clearly and forcefully deployed the general considerations in support of the concept which underlies Amendments Nos. 188 and 188A. The Amendments are slightly different in 1317 scope and in operation. It is your Lordships' desire that both should be discussed together and, as my name appears on the second Amendment, may I confine my arguments to explaining the purpose and the reason why the second Amendment is put forward. My noble friend Lady White referred to the position of Equity. I should like, at the outset to explain from the point of view of Equity how the arrangements embodied in the text of the Bill before your Lordships' House will affect Equity. In the entertainments industry, particularly in that part of it which provides films for the public, more often than not a company is formed for the production of a particular film and it remains in existence only while that film is being produced and displayed. In due couse it ceases to exist. Very often that company is a subsidiary of a larger company which is providing the finance and which itself is a permanent, long-term film company, and a member of the relevant film producers' association. But the subsidiary company (and it may not be a wholly owned subsidiary, but a company partly owned by the larger, permanent film company) is not a member of any association. That is the rule rather than the exception in the film industry.
In the theatre world that practice is not so prevelant, but there you have something which is not wildly dissimiliar; you have partnerships formed for the production of a single play. When the play has been produced the partnership is dissolved. The partners are not members of any long-term body, or any association which could normally be brought within the arrangements for the approved closed shop.
If therefore the Bill is passed in its present form and under Clause 16 and Schedule 1 steps are taken jointly by Equity and by a particular film company or a company producing plays, that really would leave the position very largely uncovered so far as the actor and actress—either film actor or actress, or an actor or actress in a theatrical production—are concerned. They would not be protected or brought within the scope of the approved closed shop arrangement; they would be unprotected and therefore exposed to all the strains and dangers which were outlined in the discussions 1318 your Lordships had recently on the situation of Equity.
The casting agreements, I think your Lordships generally agree, would fall within the scope of a closed shop agreement. The question whether they would come also within the scope of a pre-entry agreement under Clause 6 of the Bill has been regarded by your Lordships as somewhat marginal; and the casting agreement, I think, has been described by your Lordships as "a point of entry agreement" which may be just within or just outside the scope of Clause 6. So Equity, under the arrangements proposed in the terms of the Bill, feels that it and its members would be largely unprotected so far as the production of films and plays is concerned. It is to try to remedy that situation, in particular, that Amendment No. 188 has been framed; and the object of the Amendment as so framed is, in effect, to build itself upon the model of, for example, Section 8 of an Act of Parliament well known to your Lordships' Committee and indeed referred to in our debates; namely, the Terms and Conditions of Employment Act 1959.
At first hand it may be said, "Well, if there is an agreement between a union and an employer or association of employers that there should be a closed shop, and that closed shop is subsequently embodied in the form of an approved closed shop agreement, it is perhaps going a little far to say that it should be binding on employers who are in no sense willing parties to that agreement." That might be argued, and if so I would reply at the outset by saying that in terms of industrial relations a situation of that kind is well precedented. It is precisely precedented in Section 8 of the Terms and Conditions of Employment Act 1959, upon which this Amendment is modelled.
That section of that Act contemplates a very similar situation: a situation in which there are recognised terms in an industry and in which it is shown to the industrial court, under the 1909 Industrial Courts Act, that a particular employer has failed to measure up to the generally accepted standards of that industry. Those standards may have been settled, and probably would have been settled, by an agreement between unions and employers 1319 or an award of the court. Whichever way they are settled, they have become the recognised conditions of employment in the industry. Section 8 provides that, if it is demonstrated to the industrial court under the 1909 Act that a particular employer has fallen below those agreed standards, the court can order that it is to be regarded as an implied term of the contract between him and his employees that those standards are to be observed.
Almost exactly the same thing is sought by Amendment No. 188A. Similarly there, what those who support it are arguing is this. They say that if an employer who is not a member of an employers' association which is itself party to an approved closed shop agreement, or an employer who is outside those arrangements, wishes to go into that field of activity, if he wishes to engage in the production of films or plays, he must conform if there is an approved closed shop agreement in existence with that approved closed shop agreement binding on the persons who are affected by it, subject to one condition. The condition to which it is subject is clearly set out in the clause; namely, that the employers' association and the union which are parties to the approved closed shop agreement—and then I quote:represent a substantial proportion of the employers and of the workers respectively in that trade or industry or section of a trade or industry.That precisely follows the model in Section 8 of the 1959 Act to which I have referred, and therefore I hope your Lordships will come to the conclusion that it is broadly in stream with the general line of thinking as to the proper format of industrial arrangements. It induces no new concept; it simply emphasises what I submit is absolutely fair, and indispensable in the case of Equity, that one of these—I do not wish to use a pejorative term like fly-by-night" companies (I am not suggesting they are), but companies whose existence is likely to be temporary, who may not be as far as resources are concerned particularly strong or stable must comply with the standards which employers and unions broadly representative of the substantial number of those who work in that industry have accepted by jointly applying for and obtaining approved closed shop agreement.
1320 I emphasise it is the Equity case, it is the case put forward in view of the requirement particularly of the case of Equity; that is the case and that is the framework it is to take. The object of those who move this Amendment is to ask the Government to give serious consideration to this problem. They may take the view that although Equity and the entertainment industry generally can put forward a case for this change, it is not so easy to advance a case in respect of the industry generally. Where you have a large-scale employer, the union with a very large membership which covers all, or nearly all, the workers in the industry, it may be argued (I do not support the view) against my noble friend that it is not so easy to maintain the proposition for which he contended; but if that is so and consequently the Government feel that the scope of the Amendment I am moving is also too wide I hope that they can rephrase it between now and the Report stage in such a way as to limit it to Equity and similar organisations. That can be easily done by introducing into the Amendment words of limitation, and that itself would be well precedented in the terms of this Bill. In this Bill Clause 25 excludes from its operation a number of particular branches of industry, which are described—five of them, I think, in Clause 25—and there would be nothing contrary to the general spirit of this Bill in limiting the scope of this Amendment to the entertainment industry, if that is the right term.
I earnestly ask Ministers who will reply to say that they recognise there is a real problem here— that Equity will be left wholly exposed, and its members will be left largely unprotected by the present arrangements for closed shop agreements—and will consider how it can be dealt with. If the Government feel that there ought to be some principle embodied in the Bill in the terms of the Amendment I propose, I would accept that it should perhaps be limited to those sections of industry where there are companies separate and independent from the broader organisations such as those with which Equity have to deal. I beg to move.
§ LORD DAVIES OF LEEK
It is with some trepidation that I follow what I consider that beautifully cogent and fine 1321 exposition of this Amendment, No. 188A. Nevertheless, without in any way expanding or filibustering, I want to add my voice on this, because, as my noble friend said on Clause 25 and on page 154, Schedule 7 (which is the complete Terms and Conditions of Employment Act), really this clause needs some consideration. I appeal to the Government in this case to give some attention to my noble and learned friend. I could give several relevant examples but I will stick to only one so as not to weary the Committee. I will take the example of the theatre, particularly at Christmas time—the rep. companies and pantomime. Here would be an opportunity for some of us to form a small company, in which we might make the Lord Chancellor the hero and perhaps make a fortune next Christmas.
I do not want to upset the noble and learned Lord, the Lord Chancellor, because we get on very well together, but in the theatre there are still many independent managements who are not members of organisations of any kind or of organisations of reputable employers; and many of these operate speculatively for short periods. I know plenty of people on the fringe of this overcrowded profession who will work for next to nothing at these periods of the year, and are therefore exploited. Some of these independent managements are of such a character that associations representing the substantial employers prefer not to have them in membership, and I do not think it would be beyond the wit of the Government to look at this in depth and probably discover an approach such as the one in Clause 25, which would give justice and equity to these representatives of the entertainment industry. I sincerely hope that the brilliant case that has been put forward here will be listened to, because if some attention is given to that the Government may discover an answer.
§ LORD COLLISON
May I refer to paragraph 25 and ask a question before the noble Lord replies? As I read paragraph 25, it deals with a closed shop agreement made between an employers' association and one or more trade unions. In sub-paragraph (a) the employer who is attached to that association is made patently clear either by name or general designation. Sub-paragraph (b) says that any employer who for the time being—meaning at that time—is a member of the 1322 employers' association, whether he was a member of it on the date on which the agreement was made or not, is covered by the clause and required to conform to it. I should like to question what happens if an employer ceases to be a member of the employers' association. This point may be covered in some other part of the Bill, but if it is not it seems to me that an employer who wishes to evade responsibility under Clause 5 could easily do so by leaving the employers' association.
§ LORD DRUMALBYN
We have had a very interesting debate on this issue, and it is a matter which has both wide general implications and, as the noble Lord, Lord Stow Hill, made so clear, it also his a particular inspiration—if that is the word—from Equity. I am sorry to have to tell the Committee that I should find great difficulty in accepting this Amendment on general grounds of principle. There are four reasons for this. In the first place, the Amendment would merely expand the scope of an approved closed shop agreement; it would mean that employers who are not parties to an agreement, or not members of an association which had signed an agreement, would nevertheless find themselves bound by it and their workers would be compelled to join a trade union. I recognise that there are some affinities in this regard with wages councils, to which the noble Lord, Lord Stow Hill, referred, but there is the important difference that the initiative here would rest with people in the industry and that their powers would be very much wider. As the Amendment is now drawn, it is clear that it would be possible for a small number of employers, or indeed a single employer, to enter into an agreement which would provide for the establishment of a quasi-statutory council. I think in her own Amendment the noble Baroness intended it to apply to more than one employer, but this would enable a small number of employers to enter into an agreement which would provide for the establishment of quasi-statutory council whose decisions and rules would be binding upon all employers in a particular sector, regardless of the fact that they had not been parties to the original agreement.
We think this is objectionable in principle and is quite distinct from the statutory wages council. This would be a 1323 particular agreement between particular employers and particular associations and is in a different category altogether from the statutorily formed wages council. The mere fact that it has the approval of the Commission on Industrial Relations and the Industrial Court to set up a closed shop agreement does not in any way justify the extension to employers who were not covered by the agreement that was submitted to the C.I.R. and the Industrial Court.
There is a second important objection to this, and it is that the agreement would apply in areas and circumstances which had been left unexamined by the C.I.R. —had not been touched by the C.I.R. and indeed could not be touched in its investigation of the need for the agreement. It may well be that in some of those areas the alternative of an agency shop agreement would provide a satisfactory arrangement, and that is an important test of the need for a closed shop.
The third objection in principle is this: the provisions which provide for an opportunity for workers to call for a ballot before an agreement is approved would be made quite unworkable by the Amendment, because nobody could say with any certainty or any precision who, at the time of approval, was covered by the agreement and therefore entitled to challenge its establishment and vote in the ballot. So I am afraid this proposal just would not fit in with the arrangements that we are in process of considering. Indeed many of the establishments, both employers and workers, affected by the agreement would themselves be unaware at the time that the closed shop obligations were being imposed upon them. This makes it difficult to agree to an arrangement of this kind. They have no chance of objecting to them. For these very practical reasons I am afraid the Amendment will not do. In any case the provisions of this Schedule, together with those in Clause 16, are intended to ensure that the closed shop agreements will be approved only where 1324 they are freely and willingly made and are found by the C.I.R., after careful examination, to satisfy the carefully defined criteria contained in paragraph 5 of the first part.
There is another objection—or at any rate it is not an objection but it does not help the Amendment. The Amendment would not solve the problem of the ephemeral employer, the fly-by-night employer, whatever you like to call him, the employer whose production is of short duration and who has moved on before any action can be taken to persuade him to accept and apply the terms of the closed shop. If he and those who work for him are content not to operate the closed shop agreement, he will not be caught by this Amendment to any greater extent in practice than he would be caught by any action the union could take against him at the present time, and this applies particularly to Equity. As noble Lords who have had to deal with these things know very well, Equity may not be able to do very much about an employer of this character in one production, but they can have quite a lot to do with him when he tries the next production.
I quite agree, and I do sympathise, with the search of the union for some way to circumscribe his mode of operation. This is a severe difficulty; it is a difficulty that we discussed at great length on Tuesday night. But I must say, with great conviction, that it is no part of these provisions for including closed shop agreements that closed shops should in future be more easily obtainable in areas where there are difficulties in obtaining them at the moment. I suggest to noble Lords opposite that they should think very hard before committing themselves to the proposition that the law can license two parties to make agreements binding on third parties, because this is what they are proposing in this provision. And at a time when noble Lords are finding difficulty in agreeing to two parties making agreements binding on each other, on themselves, I think it really is rather paradoxical that they should be seeking to make agreements binding on third parties.
§ LORD COLLISON
I do not think I got the answer to the question which I asked, and I am still worried about it. I may be missing the point, but what is the situation if a trade association concludes the agreement and an employer member of it then withdraws in order to avoid being caught by the agreement?
§ LORD DRUMALBYN
I apologise to the noble Lord, Lord Collison, for not having attempted to reply to that question. As I see it, an employer is free at any time to leave an employers' association. However, if one takes an organisation of the type of Equity—we are talking of a closed shop agreement—it has its ways of seeing that it is difficult for the producer or the manager to recruit for his next production, once he has not only left the association—but ceased to keep in line with the rules of the closed shop agreement. Of course, he might leave the association and still keep in line.
§ LORD ARCHIBALD
I had not intended to intervene, because I think I had a fairly full say on the general principles of this matter one or two nights ago, and I was afraid that anything I might say would tarnish, rather than embellish, the very cogent speech which was delivered by my noble friend Lord Stow Hill. But, if I may say so to the noble Lord, Lord Drumalbyn, I think his reply has been based on generalities and legalities, rather than a consideration of the practical workings with which we are concerned here. May I make two assumptions—and it would be convenient to have the noble Lord's attention—sticking only to the film production side, because I am not really familiar with the theatrical side. Let us assume that the film producers' association registers, and that, with Equity, they agree and have an approved closed shop arrangement. The members of the Film Production Association include the major studios, and these studios make it a condition of any producer coming to make a film and hiring space that that producer will observe all the terms of their agreement. But there are a few small studios which are not in the Film Production Association, and 1326 what I called the other night an ephemeral producer may make a film mainly on location with just a few shots in one of these small studios, and with their sound recording, and that sort of work. They would be outside the operation of the approved closed shop unless we have some sort of overall regulation as is set out in Amendment No. 188A. I do not believe that there is any real practical difficulty about it. I think the number of people affected who would be outside the Producers' Association is so small that to regard it as an agreement between two organisations to impose conditions on third parties is straining the argument far beyond anything that is reasonable.
§ LORD BERNSTEIN
The noble Lord, Lord Archibald, mentioned films. Could I give an example of what happens in the theatre, and perhaps the noble Lord will explain to me what could happen and how quickly it could happen. Five young men of Cambridge University have put on a show and decided that they would like to bring it to London. They find that a theatre is free for a certain number of weeks. To go into that theatre they must have an agreement, with a closed shop, with the National Theatre Group Employees' Union, perhaps the A.C.T.T. if they are doing any filming, the electricians' union, and so on. How quickly can they get to work, get their show on the stage and comply with all the legalistic requirements of this Bill?
§ 9.53 p.m.
§ LORD GARDINER
I think the noble Lord's answer is a very disappointing one. After all, this is a very old provision in industry, as my noble friend Lord Stow Hill has pointed out. The words themselves are taken from Section 8 of the Terms and Conditions of Employment Act 1959 which is conveniently set out on page 155 of the Bill. I think I am right in saying that the conception goes back much earlier than that; that if the m tin employers and employees in a trade or industry, or in a section of a trade or industry, have agreed terms and conditions, a tribunal—and I think this 1327 goes right back to the old Industrial Disputes Tribunal—finding some rogue employer who is not observing terms and conditions and has not joined the original body, can he made to do so.
§ LORD DRUMALBYN
What I said was that the kind of agreement that is envisaged here would go much wider than just terms and conditions of employment.
§ LORD GARDINER
That may be so, and the precise terms of the Amendment may not be right. What I find disturbing is that I do not believe that the English theatre can sustain the high reputation which it now has if Equity goes under. The governing question for the last two or three days on this point has really been whether the Government have the will to see that Equity survives; whether the Government are saying to their draftsmen, If it is at all possible, you must put up Amendments by which Equity can be saved". I am afraid that it is only too apparent, from what has come from the Front Bench opposite during the last two or three days, that the will is not there. I simply cannot believe that it is impossible to make provision for this special case if the Government decide to do so. I would appeal to them again to show some signs that they really want that to happen.
§ LORD DAVIES OF LEEK
I sincerely hope that this appeal will be listened to in great depth. Will the noble Lord explain to me what happens when employment is so casual and brief? There would simply not be enough time for the procedure set out in Schedule 1 to be operated. There is no new principle in this Amendment. It is the same principle as that which underlines the provisions in the Terms and Conditions of Employment Act 1959, which is printed on page 155. I think there is a case worthy of consideration here.
§ LORD STOW HILL
I should like to say with real sincerity to the noble Lord, Lord Drumalbyn, that I think he has assisted us enormously in our discussions and I personally am very grateful to him. He has carried a very heavy burden. But I must also say to him that I think his answer on this Amendment is not at all convincing. I should like to deal with the four points that he made. But, first, 1328 I should like to reply to the question, which I do not think he answered, which was asked by one of my noble friends. He asked: what was the position of an employer who sought to withdraw from an association which was party to an approved closed shop? If my noble friend will look at paragraph 25 of Part V of Schedule 1, he will find that the answer there is that the employer is himself individually bound by the terms of the approved closed shop agreement, and therefore cannot, so long as he is within the scope of the operations to which it applies, resile from its obligations. I think that is the answer to my noble friend behind me.
§ THE LORD CHANCELLOR
I may be wrong, and I am saying this rather tentatively. I think that the noble Lord is quite right in referring to paragraph 25, but there are two cases in that paragraph; one is the case which he stated, and then there is(b) in any other case".I think that that would be a complete answer to the question. But subject to that, I would agree with what the noble Lord has said.
§ 9.57 p.m.
§ LORD STOW HILL
I am very grateful to the noble and learned Lord for adding that. Now may I go back to the speech to which I desire to address myself in particular? May I take the four points which, if I remember them correctly, were: first, the situation that we are considering is not to be equated to the situation which arises out of the operations of wages councils; secondly, after all, any employer could bring about an approved closed shop agreement and that would be binding on a whole lot of employers who were not in any sense privy to it; thirdly, the voting arrangements would be thrown wholly out of gear; and, fourthly, the employer who did not wish to conform would, in any event, hardly be caught by the provisions of the approved closed shop agreement. May I take each of those points and seek to give an answer to them?
In the first place, I am not talking about wages councils. I selected, as what I think is a particularly close parallel, Section 8 of the Act of 1959 which is set out on page 155 of the Bill. What are the points of parallel? Section 8 operates 1329 where there has been either an award or an agreement establishing generally accepted conditions. The Amendment which I seek to support provides that, where you have a similar provision—namely, an approved closed shop—brought into being by a joint approach by employers and a trade union to the Industrial Court, which has activated the Commission and where there may or may not have been a ballot, then in that almost exactly similar situation the Amendment is to operate subject to one qualification which really answers, I should have thought, the next point made by the noble and learned Lord.
The next point which he advanced was that, after all, if the Amendment were accepted, any employer could in effect force upon other employers wholly alien to him provisions of an agreement which they did not wish to accept and to which they were not party. In saying that, the noble Lord has, I put it to him, forgotten that both in Section 8 of the 1959 Act, and also in the terms of the Amendment for which I am content, there is the further requirement that the employers and trade unions concerned must be substantially representative of all workers employed in that Section of the industry. It is not just any employer; it is an employer who has, with the necessary trade union co-operation, activated and succeeded in producing a favourable result from the procedure specified in the first Schedule to the Bill. That is the position, and even then that would probably have involved a vote by the majority of the workers who would he affected by the agreement. That is the situation, and only then would the new clause operate if it could be said of that employer that he was broadly representative of a substantial number of workers in that section of the industry. So I submit that the second point made by the noble and learned Lord really will not stand up.
§ LORD DRUMALBYN
Of course the noble Lord will be aware that there are industries in which there is a dominating employer.
§ LORD STOW HILL
Of course I am aware that where you can say of a dominating employer that he, by the machinery provided, has brought into being an approved closed shop agree- 1330 ment, and that the dominating employer is representative of a substantial number of workers in the industry, then the new clause operates. I see nothing objectionable in that. I should have thought that was not unreasonable.
The third point the noble Lord made was that after all it would wholly disrupt the proposals for a ballot, at present incorporated in Schedule 1. With respect, I do not agree that the workers who take part in the ballot in terms of Schedule 1 are what are called "the relevant workers". The "relevant workers" are the workers who would be affected by the approved closed shop agreement, and if the approved closed shop agreement in this particular case would affect all the workers employed by employers in that industry they become, in terms, relevant workers, and they would all have to take part in the ballot. If there is any doubt on the existing wording of the Schedule, it is an easy thing—I should have thought a matter of drafting—to put it right and bring about that all the workers have to take part in the ballot.
The fourth point was that, in any event, an employer who did not wish to conform would not really be affected. Again, I do not agree. A company may last for six months; it may last for a year; it may last for two years; it may last for three years. As I understand the position, these closed shop agreements would come within the scope of collective agreements within the meaning of Clause 33 of this Bill, and it is an unfair industrial practice to breach the terms of a collective agreement. Therefore the company concerned, if it disregarded the terms of the closed shop agreement to which it would automatically have become party, would be committing, as I understand the Bill, an unfair industrial practice and be liable to damages. You may say that a fly-by-night company would not have any money to pay damages, but they are not all like that. There are a few like that. I do not wish to speak in deprecatory terms of any of them. I do not know about them. If there are any that are wholly insubstantial they can slip through any legal net, but I am assuming that they are the minority and that the majority are companies of limited duration in time but conducted nevertheless by respectable people with assets necessary to meet their liabilities.
1331 I hope the noble Lord will say he will take the matter back and think of it between now and Report. I hope he will tell me he will at least think of it. He has kindly indicated that he has some sympathy with the problem; he recognises that there is a problem. I hope he will say that, having that sympathy, he will give further thought to it.
Speaking for myself, I do not know what will be the view of those who put their names down to this Amendment. I myself would wish to give the Government that opportunity and not press the Amendment, but if the noble Lord feels that he really must just adopt a stonewall attitude about this and his mind is concluded, I hope the Committee will express a view about it.
§ BARONESS WHITE
I have no intention of going over the ground which has already been covered so comprehensively and lucidly by my noble friend Lord Stow Hill. If the Government are not prepared to give a firm undertaking to meet the point—not just to look at it again, but to meet the point we are trying to make—then I must ask my noble friends to support our Amendment No. 188; otherwise I think this really does prove that the whole provision of Clause 16 and this Schedule, which gives effect to it, is really bogus. The noble Lord is looking a little hurt at this, but really and truly it is. With great respect, it is no use saying, "We recognise there are certain exceptional industries". It is only exceptional industries we are dealing with. This is not a matter which would affect very large areas of industry, because the conditions prerequisite for the formation of a closed shop at all are so difficult and so onerous that hardly any industries will be able to get recognition as closed shops.
Therefore, we are dealing only with some very special instances, very specialised industries, which the Government themselves have recognised—even with their own principles, with their dislike of the closed shop—need some quite extraordinary protection. The entertainment industry is one of the main ones, and seafaring is another. We have not said a great deal about that, but my noble friend, Lord Blyton, I think it was, pointed out the absurdities of the ballot provisions for closed shop recognition so 1332 far as seamen are concerned. The thing is quite unworkable. Therefore, if the Government are not prepared to look realistically at the true conditions in either the entertainment industry or the seamen's industry—the two main industries for which Clause 16 and this Schedule were incorporated in the Bill—then I think I am fully entitled to say that this is really a bogus gesture. For those reasons, unless we get a firm assurance that this point will be met, I think we must certainly vote in favour of our Amendment.
§ 10.5 p.m.
§ LORD DRUMALBYN
Perhaps I may say just a word or two, because I am afraid I cannot concede this point. The noble Lord, Lord Stow Hill, argued very lucidly, if I may say so, what was essentially a general case, and I think it must be argued as a general case to succeed. I am being pressed, and was pressed on the last occasion, to make special arrangements with regard to one particular industry—a closed shop in Equity. I am bound to say that I think noble Lords opposite are taking a very pessimistic view of the future of Equity. We simply do not take that view under the arrangements that can be made. I do not know how far Equity will be able to bring themselves within these provisions, but we believe that they could make adjustments to bring themselves within the provisions. That is one point.
The second point is that the reason why we cannot give way is that it does not seem to me to make sense that a party which is not a party to an agreement should automatically become a party when that agreement comes into operation. We do not think that makes sense in this context, because this is so much more far-reaching an agreement than one merely about terms and conditions of employment. I need not labour this point because on Tuesday night noble Lords were at great pains to point out how Equity assisted in keeping up the standards, and all the rest of it. Of course that is so, but it is by reason of their membership of a club, and their compliance with the rules of the club, or the rules of the union in this case. This is quite a different consideration and we just do not think it is right, even if it were practicable, in a case like this to cover non-members as well as members.
1333 After all, we start off in the closed shop arrangement by insisting that the employer and the union must agree to the application, and the union only can cover their membership. The noble Lord says that we were wrong about this, and the words used are "relevant workers". How is the C.I.R. going to find out who the relevant workers are for the purposes of the ballot? Again, if he looks up the powers of the C.I.R. he will find that they have power in regard to a ballot to obtain the names of the members of the unions but how would they be able to get the names of everybody else? How could
§ he ensure that the workers were able to give their assent to the closed shop? Because this does not fit in, and because on a matter of principle we do not think it is right that parties who are not parties to an agreement should be bound by an agreement of this sort. I am sorry, but I am afraid we must resist this Amendment.
§ On Question, Whether the said Amendment (No. 188) shall be agreed to?
§ 10.12 p.m.
§ The Committee divided: Contents, 52; Not-Contents, 90.1333
|Archibald, L.||Evans of Hungershall, L.||Ritchie-Calder, L.|
|Ardwick, L.||Gaitskell, Bs.||Sainsbury, L.|
|Bacon, Bs.||Gardiner, L.||St. Davids, V.|
|Barrington, V.||Hall, V.||Samuel, V.|
|Bernstein, L.||Henderson, L.||Serota, Bs.|
|Beswick, L.||Henley, L.||Shackleton, L.|
|Blyton, L.||Hoy, L.||Slater, L.|
|Brockway, L.||Janner, L.||Stamp, L.|
|Brown, L.||Lee of Asheridge, Bs.||Stow Hill, L.|
|Buckinghamshire, E.||Lindgren, L.||Strabolgi, L. [Teller.]|
|Burntwood, L.||Llewelyn-Davies of Hastoe, Bs. [Teller.]||Swaythling, L.|
|Byers, L.||Taylor of Gryfe, L.|
|Champion, L.||Maelor, L.||Taylor of Mansfield, L.|
|Collison, L.||Morris of Kenwood, L.||Thurso, V.|
|Davies of Leek, L.||Phillips, Bs.||Wells-Pestell, L.|
|Delacourt-Smith, L.||Platt, L.||White, Bs.|
|Diamond, L.||Plummer, Bs.||Winterbottom, L.|
|Donaldson of Kingsbridge, L.||Popplewell, L.|
|Aberdare, L.||Exeter, M.||Mancroft, L.|
|Ailwyn, L.||Falkland, V.||Massereene and Ferrard, V.|
|Amherst of Hackney, L.||Ferrers, E. [Tellers.]||Mersey, V.|
|Balfour, E.||Ferrier, L.||Mowbray and Stourton, L.|
|Barnby, L.||Fisher, L.||Moyne, L.|
|Bathurst, E.||Fortescue, E.||Napier and Ettrick, L.|
|Beauchamp, E.||Gisborough, L||Nugent of Guildford, L.|
|Belhaven and Stenton, L.||Goschen, V. [Teller.]||Penrhyn, L.|
|Belstead, L.||Gowrie, E.||Rankeillour, L.|
|Berkeley, Bs.||Gray, L.||Reading, M.|
|Brabazon of Tara, L.||Grenfell, L.||Rochdale, V.|
|Caldecote, V.||Hailes, L.||St. Aldwyn, E|
|Clinton, L.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||St. Just, L.|
|Colville of Culross, V.||St. Oswald, L|
|Conesford, L.||Hanworth, V.||Sandford, L.|
|Cork and Orrery, E.||Harcourt, V.||Sandys, L.|
|Cottesloe, L.||Harvey of Tasburgh, L.||Selsdon, L.|
|Craigavon, V.||Hatherton, L.||Sempill, Ly.|
|Cranbrook, E.||Hives, L.||Somers, L.|
|Croft, L.||Hood, V.||Strange, L|
|Cromartie, E.||Ilford, L.||Strathcona and Mount Royal, L.|
|Cullen of Ashbourne, L.||Inchyra, L|
|Daventry, V.||Inglewood, L.||Sudeley, L.|
|De Clifford, L.||Jellicoe, E. (L. Privy Seal.)||Suffield, L.|
|Denham, L.||Kemsley, V.||Teviot, L.|
|Derwent, L.||Killearn, L.||Thorneycroft, L.|
|Drumalbyn, L.||Kinnoull, E.||Tweedsmuir, L.|
|Ebbisham, L.||Lansdowne, M.||Verulam, E.|
|Eccles, V.||Lauderdale, E.||Vivian, L.|
|Effingham, E.||Lucas of Chilworth, L.||Windlesham, L.|
|Elliot of Harwood, Bs.||Lyell, L.|
Resolved in the negative, and Amendment disagreed to accordingly.
§ 10.20 p.m.
§ Amendment moved—
Page 127, line 39, at end insert—
(".Where an approved closed shop agreement has been made or an interim order has been made under paragraph 28 hereof in relation to an agreement in any trade or industry or section of a trade or industry and the parties to that agreement are an employers association or organisation of employers and a trade union or trade unions and represent a substantial proportion of the employers and of the workers respectively in that trade or industry or section of a trade or industry such closed shop agreement shall be binding on every employer in such trade or industry or section of such trade or industry as the case may be as if such employer were a party to such agreement:")— (Lord Stow Hill.)
THE DEPUTY CHAIRMAN OF COMMITTEES (VISCOUNT HOOD)
The Question is, That Amendment No. 188A be agreed to. Tellers for the Contents have not been appointed and, pursuant to Standing Order No. 48, a Division therefore cannot take place, and I declare that the Not-Contents have it.
§ Amendment negatived accordingly.
LORD BELSTEAD moved Amendment No. 189:
Page 127, line 40, leave out from ("Schedule") to ("charity") in line 41.
§ The noble Lord said: The Committee agreed to Amendment No. 104 to Clause 16, which made the definition of an approved closed shop agreement applicable throughout the Bill and not merely to Clause 16. Therefore, there is no need for the reference in this Schedule to the definition, and in the interests of brevity in the text I beg to move.
§ BARONESS WHITE
We are happy once more to accept anything which will shorten this already overlong Bill.
§ On Question, Amendment agreed to.
§ LORD HENLEY moved Amendment No. 191A:
Page 127, line 42, at end insert—
(".Where immediately prior to the coming into operation of this Act there is in operation a closed shop agreement made between one or more trade unions and one or more employers or an employers association or organisation of employers either party or both jointly may make an application to the Industrial Court for an interim order. The Industrial
Court shall forthwith refer the application to the Commission for examination by them. Upon such reference the Commission shall consider whether it appears to them that a prima facie case has been established that the conditions described in paragraphs 5(1) and (2) of Part 1 of this Schedule exist and shall report their conclusions to the Industrial Court.
If the Commission is not satisfied that such a prima facie case has been established then the Commission shall indicate that fact, and in that case the Industrial Court shall not proceed further with that application.
If the Commission is satisfied that such a prima facie case has been established, it shall so report to the Industrial Court and the Industrial Court may make an interim order. Such order shall provide that the agreement in respect of which the application was made shall continue in full force and effect until such interim order expires. Such interim order shall expire at the end of one year unless by that date a joint application has been made by the same parties under paragraph 1 hereof. If by that date such an application has been made the interim order shall continue in force so long as the application is before the Industrial Court, and thereafter for any further period not exceeding one year for which the Industrial Court may extent such order on an application being made to the Court for such extension.")
§ The noble Lord said: We discussed this Amendment at great length in the early hours of yesterday morning and voted on it and I do not think there is much more to be said about it, but I hope the Government will bear in mind that there are great difficulties with regard to Equity in the interim period. There are something like twenty associations of employers in the theatrical industry and all these have to be consulted by the union before agreement can be reached. With a small union like Equity, this is a task of some considerable difficulty. Furthermore, a problem is raised by the withdrawal of Amendment 140A about agency shops. The noble Lord is under the impression, I think wrongly so, that the agency shop can cope with all the difficulties Equity are facing in this respect. This is simply not so. I do not know what noble Lords on the Labour Benches wish to do, but some argument ought to be put forward on this point, and that is why I beg to move.
§ LORD DRUMALBYN
I was under the impression, when the noble Lord, Lord Stow Hill, introduced Amendment No. 142A, that he did so as a paving Amendment to this one. As we discussed the two together, it would be repetitious to discuss this Amendment all over again. If 1337 noble Lords wish simply to vote on it, that would be perfectly in order, but I do not think that we should go all over it again.
§ BARONESS WHITE
With respect, I think that we ought to have some further discussion on it, not only because it is extremely important but because, when we withdrew the other Amendment in the early hours, the noble Lord indicated that he would have something further to announce about this difficulty and we should like to know if his thoughts have gone any further. The other important reason why we should discuss it is that while a great deal has been said about Equity, very little has been said about the Seamen's Union, and it seems to me that we ought to clear our minds about the position of the seamen. The point at issue is that there is an existing closed shop agreement in both the entertainment and the seafaring worlds, and some arrangement should be made for these agreements to he continued for the interim period so that they will not become illegal, as we understand they would under the Bill as it is now, until all the procedure had been satisfactorily completed as set out in Clause 16 and Schedule 1. This is a very real difficulty.
We discussed Equity in some detail, but I should like to draw the attention of the Government to the position of the seamen, because in some respects it is even more important that we do not have a chaotic situation in the shipping industry than it is in the entertainment world. The difficulties of organising all the sailors in the Merchant Navy are stupendous. One needs little imagination to grasp that fact. To organise a floating population, in every possible sense of that word, is a great strain on the union, involving every kind of practical difficulty. From an outline of the steps which have to be gone through in order to establish a closed shop under this Bill, your Lordships will appreciate why we are so much concerned about what could happen in the interim period, which can be quite a long one. Not only does one have to make one's application to the Industrial Court in the first place, but one then has to await the outcome of the examination of the situation in the industry by the Commission on Industrial Relations; and they have to go through all the conditions that we discussed earlier 1338 —the four conditions (a), (b), (c) and (d) — which would undoubtedly take a certain time. Even if they came rapidly to the conclusion that, so far as seamen are concerned, the agency shop was neither here nor there and a closed shop was really the only intelligent way to organise this particular occupation, then one has this business of the ballot. One has to allow not less than one month before the ballot is to be held—it could be three months, but assuming the shortest period of one month is adopted —and as I think my noble friend Lord Blyton said, although I did not have the pleasure of hearing him, the experience of the National Union of Seamen (which takes a ballot once every two years for the election of their Executive Council) is that the shortest time in which you can conduct such a ballot—and it is simply voting for a certain number of names, and no more complicated than that—is 15 weeks. In other words, you have one month; you have all the preliminaries, and the C.I.R. investigation and so on; and then you have a minimum period of one month for the ballot to be declared unnecessary. Then you have a minimum of 3½ months for the ballot to he taken. The problem of getting anything approaching one-fifth of the members to initiate the ballot in the first place, to make it an effective ballot, to use the words which the noble Lord has now inserted into the Schedule, is almost insuperable and when one has done that, to have any hope of getting 51 per cent. of those eligible to vote—not just those who actually vote—is virtually impossible.
That is another reason why I used the word "bogus" about this whole procedure in Clause 16 and this Schedule. If one examines and analyses it in practical terms, and takes into account all the real difficulties with which those persons are faced who genuinely believe on both sides that a closed shop is absolutely essential—and for seamen it is not only necessary from their own industrial point of view, but also for safety that you should have some control over the people who go to sea in ships—we feel that this particular point, which is concerned not with the whole question, but with the interim arrangements, is one of considerable substance.
We discussed this in the early hours of Wednesday morning, and if I may be allowed to quote the words of the noble 1339 Lord, Lord Drumalbyn, he recognised that there was a difficulty. He said that,there should not be a hiatus".He then said, not perhaps quite so elegantly as he might—it was of course very early in the morning—The question is a hiatus between what.He then went on a few sentences further on to say:The hiatus is unlikely to arise "—I cannot see a hiatus arising; but still—but we are looking at the possibility.These, however, are the operative words:We expect to be able to take such measures that will ensure that it would be unlikely to arise in any particular case.How it could arise in any unparticular case, I do not know. He then continued:I cannot announce details of those measures now.But he thanked us for giving him the opportunity. Well, I am giving him another opportunity. If, as seems clear from these words— and one can put no other construction on them—the Government realise that there is a genuine problem here, and they are thinking about it, it is only right that they should take us further into their confidence and give us some idea as to the lines on which they are thinking, and the practical steps they will be able to take to overcome what they must recognise as a genuine and serious difficulty.
§ LORD DAVIES OF LEEK
I hope that the noble Lord will pay some attention to this matter. Here is the opportunity—no matter in what context he used the word "hiatus"; I can use the word "lacuna"—to deal with this. The main purpose of this Amendment is to do something to ensure that arrangements will not fall down in this transition period. In the case of seamen you could have maverick ship owners; in the case of theatrical companies you could have maverick pantomime companies. In the transition period people could come into the cast, despite Equity's castings agreements. So far as the seamen are concerned, there could be different means of recruitment. If the Government are not accepting this Amendment, I hope that they will give a concrete, crystal clear reason why they cannot find a formula to accept at least the spirit of the Amendment.
§ 10.37 p.m.
§ LORD DRUMALBYN
I am afraid that I have not armed myself with any of the noble Baroness's speeches so I will have to deal with her "sally" as best I can. Inevitably between the passage of this Bill and the coming into operation of the provisions we are talking about, a considerable number of months will elapse. What I said last night (in perhaps one of my more lucid moments!) was that when the Act comes into operation, and even before, agency shops will be negotiated. Indeed I will go further—they have been negotiated already.
The first stage for anybody with a closed shop is for themselves to see whether the agency shop will suit them. There is no great difficulty in the transition from a closed shop to an agency shop if it suits them. In the cases where the employee and the union both agree that it is necessary to have a closed shop, an application will be made. I appreciate what the noble Baroness says about the time that it may take for the union to carry out a ballot, although I was greatly encouraged by what my noble friend Lord Balfour has said about the way this was dealt with in New Zealand, on ship, the results being transmitted by radio, and so on. It is right for noble Lords to understand that this is something which has been taken into consideration. I was trying to indicate that it is still being examined to make certain that there will be no hiatus or lacune, or anything of that sort. We realise the importance of this and we have not introduced Clause 16 and the Schedule for nothing. We have done it because of representations that have been made, and a very deliberate attempt has been made to make this a reasonable set of conditions which the unions should be able to meet if it is really necessary for them and if they cannot fit themselves into an agency shop arrangement.
Seriously, I think noble Lords would do well not to press this Amendment. In any case, we could not accept it if only because, as they know, we are opposed to the idea of either party, or both jointly, breaching the application. For that, among other reasons, we could not accept this Amendment; also, because we really do not think that this question of a hiatus will in fact arise. As I say, we are studying the matter 1341 very closely from the point of view of the phasing of the bringing into operation of the Bill so that this kind of hiatus will not arise. I hope that at any rate I have gone some way towards satisfying the noble Baroness. As I say we could not in any case accept the noble Lord's proposal in this Amendment, so I hope that in the circumstances he will not press it to a Division. I personally welcome this further discussion because I think we have given a great deal of attention to Equity and not enough to the seamen, and I am very glad that the noble Baroness raised this point at this stage.
THE EARL OF BALFOUR
I should like just to clear up one point. My noble friend, Lord Drumalbyn, said that the voting was carried out and the results were sent by radio. I am sorry, I must correct that. I was a little tired on Tuesday night; I had come off a night sleeper and was rather tired. The way it was
§ done was that each person put his vote in an envelope, and the envelopes were sent back to the union headquarters by air. That method was very successful.
I do not feel inclined to withdraw this Amendment. I know we debated this question at great length on Tuesday and have done so again to-day, but I still feel that the Government have not appreciated the problems involved. They do not apply only to Equity; they apply over quite a large number of unions both large and small. I hope that someone will have something to say to this on the Question, Whether Schedule 1 shall stand part? I must divide the Committee.
§ 10.43 p.m.
§ On Question, Whether the said Amendment (No. 191A) shall be agreed to?
§ Their Lordships divided: Contents 48; Not-Contents, 88.1343
|Archibald, L.||Delacourt-Smith, L.||Platt, L.|
|Ardwick, L.||Diamond, L.||Plummer, Bs.|
|Balogh, L.||Donaldson of Kingsbridge, L.||Popplewell, L.|
|Barrington, V.||Evans of Hungershall, L.||Ritchie-Calder, L.|
|Bernstein, L.||Gaitskell, Bs.||Sainsbury, L.|
|Beswick, L.||Gardiner, L.||Samuel, V.|
|Birk, Bs.||Garnsworthy, L. [Teller.]||Serota, Bs.|
|Blyton, L.||Greenwood of Rossendale, L.||Shackleton, L.|
|Brockway, L.||Henley, L. [Teller.]||Stow Hill, L.|
|Brown, L.||Hoy, L.||Strabolgi, L.|
|Burntwood, L.||Janner, L.||Swaythling, L.|
|Byers, L.||Lee of Asheridge, Bs.||Taylor of Mansfield, L.|
|Chalfont, L.||Lindgren, L.||Thurso, V.|
|Champion, L.||Llewelyn-Davies of Hastoe, Bs.||Wells-Pestell, L.|
|Collison, L.||Morris of Kenwood, L.||White, Bs.|
|Davies of Leek, L.||Phillips, Bs.||Winterbottom, L.|
|Aberdare, L.||Derwent, L.||Harvey of Tasburgh, L.|
|Ailwyn, L.||Drumalbyn, L.||Hatherton, L.|
|Amherst of Hackney, L.||Dudley, E.||Hives, L.|
|Balfour, E.||Ebbisham, L.||Ilford, L.|
|Barnby, L.||Eccles, V.||Inchyra, L.|
|Bathurst, E.||Effingham, E.||Inglewood, L.|
|Belhaven and Stenton, L.||Elliot of Harwood, Bs.||Jellicoe, E. (L. Privy Seal.)|
|Belstead, L.||Exeter, M.||Kemsley, V.|
|Berkeley, Bs.||Falkland, V.||Killearn, L.|
|Brabazon of Tara, L.||Ferrers, E. [Teller.]||Kinnoull, E.|
|Clinton, L.||Ferrier, L.||Lansdowne, M.|
|Colville of Culross, V.||Fisher, L.||Lauderdale, E.|
|Conesford, L.||Fortescue, E.||Lucas of Chilworth, L.|
|Cork and Orrery, E.||Gisborough, L.||Lyell, L.|
|Cottesloe, L.||Goschen, V. [Teller.]||Mancroft, L.|
|Craigavon, V.||Gowrie, E.||Massereene and Ferrard, V.|
|Cranbrook, E.||Gray, L.||Mersey, V.|
|Croft, L.||Grenfell, L.||Mowbray and Stourton, L.|
|Cromartie, E.||Hailes, L.||Moyne, L.|
|Cullen of Ashbourne, L.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Napier and Ettrick, L.|
|Daventry, V.||Nugent of Guildford, L.|
|De Clifford, L.||Hanworth, V.||Penrhyn, L.|
|Denham, L.||Harcourt, V.||Rankeillour, L.|
|Reading, M.||Sempill, Ly.||Sudeley, L.|
|St. Aldwyn, E.||Shannon, E.||Suffield, L.|
|St. Just, L.||Somers, L.||Teviot, L.|
|St. Oswald, L.||Stamp, L.||Thorneycroft, L.|
|Sandford, L.||Strange, L.||Tweedsmuir, L.|
|Sandys, L.||Strathcona and Mount Royal, L.||Vivian, L.|
|Selsdon, L.||Windlesham, L.|
On Question, Clause 20 agreed to.
§ On Question, Whether Schedule 1, as amended, shall be agreed to?
§ 10.51 p.m.
§ LORD DELACOURT-SMITH
There still remain one or two points which I should like to put to the noble Lord in the light of the discussions upon this Schedule. I wonder whether he could say a little more about the point he touched upon when he last spoke to the Committee about the arrangements for bringing into effect the different sections and provisions of the Bill. As I understood him on an earlier occasion—and he argued that this was logical and unavoidable—the first step would be to bring into effect the parts of the Statute which establish what he described as the infrastructure: the N.I.R.C., the industrial tribunals and the other pieces of machinery. But lie said this evening that in fact it would be possible, before the Schedule we are discussing is brought into effect, for agency shops to be established. Are we to understand that he was referring exclusively to agency shops under Clause 10(1)?
§ LORD DELACOURT-SMITH
That is to say, those established on a voluntary basis. I find it difficult to see how what he said could conceivably apply to agency shops established under subsection (2). If there is a limitation, it would only be practicable in the case of those industries where it was possible to proceed on an entirely voluntary basis. I am sure he will appreciate that this could be difficult in cases of industries which were fairly closely knit, where there was a good deal of movement from one employer to another and where the majority of employers might be quite keen to establish an agency shop, but where there might be difficulty because a minority—and perhaps a small minority—of employers might be reluctant. They could go a long way towards frustrating action under Clause 10(1) which the majority of the 1344 industry might wish to undertake. Would the noble Lord comment upon that?
The second point I should like to raise concerns the arrangements for the taking of ballots in Part 2 of this Schedule. I must confess that this is not clear to me, although it may be clear to others; and perhaps the noble Lord would explain it. As I understand it, the Government are arguing that the arrangements proposed in this Schedule provide the answer to the anxieties which have been expressed in a number of cases, and particularly in the cases of the theatrical profession and the Merchant Navy. The question which puzzles me is this: in the event of ballot being taken under Part 2 of the Schedule for the approval of an agreement, who exactly is going to be entitled to vote—which workers are going to be entitled to vote?
Under subparagraph (2) of paragraph 9 of the Schedule "the relevant workers "means those workers who, on the date of the application, are workers to whom the proposed agreement would apply if it were made on that date. On any date in some of the industries which we are considering—and let us take the Merchant Navy as an example—there will of course be a considerable number of workers who are in the employment of a variety of employers, but there will equally be a considerable number of workers who will in fact not be in the employment of any employer at that date, because, after all, one of the arguments which has been advanced in respect of these occupations where we feel there are particular difficulties is that there is a considerable fringe of workers who are in fact at any given date out of employment; not in the employ of any employer.
I must confess that I do not understand exactly how, for the purposes of a ballot, one is going to define—how the Commission is going to define—some of the occupational areas in respect of which application under this Schedule may be put forward. Those are the two difficulties that I have. I think the noble Lord, with the assent that he has given to a 1345 number of my points about the first question on the arrangements for bringing the various provisions of the Bill into effect, has gone some way towards answering my questions, and I should be grateful if he could amplify a little and also deal with the second point that I have raised.
§ LORD DRUMALBYN
On the first point of the agency shop, the noble Lord is entirely right. Obviously, until the powers are brought into operation agency shops can be formed only by voluntary agreement. I think perhaps in his comments lie was overlooking the fact, which I dealt with on a previous occasion, that an agency shop may be of many different kinds. It may relate to a part of a plant, it may relate to a plant, it may relate to several employers, a group of employers, and it can be right across the board in industry.
On the subject of the ballot, if the noble Lord will look at paragraph 11(2) of the Schedule I think he will find an answer to his question. It says:The persons eligible to vote in the ballot shall be the workers who, on a date specified by the Commission in making arrangements for the ballot, are workers to whom the proposed agreement would apply.I do not think there is any real difficulty there.
§ LORD DELACOURT-SMITH
I am sorry, but I find some difficulty about it. I had noticed this. How in fact is the theatrical profession to be defined? Or how in fact are merchant seamen to be defined? Will they be defined in terms of those who, at some stage — say during the preceding 12 months—have had employment in these fields respectively? In that event, how will they be identified; or are they going to be identified in terms of membership of the relevant union?
§ THE LORD CHANCELLOR
May I draw the noble Lord's attention to one factor which I do not think he has taken into account? It does not wholly answer all his points, but I think it answers part of the question which he has just put. The word "worker", where it appears in the Bill, is covered by the definition clause in the Bill, and that covers not merely those who are at the moment unemployed, but those who normally work or who seek to work in the industry. Obviously, there may be a 1346 question about identification, but membership of a union in the case of seamen or Equity would be absolutely conclusive, I should have thought, that they were normally seeking to work in the industry concerned. It is conceivable that there might be some outside, but in those particular cases you start with an existing closed shop, and the result is that the union would be almost certainly practically, if not exactly, 100 per cent. of the relevant workers, given the application of the definition clause, to which I have drawn the attention of the noble Lord. I hope he finds that explanation helpful.
§ LORD DELACOURT-SMITH
I do, indeed, find it very helpful. Would it then.be fair to say that generally speaking one might expect that in occupations of this sort the persons eligible under paragraph 11(2) of Schedule I are likely to be in fact co-terminous with the membership of the union?
§ THE LORD CHANCELLOR
That must be so, in the nature of the things. I think that, in a good deal of these discussions we have been having, the Committee has sometimes lost sight of the fact that if you start with a closed shop you start with 100 per cent. membership virtually intact, and a crisis would develop only rather slowly as the 100 per cent. membership dropped off. Assuming an application were made timously, the problem of identification in the light of the definition section would I think he much smaller than one would think theoretically was the case.
§ LORD DELACOURT-SMITH
I am sorry to keep coming back, but I am not sure that the earlier point I made has been fully covered. That was the problem which can arise, that one is under the obligation, at the time of which we are speaking, of proceeding exclusively under Clause 10(1). Is there not a possibility of real difficulty in a situation in which the majority of the employers are very happy to proceed with the organisation of a comprehensive agency shop agreement, but that the whole progress is frustrated by possibly quite a small minority of employers who may not be so disposed?
§ LORD DRUMALBYN
I see the difficulty, bat I think it is not easy to generalise about a difficulty of this kind.
1347 Obviously in an employers' association they do not necessarily work by unanimity. On the other hand it is always possible that somebody who disagrees violently may leave the association. One has to accept these permutations. Therefore I really could not generalise on that position. But so far as the particular plants, the particular companies, with with their subsidiaries, are concerned, there at any rate I can see no difficulty at all with the changeover. There may be some areas where difficulties arise—it would be stupid to pretend that there will not be—in changes of this kind. But we do not visualise that the difficulties will be very great, and all the evidence we have at the moment is that the agency shop is commending itself to employers as quite a good solution, and indeed more and more to trades unions.
§ LORD DELACOURT-SMITH
I should be interested if at some time the noble Lord could give the evidence for that last statement. I will not press him further on it at the moment.
Before we leave Clause 16, Schedule 1, which we have been debating since Thursday, may I fire a ranging shot across the Government's bows? The Government—and this is very much to their credit—after long debate in another place, decided that something ought to be done about closed shops, closed shops which were reputable and desirable, and they introduced Clause 16 and Schedule No. 1. It appears to me, after about three days' debate, that the Government privately are aware of the fact that it is conceivable that they may be wrong on some of the judgments they have taken on this matter. I was rather hopeful last night; I felt the Government were showing signs that they have recognised that there is a problem here and they really would look into it. One of the things that encouraged me was what the noble Lord, Lord Drumalbyn, said yesterday morning: that the Government would certainly be ready to consider whether some special, even statutory, provisions should be made to meet the problems which it is suggested may arise. Later on he said:Let experience of the operation of the Bill decide whether a further special solution is necessary".1348 The ranging shot that I want to fire is this; on Thursday afternoon my noble friends introduced an Amendment, the purpose of which was to try to give some flexibility to the Minister, so that if something went wrong he could put it right rather more quickly than is likely if we have to go into the whole question of new legislation. The Government rejected this, and I can quite understand their point. They did not want to put powers into the hands of the Secretary of State which they felt were unsuitable powers for him to have.
I wonder whether they would look at this point again, because it seems to me that there are real dangers. We have been talking about the hiatus, this interim period. The Government feel that we need not be frightened and that it will solve itself. They may be right, but if they are wrong very serious damage may be done to unions which have operated for many years on a basis of which we approve. That damage—I will not say irreparable damage, but it may be such that it is extremely difficult to put right—can only be put right at great cost to all of us. Will the Government have a look at the whole problem, to see whether they can think of a device by which if anything goes wrong—and I expect the Government are aware of the fact that something might go wrong—they can put it right rather more quickly than by the ordinary process of legislation?
§ 11.7 p.m.
§ THE LORD CHANCELLOR
I wonder whether I might fire a ranging shot into the noble Lord's stern? We will, of course, consider what he has said, but I feel that he has underestimated the strength of what my noble friend was saying about the commencement clause, Clause 160. The Bill is not due to come into operation on Royal Assent; there is a commencement date, and indeed there may be several commencement dates. When he asks for flexibility, I believe that he has underestimated the flexibility which is there. Take this problem that we have made such a meal of, the closed shop, and the approved closed shops in relation to industries or factories where closed shops at present exist. Our hope is that they may be converted into agency shops, and my noble friend has made out the case as to why that is not very difficult. In two particular cases which have 1349 been named it is thought that this is unlikely to happen; namely, the seamen and Equity. I only point this out to the noble Lord for him to consider before we debate this subject again, if we do, that when the Bill receives the Royal Assent, the provisions which render void the existing closed shop and the present arrangements are not in force until they are brought into force. Between the time when the Bill passes and the time when they are brought into force there is a great deal of room for flexibility; either for negotiation with the Government, or for setting up the apparatus (if that is the right word) for an application to the Industrial Court for an approved closed shop.
Noble Lords opposite talked about the number of employers' associations in one of the two trades, and of the number of employers in the other. There is time; and I hope that, despite the strength with which this whole subject has been debated, the Opposition and the unions will not run away with the idea that we are unwilling to discuss the operation and commencement of the Act in the light of realism here. Obviously we are not going to try to delay them, and we should be rather resistant to delaying them, but clearly they do not come into operation straight away. It may well be that, on reflection, the noble Lord will feel that the device which he has asked for at any rate in part exists, assuming that both sides are reasonable in their application of the commencement provisions. I do not necessarily promise that, but it seems to me that the draftsmen's device may be the best of all.
I am perfectly ready to accept that. It may well be that this is how it will go. On the other hand, it may well he that it will not. There are practical problems. You may have a small union with fewer than half a dozen officers, and employers of ten times that number, some of whom are not members of any organisation. The mere physical fact of negotiating with all of these people is a formidable one and it may be almost impossible to do it. I agree that with good will one can do almost anything whatever the law is, and that without it matters can be very difficult. But having said that, I think my noble friend will probably want to consider the possibility of putting down an Amendment along 1350 those lines. I hope it will not be too repetitious of what we put down earlier, and I hope the Government will consider that it may be in their own interests to think up a device of this kind.
§ BARONESS WHITE
Without wishing in any way to prejudice the proposal which the noble Lord would like to put forward later, I wonder whether between now arid Report stage the Government could help us by letting us have, on an informal basis, a piece of paper setting out in what order they would bring in the various sections of this Bill, so as to overcome the hiatus problem. That would help us very much indeed.
§ LORD DELACOURT-SMITH
Following up my noble friend's suggestion, which is an excellent one, I wonder whether it would be better to go a little further and make not an informal communication to this side of the House, but a considered statement on this matter. There are many people in industry who, in good' faith, have assumed that the full provisions of the Bill would, in the Government's expectation, come into effect on the day of the Royal Assent.
§ LORD DELACOURT-SMITH
I appreciate that answer, and those who have given very close study, who have managed to labour as far as Clause 160 will know that. But there are many people who, in good faith, have gone a good way to assimilating the proposals in this very complicated Bill, but have not appreciated this point. It would be extremely valuable if my noble friend's suggestion could be followed up, and perhaps carried a little further.
§ LORD DRUMALBYN
I take the point that the noble Baroness and the noble Lord have made. Perhaps they would be good enough to leave this with me. I should not like to enter into an undertaking, but I am sure that we shall be able to help the Committee in some way or other. But I doubt whether we should be able to give the full information the noble Lord wants, because it is important to retain flexibility and not tie dawn the dates. All the experience of the past indicates that, when you are bringing in a Bill at various stages, you want to make certain that you are ready for the text stage before you bring it in
1351 So I hope the noble Lord will not expect too much of us. But generally we shall try to help the Committee as far as we can.
§ Schedule 1, as amended, agreed to.
§ Clause 17 [Minimum periods of notice to terminate contracts of employment]:
§ On Question, Whether Clause 17 shall stand part of the Bill?
§ BARONESS WHITE
We now start upon what is a completely new Industrial Relations Bill. We have moved away from all the subjects which we have been discussing, to deal with the Contracts of Employment Act 1963, and we must therefore adjust our minds. Unfortunately, this means that this section of the Bill is one of those tiresome things—legislation by reference to some other Statute. However, as far as Clause 17 is concerned, we have put down no Amendments to this clause and that, of course, is for the very good reason that it repeats, I think in precisely the same terms, what was Clause 62 in the Bill published by the last Administration. This, therefore, I think, is the first clause in this Bill which brings us unalloyed satisfaction. It does so because it is designed to strengthen the sections in the Contracts of Employment Act 1963 which are referred to, in the sense that it decreases the period of employment which conditions the notice which has to be given to terminate contracts. The various periods are set out quite plainly in this clause, and we are very glad that in this respect, at least, the Government have been prepared to follow the admirable example of their predecessors.
I should just like to echo what the noble Baroness has said, and to confirm she is quite right: it does repeat in terms what was in the previous Administration's Bill. She is also right in her supposition that it was a repetition of Clause 62 of that Bill. All I should like to say is that it gives me unalloyed satisfaction to hear that this clause gives her unalloyed satisfaction.
§ Clause 17 agreed to.1352
§ Clause 18 [Written particulars of terms of employment]:
§ 11.17 p.m.
BARONESS WHITEmoved Amendment No. 192.
Page 15, line 12, after ("shall") insert 1 "be written in full and given to each individual employee and shall")
§ The noble Baroness said: I beg to move the Amendment standing in the name of my noble friends. This is really a quite straightforward Amendment. We are concerned to make quite sure that any employee actually receives and is actually given individually the statement which is required under this clause, because although I think this was the intention of earlier legislation, I am advised that in practice it has not really happened and that workers who supposed that they were going to get full information as to their terms and conditions of employment did not get it in this direct and individual form which seems to us to be desirable. I know that this means a certain amount of work for the employers; we recognise that. On the other hand, in this legislation we are accepting a principle, or are repeating a principle, which is that each and every person, when he is taken into employment, within a certain period should receive the full details to which he is entitled. I think a good deal of play was made about this by at any rate certain Conservative candidates in their Election speeches, and so by putting down this Amendment we are giving the Government an opportunity to fulfil their pledges. We hope very much, therefore, that they will accept the Amendment.
§ I think I am correct in saying that the Contracts of Employment Act 1963 was the first legislation which made it obligatory on employers to see that their employees knew what their terms of employment were. We have been told that it has not worked entirely well in practice. Merely to make terms of employment available somewhere in general does not seem to us to be adequate. One knows what happens in factories: something gets put on to a notice board, then it gets covered up with other notices and so on. It can be very important that the individual employee knows exactly what he is entitled to. We are glad that in the first subsection the provisions about holidays and holiday pay are fully spelt out because in earlier 1353 legislation this was only briefly referred to. This is a considerable improvement. I think it is taken from the Labour Government's Bill; because we felt that in practice the rather general reference to holidays and holiday pay in the Contracts of Employment Act 1963 had not been adequate; there had been areas of disagreement. Now that information has to be given in such a form, if the need arises it can be precisely calculated. This we entirely support. But I think that all this information about holidays, about sick pay, about notice required to terminate employment and so on should be given to each individual employee. I beg to move.
§ 11.22 p.m.
§ LORD WELLS-PESTELL
I hope that the Government will feel able to accept this Amendment. We on this side and, I think it is true to say, noble Lords on the other side are concerned to estalish the best possible relationship in industry at the present time. It may be that we have a different approach in seeking to establish this but I do not think that anyone can deny that it is of supreme and paramount importance. I think it is important that an employee should have a full, clear and precise written statement concerning the conditions and terms of his employment. As my noble friend, Lady White, has said, this was supposed to have been achieved by the Contracts of Employment Act 1963. I believe that when Parliament passed that Act we were under the impression that it would be achieved. But from the amount of litigation since then, many of us know that it is far from being established. Therefore I would ask the Government to accept this. I believe that a good many Members of their own Party in the other place paid more than lip service when they said that this is not only desirable but essential. I believe it would make for better relations in the future if it could be done.
§ LORD BROWN
This Amendment may be rather more important than it seems. I should like to support it, not because of its precise legal impact but because it will be a stimulus to writing. The anthropologist when exploring society, often simple society, uses the word "primitive" in a special sense. He 1354 means a society that do not write its customs and practices. In this sense, industry is extraordinarily primitive. When we hear stories of workpeople who fail to act in accordance with the agreements which have been reached on their behalf, it is more often than not due to the fact that they do not know what has been agreed to on their behalf. But when their duties and the policies which have been agreed between management and tile shop stewards are committed to writing and made available to employees, you begin to produce an atmosphere of greater certainty for everyone. They know more clearly where they stand. Managers know within what policies they may make decisions, and employees know that managers are no longer arbitrary people who can make any decision they like. All this is opening up a big subject which I do not intend to pursue. If, by the inclusion of this Amendment, the managements of companies are stimulated to a greater extent to write what is agreed upon, and to write out the duties of employees and the limitations on managerial action, great good can be done. These words may start a process which will lead to procedures being written properly.
§ 11.25 p.m.
I find myself in considerable agreement with the sentiments expressed by the noble Baroness, Lady White, who referred to the need for clarity and definition, and also with what was said by the noble Lord, Lord Wells-Pestell, who spoke about better relations. I do not think it would be right to claim virtue on one side of the Committee or the other. We are all seeking the same thing, sometimes by the same method and sometimes by a different approach. I am in considerable agreement with what was said by the noble Lord. Lord Brown. I echo his plea for better, clearer and cleaner procedures; for the spelling out of these things and for the need for management to take the trouble to see that people know what are their rights and how they may go about getting a grievance put right.
There is a technicality which I should like to point out regarding the Amendment. It bites cleanly on Section 4(1) of the Contracts of Employment Act 1963. If noble Lords will look at subsection (l) 1355 they will see that that it refers to a new employee. It is clear that the effect of Clause 18 of the Bill, read in conjunction with Section 4(1) of the Contracts of Employment Act, is that every employee entering a new employment must get a written statement. This statement should include all the new matters to which the noble Baroness referred and other matters covered in this part of the Bill, which would include the effect of the agency shop agreement, grievance procedures and the rest of it. What the Amendment seeks to do is done already, in this Bill and under existing legislation. I am not saying that all this happens in practice. The requirement is definitely in the legislation and firmly embedded in this Bill.
I had assumed, however, when I looked at this Amendment, that its aim was to provide that every existing employee who had already received a written statement should also receive and be able to retain a personal copy of the additional particulars which his employers are required to give him under subsection (2) of this clause. If that is what noble Lords are anxious for, I think it may not be necessary or desirable. In the case of existing employees it is sufficient for the employer to notify the employee of the new particulars in accordance with Section 4(4) of the Contracts Act. This means that he has informed the employee in writing but need not leave a copy for the employee to keep, though he must make certain that the employee can readily refer to it at any future time. No more than the noble Baroness do I like the idea of an employee having to rely on some rather scruffy notice pinned up in an obscure and dark corner of a disordered notice board in order to ascertain precisely what his rights may be. I do not think any of us likes that idea.
I understand that Section 4(4) of the Contracts Act provides that employers must ensure that every employee is informed of the new particulars in writing. Many employers—I think that this would usually apply in large concerns—find it convenient to put a notice in every wage packet and that notice can be kept by the employee. This is the practice which, as I read the Amendment, the Opposition would like to make universal. It is not universal at present. I rather doubt whether it should be. Some employers 1356 find it more sensible to send round a circular—for example, in an office with white collar employees—on which the employees notify that they have seen it. I hope, therefore, that the noble Baroness will agree that the Amendment is unnecessary, since Section 4(4) of the Contracts Act already requires employers to make certain that every employee is properly informed of changes in the terms of his or her employment. But though I think it is important that everyone is informed in writing—and this is already in he Bill—how it is done is a matter where there should be a certain flexibility and discretion. But on the principle that each employee must be notified in writing of the particulars of his or her employment and of any change in those particulars, not least the changes which will come about as a result of the enactment of this legislation, I do not think there is anything between the two sides of the Committee.
§ LORD BURNTWOOD
I have listened carefully to what the noble Earl has said, and of course I support this Amendment in general principle. I hope that he will take into account the fact that it is a recurrent experience in personnel departments that there is a temptation on the part of the employer to incorporate in generalised notices small print which in many cases is utterly incomprehensible. References to other legislation and supporting documentation are conditions of these generalised notices which are unacceptable to the individual in the main. I am merely making a plea that if the Government could accept some sort of Amendment such as that put forward by my noble friend, they would take into account the problem of how important it is for the individual to understand what is put into these statements.
§ LORD BROWN
I shall not keep the Committee long, particularly because, strictly speaking, I am not talking to this Amendment. It is difficult to get certain aspects of the problem of industrial relations into this Bill, because it does not envisage them. The noble Earl, Lord Jellicoe, in talking about means of informing employees was talking about notices in pay packets and so on. What we have to face is that these industrial concerns are occupation societies which have internal legislation which covers all sorts of things that matter greatly to employees, 1357 such as overtime, night shifts, three-shift working, time off, sick leave and so on. There are policies governing all these things, whether they are written or not, although there is sometimes inconsistency between one department and another. What is really needed inside a particularly big industry is that the law book, if you like to call it that, which contains all the policies, is made available to every employee and is explained to every new employee when he arrives. This is what is desperately required in industry. Notices in pay packets are no doubt looked at and read and then possibly forgotten. You want a reference point for all these things to which people can go back, and then appeals will be judged in the light of these policies. This is what we are used to as citizens in society. What is wrong in industry is that we have not advanced to this elementary degree of sophistication. I know that I am not talking to the Amendment, but am merely trying to use the Amendment to get something on the record which I believe to be important.
§ BARONESS WHITE
We do not want to make too much of this, but I think it is an important point. We are advised by our trade union friends that although Parliament thought that it was providing in the Contract of Employment Act 1963 for all workers to be given a full statement as to conditions and so on, it has not worked adequately in practice. We are told that many employers provide the barest minimum of information to the individual, and it is not adequate. In view of what the noble Earl, Lord Jellicoe, has said, I am quite willing not to press this point at the moment and to have further consultations with some of our trade union colleagues to make quite certain of the precise points where the failure appears to lie. But that they are not satisfied with the position under the existing legislation seems to us quite plain, and that is why we put down the Amendment. Perhaps on that understanding I may have leave to withdraw the Amendment.
Before the noble Baroness withdraws the Amendment, I should like to respond. I cannot claim to be an expert in this area, but I have had a certain knowledge of industry from time to time. We all know that in large areas of industry the practices we should like to see, and which are followed in 1358 the best areas, are not followed to bring the standards up. I think I made the formal position clear in responding to the Amendment of the noble Baroness. It is certainly clear to me that the existing provisions of the Contracts of Employment Act specify quite clearly that any new employee should receive individually a full statement of the terms of employment, and that will include the new items covered by present legislation. If this is not working, we should try to find out why. It could be a defect in the legislation but it is more likely that the legislation is not being honoured; or perhaps it is a defect in administration.
I suggest that the noble Baroness should not only consult with her trade union friends; if, between now and the Report stage, she would like to come and talk about the practical problems, and if there is something which, as a result of these talks, we should do, I should not wish to preclude that. I am advised that is not necessary, and I do not wish to hold out any hopes, but I should like to extend an invitation to talk about this.
§ Amendment, by leave, withdrawn.
§ 11.42 p.m.
moved Amendment No. 194:
Page 15, line 16, after ("agreement") insert ("or art approved closed shop agreement").
§ The noble Earl said: This Amendment will make certain that employees are informed in the written statement given to them under the Contracts of Employment Act, and they will see such a statement irrespective of whether they are new employees being taken on by an employer for the first time, or old employees. We have debated Clause 16 and Schedule 1 at some slight length, and these cover the approved shop agreements. Your Lordships accepted both the clause and the schedule, and I do not wish to debate the substance of that again. Now the principle of the approved closed shop agreement has been approved by this Committee it becomes important that the notice to be given by employees should make clear the effects on their rights under Clause 5 of any approved closed shop agreement which may apply to them. This is the simple and sole purpose of the Amendment.1359
§ THE EARL OF LAUDERDALE moved Amendment No. 194A:
Page 15, line 18, leave out paragraphs (b) and (c) and insert—
("( b) either explaining the procedure available to the employee where he has a grievance relating to the employment to which the statement relates, or referring to a document which is reasonably accessible to the employee and which explains that procedure.").
§ The noble Earl said: This Amendment hears very much on the one which has just gone before, and may I recall to your Lordships the words of my noble friend, Lord Jellicoe, who said that we all want better, clearer and cleaner procedures. That is a sentiment that embraces the aspirations of both sides of this Committee. I am not sure whether it was my noble friend, or the noble Baroness, Lady White, who said that we want flexibility and discretion. Without going back unduly, the noble Lord. Lord Brown, seemed to want everything on paper; and I felt there was a fear of too much paper. The noble Lord, Lord Snow, obviously wanted whatever there is to be on paper to be intelligible.
§ THE EARL OF LAUDERDALE
I apologise for not recognising my old friends in their old shape, as young and zestful as ever.
This Amendment relates to a subsection which was initiated in another place but not in fact debated. This is therefore an opportunity for our Front Bench to explain what really is the inwardness of the subsection as we have it in front of us. Our own proposal to delete it and put in something simpler is an endeavour to simplify what is already, by general agreement on all sides of the Committee, a Bill of incredible complexity if not actually incomprehensibility.
What worries some of us is that not only large firms but also small—and it may be very small—firms are now required not only to have grievance procedures, which we all want, but also the sheer bumbledom and extra paper work of giving each worker a written statement in detail. This 1360 may be simple enough where things are sent around on a Roneoed circular, although whether a Roneoed circular quite serves the purpose is open to question. But the real difficulty that some of us find is that the statement must declare in detail and specify to whom it would seem, by name—no doubt we shall get clarification on that—the aggrieved worker shall resort. In point of fact, the aggrieved worker will go, as he is accustomed to going, to his shop steward or foreman or the deputy foreman anyway, and so one may well ask why this extra paper is going to be necessary. It is one thing to impose on an employer a statutory duty to keep his employees informed t it is quite another to spell out in detail, and dot the t's and cross the t's, exactly how he shall do it in circumstances of endless variation.
All our Amendment seeks to do is to allow the employer to issue a note to each worker saying in effect where the necessary information can be found. It might be a notice board—and of course we accept the noble Baroness's point that notice boards are not necessarily an answer to every problem; we accept that. But there must surely be a simpler way in a small company than necessarily sending round what I would choose, with your Lordships' indulgence, to call "bumf".
In putting this subsection into the Bill in another place I am afraid the Government were falling victim to the legalist's temptation to allow the best to be the enemy of the good. Our Amendment is simply something that has the support of wide sections of industry. I make no secret of it that it was sparked off by the Confederation of British Industry—and that is a respectable source, in any event. All I would say is that I beg the Government to give this Amendment a fair wind, and the Committee to give it a fair hearing. I beg to move.
§ LORD BROWN
I should like to support this Amendment. The real, central meaning of the Amendment does not differ very greatly from the words in the Bill, because anything that can be done under the Amendment can be done under the words in Clause 18(2). Nevertheless, it is a clear exposition of what is required. What worries me about Clause 18(2) (b) is a slight implication that there is one person, and one person only—this is not necessarily so but this is how it may be 1361 read—to whom everybody must go to have the means of appealing against a decision to which he objects explained. In a company employing 20,000 or 30,000 people some managers might indeed specify a single person. However, this is not good. I would hope to see emerging out of the Amendment before us a procedure which would simply allow an employee who was the subject of a decision by his manager to which he objects, to inform his manager under the procedure that he wishes to appeal. That appeal should go up what I would refer to as the executive system until it gets to the chief executive. I have experience of these systems and they work. The Amendment makes that possible; whereas the Bill as it stands does not make the possibility of such a procedure so clear.
Before I sit down, I should like to quarrel a little with the noble Earl, Lord Lauderdale. He referred to my obsession for "bumf". Under his Amendment every new employee will have to have a note. Under what I am proposing every employee will be told on his induction period to refer to the book which contains all these things; and I can assure him from experience that what I am proposing involves a great deal less "bumf" than was implied by what he said.
THE EARL OF DUDLEY
I have read a number of accounts of the Battle of Jutland, and it is clear that the noble Earl's father conducted himself with great sang froid, but by all accounts there is a great grey battleship which appears out of the mist with all guns blazing and I think I am entitled to compare Amendment No. 194A to such an event. It could also be compared to the appearance of a victory on June 4 at Eton, because the stroke, the noble Viscount, Lord Amory, has fallen into the water, and the bow, the noble Lord, Lord Sinclair of Cleve, has also fallen into the water and the game has been left to the cox.
THE EARL OF DUDLEY
Be that as it may, the boy is on the burning deck, and I think those of us who support this Amendment are entitled to point out that it is not a reasonable proposition to suggest that a worker should go forward and personalise his complaint in this respect. There is a song which I have heard, "Yo, ho, ho, Mrs. Robinson"; this is 1362 the equivalent. Quite frankly, it is very much better to do as the noble Lord suggests and put this on a basis of a procedure that is laid down for a person to follow in a company rather than putting it on the basis that somebody has to go to an individual and complain and say, "This is your job to do this," which leads to all sorts of complications. That being so, I would support the Amendment.
§ LORD BERNSTEIN
I support the Amendment. I am heartened by an Amendment of this kind from the other side, I think the first one we have had since the Committee started.
I tiptoe into this unholy alliance which seems to have formed around me, because I must make it clear that this Amendment which the noble cox has so ably moved seeks to restore this part of the Bill to its original form prior to the Government Amendment which was moved at Committee stage in another place. Therefore, although it will take me a minute or two, because this was a Government Amendment, I think I should explain the thinking behind it. First of all, I should like to make it plain beyond peradventure that the Government attach considerable importance to there being clear grievance procedures in industry and the employees being aware of them. It is quite common for the ordinary employee not to have the foggiest idea what to do when he has a grievance. We all know that this is so in too many cases.
This ignorance is sometimes exploited—let us not kid ourselves that it is not—and even when it is not exploited it can lead to unnecessary friction and frustration. Quite simply, the Government's intention is to do what they can to help to rectify this situation and to make certain that employees understand quite clearly the procedures available to them for dialing with grievances and how action under those procedures may he initiated. Most large employers—and this applies particularly in the public sector—have worked out agreed procedures for dealing with employees' grievances; but the requirement under this Act is not confined to employees who have a formal grievance procedure. In our view, it will also help employees who do not have access to formal machinery to know to 1363 whom they should apply if they have some grouse or grievance connected with their employment. That is why the Government hope this provision will serve to focus attention on the need throughout industry for clearly worked out and well-understood grievances procedures. We hope that it will encourage employers to think about this aspect of industrial relations with a view to improving the existing procedures or establishing proper rules and procedures. I am quite sure that the Committee will agree that those aims, at least, are desirable.
I now turn briefly to the details of the subsection and to the criticisms of it which have been made by my noble friends behind me and by noble Lords opposite. First, subsection (b) is intended to make it clear that the employee should not be in any doubt as to the grievance machinery he may use and as to whom he can apply to trigger off that machinery—and this applies whether or not there is formal machinery. I recognise that the reference here to specifying a person has been taken to mean that a particular named individual must be specified. I am informed that this is not the case, although the English might seem to imply that it is. I have checked on this very carefully. An employer may name an individual if he so wishes; but my advice is that the provision in the Bill means that an employee could equally well be directed to apply to his foreman, without his foreman being named, or to the manager of the department in which he may be working.
Clearly in a large concern with 200 or 300 foremen—for example, in a Ford motor plant—it would present a formidable task to keep employees' written statements up to date if named individuals had to be inserted in them. The Government do not expect this, nor, I am assured, does the legislation—whatever noble Lords may think—require it.
My noble friends seem worried in case the machinery we are setting up may be rather "heavier" than is in fact required. I think they are reading rather more into the provision than is intended All that it requires is that the employee should be given a note in his written statement, saying to whom—not necessarily an individual—he can go if he has a grievance. This seems a limited 1364 arrangement and in fact it implies in many cases no more than a simple procedure. For example, on a farm the obvious person to go to would be the boss. That is all that is required and we do not think this is an unreasonable or unduly onerous requirement.
Having said that, I should like to make it clear that I have listened carefully, I hope, to what has been said behind me and in front, and I should like to think about this. I think myself that the wording could be improved. "Specifying a person", for example: if it does not mean a named individual I think the wisdom of Parliamentary draftsmen, which is very extensive, could probably find phraseology which would be less misleading to the layman like myself. Also, where there is a reference to "subsequent steps" in sub-paragraph (c), which implies a rather heavy machinery, we may again be able to find something simpler and better. I doubt whether it would be in the precise wording suggested by my noble friend but I should like to ask him if he will allow us to have a look at this. I would not wish to be unduly committed here because I know my right honourable friend attaches very considerable importance indeed to getting this clear procedure, but I would hope to be able to suggest something at Report Stage.
§ LORD BROWN
I make this comment for the record. I am grateful for what the noble Earl has said. The difference between the Bill as it stands and the Amendment is that in the Bill there is not necessarily a written appeals procedure. According to the Amendment, you must have it. If we can do anything to make certain that these written procedures exist it will be a good thing. In the case of a farm the procedure can merely say "ask the boss" but in the case of a large industrial organisation written procedures are very much better than the right to go to somebody who will explain it to you.
I should like to say straight away that it must be written because it refers to "every statement", and at the risk of being accused of being a "bumf" manufacturer by my noble friend behind me I must point that out to the noble Lord, Lord Brown.
§ BARONESS WHITE
I did not rise earlier because frankly I had assumed that with the wealth of persuasion behind and before me the noble Earl would have accepted the proposed Amendment; it seems to us on this side of the Committee to be an improvement on the Bill as it now stands, and I should have thought that the proposed Amendment covers the ground that needs to be covered. If in certain circumstances the employer wants to indicate a person or somebody holding a particular position in the firm to whom representations should be made, it is open to him to do so under the terms of the Amendment. But we are not entirely happy that a particular person should be named by the employer. I will be quite frank about the reason. We think that in many circumstances it would be better, if a person has a grievance, that he should go to his shop steward and ask for advice, so that he does not put forward his grievance without having taken advice from someone more experienced than himself. If, as has been indicated, he has to go to the foreman or to some specific person on the management side, this may militate against it. If he goes properly to his trade union shop steward or organiser, that official will know perfectly well to whom he ought to go with the grievance, and he can then go with the backing of someone who may have had far greater experience than he about the particular complaint. The shop steward or organiser may in fact be able to advise him how to settle it without even starting a grievances procedure. For those reasons we prefer the Amendment as put forward, with the great weight of the C.B.I. behind it, as I understand it. I should have thought that with the combined entreaty of the C.B.I. and those who have experience in the trade union world, the Government might be a little more flexible about this matter and not be quite so certain that they are right.
I really must protest to the noble Baroness. I thought I made it perfectly clear in my closing remarks that I was not quite certain that we were right. I made it perfectly clear that I was willing to look at this point, and I should like to re-emphasise that. I think our wording could certainly be improved. I am not certain whether the C.B.I. wording is quite the right wording; I should like to look at both wordings 1366 in the light of the remarks, which I think have been very helpful, made from all sides of your Lordships' House this evening. I thought I had made that clear. If I had not, I hope I have now made it clear.
§ THE EARL OF LAUDERDALE
These twenty minutes or so round about midnight have surely shown that this House serves a very useful purpose. We have now had an explanation from the Government about a subsection introduced in another place, which was not there explained. The explanation has related primarily to the vexed meaning of the word "person", and for that I should like to express my personal thanks and those of my colleagues to my noble friend Lord Jellicoe. But, far more important than the simple explanation, if simple is the word, about the meaning of "person", if "person" is a simple word, is our overall concern for better, clearer and cleaner procedures. The key word in my noble friend's answer has been simplicity, and on account of that word alone, quite apart, if I may say so, from his friendly demeanour and readiness to help and assist and look at this matter again, I wish to withdraw this Amendment. It is simplicity that we need in a complex matter. It is clarity of understanding and purpose that we require. It is this that we have been given from our own Front Bench. Therefore I beg leave of your Lordships to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 18 shall stand part of the Bill?
§ 12.8 a.m.
§ LORD DELACOURT-SMITH
I should like to draw the attention of your Lordships to one or two features of Clause 18. As your Lordships will know, there was an Amendment, No. 193, which we had down to this clause, but on consideration and in the light of the Government Amendment and of the discussions which we have had during the proceedings on the Bill so far, it would seem that perhaps it would he more businesslike and avoid repetition if I raised the points which we have in mind on whether the clause shall stand part, when I can go a little wider than I would have been able to do on the Amendment. I am encouraged to proceed in this way by the responsive attitude of the Leader of the House 1367 on the Amendment which has just been discussed. I am sorry that he, in I think almost his first intervention in the proceedings on this Bill, has found the word person "so troublesome. It has troubled us already in the Committee, and it was on the tip of my tongue to rise during the earlier Amendment and ask whether he thought any useful purpose would be served by substituting the word worker for it; but perhaps that really would not have been very constructive.
What I should particularly like to ask the noble Lord and the Committee to consider is subsection (2), and particularly subsection (2) (a). The Committee has shown itself extremely interested and sympathetic to the idea that, in some proper detailed personal form, individual workers should be given an indication of their entitlements in respect of conditions of service, and guidance about the handling of grievances. Personally I believe that this is a subject which it would pay industry very handsomely to approach with understanding and imagination. My experience is that individuals entering industry, and particularly young workers entering for the first time, are impressed to quite a remarkable degree by the information which an employer troubles to give them about the new career that they are entering. If, as years advance, workers changing jobs do not approach a new job with quite the same enthusiasm with which they might have approached their first job, it is perhaps because an unwillingness to give them as much information, and involve them as completely as could be done, has bred a cynicism. Therefore it is an important subject which we are discussing, because it does so much to contribute to the impression which the individual entrant to a firm has of that firm, and also of its attitude to him.
I particularly want to direct attention to what will he told him at this point about his rights in relation to trade union membership or trade union non-member-ship, for it is a provision of subsection (2) that every statement given to an employee under subsection (1) should include, among other things, a note about his rights under Clause 5 of this Bill. We have already spent a great deal of time discussing Clause 5, and it begins with this contenious declaration that a worker has a right 1368 to be a trade unionist and has a right to be a non-unionist. if one looks merely at the first part of Clause 5, it appears that these rights are of an equal standing. If one reads further through the clause, and if one appreciates the statements which have been made by the Government and by others, these are not rights of equal force, validity and significance, and they ought not to appear to be so. For them to appear to be so would be, in fact, misleading.
The Donovan Commission—and we have already quoted this more than once—has a very apposite comment on this point, and says that the right to be a trade unionist is of the greater value, because it contributes positively to the encouragement of collective bargaining, which it should be public policy to encourage. The Government have made it clear that they share this general view. They have made this clear in general statements; they have made it clear in comments which have been made by noble Lords during proceedings on this Bill. It is also brought out, if one looks at it, in the various provisions of the Bill. For example, in Clause 5 itself there are the important rights not only to he a trade unionist but, what is equally important, to carry on the activities of the trade union in the terms set out in the clause. The existence as part of the Bill of the agency shop and the closed shop further signifies that these are not rights which are on an equal footing. We have emphasised this point and attach great importance to it. Indeed, it is significant that subsection (5) of Clause 5 states that it is not improper for an employer to encourage tile workers to join a trade union which the employer recognises as having negotiating rights. So these are not two rights which are on an equal footing, and it is important that this is brought out and included in any statement to an employee about his rights under Clause 5 and what flows from it.
For that reason, I hope it is not intended that there should be given to every worker a simple austere statement or reproduction of Clause 5 itself. That would be a very simple, legalistic way by means of which any employer could say that he had fully complied with the terms of the subsection. But it would not be an imaginative or, in a true sense, an accurate way of conveying the mind of Parliament and the interests of the community in this 1369 context. In many ways it would be misleading. We all know, for example, how much misinterpretation there has been even here of the phrase in paragraph (a) of Clause 5(1),the right…to be a member of such trade union as he may choose",and Government spokesmen have emphasised very strongly that that phrase,
of such trade union as he may choose?must be read in conjunction with the earlier line defining these things as rights which the worker has as between himself and his employer. But that statement conveyed in that form by a simple reproduction of the clause would undoubtedly give rise to misunderstanding.
What I am specifically asking the Government to do is to reconsider the wording of, in particular, paragraph (a) of subsection (2), to take account of the points which I am making—points which are, to a large extent, common ground between the two sides. This is important if a statement of the employee's rights in this field is to be given to him as a statutory requirement as the subsection proposes.
The noble Lord will be aware of what has been done, and very well done, for many years in the Civil Service. In the excellent introductory booklet given to the new civil servant, there is a statement to the effect that he is not only permitted, but actually encouraged, to join a trade union. Then there are a few sentences setting out in a very simple and reasonable way the function of the trade union as seen by the employer into whose employ the young civil servant is coming.
There is scope for this point to be examined, not necessarily in isolation, but as part of the general arrangements for induction. If there is to be a statutory requirement to give to workers a statement of this kind, it would be very valuable if the Government could consider not only the form of the statutory requirement in paragraph (a) of subsection (2), but also in what other ways creative and imaginative discussion can be promoted. Should there be a reference to this in a general way in the code of practice? Or. as I am inclined to think, should it not be among those matters—and there are bound to be many—which will have to be discussed along- 1370 side the code of practice with the various interested parties that the Government are going to consult about the code of practice? I hope that the noble Lord will be able to make a sympathetic response to this and will consider whether between now and Report stage he can reframe this subsection to take account of the points which I have made, which, as I say, I hope will command support on both sides of the Committee.
I am grateful to the noble Lord, Lord Delacourt-Smith, for the way he has put his points. I think I should say this frankly straightaway: I do not myself see that there is really a need, and I do not think he has quite seriously made out a very convincing case, at least to me, for a re-drafting of the requirement in subsection (2)(a) of Clause 18 of the Bill. Because it seemed to me that the Committee was in agreement that it would be sensible that all employees should have full knowledge of their rights. I think the only point the Committee were on was how this should be best communicated. Although we know that we disagree, or agree to differ, on Clause 5 and on the agency shop provisions, I did not hear any dissent that knowledge of employees' rights should be communicated in these statements. But what I can undertake to do is to consider carefully the points which Lord Delacourt-Smith has put to the Committee, out of a great wealth of firsthand experience, as to how my right honourable friend should advise employers and employers' organisations about the content of this communication. Thai I gladly undertake to do, and I will ensure that his remarks on "Clause stand part" are brought to my right honourable friend's attention.
§ LORD DELACOURT-SMITH
I wonder whether the noble Earl could go a little further than that and could indicate that he will not consider himself bound by the terms of the subsection as it stands at present, and that in examining this matter he will be prepared to contemplate, if it is necessary, some variation of it.
I think I must be frank about this. I do not think that a change is necessary here. Were I to persuade myself that it was necessary, 1371 naturally I should contemplate the change.
§ Clause 18, as amended, agreed to.
§ Clause 19 [Supplementary provisions as to Contracts of Employment Act 1963]:
EARL JELLICOE moved Amendment No. 195:
Page 15, line 28, after ("of") insert ("Part I of").
§ The noble Earl said: I hope it will be for the convenience of the Committee if we take this Amendment, No. 195, together with the Amendments which really flow with it: Nos. 196, 197, 198 to 201—the Amendments which stand in the name of my noble friend—and also, I fear, with them, a manuscript Amendment to Amendment No. 200 which my noble friend has produced out of his hat at the last moment and which I can assure noble Lords opposite is entirely of a minor drafting variety. This series of Amendments which I am now moving looks rather formidable, but I hope that after I have explained the purpose behind them your Lordships will agree that they make for rather more plain sailing than at first sight may appear.
§ I hope it may be helpful if in explaining the purpose of these Amendments I give a brief explanation of the background of the written statement provisions in the Contracts of Employment Act on which we have been touching for some little time. Section 4(1) of the Act requires that employees be given within 13 weeks of starting work a written statement giving specific particulars of the main terms of their employment. Section 4(8) provides that employees who receive written contracts of employment that include these particulars need not in addition be given a written statement. This is perfectly sensible since without subsection (8) we should all, employers and employees, be involved in a lot of unnecessary duplication. Class 18(2) of the Bill requires that every written statement issued in accordance with Section 4(1) of the Contracts Act must include a note about the employee's rights under Clause 5. This note must tell him how to proceed if he has a grievance. The aim of paragraph 4 of Schedule 2 to the Bill as originally drafted and as it is now before the Committee was to 1372 make corresponding provisions in the case of those employees who receive written contracts instead of written statements. The Bill as drafted requires the note as mentioned in Clause 18(2) to be incorporated in the individual contract of employment. Paragraph 9 of Schedule 2 anticipates these being treated as variations of the contract.
§ However, now that we have looked into the matter further, it is clear that paragraph 4 of Schedule 2 as drafted would not adequately meet the situation. It would not, I am advised, be easy to incorporate a note of the kind mentioned in Clause 18(2) into a contract of employment because a note of this kind is of an explanatory rather than a contractual nature. Moreover, to incorporate such a note in a contract of employment would mean that large employers who issue written contracts to their employees instead of written statements under the Act would be faced with a really mammoth administrative task in having to draw up and issue to every employee either a complete written statement under the Act or a fresh written contract of employment in order to include the variation introduced by Clause 18(2). I know for example that this would lay an enormous burden on one big employer, the Post Office. Since the Post Office became a corporation, all their employees receive written contracts of employment. It was certainly not our intention when drafting the Bill to place a burden of this kind on employers who issue written contracts.
§ The Amendments aim to overcome this problem by maintaining the validity of the existing contracts without the need for this change if a note as mentioned in Clause 18(2) is given to the employee separately and in addition to his written contract or if he is given reasonable opportunities of reading such a note in the course of his employment or if such a note is made accessible to him. If the additional note has not been given or made accessible within one month of the coming into force of the operation of these provisions the employee will be regarded as no longer excepted under Section 4(8) of the Act and will have to be issued with a full written statement as provided in Section 4(1) of the Contracts of Employment Act. That is the simple purpose behind this formidable and complicated series of Amendments. I hope 1373 my explanation will render them acceptable to your Lordships. Perhaps I should mention, in conclusion, that the new Part II of Schedule 2 merely reproduces Section 4(1) to (9) of the Contracts of Employment Act as amended by these provisions.
§ LORD DIAMOND
We are all attracted by understatement, which is a particular British habit. The statement by the noble Earl about the complications of the series of Amendments we are dis. cussing was one such attractive understatement. I want to deal with the substance and then with the form. What I understand from the noble Earl's statement is that all the information we are now deciding should be given by the employer to the employee will be given in one form or other. I am grateful for his confirmation. I do not think we have any quarrel with the Government's purpose if that is what they seek to do.
I turn now to the form. It was quite impossible for me to follow the whole thing through in the way it has been put down. I should have thought this an occasion on which it would have met the convenience of the Committee if there had been a Schedule printed as it is now intended to be, complete in its new form, instead of having all these bits and pieces. The noble Earl will recognise that in order to arrive at the truth of what he said, which I do not doubt for one second, one has to leave out all sorts of existing bits and to add all sorts of other bits; they do not fit together. You cannot read one document without having at least four and now we have an additional tenth thought—I hesitate to call it a second thought. It is a small matter, but it is an Amendment to an Amendment to what the Government are thinking now, as opposed to what they were thinking earlier on. It has made it impossible to follow this completely through. I am sure we are all grateful that pail of it has been printed in heavy type that was of some help.
I am saying all this because all I can do at the moment is to express my gratitude to the noble Earl for what he has said. He has confirmed that I have understood it. I will now go away and read in Hansard what he has said and try to put the bits together to see whether we think they correspond to what he has advised us they should mean. I daresay that his advice is as reliable as it always 1374 is, but one could not do more than that at this stage. I do not want to delay the Committee further. The essence of the meaning is satisfactory but the form is completely unsatisfactory and we must hold ourselves completely free to come back on this at some stage or other. I suppose it is too late now to ask that there should be a reprint because the reprint will be in the Bill as it is printed for Report stage. The Schedule will be in its new form and we shall see what the situation is. But if we have this sort of thing again I hope that the noble Earl will bear in mind that it is frequently found convenient, when you are changing a number of things, to have at least two Bills going, this and another one. In this Act we are changing another Act, and in another Act we are referring to the changes taking place in this Act. It is a most devilishly complicated matter and it would have been more convenient if a reprint of the whole thing, as the Government now intend, had been made available, particularly as I should not be surprised if the Government have to come along with more bits of paper like this and say that thy did not appreciate the effect of it. I have made my little grumble. The noble Earl has confirmed that I understand correctly what is proposed and I do not wish to delay your Lordships any longer.
I should like to express my gratitude to the noble Lord, for frankly he has let me off a bit lightly. I have tried to penetrate this maze, with a few more signposts than the noble Lord has had, and with all those signposts I have always arrived at different parts of the maze. I have considerable sympathy with him and should like to think that there is some possibility that I might be able to help him with an early sight of what Schedule 2 is going to look like.
§ LORD DAVIES OF LEEK
I have listened with care and alertness and tried to follow this matter but it is difficult indeed. If we go on, we may get exasperated and bad tempered, and one thing I do not like to see is bad tempered noble Lords at this time of the morning. Is an agreement under this provision a legally binding contract or not? That is all I want to hint at this evening. I think that it would be better at a brighter time 1375 of another day to discuss this subject in depth.
§ LORD DIAMOND
The noble Earl is going to think about whether he can help me with the Schedule. What we are dealing with here is not part of the Industrial Relations Bill but part of the Contracts of Employment Act. Does the noble Earl have in mind consolidating the two so that we could have one Act to look at?
No, I was referring to the Schedule. Consolidation with the Contracts of Employment Act would be more than I could produce in the time.
§ Amendment moved—
Page 15, line 31, at end insert—
("(2) Subsections (1) to (9) of section 4 of the Contracts of Employment Act 1963 (as amended) shall have effect as set out in Part II of that Schedule.")—(Earl Jellicoe.)
§ Clause 19, as amended, agreed to.
Page 128, line 29, leave out from ("following") to end of line 30 and insert ("subsections shall be substituted for subsection (8)"). —(Earl Jellicoe.)
§ Amendment moved—
Page 128, line 39, leave out paragraph 4 and insert—
("(8) The foregoing provisions of this section shall not apply to an employee if and so long as the conditions specified in the next following subsection are fulfilled in relation to him.
(8A) Those conditions are that—
(8B) If at any time after the beginning of an employee's period of employment he ceases to come within the exception in subsection (8) of this section, the employer shall give the employee a written statement tinder subsection (1) of this section not more than one month after that time.").—(Earl Jellicoe.)
§ 12.39 a.m.
§ LORD DRUMALBYN moved Amendment No. 198A:
§ Page 129, line 26, leave out from ("1963") to end of line 46 and insert ("after paragraph 3 there shall be inserted the following paragraph: —
§ Sickness or industrial injury benefit
§ 3A. —(1) The following provisions of this paragraph shall have effect where the arrangements in force relating to the employment are such that—
- (a) payments by way of sick pay are made by the employer to employees to whom the arrangements apply, in cases where any such employees are incapable of work because of sickness or injury, and
- (b) in calculating any payment so made to such employee an amount representing, or treated as representing, sickness benefit or industrial injury benefit is taken into account, whether by way of deduction or by way of calculating the payment as a supplement to that amount.
§ (2) If during any part of the period of notice the employee is incapable of work because of sickness or injury, and—
- (a) one or more payments, either by way of sick pay or as amounts required to be paid by virtue of this Schedule, are made to him by the employer in respect of that part of the period of notice, and
- (b) in calculating any such payment such an amount as is referred to in sub-paragraph (1)(b) of this paragraph is taken into account as therein mentioned,
§ The noble Lord said: This is a relatively simple Amendment and I hope that it will not tax your Lordships too much 1377 at this early hour. Schedule 2 of the Contracts of Employment Act guarantees an employee's pay during the minimum period of notice required to be given under the Act, if he does not work during all or part of his working hours because of incapacity through sickness or injury. The employer can count towards the guaranteed payment any sick pay or holiday pay he makes in respect of the period of notice. There is no provision, however, which allows any sickness or industrial injury benefit the employee receives in respect of that period to be taken into account. The absence of such a provision has caused difficulty in some industries in which wages are usually made up while the worker is away sick. The provisions of Schedule 2 to the Act have resulted in employees receiving more in some circumstances than if they had been at work. The heavy increase in sick absences when redundancy notices have been given has in some instances created difficult problems for employers—for example, in relation to the redeployment of the labour force. When an employer has a redundancy scheme he calculates his requirements, and they get badly upset if the sick absences, as they are called, are greatly in excess of the norm. The problem has been further aggravated by the introduction of earnings-related sickness benefit. This has enabled some individuals covered by the guarantee provision to receive during the notice period the equivalent of up to 185 per cent. of their usual earnings. This problem will be further aggravated by the longer minimum notice period provided for in Clause 17.
§ The vast majority of employers who provide full wages during sick absences in normal employment circumstances take into account the amount of any sickness or industrial injury benefit which the employee receives. Therefore, it seems only sensible that, where such an arrangement applies, it should be allowed to continue during the period of notice. The employer will merely be applying the usual arrangement for payment of wages during sickness, and the employee will be no worse off financially than at any other time when he is absent sick. I should make it clear that the provision does not allow employers who have no sick pay arrangements to deduct sickness or industrial injury benefit from the guaranteed payment.1378
§ To sum up, this Amendment rectifies an anomaly in the Act which has been causing considerable difficulty, particularly since the introduction of earnings-related benefits, and I commend it to the Committee. I beg to move.
§ LORD DIAMOND
I wonder if I could ask just one question on this. Has the noble Lord any idea of the size of the matter we are dealing with? Can he say how much is likely to be going to be saved, or how much less is likely to be spent, as a result of this Amendment? Has he attempted to make any calculation? It is difficult to know from the wording whether we are dealing with a matter of considerable substance or not.
§ LORD DRUMALBYN
The fact is that this difficulty arises simply because there is no provision in the existing legislation for offsetting sickness benefits. The extra expenditure to which the noble Lord refers is not a charge on the Exchequer, because people are getting their sickness benefits already. I am afraid I have not got a figure to give the noble Lord, and I imagine that it would be difficult to estimate one of this kind. May I make inquiries and let the noble Lord know?
§ LORD DIAMOND
I should be most grateful if the noble Lord would do that. We are talking about the reduced amount which will be received by employees to whom the new provision applies. They will not get as much, both in terms of sickness relief and in terms of pay from their employers, as they are getting at the present time. If that is not a substantial item, one can recognise that there has been a duplication which was, to a certain extent, an oversight, or provision was not made for one to be set off against another. If it is a substantial sum, it is going to affect people who have become accustomed to receive amounts which they are no longer going to receive. One would want to know that there was no resulting hardship or anything of that kind.
§ LORD DRUMALBYN
The noble Lord has not quite got this right. We are dealing with the case where a man is working in the normal way and if, during that period, he goes off sick, the 1379 employer will normally offset his sickness benefit against the normal payment. Under the existing legislation, if during the period of notice he goes off sick he gets his sickness benefit in addition to his full guaranteed pay. We are dealing in Schedule 2 only with the period of notice. The difficulty in making an estimate is of knowing what proportion of employers have arrangements for the offseitting of sickness benefits under their sick pay schemes. It may be difficult to make an estimate, but I will make inquiries about it.
§ LORD DIAMOND
I recognise that it will be difficult, and that it will only be an estimate, but it will be better than nothing. One's advisers are extraordinarily good at making use of whatever information is available and of giving an estimate. I am trying to get at the size of the matter with which we are dealing. If there is a large amount involved, then clearly there are many people who in those circumstances, during their period of notice have been receiving a much larger figure and others have been expecting therefore to receive a much larger figure than they will now receive when the new regulations start to apply.
§ LORD DRUMALBYN
The problem here is that obviously once a person receives notice he is liable to have less interest in the job than before he received the notice. This applies during redundancy. This unforeseen extra benefit that he receives during the period of notice operates as a temptation to him not to work. This is unjustified, and we ought to face this quite squarely. I do not think we ought to over-estimate hardship to someone who probably did not even know that he would get both full sick benefit and the guaranteed payment during his period of notice. He would not get it normally and the question is: why should he get it during the period of notice simply by a quirk in the law?
§ LORD DIAMOND
I am taking the point that the noble Lord is making; that is, that although certain individuals get a certain amount, they ought not to get it and, in all fairness, it would be reasonable to make arrangements that they should not get it. Before entering too 1380 deeply on the argument, it would be right to know how much is involved. If a great deal is involved we shall want to come back to this matter on Report Stage.
Page 130, line 5, after ("but") insert ("(except as provided by the next following paragraph)").—(Earl Jellicoe.)
§ Amendment moved—
Page 130, line 7, at end insert—
(". On the coming into operation of paragraph 3 of this schedule, an employee shall not be treated as ceasing to come within the exception in subsection (8) of section 4 of the Act of 1963 by reason only that the condition specified in paragraph (c) of that subsection is not fulfilled; but he shall be treated as ceasing to come within that exception unless that condition is fulfilled not more than one month after the coming into operation of paragraph 3 of this Schedule."). —(Earl jellicoe.)
§ LORD DRUMALBYN
I beg to move Amendment No. 200A as an Amendment to Amendment No. 200. This is purely drafting.
Amendment to the Amendment moved—
In line 5, leave out ("that subsection") and insert ("subsection (8)(a) of that section").—(Lord Drumalbyn.)
§ 12.51 a.m.
Page 130, line 10, at end insert—